RESTRICTED STOCK AWARD AGREEMENT
Exhibit
10.5.5
THIS RESTRICTED STOCK AWARD AGREEMENT (the
“Agreement”) is made by and
between
(“Recipient”) and InfraSource Services, Inc., a
Delaware corporation (the “Company”), as
of ,
200 . Capitalized terms used but not otherwise
defined in this Agreement shall have the respective meanings set
forth in the Company’s 2004 Omnibus Stock Incentive Plan
(the “Plan”).
On ,
200 (the “Date of Grant”), the Board of
Directors of the Company (the “Board”), in its
capacity as Administrator under the Plan, awarded the Recipient
a Restricted Stock Award, pursuant to which the Recipient was
awarded shares
of common stock of the Company (“Common Stock”), par
value $.001 per share (the “Unvested Shares”),
pursuant to and subject to the terms and conditions of the Plan
and this Agreement. The Restricted Stock Award is made to the
Recipient as compensation for his services as a member of the
Board of Directors of the Company.
1. Repurchase Option.
(a) If Recipient’s service as a director with the
Company or any Parent or Subsidiary is terminated for any
reason, including death or Disability (such date of termination
of service is hereinafter referred to as the “Termination
Date”), the Company shall have the right, but not the
obligation, to purchase from Recipient, or Recipient’s
personal representative, as the case may be, any or all of the
Recipient’s Unvested Shares that have not become vested
pursuant to Section 1(d) of this Agreement as of the
Termination Date, at the par value of the Unvested Shares (the
“Repurchase Option”) and otherwise in accordance with
the terms set forth below.
(b) The Company may exercise its Repurchase Option by
delivering personally or by registered mail, to Recipient (or
his transferee or legal representative, as the case may be),
within twelve (12) months after the date of termination, a
notice in writing indicating the Company’s intention to
exercise the Repurchase Option and setting forth a date for
closing not later than thirty (30) days from the mailing of
such notice. The closing shall take place at the Company’s
office. At the closing, the holder of the certificates for the
Unvested Shares being transferred shall deliver the stock
certificate or certificates evidencing the Unvested Shares, and
the Company shall deliver the purchase price therefor.
(c) If the Company does not elect to exercise the
Repurchase Option conferred above by giving the requisite notice
within twelve (12) months following the Termination Date,
the Repurchase Option shall terminate.
(d) Subject to the provisions of Section 1(a) and 1(b)
above, and subject to termination pursuant to section 1(c)
above, and provided that the applicable Share Vesting Event (as
hereinafter defined) occurs prior to the Recipient’s
Termination Date, the Repurchase Option shall automatically
terminate, and the Unvested Shares shall become vested
(“Shares”) on the earlier to occur of: (i) the
applicable Share Vesting Date (as hereinafter defined), and
(ii) upon a Change in Control of the Company ((i) and
(ii) individually and collectively referred to as a
“Share Vesting Event”). The Share Vesting Date is the
earliest date (other than a Change in Control) on which the
Repurchase Option shall terminate with respect to all Unvested
Shares and shall
be , .
(e) For the purposes of this Agreement, “Change in
Control” shall mean: (A) a merger, consolidation,
share exchange, spin-out or other reorganization involving at
least 50% of the voting securities of the Company; (B) a
complete liquidation or dissolution of the Company; or
(C) the sale or other disposition of all or substantially
all of the assets of the Company and its Subsidiaries to any
person (other than a transfer to another Subsidiary of the
Company).
2. Transferability of the Shares; Escrow.
(a) Recipient hereby authorizes and directs the Secretary
of the Company, or such other person designated by the Company,
to take such steps as may be necessary to cause the transfer of
the Unvested Shares as to which the Repurchase Option has been
exercised from Recipient to the Company.
(b) To insure the availability for delivery of
Recipient’s Unvested Shares upon repurchase by the Company
pursuant to the Repurchase Option under Section 1,
Recipient hereby appoints the Secretary of the
Company, or any other person designated by the Company as escrow
agent, as his
attorney-in-fact
to sell, assign and transfer unto the Company such Unvested
Shares, if any, repurchased by the Company pursuant to the
Repurchase Option and shall, upon execution of this Agreement,
deliver and deposit with the Secretary of the Company, or such
other person designated by the Company, the share certificates
representing the Unvested Shares, together with the stock
assignment duly endorsed in blank, attached hereto as
Exhibit A. The Unvested Shares and stock assignment
shall be held by the Secretary in escrow, pursuant to the Joint
Escrow Instructions of the Company and Recipient attached as
Exhibit B hereto, until the Company exercises its
Repurchase Option, until such Unvested Shares are vested, or
until such time as this Agreement no longer is in effect. As a
further condition to the Company’s obligations under this
Agreement, the spouse of the Recipient, if any, shall execute
and deliver to the Company the Consent of Spouse attached hereto
as Exhibit C. Upon vesting of the Unvested Shares
pursuant to the provisions of Section 1(d) of this
Agreement, the escrow agent shall promptly deliver to the
Recipient the certificate or certificates representing such
Shares in the escrow agent’s possession belonging to the
Recipient in accordance with the terms of the Joint Escrow
Instructions, and the escrow agent shall be discharged of all
further obligations hereunder; provided, however, that the
escrow agent shall nevertheless retain such certificate or
certificates if so required pursuant to other restrictions
imposed pursuant to this Agreement.
(c) The escrow agent shall not be liable for any act it may
do or omit to do with respect to holding the Shares in escrow
and while acting in good faith and in the exercise of its
judgment.
(d) Any purported transfer or sale of the Shares shall be
subject to restrictions on transfer imposed by any applicable
state and Federal securities laws. Any transferee shall hold
such Shares subject to all the provisions hereof and shall
acknowledge the same by signing a copy of this Agreement.
3. Ownership, Voting Rights, Duties. This
Agreement shall not affect in any way the ownership, voting
rights or other rights or duties of Recipient, except as
specifically provided herein.
4. Legends. The share certificate or
certificates evidencing the Shares issued hereunder shall be
endorsed with the following legend (in addition to any other
legend or legends required under applicable Federal and state
securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIONS UPON TRANSFER AND RIGHTS OF REPURCHASE AS
SET FORTH IN AN AGREEMENT BETWEEN THE COMPANY AND THE
SHAREHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF
THE COMPANY.
Upon lapse of such restrictions on transfer, the Company shall
direct the Company’s transfer agent to remove such legend.
5. Adjustments. All rights and
obligations under this Agreement are subject to Section 3
of the Plan, the terms of which are incorporated herein by this
reference.
6. Notices. All notices and other
communications under this Agreement shall be in writing and
shall be given by facsimile or first class mail, certified or
registered with return receipt requested, and shall be deemed to
have been duly given three days after mailing or 24 hours
after transmission by facsimile to the respective parties named
below:
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If to Company:
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InfraSource Services, Inc. 000 Xxxx Xxxxx Xxxxxx Xxxxx 000 Xxxxx, XX 00000 Attention: General Counsel Facsimile: (000) 000-0000 |
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If to Recipient:
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at the address listed on the
signature page to this Agreement |
2
Either party hereto may change such party’s address for
notices by notice duly given pursuant hereto.
7. Survival of Terms. This Agreement
shall apply to and bind Recipient and the Company and their
respective permitted assignees and transferees, heirs, legatees,
executors, administrators and legal successors.
8. Section 83(b) Election. Recipient
hereby acknowledges that he has been informed that, with respect
to the Unvested Shares, an election may be filed by the
Recipient with the Internal Revenue Service, within 30 days
after the award of the Shares, electing pursuant to
Section 83(b) of the Code to be taxed currently on any
difference between the aggregate acquisition price of the Shares
and the aggregate Fair Market Value of the Shares on the date of
acquisition. A form of such election is attached hereto as
Exhibit D.
Recipient acknowledges that it is Recipient’s sole
responsibility and not the Company’s to file timely the
election under Section 83(b) of the Code, even if Recipient
requests the Company or its representative to make this filing
on Recipient’s behalf.
9. Representations. Recipient has
reviewed with his own tax advisors the Federal, state, local and
foreign tax consequences of this investment and the transactions
contemplated by this Agreement. Recipient is relying solely on
such advisors and not on any statements or representations of
the Company or any of its agents. Recipient understands that he
(and not the Company) shall be responsible for any tax liability
that may arise as a result of this investment or the
transactions contemplated by this Agreement.
10. Incorporation of Plan. The Plan is
hereby incorporated by reference and made a part hereof.
11. Amendments. This Agreement may be
amended or modified at any time only by an instrument in writing
signed by each of the parties hereto.
12. Agreement Not a Contract of
Employment. Neither this Agreement nor any other
action taken pursuant to this Agreement shall constitute or be
evidence of any agreement or understanding, express or implied,
that the Recipient has a right to continue to provide services
as an officer, director, employee, consultant or advisor of the
Company or any Parent, Subsidiary or affiliate of the Company
for any period of time or at any specific rate of compensation.
13. Authority of the Board. The Board
shall have full authority to interpret and construe the terms of
this Agreement. The determination of the Board as to any such
matter of interpretation or construction shall be final, binding
and conclusive.
14. Protections Against Violations of
Agreement. No purported sale, assignment,
mortgage, hypothecation, transfer, pledge, encumbrance, gift,
transfer in trust (voting or other) or other disposition of, or
creation of a security interest in or lien on, any of the Shares
by any holder thereof in violation of the provisions of this
Agreement, will be valid, and the Company will not transfer any
of said Shares on its books unless and until there has been full
compliance with said provisions to the satisfaction of the
Company. The foregoing restrictions are in addition to, and not
in lieu of, any other remedies, legal or equitable, available to
enforce said provisions.
15. Market Stand-Off. In connection with
any underwritten public offering by the Company of its equity
securities pursuant to an effective registration statement filed
under the Securities Act of 1933, as amended, for such period as
the Company or its underwriters may request (such period not to
exceed 180 days following the date of the applicable
offering), the Recipient shall not, directly or indirectly,
sell, make any short sale of, loan, hypothecate, pledge, offer,
grant or sell any option or other contract for the purchase of,
purchase any option or other contract for the sale of, or
otherwise dispose of or transfer, or agree to engage in any of
the foregoing transactions with respect to, any Shares without
the prior written consent of the Company or its underwriters.
16. Representation by
Recipient. Recipient represents that he has read
this Agreement and is familiar with its terms and provisions.
Recipient hereby agrees to accept as binding, conclusive and
final all decisions or interpretations of the Board upon any
questions arising under this Agreement.
3
IN WITNESS WHEREOF, this Agreement is deemed made as of the date
first set forth above.
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RECIPIENT:
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INFRASOURCE SERVICES, INC. | |
| Signature | ||
| Print Name | Title | |
| Social Security Number | ||
| Residence Address |
4
EXHIBIT A
ASSIGNMENT
SEPARATE FROM CERTIFICATE
FOR VALUE
RECEIVED,
(the “Recipient”) hereby sells, assigns and transfers
unto INFRASOURCE SERVICES, INC., a Delaware corporation (the
“Company”),
( )
shares of the Company’s Common Stock, $0.001 par value
per share (the “Common Stock”), standing in his name
on the books of said corporation represented by Certificate
No. herewith and does hereby
irrevocably constitute and
appoint
to transfer the said stock on the books of the within named
corporation with full power of substitution in the premises.
This Assignment Separate from Certificate may be used only in
accordance with the Restricted Stock Award Agreement (the
“Agreement”) of the Company and the undersigned,
dated ,
200 .
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Dated:
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Signature: _ _ |
INSTRUCTIONS: Please do not fill in any blanks
other than the signature line. The purpose of this Assignment
Separate from Certificate is to enable the Company to exercise
its “repurchase option,” as set forth in the
Agreement, without requiring additional signatures on the part
of the Recipient. This Assignment Separate from Certificate must
be delivered to the Company with the above Certificate
No. .
A-1
EXHBIT
B
JOINT
ESCROW INSTRUCTIONS
,
200
INFRASOURCE SERVICES, INC.
Attention: Secretary
As Escrow Agent for both INFRASOURCE SERVICES, INC., a Delaware
corporation (the “Company”),
and
(“Recipient”) of the Company’s Common Stock (the
“Common Stock”) you are hereby authorized and directed
to hold the documents delivered to you pursuant to the terms of
that certain Restricted Stock Award Agreement between the
Company and Recipient,
dated ,
200 (the “Agreement”), in accordance with the
following instructions:
1. In the event the Company
and/or any
assignee of the Company (referred to collectively for
convenience herein as the “Company”) exercises the
Company’s repurchase option set forth in the Agreement (the
“Repurchase Option”), the Company shall give to
Recipient and to you a written notice specifying the number of
shares of Common Stock (the “Shares”) to be purchased,
the purchase price, and the time for a closing hereunder at the
principal office of the Company. Recipient and the Company
hereby irrevocably authorize and direct you to close the
transaction contemplated by such notice in accordance with the
terms of said notice.
2. At the closing, you are directed (a) to date the
Assignment Separate From Certificate necessary for the transfer
in question, (b) to fill in the number of Shares being
transferred, and (c) to deliver same, together with the
certificate evidencing the Shares to be transferred, to the
Company or its assignee, against the simultaneous delivery to
you of the purchase price for the number of Shares purchased
pursuant to the exercise of the Company’s Repurchase Option.
3. Recipient hereby irrevocably authorizes the Company to
deposit with you any certificates evidencing the Shares to be
held by you hereunder and any additions and substitutions to
said Shares as set forth in the Agreement. Recipient does hereby
irrevocably constitute and appoint you as Recipient’s
attorney-in-fact
and agent for the term of this escrow to execute with respect to
such Shares all documents necessary or appropriate to make such
Shares negotiable and to complete any transaction herein
contemplated, including but not limited to, the filing with any
applicable state blue sky authority of any required applications
for consent to, or notice of transfer of, the Shares. Subject to
the provisions of this Section 3, Recipient shall exercise
all rights and privileges of a shareholder of the Company while
the stock is being held by you.
4. Upon written request of the Recipient, but not more than
once following any applicable Share Vesting Event, unless the
Company’s Repurchase Option has been exercised, you will
deliver to Recipient a certificate or certificates representing
the aggregate number of Shares that are not then subject to the
Company’s Repurchase Option. Within 120 days after
Recipient’s termination of employment or service with the
Company or any Parent or Subsidiary (each, as defined in the
Company’s 2004 Omnibus Stock Incentive Plan), you will
deliver to Recipient, or Recipient’s representative, as the
case may be, a certificate or certificates representing the
aggregate number of Shares held or issued pursuant to the
Agreement and not purchased by the Company or its assignees
pursuant to exercise of the Company’s Repurchase Option.
5. If at the time of termination of this escrow you should
have in your possession any documents, securities, or other
property belonging to Recipient, you shall deliver all of the
same to Recipient and shall be discharged of all further
obligations hereunder.
6. Your duties hereunder may be altered, amended, modified
or revoked only by a writing signed by all of the parties hereto.
7. You shall be obligated only for the performance of such
duties as are specifically set forth herein and may rely and
shall be protected in relying or refraining from acting on any
instrument reasonably believed by you to be genuine and to have
been signed or presented by the proper party or parties. You
shall not be personally liable for any act you may do or omit to
do hereunder as Escrow Agent or as
attorney-in-fact
for
B-1
Recipient while acting in good faith, and any act done or
omitted by you pursuant to the advice of your own attorneys
shall be conclusive evidence of such good faith.
8. You are hereby expressly authorized to disregard any and
all warnings given by any of the parties hereto or by any other
person or corporation, excepting only orders or process of
courts of law and are hereby expressly authorized to comply with
and obey orders, judgments or decrees of any court. In case you
obey or comply with any such order, judgment or decree, you
shall not be liable to any of the parties hereto or to any other
person, firm or corporation by reason of such compliance,
notwithstanding any such order, judgment or decree being
subsequently reversed, modified, annulled, set aside, vacated or
found to have been entered without jurisdiction.
9. You shall not be liable in any respect on account of the
identity, authorities or rights of the parties executing or
delivering or purporting to execute or deliver the Agreement or
any documents or papers deposited or called for hereunder.
10. You shall not be liable for the outlawing of any rights
under the Statute of Limitations with respect to these Joint
Escrow Instructions or any documents deposited with you.
11. You shall be entitled, at the expense of the Company,
to employ such legal counsel and other experts as you may deem
necessary and proper to advise you in connection with your
obligations hereunder, may rely upon the advice of such counsel,
and may pay such counsel reasonable compensation therefor.
12. Your responsibilities as Escrow Agent hereunder shall
terminate if you shall cease to be an officer or agent of the
Company or if you shall resign by written notice to each party.
In the event of any such termination, the Company shall appoint
a successor Escrow Agent.
13. If you reasonably require other or further instruments
in connection with these Joint Escrow Instructions or
obligations in respect hereto, the necessary parties hereto
shall join in furnishing such instruments.
14. It is understood and agreed that should any dispute
arise with respect to the delivery
and/or
ownership or right of possession of the securities held by you
hereunder, you are authorized and directed to retain in your
possession without liability to anyone all or any part of said
securities until such disputes shall have been settled either by
mutual written agreement of the parties concerned or as
otherwise provided in the Agreement, but you shall be under no
duty whatsoever to institute or defend any such proceedings.
15. All notices and other communications under this Joint
Escrow Instructions shall be in writing and shall be given by
facsimile or first class mail, certified or registered with
return receipt requested, and shall be deemed to have been duly
given three days after mailing or 24 hours after
transmission by facsimile to the
B-2
respective parties named below at the following addresses or at
such other addresses as a party may designate by ten days’
advance written notice to each of the other parties hereto:
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If to Company:
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InfraSource Services, Inc. 000 Xxxx Xxxxx Xxxxxx Xxxxx 000 Xxxxx, XX 00000 Attention: General Counsel Facsimile: (000) 000-0000 |
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If to Recipient:
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| Facsimile: | ||
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If to the Escrow Agent:
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INFRASOURCE SERVICES, INC. | |
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Corporate Secretary 000 Xxxx Xxxxx Xxxxxx Xxxxx 000 Xxxxx, XX 00000 Facsimile: (000) 000-0000 |
16. By signing these Joint Escrow Instructions, you become
a party hereto only for the purpose of said Joint Escrow
Instructions; you do not become a party to the Agreement.
17. This instrument shall be binding upon and inure to the
benefit of the parties hereto, and their respective successors
and permitted assigns.
18. These Joint Escrow Instructions shall be governed by
the internal substantive laws, but not the choice of law rules,
of the State of Delaware.
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RECIPIENT:
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INFRASOURCE SERVICES, INC. | |
| Signature | By | |
| Print Name | Title | |
| Residence Address | ||
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ESCROW AGENT
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| Corporate Secretary |
B-3
EXHIBIT C
CONSENT
OF SPOUSE
I, ,
spouse
of ,
have read and hereby approve the Restricted Stock Award
Agreement by and
between
and INFRASOURCE SERVICES, INC., a Delaware corporation (the
“Company”),
dated ,
200 (the “Agreement”). In consideration of the
award of the Unvested Shares to my spouse, as set forth in the
Agreement, I hereby appoint my spouse as my
attorney-in-fact
with respect to the exercise of any rights or obligations under
the Agreement and agree to be bound by the provisions of the
Agreement insofar as I may have any rights in said Agreement or
any shares of Common Stock issued pursuant thereto under the
community property laws or similar laws relating to marital
property in effect in the state of our residence as of the date
of the signing of the foregoing Agreement.
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Dated: ,
200
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Signature: _ _ |
C-1
EXHIBIT D
ELECTION
UNDER SECTION 83(b)
OF THE
INTERNAL REVENUE CODE OF 1986
The undersigned taxpayer hereby elects, pursuant to
Section 83(b) of the Internal Revenue Code of 1986, as
amended, to include in taxpayer’s gross income for the
current taxable year the amount of any compensation taxable to
taxpayer in connection with taxpayer’s receipt of the
property described below:
The name address, taxpayer identification number and taxable
year of the undersigned are as follows:
| NAME OF TAXPAYER: |
| NAME OF SPOUSE: |
| ADDRESS: |
| IDENTIFICATION NO. OF TAXPAYER: |
| IDENTIFICATION NUMBER OF SPOUSE: |
| TAXABLE YEAR: |
1. The property with respect to which the election is made
is described as
follows: shares
(the “Shares”) of the Common Stock of INFRASOURCE
SERVICES, INC. (the “Company”).
2. The date on which the property was transferred
is: ,
20 .
3. The property is subject to the following restrictions:
The Shares may not be transferred and are subject to forfeiture
under the terms of an agreement between the taxpayer and the
Company. These restrictions lapse upon the satisfaction of
certain conditions in such agreement.
4. The fair market value at the time of transfer,
determined without regard to any restriction other than a
restriction which by its terms will never lapse, of such
property is:
$ .
5. The amount (if any) paid for such property is:
$ .
The undersigned has submitted a copy of this statement to the
person for whom the services were performed in connection with
the undersigned’s receipt of the above-described property.
The transferee of such property is the person performing the
services in connection with the transfer of said property.
The undersigned understands that the foregoing election may
not be revoked except with the consent of the Commissioner.
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Dated: 20
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| Taxpayer |
The undersigned spouse of taxpayer joins in this election.
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Dated: 20
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| Spouse of Taxpayer |
D-1
