GETTY IMAGES, INC. 2005 INCENTIVE PLAN RESTRICTED STOCK UNIT AWARD AGREEMENT
Exhibit 10.31
GETTY IMAGES, INC. 2005 INCENTIVE PLAN
RESTRICTED STOCK UNIT AWARD AGREEMENT
This Restricted Stock Unit Award Agreement (this “Agreement”) is made and entered into effective January 3, 2006 (the “Effective Date”) by and between Getty Images, Inc., a Delaware corporation (the “Company”), and Sample Employee.
The terms of the Restricted Stock Unit Award (this “Restricted Stock Unit Award”) are as set forth in this Agreement and in the Company’s 2005 Incentive Plan (the “Plan”), a copy of which is attached. The Plan is incorporated into this Agreement by reference, which means that this Agreement is limited by and subject to the express terms and provisions of the Plan. In the event of a conflict between the terms of this Agreement and the terms of the Plan, the terms of the Plan shall control. Capitalized terms that are not defined in this Agreement have the meanings given to them in the Plan. The basic terms of the Restricted Stock Unit Award are summarized as follows:
| 1. Grant Date |
January 3, 2006 | |||
| 2. Number of Restricted |
1,000 | |||
| 3. Vesting Schedule |
The award shall vest in four equal increments as follows: | |||
| Units |
Vest Date | |||
| 250 | January 1, 2007 | |||
| 250 | January 1, 2008 | |||
| 250 | January 1, 2009 | |||
| 250 | January 1, 2010 | |||
| This award shall continue to vest so long as you continue employment with the Company or one of its Subsidiaries. | ||||
| 4. | Vesting |
(a) One share of Common Stock shall be issuable for each restricted stock unit that vests (the “Shares”), subject to the terms and provisions of the Plan and this Agreement. Upon vesting, the Company will transfer such Shares to you upon and subject to the terms of this Agreement. No fractional Shares shall be issued under this Agreement.
(b) The Restricted Stock Unit Award is subject to forfeiture upon your termination of employment with the Company and its Subsidiaries pursuant to Section 5 of this Agreement. The Restricted Stock Unit Award will vest and no longer be subject to forfeiture according to the vesting schedule set forth in Section 3 above. No Shares shall be issued or issuable with respect to any portion of the Restricted Stock Unit Award that is forfeited.
(c) Units that have vested and are no longer subject to forfeiture according to the vesting schedule set forth above are referred to herein as “Vested Units”. Units that are not vested and remain subject to forfeiture under the vesting schedule set forth above are referred to
herein as “Unvested Units”. The Unvested Units will vest (and to the extent so vested cease to be Unvested Units remaining subject to forfeiture) in accordance with the above schedule. Collectively, the Unvested and Vested Units are referred to herein as the “Units”.
(d) Early lapse of the forfeiture restrictions may occur as described below in connection with a Change in Control.
| 5. | Termination of Employment |
If your employment with the Company and its Subsidiaries terminates for any reason, any portion of this Restricted Stock Unit Award that has not vested as provided above will immediately terminate. You will forfeit all Unvested Units upon such occurrence without the payment of any further consideration to you.
| 6. | Change of Control |
Upon a Change of Control of the Company, the vesting of your Restricted Stock Unit Award will accelerate and all Units under this Agreement shall become Vested Units.
| 7. | Conversion of Units into Shares of Common Stock |
Vested Units shall be converted into shares of Common Stock and distributed to you when Unvested Units become Vested Units.
| 8. | Dividends |
At the sole discretion of the Compensation Committee of the Board of Directors, you may be credited with dividend equivalents with respect to your Unvested Units under this Agreement if the Company declares dividends on its Common Stock. If dividends are declared and if the Compensation Committee determines that dividend equivalents will be credited with respect to your Unvested Units, then the Compensation Committee, in its sole discretion, may determine the form of payment of dividend equivalents, including cash, shares of Common Stock or additional Units.
| 9. | No Rights as Shareholder |
You shall not have voting or any other rights as a shareholder of the Common Stock with respect to the Units. Upon conversion of the Vested Units into shares of Common Stock, you will obtain full voting and other rights as a shareholder of the Company.
| 10. | Securities Law Compliance |
Notwithstanding any other provision of this Agreement, you may not sell the Shares acquired upon the conversion of Vested Units unless such Shares are registered under the Securities Act of 1933, as amended (the “Securities Act”), or, if such Shares are not then so registered, such sale would be exempt from the registration requirements of the Securities Act. The sale of such Shares must also comply with other applicable laws and regulations governing
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the Shares, and you may not sell the Shares if the Company determines that such sale would not be in material compliance with such laws and regulations.
| 11. | Transfer Restrictions |
Any sale, transfer, assignment, encumbrance, pledge, hypothecation, conveyance in trust, gift, transfer by bequest, devise or descent, or other transfer or disposition of any kind, whether voluntarily or by operation of law, directly or indirectly, of Units shall be strictly prohibited and void.
| 12. | Independent Tax Advice |
You acknowledge that determining the actual tax consequences of receiving or disposing of the Units and Shares may be complicated. These tax consequences will depend, in part, on your specific situation and also may depend on the resolution of currently uncertain tax law and other variables not within the control of the Company. You are aware that you should consult a competent and independent tax advisor for a full understanding of the specific tax consequences to you of receiving or disposing of Units and Shares. Prior to executing this Agreement, you either have consulted with a competent tax advisor independent of the Company to obtain tax advice concerning the receipt, vesting or disposition of the Units or Shares in light of your specific situation or have had the opportunity to consult with such a tax advisor but chose not to do so.
| 13. | Taxes and Withholding |
You are ultimately liable and responsible for all taxes owed in connection with this Restricted Stock Unit Award, including federal, state, local, FICA, or foreign taxes of any kind required by law, regardless of any action the Company or any of its Subsidiaries takes with respect to any tax withholding obligations that arise in connection therewith. The Committee may permit you to satisfy all or part of your tax withholding obligations by your (a) paying cash to the Company, (b) having the Company withhold an amount from any cash amounts otherwise due or to become due from the Company to you, or (c) having the Company withhold and/or sell the whole number of Units or Shares from those shares issuable to you under this Restricted Stock Unit Award as the Company determines necessary to satisfy the minimum tax withholding obligations arising with respect to this Restricted Stock Unit Award from those Shares issuable to you under this Restricted Stock Unit Award upon the conversion of Vested Units. The obligations of the Company under this Agreement are conditioned on your compliance with this Section 13. The Company reserves the right not to deliver any of the Shares issuable upon conversion of Vested Units until the proper provision for required withholding has been made.
Notwithstanding the foregoing, unless waived by the Committee, in order to satisfy your obligations set forth in this Section 13, you hereby irrevocably appoint any brokerage firm acceptable to the Company for such purpose (the “Agent”) as your Agent, and authorize the Agent, to:
| (a) | Sell on the open market at the then prevailing market price(s), on your behalf, as soon as practicable on or after the vesting date, the number of shares of Common |
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| Stock (rounded up to the next whole number) sufficient to generate proceeds to cover the withholding taxes that you are required to pay pursuant to this Section 13 upon the vesting of a Restricted Stock Unit Award and all applicable fees and commissions due to, or required to be collected by, the Agent; and |
| (b) | Remit any remaining funds to you. |
You represent and warrant that you are not aware of any material, nonpublic information with respect to the Company or any securities of the Company, are not subject to any legal, regulatory or contractual restriction which would prevent the Agent from conducting sales as provided herein, do not have, and will not attempt to exercise, authority, influence or control over any sales of Common Stock effected pursuant to this Section 13, and are entering into this Agreement in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 (regarding trading of the Company’s securities on the basis of material nonpublic information) under the U.S. Securities Exchange Act of 1934 (the “Exchange Act”). It is the intent of the parties that this Agreement comply with the requirements of Rule 10b5-1(c)(1)(i)(B) under the Exchange Act and this Agreement will be interpreted to comply with the requirements of Rule 10b5-1(c).
You understand that the Agent may effect sales as provided in clause (a) above jointly with sales for other employees of the Company and that the average price for executions resulting from bunched orders will be assigned to your account. In addition, you acknowledge that it may not be possible to sell shares of Common Stock as provided by this Section 13 due to (i) a legal or contractual restriction applicable to you or the Agent, (ii) a market disruption, or (iii) rules governing order execution priority on the NYSE or other exchange where the Common Stock may be traded. In the event of the Agent’s inability to sell shares of Common Stock, you will continue to be responsible for payment to the Company of all federal, state, local and foreign taxes that are required by applicable laws and regulations to be withheld.
You acknowledge that regardless of any other term or condition of this Agreement, the Agent will not be liable to you for (a) special, indirect, punitive, exemplary, or consequential damages, or incidental losses or damages of any kind, or (b) any failure to perform or for any delay in performance that results from a cause or circumstance that is beyond its reasonable control.
You hereby agree to execute and deliver to the Agent any other agreements or documents as the Agent reasonably deems necessary or appropriate to carry out the purposes and intent of this Section 13. The Agent is a third party beneficiary of this Section 13.
| 14. | General Provisions |
14.1 Assignment. The Company may assign its rights under the Agreement at any time, whether or not such rights are then exercisable, to any Subsidiary designated by the Compensation Committee.
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14.2 Notices. Any notice required in connection with this Agreement will be given in writing and will be deemed effective upon personal delivery or upon deposit in the U.S. mail, registered or certified, postage prepaid and addressed to the party entitled to such notice at the address indicated in this Agreement or at such other address as such party may designate by 10 business days’ advance written notice under this Section 14.2 to all other parties to this Agreement hereunder. Notices delivered to the Company shall be addressed to it at its principal business office, Attention: Compensation Committee of the Board of Directors, and any notice hereunder to you shall be sent to the address reflected on the payroll records of the Company, subject to the right of either party to designate at any time hereafter in writing some other address.
14.3 No Waiver. No waiver of any provision of this Agreement will be valid unless in writing and signed by the person against whom such waiver is sought to be enforced, nor will failure to enforce any right hereunder constitute a continuing waiver of the same or a waiver of any other right hereunder.
14.4 Mutual Undertakings. You and the Company each hereby agree to take whatever additional action and execute whatever additional documents the other party may deem necessary or advisable in order to carry out or effect one or more of the obligations or restrictions imposed on you, the Units or the shares of Common Stock acquired upon conversion of the Units or the Company pursuant to the express provisions of this Agreement.
14.5 Agreement Is Entire Contract. This Agreement and the Plan constitute the entire contract between the parties hereto with regard to the subject matter hereof. This Agreement is made pursuant to the provisions of the Plan and will in all respects be construed in conformity with the express terms and provisions of the Plan. Any portion or provision of this Agreement that is deemed invalid or unenforceable shall be deemed stricken from this Agreement, without impact or affect on the remaining provisions of the Agreement.
14.6 Successors and Assigns. The provisions of this Agreement will inure to the benefit of, and be binding on, the Company and its Subsidiaries, their successors and assigns and you and your legal representatives, heirs, legatees, distributees, assignees and transferees by operation of law, whether or not any such person will have become a party to this Agreement and agreed in writing to join herein and be bound by the terms and conditions hereof.
14.7 No Employment or Service Contract. This Agreement shall not confer upon you any right with respect to continuance of employment by the Company or any Subsidiary, nor shall it interfere in any way with the right of the Company or any Subsidiary to terminate your employment at any time.
14.8 Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but which, upon execution, will constitute one and the same instrument.
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14.9 Washington Law to Govern. This Agreement will be construed and administered in accordance with and governed by the laws of the State of Washington.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year indicated above on the first page of this Agreement as the Effective Date.
| GETTY IMAGES, INC. | ||||||||
| By: | Xxxxx X. Xxxxx | Sample Name | ||||||
| SVP, Human Resources and Chief of Staff | ||||||||
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