Exhibit 10.73
Grant ID#
THERMO ELECTRON CORPORATION
EQUITY INCENTIVE PLAN
RESTRICTED STOCK AGREEMENT
Xxxxxx X. Xxxxxxx
Name of Recipient
5,000
Number of Restricted Shares of Common Stock
Awarded
Vesting Schedule for Restricted Shares Awarded:
# of Shares Vesting Date
1,666 January 7, 2005
1,666 January 7, 2006
1,667 January 7, 2007
January 7, 2004
Grant Date
Thermo Electron Corporation (the "Company") has selected you to receive the
restricted stock award identified above, subject to the provisions of the Equity
Incentive Plan (the "Plan") and the terms, conditions and restrictions contained
in this agreement (the "Agreement"). Please confirm your acceptance of this
Award, your agreement to other terms of the Plan and this Agreement, your
receipt of a copy of the Plan, and your receipt of a memorandum regarding the
tax treatment of awards of restricted stock, by signing both copies of this
Agreement. You should keep one copy for your records and return the other copy
promptly to the Stock Option Manager of the Company, c/o Thermo Electron
Corporation, 00 Xxxxx Xxxxxx, Xxxx Xxxxxx Xxx 0000, Xxxxxxx, Xxxxxxxxxxxxx
00000-0000.
THERMO ELECTRON CORPORATION
By:
/s/ Xxxxxxx X. Xxxxxxx
------------------------------
Xxxxxxx X. Xxxxxxx
Vice President, Human Resources
Accepted and Agreed:
/s/ Xxxxxx X. Xxxxxxx
------------------------------
Xxxxxx X. Xxxxxxx
1. Preamble. This Agreement contains the terms and conditions of an award of
shares of restricted stock of the Company (the "Restricted Shares") made to the
Recipient identified on the first page of this Agreement pursuant to the Plan.
Any consideration due to the Company on the issuance of the Restricted Shares
has been deemed to be satisfied by past services rendered by the Recipient to
the Company. For purposes of this Agreement, the defined terms used herein and
not otherwise defined shall have the meaning set forth in that certain Amended
and Restated Employment Agreement dated as of November 21, 2002 by and between
the Recipient and the Company, as the same may be amended from time to time (the
"Employment Agreement").
2. Restrictions on Transfer. The Restricted Shares shall not be sold,
transferred, pledged, assigned or otherwise encumbered or disposed of, until and
unless the Restricted Shares shall have vested as provided in Section 3 of this
Agreement.
3. Vesting. The term "vest" as used in this Agreement means the lapsing of the
restrictions that are described in this Agreement with respect to the Restricted
Shares. The Restricted Shares shall vest in accordance with the schedule set
forth on the first page of this Agreement, provided in each case that the
Recipient is then, and since the Grant Date has continuously been, employed by
the Company or its Affiliates. Notwithstanding the foregoing, the Recipient
shall become vested in the Restricted Shares prior to the vesting dates set
forth on the first page of this Agreement in the following circumstances:
(a) Immediately prior to the consummation of a Change in Control, all
Restricted Shares that have not previously been forfeited shall immediately
vest; provided that the Recipient is then employed by the Company or its
Affiliates.
(b) In the event of the Recipient's death or Disability, all Restricted
Shares that have not previously been forfeited shall immediately vest; provided
that the Recipient was employed by the Company or its Affiliates immediately
prior to the date of death or Disability.
(c) In the event Recipient's employment is terminated by the Company
without Cause or in the event the Recipient terminates employment for Good
Reason (it being understood that in this context, a termination of employment by
the Company without Cause or by the Recipient with Good Reason does not include
a termination due to the Recipient's death or Disability or a termination with
Cause or without Good Reason), all Restricted Shares that have not previously
been forfeited shall immediately vest.
4. Forfeiture. In the event the Company terminates the Recipient's employment
for Cause or the Recipient terminates his employment on his own initiative (it
being understood that in this context, a termination of employment on the
Recipient's own initiative does not include a termination due to his death or
Disability or with Good Reason), all Restricted Shares that have not previously
been forfeited on such date shall be immediately forfeited to the Company.
5. Dividends and Voting Rights. The Recipient shall be entitled to any and all
dividends or other distributions paid with respect to the Restricted Shares
which have not been forfeited or otherwise disposed of and shall be entitled to
vote any such Restricted Shares; provided however, that any property (other than
cash) distributed with respect to Restricted Shares, including without
limitation a distribution of shares of the Company's stock by reason of a stock
dividend, stock split or otherwise, or a distribution of other securities based
on the ownership of
Restricted Shares, shall be subject to the restrictions of this Restricted Stock
Agreement in the same manner and for so long as the Restricted Shares remain
subject to such restrictions, and shall be promptly forfeited to the Company if
and when the Restricted Shares are so forfeited.
6. Certificates. (a) Legended Certificates. The Recipient is executing and
delivering to the Company blank stock powers to be used in the event of
forfeiture. Any certificates representing unvested Restricted Shares shall be
held by the Company, and any such certificate (and, to the extent determined by
the Company, any other evidence of ownership of unvested Restricted Shares)
shall contain the following legend:
THE TRANSFERABILITY OF THIS CERTIFICATE AND THE SHARES OF STOCK
REPRESENTED HEREBY ARE SUBJECT TO THE TERMS AND CONDITIONS (INCLUDING
FORFEITURE) OF AN EQUITY INCENTIVE PLAN OF THERMO ELECTRON CORPORATION
AND A RESTRICTED STOCK AGREEMENT ENTERED INTO BETWEEN THE REGISTERED
OWNER AND THERMO ELECTRON CORPROATION. COPIES OF SUCH PLAN AND
AGREEMENT ARE ON FILE IN THE OFFICES OF THERMO ELECTRON CORPORATION.
(b) Book Entry. If unvested Restricted Shares are held in book entry form,
the Recipient agrees that the Company may give stop transfer instructions to the
depository to ensure compliance with the provisions of this Agreement. The
Recipient hereby (i) acknowledges that the Restricted Shares may be held in book
entry form on the books of the Company's depository (or another institution
specified by the Company), and irrevocably authorizes the Company to take such
actions as may be necessary or appropriate to effectuate a transfer of the
record ownership of any such shares that are unvested and forfeited hereunder,
(ii) agrees to deliver to the Company, as a precondition to the issuance of any
certificate or certificates with respect to unvested Restricted Shares, one or
more stock powers, endorsed in blank, with respect to such shares, and (iii)
agrees to sign such other powers and take such other actions as the Company may
reasonably request to accomplish the transfer or forfeiture of any unvested
Restricted Shares that are forfeited hereunder.
7. Unrestricted Shares. As soon as practicable following the vesting of any
Restricted Shares the Company shall cause a certificate or certificates covering
such shares, without the legend contained in Section 6(a), to be issued and
delivered to the Recipient, subject to the payment by the Recipient by cash or
other means acceptable to the Company of any federal, state, local and other
applicable taxes required to be withheld in connection with such vesting. The
Recipient understands that once a certificate has been delivered to the
Recipient in respect of Restricted Shares which have vested, the Recipient will
be free to sell the shares of common stock evidenced by such certificate,
subject to applicable requirements of federal and state securities laws.
8. Tax Withholding. The Recipient expressly acknowledges that the award or
vesting of the Restricted Shares will give rise to "wages" subject to
withholding. The Recipient expressly acknowledges and agrees that the
Recipient's rights hereunder are subject to the Recipient's
paying to the Company in cash (or by such other means as may be acceptable to
the Company in its discretion, including by the delivery of previously acquired
shares of common stock of the Company or by having the Company hold back from
the shares to be delivered, shares of the Company's common stock having a value
calculated to satisfy the withholding requirement) all federal, state, local and
any other applicable taxes required to be withheld in connection with such award
or vesting. If the withholding obligation is not satisfied by the Recipient
promptly, the Company may, without further consent from the Recipient, have the
right to deduct such taxes from any payment of any kind otherwise due to the
Recipient, including but not limited to, the hold back from the shares to be
delivered pursuant to Section 7 of this Agreement of that number of shares
calculated to satisfy all federal, state, local or other applicable taxes
required to be withheld in connection with such award or vesting.
9. Administration. The Board of Directors of the Company, or the Compensation
Committee or other committee designated in the Plan, shall have the authority to
manage and control the operation and administration of this Agreement. Any
interpretation of the Agreement by any of the entities specified in the
preceding sentence and any decision made by any of them with respect to the
Agreement is final and binding. Notwithstanding the foregoing, any dispute
relating to the vesting provisions in Section 3 of this Agreement shall be
determined in accordance with Section 14 of the Employment Agreement.
10. Plan Definitions. Notwithstanding anything in this Agreement to the
contrary, the terms of this Agreement shall be subject to the terms of the Plan,
a copy of which has already been provided to the Recipient.
11. Amendment. This Agreement may be amended only by written agreement between
the Recipient and the Company, without the consent of any other person.
