Second Amended and Restated Cabot Microelectronics Corporation 2000 Equity Incentive Plan Restricted Stock Award Agreement (United States Employees)
Exhibit 10.5
Second
Amended and Restated
Cabot
Microelectronics Corporation 2000 Equity Incentive Plan
(United
States Employees)
AWARD
DATE
NAME
ADDRESS
CITY,
STATE ZIP
Dear
FIRST NAME:
I am
pleased to inform you that the Compensation Committee of the Board of Directors
(the “Committee”) of Cabot Microelectronics Corporation (the “Company”) has
approved your participation in the Second Amended and Restated Cabot
Microelectronics Corporation 2000 Equity Incentive Plan, as amended and restated
September 23, 2008 (the "Plan") as a means of allowing you to participate in the
success of the Company through ownership of Company common stock (“Stock”). A
Restricted Stock Award (the “Award”) is hereby awarded to you (the
“Participant”) pursuant to the terms of the Plan and this Restricted Stock
Agreement (the “Agreement”). A copy of the Plan can be electronically
accessed through the CMC world directory under “HR Information/Stock/General
Plan Information.”
|
Participant
|
Type
of Award
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Number
of Restricted Shares Awarded
|
Fair
Market Value of Restricted Shares on Date of Award
|
Participant
ID Number
|
|
NAME
|
Restricted
Stock
|
[_________]
|
$XX.XX
[general:
award date (AD) fmv/close price]
|
[xxx-xx-xxxx]
|
|
Date
of Award
|
Date
Restrictions Lapse (Vesting Date(s))
[general]
|
Award
Number
|
||
|
[award
date]
|
25%
1stanniv.
AD
25%
2danniv. AD
25%
3danniv. AD
25%
4thanniv.
AD
|
[xxxxx]
|
This Agreement provides the
Participant with the terms of the Award granted to the Participant. The terms
specified in this Agreement are governed by the provisions of the Plan, which
are incorporated herein by reference. The Committee has the exclusive authority
to interpret and apply the Plan and this Agreement. Any
interpretation of the Agreement by the Committee and any decision made by it
with respect to the Agreement are final and binding on all
persons. To the extent that there is any conflict between the terms
of this Agreement and the Plan, the Plan shall govern. Capitalized terms used
herein will have the same meaning as under the Plan, unless stated
otherwise.
In
consideration of the foregoing and the mutual covenants hereinafter set forth,
it is agreed by and between the Company and the Participant, as
follows:
|
1.
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Vesting Dates and
Lapse of Restrictions. The Award shall become vested and
the restrictions will lapse in accordance with the following
table:
|
|
Number
of Shares
[general]
|
Vesting
Date
[general]
|
|
25%
25%
25%
25%
|
[1st
anniv. AD]
[2d
anniv. AD]
[3d
anniv. AD]
[4th
anniv. AD]
|
The Award
will be fully vested and all restrictions shall lapse in the event of the
Participant’s death, Disability or a Change in Control, as defined in the
Plan. Upon the Participant’s termination of Service, as defined in
the Plan, for any reason other than death or Disability, the Participant shall
immediately cease vesting in the Award and the unvested portion of the Award
shall be forfeited immediately.
For
purposes hereof, “Disability” shall have the meaning provided under: (i) first,
an employment agreement between the Participant and the Company; (ii) second, if
no such employment agreement exists, the long-term disability program maintained
by the Company or any governmental entity covering the Participant; or (iii)
third, if no such agreement or program exists, as defined under local
law. In addition, for purposes of this Agreement, the Participant’s
date of termination (for any reason other than death or Disability) shall be the
earlier of: (i) the date on which the Participant ceases to render service to or
be employed by the Company, as determined by the Company in its sole discretion;
(ii) the date on which the Company first provides notice of termination of
employment; or (iii) the first date of any statutory notice period provided
under local law.
1
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2.
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Termination /
Cancellation / Rescission. The Company may terminate,
cancel, rescind or recover the Award immediately under certain
circumstances, including, but not limited to, the
Participant’s:
|
|
(a)
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actions
constituting Cause, as defined in the Plan and as otherwise enforceable
under local law;
|
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(b)
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rendering
of services for a competitor prior to, or within six (6) months after, the
exercise of any Award or the termination of Participant's Service with the
Company;
|
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(c)
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unauthorized
disclosure of any confidential/proprietary information of the Company to
any third party;
|
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(d)
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failure
to comply with the Company’s policies regarding the identification,
disclosure and protection of intellectual
property;
|
|
(e)
|
violation
of the Cabot Microelectronics Corporation Employee Confidentiality,
Intellectual Property and Non-Competition
Agreement.
|
In the
event of any such termination, cancellation, rescission or revocation, the
Participant must return any Stock obtained by the Participant pursuant to the
Award, or pay to the Company the amount of any gain realized on the sale of such
Stock, and the Company shall be entitled to set-off against the amount of any
such gain any amount owed to the Participant by the Company. To the
extent applicable, the purchase price for such Stock shall be returned to the
Participant, including any withholding requirements.
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3.
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Purpose of
Award. The Award is intended to promote goodwill between the
Participant and the Company and shall not be considered as salary or other
remuneration for any employment or other services the Participant may
perform for the Company or any of its affiliates. The Company’s
grant of the Award does not confer any contractual or other rights of
employment or service with the Company. Benefits granted under
the Plan shall not be considered as part of the Participant’s salary in
the event of severance, redundancy or resignation. Granting of the Award
shall also not be construed as creating any right on the part of
Participant to receive any additional benefits including awards in the
future, it being expressly understood and agreed that any future awards
shall be made solely at the discretion of the
Company.
|
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4.
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Rights and
Restrictions Governing Restricted Stock. As of the Date
of Award, one or more certificates representing the appropriate number of
shares of Stock granted to the Participant shall be registered in the
Participant’s name but shall be held by the Company for the Participant’s
account. The Participant shall have all rights of a holder as
to such shares of Stock (including, to the extent applicable, the right to
receive dividends and to vote), subject to the following
restrictions: (a) the Participant has executed a valid stock
power on behalf of the Company for such Stock; (b) the Participant shall
be entitled to delivery of certificates representing shares of Stock when
restrictions lapse; and (c) none of the Stock may be sold, transferred,
assigned, pledged or otherwise encumbered or disposed of until the
restrictions have lapsed.
|
|
5.
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Delivery of Restricted
Stock. As soon as reasonably practicable following the
date on which restrictions lapse, one or more stock certificates for the
appropriate number of shares of Stock, free of the restrictions set forth
in the Agreement, shall be delivered to the Participant or such shares
shall be credited to a brokerage account if the Participant so directs;
provided however, that such certificates shall bear such legends as the
Committee, in its sole discretion, may determine to be necessary or
advisable in order to comply with applicable federal and state securities
laws.
|
|
6.
|
Tax Treatment.
The Participant will be taxed on the difference between any purchase price
and the Fair Market Value of the Stock on the date the
restrictions lapse. This income will be taxed as ordinary income and
subject to income and FICA withholding taxes. The Company is required to
withhold and remit these taxes to the appropriate tax authorities. The
Participant will be required to provide the Company with an amount of cash
sufficient to satisfy the Participant’s tax withholding obligations or to
make arrangements satisfactory to the Company with regard to such
taxes. The income will be reported to the Participant as part
of the Participant's employment compensation on the Participant's annual
earnings statement Form W-2.
|
The
Participant may elect to make an election under Section 83(b) of the Code to
have any ordinary income amount taxed currently, before any restrictions
lapse. This election must be filed within thirty (30) days of the
Date of Award. Attached hereto is a form of election for this
purpose.
If the
Participant sells the Stock acquired under the Award, a long-term or short-term
capital gain or loss will result depending on: (a) the holding period
for the shares, and (b) the difference between the Fair Market Value of the
shares at the time of the sale and the Participant’s tax basis in the
shares. The holding period is determined from the date the
restrictions lapse. Under current law the capital gain or loss is
long term if the property is held for more than one (1) year, and short term of
the property is held for less than one year. The tax basis of the
shares is the sum of (a) any purchase price paid for the shares, and (b) the
ordinary income, if any, determined by the difference between the Fair Market
Value of the shares when the restrictions lapse or an 83(b) election is made,
and any purchase price.
EACH
PARTICIPANT IS URGED TO CONSULT WITH HIS OR HER OWN TAX ADVISOR TO DETERMINE THE
PARTICULAR TAX CONSEQUENCES INCLUDING THE APPLICABILITY AND EFFECT OF FEDERAL,
LOCAL AND OTHER TAX LAWS.
2
|
7.
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Tax
Withholding. All deliveries and distributions under this
Agreement are subject to withholding of all applicable taxes. The various
methods and manner by which tax withholding may be satisfied are set forth
in Section 8.4 of the Plan. If the Participant is subject to
Section 16 (an “Insider”), of the Securities Exchange Act of 1934
(“Exchange Act”), any surrender of previously owned shares to satisfy tax
withholding obligations arising under an Award must comply with the
requirements of Rule 16b-3 promulgated under the Exchange Act (“Rule
16b-3”).
|
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8.
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Transferability. The
Award Stock is not transferable other than: (a) by will or by the laws of
descent and distribution; (b) pursuant to a domestic relations order; or
(c) to members of the Participant’s immediate family, to trusts solely for
the benefit of such immediate family members or to partnerships in which
family members and/or trusts are the only partners, all as provided under
the terms of the Plan. After any such transfer, the Award Stock
shall remain subject to the terms of the
Plan.
|
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9.
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Adjustment of
Shares. In the event of any transaction described in
Section 8.6 of the Plan, the terms of this Award (including, without
limitation, the number and kind of shares subject to this Award) shall be
adjusted as set forth in Section 8.6 of the
Plan.
|
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10.
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Severability. In
the event that any provision of this Agreement is found to be invalid,
illegal or incapable of being enforced by any court of competent
jurisdiction for any reason, in whole or in part, the remaining provisions
of this Agreement shall remain in full force and effect to the fullest
extent permitted by law.
|
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11.
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Waiver. Failure
to insist upon strict compliance with any of the terms and conditions of
this Agreement or the Plan shall not be deemed a waiver of such term or
condition.
|
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12.
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Notices. Any
notices provided for in this Agreement or the Plan must be in writing and
hand delivered, sent by fax or overnight courier, or by postage paid first
class mail. Notices are to be sent to the Participant at the
address indicated by the Company’s records and to the Company at its
principal executive office.
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13.
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Governing
Law. This Agreement shall be construed under the laws of
the State of Illinois.
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IN
WITNESS WHEREOF, the Company has caused this Agreement to be executed in its
name and on its behalf, all as of the Date of Award.
CABOT
MICROELECTRONICS CORPORATION
Xxxxxxx
X. Xxxxxxx
President
and Chief Executive Officer
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