FORM OF ALPHA INNOTECH CORP. RESTRICTED STOCK AWARD AGREEMENT
Exhibit
4.10
FORM
OF
2006
EQUITY INCENTIVE PLAN
THIS
RESTRICTED STOCK AWARD AGREEMENT (the “Agreement”), dated ‹GRANT
DATE›
between
Alpha Innotech Corp., a Delaware corporation (“Company”), and ‹EMPLOYEE›‹NAME›
(the
“Employee”), is entered into as follows:
WITNESSETH:
WHEREAS,
the continued participation of the Employee is considered by the Company to
be
important for the Company's continued growth; and
WHEREAS,
in order to give the Employee an incentive to continue in the employ of the
Company and to assure his or her continued commitment to the success of the
Company, the Compensation Committee of the Board of Directors of the Company
or
its delegates (the “Administrator”) has determined that the Employee shall be
granted a stock award (“Stock Award”) covering shares of the Company's common
stock (the “Shares”), subject to the restrictions stated below and in accordance
with the terms and conditions of the 2006 Equity Incentive Plan
(the
“Plan”). Capitalized terms used but not defined in this Agreement have the
meanings assigned to them in the Plan.
THEREFORE,
the parties agree as follows:
1.
Grant
of Stock Award.
Subject
to the terms and conditions of this Agreement and of the Plan, the Company
hereby grants to the Employee a Stock Award covering ‹SHARES›
Shares
and hereby issues such Shares to the Employee.
2.
Vesting
Schedule.
Subject
to Employee's not experiencing a Termination of Employment during the following
vesting term, the interest of the Employee in the Shares shall vest and become
nonforfeitable as follows: ‹INSERT
VESTING PROVISION HERE›.
Therefore, provided the Employee has not experienced a Termination of Employment
prior to the close of business on the ‹INSERT
FULL VESTING DATE HERE›,
the
interest of the Employee in the Shares shall become fully vested and
nonforfeitable on that
date.
3.
Termination.
In the
event of the Termination of Employment of the Employee, all of the Shares held
by the Employee which have not vested and which remain forfeitable as of the
date of Termination of Employment shall be forfeited to the Company as of such
date, without payment by the Company of any amount with respect thereto. Any
forfeiture will be effected by the Company in such manner and to such degree
as
the Administrator, in its sole discretion, determines, and will in all events
(including as to the provisions of this Section 3) be subject to Applicable
Laws.
4.
Transfer
Restrictions.
(a) Except
as
otherwise provided for in this Agreement, the Shares or rights granted hereunder
may not be sold, pledged or otherwise transferred until the Shares become vested
and nonforfeitable in accordance with Sections 2 and 3.
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(b) To
enforce any restrictions on the Shares, the Administrator may require Employee
to deposit the certificates representing the Shares, with stock powers or other
transfer instruments approved by the Administrator endorsed in blank, with
the
Company or an agent of the Company to hold in escrow until the restrictions
have
lapsed or terminated. The Administrator may also cause a legend or legends
referencing the restrictions be placed on the certificates during the period
in
which such Shares remain unvested.
5.
Stockholder
Rights.
The
Employee shall be entitled to all of the rights and benefits generally accorded
to stockholders with respect to the Shares. All dividends on Shares that are
subject to any restrictions, including vesting, shall be subject to the same
restrictions, including those set forth in Section 2, as the Shares on which
the
dividends were paid.
6.
Taxes.
(a)
The
Employee shall be liable for any and all taxes, including withholding taxes,
interest and penalties, arising out of this grant, the vesting of Shares
hereunder, any violation of Code Section 409A, or any other transaction or
event
occurring with respect to the Shares if and to the extent required by Applicable
Law. In the event that the Company is required to withhold taxes at the time
the
Shares vest and the restrictions on the Shares lapse (or at such other time
as
required by applicable laws, including in connection with the filing of the
Section 83(b) election described below), the Employee shall make a cash payment
in an amount necessary to satisfy applicable required withholding taxes,
surrender a sufficient number of whole Shares acquired under this Agreement
as
are necessary to satisfy the applicable minimum statutory withholding amount
or
satisfy the payment of the withholding taxes in a form agreed to by the Company.
The Employee will receive a cash refund for any fraction of a surrendered Share
not necessary for required withholding taxes. To the extent that any surrender
of Shares or payment of cash or alternative procedure for such payment is
insufficient, the Employee authorizes the Company, its affiliates and
subsidiaries, which are qualified to deduct tax at source, to deduct all
applicable required withholding taxes from the Employee's compensation. The
Employee agrees to pay any amounts that cannot be satisfied from wages or other
cash compensation, to the extent permitted by law. For purposes of this
Agreement, the Company shall calculate any applicable income required to be
recognized and withholding taxes arising in connection with the issuance or
vesting of the Shares using the same method of determining fair market value
of
a share of its common stock as the Company uses in determining fair market
value
under the Plan.
(b) The
Employee understands that Section 83(a) of the Internal Revenue Code of
1986, as amended (the “Code”), taxes as ordinary income the difference between
the amount paid for the Shares and the fair market value of the Shares as of
(i)
the date of issuance of the Shares in the case of vested Shares that are not
subject to a substantial risk of forfeiture, and (ii) the date forfeiture
restrictions on the Shares lapse. In this context, “restrictions” mean the
forfeiture obligation in the event of the Termination of Employment as set
forth
in Sections 2 and 3 of this Agreement and the restriction on
transferability as set forth in Section 4 of this Agreement. The Employee
understands that the Employee may elect to be taxed as to the unvested Shares
at
the time such Shares are issued, based on the value of the Shares at the
issuance date rather than when and as the forfeiture restrictions lapse (on
the
vesting dates), by filing an election under Section 83(b) (an “83(b)
Election”) of the Code with the Internal Revenue Service within 30
days
from the
date of issuance. The Employee acknowledges that the foregoing is only a summary
of the effect of United States federal income taxation with respect to issuance
and vesting of the Shares hereunder, and does not purport to be complete. The
Company has directed the Employee to seek independent advice regarding the
applicable provisions of the Code, the income tax laws of any municipality,
state or foreign country in which Employee may reside, the tax
consequences
2
of
the
Employee’s death, and the decision as to whether or not to file an 83(b)
Election (as well as appropriate advice and assistance with the actual filing
of
any such 83(b) Election) in connection with the issuance of the Shares. The
Company has not provided any tax advice to the Employee in connection with
the
issuance of the Shares hereunder.
(c)
Regardless
of any action the Company takes with respect to any or all income tax, payroll
tax, payment on account or other tax-related withholding (“Tax-Related Items”),
the Employee acknowledges and agrees that the ultimate liability for all
Tax-Related Items legally due by him or her is and remains the Employee's
responsibility and that the Company (i) makes no representations nor
undertakings regarding the treatment of any Tax-Related Items in connection
with
any aspect of this issuance of Shares, including the vesting of the Shares
or
the subsequent sale of the Shares; and (ii) does not commit to structure
the terms or any aspect of this issuance of Shares to reduce or eliminate the
Employee's liability for Tax-Related Items. Prior to the vesting of the Shares,
the Employee shall pay the Company any amount of Tax-Related Items that the
Company may be required to withhold as a result of the Employee's receipt of
Shares that cannot be satisfied by the means previously described. The Company
may refuse to deliver the Shares if the Employee fails to comply with the
Employee's obligations in connection with the Tax-Related Items.
(d) To
the
extent the Company determines that this Agreement is subject to Code Section
409A, but does not conform with the requirements thereof, the Company may at
its
sole discretion amend or replace the Agreement to cause the Agreement to comply
with Code Section 409A.
7.
Data
Privacy Consent.
The
Employee hereby explicitly and unambiguously consents to the collection, use
and
transfer, in electronic or other form, of the Employee's personal data as
described in this document by and among, as applicable, the Company and its
Subsidiaries and Affiliates for the exclusive purpose of implementing,
administering and managing the Employee's participation in the Plan. The
Employee understands that the Company and its Affiliates and Subsidiaries hold
certain personal information about the Employee, including, but not limited
to,
name, home address and telephone number, date of birth, social security or
insurance number or other identification number, salary, nationality, job title,
any shares of stock or directorships held in the Company, details of all options
or any other entitlement to shares of stock awarded, canceled, purchased,
exercised, vested, unvested or outstanding in the Employee's favor for the
purpose of implementing, managing and administering the Plan (“Data”). The
Employee understands that the Data may be transferred to any third parties
assisting in the implementation, administration and management of the Plan,
that
these recipients may be located in the Employee's country or elsewhere and
that
the recipient country may have different data privacy laws and protections
than
the Employee's country. The Employee understands that he or she may request
a
list with the names and addresses of any potential recipients of the Data by
contacting the Stock Plan Administrator. The Employee authorizes the recipients
to receive, possess, use,
retain
and transfer the Data, in electronic or other form, for the purposes of
implementing, administering and managing the Employee's participation in the
Plan, including any requisite transfer of such Data, as may be required to
a
broker or other third party with whom the Employee may elect to deposit any
Shares acquired under the Plan. The Employee understands that Data will be
held
only as long as is necessary to implement, administer and manage participation
in the Plan. The Employee understands that he may, at any time, view Data,
request additional information about the storage and processing of the Data,
require any necessary amendments to the Data or refuse or withdraw the consents
herein, in any case without cost, by contacting the Stock Plan Administrator
in
writing. The Employee understands that refusing or withdrawing consent may
affect the Employee's ability to participate in the Plan. For
more
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information
on the consequences of refusing to consent or withdrawing consent, the Employee
understands that he or she may contact the Stock Plan Administrator at the
Company.
8.
Plan
Information.
The
Employee acknowledges that the Employee has received copies of the Plan and
the
Plan prospectus from the Company and agrees to receive stockholder information,
including copies of any annual report, proxy statement and periodic report,
from
the Company's website at: xxxx://xxx.xxxxxxxxxxxxx.xxx/xxxxxxxxxxxxxx/XXX.xxx.
The
Employee acknowledges that copies of the Plan, Plan prospectus, Plan information
and stockholder information are available upon written or telephonic request
to
the Stock Plan Administrator.
9.
Acknowledgment
and Waiver.
By
accepting this grant of a Stock Award, the Employee acknowledges and agrees
that:
(a) the
Plan
is established voluntarily by the Company, it is discretionary in nature and
may
be modified, amended, suspended or terminated by the Company at any time unless
otherwise provided in the Plan or this Agreement;
(b) the
grant
of Stock Awards is voluntary and occasional and does not create any contractual
or other right to receive future grants of Stock Awards or Shares, even if
Stock
Awards or Shares have been granted repeatedly in the past;
(c) the
Employee's participation in the Plan shall not create a right to further
employment with Employer, shall not create an employment agreement between
the
Employee and his or her Employer and shall not interfere with the ability of
Employer to terminate the Employee's employment relationship at any time with
or
without cause and it is expressly agreed and understood that employment is
terminable at the will of either party, insofar as permitted by law;
(d) Stock
Award grants, Shares and resulting benefits are an extraordinary item that
does
not constitute compensation of any kind for services of any kind rendered to
the
Company, and is outside the scope of the Employee's employment contract, if
any;
and Stock Award grants, Shares and resulting benefits are not part of
normal or expected compensation or salary for any purposes, including, but
not
limited to calculating any severance, resignation, termination, redundancy,
end
of service payments, bonuses, long-service awards, pension or retirement
benefits or similar payments insofar as permitted by law;
(e) in
consideration of this grant of a Stock Award, no claim or entitlement to
compensation or damages shall arise from termination of this Stock Award or
diminution in value of the Shares resulting from Termination of Employment
by
the Company (for any reason whatsoever and whether or not in breach of local
labor laws) and the Employee irrevocably releases the Company from any such
claim that may arise; if, notwithstanding the foregoing, any such claim is
found
by a court of competent jurisdiction to have arisen, then, by accepting the
terms of this Agreement, the Employee shall be deemed irrevocably to have waived
any entitlement to pursue such claim; and
(f) notwithstanding
any terms or conditions of the Plan to the contrary, in the event of involuntary
Termination of Employment (whether or not in breach of local labor laws), the
Employee's right to receive benefits under this Agreement, if any, will
terminate effective as of the date that the Employee is no longer actively
employed and will not be extended by any notice period mandated under local
law
(e.g., active employment would not include a period of “garden leave” or similar
period pursuant to local law); furthermore, in the event of
involuntary
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Termination
of Employment (whether or not in breach of local labor laws), the Employee's
right to receive benefits under this Agreement after Termination of Employment,
if any, will be measured by the date of termination of the Employee's active
employment and will not be extended by any notice period mandated under local
law.
10.
Miscellaneous.
(a)
The
Company shall not be required to treat as the owner of Shares, and associated
benefits hereunder, any transferee to whom such Shares or benefits shall have
been so transferred in violation of this Agreement.
(b)
The
parties agree to execute such further instruments and to take such action as
may
reasonably be necessary to carry out the intent of this Agreement.
(c)
Any
notice required or permitted hereunder shall be given in writing and shall
be
deemed effectively given upon delivery to the Employee at Employee’s address
then on file with the Company.
(d)
The
Plan
is incorporated herein by reference. The Plan and this Agreement constitute
the
entire agreement of the parties with respect to the subject matter hereof and
supersede in their entirety all prior undertakings and agreements of the Company
and the Employee with respect to the subject matter hereof, and may not be
modified adversely to the Employee's interest except by means of a writing
signed by the Company and the Employee. This Agreement is governed by the laws
of the state of Delaware. In the event of any conflict between the terms and
provisions of the Plan and this Agreement, the Plan terms and provisions shall
govern. Certain other important terms governing this contract are contained
in
the Plan.
(e)
The
provisions of this Agreement are severable and if any one or more provisions
are
determined to be illegal or otherwise unenforceable, in whole or in part, the
remaining provisions shall nevertheless be binding and enforceable.
(f)
Shares
shall not be issued pursuant to the Stock Award unless such issuance and
delivery of the applicable Shares pursuant thereto shall comply with all
relevant provisions of Applicable Law (including that Shares shall not be issued
unless there is an effective registration statement under the Securities Act
covering the issuance of the Shares, or the Company determines that a valid
exemption from applicable registration requirements are available), with such
compliance determined by the Company in consultation with its legal counsel.
To
the extent the Company is unable to or the Committee deems it infeasible to
obtain authority from any regulatory body having jurisdiction, which authority
is deemed by the Company’s counsel to be necessary to the lawful issuance and
sale of any Shares hereunder, the Company shall be relieved of any liability
with respect to the failure to issue or sell such Shares as to which such
requisite authority shall not have been obtained.
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Accepted
by Employee:
_________________________________
[Employee
Name]
|
By:
__________________________________
Name:________________________________
Title:
_________________________________
|
RETAIN
THIS AGREEMENT FOR YOUR RECORDS
