PERICOM SEMICONDUCTOR CORPORATION
EXHIBIT
10.2
Award
Number: ____
PERICOM
SEMICONDUCTOR CORPORATION
2001
STOCK INCENTIVE PLAN
RESTRICTED
STOCK AWARD GRANT NOTICE AND
Pericom
Semiconductor Corporation, a California corporation, (the “Company”),
pursuant to its 2001 Stock Incentive Plan, as amended from time to time (the
“Plan”),
hereby grants to the individual listed below (the “Grantee”),
the
number of shares of the Company’s Common Stock set forth below
(the “Shares”).
This
Restricted Stock Award is subject to all of the terms and conditions as set
forth herein and in the Restricted Stock Award Agreement that is attached hereto
(the “Restricted
Stock Award Agreement”)
(including without limitation the Restrictions on the Shares set forth in the
Restricted Stock Award Agreement) and the Plan, each of which is incorporated
herein by reference. Unless otherwise defined herein, the terms defined in
the
Plan shall have the same defined meanings in this Grant Notice and the
Restricted Stock Award Agreement.
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Grantee:
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Date
of Grant:
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Total
Number of Shares of Restricted Stock:
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Shares
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Purchase
Price:
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$_______________________________________________________________
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Vesting
Schedule:
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[To
be specified in individual Grant Notices. Note that Awards must vest
over
a period of not less than 4 years] Subject to the Grantee’s Continuous
Service and other limitation set forth in this Grant Notice, the
Plan and
the Restricted Stock Award Agreement, this Award shall vest in accordance
with the Vesting Schedule.
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THE
GRANTEE ACKNOWLEDGES AND AGREES THAT THE SHARES SUBJECT TO THIS RESTRICTED
STOCK
AWARD SHALL VEST, IF AT ALL, ONLY DURING THE PERIOD OF THE GRANTEE’S CONTINUOUS
SERVICE (NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THE RESTRICTED STOCK
AWARD OR ACQUIRING SHARES HEREUNDER). THE GRANTEE FURTHER ACKNOWLEDGES AND
AGREES THAT NOTHING IN THIS NOTICE, THE RESTRICTED STOCK AWARD AGREEMENT, OR
THE
PLAN SHALL CONFER UPON THE GRANTEE ANY RIGHT WITH RESPECT TO FUTURE AWARDS
OR
CONTINUATION OF GRANTEE’S CONTINUOUS SERVICE, NOR SHALL IT INTERFERE IN ANY WAY
WITH THE GRANTEE’S RIGHT OR THE RIGHT OF THE GRANTEE’S EMPLOYER TO TERMINATE
GRANTEE’S CONTINUOUS SERVICE, WITH OR WITHOUT CAUSE, AND WITH OR WITHOUT NOTICE.
THE GRANTEE ACKNOWLEDGES THAT UNLESS THE GRANTEE HAS A WRITTEN EMPLOYMENT
AGREEMENT WITH THE COMPANY TO THE CONTRARY, XXXXXXX’S STATUS IS AT
WILL
The
Grantee acknowledges receipt of a copy of the Plan and the Restricted Stock
Award Agreement, and represents that he or she is familiar with the terms and
provisions thereof, and hereby accepts the Restricted Stock Award subject to
all
of the terms and provisions hereof and thereof. The Grantee has reviewed this
Grant Notice, the Plan, and the Restricted Stock Award Agreement in their
entirety, has had an opportunity to obtain the advice of counsel prior to
executing this Grant Notice, and fully understands all provisions of this Grant
Notice, the Plan and the Restricted Stock Award Agreement. The Grantee hereby
agrees to accept as binding, conclusive and final all decisions or
interpretations of the Administrator of the Plan upon any questions arising
under the Plan, this Grant Notice or the Restricted Stock Award Agreement,
and
separately hereby agrees that all disputes arising out of or relating to this
Grant Notice, the Plan and the Restricted Stock Award Agreement shall be
resolved in accordance with Section 11 of the Restricted Stock Award Agreement.
The Grantee further agrees to notify the Company upon any change in the
residence address indicated in this Grant Notice. [If the Grantee is married,
his or her spouse has signed the Consent of Spouse attached to this Grant
Notice.]
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PERICOM
SEMICONDUCTOR CORPORATION:
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GRANTEE:
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By:
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By:
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Print
Name:
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Print Name:
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Title:
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Address:
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Address:
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PERICOM
SEMICONDUCTOR CORPORATION
2001
STOCK INCENTIVE PLAN
RESTRICTED
STOCK AWARD AGREEMENT
1. Award
of Restricted Stock.
(a) Award.
In
consideration of the Grantee’s agreement to remain in the service or employ of
Pericom Semiconductor Corporation, a California corporation (the “Company”),
or a
Related Entity and for other good and valuable consideration, the Company hereby
grants as of the Date of Grant set forth in the Restricted Stock Award Grant
Notice (the “Grant
Notice”)
to the
Grantee (the “Grantee”)
named
in the Grant Notice an award (the “Award”)
with
respect to the number of shares of Common Stock set forth in the Grant Notice,
subject to the terms and provisions of the Grant Notice, this Restricted Stock
Award Agreement (this “Agreement”)
and
the Company’s 2001 Stock Incentive Plan, as amended from time to time (the
“Plan”).
(b) Definitions.
All
capitalized terms used in this Agreement without definition shall have the
meanings ascribed in the Plan and the Grant Notice.
(c) Incorporation
of Terms of Plan.
The
Award is subject to the terms and conditions of the Plan which are incorporated
herein by reference. In the event of any inconsistency between the Plan and
this
Agreement, the terms of the Plan shall control.
(d) Purchase
Price; Book Entry Form.
The
purchase price of the Shares is set forth on the Grant Notice. At the sole
discretion of the Administrator, the Shares will be issued in either (i)
uncertificated form, with the Shares recorded in the name of the Grantee in
the
books and records of the Company’s transfer agent with appropriate notations
regarding the restrictions on transfer imposed pursuant to this Agreement,
and
upon vesting and the satisfaction of all conditions set forth in Section 2(d)
hereof, the Company shall cause certificates representing the Shares to be
issued to the Grantee; or (ii) certificate form pursuant to the terms of
Sections 1(e) and 1(f) hereof.
(e) Legend.
Certificates representing Shares issued pursuant to this Agreement shall, until
all restrictions on transfer imposed pursuant to this Agreement lapse or shall
have been removed and new certificates are issued, bear the following legend
(or
such other legend as shall be determined by the Administrator):
"THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN VESTING
REQUIREMENTS AND MAY BE SUBJECT TO FORFEITURE UNDER THE TERMS OF THAT CERTAIN
RESTRICTED STOCK AWARD AGREEMENT, DATED [____________ __, 200_], BY AND BETWEEN
PERICOM
SEMICONDUCTOR CORPORATION
AND THE
REGISTERED OWNER OF SUCH SHARES, AND SUCH SHARES MAY NOT BE, DIRECTLY OR
INDIRECTLY, OFFERED, TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF UNDER ANY CIRCUMSTANCES, EXCEPT PURSUANT TO THE PROVISIONS
OF SUCH AGREEMENT.”
(f) Escrow.
The
Secretary of the Company or such other escrow holder as the Administrator may
appoint may retain physical custody of the certificates representing the Shares
until all of the restrictions on transfer imposed pursuant to this Agreement
lapse or shall have been removed; in such event the Grantee shall not retain
physical custody of any certificates representing unvested Shares issued to
him
or her.
2. Restrictions.
(a) Forfeiture.
Any
Award which is not vested as of the date the Grantee ceases to be an Employee
or
Consultant shall thereupon be forfeited immediately and without any further
action by the Company. For purposes of this Agreement, “Restrictions”
shall
mean the restrictions on sale or other transfer set forth in Section 4 hereof
and the exposure to forfeiture set forth in this Section 2(a).
(b) Vesting
and Lapse of Restrictions.
Subject
to Sections 2(a) and 2(c) hereof, the Award shall vest and Restrictions shall
lapse in accordance with the vesting schedule set forth on the Grant Notice.
During any authorized leave of absence, the Award shall cease to vest after
the
leave of absence exceeds a period of ninety (90) days. Vesting shall resume
upon
the Grantee’s termination of the leave of absence and return to service to the
Company or a Related Entity. In the event of the Grantee’s change in status from
Employee to Consultant or from an Employee whose customary employment is 20
hours or more per week to an Employee whose customary employment is fewer than
20 hours per week, vesting of the Award shall continue only to the extent
determined by the Administrator as of such change in status.
(c) Acceleration
of Vesting.
Notwithstanding Sections 2(a) and 2(b), the Award shall be subject to the
provisions of Section 11 of the Plan relating to vesting acceleration in
connection with a Corporate Transaction, Change in Control or Related Entity
Disposition and, as applicable, non-assumption or replacement of the Award
or
specified termination of the Grantee’s Continuous Service.
(d) Tax
Withholding; Conditions to Issuance of Certificates.
Notwithstanding any other provision of this Agreement (including without
limitation Section 2(b)):
(i) No
certificates representing Shares shall be delivered to the Grantee or his or
her
legal representative unless and until the Grantee or his or her legal
representative shall have paid to the Company the full amount of all federal
and
state withholding or other taxes applicable to the taxable income of the Grantee
resulting from the grant of Shares or the lapse or removal of the Restrictions.
Upon vesting of the Award, the Company or the Grantee’s employer may offset or
withhold (from any amount owed by the Company or the Grantee’s employer to the
Grantee) or collect from the Grantee or his or her legal representative an
amount sufficient to satisfy such tax obligations and/or the employer’s
withholding obligations.
(ii) The
Company shall not be required to issue or deliver any certificate or
certificates for any Shares prior to the fulfillment of all of the following
conditions: (A) the admission of the Shares to listing on all stock exchanges
on
which such Common Stock is then listed, (B) the completion of any registration
or other qualification of the Shares under any state or federal law or under
rulings or regulations of the Securities and Exchange Commission or other
governmental regulatory body, which the Administrator shall, in its sole and
absolute discretion, deem necessary and advisable, (C) the obtaining of any
approval or other clearance from any state or federal governmental agency that
the Administrator shall, in its absolute discretion, determine to be necessary
or advisable and (D) the lapse of any such reasonable period of time following
the date the Restrictions lapse as the Administrator may from time to time
establish for reasons of administrative convenience.
3. Section
83(b) Election.
The
Grantee understands that Section 83(a) of the Code taxes as ordinary income
the difference between the amount, if any, paid for the Shares and the Fair
Market Value of such Shares at the time the Restrictions on such Shares lapse.
The Grantee understands that, notwithstanding the preceding sentence, the
Grantee may elect to be taxed at the time of the date of grant, rather that
at
the time the Restrictions lapse, by filing an election under Section 83(b)
of the Code (an “83(b)
Election”)
with
the Internal Revenue Service within 30 days of the date of grant. In the event
the Grantee files an 83(b) Election, the Grantee will recognize ordinary income
in an amount equal to the difference between the amount, if any, paid for the
Shares and the Fair Market Value of such shares as of the date of grant. The
Grantee further understands that an additional copy of such 83(b) Election
form
should be filed with his or her federal income tax return for the calendar
year
in which the date of this Agreement falls. The Grantee acknowledges that the
foregoing is only a summary of the effect of United States federal income
taxation with respect to the Award hereunder, and does not purport to be
complete. THE GRANTEE
FURTHER ACKNOWLEDGES THAT THE COMPANY IS NOT RESPONSIBLE FOR FILING THE
GRANTEE’S 83(b)
ELECTION, AND THE COMPANY HAS DIRECTED THE GRANTEE TO SEEK INDEPENDENT ADVICE
REGARDING THE APPLICABLE PROVISIONS OF THE INTERNAL REVENUE CODE, THE INCOME
TAX
LAWS OF ANY MUNICIPALITY, STATE OR FOREIGN COUNTRY IN WHICH THE GRANTEE MAY
RESIDE, AND THE TAX CONSEQUENCES OF THE GRANTEE’S DEATH.
4. Restricted
Stock Not Transferable.
No
Shares that are subject to Restrictions or any interest or right therein or
part
thereof shall be liable for the debts, contracts or engagements of the Grantee
or his or her successors in interest or shall be subject to disposition by
transfer, alienation, anticipation, pledge, encumbrance, assignment or any
other
means whether such disposition be voluntary or involuntary or by operation
of
law by judgment, levy, attachment, garnishment or any other legal or equitable
proceedings (including bankruptcy), and any attempted disposition thereof shall
be null and void and of no effect; provided,
however,
that
this Section 4 notwithstanding, with the consent of the Administrator, the
Shares may be transferred by gift or domestic relations order to members of
the
Grantee’s Immediate Family as may be expressly approved by the Administrator,
pursuant to any such conditions and procedures the Administrator may
require.
5. Rights
as Shareholder.
Except
as otherwise provided herein, upon the date of grant the Grantee shall have
all
the rights of a shareholder with respect to the Shares, subject to the
Restrictions herein, including the right to vote the Shares and the right to
receive any cash or stock dividends paid to or made with respect to the Shares;
provided,
however,
that at
the discretion of the Company, and prior to the delivery of Shares, the Grantee
may be required to execute a shareholders agreement in such form as shall be
determined by the Company.
6. Not
a
Contract of Employment.
Nothing
in this Agreement or in the Plan shall confer upon the Grantee any right to
continue to serve as an Employee or Consultant of the Company or any of its
Related Entities.
7. Entire
Agreement: Governing Law.
The
Grant Notice, 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 Grantee
with respect to the subject matter hereof, and may not be modified adversely
to
the Grantee’s interest except by means of a writing signed by the Company and
the Grantee. Nothing in the Grant Notice, the Plan and this Agreement (except
as
expressly provided therein) is intended to confer any rights or remedies on
any
persons other than the parties. The Grant Notice, the Plan and this Agreement
are to be construed in accordance with and governed by the internal laws of
the
State of California (as permitted by Section 1646.5 of the California Civil
Code, or any similar successor provision) without giving effect to any choice
of
law rule that would cause the application of the laws of any jurisdiction other
than the internal laws of the State of California to the rights and duties
of
the parties. Should any provision of the Grant Notice, the Plan or this
Agreement be determined by a court of law to be illegal or unenforceable, such
provision shall be enforced to the fullest extent allowed by law and the other
provisions shall nevertheless remain effective and shall remain
enforceable.
8. Conformity
to Securities Laws.
The
Grantee acknowledges that the Plan and this Agreement are intended to conform
to
the extent necessary with all provisions of the Securities Act of 1933, as
amended, and the Exchange Act, and any and all regulations and rules promulgated
thereunder by the Securities and Exchange Commission, including, without
limitation, Rule 16b-3 under the Exchange Act. Notwithstanding anything herein
to the contrary, the Plan shall be administered, and the Awards are granted,
only in such a manner as to conform to such laws, rules and regulations. To
the
extent permitted by applicable law, the Plan and this Agreement shall be deemed
amended to the extent necessary to conform to such laws, rules and
regulations.
9. Amendment,
Suspension and Termination.
To the
extent permitted by the Plan, this Agreement may be wholly or partially amended
or otherwise modified, suspended or terminated at any time or from time to
time
by the Administrator or the Board,
provided,
that,
except as may otherwise be provided by the Plan, no amendment, modification,
suspension or termination of this Agreement shall affect the Award without
the
prior written consent of the Grantee.
10. Headings.
The
captions used in the Grant Notice and this Agreement are inserted for
convenience and shall not be deemed a part of the Award for construction or
interpretation.
11. Dispute
Resolution.
The
provisions of this Section 11 shall be the exclusive means of resolving disputes
arising out of or relating to the Grant Notice, the Plan and this Agreement.
The
Company, the Grantee, and the Grantee’s assignees pursuant to Section 4 hereof
(the “Parties”)
shall
attempt in good faith to resolve any disputes arising out of or relating to
the
Grant Notice, the Plan and this Agreement by negotiation between individuals
who
have authority to settle the controversy. Negotiations shall be commenced by
either Party by notice of a written statement of the Party’s position and the
name and title of the individual who will represent the Party. Within thirty
(30) days of the written notification, the Parties shall meet at a mutually
acceptable time and place, and thereafter as often as they reasonably deem
necessary, to resolve the dispute. If the dispute has not been resolved by
negotiation, the Parties agree that any suit, action, or proceeding arising
out
of or relating to the Grant Notice, the Plan or this Agreement shall be brought
in the United States District Court for the Northern District of California
located in the City of San Jose, California (or should such court lack
jurisdiction to hear such action, suit or proceeding, in a California state
court in the County of Santa Xxxxx) and that the Parties shall submit to the
jurisdiction of such court. The Parties irrevocably waive, to the fullest extent
permitted by law, any objection the Party may have to the laying of venue for
any such suit, action or proceeding brought in such court. THE PARTIES ALSO
EXPRESSLY WAIVE ANY RIGHT THEY HAVE OR MAY HAVE TO A JURY TRIAL OF ANY SUCH
SUIT, ACTION OR PROCEEDING. If any one or more provisions of this Section 11
shall for any reason be held invalid or unenforceable, it is the specific intent
of the Parties that such provisions shall be modified to the minimum extent
necessary to make it or its application valid and enforceable.
12. Notices.
Any
notice required or permitted hereunder shall be given in writing and shall
be
deemed effectively given upon personal delivery or upon deposit in the United
States mail by certified mail, (if the parties are within the United States)
or
upon deposit for delivery by an internationally recognized express mail courier
service (for international delivery of notice) with postage and fees prepaid,
addressed to the Grantee to his or her address shown in the Company records,
and
to the Company at its principal executive office.
13. Successors
and Assigns.
The
Company may assign any of its rights under this Agreement to single or multiple
assignees, and this Agreement shall inure to the benefit of the successors
and
assigns of the Company. Subject to the restrictions on transfer herein set
forth, this Agreement shall be binding upon the Grantee and his or her heirs,
executors, administrators, successors and assigns.
CONSENT
OF SPOUSE
I,
____________________, spouse of _______________, have read and approve the
foregoing Restricted Stock Award Agreement (the “Agreement”). In consideration
of issuing to my spouse the shares of the common stock of Pericom Semiconductor
Corporation set forth in the Agreement, I hereby appoint my spouse as my
attorney-in-fact in respect to the exercise of any rights 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 the common stock of Pericom
Semiconductor Corporation issued pursuant thereto under the community property
laws or similar laws relating to marital prop-erty in effect in the state of
our
residence as of the date of the signing of the foregoing Agreement.
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Signature
of Spouse
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Award
Number:
PERICOM
SEMICONDUCTOR CORPORATION
2004
STOCK INCENTIVE PLAN
RESTRICTED
STOCK AWARD GRANT NOTICE AND
RESTRICTED
STOCK AWARD AGREEMENT
Pericom
Semiconductor Corporation, a California corporation, (the “Company”),
pursuant to its 2004 Stock Incentive Plan, as amended from time to time (the
“Plan”),
hereby grants to the individual listed below (the “Grantee”),
the
number of shares of the Company’s Common Stock set forth below
(the “Shares”).
This
Restricted Stock Award is subject to all of the terms and conditions as set
forth herein and in the Restricted Stock Award Agreement that is attached hereto
(the “Restricted
Stock Award Agreement”)
(including without limitation the Restrictions on the Shares set forth in the
Restricted Stock Award Agreement) and the Plan, each of which is incorporated
herein by reference. Unless otherwise defined herein, the terms defined in
the
Plan shall have the same defined meanings in this Grant Notice and the
Restricted Stock Award Agreement.
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Grantee:
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Date
of Grant:
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Total
Number of Shares of Restricted Stock:
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Shares
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Purchase
Price:
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$_______________________________________________________
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Vesting
Schedule:
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[To
be specified in individual Grant Notices. Note that Awards must vest
over
a period of not less than 4 years.] Subject to the Grantee’s Continuous
Service and other limitation set forth in this Grant Notice, the
Plan and
the Restricted Stock Award Agreement, this Award shall vest in accordance
with the Vesting Schedule.
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THE
GRANTEE ACKNOWLEDGES AND AGREES THAT THE SHARES SUBJECT TO THIS RESTRICTED
STOCK
AWARD SHALL VEST, IF AT ALL, ONLY DURING THE PERIOD OF THE GRANTEE’S CONTINUOUS
SERVICE (NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED THE RESTRICTED STOCK
AWARD OR ACQUIRING SHARES HEREUNDER). THE GRANTEE FURTHER ACKNOWLEDGES AND
AGREES THAT NOTHING IN THIS NOTICE, THE RESTRICTED STOCK AWARD AGREEMENT, OR
THE
PLAN SHALL CONFER UPON THE GRANTEE ANY RIGHT WITH RESPECT TO FUTURE AWARDS
OR
CONTINUATION OF GRANTEE’S CONTINUOUS SERVICE, NOR SHALL IT INTERFERE IN ANY WAY
WITH THE GRANTEE’S RIGHT OR THE RIGHT OF THE GRANTEE’S EMPLOYER TO TERMINATE
GRANTEE’S CONTINUOUS SERVICE, WITH OR WITHOUT CAUSE, AND WITH OR WITHOUT NOTICE.
THE GRANTEE ACKNOWLEDGES THAT UNLESS THE GRANTEE HAS A WRITTEN EMPLOYMENT
AGREEMENT WITH THE COMPANY TO THE CONTRARY, XXXXXXX’S STATUS IS AT
WILL
The
Grantee acknowledges receipt of a copy of the Plan and the Restricted Stock
Award Agreement, and represents that he or she is familiar with the terms and
provisions thereof, and hereby accepts the Restricted Stock Award subject to
all
of the terms and provisions hereof and thereof. The Grantee has reviewed this
Grant Notice, the Plan, and the Restricted Stock Award Agreement in their
entirety, has had an opportunity to obtain the advice of counsel prior to
executing this Grant Notice, and fully understands all provisions of this Grant
Notice, the Plan and the Restricted Stock Award Agreement. The Grantee hereby
agrees to accept as binding, conclusive and final all decisions or
interpretations of the Administrator of the Plan upon any questions arising
under the Plan, this Grant Notice or the Restricted Stock Award Agreement,
and
separately hereby agrees that all disputes arising out of or relating to this
Grant Notice, the Plan and the Restricted Stock Award Agreement shall be
resolved in accordance with Section 11 of the Restricted Stock Award Agreement.
The Grantee further agrees to notify the Company upon any change in the
residence address indicated in this Grant Notice. [If the Grantee is married,
his or her spouse has signed the Consent of Spouse attached to this Grant
Notice.]
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PERICOM
SEMICONDUCTOR CORPORATION:
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GRANTEE:
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By:
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By:
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Print
Name:
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Print Name:
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Title:
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Address:
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Address:
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PERICOM
SEMICONDUCTOR CORPORATION
2004
STOCK INCENTIVE PLAN
RESTRICTED
STOCK AWARD AGREEMENT
1. Award
of Restricted Stock.
(a) Award.
In
consideration of the Grantee’s agreement to remain in the service or employ of
Pericom Semiconductor Corporation, a California corporation (the “Company”),
or a
Related Entity and for other good and valuable consideration, the Company hereby
grants as of the Date of Grant set forth in the Restricted Stock Award Grant
Notice (the “Grant
Notice”)
to the
Grantee (the “Grantee”)
named
in the Grant Notice an award (the “Award”)
with
respect to the number of shares of Common Stock set forth in the Grant Notice,
subject to the terms and provisions of the Grant Notice, this Restricted Stock
Award Agreement (this “Agreement”)
and
the Company’s 2004 Stock Incentive Plan, as amended from time to time (the
“Plan”).
(b) Definitions.
All
capitalized terms used in this Agreement without definition shall have the
meanings ascribed in the Plan and the Grant Notice.
(c) Incorporation
of Terms of Plan.
The
Award is subject to the terms and conditions of the Plan which are incorporated
herein by reference. In the event of any inconsistency between the Plan and
this
Agreement, the terms of the Plan shall control.
(d) Purchase
Price; Book Entry Form.
The
purchase price of the Shares is set forth on the Grant Notice. At the sole
discretion of the Administrator, the Shares will be issued in either (i)
uncertificated form, with the Shares recorded in the name of the Grantee in
the
books and records of the Company’s transfer agent with appropriate notations
regarding the restrictions on transfer imposed pursuant to this Agreement,
and
upon vesting and the satisfaction of all conditions set forth in Section 2(d)
hereof, the Company shall cause certificates representing the Shares to be
issued to the Grantee; or (ii) certificate form pursuant to the terms of
Sections 1(e) and 1(f) hereof.
(e) Legend.
Certificates representing Shares issued pursuant to this Agreement shall, until
all restrictions on transfer imposed pursuant to this Agreement lapse or shall
have been removed and new certificates are issued, bear the following legend
(or
such other legend as shall be determined by the Administrator):
"THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN VESTING
REQUIREMENTS AND MAY BE SUBJECT TO FORFEITURE UNDER THE TERMS OF THAT CERTAIN
RESTRICTED STOCK AWARD AGREEMENT, DATED [____________ __, 200_], BY AND BETWEEN
PERICOM
SEMICONDUCTOR CORPORATION
AND THE
REGISTERED OWNER OF SUCH SHARES, AND SUCH SHARES MAY NOT BE, DIRECTLY OR
INDIRECTLY, OFFERED, TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF UNDER ANY CIRCUMSTANCES, EXCEPT PURSUANT TO THE PROVISIONS
OF SUCH AGREEMENT.”
(f) Escrow.
The
Secretary of the Company or such other escrow holder as the Administrator may
appoint may retain physical custody of the certificates representing the Shares
until all of the restrictions on transfer imposed pursuant to this Agreement
lapse or shall have been removed; in such event the Grantee shall not retain
physical custody of any certificates representing unvested Shares issued to
him
or her.
2. Restrictions.
(a) Forfeiture.
Any
Award which is not vested as of the date the Grantee ceases to be an Employee
or
Consultant shall thereupon be forfeited immediately and without any further
action by the Company. For purposes of this Agreement, “Restrictions”
shall
mean the restrictions on sale or other transfer set forth in Section 4 hereof
and the exposure to forfeiture set forth in this Section 2(a).
(b) Vesting
and Lapse of Restrictions.
Subject
to Sections 2(a) and 2(c) hereof, the Award shall vest and Restrictions shall
lapse in accordance with the vesting schedule set forth on the Grant Notice.
During any authorized leave of absence, the Award shall cease to vest after
the
leave of absence exceeds a period of ninety (90) days. Vesting shall resume
upon
the Grantee’s termination of the leave of absence and return to service to the
Company or a Related Entity. In the event of the Grantee’s change in status from
Employee to Consultant or from an Employee whose customary employment is 20
hours or more per week to an Employee whose customary employment is fewer than
20 hours per week, vesting of the Award shall continue only to the extent
determined by the Administrator as of such change in status.
(c) Acceleration
of Vesting.
Notwithstanding Sections 2(a) and 2(b), the Award shall be subject to the
provisions of Section 11 of the Plan relating to vesting acceleration in
connection with a Corporate Transaction or Change in Control and, as applicable,
the non-assumption or replacement of the Award or specified termination of
the
Grantee’s Continuous Service.
(d) Tax
Withholding; Conditions to Issuance of Certificates.
Notwithstanding any other provision of this Agreement (including without
limitation Section 2(b)):
(i) No
certificates representing Shares shall be delivered to the Grantee or his or
her
legal representative unless and until the Grantee or his or her legal
representative shall have paid to the Company the full amount of all federal
and
state withholding or other taxes applicable to the taxable income of the Grantee
resulting from the grant of Shares or the lapse or removal of the Restrictions.
Upon vesting of the Award, the Company or the Grantee’s employer may offset or
withhold (from any amount owed by the Company or the Grantee’s employer to the
Grantee) or collect from the Grantee or his or her legal representative an
amount sufficient to satisfy such tax obligations and/or the employer’s
withholding obligations.
(ii) The
Company shall not be required to issue or deliver any certificate or
certificates for any Shares prior to the fulfillment of all of the following
conditions: (A) the admission of the Shares to listing on all stock exchanges
on
which such Common Stock is then listed, (B) the completion of any registration
or other qualification of the Shares under any state or federal law or under
rulings or regulations of the Securities and Exchange Commission or other
governmental regulatory body, which the Administrator shall, in its sole and
absolute discretion, deem necessary and advisable, (C) the obtaining of any
approval or other clearance from any state or federal governmental agency that
the Administrator shall, in its absolute discretion, determine to be necessary
or advisable and (D) the lapse of any such reasonable period of time following
the date the Restrictions lapse as the Administrator may from time to time
establish for reasons of administrative convenience.
3. Section
83(b) Election.
The
Grantee understands that Section 83(a) of the Code taxes as ordinary income
the difference between the amount, if any, paid for the Shares and the Fair
Market Value of such Shares at the time the Restrictions on such Shares lapse.
The Grantee understands that, notwithstanding the preceding sentence, the
Grantee may elect to be taxed at the time of the date of grant, rather that
at
the time the Restrictions lapse, by filing an election under Section 83(b)
of the Code (an “83(b)
Election”)
with
the Internal Revenue Service within 30 days of the date of grant. In the event
the Grantee files an 83(b) Election, the Grantee will recognize ordinary income
in an amount equal to the difference between the amount, if any, paid for the
Shares and the Fair Market Value of such shares as of the date of grant. The
Grantee further understands that an additional copy of such 83(b) Election
form
should be filed with his or her federal income tax return for the calendar
year
in which the date of this Agreement falls. The Grantee acknowledges that the
foregoing is only a summary of the effect of United States federal income
taxation with respect to the Award hereunder, and does not purport to be
complete. THE GRANTEE
FURTHER ACKNOWLEDGES THAT THE COMPANY IS NOT RESPONSIBLE FOR FILING THE
GRANTEE’S 83(b)
ELECTION, AND THE COMPANY HAS DIRECTED THE GRANTEE TO SEEK INDEPENDENT ADVICE
REGARDING THE APPLICABLE PROVISIONS OF THE INTERNAL REVENUE CODE, THE INCOME
TAX
LAWS OF ANY MUNICIPALITY, STATE OR FOREIGN COUNTRY IN WHICH THE GRANTEE MAY
RESIDE, AND THE TAX CONSEQUENCES OF THE GRANTEE’S DEATH.
4. Restricted
Stock Not Transferable.
No
Shares that are subject to Restrictions or any interest or right therein or
part
thereof shall be liable for the debts, contracts or engagements of the Grantee
or his or her successors in interest or shall be subject to disposition by
transfer, alienation, anticipation, pledge, encumbrance, assignment or any
other
means whether such disposition be voluntary or involuntary or by operation
of
law by judgment, levy, attachment, garnishment or any other legal or equitable
proceedings (including bankruptcy), and any attempted disposition thereof shall
be null and void and of no effect; provided,
however,
that
this Section 4 notwithstanding, the Award shall be transferable (i) by will
and
by the laws of descent and distribution, and (ii) during the lifetime of the
Grantee, to the extent and in the manner authorized by the Administrator.
Notwithstanding the foregoing, the Grantee may designate one or more
beneficiaries of the Grantee’s Award in the event of the Grantee’s death on a
beneficiary designation form provided by the Administrator.
5. Rights
as Shareholder.
Except
as otherwise provided herein, upon the date of grant the Grantee shall have
all
the rights of a shareholder with respect to the Shares, subject to the
Restrictions herein, including the right to vote the Shares and the right to
receive any cash or stock dividends paid to or made with respect to the Shares;
provided,
however,
that at
the discretion of the Company, and prior to the delivery of Shares, the Grantee
may be required to execute a shareholders agreement in such form as shall be
determined by the Company.
6. Not
a
Contract of Employment.
Nothing
in this Agreement or in the Plan shall confer upon the Grantee any right to
continue to serve as an Employee or Consultant of the Company or any of its
Related Entities.
7. Entire
Agreement: Governing Law.
The
Grant Notice, 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 Grantee
with respect to the subject matter hereof, and may not be modified adversely
to
the Grantee’s interest except by means of a writing signed by the Company and
the Grantee. Nothing in the Grant Notice, the Plan and this Agreement (except
as
expressly provided therein) is intended to confer any rights or remedies on
any
persons other than the parties. The Grant Notice, the Plan and this Agreement
are to be construed in accordance with and governed by the internal laws of
the
State of California (as permitted by Section 1646.5 of the California Civil
Code, or any similar successor provision) without giving effect to any choice
of
law rule that would cause the application of the laws of any jurisdiction other
than the internal laws of the State of California to the rights and duties
of
the parties. Should any provision of the Grant Notice, the Plan or this
Agreement be determined by a court of law to be illegal or unenforceable, such
provision shall be enforced to the fullest extent allowed by law and the other
provisions shall nevertheless remain effective and shall remain
enforceable.
8. Conformity
to Securities Laws.
The
Grantee acknowledges that the Plan and this Agreement are intended to conform
to
the extent necessary with all provisions of the Securities Act of 1933, as
amended, and the Exchange Act, and any and all regulations and rules promulgated
thereunder by the Securities and Exchange Commission, including, without
limitation, Rule 16b-3 under the Exchange Act. Notwithstanding anything herein
to the contrary, the Plan shall be administered, and the Awards are granted,
only in such a manner as to conform to such laws, rules and regulations. To
the
extent permitted by applicable law, the Plan and this Agreement shall be deemed
amended to the extent necessary to conform to such laws, rules and
regulations.
9. Amendment,
Suspension and Termination.
To the
extent permitted by the Plan, this Agreement may be wholly or partially amended
or otherwise modified, suspended or terminated at any time or from time to
time
by the Administrator or the Board,
provided,
that,
except as may otherwise be provided by the Plan, no amendment, modification,
suspension or termination of this Agreement shall affect the Award without
the
prior written consent of the Grantee.
10. Headings.
The
captions used in the Grant Notice and this Agreement are inserted for
convenience and shall not be deemed a part of the Award for construction or
interpretation.
11. Dispute
Resolution.
The
provisions of this Section 11 shall be the exclusive means of resolving disputes
arising out of or relating to the Grant Notice, the Plan and this Agreement.
The
Company, the Grantee, and the Grantee’s assignees pursuant to Section 4 hereof
(the “Parties”)
shall
attempt in good faith to resolve any disputes arising out of or relating to
the
Grant Notice, the Plan and this Agreement by negotiation between individuals
who
have authority to settle the controversy. Negotiations shall be commenced by
either Party by notice of a written statement of the Party’s position and the
name and title of the individual who will represent the Party. Within thirty
(30) days of the written notification, the Parties shall meet at a mutually
acceptable time and place, and thereafter as often as they reasonably deem
necessary, to resolve the dispute. If the dispute has not been resolved by
negotiation, the Parties agree that any suit, action, or proceeding arising
out
of or relating to the Grant Notice, the Plan or this Agreement shall be brought
in the United States District Court for the Northern District of California
located in the City of San Jose, California (or should such court lack
jurisdiction to hear such action, suit or proceeding, in a California state
court in the County of Santa Xxxxx) and that the Parties shall submit to the
jurisdiction of such court. The Parties irrevocably waive, to the fullest extent
permitted by law, any objection the Party may have to the laying of venue for
any such suit, action or proceeding brought in such court. THE PARTIES ALSO
EXPRESSLY WAIVE ANY RIGHT THEY HAVE OR MAY HAVE TO A JURY TRIAL OF ANY SUCH
SUIT, ACTION OR PROCEEDING. If any one or more provisions of this Section 11
shall for any reason be held invalid or unenforceable, it is the specific intent
of the Parties that such provisions shall be modified to the minimum extent
necessary to make it or its application valid and enforceable.
12. Notices.
Any
notice required or permitted hereunder shall be given in writing and shall
be
deemed effectively given upon personal delivery or upon deposit in the United
States mail by certified mail, (if the parties are within the United States)
or
upon deposit for delivery by an internationally recognized express mail courier
service (for international delivery of notice) with postage and fees prepaid,
addressed to the Grantee to his or her address shown in the Company records,
and
to the Company at its principal executive office.
13. Successors
and Assigns.
The
Company may assign any of its rights under this Agreement to single or multiple
assignees, and this Agreement shall inure to the benefit of the successors
and
assigns of the Company. Subject to the restrictions on transfer herein set
forth, this Agreement shall be binding upon the Grantee and his or her heirs,
executors, administrators, successors and assigns.
CONSENT
OF SPOUSE
I,
____________________, spouse of _______________, have read and approve the
foregoing Restricted Stock Award Agreement (the “Agreement”). In consideration
of issuing to my spouse the shares of the common stock of Pericom Semiconductor
Corporation set forth in the Agreement, I hereby appoint my spouse as my
attorney-in-fact in respect to the exercise of any rights 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 the common stock of Pericom
Semiconductor Corporation issued pursuant thereto under the community property
laws or similar laws relating to marital prop-erty in effect in the state of
our
residence as of the date of the signing of the foregoing Agreement.
