MTM TECHNOLOGIES, INC. Restricted Stock Unit Award Agreement
EXHIBIT
10.21
2004
EQUITY INCENTIVE PLAN
MTM
Technologies, Inc., a New York corporation formerly known as
Micros-to-Mainframes, Inc. (the “Company”), pursuant to Section 4.1(f) of the
Micros-to-Mainframes, Inc. 2004 Equity Incentive Plan (the “Plan”), has granted
to ___________ (the “Grantee”) a total of ___________ restricted stock units
(the “Units”) with respect to a total of ___________ shares (the “Shares”) of
the common stock, par value $.001 per share (the “Common Stock”), of the
Company, on the terms and conditions set forth herein and, in all respects,
subject to the terms and conditions of the Plan. The date of grant of the
Units
is ___________ (the “Date of Grant”).
Unless
otherwise defined herein, capitalized terms defined in the Plan shall have
the
same defined meanings herein.
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1.
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Units.
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The
Units
represent the Grantee’s right to receive the Shares on the vesting date of the
Units, subject to Xxxxxxx’s earlier forfeiture of the Units as provided herein
or under the Plan.
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2.
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Anti-Dilution
Provisions.
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(a) If
there
is any stock dividend, stock split, or combination of shares of Common Stock,
the number and amount of Shares then subject to the Units and the Acceleration
Price (as defined herein) shall be proportionately and appropriately adjusted
as
determined by the Committee, whose determination shall be final, conclusive
and
binding upon Grantee and the Company.
(b) If
there
is any other change in the Common Stock, including a recapitalization,
reorganization, sale or exchange of assets, exchange of shares, offering
of
subscription rights, or a merger or consolidation, whether or not the Company
is
the surviving corporation, an adjustment, if any, shall be made in the number
and kind of shares that may be subject to the Units as the Board or Committee
may deem equitable, and whose determination shall be final, conclusive and
binding upon Grantee and the Company. Failure of the Board or the Committee
to
provide for an adjustment pursuant to this Section 2(b) prior to the effective
date of any Company action referred to herein shall be conclusive evidence
that
no adjustment is required in consequence of such action.
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3.
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Non-Transferability.
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The
Units
shall not be transferable by Grantee other than by will or by the laws of
descent or distribution. The terms of this agreement shall be binding upon
Xxxxxxx’s executors, administrators, heirs, successors and assigns.
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4.
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Certain
Rights Not Conferred by
Units.
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Grantee
shall not, by virtue of holding the Units, be entitled to any rights of a
shareholder of the Company, including the right to vote and to receive dividends
and other distributions with respect to the Shares subject to the Units,
until
delivery to Grantee of certificates representing the Shares in satisfaction
of
the Units.
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5.
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Expenses.
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The
Company shall pay all original issue and transfer taxes with respect to the
issuance of the Shares pursuant hereto and all other fees and expenses
necessarily incurred by the Company in connection therewith.
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6.
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Vesting
of Units.
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(a) Subject
to Section 6(b) and 6(c), the Units shall vest in full upon the first to
occur
of (i) the fifth anniversary of the Date of Grant, or (ii) the end of the
first
sixty (60) day trading period ending on or after the Date of Grant during
which
the Fair Market Value of the Common Stock is $10 per share (the “Acceleration
Price”) or greater on any thirty consecutive or nonconsecutive trading days,
provided that vesting under this (ii) shall not occur prior to the first
anniversary date of the Date of Xxxxx.
(b) Notwithstanding
the vesting schedule set forth in paragraph (a) of this Section 6, the Units
shall vest in the event of either (i) the termination of Grantee’s employment by
the Company for any reason other than termination by the Company for “cause” or
(ii) termination of Grantee’s employment by Grantee for “good reason,” as such
terms are defined in the Severance Letter, dated ________
(the
“Severance Letter”), between the Company and Grantee, as in effect on the Date
of Grant without giving effect to any termination, amendment or modification
of
the Severance Letter after the Date of Grant that may affect the definitions
of
“cause” and/or “good reason” contained in the Severance Letter.
(c) In
the
event of (x) Xxxxxxx’s termination for “cause” (as defined in the Severance
Letter as in effect on the Date of Grant without giving effect to any
termination, amendment or modification of the Severance Letter after the
Date of
Grant that may affect the definition of “cause” contained in the Severance
Letter), (y) Xxxxxxx’s voluntary termination of Xxxxxxx’s employment other than
for “good reason” (as defined in the Severance Letter as in effect on the Date
of Grant without giving effect to any termination, amendment or modification
of
the Severance Letter after the Date of Grant that may affect the definition
of
“good reason” contained in the Severance Letter) or (z) Grantee’s death or
Disability, in each such case, Grantee shall forfeit the Units upon termination
or death or Disability, as the case may be, if such event occurred prior
to
vesting of the Units.
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7.
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Delivery
of Shares.
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(a) Upon
vesting of the Units pursuant to Section 6 and subject to Section 7(b), the
Company shall register the Shares subject to the Units in the name of Grantee
and shall deliver certificates for such Shares, free of all restrictions,
except
any restrictions that may be imposed by law, to Grantee; provided that subject
to applicable law, including without limitation Section 409A of the Internal
Revenue Code of 1986, as amended, and the regulations
thereunder, Grantee may elect to defer the receipt of the Shares pursuant
to procedures established by the Company; provided that such Grantee deferral
election will not result in adverse federal income tax consequences
to the Company.
(b) The
Company shall deliver no Shares pursuant to Section 7(a) until all laws,
rules
and regulations which the Committee may deem applicable have been complied
with.
(c) Grantee
shall not be considered a record holder of the Shares for any purpose until
the
date on which Xxxxxxx is actually recorded as the holder of such Shares in
the
records of the Company.
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8.
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Acceptance
of the Terms and Conditions of the
Plan.
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The
acceptance by Grantee of this Restricted Stock Unit Award Agreement and the
Units shall constitute the acceptance of and agreement to all of the terms
and
conditions contained herein and in the Plan.
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9.
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Continued
Employment.
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Nothing
herein shall be deemed to create any employment or guaranty of continued
employment or limit in any way the Company’s right to terminate Xxxxxxx’s
employment at any time.
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10.
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Applicable
Law.
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The
validity, construction, interpretation, administration and effect of this
Restricted Stock Unit Award Agreement, and of the rules, regulations and
rights
under the Plan relating to this agreement, shall be governed by the substantive
laws, but not the choice of law rules, of the State of New
York.
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By:
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Name:
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Title:
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XXXXXXX
ACKNOWLEDGES AND AGREES THAT NOTHING IN THIS RESTRICTED STOCK UNIT AWARD
AGREEMENT, NOR IN THE PLAN WHICH IS INCORPORATED HEREIN BY REFERENCE, SHALL
CONFER UPON GRANTEE ANY RIGHT WITH RESPECT TO CONTINUATION OF EMPLOYMENT
BY THE
COMPANY, NOR SHALL IT INTERFERE IN ANY WAY WITH XXXXXXX’S RIGHT OR THE COMPANY’S
RIGHT TO TERMINATE EMPLOYMENT AT ANY TIME, WITH OR WITHOUT
CAUSE.
Xxxxxxx
acknowledges receipt of a copy of the Plan and certain information related
thereto and represents that Grantee is familiar with the terms and provisions
thereof, and hereby accepts the Units subject to all of the terms and provisions
thereof. Xxxxxxx has reviewed the Plan and this agreement in their entirety,
has
had an opportunity to obtain the advice of counsel prior to executing this
agreement and fully understands all of the terms and provisions of the Units
and
this agreement. Grantee hereby agrees to accept as binding, conclusive and
final
all decisions or interpretations of the Committee upon any questions arising
under the Plan. Xxxxxxx further agrees to notify the Company upon any change
in
the residence address indicated below.
Accepted
and agreed by Xxxxxxx
as
of the
Date of Grant:
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By:
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Name:
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Address:
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