EXHIBIT 10.2.3
LSI LOGIC CORPORATION STORAGE SYSTEMS, INC.
2004 EQUITY INCENTIVE PLAN
RESTRICTED STOCK AGREEMENT
LSI Logic Storage Systems, Inc. (the "Company") hereby grants Xxxxxxx Xxxxx
(the "Employee"), a grant of Restricted Stock under the Company's 2004 Equity
Incentive Plan (the "Plan"), to purchase 25,000 shares of Class A common stock
of the Company ("Shares") effective as March 1, 2004 (the "Grant Date") at the
purchase price per share indicated on the attached Notice of Grant of Restricted
Stock (the "Notice of Grant"). The Notice of Grant and this agreement
collectively are referred to as the "Agreement."
IMPORTANT:
Your signature to the Notice of Grant indicates your agreement and
understanding that this grant is subject to all of the terms and conditions
contained in this Agreement and the Plan. For example, important additional
information on vesting and forfeiture of the Shares covered by this grant is
contained in the Notice of Grant. PLEASE BE SURE TO READ ALL OF THE NOTICE OF
XXXXX, WHICH CONTAINS CERTAIN SPECIFIC TERMS AND CONDITIONS OF THIS AGREEMENT.
TERMS AND CONDITIONS OF RESTRICTED STOCK GRANT
1. Grant. The Company hereby grants to the Employee under the Plan an
award of the number of shares of Restricted Stock indicated in the Notice of
Grant, at the purchase price per share indicated in the Notice of Grant,
commencing on the Grant Date, subject to all of the terms and conditions in this
Agreement and the Plan. The Employee shall not have to remit any cash for the
purchase price; the purchase price shall be paid by the employee through a bonus
from the Company to the Employee equal to the purchase price and subject to the
appropriate tax withholdings.
2. Shares Held in Escrow. Unless and until the shares of Restricted Stock
shall have vested in the manner set forth in Paragraph 3, such shares shall be
issued in the name of the Employee and held by the Secretary of the Company (or
its designee) as escrow agent (the "Escrow Agent"), and shall not be sold,
transferred or otherwise disposed of, and shall not be pledged or otherwise
hypothecated. The Company may determine to issue the shares in book entry form
and/or may instruct the transfer agent for its Common Stock to place a legend on
the certificates representing the Restricted Stock or otherwise note its records
as to the restrictions on transfer set forth in this Agreement and the Plan. The
certificate or certificates representing such shares shall not be delivered by
the Escrow Agent to the Employee unless and until the shares have vested and all
other terms and conditions in this Agreement have been satisfied.
3. Vesting Schedule/Period of Restriction. Except as otherwise provided
in Paragraphs 4, 5 and 14 of this Agreement, the shares of Restricted Stock
awarded by this Agreement shall vest in the Employee as to fifty percent (50%)
of the Shares subject to the Restricted Stock grant on the first anniversary
date of the Vesting Commencement Date, and as to an additional 50% of the Shares
on the next subsequent anniversary date of the Vesting Commencement Date, until
the Restricted Stock shall have vested with respect to one hundred percent
(100%) of such Shares. Shares scheduled to vest on any such date actually will
vest only if the Employee has not incurred a Termination of Service prior to
such date.
4. Committee Discretion and Acceleration. The Committee, in its
discretion, may accelerate the vesting of the balance, or some lesser portion of
the balance, of the unvested Shares of Restricted Stock at any time, subject to
the terms of the Plan. If so accelerated, such Shares will be considered as
having vested as of the date specified by the Committee.
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5. Forfeiture. Notwithstanding any contrary provision of this Agreement,
the balance of the Shares of Restricted Stock that have not vested pursuant to
paragraphs 3 or 4 at the time of the Employee's Termination of Service will be
forfeited and automatically transferred to and reacquired by the Company at no
cost to the Company. The Employee shall not be entitled to a refund of the price
paid for the Shares returned to the Company pursuant to this paragraph 5. The
Employee hereby appoints the Escrow Agent with full power of substitution, as
the Employee's true and lawful attorney-in-fact with irrevocable power and
authority in the name and on behalf of the Employee to take any action and
execute all documents and instruments, including, without limitation, stock
powers which may be necessary to transfer the certificate or certificates
evidencing such unvested Shares to the Company upon such Termination of Service.
6. Death of Employee. Any distribution or delivery to be made to the
Employee under this Agreement will, if the Employee is then deceased, be made to
the administrator or executor of the Employee's estate. Any such administrator
or executor must furnish the Company with (a) written notice of his or her
status as transferee, and (b) evidence satisfactory to the Company to establish
the validity of the transfer and compliance with any laws or regulations
pertaining to said transfer.
7. Withholding of Taxes. The Company will assess its requirements
regarding tax, social insurance and any other payroll tax withholding and
reporting in connection with this Restricted Stock, including the grant, vesting
or purchase of the Restricted Stock or sale of Shares acquired pursuant to this
grant of Restricted Stock ("tax-related items"). These requirements may change
from time to time as laws or interpretations change. Regardless of the Company's
actions in this regard, the Employee hereby acknowledges and agrees that the
ultimate liability for any and all tax-related items is and remains his or her
responsibility and liability and that the Company (1) makes no representations
or undertaking regarding treatment of any tax-related items in connection with
any aspect of this Restricted Stock grant, including the grant, vesting or
purchase of this Restricted Stock and the subsequent sale of Shares acquired
pursuant to this grant of Restricted Stock; and (2) does not commit to structure
the terms of the grant or any aspect of this Restricted Stock to reduce or
eliminate the Employee's liability regarding tax-related items. Notwithstanding
any contrary provision of this Agreement, no Restricted Stock will be granted
unless and until satisfactory arrangements (as determined by the Committee) will
have been made by the Employee with respect to the payment of any income and
other taxes which the Company determines must be withheld or collected with
respect to such Shares. The Employee authorizes the Company and/or an Affiliate
to withhold all applicable withholding taxes from the Employee's wages.
Furthermore, the Employee agrees to pay the Company and/or an Affiliate any
amount of taxes the Company and/or an Affiliate may be required to withhold or
collect as a result of the Employee's participation in the Plan that cannot be
satisfied by deduction from the Employee's wages or other cash compensation paid
to the Employee by the Company and/or an Affiliate.
8. Rights as Stockholder. Neither the Employee nor any person claiming
under or through the Employee will have any of the rights or privileges of a
stockholder of the Company in respect of any Shares deliverable hereunder unless
and until certificates representing such Shares will have been issued, recorded
on the records of the Company or its transfer agents or registrars, and
delivered to the Employee or the Escrow Agent. Except as provided in paragraph
13, after such issuance, recordation and delivery, the Employee will have all
the rights of a stockholder of the Company with respect to voting such Shares
and receipt of dividends and distributions on such Shares.
9. No Effect on Employment. Subject to any employment contract with the
Employee, the terms of such employment will be determined from time to time by
the Company, or the Affiliate employing the Employee, as the case may be, and
the Company, or the Affiliate employing the Employee, as the case may be, will
have the right, which is hereby expressly reserved, to terminate or change the
terms of the employment of the Employee at any time for any reason whatsoever,
with or without good cause. The transactions contemplated hereunder and the
vesting schedule set forth in the Notice of Grant do not constitute an express
or implied promise of continued employment for any period of time. A leave of
absence or an interruption in service (including an interruption during military
service) authorized or acknowledged by the Company, or the Affiliate employing
the Employee, as the case may be, shall not be deemed a Termination of Service
for the purposes of this Agreement.
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10. Address for Notices. Any notice to be given to the Company under the
terms of this Agreement will be addressed to the Company, in care of its General
Counsel, at LSI Logic Storage Systems, Inc. 0000 Xxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxxxx 00000, or at such other address as the Company may hereafter
designate in writing.
11. Lock-Up Period. The Employee shall not offer, pledge, sell, contract
to sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any Shares (or other
securities) of the Company or enter into any swap, hedging or other arrangement
that transfers to another, in whole or in part, any of the economic consequences
of ownership of any Shares (or other securities) of the Company held by the
Employee (other than those included in the registration) for a period specified
by the representative of the underwriters of the Shares (or other securities) of
the Company not to exceed one hundred eighty (180) days following the effective
date of a registration statement of the Company filed under the Securities Act
of 1933, as amended (the "Securities Act"). The Employee shall execute and
deliver such other agreements as may be reasonably requested by the Company or
the underwriter which are consistent with the foregoing or which are necessary
to give further effect thereto. In addition, if requested by the Company or the
representative of the underwriters of the Shares (or other securities) of the
Company, the Employee shall provide, within ten (10) days of such request, such
information as may be required by the Company or such representative in
connection with the completion of any public offering of the Company's
securities pursuant to a registration statement filed under the Securities Act.
The obligations described in this Section shall not apply to a registration
relating solely to employee benefit plans on Form S-1 or Form S-8 or similar
forms that may be promulgated in the future, or a registration relating solely
to a Commission Rule 145 transaction on Form S-4 or similar forms that may be
promulgated in the future. The Company may impose stop-transfer instructions
with respect to the shares of Common Stock (or other securities) subject to the
foregoing restriction until the end of said one hundred eighty (180) day period.
Any transferee of this grant of Restricted Stock also shall be bound by this
Paragraph 11. The certificate evidencing the Shares will be imprinted with any
legend the Company, in its discretion, deems appropriate to indicate the
restrictions set forth in this Paragraph 11.
12. No Initial Public Offering. If at any time the Committee shall
determine, in its discretion, that an initial listing or registration of any
Shares upon any securities exchange or under federal law is not likely to occur,
the Committee may, in its discretion, determine that the unvested Shares of
Restricted Stock shall be converted to shares of common stock of LSI Logic
Corporation by such means as the Committee deems appropriate. Such shares of
common stock of LSI Logic Corporation will thereupon be considered to be
unvested Restricted Stock and will be subject to all of the conditions and
restrictions which were applicable to the Prior Shares pursuant to this
Agreement and the Plan. Unless the Committee determines otherwise, the unvested
Shares of Restricted Stock will be converted to shares of common stock of LSI
Logic Corporation as follows:
(a) The number of shares of common stock of LSI Logic Corporation the
Employee shall be entitled to shall be the number of unvested Shares subject to
this Restricted Stock grant multiplied by the "Conversion Ratio" (as defined
below), with the resulting number of shares rounded down to the nearest whole
share; and
(b) For purposes of any repurchase by LSI Logic Corporation of the unvested
shares of common stock of LSI Logic Corporation in accordance with this
Agreement and for purposes of calculating any tax and withholding obligations,
the per share purchase price of the shares of common stock of LSI Logic
Corporation shall be deemed to be equal to the quotient of the per Share
exercise price of the Shares of Restricted Stock subject to this grant divided
by the Conversion Ratio, rounded up to the nearest whole cent.
For purposes of this Agreement, "Conversion Ratio" means the Fair Market
Value of a Share immediately prior to the date the Shares of Restricted Stock
are being converted divided by the fair market value of a share of LSI Logic
Corporation common stock at the time of the conversion.
13. Changes in Shares. In the event that as a result of a stock dividend,
stock split, reclassification, recapitalization, combination of Shares or the
adjustment in capital stock of the Company or otherwise, or as a result of a
merger, consolidation, spin-off or other reorganization, the Shares will be
increased, reduced or otherwise changed, and by virtue of any such change the
Employee will in his or her capacity as owner of
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unvested Shares of Restricted Stock which have been awarded to him or her (the
"Prior Shares") be entitled to new or additional or different shares of stock,
cash or securities (other than rights or warrants to purchase securities); such
new or additional or different shares, cash or securities will thereupon be
considered to be unvested Restricted Stock and will be subject to all of the
conditions and restrictions which were applicable to the Prior Shares pursuant
to this Agreement and the Plan. If the Employee receives rights or warrants with
respect to any Prior Shares, such rights or warrants may be held or exercised by
the Employee, provided that until such exercise any such rights or warrants and
after such exercise any shares or other securities acquired by the exercise of
such rights or warrants will be considered to be unvested Restricted Stock and
will be subject to all of the conditions and restrictions which were applicable
to the Prior Shares pursuant to the Plan and this Agreement. The Committee in
its absolute discretion at any time may accelerate the vesting of all or any
portion of such new or additional shares of stock, cash or securities, rights or
warrants to purchase securities or shares or other securities acquired by the
exercise of such rights or warrants.
14. Change in Control. In the event of a Change in Control, this grant of
Restricted Stock shall be subject to the definitive agreement governing such
Change in Control. Such agreement, without the Employee's consent and
notwithstanding any provision to the contrary in this Agreement or the Plan, may
provide for: (a) the assumption of the unvested portion of this grant by the
surviving corporation or its parent; (b) the substitution by the surviving
corporation or its parent of an award with substantially the same terms as this
grant; (c) the substitution by the surviving corporation or its parent of other
awards having a value at least equal to the value of the unvested portion of
this grant; (d) the lapse of all restrictions and the full vesting of this
grant; or (d) the cancellation of the unvested portion of this grant after
payment to the Employee of an amount in cash or cash equivalents equal to the
fair market value of the Shares subject to the unvested portion of this grant.
The Committee may, in its sole discretion, accelerate the vesting of this grant
in connection with any of the foregoing alternatives. For purposes of this
Agreement, "Change in Control" means the occurrence of any of the following
events: (a) any "person" (as such term is used in Sections 13(d) and 14(d) of
the 1934 Act) becomes the "beneficial owner" (as defined in Rule 13d-3 of the
1934 Act), directly or indirectly, of securities of the Company representing
fifty percent (50%) or more of the total voting power represented by the
Company's then outstanding voting securities; (b) the consummation of the sale
or disposition by the Company of all or substantially all of the Company's
assets; (c) a change in the composition of the Board occurring within a two-year
period, as a result of which fewer than a majority of the directors are
Incumbent Directors; (d) the approval by the shareholders of the Company, or if
shareholder approval is not required, by the Board, of a plan of complete
liquidation of the Company; or (e) the consummation of a merger or consolidation
of the Company with any other corporation, other than a merger or consolidation
which would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving entity
or its parent) at least fifty percent (50%) of the total voting power
represented by the voting securities of the Company or such surviving entity or
its parent outstanding immediately after such merger or consolidation.
Notwithstanding any provision to the contrary herein, a Change in Control shall
not include the registration of any class of the Company's securities pursuant
to Section 12(g) of the Securities Exchange Act of 1934, as amended, nor any
event or series of events through which LSI Logic Corporation ceases to own a
majority of the total voting power represented by the voting securities of the
Company through a sale of Company securities to the public. "Incumbent
Directors" means directors who either (A) are Directors as of the effective date
of the Plan, or (B) are elected, or nominated for election, to the Board with
the affirmative votes of at least a majority of the Directors at the time of
such election or nomination (but will not include an individual whose election
or nomination is in connection with an actual or threatened proxy contest
relating to the election of directors to the Company).
15. Grant is Not Transferable. Except to the limited extent provided in
paragraph 6 above, this grant and the rights and privileges conferred hereby
will not be transferred, assigned, pledged or hypothecated in any way (whether
by operation of law or otherwise) and will not be subject to sale under
execution, attachment or similar process. Upon any attempt to transfer, assign,
pledge, hypothecate or otherwise dispose of this grant, or any right or
privilege conferred hereby, or upon any attempted sale under any execution,
attachment or similar process, this grant and the rights and privileges
conferred hereby immediately will become null and void.
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16. Binding Agreement. Subject to the limitation on the transferability of
this grant contained herein, this Agreement will be binding upon and inure to
the benefit of the heirs, legatees, legal representatives, successors and
assigns of the parties hereto.
17. Additional Conditions to Issuance of Certificates for Shares and
Release from Escrow. The Company shall not be required to issue any certificate
or certificates for Shares hereunder or release such Shares from the escrow
established pursuant to paragraph 2 prior to fulfillment of all the following
conditions: (a) the admission of such Shares to listing on all stock exchanges
on which such class of stock is then listed; (b) the completion of any
registration or other qualification of such Shares under any state or federal
law or under the rulings or regulations of the Securities and Exchange
Commission or any other governmental regulatory body, which the Committee shall,
in its absolute discretion, deem necessary or advisable; (c) the obtaining of
any approval or other clearance from any state or federal governmental agency,
which the Committee shall, in its absolute discretion, determine to be necessary
or advisable; and (d) the lapse of such reasonable period of time following the
date of grant of the Restricted Stock as the Committee may establish from time
to time for reasons of administrative convenience.
18. Plan Governs. This Agreement is subject to all terms and provisions of
the Plan. In the event of a conflict between one or more provisions of this
Agreement and one or more provisions of the Plan, the provisions of the Plan
will govern. Capitalized terms used and not defined in this Agreement will have
the meaning set forth in the Plan.
19. Committee Authority. The Committee will have the power to interpret
the Plan and this Agreement and to adopt such rules for the administration,
interpretation and application of the Plan as are consistent therewith and to
interpret or revoke any such rules (including, but not limited to, the
determination of whether or not any Shares of Restricted Stock have vested). All
actions taken and all interpretations and determinations made by the Committee
in good faith will be final and binding upon the Employee, the Company and all
other interested persons. No member of the Committee will be personally liable
for any action, determination or interpretation made in good faith with respect
to the Plan or this Agreement.
20. Captions. Captions provided herein are for convenience only and are
not to serve as a basis for interpretation or construction of this Agreement.
21. Agreement Severable. In the event that any provision in this Agreement
will be held invalid or unenforceable, such provision will be severable from,
and such invalidity or unenforceability will not be construed to have any effect
on, the remaining provisions of this Agreement.
22. Modifications to the Agreement. This Agreement constitutes the entire
understanding of the parties on the subjects covered. The Employee expressly
warrants that he or she is not accepting this Agreement in reliance on any
promises, representations, or inducements other than those contained herein.
Modifications to this Agreement or the Plan can be made only in an express
written contract executed by a duly authorized officer of the Company.
23. Amendment, Suspension or Termination of the Plan. By accepting this
award, the Employee expressly warrants that he or she has received a right to
purchase stock under the Plan, and has received, read and understood a
description of the Plan. The Employee understands that the Plan is discretionary
in nature and may be modified, suspended or terminated by the Company at any
time.
24. Notice of Governing Law. This grant of Restricted Stock shall be
governed by, and construed in accordance with, the laws of the State of
California without regard to principles of conflict of laws.
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ELECTION UNDER SECTION 83(B)
OF THE INTERNAL REVENUE CODE OF 1986
The undersigned taxpayer hereby elects, pursuant to Sections 55 and 83(b)
of the Internal Revenue Code of 1986, as amended, to include in taxpayer's gross
income or alternative minimum taxable income, as the case may be, for the
current taxable year the amount of any compensation taxable to taxpayer in
connection with taxpayer's receipt of the property described below
1. The name, address, taxpayer identification number and taxable year of
the undersigned are as follows:
TAXPAYER SPOUSE OF TAXPAYER
-------- ------------------
Name:
Address:
Identification No.:
Taxable Year:
2. The property with respect to which the election is made is described as
follows: shares (the "Shares") of the Common Stock of LSI
Logic Corporation Storage Systems, Inc. (the "Company").
3. The date on which the property was transferred is: ,
.
4. The property is subject to the following restrictions:
The Shares may not be transferred and are subject to forfeiture
under the terms of an agreement between the taxpayer and the Company. These
restrictions lapse upon the satisfaction of certain conditions contained in
such agreement.
5. The fair market value at the time of transfer, determined without regard
to any restriction other than a restriction which by its terms will
never lapse, of such property is: $ .
6. The amount (if any) paid for such property is: $ .
The undersigned has submitted a copy of this statement to the person for
whom the services were performed in connection with the undersigned's receipt of
the above-described property. The transferee of such property is the person
performing the services in connection with the transfer of said property.
The undersigned understands that the foregoing election may not be revoked
except with the consent of the Commissioner.
Dated: ---------------------------------,
--------- --------------------------------------------
TAXPAYER
The undersigned spouse of taxpayer joins in this election.
Dated: ---------------------------------,
--------- --------------------------------------------
SPOUSE OF TAXPAYER
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ENGENIO INFORMATION TECHNOLOGIES, INC.
AMENDMENT TO
RESTRICTED STOCK AGREEMENT
This Amendment (the "Amendment") to the
Restricted Stock Agreement (the
"Agreement") of Xxxxxxx Xxxxx (the "Employee") is made this 9th day of July 2004
by and between the Employee and
Engenio Information Technologies, Inc. (the
"Company").
WHEREAS, the Company granted the Employee the right under the Company's
2004 Equity Incentive Plan (the "Plan"), to purchase 25,000 shares of Class A
common stock of the Company at a purchase price per share equal to $.001 per
share, the par value of a share, pursuant to an agreement dated March 1, 2004
(the "Restricted Stock").
WHEREAS, the Company and the Employee desire to amend the Agreement to
provide that neither the Employee nor any beneficiary or designee of the
Employee, will have any rights to receive any dividends of any proceeds of an
initial listing or registration of any shares of Company common stock upon any
securities exchange or under federal law.
NOW, THEREFORE, the Employee and the Company agree that the Agreement shall
be amended as follows:
1. Rights as a Stockholder. Paragraph 8 ("Rights as Stockholder") of the
Agreement shall be amended and restated to read in its entirety as follows:
"8. Rights as a Stockholder. Neither the Employee nor any person
claiming rights under or through the Employee will have any of the rights
or privileges of a stockholder of the Company in respect of any Shares
deliverable hereunder unless and until certificates representing such
Shares will have been issued, recorded on the records of the Company or its
transfer agents or registrars, and delivered to the Employee or the Escrow
Agent. Except as provided in paragraph 13, after such issuance, recordation
and delivery, the Employee will have all the rights of a stockholder of the
Company with respect to voting such Shares and receipt of dividends and
distributions on such Shares. Notwithstanding the foregoing, neither the
Employee nor any person claiming rights under or through the Employee will
have any rights to receive any dividends of any proceeds of an initial
listing, offering, sale or registration of any Shares upon any securities
exchange or under federal law."
2. Full Force and Effect. To the extent not expressly amended hereby, the
Agreement remains in full force and effect.
3. Entire Agreement. This Amendment, together with the Agreement (to the
extent not amended hereby), the Plan and the Restricted Stock Purchase Agreement
and related documents, represents the entire agreement of the parties and shall
supersede any and all previous contracts, arrangements or understandings between
the parties with respect to the Employee's Restricted Stock.
IN WITNESS WHEREOF, this Amendment has been entered into as of the date
first set forth above.
ENGENIO INFORMATION
TECHNOLOGIES, INC.
By: /s/ XXXXX X. XXXXXXX
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Title: V.P. General Counsel
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XXXXXXX XXXXX
/s/ Xxxxxxx X. Xxxxx
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