EXHIBIT 10.13
RESTRICTED STOCK AGREEMENT
SCANNER TECHNOLOGIES CORPORATION
2004 EQUITY INCENTIVE PLAN
THIS AGREEMENT, made effective as of this day of , 20__, by and between
Scanner Technologies Corporation, a New Mexico corporation (the "Company"), and
___________________ ("Participant").
W I T N E S S E T H:
WHEREAS, the Participant on the date hereof is an officer, employee,
director, consultant or advisor of the Company; and
WHEREAS, the Company wishes to grant a restricted stock award to
Participant for shares of the Company's Common Stock pursuant to the Company's
2004 Equity Incentive Plan (the "Plan"); and
WHEREAS, the Administrator of the Plan has authorized the grant of a
restricted stock award to the Participant;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
1. GRANT OF RESTRICTED STOCK AWARD. The Company hereby grants to
Participant on the date set forth above a restricted stock award (the "Award")
for _____________________ (__________ ) shares of Common Stock on the terms and
conditions set forth herein, and subject to adjustment pursuant to Section 13 of
the Plan. The Company shall cause to be issued a stock certificate representing
such shares of Common Stock in the Participant's name, and shall deliver such
certificate to the Participant; provided, however, that the Company shall place
a legend on such certificate describing the risks of forfeiture and other
transfer restrictions set forth in this Agreement and providing for the
cancellation and return of such certificate if such shares of Common Stock are
forfeited as provided in Section 2 below. Until such risks of forfeiture have
lapsed or the shares subject to this Award have been forfeited pursuant to
Section 2 below, the Participant shall be entitled to vote the shares
represented by such stock certificates and shall receive all dividends
attributable to such shares, but the Participant shall not have any other rights
as a shareholder with respect to such shares.
2. VESTING OF RESTRICTED STOCK.
a. The shares of Stock subject to this Award shall remain
forfeitable until the risks of forfeiture lapse according to the following
vesting schedule:
VESTING DATE CUMULATIVE PERCENTAGE OF SHARES VESTED
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If the Participant's employment or other relationship with the Company (or a
subsidiary of the Company) ceases at any time prior to a Vesting Date for any
reason, including the Participant's voluntary resignation or retirement but
excluding termination by the Company without "cause," the Participant shall
immediately forfeit all shares of Stock subject to this Award which have not yet
vested and for which the risks of forfeiture have not lapsed. If the
Participant's employment or other relationship is terminated by the Company
without "cause" prior to the vesting date for this Award, all risks of
forfeiture on the shares of Stock subject to this Award shall immediately lapse.
b. Solely for purposes of this Paragraph 2(b), "cause" shall
mean (i) Participant charged with a felony or convicted of any criminal
misdemeanor or more serious act; (ii) any intentional and/or willful act of
fraud or dishonesty by Participant related to or connected with Participant's
employment by the Company or any of its Affiliates; (iii) the willful and/or
continued failure, neglect or refusal by Participant to perform his or her
employment duties with the Company or any of its Affiliates, (iv) a material
violation of the Participant's or an Affiliate's policies or codes of conduct;
or (v) the willful and/or material breach by Participant of any agreement
between Participant and the Company or any of its Affiliates, including but not
limited to an employment agreement or a noncompetition agreement.
3. MISCELLANEOUS.
a. EMPLOYMENT-AT-WILL. This Agreement shall not confer on
Participant any right with respect to continuance of employment or other
relationship by the Company or any of its Affiliates, nor will it interfere in
any way with the right of the Company to terminate such employment.
Participant's employment relationship with the Company and its Affiliates shall
be employment-at-will, and nothing in this Agreement shall be construed as
creating an employment contract for any specified term between Participant and
the Company or any Affiliate.
b. SECURITIES LAW COMPLIANCE. Participant shall not
transfer or otherwise dispose of the shares of Stock received pursuant to this
Agreement until such time as counsel to the Company shall have determined that
such transfer or other disposition will not violate any state or federal
securities laws. The Participant may be required by the Company, as a condition
of the effectiveness of this restricted stock award, to agree in writing that
all Stock subject to this Agreement shall be held, until such time that such
Stock is registered and freely tradable under applicable state and federal
securities laws, for Participant's own account without a view to any further
distribution thereof, that the certificates for such shares shall bear an
appropriate legend to that effect and that such shares will be not transferred
or disposed of except in compliance with applicable state and federal securities
laws.
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c. MERGERS, RECAPITALIZATIONS, STOCK SPLITS, ETC. Pursuant
and subject to Section 13 of the Plan, certain changes in the number or
character of the Common Stock of the Company (through merger, consolidation,
exchange, reorganization, divestiture (including a spin-off), liquidation,
recapitalization, stock split, stock dividend or otherwise) shall result in an
adjustment, reduction or enlargement, as appropriate, in Participant's rights
with respect to any unexercised portion of the Option (i.e., Participant shall
have such "anti-dilution" rights under the Option with respect to such events,
but shall not have "preemptive" rights).
d. SHARES RESERVED. The Company shall at all times during
the term of this Agreement reserve and keep available such number of shares as
will be sufficient to satisfy the requirements of this Agreement.
e. WITHHOLDING TAXES. In order to permit the Company to
comply with all applicable federal or state income tax laws or regulations, the
Company may take such action as it deems appropriate to insure that, if
necessary, all applicable federal or state payroll, income or other taxes are
withheld from any amounts payable by the Company to the Participant. If the
Company is unable to withhold such federal and state taxes, for whatever reason,
the Participant hereby agrees to pay to the Company an amount equal to the
amount the Company would otherwise be required to withhold under federal or
state law.
f. 2004 EQUITY INCENTIVE PLAN. The Award evidenced by this
Agreement is granted pursuant to the Plan, a copy of which Plan has been made
available to Participant and is hereby incorporated into this Agreement. This
Agreement is subject to and in all respects limited and conditioned as provided
in the Plan. The Plan governs this Agreement and, in the event of any questions
as to the construction of this Agreement or in the event of a conflict between
the Plan and this Agreement, the Plan shall govern, except as the Plan otherwise
provides.
g. LOCKUP PERIOD LIMITATION. Participant agrees that in the
event the Company advises Participant that it plans an underwritten public
offering of its Common Stock in compliance with the Securities Act of 1933, as
amended, and that the underwriter(s) seek to impose restrictions under which
certain shareholders may not sell or contract to sell or grant any option to buy
or otherwise dispose of part or all of their stock purchase rights of the
underlying Common Stock, Participant hereby agrees that for a period not to
exceed 180 days from the prospectus, Participant will not sell or contract to
sell or grant an option to buy or otherwise dispose of this Agreement or any of
the underlying shares of Common Stock without the prior written consent of the
underwriter(s) or its representative(s).
h. BLUE SKY LIMITATION. Notwithstanding anything in this
Agreement to the contrary, in the event the Company makes any public offering of
its securities and determines, in its sole discretion, that it is necessary to
reduce the number of issued but unexercised stock purchase rights so as to
comply with any state securities or Blue Sky law limitations with respect
thereto, the Board of Directors of the Company shall accelerate the vesting of
this restricted stock award, provided that the Company gives Participant 15
days' prior written notice of such acceleration. Notice shall be deemed given
when delivered personally or when deposited in the United States
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mail, first class postage prepaid and addressed to Participant at the address of
Participant on file with the Company.
i. ACCOUNTING COMPLIANCE. Participant agrees that, if a
merger, reorganization, liquidation or other "transaction" as defined in Section
13 of the Plan occurs, and Participant is an "affiliate" of the Company or any
Affiliate (as defined in applicable legal and accounting principles) at the time
of such transaction, Participant will comply with all requirements of Rule 145
of the Securities Act of 1933, as amended, and the requirements of such other
legal or accounting principles, and will execute any documents necessary to
ensure such compliance.
j. STOCK LEGEND. The Administrator may require that the
certificates for any shares of Common Stock purchased by Participant (or, in the
case of death, Participant's successors) shall bear an appropriate legend to
reflect the restrictions of Paragraph 4(b) and Paragraphs 4(g) through 4(j) of
this Agreement; provided, however, that failure to so endorse any of such
certificates shall not render invalid or inapplicable Paragraph 4(j).
k. SCOPE OF AGREEMENT. This Agreement shall bind and inure
to the benefit of the Company, its Affiliates and its successors and assigns and
Participant and any successor or successors of Participant permitted by this
Agreement.
l. ARBITRATION. Any dispute arising out of or relating to
this Agreement or the alleged breach of it, or the making of this Agreement,
including claims of fraud in the inducement, shall be discussed between the
disputing parties in a good faith effort to arrive at a mutual settlement of any
such controversy. If, notwithstanding, such dispute cannot be resolved, such
dispute shall be settled by binding arbitration. Judgment upon the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The arbitrator shall be a retired state or federal judge or an attorney
who has practiced securities or business litigation for at least 10 years. If
the parties cannot agree on an arbitrator within 20 days, any party may request
that the chief judge of the District Court of Hennepin County, Minnesota, select
an arbitrator. Arbitration will be conducted pursuant to the provisions of this
Agreement, and the commercial arbitration rules of the American Arbitration
Association, unless such rules are inconsistent with the provisions of this
Agreement. Limited civil discovery shall be permitted for the production of
documents and taking of depositions. Unresolved discovery disputes may be
brought to the attention of the arbitrator who may dispose of such dispute. The
arbitrator shall have the authority to award any remedy or relief that a court
of this state could order or grant; provided, however, that punitive or
exemplary damages shall not be awarded. The arbitrator may award to the
prevailing party, if any, as determined by the arbitrator, all of its costs and
fees, including the arbitrator's fees, administrative fees, travel expenses,
out-of-pocket expenses and reasonable attorneys' fees. Unless otherwise agreed
by the parties, the place of any arbitration proceedings shall be Hennepin
County, Minnesota.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
SCANNER TECHNOLOGIES CORPORATION
By:
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Its:
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Participant
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