EYETEL IMAGING, INC. RESTRICTED STOCK AGREEMENT
EYETEL
IMAGING, INC.
AGREEMENT
(the “Agreement”) made as of the ____ day of _______, 20__, by and between
EYETEL IMAGING, INC., a Delaware corporation (the “Company”), and
_________________ ( the “Executive”) pursuant to the EyeTel Imaging, Inc. 2007
Long-Term Incentive Plan (the “Plan”).
1. Restricted
Stock Award.
The
Company has awarded ______ shares of its common stock (the “Shares”) to the
Executive subject to the provisions of this Agreement and the Plan.
Inconsistencies between this Agreement and the Plan will be governed by the
applicable provisions of the Plan. The Executive acknowledges receipt of a
copy
of the Plan.
2. Vesting.
(a) General.
Except
as otherwise provided, the Shares will become vested (if at all) [upon the
_______ anniversary of the date of this Agreement/in accordance with the
following vesting schedule/upon attainment of the performance objectives set
forth below], provided the Executive remains continuously employed by the
Company or a subsidiary of the Company through the applicable vesting date[s].
(b) Accelerated
Vesting.
Any
outstanding unvested Shares will become vested (1) upon the termination of
the
Executive’s employment with the Company and its subsidiaries by reason of the
Executive’s death or “disability” (as defined below), or (2) immediately prior
to the occurrence of a “change in control” (as defined in the Plan), provided
that the Executive remains in the continuous employ of the Company or a
subsidiary until, or is terminated by the Company or a subsidiary within six
months before, such change in control, other than a termination for “cause” (as
defined below).
(c) Definitions.
(i) The
term
“disability” means the inability of the Executive to perform the principal
duties of the Executive’s employment by reason of a physical or mental illness
or injury that is expected to last indefinitely or result in death, as
determined by a duly licensed physician selected by the Company. The term
“change in control” means a change in the ownership or effective control of the
Company or in the ownership of a substantial portion of the assets of the
Company within the meaning of Section 409A of the Internal Revenue Code of
1986.
(ii) The
term
“cause” means (1) the Executive’s conviction of or plea of nolo contendre to a
felony, (2) the Executive’s willful and repeated failure or refusal to perform
the duties and responsibilities of the Executive’s employment or other service
with the Company or any subsidiary, (3) the Executive’s embezzlement or
commission of an act of fraud against the Company, (4) any other act or failure
to act which has a material adverse effect on the ability of the Executive
to
carry out the duties and responsibilities of the Executive’s employment or other
service for the Company or a subsidiary or which has or is reasonably likely
to
have an adverse effect on the business or assets of the Company or any
subsidiary, all as reasonably determined by the Committee.
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3. Termination
of Employment or Service.
Except
as otherwise provided in Section 2 above, in the event of the termination of
the
Executive’s employment with the Company and its subsidiaries, the Executive’s
interest in any unvested Shares then held by the Executive will be immediately
forfeited and such Shares will be canceled on the books of the Company.
4. Restrictions
on Transfer.
Unvested Shares issued to the Executive under this Agreement may not be sold,
assigned, transferred, pledged, hypothecated, encumbered or dispose of in any
way, whether by operation of law or otherwise, and may not be subjected to
execution, attachment or similar process, and any attempt to do so will be
null
and void.
5. Dividends
and Voting Rights.
If cash
dividends are paid by the Company with respect to its common stock, the amount
of the dividends payable with respect to unvested Shares covered by this
Agreement will be credited to a bookkeeping account in the name of the Executive
and will be paid by the Company to the Executive if, as and when the
corresponding Shares become vested. If Shares covered by this Agreement are
forfeited, then any dividends with respect to such Shares that are credited
to
the Executive’s account will thereupon be forfeited as well. The Executive will
be entitled to exercise voting rights with respect to the unvested Shares held
by the Executive under this Agreement.
6. Issuance
of Shares.
The
Executive is the record owner of the Shares on the Company’s books, subject to
the vesting conditions and restrictions set forth in this Agreement. By
executing this Agreement, the Executive expressly authorizes the Company to
cancel, reacquire, retire or retain, at its election, any unvested Shares if
and
when they are forfeited in accordance with this Agreement. The Executive will
execute and deliver such other documents and take such other actions, if any,
as
the Company may reasonably request in order to evidence such action with respect
to any unvested Shares that are forfeited. If, as and when Shares become vested,
then, subject to the satisfaction of applicable withholding and other legal
requirements, the vested Shares will no longer be subject to the transfer
restrictions contained in this Agreement and the Company’s books will be updated
accordingly. For the avoidance of doubt, if the Shares becomes vested as a
result of a change in control, the Executive will be entitled to participate
in
the change in control transaction (if any) with respect to such Shares (less
any
Shares withheld to satisfy applicable tax withholding) on the same basis and
in
the same manner as other stockholders of the Company. The Company may place
such
legends or notations on certificates or its books relating to unvested Shares
as
it deems appropriate in connection with the proper administration and
enforcement of the vesting conditions and transfer restrictions imposed by
this
Agreement.
7. Tax
Withholding.
By
executing this Agreement, the Executive authorizes the Company to deduct from
any compensation or any other payment of any kind (including withholding the
issuance of Shares) due to the Executive the amount of any federal, state,
local
or foreign taxes required by law to be withheld as a result of the grant or
vesting of the Shares in whole or in part; provided, however, that the value
of
the Shares and/or cash withheld may not exceed the statutory minimum withholding
amount required by law. In lieu of such deduction, the Company may condition
the
issuance of a certificate or other evidence of ownership for vested Shares
upon
the Executive’s payment of cash to the Company or making other arrangements
satisfactory to the Committee for the payment of such withholding obligation.
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8. Capital
Changes.
In the
event of a stock dividend, stock split, spin off or other recapitalization
with
respect to the outstanding shares of the Company’s common stock, the Company
will make such adjustments to the Shares covered by this Agreement as are made
to outstanding shares of Company stock that are not covered by this Agreement
and any securities or other property issued or distributed by the Company in
connection with any such capital change will be subject to the same vesting
conditions and transfer restrictions applicable to the Shares in respect of
which such property or other securities will have been issued or distributed.
9. No
Service or Other Rights.
Nothing
contained in the Plan or this Agreement shall confer upon the Executive any
right with respect to the continuation of the Executive’s employment or other
service with the Company or its subsidiaries or interfere in any way with the
right of the Company and its subsidiaries at any time to terminate such
employment or other service or to otherwise modify the terms and conditions
of
the Executive’s employment or other service. Compensation attributable to the
award of Shares shall not be taken into account as compensation for purposes
of
determining the Executive’s benefits or entitlements under any employee pension,
savings, group insurance, severance or other benefit plan or arrangement in
which the Executive participates, unless and except to the extent otherwise
specifically provided by such plan or arrangement.
10. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware, without regard to its principles of conflict of
laws.
11. Miscellaneous.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which shall constitute one and the same
instrument. This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and permitted assigns.
This Agreement constitutes the entire agreement between the parties with respect
to the subject matter hereof and may not be modified other than by written
instrument executed by the parties.
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IN
WITNESS WHEREOF, this Agreement has been executed as of the date first above
written.
EYETEL
IMAGING, INC.
By:__________________________________
Title:
_____________________________________
Executive
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