THE KEYW HOLDING CORPORATION
Grant
No.: _____
THE
KEYW HOLDING CORPORATION
2009
STOCK INCENTIVE PLAN
The KEYW
Holding Corporation, a Maryland corporation (the “Company”), hereby grants
shares of its common stock (the “Stock”), to the Grantee named below, subject to
the vesting conditions set forth in the attachment. Additional terms and
conditions of the grant are set forth in this cover sheet and in the attachment
(collectively, the “Agreement”) and in the Company’s 2009 Stock Incentive Plan
(the “Plan”).
Grant
Date: _____________
Name of
Grantee: _____________
Grantee's
Identification Number: ______________
Number of
Shares of Stock Covered by Xxxxx: ________
Purchase
Price per Share of Stock: $____________
Vesting
Schedule:
By
signing this cover sheet, you agree to all of the terms and conditions described
in this Agreement and in the Plan, a copy of which is also
attached. You acknowledge that you have carefully reviewed the Plan,
and agree that the Plan will control in the event any provision of this
Agreement should appear to be inconsistent Certain capitalized terms
used in this Agreement are defined in the Plan, and have the meaning set forth
in the Plan.
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Grantee:
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(Signature)
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Company:
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(Signature)
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Title:
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Attachment
This is not a stock certificate or a
negotiable instrument.
THE
KEYW HOLDING CORPORATION
2009
STOCK INCENTIVE PLAN
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Restricted
Stock/
Nontransferability
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This
grant is an award of Stock in the number of shares set forth on the cover
sheet, at the purchase price set forth on the cover sheet, and subject to
the vesting conditions described below ("Restricted Stock"). To
the extent not yet vested, your Restricted Stock may not be transferred,
assigned, pledged or hypothecated, whether by operation of law or
otherwise, nor may the Restricted Stock be made subject to execution,
attachment or similar process.
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Vesting
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The
Company will issue your Restricted Stock in your name as of the Xxxxx
Date.
Your
right to the Stock under this Restricted Stock Agreement vests per the
vesting schedule as shown on the cover sheet provided you then continue in
Service. The resulting aggregate number of vested shares of
Stock will be rounded to the nearest whole number, and you cannot vest in
more than the number of shares covered by this
grant.
No
additional shares of Stock will vest after your Service has terminated for
any reason, provided, however, that
if your Service is terminated on account of your death or Disability, any
unvested shares of Stock will become fully vested.
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Forfeiture
of Unvested
Stock
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Except
as provided in this Agreement, in the event that your Service terminates
for any reason, you will forfeit to the Company all of the shares of Stock
subject to this grant that have not yet vested.
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Issuance
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The
issuance of the Stock under this grant shall be evidenced in such a manner
as the Company, in its discretion, will deem appropriate, including,
without limitation, book-entry, registration or issuance of one or more
Stock certificates, with any unvested Restricted Stock bearing the
appropriate restrictions imposed by this Agreement. As your
interest in the Stock vests as described above, the recordation of the
number of shares of Restricted Stock attributable to you will be
appropriately modified. To the extent certificates are issued
with regard to unvested Stock, such certificates will be held in escrow
with the Secretary of the Company while the Stock remains
unvested.
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2
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Withholding
Taxes
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You
agree, as a condition of this grant, that you will make acceptable
arrangements, as determined by the Company in its sole discretion, to pay
any withholding or other taxes that may be due as a result of the payment
of dividends or the vesting of Stock acquired under this
grant. In the event that the Company determines that any
federal, state, local or foreign tax or withholding payment is required
relating to the payment of dividends or the vesting of shares arising from
this grant, the Company shall have the right to require such payments from
you, or withhold such amounts from other payments due to you from the
Company or any Affiliate (including by repurchasing vested shares of Stock
under this Agreement).
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Section
83(b)
Election
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Under
Section 83 of the Internal Revenue Code of 1986, as amended (the "Code"),
the difference between the purchase price paid for the shares of Stock and
their fair market value on the date any forfeiture restrictions applicable
to such shares lapse will be reportable as ordinary income at that
time. For this purpose, "forfeiture restrictions" include the
forfeiture as to unvested Stock described above. You may elect
to be taxed at the time the shares are acquired, rather than when such
shares cease to be subject to such forfeiture restrictions, by filing an
election under Section 83(b) of the Code with the Internal Revenue Service
within thirty (30) days after the Grant Date. You will have to
make a tax payment to the extent the purchase price is less than the fair
market value of the shares on the Grant Date. No tax payment
will have to be made to the extent the purchase price is at least equal to
the fair market value of the shares on the Grant Date. The form
for making this election is attached as Exhibit A hereto. Failure to
make this filing within the thirty (30) day period will result in the
recognition of ordinary income by you (in the event the fair market value
of the shares as of the vesting date exceeds the purchase price) as the
forfeiture restrictions lapse.
YOU
ACKNOWLEDGE THAT IT IS YOUR SOLE RESPONSIBILITY, AND NOT THE COMPANY'S, TO
FILE A TIMELY ELECTION UNDER SECTION 83(b), EVEN IF YOU REQUEST THE
COMPANY OR ITS REPRESENTATIVES TO MAKE THIS FILING ON YOUR
BEHALF. YOU ARE RELYING SOLELY ON YOUR OWN ADVISORS WITH
RESPECT TO THE DECISION AS TO WHETHER OR NOT TO FILE ANY 83(b)
ELECTION.
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3
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Market
Stand-off
Agreement
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In
connection with any underwritten public offering by the Company of its
equity securities pursuant to an effective registration statement filed
under the Securities Act of 1933 (the "Securities Act"), including the
Company’s initial public offering, you agree not to sell, make any short
sale of, loan, hypothecate, pledge, grant any option for the purchase of,
or otherwise dispose or transfer for value or agree to engage in any of
the foregoing transactions with respect to any shares of vested Stock
without the prior written consent of the Company or its underwriters, for
such period of time after the effective date of such registration
statement as may be requested by the Company or the underwriters (not to
exceed 180 days in length).
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Investment
Representation
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You
hereby agree and represent, as a condition of this grant of Restricted
Stock, that (i) you are acquiring the shares of Restricted Stock for
investment for your own account and not with a view to, or intention of,
or otherwise for resale in connection with, any distribution to any person
or entity, (ii) neither the offer nor sale of the shares of
Restricted Stock hereunder, or the shares of Restricted Stock themselves,
have been registered under the Securities Act or registered or qualified
under any applicable state securities laws and that the shares of
Restricted Stock are being offered and sold to you by reason of and in
reliance upon a specific exemption from the registration provisions of the
Securities Act and exemptions from registration or qualification
provisions of such applicable state or other jurisdiction's securities
laws which depend upon, among other things, the bona fide nature of the
investment intent as expressed herein and the truth and accuracy of your
representations, warranties, agreements, acknowledgments and
understandings as set forth herein, (iii) no public market now exists for
any of the securities issued by the Company and that there can be no
assurance that a public market will ever exist for the shares of
Restricted Stock, (iv) you must, and are able to, bear the economic risk
of your investment in the shares of Restricted Stock for an indefinite
period of time and can afford a complete loss of your investment in the
shares of Restricted Stock, (v) you are sophisticated in financial matters
and have such knowledge and experience in financial and business matters
as to be capable of evaluating the risks and benefits of your investment
in the shares of Restricted Stock, (vi) your principal place of residence
is in the State of ___________, (vii) you are as of the date hereof
an "accredited investor" as such term is defined under Rule 501 of the
Securities Act, and (viii) the Company has made available to you all
documents that you have requested relating to the Company, the shares of
Restricted Stock and your purchase of the shares of Restricted Stock, and
you have had an opportunity to ask questions and receive answers
concerning the Company and the terms and conditions of the offering and
sale of the shares of Restricted Stock pursuant to this Restricted Stock
Agreement and have had full access to such other information concerning
the Company and the shares of Restricted Stock as you deemed necessary or
desirable.
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4
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The
Company's Right of
First
Refusal
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In
the event that you propose to sell, pledge or otherwise transfer to a
third party any vested Stock acquired under this Agreement, or any
interest in such Stock, the Company shall have the “Right of First
Refusal” with respect to all (and not less than all) of such shares of
Stock. If you desire to transfer vested Stock acquired under
this Agreement, you must give a written “Transfer Notice” to the Company
describing fully the proposed transfer, including the number of shares
proposed to be transferred, the proposed transfer price and the name and
address of the proposed transferee.
The
Transfer Notice shall be signed both by you and by the proposed new
transferee and must constitute a binding commitment of both parties to the
transfer of the shares. The Company shall have the right to
purchase all, and not less than all, of the shares of Stock on the terms
of the proposal described in the Transfer Notice (subject, however, to any
change in such terms permitted in the next paragraph) by delivery of a
notice of exercise of the Right of First Refusal within thirty (30) days
after the date when the Transfer Notice was received by the
Company.
If
the Company fails to exercise its Right of First Refusal within thirty
(30) days after the date when it received the Transfer Notice, you may,
not later than ninety (90) days following receipt of the Transfer Notice
by the Company, conclude a transfer of the Stock subject to the Transfer
Notice on the terms and conditions described in the Transfer
Notice. Any proposed transfer on terms and conditions different
from those described in the Transfer Notice, as well as any subsequent
proposed transfer by you, shall again be subject to the Right of First
Refusal and shall require compliance with the procedure described in the
paragraph above. If the Company exercises its Right of First
Refusal, the parties shall consummate the sale of the Stock on the terms
set forth in the Transfer Notice within sixty (60) days after the date
when the Company received the Transfer Notice (or within such longer
period as may have been specified in the Transfer Notice); provided,
however, that in the event the Transfer Notice provided that payment for
the Stock was to be made in a form other than lawful money paid at the
time of transfer, the Company shall have the option of paying for the
Stock with lawful money equal to the present value of the consideration
described in the Transfer
Notice.
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5
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In
the case of any purchase of Stock under this Right of First Refusal, at
the option of the Company, the Company may pay you the purchase price in
three or fewer annual installments. Interest shall be credited
on the installments at the applicable federal rate (as determined for
purposes of Section 1274 of the Code) in effect on the date on which
the purchase is made. The Company shall pay at least one-third
of the total purchase price each year, plus interest on the unpaid
balance, with the first payment being made on or before the 60th
day after the purchase.
The
Company’s rights under this subsection shall be freely assignable, in
whole or in part, shall inure to the benefit of its successors and assigns
and shall be binding upon any transferee of the shares of
Stock.
The
Company’s Right of First Refusal shall terminate if the Stock is listed on
an established national or regional stock exchange, is admitted for
quotation on The Nasdaq Stock Market, Inc., or is publicly traded in an
established securities market.
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Repurchase
Option for
Vested
Stock
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In
the event that your Service terminates for any reason, the Company shall
have the option to purchase all of those shares of vested Stock that you
have. The Company will notify you of its intention to purchase
such shares, and will consummate the purchase within one year (or ninety
(90) days to the extent required by applicable law) of your termination of
Service. If the Company exercises its option to purchase such shares, the
purchase price shall be the Fair Market Value of those shares on the date
the Company gives you notice of its intent to exercise its repurchase
option (or in the event the Company repurchases your Stock within ninety
(90) days of your termination of Service, the purchase price shall be the
Fair Market Value of those shares on the date of your termination of
Service). The Company's option to repurchase vested Stock shall
terminate in the event that the Stock is listed on an established national
or regional stock exchange, is admitted for quotation on The Nasdaq Stock
Market, Inc., or is publicly traded in an established securities
market.
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Retention
Rights
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This
Agreement does not give you the right to be retained or employed by the
Company (or any of its Affiliates) in any capacity. The Company
(and any Affiliates) reserve the right to terminate your Service at any
time and for any
reason.
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6
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Shareholder
Rights
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You
have the right to vote the Restricted Stock and to receive any dividends
declared or paid on such stock. Any distributions you receive
as a result of any stock split, stock dividend, combination of shares or
other similar transaction shall be deemed to be a part of the Restricted
Stock and subject to the same conditions and restrictions applicable
thereto. The
Company may in its sole discretion require any dividends paid on the
Restricted Stock to be reinvested in shares of Stock, which the Company
may in its sole discretion deem to be a part of the shares of Restricted
Stock and subject to the same conditions and restrictions applicable
thereto. Except as described in the Plan, no adjustments are
made for dividends or other rights if the applicable record date occurs
before your stock certificate is issued.
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Forfeiture
of Rights
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If
you should take actions in competition with the Company, the Company shall
have the right to cause a forfeiture of your unvested Restricted Stock,
and with respect to those shares of Restricted Stock vesting during the
period commencing twelve (12) months prior to your termination of Service
with the Company due to taking actions in competition with the Company,
the right to cause a forfeiture of those vested shares of
Stock.
Unless
otherwise specified in an employment or other agreement between the
Company and you, you take actions in competition with the Company if you
directly or indirectly, own, manage, operate, join or control, or
participate in the ownership, management, operation or control of, or are
a proprietor, director, officer, stockholder, member, partner or an
employee or agent of, or a consultant to any business, firm, corporation,
partnership or other entity which competes with any business in which the
Company or any of its Affiliates is engaged during your employment or
other relationship with the Company or its Affiliates or at the time of
your termination of Service.
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Adjustments
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In
the event of a stock split, a stock dividend or a similar change in the
Company stock, the number of shares covered by this grant may be adjusted
(and rounded down to the nearest whole number) pursuant to the
Plan. Your Restricted Stock shall be subject to the terms of
the agreement of merger, liquidation or reorganization in the event the
Company is subject to such corporate activity in accordance with the terms
of the Plan.
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7
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Legends
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All
certificates representing the Stock issued in connection with this grant
shall, where applicable, have endorsed thereon the following
legends:
“THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS
ON TRANSFER AND OPTIONS TO PURCHASE SUCH SHARES SET FORTH IN AN AGREEMENT
BETWEEN THE COMPANY AND THE REGISTERED HOLDER, OR HIS OR HER PREDECESSOR
IN INTEREST. A COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE
OF THE COMPANY AND WILL BE FURNISHED UPON WRITTEN REQUEST TO THE SECRETARY
OF THE COMPANY BY THE HOLDER OF RECORD OF THE SHARES REPRESENTED BY THIS
CERTIFICATE.”
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“THE
SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION, AND MAY NOT BE SOLD, PLEDGED, OR OTHERWISE TRANSFERRED
WITHOUT AN EFFECTIVE REGISTRATION OR QUALIFICATION THEREOF UNDER SUCH ACT
AND SUCH APPLICABLE STATE OR OTHER JURISDICTION'S SECURITIES LAWS OR AN
OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH
REGISTRATION AND QUALIFICATION IS NOT REQUIRED.”
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Applicable
Law
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This
Agreement will be interpreted and enforced under the laws of the State of
Maryland, other than any conflicts or choice of law rule or principle that
might otherwise refer construction or interpretation of this Agreement to
the substantive law of another jurisdiction.
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The
Plan
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The
text of the Plan is incorporated in this Agreement by
reference.
This
Agreement and the Plan constitute the entire understanding between you and
the Company regarding this grant of Restricted Stock. Any prior
agreements, commitments or negotiations concerning this grant are
superseded.
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Other
Agreements
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You
agree, as a condition of this grant of Restricted Stock, that you will
execute such document(s) as necessary to become a party to any shareholder
agreement or voting trust as the Company may
require.
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8
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Data
Privacy
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In
order to administer the Plan, the Company may process personal data about
you. Such data includes but is not limited to the information
provided in this Agreement and any changes thereto, other appropriate
personal and financial data about you such as home address and business
addresses and other contact information, payroll information and any other
information that might be deemed appropriate by the Company to facilitate
the administration of the Plan.
By
accepting this grant, you give explicit consent to the Company to process
any such personal data. You also give explicit consent to the
Company to transfer any such personal data outside the country in which
you work or are employed, including, with respect to non-U.S. resident
Grantees, to the United States, to transferees who shall include the
Company and other persons who are designated by the Company to administer
the Plan.
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Consent
to Electronic
Delivery
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The
Company may choose to deliver certain statutory materials relating to the
Plan in electronic form. By accepting this grant you agree that
the Company may deliver the Plan prospectus and the Company’s annual
report (to the extent required) to you in an electronic
format. If at any time you would prefer to receive paper copies
of these documents, as you are entitled to, the Company would be pleased
to provide copies. Please contact Xxx XxXxxxxx to request paper
copies of these
documents.
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By signing the cover sheet of this
Agreement, you agree to all of the terms and conditions
described above and in the Plan.
9
EXHIBIT
A
ELECTION
UNDER SECTION 83(b) OF
THE
INTERNAL REVENUE CODE
The
undersigned hereby makes an election pursuant to Section 83(b) of the Internal
Revenue Code with respect to the property described below and supplies the
following information in accordance with the regulations promulgated
thereunder:
1. The
name, address and social security number of the undersigned:
Name:
Address:
Social
Security No. :
2. Description
of property with respect to which the election is being made:
__________
shares of common stock, par value $.001 per share, of The KEYW Holding
Corporation, a Maryland corporation, (the “Company”).
3. The
date on which the property was transferred is ___________.
4. The
taxable year to which this election relates is calendar year _____.
5. Nature
of restrictions to which the property is subject:
The shares of stock are subject to the provisions of a Restricted Stock
Agreement between the undersigned and the Company. The shares of
stock are subject to forfeiture under the terms of the Agreement.
6. The
fair market value of the property at the time of transfer (determined without
regard to any lapse restriction) was $__________ per share, for a total of
$__________.
7. The
amount paid by taxpayer for the property was $__________.
8. A
copy of this statement has been furnished to the Company.
Dated: _____________
_____________________________________
Taxpayer’s
Signature
_____________________________________
Taxpayer’s
Printed Name
PROCEDURES
FOR MAKING ELECTION
UNDER INTERNAL REVENUE CODE SECTION 83(b)
The following procedures must be followed with respect
to the attached form for making an election under Internal Revenue Code section
83(b) in order for the election to be effective:1
1. You
must file one copy of the completed election form with the IRS Service Center
where you file your federal income tax returns within 30 days after the
Grant Date of your Restricted Stock.
2. At
the same time you file the election form with the IRS, you must also give a copy
of the election form to the Secretary of the Company.
3. You
must file another copy of the election form with your federal income tax return
(generally, Form 1040) for the taxable year in which the stock is transferred to
you.
1 Whether
or not to make the election is your decision and may create tax consequences for
you. You are advised to consult your tax advisor if you are unsure
whether or not to make the election.
