LAM RESEARCH CORPORATION 1997 Stock Incentive Plan Restricted Stock Unit Award Agreement (Non-U.S. Agreement I-A)
EXHIBIT 10.2
XXX RESEARCH CORPORATION
1997 Stock Incentive Plan
Restricted Stock Unit Award Agreement
(Non-U.S. Agreement I-A)
1997 Stock Incentive Plan
Restricted Stock Unit Award Agreement
(Non-U.S. Agreement I-A)
This Restricted Stock Unit Award Agreement is entered into between Xxx Research Corporation, a
Delaware corporation (the “Company”), and (the “Participant”). This
Agreement (the “Agreement”) is effective as of
,
200 (the “Grant Date”).
Restricted Stock Units are granted to the Participant pursuant to the terms of the 1997 Stock
Incentive Plan (the “Plan”) and are subject to the terms and conditions set forth in this Agreement
and the Plan, which is incorporated herein by reference. Capitalized terms used but not defined in
this Agreement shall have the meaning specified in the Plan.
NOW, THEREFORE, it is hereby agreed as follows:
1. Award of Restricted Stock Units. The Company has granted to the Participant
( ) Restricted Stock Units. The Restricted Stock Units represent an
unfunded, unsecured promise by the Company to deliver shares of Company Stock.
2. Vesting. Subject to the terms and conditions of this Agreement and provided that the
Participant continues to provide Service (as defined in Section 3 below) to the Company (or any
Parent Corporation or Subsidiary), 100% of the Restricted Stock Units will vest and become payable
in shares of Company Stock (as set forth in Section 4) on [INSERT DATE] (the “Vesting Date”).
3. Effect of Termination of Service or Leave of Absence. If the Participant’s Service is
terminated by the Participant or by the Company or a Subsidiary for any reason, including the
Participant’s death or Disability before all Restricted Stock Units have vested, the unvested
Restricted Stock Units shall be forfeited by the Participant. As of the 31st (or 91st
if reemployment is guaranteed by statute or contract) day of a leave of absence, vesting of the
Restricted Stock Units will be suspended and vesting credit will no longer accrue, unless otherwise
determined by the Committee or required by contract, statute or applicable local law. If the
Participant returns to Service immediately after the end of an approved leave of absence, vesting
credit shall continue to accrue from that date of continued Service. For purposes of this
Agreement, “Service” shall mean the performance of services for the Company (or any Parent
Corporation or Subsidiary) in the capacity of an employee, officer, consultant, or director (which
includes non-employee and employee directors).
4. Form and Timing of Payment. Subject to Section 6 of this Agreement, on the Vesting
Date, the Restricted Stock Units shall automatically be converted into unrestricted shares of
Company Stock. Such shares will be issued to the Participant (as evidenced by the appropriate
entry in the books of the Company or a duly authorized transfer agent of the Company) as soon as
practicable after the end of the Restricted Period, but in any event, within the period ending on
the later to occur of the date that is 2 1/2 months from the end of (i) the Participant’s tax year
that includes the Vesting Date, or (ii) the Company’s tax year that includes the Vesting Date.
5. Dividends and Dividend Equivalent Payments. At the Company’s sole discretion, the
Participant may be entitled to receive cash payments equal to any cash dividends declared by the
Board on the Company’s Stock and other distributions paid with respect to a number of shares of
Company Stock that corresponds to the number of Restricted Stock Units each Participant holds. If
any such dividends or
distributions are paid in shares of Company Stock, the Fair Market Value of such shares of
Company Stock on the dividend payment date shall be converted into Restricted Stock Units, and such
Restricted Stock Units shall be subject to the same forfeiture restrictions and restrictions on
transferability that apply to the Restricted Stock Units with respect to which they relate.
6.
Tax Withholding Obligations. Regardless of any action the Company or the
Participant’s actual employer (the “Employer”) takes with respect to any or all income tax
(including federal, state and local taxes), social insurance, payroll tax, payment on account or
other tax-related withholding (“Tax-Related Items”), the Participant acknowledges that the ultimate
liability for all Tax-Related Items legally due by the Participant is and remains the Participant’s
responsibility and that the Company and/or the Employer (i) make no representations or undertakings
regarding the treatment of any Tax-Related Items in connection with any aspect of the Restricted
Stock Units, including the grant of the Restricted Stock Units, the vesting of the Restricted Stock
Units, the conversion of the Restricted Stock Units into shares or the receipt of an equivalent
cash payment, the subsequent sale of any shares acquired at vesting and the receipt of any
dividends; and (ii) do not commit to structure the terms of the grant or any aspect of the
Restricted Stock Units to reduce or eliminate the Participant’s liability for Tax-Related Items.
Prior to the issuance of shares upon vesting of Restricted Stock Units or the receipt of an
equivalent cash payment, the Participant shall pay, or make adequate arrangements satisfactory to
the Company or to the Employer (in their sole discretion) to satisfy all withholding and payment on
account obligations of the Company and/or the Employer. In this regard, the Participant authorizes
the Company or the Employer to withhold all applicable Tax-Related Items legally payable by the
Participant from the Participant’s wages or other cash compensation payable to the Participant by
the Company or the Employer or to withhold in one of the following ways, as determined by the
Company: (i) require the Participant to deposit with the Company an amount of cash sufficient to
meet his or her obligation for Tax-Related Items, (ii) sell or arrange for the sale of shares to be
issued on the vesting of Restricted Stock Units to satisfy the withholding or payment on account
obligation, and/or (iii) withhold in shares, provided that the Company or the Employer shall
withhold only the amount of shares necessary to satisfy the minimum withholding amount (or such
higher amount as is allowable without adverse accounting consequences); such withholding will
result in issuance of a lower number of shares to the Participant. If the Participant’s and/or the
Employer’s obligation for Tax-Related Items is satisfied as described in (ii) of this section, the
Company and the Employer will endeavor to sell only the number of shares required to satisfy the
Participant’s and/or the Employer’s obligation for Tax-Related Items; however, the Participant
agrees that the Company and/or the Employer may sell more shares than necessary to cover the
Tax-Related Items and that in such event, the Company will reimburse the Participant for the excess
amount withheld, in cash and without interest. The Participant shall pay to the Company or to the
Employer any amount of Tax-Related Items that the Company or the Employer may be required to
withhold as a result of the Participant’s receipt of Restricted Stock Units, the vesting of
Restricted Stock Units, the receipt of an equivalent cash payment, or the conversion of vested
Restricted Stock Units to shares that cannot be satisfied by the means previously described. The
Company may refuse to deliver shares to the Participant if the Participant fails to comply with his
or her obligation in connection with the Tax-Related Items as described herein. The Participant
hereby consents to any action reasonably taken by the Company or the Employer to meet his or her
obligation for Tax-Related Items.
7.
Restriction on Transferability. During the Restricted Period, neither the
Restricted Stock Units, nor the shares or any beneficial interest therein, may be sold,
transferred, pledged, assigned, or otherwise alienated at any time. Any attempt to do so contrary
to the provisions hereof shall be null and void. Notwithstanding the above, distribution can be
made pursuant to a will, the laws of descent and distribution, intra-family transfer instruments or
to an inter vivos trust.
8. Requirements of Law. The issuance of shares of Company Stock upon vesting of the
Restricted Stock Units shall be subject to compliance by the Company and the Participant with all
applicable requirements of law relating thereto and with all applicable regulations of any stock
exchange (or the Nasdaq National Market, if applicable) on which the Company Stock may be listed
for trading at the time of such issuance. The inability of the Company to
obtain approval from any regulatory body having authority deemed by the Company to be necessary to
the lawful issuance of any Company Stock hereby shall relieve the Company of any liability with
respect to the non-issuance of the Company Stock as to which such approval shall not have been
obtained. The Company, however, shall use its best efforts to obtain all such approvals.
9. Rights as Shareholder. The Participant shall not have voting or any other rights as a
shareholder of the Company with respect to the Restricted Stock Units. Upon settlement of the
Participant’s Restricted Stock Units into shares of Company Stock, (as evidenced by the appropriate
entry on the books of the Company or of a duly authorized transfer agent of the Company), the
Participant will obtain full voting and other rights as a shareholder of the Company.
10. Corporate Transactions/Changes Of Control.
a. In the event of any of the following stockholder-approved transactions (a “Corporate
Transaction”):
| i. | a merger or consolidation in which the Company is not the surviving entity, except for a transaction whose principal purpose is to change the State of the Company’s incorporation, | ||
| ii. | the sale, transfer, or other disposition of all or substantially all of the assets of the Company in liquidation or dissolution, or | ||
| iii. | any “reverse” merger in which the Company is the surviving entity but in which securities possessing more than 50% of the total combined voting power of the Company’s outstanding securities are transferred to holders other than those who owned such voting power immediately before the merger, |
then immediately before the effective date of the Corporate Transaction, each award of Restricted
Stock Units granted under the Plan shall become fully vested (“accelerate”) with respect to the
total number of shares of Company Stock then subject to the Award. However, an Award shall not
accelerate if and to the extent: (i) the Award is, in connection with the Corporate Transaction,
either to be assumed by the successor corporation or parent thereof or to be replaced by an Award
on equivalent terms to acquire shares of the capital stock of the successor corporation or parent
thereof, or (ii) acceleration of the Award is subject to other limitations imposed by the Committee
at the Grant Date. The determination of equivalence under clause (i) above shall be made by the
Committee and shall be final, binding, and conclusive as to all parties.
b. Upon consummation of the Corporate Transaction, all awards of Restricted Stock Units
granted under the Plan shall terminate and cease to be outstanding, except to the extent assumed by
the successor (or surviving) corporation or its parent company.
c. Each award of Restricted Stock Units granted under the Plan that is replaced by an
equivalent award in a Corporate Transaction or that otherwise continues in effect shall be
appropriately adjusted, immediately after the Corporate Transaction, to apply to the number and
class of securities that would have been issued in the Corporate Transaction to an actual holder of
the number of shares of Company Stock that were subject to the Award immediately before the
Corporate Transaction. Appropriate adjustment shall also be made to the price payable per share,
if any; provided that the aggregate price payable for such securities shall remain the same. In
addition, the class and number of securities available for issuance under the Plan following the
consummation of the Corporate Transaction shall be appropriately adjusted.
d. The Committee shall have full discretionary authority, exercisable either in advance of, or
at the time of, a Change in Control (as defined below), to provide for the automatic acceleration
of awards of Restricted Stock Units granted under the Plan upon the occurrence of the Change in
Control. The Committee
| shall also have full discretionary authority to condition any such acceleration upon the subsequent termination of the Participant’s Service to the Company (or a Parent Corporation or Subsidiary) within a specified period after the Change in Control. For all purposes of this Plan, a Change in Control shall mean a change in control of the Company of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), whether or not the Company is then subject to such reporting requirement, other than a Corporate Transaction; provided that, without limitation, a Change in Control shall be deemed to have occurred if: |
| i. | any individual, partnership, firm, corporation, association, trust, unincorporated organization or other entity, or any syndicate or group deemed to be a “person” under Section 14(d) (2) of the Exchange Act, is or becomes the “beneficial owner” (as defined in Rule 13d-3 of the General Rules and Regulations under the Exchange Act), directly or indirectly, of securities of the Company representing 40% or more of the combined voting power of the Company’s then-outstanding securities entitled to vote in the election of directors of the Company, pursuant to a tender or exchange offer that the Board does not recommend that the Company’s stockholders accept; or | ||
| ii. | during any period of two consecutive years, individuals who at the beginning of such period constituted the Board and any new members of the Board, whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least three-quarters of the directors then in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute a majority thereof. |
e. The grant of an award of Restricted Stock Units under the Plan shall not affect the right
of the Company to adjust, reclassify, reorganize, or otherwise change its capital or business
structure or to merge, consolidate, dissolve, liquidate, or sell or transfer all or any part of its
business or assets.
11. No Compensation Deferrals. Neither the Plan nor this Agreement is intended to provide
for an elective deferral of compensation that would be subject to Section 409A (“Section 409A”) of
the United States Internal Revenue Code of 1986, as amended (the “Code”). The Company reserves the
right, to the extent the Company deems necessary or advisable in its sole discretion, to
unilaterally amend or modify the Plan and/or this Agreement to ensure that no awards (including
without limitation, the Restricted Stock Units) become subject to the requirements of Section 409A
provided however that the Company makes no representation that this Restricted Stock Unit is not
subject to Section 409A nor makes any undertaking to preclude Section 409A from applying to this
Restricted Stock Unit.
12.
Administration. The Committee shall 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. All actions taken and
all interpretations and determinations made by the Committee shall be final and binding upon the
Participant, the Company, and all other interested persons. No member of the Committee shall be
personally liable for any action, determination, or interpretation made in good faith with respect
to the Plan or this Agreement.
13. Effect on Other Employee Benefit Plans. The value of the Restricted Stock Units
granted pursuant to this Agreement shall not be included as compensation, earnings, salaries, or
other similar terms used when calculating the Participant’s benefits under any employee benefit
plan sponsored by the Company or any Subsidiary, except as such
plan otherwise expressly provides.
The Company expressly reserves its rights to amend, modify, or terminate any of the Company’s or
any Subsidiary’s employee benefit plans.
14. No Employment Rights. The award of the Restricted Stock Units pursuant to this
Agreement shall not give the Participant any right to continued Service with the Company or a
Subsidiary and shall not interfere with the ability of the Employer to terminate the Participant’s
Service with the Company at any time with or without cause.
15. Nature of the Grant. In accepting the Restricted Stock Unit, the Participant
acknowledges that:
a. the Plan is established voluntarily by the Company, it is discretionary in nature and may
be modified, amended, suspended or terminated by the Company at any time, unless otherwise provided
in the Plan and this Agreement;
b. the grant of Restricted Stock Units is voluntary and occasional and does not create any
contractual or other right to receive future awards of Restricted Stock Units, or benefits in lieu
of Restricted Stock Units even if Restricted Stock Units have been awarded repeatedly in the past;
c. all decisions with respect to future grants of Restricted Stock Units, if any, will be at
the sole discretion of the Company;
d. the Participant’s participation in the Plan is voluntary;
e. Restricted Stock Units are an extraordinary item that do not constitute compensation of any
kind for services of any kind rendered to the Company or to the Employer, and Restricted Stock
Units are outside the scope of the Participant’s employment contract, if any;
f.
Restricted Stock Units are not part of normal or expected compensation or salary for any
purpose, including, but not limited to, calculation of any overtime, severance, resignation,
termination, redundancy, end of service payments, bonuses, long-service awards, pension or
retirement benefits or similar payments and in no event should be considered as compensation for,
or relating in any way to, past services for the Company or the Employer;
g.
in the event that the Participant is not an employee of the Company, the grant of
Restricted Stock Units will not be interpreted to form an employment contract or relationship with
the Company; and furthermore, the grant of Restricted Stock Units will not be interpreted to form
an employment contract with the Employer or any Subsidiary or affiliate of the Company;
h.
the future value of the underlying shares of Company Stock is unknown and cannot be
predicted with certainty;
i. if the Participant receives shares of Company Stock upon vesting of the Restricted Stock
Units, the value of such Shares may increase or decrease in value;
j. in consideration of the grant of Restricted Stock Units, no claim or entitlement to
compensation or damages arises from termination of the Restricted Stock Units or diminution in
value of the Restricted Stock Units or shares received upon vesting of Restricted Stock Units
resulting from termination of the Participant’s Service to the Company or the Employer (for any
reason whatsoever and whether or not in breach of local labor laws) and the Participant irrevocably
releases the Company and the Employer from any such claim that may arise; if, notwithstanding the
foregoing, any such claim is found by a court of competent jurisdiction to have arisen, then, by
signing this Agreement, the Participant shall be deemed irrevocably to have waived his or her
entitlement to pursue such claim;
k.
further, in consideration of the grant of Restricted Stock Units, no claim or entitlement
to compensation or damages arises if, in satisfying the Participant’s (and/or the Employer’s)
obligation for Tax-
further, in consideration of the grant of Restricted Stock Units, no claim or entitlement
to compensation or damages arises if, in satisfying the Participant’s (and/or the Employer’s)
obligation for Tax-Related Items pursuant to Section 6 of this Agreement, the Company and/or the
Employer withholds an amount in excess of the amount legally required to be withheld, and the
Participant irrevocably releases the Company and the Employer from any such claim that may arise;
if, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen, then, by signing this Agreement, the
Participant shall be deemed irrevocably to have waived his or her entitlement to pursue such claim
or damages; and
l. in the event of termination of the Participant’s Service (whether or not in breach of local
labor laws), the Participant’s right to receive Restricted Stock Units and vest under the Plan, if
any, will terminate effective as of the date that the Participant is no longer actively providing
Service to the Company and will not be extended by any notice period mandated under local law
(e.g., active Service would not include a period of “garden leave” or similar period pursuant to
local law); furthermore, in the event of termination of Service (whether or not in breach of local
labor laws), the Participant’s right to receive shares pursuant to the Restricted Stock Units after
termination of Service, if any, will be measured by the date on which the Participant no longer
actively provides Service to the Company and will not be extended by any notice period mandated
under local law; the Committee shall have the exclusive discretion to determine when the
Participant is no longer actively providing Service for purposes of the grant of Restricted Stock
Units.
16.
Data Privacy Notice and Consent. The Participant hereby explicitly and
unambiguously consents to the collection, use and transfer, in electronic or other form, of his or
her personal data as described in this Agreement by and among, as applicable, the Employer, the
Company, its Subsidiaries and its affiliates for the exclusive purpose of implementing,
administering and managing the Participant’s participation in
the Plan.
The Participant understands that the Company and the Employer may hold certain personal
information about the Participant, including, but not limited to, the Participant’s name, home
address and telephone number, date of birth, social insurance number or other identification
number, salary, nationality, job title, any shares of stock or directorships held in the Company,
details of all Restricted Stock Units or any other entitlement to shares awarded, canceled, vested,
unvested or outstanding in the Participant’s favor, for the purpose of implementing, administering
and managing the Plan (“Data”).
The Participant understands that Data may be transferred to any third parties assisting in the
implementation, administration and management of the Plan, that these recipients may be located in
the Participant’s country, or elsewhere, and that the recipient’s country may have different data
privacy laws and protections than the Participant’s country. The Participant understands that the
Participant may request a list with the names and addresses of any potential recipients of the Data
by contacting his or her local human resources representative. The Participant authorizes the
recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for
the purposes of implementing, administering and managing his or her participation in the Plan,
including any requisite transfer of such Data as may be required to a broker, escrow agent or other
third party with whom the shares received upon vesting of the Restricted Stock Units may be
deposited. The Participant understands that Data will be held only as long as is necessary to
implement, administer and manage his or her participation in the Plan. The Participant understands
that he or she may, at any time, view Data, request additional information about the storage and
processing of Data, require any necessary amendments to Data or refuse or withdraw the consents
herein, in any case without cost, by contacting in writing his or her local human resources
representative. The Participant understands, however, that refusal or withdrawal of consent may
affect his or her ability to participate in the Plan. For more information on the consequences of
his or her refusal to consent or withdrawal of consent, the Participant understands that he or she
may contact his or her local human resources representative.
17. Amendment of Agreement. This Agreement may be amended only by a writing executed
by the Company and the Participant, which specifically states that it is amending this Agreement.
Notwithstanding the foregoing, this Agreement may be amended unilaterally by the Committee by a
writing which specifically states that it is amending this Agreement, so long as a copy of such
amendment is delivered to the Participant, and provided that no such amendment adversely affects
the rights of the Participant. Limiting the foregoing, the Committee reserves the right to change,
by written notice to the Participant, the provisions of the Restricted Stock Units or this
Agreement in any way it may deem necessary or advisable to carry out the purpose of the
grant as a
result of any change in applicable laws or regulations or any future law, regulation, ruling, or
judicial decision, (including, but in no way limited to, Code Section 409A as described in Section
10 of this Agreement), provided that such amendment shall not impair the rights of the Participant
with respect to outstanding Restricted Stock Units without the Participant’s written consent.
18. Notices. Any notice to be given under the terms of this Agreement to the Company
shall be addressed to the Company in care of its Stock Administrator. Any notice to be given to
the Participant shall be addressed to the Participant at the address listed in the Company’s
records. By a notice given pursuant to this Section, either party may designate a different
address for notices. Any notice shall have been deemed given when actually delivered.
19. Severability. The provisions of this Agreement are severable and if all or any
part of this Agreement or the Plan is declared by any court or governmental authority to be
unlawful or invalid, such unlawfulness or invalidity shall not invalidate any portion of this
Agreement or the Plan not declared to be unlawful or invalid. Any Section of this Agreement (or
part of such a Section) so declared to be unlawful or invalid shall, if possible, be construed in a
manner which will give effect to the terms of such Section or part of a Section to the fullest
extent possible while remaining lawful and valid.
20. Construction. The Restricted Stock Units are being issued pursuant to Section 7
of the Plan and are subject to the terms of the Plan. A copy of the Plan is available upon request
during normal business hours at the principal executive offices of the Company. To the extent that
any provision of this Agreement violates or is inconsistent with an express provision of the Plan,
the Plan provision shall govern and any inconsistent provision in this Agreement shall be of no
force or effect.
21. Electronic Delivery. The Company may, in its sole discretion, decide to deliver
any documents related to the Restricted Stock Units granted under the Plan and participation in the
Plan or future Restricted Stock Units that may be granted under the Plan by electronic means or to
request the Participant’s consent to participate in the Plan by electronic means. The Participant
hereby consents to receive such documents by electronic delivery and, if requested, to agree to
participate in the Plan through an on-line or electronic system established and maintained by the
Company or another third party designated by the Company.
22. Entire Agreement. The Plan is incorporated herein by reference. The Plan and
this Agreement constitute the entire agreement of the Company and the Participant with respect to
the subject matter hereof and supersede in their entirety all prior undertakings and agreements of
the Company and the Participant with respect to the subject matter hereof.
23. Language. If the Participant has received this Agreement or any other document related
to the Plan translated into a language other than English and if the translated version is
different than the English version, the English version will control.
24. Miscellaneous.
a.
The Company has established the Plan voluntarily, it is discretionary in nature and the
Board may terminate, amend, or modify the Plan at any time; provided, however, that no such
termination, amendment, or modification of the Plan may in any way adversely affect the
Participant’s rights under this Agreement, without the Participant’s written approval unless such
termination, amendment, or modification of the Plan is necessary in order to comply with any change
in applicable laws or regulations or any future law, regulation, ruling, or judicial decision.
b. All obligations of the Company under the Plan and this Agreement, with respect to the
Restricted Stock Units, shall be binding on any successor to the Company, whether the existence of
such successor is the result of a direct or indirect purchase, merger, consolidation, or otherwise,
of all or substantially all of the business and/or assets of the Company.
c. To the extent not preempted by United States federal law, this Agreement shall be governed
by, and construed in accordance with, the laws of the State of California, without regard to its
principles of conflict of laws.
25. Agreement to Participate. By executing this Agreement, the Participant agrees to
abide by all of the governing terms and provisions of the Plan and this Agreement. Additionally,
the Participant acknowledges having read and understood the terms and conditions of this
Agreement, and specifically agrees to be bound by the terms thereof.
The Participant must
acknowledge his or her agreement to participate in the Plan and to abide by all of the governing
terms and provisions of the Plan and this Agreement, by signing this Agreement electronically or,
if otherwise instructed by the Company, by printing and signing a paper copy of this Agreement
and returning it to the appropriate Company representative, within 60 days of the date of this
Agreement.
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