Contract
Exhibit
4.11
2006
EQUITY INCENTIVE PLAN
THIS
RESTRICTED STOCK AWARD AGREEMENT (the “Agreement”), dated [Date] between Alpha Innotech
Corp., a Delaware corporation (“Company”), and [Employee Name] (the
“Employee”), is entered into as follows:
WITNESSETH:
WHEREAS,
the continued participation of the Employee is considered by the Company to be
important for the Company's continued growth; and
WHEREAS,
in order to give the Employee an incentive to continue in the employ of the
Company and to assure his or her continued commitment to the success of the
Company, the Compensation Committee of the Board of Directors of the Company or
its delegates (the “Administrator”) has determined that the Employee shall be
granted a stock award (“Stock Award”) covering shares of the Company's common
stock (the “Shares”), subject to the restrictions stated below and in accordance
with the terms and conditions of the 2006 Equity Incentive Plan (the
“Plan”). Capitalized terms used but not defined in this Agreement
have the meanings assigned to them in the Plan.
THEREFORE,
the parties agree as follows:
1. Grant of
Stock Award.
Subject to the terms and conditions of this Agreement and of the Plan,
the Company hereby grants to the Employee a Stock Award covering [Shares] Shares and hereby
issues such Shares to the Employee.
2. Vesting
Schedule. Subject to
Employee's not experiencing a Termination of Employment during the following
vesting term, the interest of the Employee in the Shares shall vest and become
nonforfeitable as follows: [insert vesting
schedule]. Therefore, provided the Employee has not
experienced a Termination of Employment prior to the close of business on [insert vesting date], the
interest of the Employee in the Shares shall become fully vested and
nonforfeitable on that date.
3. Termination. In the
event of the Termination of Employment of the Employee, all of the Shares held
by the Employee which have not vested and which remain forfeitable as of the
date of Termination of Employment shall be forfeited to the Company as of such
date, without payment by the Company of any amount with respect
thereto. Any forfeiture will be effected by the Company in such
manner and to such degree as the Administrator, in its sole discretion,
determines, and will in all events (including as to the provisions of this
Section 3) be subject to Applicable Laws.
4. Transfer
Restrictions.
(a) Except
as otherwise provided for in this Agreement, the Shares or rights granted
hereunder may not be sold, pledged or otherwise transferred until the Shares
become vested and nonforfeitable in accordance with Sections 2 and
3.
(b) To
enforce any restrictions on the Shares, the Administrator may require Employee
to deposit the certificates representing the Shares, with stock powers or other
transfer instruments approved by the Administrator endorsed in blank, with the
Company or an agent of the Company to hold in escrow until the restrictions have
lapsed or terminated. The Administrator may also cause a legend or
legends referencing the restrictions be placed on the certificates during the
period in which such Shares remain unvested.
6. Stockholder
Rights. The Employee
shall be entitled to all of the rights and benefits generally accorded to
stockholders with respect to the Shares. All dividends on Shares that
are subject to any restrictions, including vesting, shall be subject to the same
restrictions, including those set forth in Section 2, as the Shares on which the
dividends were paid.
7.
Taxes.
(a) The
Employee shall be liable for any and all taxes, including withholding taxes,
interest and penalties, arising out of this grant, the vesting of Shares
hereunder, any violation of Code Section 409A, or any other transaction or event
occurring with respect to the Shares if and to the extent required by Applicable
Law. In the event that the Company is required to withhold taxes at
the time the Shares vest and the restrictions on the Shares lapse (or at such
other time as required by applicable laws, including in connection with the
filing of the Section 83(b) election described below), the Employee shall make a
cash payment in an amount necessary to satisfy applicable required withholding
taxes, surrender a sufficient number of whole Shares acquired under this
Agreement as are necessary to satisfy the applicable minimum statutory
withholding amount or satisfy the payment of the withholding taxes in a form
agreed to by the Company. The Employee will receive a cash refund for
any fraction of a surrendered Share not necessary for required withholding
taxes. To the extent that any surrender of Shares or payment of cash or
alternative procedure for such payment is insufficient, the Employee authorizes
the Company, its affiliates and subsidiaries, which are qualified to deduct tax
at source, to deduct all applicable required withholding taxes from the
Employee's compensation. The Employee agrees to pay any amounts that cannot be
satisfied from wages or other cash compensation, to the extent permitted by
law. For purposes of this Agreement, the Company shall calculate any
applicable income required to be recognized and withholding taxes arising in
connection with the issuance or vesting of the Shares using the same method of
determining fair market value of a share of its common stock as the Company uses
in determining fair market value under the Plan.
(b) The
Employee understands that Section 83(a) of the Internal Revenue Code of
1986, as amended (the “Code”), taxes as ordinary income the difference between
the amount paid for the Shares and the fair market value of the Shares as of (i)
the date of issuance of the Shares in the case of vested Shares that are not
subject to a substantial risk of forfeiture, and (ii) the date forfeiture
restrictions on the Shares lapse. In this context, “restrictions”
mean the forfeiture obligation in the event of the Termination of Employment as
set forth in Sections 2 and 3 of this Agreement and the restriction on
transferability as set forth in Section 4 of this Agreement. The
Employee understands that the Employee may elect to be taxed as to the unvested
Shares at the time such Shares are issued, based on the value of the Shares at
the issuance date rather than when and as the forfeiture restrictions lapse (on
the vesting dates), by filing an election under Section 83(b) (an “83(b)
Election”) of the Code with the Internal Revenue Service within 30 days from the date
of issuance. The Employee acknowledges that the foregoing is only a
summary of the effect of United States federal income taxation with respect to
issuance and vesting of the Shares hereunder, and does not purport to be
complete. The Company has directed the Employee to seek independent
advice regarding the applicable provisions of the Code, the income tax laws of
any municipality, state or foreign country in which Employee may reside, the tax
consequences of the Employee’s death, and the decision as to whether or not to
file an 83(b) Election (as well as appropriate advice and assistance with the
actual filing of any such 83(b) Election) in connection with the issuance of the
Shares. The Company has not provided any tax advice to the Employee
in connection with the issuance of the Shares hereunder.
(c) Regardless
of any action the Company takes with respect to any or all income tax, payroll
tax, payment on account or other tax-related withholding (“Tax-Related Items”),
the Employee acknowledges and agrees that the ultimate liability for all
Tax-Related Items legally due by him or her is and remains the Employee's
responsibility and that the Company (i) makes no representations nor
undertakings regarding the treatment of any Tax-Related Items in connection with
any aspect of this issuance of Shares, including the vesting of the Shares or
the subsequent sale of the Shares; and (ii) does not commit to structure
the terms or any aspect of this issuance of Shares to reduce or eliminate the
Employee's liability for Tax-Related Items. Prior to the vesting of the Shares,
the Employee shall pay the Company any amount of Tax-Related Items that the
Company may be required to withhold as a result of the Employee's receipt of
Shares that cannot be satisfied by the means previously described. The Company
may refuse to deliver the Shares if the Employee fails to comply with the
Employee's obligations in connection with the Tax-Related Items.
(d) To
the extent the Company determines that this Agreement is subject to Code Section
409A, but does not conform with the requirements thereof, the Company may at its
sole discretion amend or replace the Agreement to cause the Agreement to comply
with Code Section 409A.
8. Data
Privacy Consent. The Employee
hereby explicitly and unambiguously consents to the collection, use and
transfer, in electronic or other form, of the Employee's personal data as
described in this document by and among, as applicable, the Company and its
Subsidiaries and Affiliates for the exclusive purpose of implementing,
administering and managing the Employee's participation in the Plan. The
Employee understands that the Company and its Affiliates and Subsidiaries hold
certain personal information about the Employee, including, but not limited to,
name, home address and telephone number, date of birth, social security or
insurance number or other identification number, salary, nationality, job title,
any shares of stock or directorships held in the Company, details of all options
or any other entitlement to shares of stock awarded, canceled, purchased,
exercised, vested, unvested or outstanding in the Employee's favor for the
purpose of implementing, managing and administering the Plan (“Data”). The
Employee understands that the 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 Employee's country or elsewhere and that
the recipient country may have different data privacy laws and protections than
the Employee's country. The Employee understands that he or she may request a
list with the names and addresses of any potential recipients of the Data by
contacting the Stock Plan Administrator. The Employee 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 the Employee's participation in the
Plan, including any requisite transfer of such Data, as may be required to a
broker or other third party with whom the Employee may elect to deposit any
Shares acquired under the Plan. The Employee understands that Data will be held
only as long as is necessary to implement, administer and manage participation
in the Plan. The Employee understands that he may, at any time, view Data,
request additional information about the storage and processing of the Data,
require any necessary amendments to the Data or refuse or withdraw the consents
herein, in any case without cost, by contacting the Stock Plan Administrator in
writing. The Employee understands that refusing or withdrawing consent may
affect the Employee's ability to participate in the Plan. For more information
on the consequences of refusing to consent or withdrawing consent, the Employee
understands that he or she may contact the Stock Plan Administrator at the
Company.
9. Plan
Information. The Employee
acknowledges that the Employee has received copies of the Plan and the Plan
prospectus from the Company and agrees to receive stockholder information,
including copies of any annual report, proxy statement and periodic report, from
the Company's website at: xxxx://xxx.xxxxxxxxxxxxx.xxx/xxxxxxxxxxxxxx/XXX.xxx. The
Employee acknowledges that copies of the Plan, Plan prospectus, Plan information
and stockholder information are available upon written or telephonic request to
the Stock Plan Administrator.
10. Acknowledgment
and Waiver. By accepting this
grant of a Stock Award, the Employee acknowledges and agrees 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 or this Agreement;
(b) the
grant of Stock Awards is voluntary and occasional and does not create any
contractual or other right to receive future grants of Stock Awards or Shares,
even if Stock Awards or Shares have been granted repeatedly in the
past;
(c) the
Employee's participation in the Plan shall not create a right to further
employment with Employer, shall not create an employment agreement between the
Employee and his or her Employer and shall not interfere with the ability of
Employer to terminate the Employee's employment relationship at any time with or
without cause and it is expressly agreed and understood that employment is
terminable at the will of either party, insofar as permitted by
law;
(d) Stock
Award grants, Shares and resulting benefits are an extraordinary item that does
not constitute compensation of any kind for services of any kind rendered to the
Company, and is outside the scope of the Employee's employment contract, if any;
and Stock Award grants, Shares and resulting benefits are not part of
normal or expected compensation or salary for any purposes, including, but not
limited to calculating any severance, resignation, termination, redundancy, end
of service payments, bonuses, long-service awards, pension or retirement
benefits or similar payments insofar as permitted by law;
(e) in
consideration of this grant of a Stock Award, no claim or entitlement to
compensation or damages shall arise from termination of this Stock Award or
diminution in value of the Shares resulting from Termination of Employment by
the Company (for any reason whatsoever and whether or not in breach of local
labor laws) and the Employee irrevocably releases the Company 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 accepting the
terms of this Agreement, the Employee shall be deemed irrevocably to have waived
any entitlement to pursue such claim; and
(f) notwithstanding
any terms or conditions of the Plan to the contrary, in the event of involuntary
Termination of Employment (whether or not in breach of local labor laws), the
Employee's right to receive benefits under this Agreement, if any, will
terminate effective as of the date that the Employee is no longer actively
employed and will not be extended by any notice period mandated under local law
(e.g., active employment would not include a period of “garden leave” or similar
period pursuant to local law); furthermore, in the event of involuntary
Termination of Employment (whether or not in breach of local labor laws), the
Employee's right to receive benefits under this Agreement after Termination of
Employment, if any, will be measured by the date of termination of the
Employee's active employment and will not be extended by any notice period
mandated under local law.
11. Miscellaneous.
(a) The
Company shall not be required to treat as the owner of Shares, and associated
benefits hereunder, any transferee to whom such Shares or benefits shall have
been so transferred in violation of this Agreement.
(b) The
parties agree to execute such further instruments and to take such action as may
reasonably be necessary to carry out the intent of this Agreement.
(c) Any
notice required or permitted hereunder shall be given in writing and shall be
deemed effectively given upon delivery to the Employee at Employee’s address
then on file with the Company.
(d) The
Plan is incorporated herein by reference. The Plan and this Agreement constitute
the entire agreement of the parties with respect to the subject matter hereof
and supersede in their entirety all prior undertakings and agreements of the
Company and the Employee with respect to the subject matter hereof, and may not
be modified adversely to the Employee's interest except by means of a writing
signed by the Company and the Employee. This Agreement is governed by the laws
of the state of Delaware. In the event of any conflict between the
terms and provisions of the Plan and this Agreement, the Plan terms and
provisions shall govern. Certain other important terms governing this
contract are contained in the Plan.
(e) The
provisions of this Agreement are severable and if any one or more provisions are
determined to be illegal or otherwise unenforceable, in whole or in part, the
remaining provisions shall nevertheless be binding and enforceable.
(f)
Shares shall not be issued pursuant to the Stock Award unless such issuance and
delivery of the applicable Shares pursuant thereto shall comply with all
relevant provisions of Applicable Law (including that Shares shall not be issued
unless there is an effective registration statement under the Securities Act
covering the issuance of the Shares, or the Company determines that a valid
exemption from applicable registration requirements are available), with such
compliance determined by the Company in consultation with its legal
counsel. To the extent the Company is unable to or the Committee
deems it infeasible to obtain authority from any regulatory body having
jurisdiction, which authority is deemed by the Company’s counsel to be necessary
to the lawful issuance and sale of any Shares hereunder, the Company shall be
relieved of any liability with respect to the failure to issue or sell such
Shares as to which such requisite authority shall not have been
obtained.
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Accepted
by Optionee:
_________________________________
[Employee
Name]
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By:
__________________________________
Name:
Title:
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RETAIN
THIS AGREEMENT FOR YOUR RECORDS
Form of
Stock Grant
