EXHIBIT 10.4
SUNSHINE ACQUISITION CORPORATION
2006 EQUITY INCENTIVE PLAN
STOCK AWARD AGREEMENT
AGREEMENT made this __ day of __________, ___ between Sunshine
Acquisition Corporation, a Delaware corporation (the "Company"), and
____________ (the "Participant").
1. Sale of Stock.
The Company hereby sells to the Participant, pursuant to the Company's 2006
Equity Incentive Plan (the "Plan"), an aggregate of _______ shares (the
"Shares") of common stock, $.01 par value per share, of the Company (the "Common
Stock"), for $_____ per share. The aggregate purchase price for the Shares shall
be paid by the Participant by check payable to the order of the Company or such
other method as may be acceptable to the Company. Upon receipt by the Company of
payment for the Shares, the Company shall issue to the Participant one or more
certificates in the name of the Participant for that number of Shares purchased
by the Participant.
2. Vesting Schedule.
The Shares purchased by the Participant vest immediately.
3. Restrictive Legends.
All certificates representing Shares shall have affixed thereto a legend in
substantially the following form, in addition to any other legends that may be
required under federal or state securities laws:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and may
not be sold, transferred or otherwise disposed of in the absence
of an effective registration statement under such Act or an
opinion of counsel satisfactory to the corporation to the effect
that such registration is not required."
4. Investment Representations.
The Participant represents, warrants and covenants as follows:
(a) The Participant is purchasing the Shares for his own account for
investment only, and not with a view to, or for sale in connection with, any
distribution of the Shares in violation of the Securities Act of 1933, as
amended (the "Securities Act"), or any rule or regulation under the Securities
Act.
(b) The Participant has had such opportunity as he has deemed adequate to
obtain from representatives of the Company such information as is necessary to
permit him to evaluate the merits and risks of his investment in the Company.
(c) The Participant has sufficient experience in business, financial and
investment matters to be able to evaluate the risks involved in the purchase of
the Shares and to make an informed investment decision with respect to such
purchase.
(d) The Participant can afford a complete loss of the value of the Shares
and is able to bear the economic risk of holding such Shares for an indefinite
period.
(e) The Participant understands that (i) the Shares have not been
registered under the Securities Act and are "restricted securities" within the
meaning of Rule 144 under the Securities Act; (ii) the Shares cannot be sold,
transferred or otherwise disposed of unless they are subsequently registered
under the Securities Act or an exemption from registration is then available;
(iii) in any event, the exemption from registration under Rule 144 will not be
available for at least one year and even then will not be available unless a
public market then exists for the Common Stock, adequate information concerning
the Company is then available to the public, and other terms and conditions of
Rule 144 are complied with; and (iv) there is now no registration statement on
file with the Securities and Exchange Commission with respect to any stock of
the Company and the Company has no obligation or current intention to register
the Shares under the Securities Act.
5. Withholding Taxes.
(a) The Participant acknowledges and agrees that the Company has the right
to deduct from payments of any kind otherwise due to the Participant any
federal, state or local taxes of any kind required by law to be withheld with
respect to the purchase of the Shares by the Participant.
(b) The Participant has reviewed with the Participant's own tax advisors
the federal, state, local and foreign tax consequences of this investment and
the transactions contemplated by this Agreement. The Participant is relying
solely on such advisors and not on any statements or representations of the
Company or any of its agents. The Participant understands that the Participant
(and not the Company) shall be responsible for the Participant's own tax
liability that may arise as a result of this investment or the transactions
contemplated by this Agreement.
6. Miscellaneous.
(a) Provisions of the Plan. This Agreement is subject to the provisions of
the Plan, a copy of which is furnished to the Participant with this Agreement.
(b) No Rights to Employment. The Participant acknowledges and agrees that
the transactions contemplated hereunder do not constitute an express or implied
promise of continued engagement as an employee or consultant for any period or
at all.
(c) Severability. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, and each other provision of this Agreement shall be
severable and enforceable to the extent permitted by law.
(d) Waiver. Any provision for the benefit of the Company contained in this
Agreement may be waived, either generally or in any particular instance, by the
Board of Directors of the Company.
(e) Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the Company and the Participant and their respective heirs,
executors, administrators, legal representatives, successors and assigns.
(f) Notice. All notices required or permitted hereunder shall be in writing
and deemed effectively given upon personal delivery or five days after deposit
in the United States Post Office, by registered or certified mail, postage
prepaid, addressed to the other party hereto at the address shown beneath his or
its respective signature to this Agreement, or at such other address or
addresses as either party shall designate to the other in accordance with this
Section 6(f).
-2-
(g) Pronouns. Whenever the context may require, any pronouns used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular form of nouns and pronouns shall include the plural, and vice
versa.
(h) Entire Agreement. This Agreement and the Plan constitute the entire
agreement between the parties, and supersedes all prior agreements and
understandings, relating to the subject matter of this Agreement.
Notwithstanding the foregoing, the Company and the Participant acknowledge and
agree that the Participant is subject to the provisions of a Service Provider
Stockholders Agreement with the Company, as amended from time to time, the
provisions of which are incorporated herein by reference.
(i) Amendment. This Agreement may be amended or modified only by a written
instrument executed by both the Company and the Participant.
(j) Governing Law. This Agreement shall be construed, interpreted and
enforced in accordance with the internal laws of the State of Delaware without
regard to any applicable conflicts of laws.
(k) Participant's Acknowledgments. The Participant acknowledges that he:
(i) has read this Agreement; (ii) has been represented in the preparation,
negotiation, and execution of this Agreement by legal counsel of the
Participant's own choice or has voluntarily declined to seek such counsel; (iii)
understands the terms and consequences of this Agreement; and (iv) is fully
aware of the legal and binding effect of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
Sunshine Acquisition Corporation
By:
------------------------------------
Title:
---------------------------------
Address:
-------------------------------
-------------------------------
Participant
Name:
----------------------------------
Address:
-------------------------------
-------------------------------
-3-
