FINISAR CORPORATION RESTRICTED STOCK UNIT ISSUANCE AGREEMENT
Exhibit (d)(3)
FINISAR CORPORATION
RECITALS
A. The Board has adopted the Plan for the purpose of providing incentives to attract, retain
and reward eligible persons who provide services to the Company and its parent or subsidiary
corporations.
B. Participant is granted an award of restricted stock units in connection with the
replacement of certain options under the Corporation’s Offer to Replace Eligible Options dated
December 17, 2007.
C. All capitalized terms in this Agreement shall have the meaning assigned to them in the
attached Appendix A.
NOW, THEREFORE, the Company hereby awards Restricted Stock Units to Participant upon the following
terms and conditions:
1. Grant of Restricted Stock Units. The Company hereby awards to Participant, as of
the Award Date, Restricted Stock Units under the Plan. Each Restricted Stock Unit represents the
right to receive one share of Common Stock. The number of shares of Common Stock subject to the
awarded Restricted Stock Units, the applicable vesting schedule for those shares, the dates on
which those vested shares shall become issuable to Participant and the remaining terms and
conditions governing the award (the “Award”) shall be as set forth in this Agreement.
AWARD SUMMARY
Participant:
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Award Date:
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, 200___ | |
Number of Shares
Subject to Award:
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shares of Common Stock (the “Shares”) | |
Vesting Schedule:
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Participant shall be fully vested in the Shares. | |
Issuance Schedule
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The Shares shall be issued on January 6, 2009 or as soon thereafter as administratively practicable, but in no event later than the later of (i) the close of the calendar year in which that Share vests or (ii) the fifteenth day of the third calendar month following such vesting date (the “Issuance Date”). The Company shall collect the applicable Withholding Taxes with respect to the issued Shares pursuant to the procedures set forth in Paragraph 5 of this Agreement. |
2. Limited Transferability. Prior to actual receipt of the Shares hereunder,
Participant may not transfer any interest in the Award or the underlying Shares.
3. Stockholder Rights. The holder of this Award shall not have any stockholder
rights, including voting, dividend or liquidation rights, with respect to the Shares subject to the
Award until Participant becomes the record holder of those Shares following their actual issuance
after the Company’s collection of the applicable Withholding Taxes.
4. Adjustment in Shares. In the event of any stock split, stock dividend, reverse
stock split, recapitalization, combination, reclassification or similar change in the capital
structure of the Company, appropriate adjustments shall be made by the Administrator to the total
number and/or class of securities issuable pursuant to this Award.
5. Issuance of Shares of Common Stock. On the applicable Issuance Date under
Paragraph 1, the Company shall issue to or on behalf of Participant a certificate (which may be in
electronic form) for the Shares to be issued on that date. The Company shall collect the
Withholding Taxes with respect to the Shares through an automatic Share withholding procedure
pursuant to which the Company will withhold a portion of those Shares with a Fair Market Value
(measured as of the issuance date) equal to the amount of such Withholding Taxes; provided,
however, that the amount of any Shares so withheld shall not exceed the amount necessary to satisfy
the Company’s required tax withholding obligations using the minimum statutory withholding rates
for federal and state tax purposes, including payroll taxes, that are applicable to supplemental
taxable income.
6. Compliance with Laws and Regulations. The issuance of shares of Common Stock
pursuant to the Award shall be subject to compliance by the Company and Participant with all
applicable requirements of federal, state and foreign law.
7. Notices. Any notice required to be given or delivered to the Company under the
terms of this Agreement shall be in writing and addressed to the Company at its principal corporate
offices. Any notice required to be given or delivered to Participant shall be in writing and
addressed to Participant at the address on the Company’s records or shall be delivered
electronically to Participant through the Company’s electronic mail system. All notices shall be
deemed effective upon personal delivery or delivery through the Company’s electronic mail system or
upon deposit in the U.S. mail, postage prepaid and properly addressed to the party to be notified.
8. Successors and Assigns. Except to the extent otherwise provided in this Agreement,
the provisions of this Agreement shall inure to the benefit of, and be binding upon, the Company
and its successors and assigns and Participant, Participant’s assigns, and the legal
representatives, heirs and legatees of Participant’s estate.
9. Construction. This Agreement and the Award evidenced hereby are made and granted
pursuant to the Plan and are in all respects limited by and subject to the terms of the Plan. All
decisions of the Administrator with respect to any question or issue arising
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under the Plan or this
Agreement shall be conclusive and binding on all persons having an interest in the Award.
10. Governing Law. The interpretation, performance and enforcement of this Agreement
shall be governed by the laws of the State of California without resort to that State’s
conflict-of-laws rules.
11. Employment at Will. Nothing in this Agreement or in the Plan shall confer upon
Participant any right to remain in service for any period of specific duration or interfere with or
otherwise restrict in any way the rights of the Company (or any parent or subsidiary employing or
retaining Participant) or of Participant, which rights are hereby expressly reserved by each, to
terminate Participant’s service at any time for any reason, with or without Cause.
IN WITNESS WHEREOF, Finisar Corporation has caused this Agreement to be executed on its behalf
by its duly-authorized officer on the day and year first indicated above.
| FINISAR CORPORATION |
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| By: | _____________________________ | ||||
| Title: | _____________________________ | ||||
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APPENDIX A
DEFINITIONS
The following definitions shall be in effect under the Agreement:
A. Administrator shall mean the Board or the committee appointed by the Board to
administer the Plan.
B. Agreement shall mean this Restricted Stock Unit Issuance Agreement.
C. Award shall mean the award of restricted stock units made to Participant pursuant
to the terms of this Agreement.
D. Award Date shall mean the date the restricted stock units are awarded to
Participant pursuant to the Agreement and shall be the date indicated in Paragraph 1 of the
Agreement.
E. Board shall mean the Company’s Board of Directors.
F. Common Stock shall mean shares of the Company’s common stock.
G. Company shall mean Finisar Corporation, a Delaware corporation, and any successor
corporation thereto.
H. Fair Market Value per share of Common Stock on any relevant date shall be the
closing price per share of Common Stock as quoted on the Nasdaq Global Select Market on the date of
determination (or, if no closing price was reported on that date on the last trading date (or such
other appropriate day as determined by the Administrator) such closing price was reported), as
reported in The Wall Street Journal or such other source as the Administrator deems
reliable.
I. Participant shall mean the person to whom the Award is made pursuant to the
Agreement.
J. Plan shall mean Finisar Corporation 2005 Stock Incentive Plan, as amended and
restated from time to time.
K. Withholding Taxes shall mean the federal, state, foreign and local income and
employment taxes and other amounts required to be withheld by the Company in connection with the
issuance of the shares of Common Stock under the Award.
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