RESTRICTED STOCK AGREEMENT
Exhibit
10.4
XXXXXXX
ELECTRONICS, INC.
2008
EQUITY INCENTIVE PLAN
THIS AGREEMENT is made effective as of
this ____ day of ________________, 20___, by and between Xxxxxxx Electronics,
Inc., a Minnesota corporation (the “Company”), and _________________________
(the “Participant”).
W I T N E
S S E T H:
WHEREAS, the Participant is, on the
date hereof, a key employee, officer, director of or a consultant or advisor to
of the Company or of a subsidiary of the Company; and
WHEREAS, the Company wishes to grant a
restricted stock award to the Participant for shares of the Company’s Common
Stock pursuant to the Company’s 2008 Equity Incentive Plan (the “Plan”);
and
WHEREAS, the Administrator of the Plan
has authorized the grant of a restricted stock award to the
Participant;
NOW, THEREFORE, in consideration of the
premises and of the mutual covenants herein contained, the parties hereto agree
as follows:
1. Grant of
Restricted Stock Award. The Company hereby grants to the
Participant on the date set forth above a restricted stock award (the “Award”)
for _____________________ (__________) shares of Common Stock on the
terms and conditions set forth herein, which shares are subject to adjustment
pursuant to Section 15 of the Plan. The Company shall cause to be
issued one or more stock certificates representing such shares of Common Stock
in the Participant’s name and shall hold each such certificate until such time
as the risk of forfeiture and other transfer restrictions set forth in this
Agreement have lapsed with respect to the shares represented by the
certificate. The Company may also place a legend on such certificates
describing the risks of forfeiture and other transfer restrictions set forth in
this Agreement providing for the cancellation of such certificates if the shares
of Common Stock are forfeited as provided in Section 2 below. Until
such risks of forfeiture have lapsed or the shares subject to this Award have
been forfeited pursuant to Section 2 below, the Participant shall be entitled to
vote the shares represented by such stock certificates and shall receive all
dividends attributable to such shares, but the Participant shall not have any
other rights as a shareholder with respect to such shares.
2. Vesting
of Restricted Stock. The shares of Stock subject to this Award
shall remain forfeitable until the risks of forfeiture lapse according to the
following vesting schedule:
|
Vesting
Date
|
Cumulative
Shares/Percent Vested
|
|
If the
Participant’s [employment/directorship/relationship]
with the Company (or a subsidiary of the Company) ceases at any time prior to a
Vesting Date for any reason, including the Participant’s voluntary resignation
or retirement, the Participant shall immediately forfeit all shares of Stock
subject to this Award which have not yet vested and for which the risks of
forfeiture have not lapsed.
3. General
Provisions.
a. Relationship. This
Agreement shall not confer on the Participant any right with respect to
continuance of employment or other relationship by the Company, nor will it
interfere in any way with the right of the Company to terminate such employment
or relationship.
b. Securities
Law Compliance. The Participant shall not transfer or
otherwise dispose of the shares of Stock received pursuant to this Award until
such time as counsel to the Company shall have determined that such transfer or
other disposition will not violate any state or federal securities or other
laws. The Participant may be required by the Company, as a condition
of the effectiveness of this Award, to agree in writing that all Stock subject
to this Award shall be held, until such time that such Stock is registered and
freely tradable under applicable state and federal securities laws, for the
Participant’s own account without a view to any further distribution thereof,
that the certificates for such shares shall bear an appropriate legend to that
effect, and that such shares will be not transferred or disposed of except in
compliance with applicable state and federal securities laws.
c. Mergers,
Recapitalizations, Stock Splits, Etc. Pursuant and subject to
Section 15 of the Plan, certain changes in the number or character of the shares
of Stock of the Company (through sale, merger, consolidation, exchange,
reorganization, divestiture (including a spin-off), liquidation,
recapitalization, stock split, stock dividend, or otherwise) shall result in an
adjustment, reduction, or enlargement, as appropriate, in the number of shares
subject to this Award. Any additional shares that are credited
pursuant to such adjustment shall be subject to the same restrictions as are
applicable to the shares with respect to which the adjustment
relates.
d. Shares
Reserved. The Company shall at all times during the term of
this Award reserve and keep available such number of shares as will be
sufficient to satisfy the requirements of this Agreement.
e. Withholding
Taxes. In order to permit the Company to comply with all
applicable federal or state income tax laws or regulations, the Company may take
such action as it deems appropriate to insure that, if necessary, all applicable
federal or state payroll, income or other taxes are withheld from any amounts
payable by the Company to the Participant. If the Company is unable
to withhold such federal and state taxes, for whatever reason, the Participant
hereby agrees to pay to the Company an amount equal to the amount the Company
would otherwise be required to withhold under federal or state law prior to the
transfer of any certificates for the shares of Stock subject to this
Award. The Participant may, subject to the approval and discretion of
the Administrator, or such other administrative rules it may deem advisable,
elect to have all or a portion of such tax withholding obligations satisfied by
delivering shares of the Company’s Common Stock having a fair market value, as
of the date the amount of tax to be withheld is determined under applicable tax
law, equal to such obligations.
f. Scope of
Agreement. This Agreement shall bind and inure to the benefit
of the Company and its successors and assigns and of the Participant and any
successor or successors of the Participant.
g. Arbitration. Any
dispute arising out of or relating to this Agreement or the alleged breach of
it, or the making of this Agreement, including claims of fraud in the
inducement, shall be discussed between the disputing parties in a good faith
effort to arrive at a mutual settlement of any such controversy. If,
notwithstanding, such dispute cannot be resolved, such dispute shall be settled
by binding arbitration. Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction
thereof. The arbitrator shall be a retired state or federal judge or
an attorney who has practiced securities or business litigation for at least 10
years. If the parties cannot agree on an arbitrator within 20 days,
any party may request that the chief judge of the District Court for Hennepin
County, Minnesota, select an arbitrator. Arbitration will be
conducted pursuant to the provisions of this Agreement, and the commercial
arbitration rules of the American Arbitration Association, unless such rules are
inconsistent with the provisions of this Agreement. Limited civil
discovery shall be permitted for the production of documents and taking of
depositions. Unresolved discovery disputes may be brought to the
attention of the arbitrator who may dispose of such dispute. The
arbitrator shall have the authority to award any remedy or relief that a court
of this state could order or grant; provided, however, that punitive or
exemplary damages shall not be awarded. The arbitrator may award to
the prevailing party, if any, as determined by the arbitrator, all of its costs
and fees, including the arbitrator’s fees, administrative fees, travel expenses,
out-of-pocket expenses and reasonable attorneys’
fees. Unless otherwise agreed by the parties, the place of any
arbitration proceedings shall be Hennepin County, Minnesota.
h. 2008
Equity Incentive Plan. The Award evidenced by this Agreement
is granted pursuant to the Plan, a copy of which Plan has been made available to
the Participant and is hereby incorporated into this Agreement. This
Agreement is subject to and in all respects limited and conditioned as provided
in the Plan. All defined terms of the Plan shall have the same
meaning when used in this Agreement. The Plan governs this Award and,
in the event of any questions as to the construction of this Agreement or in the
event of a conflict between the Plan and this Agreement, the Plan shall govern,
except as the Plan otherwise provides.
ACCORDINGLY, the parties hereto have
caused this Agreement to be executed on the day and year first above
written.
XXXXXXX ELECTRONICS, INC.
By:
Its:
PARTICIPANT
