MEMC ELECTRONIC MATERIALS, INC. RESTRICTED STOCK AWARD AGREEMENT For Employees (Time-Based Vesting)
Exhibit
99.4
MEMC
ELECTRONIC MATERIALS, INC.
RESTRICTED
STOCK AWARD AGREEMENT
For
Employees (Time-Based Vesting)
2010
Equity Incentive Plan
THIS AGREEMENT is effective (DATE)
between MEMC Electronic Materials, Inc. (the “Company”) and (NAME) (the
“Participant”).
WHEREAS, the Company has adopted and
maintains the MEMC Electronic Materials, Inc. 2010 Equity Incentive Plan (the
“Plan”) to promote the interests of the Company and its stockholders by
providing the directors, key employees and consultants of the Company and its
Subsidiaries with an appropriate incentive to encourage them to continue in the
service and employ of the Company or Subsidiary and to improve the growth and
profitability of the Company; and
WHEREAS, the Plan provides for the
grant to Participants in the Plan of Restricted Stock Awards, and the Company
wishes to grant Restricted Stock Awards to certain employees in consideration
for their Employment with the Company.
NOW, THEREFORE, in consideration of the
mutual promises set forth in this Agreement, the parties hereto hereby agree as
follows:
1. Grant
of Restricted Stock Awards. Subject to the terms and
conditions contained herein and in the Plan, the Company hereby grants to the
Participant (NUMBER)
Restricted Stock Awards. Each Restricted Stock Award represents the
obligation of the Company to transfer one share of Common Stock to the
Participant at the time provided in this Agreement, provided such Restricted
Stock Award is vested at such time.
2. Incorporation
of Plan. All terms,
conditions and restrictions of the Plan are incorporated herein and made part
hereof as if stated herein. If there is any conflict between the
terms and conditions of the Plan and this Agreement, the terms and conditions of
the Plan, as interpreted by the Compensation Committee (the “Committee”), shall
govern. All capitalized terms used herein shall have the meaning
given to such terms in the Plan.
3. Bookkeeping
Account. The Company shall record the number of Restricted
Stock Awards granted hereunder to a bookkeeping account for the Participant (the
“Restricted Stock Account”). The Participant’s Restricted Stock
Account shall be debited by the number of Restricted Stock Awards, if any,
forfeited in accordance with this Agreement and by the number of shares of
Common Stock transferred to the Participant with respect to such Restricted
Stock Awards. The Participant’s Restricted Stock Account also shall
be adjusted from time to time for stock dividends, stock splits and other such
transactions in accordance with the Plan.
1
Exhibit
99.4
4. Vesting.
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(a)
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Fifty
percent (50%) of the Restricted Stock Awards granted to the Participant
hereby shall become vested as of three years from the date of grant, and
the remaining fifty percent (50%) of the Restricted Stock Awards granted
to the Participant hereby shall become vested as of four years from the
date of grant.
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All
of the Restricted Stock Awards granted to the Participant hereby shall
become vested upon the death or Disability of the
Participant.
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Notwithstanding
the foregoing, unless the Committee otherwise determines at a later date,
if within the two year period following a Change in Control the
Participant’s Employment is terminated by the Company without Cause or by
the Participant for Good Reason, all of the Restricted Stock Awards
granted to the Participant hereby shall become vested as of the effective
date of the termination of the Participant’s Employment with the
Company. Notwithstanding the definition of “Good Reason”
included in the Plan, for the purposes of this Agreement, clause (ii) of
the definition of “Good Reason” shall mean “(ii) a material diminution in
a Participant’s base salary.”
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(b)
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Forfeiture
Upon Termination
of Service. Except as otherwise provided in Section 4(a)
above, upon cessation of the Participant’s Employment with the Company for
any reason prior to four years from the date of grant, the number of
shares of Restricted Stock Awards subject to this Agreement that have not
become vested shall be forfeited, except as the Committee may otherwise
determine in its sole discretion.
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5. Satisfaction of
Tax Withholding and Distribution of
Common Stock. On each of the vesting dates, the Participant
shall remit to the Company in cash an amount sufficient to satisfy the federal,
state and local withholding tax requirements attributable to such
vesting. Subject to the provisions below, as soon as practical after
each vesting date, the Company shall transfer shares of Common Stock to the
Participant equal in number to the Restricted Stock Awards credited to the
Participant’s Restricted Stock Account that have vested and were not previously
transferred to Participant; provided, however, that if the Participant has not
remitted to the Company on the vesting date an amount in cash sufficient to
satisfy the withholding requirements, then the Company shall transfer to the
Participant shares of Common Stock equal in number to the vested portion of the
Restricted Stock Award, less that number of shares of Common Stock having a Fair
Market Value on the vesting date sufficient to satisfy the withholding
requirements attributable to such vesting. Such transfer shall be
made within 30 days following each vesting date.
6. Source
of Payment. Shares of Common Stock transferable to the
Participant, or upon death to his or her beneficiary, under this Agreement shall
be authorized but unissued shares. The Company shall have no duties to segregate
or set aside any assets to secure the Participant’s right to receive shares of
Common Stock under this Agreement. The Participant shall not have any
rights with respect to transfer of shares of Common Stock under this Agreement
other than the unsecured right to receive shares of Common Stock from the
Company.
2
Exhibit
99.4
7. Restricted
Stock Awards Non-Transferable. Restricted Stock Awards awarded
hereunder shall not be transferable by the Participant. Except as may
be required by the federal income tax withholding provisions of the Code or by
the tax laws of any State, the interests of the Participant and his or her
beneficiaries under this Agreement are not subject to the claims of their
creditors and may not be voluntarily or involuntarily sold, transferred,
alienated, assigned, pledged, anticipated, or encumbered. Any attempt
by the Participant or a beneficiary to sell, transfer, alienate, assign, pledge,
anticipate, encumber, charge or otherwise dispose of any right to benefits
payable hereunder shall be void.
8. Shareholder
Rights. The Participant
shall not have any of the rights of a shareholder of the Company with respect to
Restricted Stock Awards, such as the right to vote.
9. Death
Benefits. In the event of the death of the Participant, the
Company shall transfer shares of Common Stock equal in number to the vested
Restricted Stock Awards, if any, credited to the Participant’s Restricted Stock
Account to the Participant’s legal representative or
beneficiaries. Such transfer shall be made within 30 days following
death.
The Participant may designate a
beneficiary or beneficiaries (contingently, consecutively, or successively) of
such death benefit and, from time to time, may change his or her designated
beneficiary. A beneficiary may be a trust. A beneficiary
designation shall be made in writing in a form prescribed by the Company and
delivered to the Company while the Participant is alive. If there is
no designated beneficiary surviving at the death of the Participant, payment of
any death benefit of the Participant shall be made to the surviving spouse of
the Participant, if any, and if no such surviving spouse to the estate of the
Participant.
10. Integration. This Agreement,
and the other documents referred to herein or delivered pursuant hereto which
form a part hereof contain the entire understanding of the parties with respect
to its subject matter. There are no restrictions, agreements,
promises, representations, warranties, covenants or undertakings with respect to
the subject matter hereof other than those expressly set forth
herein. This Agreement, including without limitation the Plan,
supersedes all prior agreements and understandings between the parties with
respect to its subject matter.
11. Governing
Law. This Agreement
shall be governed by and construed and enforced in accordance with the laws of
the State of Delaware, without regard to the provisions governing conflict of
laws.
12. Amendment. This
Agreement may be amended by mutual consent of the parties hereto by written
agreement.
13. Participant
Acknowledgment. By accepting this
grant, the Participant acknowledges receipt of a copy of the Plan, and
acknowledges that all decisions, determinations and interpretations of the
Committee in respect of the Plan, this Agreement and the Restricted Stock Awards
granted hereunder shall be final and conclusive.
MEMC
ELECTRONIC MATERIALS, INC.
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By:
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Xxx
Xxxxxxxx (Interim)
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Title:
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Senior
Vice President, Human
Resources
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