POKERTEK, INC. Restricted Stock Award Agreement
POKERTEK,
INC.
2007
STOCK INCENTIVE PLAN
THIS
AGREEMENT (together with Schedule A, attached hereto, this "Agreement"),
effective as of _______________ ___, 200__, between POKERTEK, INC., a North
Carolina corporation (the "Corporation"), and ______________, an Employee,
Independent Contractor or Director of the Corporation or an Affiliate (the
"Participant");
RECITALS:
In
furtherance of the purposes of the PokerTek, Inc. 2007 Stock Incentive Plan,
as
it may be hereafter amended and/or restated (the "Plan"), and in consideration
of the services of the Participant and such other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
Corporation and the Participant hereby agree as follows:
1. Incorporation
of Plan.
The
rights and duties of the Corporation and the Participant under this Agreement
shall in all respects be subject to and governed by the provisions of the
Plan,
the terms of which are incorporated herein by reference. In the event of
any
conflict between the provisions in this Agreement and those of the Plan,
the
provisions of the Plan shall govern. Unless otherwise defined herein,
capitalized terms in this Agreement shall have the same definitions as set
forth
in the Plan.
2. Terms
of Award.
The
following terms used in this Agreement shall have the meanings set forth
in this
Section 2:
The
"Participant" is ______________________.
The
"Grant Date" is ______________________.
The
"Restriction Period" is the period beginning on the Grant Date and ending
on
such date or dates and satisfaction of such conditions as described in Schedule
A, which is attached hereto and expressly made a part of this Agreement.
The
number of shares of common stock of the Corporation ("Common Stock") subject
to
the Restricted Stock Award granted under this Agreement shall be ______________
(the "Shares").
3. Grant
of Restricted Stock Award.
Subject
to the terms of this Agreement and the Plan, the Corporation hereby grants
the
Participant a Restricted Stock Award (the "Award") for that number of Shares
of
Common Stock as is set forth in Section 2.
4. Vesting
and Earning of Award.
Subject
to the terms of the Plan, the Award shall be deemed vested and earned upon
such
date or dates, and subject to such conditions, as are described in this
Agreement, including but not limited to the terms of Schedule A, attached
hereto. The Administrator has sole authority to determine whether and to
what
degree the Award has vested and vested and is payable and to interpret the
terms
and conditions of this Agreement and the Plan.
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5. Effect
of Change in Control.
(a) Notwithstanding
any other provision of the Plan to the contrary, and except as may be otherwise
provided in an employment agreement or other agreement between the Participant
and the Corporation, in the event of a Change in Control, the Award, if
outstanding as of the date of such Change in Control, shall become fully
vested,
whether or not then otherwise vested.
(b) Notwithstanding
the foregoing, in the event that a Change in Control event occurs, then the
Administrator may, in its sole and absolute discretion, determine that the
Award
shall not vest on an accelerated basis, if the Corporation or the surviving
or
acquiring corporation, as the case may be, shall have taken such action,
including but not limited to the assumption of Awards granted under the Plan
or
the grant of substitute awards (in either case, with substantially similar
terms
or equivalent economic benefits as Awards granted under the Plan), as the
Administrator determines to be equitable or appropriate to protect the rights
and interests of Participants under the Plan. For the purposes herein, if
the
Committee is acting as the Administrator authorized to make the determinations
provided for in this Section 5(b), the Committee shall be appointed by the
Board
of Directors, two-thirds of the members of which shall have been Directors
of
the Corporation prior to the Change in Control event.
(c) The
Administrator shall have full and final authority, in its discretion, to
determine whether a Change in Control of the Corporation has occurred, the
date
of the occurrence of such Change in Control and any incidental matters relating
thereto.
6. Termination
of Employment or Service; Forfeiture of Award.
Except
as may be otherwise provided in the Plan or this Agreement, in the event
that
the employment or service of the Participant is terminated for any reason
and
all or part of the Award has not yet vested pursuant to Section 4, Section
5
and/or Schedule A herein, then the Award, to the extent not vested as of
the
Participant's Termination Date, shall be forfeited immediately upon such
termination, and the Participant shall have no further rights with respect
to
the Award or the Shares, cash or other benefits underlying that portion of
the
Award that has not yet vested. The Participant expressly acknowledges and
agrees
that the termination of his or her employment or service shall result in
forfeiture of the Award and the Shares to the extent the Award has not vested
as
of his or her Termination Date.
7. Settlement
of Award.
The
Award shall be payable in whole shares of Common Stock.
8. No
Right of Employment or Service; Forfeiture of Award.
Neither
the Plan, the grant of the Award, nor any other action related to the Plan
shall
confer upon the Participant any right to continue in the employment or service
of the Corporation or an Affiliate or interfere in any way with the right
of the
Corporation or an Affiliate to terminate the Participant's employment or
service
at any time. Except as otherwise provided in the Plan or this Agreement,
all
rights of the Participant with respect to the Award shall terminate upon
termination of the Participant's employment or service.
9. Nontransferability
of Award and Shares.
The
Award, to the extent not vested, shall not be transferable (including by
sale,
assignment, pledge or hypothecation) other than by will or the laws of intestate
succession. The designation of a beneficiary in accordance with the Plan
does
not constitute a transfer. The Participant shall not sell, transfer, assign,
pledge or otherwise encumber the Shares (except as may be provided in Section
13
herein) until the Restriction Period has expired and all conditions to vesting
and transfer have been met.
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10. Superseding
Agreement.
This
Agreement supersedes any statements, representations or agreements of the
Corporation with respect to the grant of the Award, any other equity-based
awards or any related rights, and the Participant hereby waives any rights
or
claims related to any such statements, representations or agreements. This
Agreement does not supersede or amend any confidentiality agreement,
nonsolicitation agreement, noncompetition agreement, employment agreement
or any
other similar agreement between the Participant and the Corporation, including,
but not limited to, any restrictive covenants contained in such agreements.
11. Governing
Law.
Except
as otherwise provided in the Plan or herein, this Agreement shall be construed
and enforced according to the laws of the State of North Carolina, without
regard to the conflict of laws provisions of any state, and in accordance
with
applicable federal laws of the United States.
12. Amendment
and Termination; Waiver.
Subject
to the terms of the Plan and this Section 12, this Agreement may be modified
or
amended only by the written agreement of the parties hereto. Notwithstanding
the
foregoing, the Administrator shall have unilateral authority to amend the
Plan
and this Agreement (without Participant consent) to the extent necessary
to
comply with Applicable Laws or changes to Applicable Laws (including but
not
limited to Code Section 409A and federal securities laws). The waiver by
the
Corporation of a breach of any provision of this Agreement by the Participant
shall not operate or be construed as a waiver of any subsequent breach by
the
Participant.
13. Certificates
for Shares; Rights as Shareholder.
The
Participant and his or her legal representatives, legatees or distributees
shall
not be deemed to be the holder of any of the Shares and shall not have any
rights of a shareholder unless and until certificates for such Shares have
been
issued to him or her or them. Unless the Administrator determines otherwise,
a
certificate or certificates for any of the Shares shall be issued in the
name of
the Participant as soon as practicable after the Award has been granted.
Notwithstanding the foregoing, the Administrator may require that (a) the
Participant deliver the certificate(s) for the Shares to the Administrator
or
its designee to be held in escrow until the Award vests (in which case the
Shares will be released to the Participant) or is forfeited (in which case
the
Shares shall be returned to the Corporation); and/or (b) the Participant
deliver
to the Corporation a stock power, endorsed in blank, relating to the Shares
that
are subject to forfeiture. Except as otherwise provided in the Plan or this
Agreement, the Participant shall have all voting, dividend and other rights
of a
shareholder with respect to the Shares following issuance of the certificate
or
certificates for the Shares.
14. Withholding;
Tax Matters.
(a) The
Participant acknowledges that the Corporation shall require the Participant
to
pay the Corporation in cash the amount of any local, state, federal, foreign
or
other tax or other amount required by any governmental authority to be withheld
and paid over by the Corporation to such authority for the account of the
Participant, and the Participant agrees, as a condition to the grant of the
Award and delivery of the Shares or any other benefit, to satisfy such
obligations. Notwithstanding the foregoing, the Administrator may establish
procedures to permit the Participant to satisfy such obligations in whole
or in
part, and any other local, state, federal, foreign or other income tax
obligations relating to the Award, by electing (the "election") to have the
Corporation withhold shares of Common Stock from the Shares to which the
Participant is entitled. The number of the Shares to be withheld shall have
a
Fair Market Value as of the date that the amount of tax to be withheld is
determined as nearly equal as possible to (but not exceeding) the amount
of such
obligations being satisfied. Each election must be made in writing to the
Administrator in accordance with election procedures established by the
Administrator.
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(b) The
Participant acknowledges that the Corporation has made no warranties or
representations to the Participant with respect to the tax consequences
(including, but not limited to, income tax consequences) related to the
transactions contemplated by this Agreement, and the Participant is in no
manner
relying on the Corporation or its representatives for an assessment of such
tax
consequences. The Participant acknowledges that there may be adverse tax
consequences upon acquisition or disposition of the Shares and that the
Participant has been advised that he or she should consult with his or her
own
attorney, accountant, and/or tax advisor regarding the decision to enter
into
this Agreement and the consequences thereof. The Participant also acknowledges
that the Corporation has no responsibility to take or refrain from taking
any
actions in order to achieve a certain tax result for the Participant.
15. Administration.
The
authority to construe and interpret this Agreement and the Plan, and to
administer all aspects of the Plan, shall be vested in the Administrator,
and
the Administrator shall have all powers with respect to this Agreement as
are
provided in the Plan. Any interpretation of this Agreement by the Administrator
and any decision made by it with respect to this Agreement is final and binding.
16. Notices.
Except
as may be otherwise provided by the Plan, any written notices provided for
in
this Agreement or the Plan shall be in writing and shall be deemed sufficiently
given if either hand delivered or if sent by fax or overnight courier, or
by
postage paid first class mail. Notices sent by mail shall be deemed received
three business days after mailed but in no event later than the date of actual
receipt. Notices shall be directed, if to the Participant, at the Participant's
address indicated by the Corporation's records (or such other address as
may be
designated by the Participant in a manner acceptable to the Administrator),
or,
if to the Corporation, at the Corporation's principal office, attention Chief
Financial Officer.
17. Severability.
If
any
provision of this Agreement shall be held illegal or invalid for any reason,
such illegality or invalidity shall not affect the remaining parts of this
Agreement, and this Agreement shall be construed and enforced as if the illegal
or invalid provision had not been included.
18. Restrictions
on Award and Shares.
(a) As
a
condition to the issuance and delivery of the Shares, or the grant of any
benefit pursuant to the Plan, the Corporation may require the Participant
or
other person to become a party to this Agreement, any agreement(s) restricting
the transfer, purchase or repurchase of shares of Common Stock, any voting
agreement(s), any employment agreement(s), any consulting agreement(s), any
non-competition agreement(s), any confidentiality agreement(s), any
non-solicitation agreement(s) and/or any other agreement(s) imposing such
restrictions as may be required by the Corporation. Without in any way limiting
the effect of the foregoing, the Participant or other holder of any of the
Shares shall be permitted to transfer such shares only if such transfer is
in
accordance with the terms of Section 15 of the Plan, this Agreement and/or
any
other applicable agreement(s). The Participant acknowledges that the acquisition
of any of the Shares by the Participant or other holder is subject to, and
conditioned upon, the agreement of the Participant or such holder to the
restrictions described in Section 15 of the Plan, this Agreement and/or any
other applicable agreement(s).
4
(b) The
Corporation may impose such restrictions on the Award, the Shares and/or
any
other benefits underlying the Award as it may deem advisable, including without
limitation restrictions under the federal securities laws, the requirements
of
any stock exchange or similar organization and any blue sky, state or foreign
securities laws applicable to such securities. Notwithstanding any other
provision in the Plan or this Agreement to the contrary, the Corporation
shall
not be obligated to issue, deliver or transfer shares of Common Stock, make
any
other distribution of benefits, or take any other action, unless such delivery,
distribution or action is in compliance with Applicable Laws (including but
not
limited to the requirements of the Securities Act). The Corporation may cause
a
restrictive legend or legends (including but in no way limited to any legends
that may be necessary or appropriate pursuant to Section 13 herein) to be
placed
on any certificate for any of the Shares issued pursuant to the Award in
such
form as may be prescribed from time to time by Applicable Laws or as may
be
advised by legal counsel.
19. Counterparts;
Further Instruments.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument. The parties hereto agree to execute such further instruments
and to
take such further action as may be reasonably necessary to carry out the
purposes and intent of this Agreement.
20. Effect
of Changes in Status.
Unless
the Administrator determines otherwise, the Award shall not be affected by
any
change in the terms, conditions or status of the Participant's employment
or
service, provided that the Participant continues to be an employee of, or
in
service to, the Corporation or an Affiliate.
21. Rules
of Construction.
Headings are given to the sections of this Agreement solely as a conveni-ence
to
facilitate reference. The reference to any statute, regulation or other
provision of law shall be construed to refer to any amendment to or successor
of
such provision of law.
22. Successors
and Assigns.
This
Agreement shall be binding upon the Corporation and its successors and assigns,
and the Participant and his or her executors, administrators and permitted
transferees and beneficiaries.
23. Right
of Offset.
Notwithstanding any other provision of the Plan or this Agreement, the
Corporation may reduce the amount of any payment or benefit otherwise payable
to
or on behalf of the Participant by the amount of any obligation of the
Participant to or on behalf of the Corporation or an Affiliate that is or
becomes due and payable.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, this Agreement has been executed in behalf of the Corporation
and by the Participant on the day and year first above written.
| POKERTEK, INC. | ||
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By:
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Xxxxxx
X. Xxxxx
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Chief
Executive Officer
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Attest:
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Xxxxx
Xxxxxxxx
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Secretary
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PARTICIPANT
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Printed
Name
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[Insert
applicable Schedule A]
POKERTEK,
INC.
2007
STOCK INCENTIVE PLAN
SCHEDULE
A
PERFORMANCE
MEASURES
1. Purpose.
The
purpose of this Schedule A is to set forth the Performance Measures that
will be
applied to determine the amount of the Award to be made under the terms of
the
attached Restricted Stock Award Agreement (the "Agreement"). This Schedule
A is
incorporated into and forms a part of the Agreement.
2. Revision
of Performance Measures.
The
Performance Measures set forth in this Schedule A may be modified by the
Administrator during, and after the end of, the Restriction Period to reflect
significant events that occur during the Restriction Period.
3. Performance
Goals.
The
Performance Goals shall be as follows:
[Insert
Schedule]
4. Amount
of Award.
The
amount distributable to the Participant under the Agreement shall be determined
in accordance with the following schedule:
[Insert
Schedule]
Schedule
A-1
[Insert
applicable Schedule A]
POKERTEK,
INC.
2007
STOCK INCENTIVE PLAN
SCHEDULE
A
SERVICE
MEASURES
Grant Date:
,
.
Number
of
Shares Subject to Award:
shares.
Restriction
Period: The Shares subject to the Award shall vest and be earned, as provided
below, subject to the terms and conditions as may be imposed by the Plan
and the
Agreement:
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Date
of Vesting
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Percentage
of Shares Vested
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[Insert
Schedule]
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Schedule
A-2
[Insert
applicable Schedule A]
POKERTEK,
INC.
2007
STOCK INCENTIVE PLAN
SCHEDULE
A
COMBINATION
OF PERFORMANCE AND SERVICE MEASURES
A. Performance
Measures
1. Purpose.
The
purpose of this portion of Schedule A is to set forth the Performance Measures
that will be applied to determine the amount of the Award to be made under
the
terms of the attached Restricted Stock Award Agreement (the "Agreement").
This
Schedule A is incorporated into and forms a part of the Agreement.
2. Revision
of Performance Measures.
The
Performance Measures set forth in this Schedule A may be modified by the
Administrator during, and after the end of, the Restriction Period to reflect
significant events that occur during the Restriction Period.
3. Performance
Goals.
The
Performance Goals shall be as follows:
[Insert
Schedule]
4. Amount
of Award.
The
amount distributable to the Participant under the Agreement shall be determined
in accordance with the following schedule:
[Insert
Schedule]
B. Service
Measures
Grant Date:
,
.
Number
of
Shares Subject to Award:
shares.
Restriction
Period: The Shares subject to the Award shall vest and be earned, as provided
below, subject to the terms and conditions as may be imposed by the Plan
and the
Agreement:
|
Date
of Vesting
|
|
Percentage
of Shares Vested
|
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[Insert
Schedule]
|
||
Exhibit
A-1
