SJW CORP. RESTRICTED STOCK UNIT ISSUANCE AGREEMENT
EXHIBIT
10.20
RECITALS
A. The
Board has adopted the Plan for the purpose of retaining the services of selected
Employees and consultants and other independent advisors who provide services to
the Corporation (or any Parent or Subsidiary).
B. Participant
is to render valuable services to the Corporation (or a Parent or Subsidiary),
and this Agreement is executed pursuant to, and is intended to carry out the
purposes of, the Plan in connection with the Corporation’s issuance of an equity
incentive award under the Plan designed to retain Participant's continued
service.
C. All
capitalized terms in this Agreement shall have the meaning assigned to them in
the attached Appendix A.
NOW, THEREFORE, it is hereby
agreed as follows:
1. Grant of
Restricted Stock Units. The Corporation hereby awards to
Participant, as of the Award Date, Restricted Stock Units under the
Plan. Each Restricted Stock Unit which vests during Participant’s
period of Service shall entitle Participant to receive one share of Common Stock
on the applicable vesting date. The number of shares of Common Stock
subject to the awarded Restricted Stock Units, the applicable vesting schedule
for those shares, the applicable date or 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.
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Award
Date:
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____________________
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Number of Shares
Subject to
Award:
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______shares of Common Stock
(the “Shares”)
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Vesting
Schedule:
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The
Shares shall vest in a series of _____ (_) successive equal
annual installments upon Participant’s completion of each year of Service
over the _____ (_)-year
period measured from the Award Date (the “Normal Vesting
Schedule”). However, the Shares may be subject to accelerated
vesting in accordance with the provisions of Paragraphs 4 and 6
below.
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Issuance
Schedule:
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Each
Share in which Participant vests in accordance with the Normal Vesting
Schedule shall be issued, subject to the Corporation’s collection of all
applicable Withholding Taxes, on the date that particular Share vests (the
“Issuance Date”) or as soon after that scheduled Issuance Date as
administratively practicable, but in no event later than the close of the
calendar year in which such Issuance Date occurs. The Shares
which vest pursuant to Paragraph 4 or Paragraph 6 of this Agreement shall
be issued in accordance with the provisions of the applicable Paragraph.
The applicable Withholding Taxes are to be collected pursuant to the
procedure set forth in Paragraph 8 of this Agreement.
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2. Limited
Transferability. Prior to actual receipt of the Shares which
vest and become issuable hereunder, Participant may not transfer any interest in
the Award or the underlying Shares. Any Shares which vest hereunder but which
otherwise remain unissued at the time of Participant’s death may be transferred
pursuant to the provisions of Participant’s will or the laws of inheritance or
to Participant’s designated beneficiary or beneficiaries of this
Award. Participant may also direct the Corporation to re-issue the
stock certificates for any Shares which in fact vest and become issuable under
the Award during his or her lifetime to one or more designated family members or
a trust established for Participant and/or his or her family
members. Participant may make such a beneficiary designation or
certificate directive at any time by filing the appropriate form with the Plan
Administrator or its designee.
3. Cessation
of Service. Except as otherwise provided in Paragraph 4 or
Paragraph 6 below, should Participant cease Service for any reason prior to
vesting in one or more Shares subject to this Award, then the Award shall be
immediately cancelled with respect to those unvested Shares, and the number of
Restricted Stock Units will be reduced accordingly. Participant shall
thereupon cease to have any right or entitlement to receive any Shares under
those cancelled units.
4. Accelerated
Vesting.
A. Upon
(i) the Participant’s cessation of Employee status by reason of death or
Permanent Disability, (ii) the Participant’s resignation from Employee status
for Good Reason or (iii) the Corporation’s termination of the Participant’s
Employee status other than for Good Cause, all the Restricted Stock Units at the
time subject to this Award, together with the underlying Shares, shall
immediately vest.
B. The
Shares to which the Participant becomes entitled pursuant to the vesting
provisions of Paragraph 4.A shall be issued on the date of his Separation from
Service or as soon as administratively practicable thereafter, subject to the
Corporation’s collection of the applicable Withholding Taxes, but in no event
later than the close of the calendar year in which such Separation from Service
occurs or (if later) the fifteenth (15th) day of the third (3rd) calendar month
following the date of such Separation from Service.
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C. The
accelerated vesting provisions of this Paragraph 4 shall apply and be effective
whether such cessation or termination of Employee status occurs before or after
the consummation of a Change in Control transaction.
D. Each
Share in which Participant may be deemed, by reason of the vesting acceleration
provisions of this Paragraph 4, to vest prior to the actual termination or
cessation of his Employee status shall in no event be issued prior to the earlier of
(i) the Issuance Date applicable to that Share in accordance with the Normal
Vesting Schedule or (ii) the date of his Separation from Service.
5. Stockholder
Rights. The holder of this Award shall not have any
stockholder rights, including voting or dividend rights, with respect to the
Shares subject to the Award until the Participant becomes the record holder of
those Shares following their actual issuance upon the Corporation’s collection
of the applicable Withholding Taxes.
6. Change in
Control.
A. Any
Restricted Stock Units subject to this Award at the time of a Change in Control
may be assumed by the successor entity or otherwise continued in full force and
effect or may be replaced with a cash retention program of the successor entity
which preserves the Fair Market Value of the underlying Shares at the time of
the Change in Control and provides for the subsequent vesting and payout of that
value in accordance with the same vesting and payout provisions that would be
applicable to those Shares in the absence of such Change in Control. In the
event of such assumption or continuation of the Award or such replacement of the
Award with a cash retention program, no accelerated vesting of the Restricted
Stock Units or the underlying Shares shall occur at the time of the Change in
Control.
B. In
the event the Award is assumed or otherwise continued in effect, the Restricted
Stock Units subject to the Award will be adjusted immediately after the
consummation of the Change in Control so as to apply to the number and class of
securities into which the Shares subject to those units immediately prior to the
Change in Control would have been converted in consummation of that Change in
Control had those Shares actually been issued and outstanding at that
time. To the extent the actual holders of the outstanding Common
Stock receive cash consideration for the Common Stock in consummation of the
Change in Control, the successor corporation may, in connection with the
assumption or continuation of the Restricted Stock Units subject to the Award at
that time, substitute one or more shares of its own common stock with a fair
market value equivalent to the cash consideration paid per share of Common Stock
in the Change in Control transaction, provided such shares are registered under
the federal securities laws and readily tradable on an established securities
exchange.
C. If
the Restricted Stock Units subject to this Award at the time of the Change in
Control are not assumed or otherwise continued in effect or replaced with a cash
retention program in accordance with Paragraph 6.A above, then those units shall
vest immediately prior to the closing of the Change in Control. The Shares
subject to those vested units shall be converted into the right to receive the
same consideration per share of Common Stock payable to the other stockholders
of the Corporation in consummation of that Change in Control, and such
consideration per Share shall be distributed to Participant upon the tenth
(10th) business day following the earliest
to occur of (i) the Issuance Date determined for that Share in accordance
with the Normal Vesting Schedule, (ii) the date of Participant’s Separation from
Service or (iii) the first date following the Change in Control on which the
distribution can be made without contravention of any applicable provisions of
Code Section 409A. Such distribution shall be subject to the Corporation’s
collection of the applicable Withholding Taxes pursuant to the provisions of
Paragraph 8.
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D. This
Agreement shall not in any way affect the right of the Corporation to adjust,
reorganize or otherwise change its capital or business structure or to merge,
consolidate, dissolve, liquidate or sell or transfer all or any part of its
business or assets.
7. Adjustment
in Shares. Should any change
be made to the Common Stock by reason of any stock split, stock dividend,
recapitalization, combination of shares, exchange of shares, spin-off
transaction, extraordinary dividend or distribution or other change affecting
the outstanding Common Stock as a class without the Corporation’s receipt of
consideration, or should the value of outstanding shares of Common Stock be
substantially reduced as a result of a spin-off transaction or an extraordinary
dividend or distribution, or should there occur any merger, consolidation or
other reorganization, then equitable adjustments shall be made by the Plan
Administrator to the total number and/or class of securities issuable pursuant
to this Award in order to reflect such change and thereby prevent a dilution or
enlargement of benefits hereunder. The determination of the Plan Administrator
shall be final, binding and conclusive. In the event of a Change in
Control, the adjustments (if any) shall be made in accordance with the
provisions of Paragraph 6.
8. Issuance
of Shares/Collection of Withholding Taxes.
A. On
each applicable Issuance Date (or any earlier date on which the Shares are to be
issued in accordance with the terms of this Agreement), the Corporation shall
issue to or on behalf of the Participant a certificate (which may be in
electronic form) for the applicable number of shares of Common Stock, subject,
however, to the Corporation’s collection of the applicable Withholding
Taxes.
B. The
Corporation shall collect the applicable Withholding Taxes with respect to the
Shares which vest and become issuable hereunder through an automatic share
withholding procedure pursuant to which the Corporation will withhold, at the
time of such vesting, a portion of the Shares with a Fair Market Value (measured
as of the applicable vesting date) equal to the amount of those taxes; provided,
however, that the amount of any Shares so withheld shall not exceed the
amount necessary to satisfy the Corporation’s required withholding obligations
using the minimum statutory withholding rates for federal and state purposes
that are applicable to supplemental taxable income. In the event
payment is to be made in a form other than the Shares, the Corporation shall
collect from the Participant the applicable Withholding Taxes pursuant to such
procedures as the Corporation deems appropriate under the
circumstances.
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C. Notwithstanding
the foregoing provisions of Paragraph 8(b), the employee portion of the federal,
state and local employment taxes required to be withheld by the Corporation in
connection with the vesting of the Shares or any other amounts hereunder (the
“Employment Taxes”) shall in all events be collected from the Participant no
later than the last business day of the calendar year in which the Shares or
other amounts vest hereunder. Accordingly, to the extent the Issuance
Date for one or more vested Shares or the distribution date for such other
amounts is to occur in a year subsequent to the calendar year in which those
Shares or other amounts vest, the Participant shall, on or before the last
business day of the calendar year in which the Shares or other amounts vest,
deliver to the Corporation a check payable to its order in the dollar amount
equal to the Employment Taxes required to be withheld with respect to those
Shares or other amounts. The provisions of this Paragraph 8(c) shall
be applicable only to the extent necessary to comply with the applicable tax
withholding requirements of Code Section 3121(v).
D. Except
as otherwise provided in Paragraph 6 and Paragraph 8.A, the settlement of all
Restricted Stock Units which vest under the Award shall be made solely in shares
of Common Stock. In no event, however, shall any fractional shares be
issued. Accordingly, the total number of shares of Common Stock to be
issued pursuant to that Award shall, to the extent necessary, be rounded down to
the next whole share in order to avoid the issuance of a fractional
share.
9. Deferred
Issue Date.
Notwithstanding any provision to the contrary in this Agreement, no Shares or
other amounts which become issuable or distributable by reason of Participant’s
Separation from Service shall actually be issued or distributed to Participant
prior to the earlier of
(i) the first day of the seventh (7th) month following the date of such
Separation from Service or (ii) the date of Participant’s death, if Participant
is deemed at the time of such Separation from Service to be a specified employee
under Section 1.409A-1(i) of the Treasury Regulations issued under Code Section
409A, as determined by the Plan Administrator in accordance with consistent and
uniform standards applied to all other Code Section 409A arrangements of the
Corporation, and such delayed commencement is otherwise required in order to
avoid a prohibited distribution under Code Section 409A(a)(2). The
deferred Shares or other distributable amount shall be issued or distributed in
a lump sum on the first day of the seventh (7th) month following the date of
Participant’s Separation from Service or, if earlier, the first day of the month
immediately following the date the Corporation receives proof of Participant’s
death.
10. Compliance
with Laws and Regulations. The issuance of shares of Common
Stock pursuant to the Award shall be subject to compliance by the Corporation
and Participant with all applicable requirements of law relating thereto and
with all applicable regulations of any stock exchange on which the Common Stock
may be listed for trading at the time of such issuance.
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11. Notices. Any
notice required to be given or delivered to the Corporation under the terms of
this Agreement shall be in writing and addressed to the Corporation 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 indicated below Participant’s signature line on this
Agreement. All notices shall be deemed effective upon personal
delivery or upon deposit in the U.S. mail, postage prepaid and properly
addressed to the party to be notified.
12. 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 Corporation and its successors and assigns and Participant,
Participant’s assigns, the legal representatives, heirs and legatees of
Participant’s estate and any beneficiaries of the Award designated by
Participant.
13. 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 Plan Administrator with respect to any
question or issue arising under the Plan or this Agreement shall be conclusive
and binding on all persons having an interest in the Award.
14. 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.
15. Employment
at Will. Nothing in this Agreement or in the Plan shall confer
upon Participant any right to continue in Service for any period of specific
duration or interfere with or otherwise restrict in any way the rights of the
Corporation (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.
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IN WITNESS WHEREOF, the
parties have executed this Agreement on the day and year first indicated
above.
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By:
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Title:
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PARTICIPANT
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Signature:
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Address:
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APPENDIX
A
DEFINITIONS
The
following definitions shall be in effect under the Agreement:
A. Agreement shall mean this
Restricted Stock Unit Issuance Agreement.
B. Award
shall mean the award of Restricted Stock Units made to Participant pursuant to
the terms of the Agreement.
C. 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.
D. Board
shall mean the Corporation’s Board of Directors.
E. Change in
Control shall mean any change in control or ownership of the Corporation
which occurs by reason of one or more of the following events:
(i) the
acquisition, directly or indirectly by any person or related group of persons
(as such term is used in Sections 13(d) and 14(d) of the Exchange Act), other
than the Corporation or a person that directly or indirectly controls, is
controlled by, or is under control with, the Corporation or an employee benefit
plan maintained by any such entity, of beneficial ownership (as defined in Rule
13d-3 of the Exchange Act) of securities of the Corporation which, when added to
other acquisitions effected by such person or related group during the twelve
(12)-month period ending with the most recent acquisition, represent thirty-five
percent (35%) or more of the total combined voting power of the Corporation’s
then-outstanding securities;
(ii) a
merger, recapitalization, consolidation, or other similar transaction to which
the Corporation is a party, unless securities representing more than fifty
percent (50%) of the combined voting power of the then-outstanding securities of
the surviving entity or a parent thereof are immediately thereafter beneficially
owned, directly or indirectly and in substantially the same proportion, by the
persons who beneficially owned the Corporation’s outstanding voting securities
immediately before the transaction;
(iii) a
sale, transfer or disposition of all or substantially all of the Corporation’s
assets, unless securities representing at least fifty percent (50%) of the
combined voting power of the then-outstanding securities of the entity acquiring
the Corporation’s assets or parent thereof are immediately thereafter
beneficially owned, directly or indirectly and in substantially the same
proportion, by the persons who beneficially owned the Corporation’s outstanding
voting securities immediately before the transaction;
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(iv) a
merger, recapitalization, consolidation, or other transaction to which the
Corporation is a party or the sale, transfer, or other disposition of all or
substantially all of the Corporation’s assets if, in either case, the members of
the Board immediately prior to consummation of the transaction do not, upon
consummation of the transaction, constitute at least a majority of the board of
directors of the surviving entity or the entity acquiring the Corporation’s
assets, as the case may be, or a parent thereof (for this purpose, any change in
the composition of the board of directors that is anticipated or pursuant to an
understanding or agreement in connection with a transaction will be deemed to
have occurred at the time of the transaction, provided such change occurs within
twelve (12) months after the effective date of the transaction); or
(v) a
change in the composition of the Board over a period of twelve (12) consecutive
months or less such that a majority of the Board members ceases by reason of one
or more contested elections for Board membership, to be comprised of individuals
who either (a) have been Board members since the beginning of such period or (b)
have been elected or nominated for election as Board members during such period
by at least a majority of the Board members who were described in clause (a) or
who were previously so elected or approved and who were still in office at the
time the Board approved such election or nomination;
provided
that no Change in Control shall occur if the result of the transaction is to
give more ownership or control of the Corporation to any person or related group
of persons who hold securities representing more than thirty percent (30%) of
the combined voting power of the Corporation's outstanding securities as of
March 3, 2003.
F. Code shall mean the Internal
Revenue Code of 1986, as amended.
G. Common
Stock shall mean the shares of the Corporation’s common
stock.
H. Corporation
shall mean SJW Corp., a California corporation, and any successor corporation to
all or substantially all of the assets or voting stock of SJW Corp. which shall
by appropriate action adopt the Plan and/or assume the Award.
I. Disability
shall mean the Participant’s permanent and total disability as determined
pursuant to Section 22(e)(3) of the Code.
J. Employee
shall mean an individual who is in the employ of the Corporation (or any Parent
or Subsidiary), subject to the control and direction of the employer entity as
to both the work to be performed and the manner and method of
performance.
K. Fair
Market Value per share of Common Stock on any relevant date shall be the
closing selling price per share on the date in question on the Stock Exchange on
which the Common Stock is at that time primarily traded, as such price is
officially quoted in the composite tape of transactions on such
exchange. If there is no reported sale of Common Stock on such Stock
Exchange on the date in question, then the Fair Market Value shall be the
closing selling price on the exchange on the last preceding date for which such
quotation exists.
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L. Good
Cause shall be deemed to exist if, and only if: (i) Participant engages
in acts or omissions that result in substantial harm to the business or property
of the Corporation or any Parent or Subsidiary and that constitute dishonesty,
intentional breach of fiduciary obligation or intentional wrongdoing, or (ii)
Participant is convicted of a criminal violation involving fraud or
dishonesty.
M. Good
Reason shall mean the occurrence of any of the following events without
Participant’s express written consent:
N. 1934
Act shall mean the Securities Exchange Act of 1934, as
amended.
O. Participant
shall mean the person to whom the Award is made pursuant to the
Agreement.
P. Parent shall mean any
corporation (other than the Corporation) in an unbroken chain of corporations
ending with the Corporation, provided each corporation in the unbroken chain
(other than the Corporation) owns, at the time of the determination, stock
possessing fifty percent (50%) or more of the total combined voting power of all
classes of stock in one of the other corporations in such chain.
Q. Plan shall mean the
Corporation’s Long Term Incentive Plan.
R. Plan
Administrator shall mean either the Board or a committee of the Board
acting in its capacity as administrator of the Plan.
S. Restricted
Stock Unit shall mean each unit
subject to the Award which shall entitle Participant to receive one (1) share of
Common Stock upon the vesting of that unit.
T. Separation
from Service shall mean the
Participant’s cessation of Employee status by reason of his or her death,
retirement or termination of employment. The Participant shall be
deemed to have terminated employment for such purpose at such time as the level
of his or her bona fide services to be performed as an Employee (or as a
consultant or independent contractor) permanently decreases to a level that is
not more than twenty percent (20%) of the average level of services he or she
rendered as an Employee during the immediately preceding thirty-six (36) months
(or such shorter period for which he or she may have rendered such
services). Solely for purposes of determining when a Separation from
Service occurs, Participant will be deemed to continue in “Employee” status for
so long as he or she remains in the employ of one or more members of the
Employer Group, subject to the control and direction of the employer entity as
to both the work to be performed and the manner and method of performance.
“Employer Group” means the Corporation and any Parent or Subsidiary and any
other corporation or business controlled by, controlling or under common control
with, the Corporation, as determined in accordance with Sections 414(b) and (c)
of the Code and the Treasury Regulations thereunder, except that in applying
Sections 1563(1), (2) and (3) for purposes of determining the controlled group
of corporations under Section 414(b), the phrase “at least fifty percent (50%)”
shall be used instead of “at least eighty percent (80%)” each place the latter
phrase appears in such sections and in applying Section 1.414(c)-2 of the
Treasury Regulations for purposes of determining trades or businesses that are
under common control for purposes of Section 414(c), the phrase “at least 50
percent” shall be used instead of “at least 80 percent” each place the latter
phrase appears in Section 1.4.14(c)-2 of the Treasury
Regulations. Any such determination as to Separation from Service,
however, shall be made in accordance with the applicable standards of the
Treasury Regulations issued under Section 409A of the Code.
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U. Service
shall mean Participant’s performance of services for the Corporation (or any
Parent or Subsidiary) in the capacity of an Employee, a non-employee member of
the Board or a consultant or independent advisor. Participant shall
be deemed to cease Service immediately upon the occurrence of either of the
following events: (i) Participant no longer performs services in any
of the foregoing capacities for the Corporation (or any Parent or Subsidiary) or
(ii) the entity for which Participant performs such services ceases to remain a
Parent or Subsidiary of the Corporation, even though Participant may
subsequently continue to perform services for that entity. Service as
an Employee shall not be deemed to cease during a period of military leave, sick
leave or other personal leave approved by the Corporation; provided,
however, that the following special provisions shall be in effect for any
such leave:
(i) Should
the period of such leave (other than a disability leave) exceed six (6) months,
then Participant shall be deemed to cease Service and to incur a Separation from
Service upon the expiration of the initial six (6)- month period of that leave,
unless Participant retains a right to re-employment under applicable law or by
contract with the Corporation (or any Parent or Subsidiary).
(ii) Should
the period of a disability leave exceed twenty-nine (29) months, then
Participant shall be deemed to cease Service and to incur a Separation from
Service upon the expiration of the initial twenty-nine (29)-month period of that
leave, unless Participant retains a right to re-employment under applicable law
or by contract with the Corporation (or any Parent or
Subsidiary). For such purpose, a disability leave shall be a
leave of absence due to any medically determinable physical or mental impairment
that can be expected to result in death or to last for a continuous period of
not less than six (6) months and causes Participant to be unable to perform the
duties of his or her position of employment with the Corporation (or any Parent
or Subsidiary) or any substantially similar position of employment.
(iii) Except
to the extent otherwise required by law or expressly authorized by the Plan
Administrator or by the Corporation’s written policy on leaves of absence, no
Service credit shall be given for vesting purposes for any period Participant is
on a leave of absence.
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V. Stock
Exchange shall mean the American Stock Exchange, the Nasdaq Global or
Global Select Market or the New York Stock Exchange.
W. Subsidiary
shall mean any corporation (other than the Corporation) in an unbroken chain of
corporations beginning with the Corporation, provided each corporation (other
than the last corporation) in the unbroken chain owns, at the time of the
determination, stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
X. Withholding
Taxes shall
mean the federal, state and local income and employment taxes required to be
withheld by the Corporation in connection with the vesting and concurrent
issuance of the shares of Common Stock under the Award.
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