PLANTRONICS, INC. RESTRICTED STOCK PURCHASE AGREEMENT
Exhibit
99.1
PLANTRONICS,
INC.
I. NOTICE
OF GRANT OF RESTRICTED STOCK
Purchaser:
Address:
You
have
been granted a right to purchase Shares of Restricted Stock, subject to the
terms and conditions of this Agreement, as follows:
|
Date
of Grant
|
_____________,
2005
|
|
Exercise
Price Per Share
|
$0.01
|
|
Total
Number of Shares of Restricted Stock
|
5,000
|
|
Total
Purchase Price
|
$50.00
|
|
Expiration
Date
|
_____________,
2005
|
YOU
MUST EXERCISE THIS STOCK PURCHASE RIGHT BEFORE THE EXPIRATION DATE OR IT WILL
TERMINATE AND YOU WILL HAVE NO FURTHER RIGHT TO PURCHASE THE
SHARES.
II. AGREEMENT
1. Purchase
and Sale of Shares.
Pursuant
to the offer letter by and between Purchaser and the Company dated as of July
11, 2005 (the “Offer
Letter”),
which
such document is hereby incorporated by reference, Purchaser hereby purchases
from the Company, and the Company hereby issues and sells to Purchaser, an
aggregate of 5,000 shares of Common Stock (the “Shares”),
at a
price of $0.01 per share or an aggregate purchase price of $50.00. The Company
will, promptly after execution of this Agreement, issue a certificate
representing the Shares registered in the name of Purchaser, which certificate
will be held in escrow pursuant to the provisions of Section 5 hereof. In
return, the Purchaser will deliver to the Company (a) an executed
counterpart of this Agreement and stock assignment attached hereto as
Exhibit
A,
and
(b) the purchase price of the Shares in the form of a check payable
to the
Company.
2. Definitions.
As used
herein, the following definitions will apply:
(a) “Board”
means
the Board of Directors of the Company or any committee of an individual or
individuals that has been designated by the Board to administer this
Agreement.
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(b) “Code”
means
the Internal Revenue Code of 1986, as amended. Any
reference to a section of the Code herein will be a reference to any successor
or amended section of the Code.
(c) “Common
Stock”
means
the common stock of the Company.
(d) “Consultant”
means
any person, including an advisor, engaged by the Company or a Parent or
Subsidiary to render services to such entity.
(e) “Director”
means a
member of the Board.
(f) “Employee”means
any
person employed by the Company or any Parent or Subsidiary of the Company.
An
Employee will not cease to be such in the case of (i) any leave of absence
approved by the Company or (ii) transfers between locations of the Company
or
between the Company, its Parent, any Subsidiary, or any successor. Neither
service as a Director nor payment of a Director’s fee by the Company will be
sufficient to constitute “employment” by the Company.
(g) “Fair
Market Value”
means,
as of any date, the value of Common Stock determined as follows:
(i) If
the Common Stock is listed on any established stock exchange or a national
market system, including without limitation the New York Stock Exchange (NYSE),
its Fair Market Value will be the closing sales price for such stock (or the
closing bid, if no sales were reported) as quoted on such exchange or system
for
the day of determination, as reported in The
Wall Street Journal
or such other source as the Board deems reliable;
(ii) If
the Common Stock is regularly quoted by a recognized securities dealer but
selling prices are not reported, the Fair Market Value of a Share of Common
Stock will be the mean between the high bid and low asked prices for the Common
Stock on the day of determination, as reported in The
Wall Street Journal
or such other source as the Board deems reliable; or
(iii) In
the absence of an established market for the Common Stock, the Fair Market
Value
will be determined in good faith by the Board.
(h) “Parent”
means a
“parent corporation”, whether now or hereafter existing, as defined in
Section 424(e) of the Code.
(i) “Service
Provider”
means an
Employee, Director or Consultant.
(j) “Subsidiary”
means a
“subsidiary corporation”, whether now or hereafter existing, as defined in
Section 424(f) of the Code.
(k) “Unvested
Shares”means
those Shares that, as of any particular date, have not vested in accordance
with
the vesting schedule set forth in Section 4 below.
(l) “Vesting
Commencement Date”
will
mean [________], 2005.
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3. Vesting.
The
Shares will vest and be released from the Company’s Reacquisition Right (as
hereinafter defined) in accordance with the following provisions:
(a) One-third
(1/3rd)
of the
Shares will vest on each of the first three anniversaries of the Vesting
Commencement Date.
(b) Vesting
under this Section will cease in the event that Purchaser ceases to be a Service
Provider. At such times, the provisions of Section 4 hereof will apply to all
Shares that are Unvested Shares as of the date of such termination.
4. Forfeiture.
In the event Purchaser ceases to be a Service Provider for any or no reason
(including death or disability) before all of the Shares of Restricted Stock
are
released from the Company’s Reacquisition Right (see Section 3), all such
Shares will thereupon be forfeited and automatically transferred to and
reacquired by the Company at no cost to the Company (the “Reacquisition
Right”).
Purchaser will not be entitled to a refund of the price paid for any Shares
of
Restricted Stock returned to the Company pursuant to this Section 5.
Upon
such termination, the Company will become the legal and beneficial owner of
the
Shares of Restricted Stock being forfeited and reacquired by the Company and
all
rights and interests therein or relating thereto, and the Company will have
the
right to retain and transfer to its own name the number of Shares of Restricted
Stock being reacquired by the Company.
5. Escrow
of Shares.
(a) All
Shares of Restricted Stock will, upon execution of this Agreement, be delivered
and deposited with an escrow holder designated by the Company (the “Escrow
Holder”).
The
Shares of Restricted Stock and stock assignment attached hereto as Exhibit
A
will be
held by the Escrow Holder until such time as the Company’s Reacquisition Right
expires or the date Purchaser’s status as a Service Provider
terminates.
(b) The
Escrow Holder will not be liable for any act it may do or omit to do with
respect to holding the Unvested Shares in escrow while acting in good faith
and
in the exercise of its judgment.
(c) Upon
the
date Purchaser’s status as a Service Provider terminates for any reason, the
Escrow Holder, upon receipt of written notice of such termination, will take
all
steps necessary to accomplish the transfer of the Unvested Shares to the
Company. Purchaser
hereby appoints the Escrow Holder with full power of substitution, as
Purchaser’s true and lawful attorney-in-fact with irrevocable power and
authority in the name and on behalf of Purchaser to take any action and execute
all documents and instruments, including, without limitation, stock powers
which
may be necessary to transfer the certificate or certificates evidencing such
Unvested Shares to the Company upon such termination.
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(d) When
a
portion of the Shares has been released from the Reacquisition Right, upon
request, the Escrow Holder will take all steps necessary to accomplish the
transfer of the Unvested Shares to Purchaser.
(e) Subject
to the terms hereof, Purchaser will have all the rights of a shareholder with
respect to the Shares while they are held in escrow, including without
limitation, the right to vote the Shares and to receive any cash dividends
declared thereon.
(f) In
the
event of any merger, reorganization, consolidation, recapitalization,
separation, liquidation, stock dividend, split-up, share combination, or other
change in the corporate structure of the Company affecting the Common Stock,
the
Shares of Restricted Stock will be increased, reduced or otherwise changed,
and
by virtue of any such change Purchaser will in his capacity as owner of Unvested
Shares that have been awarded to him be entitled to new or additional or
different shares of stock, cash or securities (other than rights or warrants
to
purchase securities); such new or additional or different shares, cash or
securities will thereupon be considered to be Unvested Shares and will be
subject to all of the conditions and restrictions which were applicable to
the
Unvested Shares pursuant to this Agreement. If Purchaser receives rights or
warrants with respect to any Unvested Shares, such rights or warrants may be
held or exercised by Purchaser, provided that until such exercise any such
rights or warrants and after such exercise any shares or other securities
acquired by the exercise of such rights or warrants will be considered to be
Unvested Shares and will be subject to all of the conditions and restrictions
which were applicable to the Unvested Shares pursuant to this Agreement. The
Board in its absolute discretion at any time may accelerate the vesting of
all
or any portion of such new or additional shares of stock, cash or securities,
rights or warrants to purchase securities or shares or other securities acquired
by the exercise of such rights or warrants.
(g) The
Company may instruct the transfer agent for its Common Stock to place a legend
on the certificates representing the Restricted Stock or otherwise note its
records as to the restrictions on transfer set forth in this
Agreement.
6. Withholding
of Taxes.
Notwithstanding any contrary provision of this Agreement, no certificate
representing the Shares of Restricted Stock may be released from the escrow
established pursuant to Section 5, unless and until satisfactory
arrangements (as determined by the Board) will have been made by Purchaser
with
respect to the payment of income, employment and other taxes which the Company
determines must be withheld with respect to such Shares. The Board, in its
sole
discretion and pursuant to such procedures as it may specify from time to time,
may permit Purchaser to satisfy such tax withholding obligation, in whole or
in
part, by (without limitation) (a) electing to have the Company withhold
otherwise deliverable Shares, or (b) delivering to the Company already vested
and owned Shares having a Fair Market Value, in each case equal to the minimum
amount required to be withheld.
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7. Section
83(b) Elections.
Purchaser understands that Section 83 of the Code, taxes as ordinary
income
the difference between the amount paid for the Shares and the Fair Market Value
of the Shares as of the date any restrictions on the Shares lapse. In this
context, “restriction” means the right of the Company to reacquire the Shares
pursuant to the Reacquisition Right. Purchaser understands that he may elect
to
be taxed at the time the Shares are purchased rather than when any restrictions
applicable to the Shares lapse, by filing an election under Section 83(b)
of the Code with the Internal Revenue Service within thirty (30) days
from
the date of the Date of Grant. Purchaser understands that failure to make this
filing in a timely manner will result in the recognition of ordinary income
by
Purchaser, as any restrictions applicable to the Shares lapse, on any difference
between the purchase price and the Fair Market Value of the Shares at the time
such restrictions lapse. A form of Election under Section 83(b) is attached
to the Agreement as Exhibit B
for
reference.
PURCHASER
ACKNOWLEDGES THAT IT IS PURCHASER’S SOLE RESPONSIBILITY AND NOT THE COMPANY’S TO
FILE TIMELY THE ELECTION UNDER SECTION 83(b) OF THE CODE, EVEN IF PURCHASER
REQUESTS THE COMPANY OR ITS REPRESENTATIVE TO MAKE THIS FILING ON PURCHASER’S
BEHALF.
8. Additional
Actions.
The
parties will execute such further instruments and take such further action
as
may reasonably be necessary to carry out the intent of this
Agreement.
9. General
Provisions.
(a) This
Agreement will be governed by the internal substantive laws, but not the choice
of law rules of Pennsylvania. This Agreement, together with the Offer Letter,
represents the entire agreement between the parties with respect to the purchase
of the Shares by Purchaser. In the event of a conflict between the terms and
conditions of the Offer Letter and the terms and conditions of this Agreement,
the terms and conditions of this Agreement will prevail.
(b) Any
notice, demand or request required or permitted to be given by either the
Company or Purchaser pursuant to the terms of this Agreement will be in writing
and will be deemed given when delivered personally or deposited in the U.S.
mail, First Class with postage prepaid, and addressed to the parties at the
addresses of the parties set forth at the end of this Agreement or such other
address as a party may request by notifying the other in writing.
Any
notice to the Escrow Holder will be sent to the Company’s address with a copy to
the other party hereto.
(c) The
rights of the Company under this Agreement will be transferable to any one
or
more persons or entities, and all covenants and agreements hereunder will inure
to the benefit of, and be enforceable by the Company’s successors and assigns.
The rights and obligations of Purchaser under this Agreement may only be
assigned with the prior written consent of the Company.
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(d) Either
party’s failure to enforce any provision of this Agreement will not in any way
be construed as a waiver of any such provision, nor prevent that party from
thereafter enforcing any other provision of this Agreement. The rights granted
both parties hereunder are cumulative and will not constitute a waiver of either
party’s right to assert any other legal remedy available to it.
(e) Xxxxxxxxx
agrees upon request to execute any further documents or instruments necessary
or
desirable to carry out the purposes or intent of this Agreement.
(f) Purchaser
acknowledges and agrees that the vesting of Shares of Restricted Stock pursuant
to Section 3 hereof is earned only by continuing as a Service Provider at the
will of the Company or its Parent or Subsidiary employing Purchaser (and not
through the act of being hired or purchasing Shares hereunder). Purchaser
further acknowledges and agrees that this Agreement, the transactions
contemplated hereunder and the vesting schedule set forth herein do not
constitute an express or implied promise of continued engagement as a Service
Provider for the vesting period, for any period, or at all, and will not
interfere with Purchaser’s right or the Company’s (or its Parent’s or
Subsidiary’s) right to terminate Purchaser’s relationship as a Service Provider
at any time, with or without cause.
By
Purchaser’s signature below, Purchaser represents that he or she is familiar
with the terms and provisions of this Agreement and hereby accepts it subject
to
all of the terms and provisions hereof. Purchaser has reviewed this Agreement
in
its entirety, has had an opportunity to obtain the advice of counsel prior
to
executing this Agreement, and fully understands all provisions of this
Agreement. Purchaser agrees to accept as binding, conclusive and final all
decisions or interpretations of the Board upon any questions arising under
this
Agreement. Purchaser further agrees to notify the Company upon any change in
the
residence indicated below.
IN
WITNESS WHEREOF, this Agreement is deemed made as of the date first set forth
above.
|
PLANTRONICS,
INC.
|
|
By
_________________________________________________
|
|
Title
_________________________________________________
|
|
PURCHASER
|
| ______________________________________________________ |
|
|
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|
ADDRESS:
|
| ________________________________________________________ |
| ________________________________________________________ |
| ________________________________________________________ |
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EXHIBIT
A
ASSIGNMENT
SEPARATE FROM CERTIFICATE
FOR
VALUE
RECEIVED I, __________________________, hereby sell, assign and transfer unto
Plantronics, Inc. _____________ shares of the Common Stock of
Plantronics, Inc. standing in my name of the books of said corporation
represented by Certificate No. _____ herewith and do hereby irrevocably
constitute and appoint ______________________________ to transfer the said
stock
on the books of the within named corporation with full power of substitution
in
the premises.
This
Stock Assignment may be used only in accordance with the Restricted Stock Award
Agreement between Plantronics, Inc. and the undersigned dated ______________,
____ (the “Agreement”).
Dated:
_______________, _____ Signature:______________________________
INSTRUCTIONS:
Please
do not fill in any blanks other than the signature line. The purpose of this
assignment is to enable the Company to exercise its Reacquisition Right as
set
forth in the Agreement, without requiring additional signatures on the part
of
Optionee.
EXHIBIT
B
ELECTION
UNDER SECTION 83(b)
OF
THE
INTERNAL REVENUE CODE OF 1986
The
undersigned taxpayer hereby elects, pursuant to the above-referenced Federal
Tax
Code, to include in taxpayer’s gross income for the current taxable year, the
amount of any compensation taxable to taxpayer in connection with his receipt
of
the property described below:
1. The
name,
address, taxpayer identification number and taxable year of the undersigned
are
as follows:
|
NAME
:
|
TAXPAYER:________________________________
|
SPOUSE:_______________________________________
|
ADDRESS:
|
IDENTIFICATION
NO.:
|
TAXPAYER:_________________________________
|
SPOUSE:________________________________________
|
TAXABLE
YEAR: Calendar Year _____
|
2.
|
The
property with respect to which the election is made is described
as
follows: _____ shares (the “Shares”)
of the Common Stock of Plantronics, Inc., a Delaware corporation
(the
“Company”).
|
3. The
date
on which the property was transferred is: ___________________ ,
_____.
4. The
property is subject to the following restrictions:
|
The
Shares may be repurchased by the Company, or its assignee, on certain
events. This right lapses with regard to a portion of the Shares
based on
the continued performance of services by the taxpayer over
time.
|
|
5.
|
The
fair market value at the time of transfer, determined without regard
to
any restriction other than a restriction which by its terms will
never
lapse, of such property is: $_____.
|
6. The
amount (if any) paid for such property is: $________.
The
undersigned has submitted a copy of this statement to the person for whom the
services were performed in connection with the undersigned’s receipt of the
above-described property. The transferee of such property is the person
performing the services in connection with the transfer of said
property.
The
undersigned understands that the foregoing election may not be revoked except
with the consent of the Commissioner.
Date:
_______________________________ ,
_____
Taxpayer
The
undersigned spouse of taxpayer joins in this election.
Dated:
______________________________ ,
_____
Spouse
of
Taxpayer
