STOCK BONUS AGREEMENT
This Agreement is entered into as of June 25, 1998 between FEI Company, an
Oregon corporation ("FEI"), and Xxxx' Xxxxxxxxxx (the "Recipient").
FEI has awarded a stock bonus of 50,000 shares to the Recipient pursuant to
paragraph 7 of FEI's 1995 Stock Incentive Plan and Recipient desires to accept
the award subject to the terms and conditions of this agreement.
NOW, THEREFORE, the parties agree as follows:
1. Award of Restricted Stock Bonus. Subject to the terms and conditions of
this Agreement, FEI hereby grants to the Recipient 50,000 shares of FEI Common
Stock, of which 25,000 shares (the "Restricted Shares") are subject to
forfeiture to FEI as set forth in Section 2 below.
2. Forfeiture Restriction. If the Recipient ceases to be employed by FEI
for any reason other than termination by FEI without cause, all unvested
Restricted Shares shall be forfeited to FEI. If Recipient's employment is
terminated by FEI without cause, all Restricted Shares shall immediately vest.
All of the Restricted Shares shall vest on June 25, 1999. Nothing contained in
this Agreement shall confer upon Recipient any right to be employed by FEI or to
continue to provide services to FEI or to interfere in any way with the right of
FEI to terminate Recipient's services at any time for any reason, with or
without cause.
3. Restriction on Transfer. The Recipient shall not sell, assign, pledge,
or in any manner transfer unvested Restricted Shares, or any right or interest
in unvested Restricted Shares, whether voluntarily or by operation of law, or by
gift, bequest or otherwise. Any sale or transfer, or purported sale or transfer,
of unvested Restricted Shares, or any right or interest in unvested Restricted
Shares, in violation of this Section 3 shall be null and void.
4. Section 83(b) Election; Tax Withholding. (a) The Restricted Shares may
be subject to an election under Section 83 of the Internal Revenue Code of 1986,
as amended (the "Code"). The Recipient understands that Section 83 of the Code
taxes as ordinary income the difference between the amount paid for the
Restricted Shares and the fair market value of the Restricted Shares as of the
date any restrictions on the Restricted Shares lapse. In this context,
"restriction" means the forfeiture restriction applicable to the Restricted
Shares pursuant to Section 2. The Recipient understands that he may elect to be
taxed at the time the Restricted Shares are granted, rather than when and as the
forfeiture restrictions lapse, by filing an election under Section 83(b) of the
Code with the IRS within 30 days from the date of purchase. TO BE EFFECTIVE, THE
ELECTION MUST BE COMPLETED AND FILED WITHIN 30 DAYS FROM THE DATE OF GRANT.
Shareholder understands that failure to make this filing timely will result in
the
recognition of ordinary income by Shareholder as the forfeiture restrictions
lapse on the fair market value of the Restricted Shares at the time such
restrictions lapse. SHAREHOLDER ACKNOWLEDGES THAT IT IS SHAREHOLDER'S SOLE
RESPONSIBILITY AND NOT THE COMPANY'S TO FILE TIMELY THE ELECTION UNDER SECTION
83(b), EVEN IF SHAREHOLDER REQUESTS THE COMPANY OR ITS REPRESENTATIVES TO MAKE
THIS FILING ON SHAREHOLDER'S BEHALF.
(b) Recipient acknowledges that unless he shall have made the election
under Section 83(b) of the Code as contemplated in paragraph (a) above, at the
time any portion of the Restricted Shares vests, the value of such vested
Restricted Shares will be treated as ordinary compensation income for federal
and state income and FICA tax purposes and that FEI will be required to withhold
taxes on this income amount. Promptly following vesting, FEI will notify
Recipient of any required withholding amount. Within 10 days of such notice,
Recipient shall pay to FEI the required withholding amount in cash or, at the
election of the Recipient, by surrendering to FEI for cancellation Restricted
Shares or other shares of FEI Common Stock valued at the closing market price
for the FEI Common Stock on the last trading day preceding the date of
Recipient's election to surrender such shares.
5. Stock Certificate. Upon the execution and delivery of this Agreement,
the award of the Restricted Shares shall be completed and the Recipient shall be
the owner of the Restricted Shares with all voting and other rights of a
shareholder, except as limited by this Agreement. To secure the rights of FEI
under Sections 2 and 4, FEI will retain the certificate or certificates
representing the Restricted Shares. Upon any forfeiture of the Restricted Shares
covered by this Agreement, FEI shall have the right to cancel the Restricted
Shares in accordance with this Agreement without any further action by the
Recipient. After Restricted Shares have vested and any required withholding has
been paid to FEI in connection with such vesting, FEI shall deliver a
certificate for the vested Restricted Shares to the Recipient.
6. Additional FEI Shares. If, prior to vesting of Restricted Shares, the
outstanding FEI Common Stock is increased as a result of a stock dividend or
stock split, the restrictions and other provisions of this Agreement shall apply
to any such additional shares of FEI Common Stock which are issued in respect of
the Restricted Shares to the same extent as such restrictions and other
provisions apply to the Restricted Shares.
7. Restrictive Legends. Stock certificates for shares issued under this
Agreement may bear the following legends:
The shares represented by this certificate are subject to a Restricted
Stock Bonus Agreement between the registered owner and FEI Company which
restricts the transferability of the shares. A copy of the agreement is on
file with the Secretary of FEI Company.
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8. Tax Loan. FEI agrees to make one or more loans to the Recipient to cover
the Recipient's state and federal income tax liability in connection with the
stock bonus grant on the following terms: On each of the first five
anniversaries of the date hereof, provided that Recipient shall not have ceased
on or before such date to be employed by FEI for any reason or for no reason,
with or without cause, one fifth of the original principal sum hereof, together
with so much of the accrued and unpaid interest hereon to such date as bears the
same proportion to the total amount of such accrued and unpaid interest as the
amount of principal to be forgiven on such date bears to the principal balance
outstanding immediately prior thereto, shall be forgiven (it being understood
that immediately following the fifth anniversary hereof, subject to the same
proviso, the entire outstanding balance of principal and accrued interest will
have been forgiven). Nothing contained in this Note shall confer upon Recipient
any right to be employed by FEI or to continue to provide services to FEI or to
interfere in any way with the right of FEI to terminate Recipient's services at
any time for any reason, with or without cause. The full outstanding balance of
the principal and accrued interest hereon shall be immediately due and payable
in full on the date Recipient ceases to be employed by FEI for any reason
whatsoever, whether voluntary or involuntary; provided, however, that in the
event Recipient's employment with FEI is terminated by FEI without cause at any
time before May 15, 2001, the full outstanding balance of principal and accrued
interest hereon shall be forgiven on and as of the date of such termination. The
interest rate applicable will be 5.58 per cent per annum.
9. Miscellaneous.
9.1 Entire Agreement; Amendment. This Agreement constitutes the entire
agreement of the parties with regard to the subjects hereof and may be amended
only by written agreement between FEI and the Recipient.
9.2 Notices. Any notice required or permitted under this Agreement
shall be in writing and shall be deemed sufficient when delivered personally to
the party to whom it is addressed or when deposited into the United States Mail
as registered or certified mail, return receipt requested, postage prepaid,
addressed to FEI, Attention: Corporate Secretary, at its principal executive
offices or to the Recipient at the address of Recipient in FEI's records, or at
such other address as such party may designate by ten (10) days' advance written
notice to the other party.
9.3 Rights and Benefits. The rights and benefits of this Agreement
shall inure to the benefit of and be enforceable by FEI's successors and assigns
and, subject to the restrictions on transfer of this Agreement, be binding upon
the Recipient's heirs, executors, administrators, successors and assigns.
9.4 Further Action. The parties agree to execute such further
instruments and to take such further action as may reasonably be necessary to
carry out the intent of this Agreement.
9.5 Applicable Law; Attorneys' Fees. The terms and conditions of this
Agreement shall be governed by the laws of the State of Oregon. In the event
either party institutes litigation hereunder, the prevailing party shall be
entitled to reasonable attorneys' fees to be set by the trial court and, upon
any appeal, the appellate court.
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9.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
FEI COMPANY
By /s/
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RECIPIENT
/s/
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EXHIBIT A
FORM OF NOTE
$__________ ___________, 1998
Hillsboro, Oregon
NON-NEGOTIABLE PROMISSORY NOTE (STOCK BONUS)
FOR VALUE RECEIVED, Xxxx' Xxxxxxxxxx ("Maker") hereby promises to pay
to FEI Company, an Oregon corporation ("FEI"), at FEI's principal office,
Attention: Chief Financial Officer, or at such other place as FEI may designate
in writing from time to time, the principal sum of ________ Dollars ($________),
plus accrued and unpaid interest thereon, in lawful money of the United States
of America.
1. Interest. Interest shall accrue on the unpaid principal balance
outstanding hereunder at the rate of five and 58/100ths percent (5.58%)
percent per annum. Interest shall be compounded annually and shall be
calculated on the basis of a 365- or 366-day year, as applicable, for the
actual number of days elapsed.
2. Forgiveness; maturity. On each of the first five anniversaries of the
date hereof, provided that Maker shall not have ceased on or before such
date to be employed by FEI for any reason or for no reason, with or without
cause, one fifth of the original principal sum hereof, together with so
much of the accrued and unpaid interest hereon to such date as bears the
same proportion to the total amount of such accrued and unpaid interest as
the amount of principal to be forgiven on such date bears to the principal
balance outstanding immediately prior thereto, shall be forgiven (it being
understood that immediately following the fifth anniversary hereof, subject
to the same proviso, the entire outstanding balance of principal and
accrued interest will have been forgiven). Nothing contained in this Note
shall confer upon Maker any right to be employed by FEI or to continue to
provide services to FEI or to interfere in any way with the right of FEI to
terminate Maker's services at any time for any reason, with or without
cause. The full outstanding balance of the principal and accrued interest
hereon shall be immediately due and payable in full on the date Maker
ceases to be employed by FEI for any reason whatsoever, whether voluntary
or involuntary; provided, however, that in the event -----------------
Maker's employment with FEI is terminated by FEI without cause at any time
before May 15, 2001, the full outstanding balance of principal and accrued
interest hereon shall be forgiven on and as of the date of such
termination.
3. Prepayment. Maker may prepay all or any portion of this Note at any
time without penalty. Any such prepayment shall be applied first to pay
interest accrued to the date of prepayment and second to reduce the
principal balance hereof.
4. Repayment with Stock. In the event of termination of employment,
Maker shall have the right, but not the obligation, to deliver shares of
FEI common stock then owned by Maker in satisfaction, valued at fair market
value on the date of termination of employment, of Maker's obligations
hereunder, including payment of all principal and interest then due on this
Note.
5. Costs of Collection. Maker agrees to pay any and all costs, including
without limitation attorneys' fees, costs and expenses (in addition to any
statutory costs) at trial, or on any appellate review, incurred by FEI in
enforcing this Note and collecting sums due hereunder.
6. Waiver of Suretyship Defenses. The undersigned and all persons liable
or to become liable on this Note waive presentment, protest and demand and
notice of protest, demand, dishonor or nonpayment of this Note.
7. Waiver Only in Writing. FEI shall not be deemed, by any act or failure
to act, to have waived any of its rights or remedies hereunder unless such
waiver is in writing and signed by FEI, and then only to the extent
specifically set forth in writing.
8. Usury. It is the specific intent of the Maker and FEI that this Note
bear a lawful rate of interest, and if any court of competent jurisdiction
should determine that the rate herein provided for exceeds that which is
statutorily permitted for the type of transaction evidenced hereby, the
interest rate shall be reduced to the highest rate permitted by applicable
law, with any excess interest theretofore collected being applied against
principal or, if such principal has been fully repaid, returned to Maker on
demand.
9. Governing Law. This Note shall be construed in accordance with the
laws of the State of Oregon, regardless of choice of law rules applicable
in such state.
MAKER:
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Xxxx' Xxxxxxxxxx
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