EXHIBIT 10.7
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Innovative Micro Technology, Inc.
FORM OF RESTRICTED STOCK AGREEMENT
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under the
2001 Stock Incentive Plan
1. Terms of Purchase. On this 13th day of May, 2002 Innovative Micro
Technology (the "Company") sells to (the "Holder"), pursuant to the Company's
2001 Stock Incentive Plan (the "Plan"), and holder hereby purchases, an
aggregate of _________ shares (the "Shares") of the Company's Class A Common
Stock, $.0001 par value, at a purchase price of $.0001 per share (the "Per Share
Purchase Price") (for aggregate consideration of $_________) on the terms and
conditions set forth herein and in the Plan, a copy of which is attached to this
Agreement and which is incorporated herein by reference. Capitalized terms used
but not defined in this Restricted Stock Agreement but defined in the Plan shall
have the same definitions as in the Plan.
2. Company Right of Repurchase.
(a) Of the Shares, ________ Shares, representing 50%
of the aggregate number of Shares purchased hereunder, shall
vest and become "Vested Shares" on the date one year from the
Plan of Reorganization Effective date of November 16, 2002
(the "Initial Vesting Date") and the balance shall vest and
become Vested Shares one year from the Initial Vesting Date;
provided, however, that none of the Shares shall become Vested
Shares until the later of the applicable date set forth in the
preceding clause and the date the Vesting Conditions have been
satisfied or waived by the Company. For purposes of this
paragraph, "Vesting Conditions" means the listing of the
Company's Common Stock on a national stock exchange or the
quotation of the Company's Common Stock on the Nasdaq National
Market or Nasdaq SmallCap Market, with a public float in any
case of at least $20 million. All Shares other than Vested
Shares shall be "Unvested Shares." In the event the Holder
ceases to serve as an employee of the Company, whether
voluntarily or involuntarily, for any reason (including
disability or death), the Company may within 180 days after
the date of such termination exercise its repurchase option
under this Section 2 to purchase all or any portion of shares
that were Unvested Shares on the date of such termination at a
per share price equal to the Per Share Purchase Price.
(b) In the event the Company exercises its repurchase
option as set forth herein, the Company shall give to the
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Holder a written notice specifying the number of Unvested
Shares it is electing to repurchase, the price thereof, and
the time for a closing hereunder, which closing shall be held
at the Company's principal office and shall occur no earlier
than 10 days and no later than 20 days after the date such
notice is given. Upon the date of any such notice from the
Company, the interest of the Holder in the Unvested Shares
shall automatically terminate, except for the Holder's right
to receive payment from the Company for such Unvested Shares.
(c) If the Company exercises its repurchase option
hereunder, the Holder shall at the closing duly endorse for
transfer the certificate(s) representing the Unvested Shares
to be sold to the Company, and the Company shall deliver to
the Holder the purchase price for such Unvested Shares.
(d) The Holder agrees to deliver and deposit with the
Secretary of the Company, or such other person as designated
by the Company, as escrow agent, a stock assignment duly
endorsed (with date and number of shares blank) with the
certificate or certificates evidencing the Shares until the
first to occur of (i) such shares becoming Vested Shares and
(ii) the Company's failure to exercise its repurchase option
within the period specified in this Section 2.
3. Restrictions on Transfer.
(a) No Unvested Shares shall be sold, transferred by
gift, pledged, hypothecated, or otherwise transferred or
disposed of by the Holder, and such Stock shall constitute
"Restricted Stock" until fully Vested hereunder. Any attempt
to transfer Stock in violation of this Section 3 shall be null
and void and shall be disregarded by the Company.
(b) The sale of the Shares hereunder has not been
registered under the Securities Act. The Company shall make a
notation regarding the restrictions on transfer of the Stock
in its stockbooks, and shares of the Stock shall be
transferred on the books of the Company only if fully vested
and transferred or sold pursuant to an effective registration
statement under the Securities Act of 1933, as amended (the
"1933 Act") covering such shares, or pursuant to an opinion of
counsel delivered by the Holder that such transfer is exempt
from registration.
(c) Until fully vested and sold pursuant to an
effective registration statement under the Securities Act, or
pursuant to an available exemption to registration, the shares
of the Stock shall bear any legends required by applicable
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securities or corporate laws, in addition to the following
legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED BY THE TERMS
OF THAT CERTAIN RESTRICTED STOCK PURCHASE AGREEMENT BETWEEN THE COMPANY
AND THE NAMED STOCKHOLDER. THE SHARES REPRESENTED BY THIS CERTIFICATE
MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH SUCH AGREEMENT, A COPY OF
WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.
4. Restricted Stock Agreement not a Service Contract. This agreement is
not an employment or service contract, and nothing herein shall be deemed to
create in any way whatsoever any obligation on your part to continue in the
employ of the Company or an Affiliate, or of the Company or an Affiliate to
continue your employment. In addition, nothing in herein shall obligate the
Company or an Affiliate, their respective shareholders, Boards of Directors,
Officers or Employees to continue any relationship that you might have as a
Director or Consultant for the Company or an Affiliate.
5. Withholding of Taxes. The Holder shall provide the Company with a
copy of any timely election made pursuant to Section 83(b) of the Internal
Revenue Code or similar provision of state law (collectively, an "83(b)
Election"), a form of which election is attached hereto as Exhibit A . If the
Holder makes a timely 83(b) Election, the Holder shall immediately pay the
Company the amount necessary to satisfy any applicable federal, state, and local
income and employment tax withholding requirements. If the Holder does not make
a timely 83(b) Election, Holder shall, either at the time that the restrictions
lapse under this Agreement or at the time withholding is otherwise required by
any applicable law, pay the Company the amount necessary to satisfy any
applicable federal, state, and local income and employment tax withholding
requirements. If, upon written request by the Company, the Holder fails to pay
the Company such amount in a timely manner, the Company shall have the right to
deduct such amount from any sum(s) due the Holder from the Company and shall
also have the right to sell a sufficient number of shares of the Shares to
satisfy such tax obligation. The Holder acknowledges that it is Holder's
responsibility to consult with Holder's own tax advisor as to the consequences
and timing of an 83(b) election. Any adverse consequences to the Holder
resulting from making or failing to make such election shall be the Holder's
sole responsibility.
6. Equitable Relief and Consent to Jurisdiction. The Holder
specifically acknowledges and agrees that in the event of a breach or threatened
breach of the provisions of this Agreement, including the attempted transfer of
the Shares by the Holder, monetary damages may not be adequate to compensate the
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Company, and, therefore, in the event of such a breach or threatened breach, in
addition to any right to damages, the Company shall be entitled to equitable
relief in any court having competent jurisdiction. Nothing herein shall be
construed as prohibiting the Company from pursuing any other remedies available
to it for any such breach or threatened breach.
7. Notices. Any notices provided for in your option or the Plan shall
be given in writing and shall be deemed effectively given upon receipt or, in
the case of notices delivered by the Company to you, five (5) days after deposit
in the United States mail, postage prepaid, addressed to you at the last address
you provided to the Company.
8. Execution. By the purchase of the Shares, the Holder agrees that
such Holder is subject in all respects to the foregoing terms and conditions and
to the Plan. This Agreement shall be binding on and inure to the benefit of the
executor, administrator, legatees, heirs, legal representatives and assigns of
the Holder and the successors and permitted assigns of the Company.
In witness whereof, the parties hereto have entered into this
Restricted Stock Agreement on the date first above written.
COMPANY: INNOVATIVE MICRO TECHNOLOGY, INC.
By_________________________________
Its_________________________________
HOLDER:
_________________________________
Signature
_________________________________
Name
By his or her signature below, the spouse of the Holder agrees to be
bound by all of the terms and conditions of the foregoing Agreement.
HOLDER'S SPOUSE:
_________________________________
Signature
_________________________________
Name
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