EXHIBIT 4.9
RESTRICTED STOCK AGREEMENT
ICURIE, INC.
2005 STOCK INCENTIVE PLAN
GRANTEE: _______________
TOTAL NO. OF SHARES: _________
This Agreement (the "AGREEMENT") evidences the award of ___________
restricted shares (each, an "AWARD SHARE," and collectively, the "AWARD SHARES")
of the Common Stock of iCurie, Inc., a Nevada corporation (the "COMPANY"),
granted to you, _____________, effective as of _____________ (the "GRANT DATE"),
pursuant to the iCurie, Inc. 2005 Stock Incentive Plan (the "PLAN") and
conditioned upon your agreement to the terms described below. All of the
provisions of the Plan are expressly incorporated into this Agreement.
1. Vesting. [DESCRIBE VESTING OF AWARD SHARES]
2. Termination of Employment or Service. Except as otherwise set forth in
Section 1 hereof, if your employment or other service relationship with the
Company ceases for any reason, all Award Shares that are not then vested and
nonforfeitable will be immediately forfeited to the Company upon such cessation
for no consideration.
3. Restrictions on Transfer.
(a) Until an Award Share becomes vested and nonforfeitable, it may
not be assigned, transferred, pledged, hypothecated or disposed of in any way
(whether by operation of law or otherwise) and shall not be subject to
execution, attachment or similar process.
(b) The Company shall not be required to (i) transfer on its books
any Award Shares that have been sold or transferred in contravention of this
Agreement or (ii) treat as the owner of Award Shares, or otherwise accord
voting, dividend or liquidation rights to, any transferee to whom Award Shares
have been transferred in contravention of this Agreement.
4. Stock Certificates. You are reflected as the owner of record of the
Award Shares as of the Grant Date on the Company's books. The Company will hold
the share certificates for safekeeping, or otherwise retain the Award Shares in
uncertificated book entry form, until the Award Shares become vested and
nonforfeitable. Until the Award Shares become vested and nonforfeitable, any
share certificates representing such shares will include a legend to the effect
that you may not sell, assign, transfer, pledge, or hypothecate the Award
Shares. All regular cash dividends on the Award Shares held by the Company will
be paid directly to you. As soon as practicable after vesting of the Award
Shares, the Company will deliver a share certificate to you, or deliver shares
electronically or in certificate form to your designated broker on your behalf,
for such vested Award Shares.
5. Tax Election and Tax Withholding.
(a) The Company shall have the right to deduct from any compensation
or any other payment of any kind (including withholding the issuance of shares
of Common Stock) due you the amount
of any federal, state, local or foreign taxes required by law to be withheld as
a result of the grant or vesting of the Award Shares in whole or in part;
provided, however, that the value of the shares of Common Stock withheld may not
exceed the statutory minimum withholding amount required by law. In lieu of such
deduction, the Company may require you to make a cash payment to the Company
equal to the amount required to be withheld. If you do not make such payment
when requested, the Company may refuse to issue any Common Stock certificate
under this Agreement until arrangements satisfactory to the Administrator for
such payment have been made.
(b) You hereby acknowledge that you have been advised by the Company
to seek independent tax advice from your own advisors regarding the availability
and advisability of making an election under Section 83(b) of the Internal
Revenue Code of 1986, as amended, and that any such election, if made, must be
made within 30 days of the Grant Date. You expressly acknowledge that you are
solely responsible for filing any such Section 83(b) election with the
appropriate governmental authorities, irrespective of the fact that such
election is also delivered to the Company. You may not rely on the Company or
any of its officers, directors or employees for tax or legal advice regarding
this award. You acknowledge that you have sought tax and legal advice from your
own advisors regarding this award or have voluntarily and knowingly foregone
such consultation.
6. Adjustments for Corporate Transactions and Other Events.
(a) Stock Dividend, Stock Split and Reverse Stock Split. Upon a
stock dividend of, or stock split or reverse stock split affecting, the Common
Stock, the number of Award Shares and the number of such Award Shares that are
nonvested and forfeitable shall, without further action of the Board, be
adjusted to reflect such event. The Administrator may make adjustments, in its
discretion, to address the treatment of fractional shares with respect to the
Award Shares as a result of the stock dividend, stock split or reverse stock
split. Adjustments under this Section 6 will be final, binding and conclusive.
No fractional Award Shares will result from any such adjustments.
(b) Binding Nature of Agreement. The terms and conditions of this
Agreement shall apply with equal force to any additional and/or substitute
securities received by you in exchange for, or by virtue of your ownership of,
the Award Shares, whether as a result of any spin-off, stock split-up, stock
dividend, stock distribution, other reclassification of the Common Stock of the
Company, or similar event, except as otherwise determined by the Administrator.
If the Award Shares are converted into or exchanged for, or stockholders of the
Company receive by reason of any distribution in total or partial liquidation or
pursuant to any merger of the Company or acquisition of its assets, securities
of another entity, or other property (including cash), then the rights of the
Company under this Agreement shall inure to the benefit of the Company's
successor, and this Agreement shall apply to the securities or other property
received upon such conversion, exchange or distribution in the same manner and
to the same extent as the Award Shares.
7. Non-Guarantee of Employment or Service Relationship. Nothing in the
Plan or this Agreement shall alter your at-will or other employment status or
other service relationship with the Company or its Affiliates, nor be construed
as a contract of employment or other service relationship between the Company or
its Affiliates and you, or as a contractual right of you to continue in the
employ of, or in a service relationship with, the Company or its Affiliates for
any period of time, or as a limitation of the right of the Company or its
Affiliates to discharge you at any time with or without cause or notice and
whether or not such discharge results in the forfeiture of any Award Shares or
any other adverse effect on your interests under the Plan.
8. Rights as Stockholder. Except as otherwise provided in this Agreement
with respect to the nonvested and forfeitable Award Shares, you are entitled to
all rights of a stockholder of the Company, including the right to vote the
Award Shares and receive dividends and/or other distributions declared on the
Award Shares.
- 2 -
9. The Company's Rights. The existence of the Award Shares shall not
affect in any way the right or power of the Company or its stockholders to make
or authorize any or all adjustments, recapitalizations, reorganizations or other
changes in the Company's capital structure or its business, or any merger or
consolidation of the Company, or any issue of bonds, debentures, preferred or
other stocks with preference ahead of or convertible into, or otherwise
affecting the Common Stock or the rights thereof, or the dissolution or
liquidation of the Company, or any sale or transfer of all or any part of the
Company's assets or business, or any other corporate act or proceeding, whether
of a similar character or otherwise.
10. Notices. All notices and other communications made or given pursuant
to this Agreement shall be in writing and shall be sufficiently made or given if
hand delivered or mailed by certified mail, addressed to you at the address
contained in the records of the Company, or addressed to the Administrator, care
of the Company for the attention of its Corporate Secretary at its principal
executive office or, if the receiving party consents in advance, transmitted and
received via telecopy or via such other electronic transmission mechanism as may
be available to the parties.
11. Entire Agreement. This Agreement contains the entire agreement between
the parties with respect to the Award Shares granted hereunder. Any oral or
written agreements, representations, warranties, written inducements, or other
communications made prior to the execution of this Agreement with respect to the
Award Shares granted hereunder shall be void and ineffective for all purposes.
12. Amendment. This Agreement may be amended from time to time by the
Administrator in its discretion; provided, however, that this Agreement may not
be modified in a manner that would have a materially adverse effect on the Award
Shares as determined in the discretion of the Administrator, except as provided
in the Plan or in a written document signed by each of the parties hereto.
13. Conformity with Plan. This Agreement is intended to conform in all
respects with, and is subject to all applicable provisions of, the Plan.
Inconsistencies between this Agreement and the Plan shall be resolved in
accordance with the terms of the Plan. In the event of any ambiguity in this
Agreement or any matters as to which this Agreement is silent, the Plan shall
govern. A copy of the Plan is available upon request to the Administrator.
14. Governing Law. The validity, construction and effect of this
Agreement, and of any determinations or decisions made by the Administrator
relating to this Agreement, and the rights of any and all persons having or
claiming to have any interest under this Agreement, shall be determined
exclusively in accordance with the laws of the State of New York, without regard
to its provisions concerning the applicability of laws of other jurisdictions.
Any suit with respect hereto will be brought in the federal or state courts in
the districts which include New York, New York, and you hereby agree and submit
to the personal jurisdiction and venue thereof.
15. Headings. The headings in this Agreement are for reference purposes
only and shall not affect the meaning or interpretation of this Agreement.
16. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
17. Definitions. All capitalized words that are not defined in this
Agreement have the meanings ascribed to them in the Plan. In addition, "You" or
"Your" means the recipient of the Award Shares as reflected in the first
paragraph of this Agreement. Whenever the word "YOU" or "YOUR" is used in any
provision of this Agreement under circumstances where the provision should
logically be construed, as determined by the Administrator, to apply to the
estate, personal representative, or beneficiary to whom the Award Shares may be
transferred by will or by the laws of descent and distribution, the words "you"
and "your" shall be deemed to include such person.
- 3 -
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
as of the date set forth above by its duly authorized officer.
ICURIE, INC.
By: __________________________________
The undersigned hereby acknowledges as of the date set forth above that he has
carefully read this Agreement and agrees to be bound by all of the provisions
set forth herein.
GRANTEE
______________________________________
Enclosures:
- iCurie, Inc. 2005 Stock Incentive Plan
- Stock Power
- Section 83(b) Information and Sample Election Form
- 4 -
STOCK POWER
FOR VALUE RECEIVED, the undersigned, ______________, hereby sells, assigns
and transfers unto iCurie, Inc., a Nevada corporation (the "Company"), or its
successor, __________ shares of common stock, par value $.001 per share, of the
Company standing in my name on the books of the Company, represented by
Certificate No. ____________, which is attached hereto, and hereby irrevocably
constitutes and appoints ______________________________________________________
as my attorney-in-fact to transfer the said stock on the books of the Company
with full power of substitution in the premises.
______________________________________
Dated: _______________________________
IMPORTANT TAX INFORMATION
INSTRUCTIONS REGARDING SECTION 83(b) ELECTIONS
1. AN 83(b) ELECTION IS IRREVOCABLE.
2. AN 83(b) ELECTION FORM MUST BE FILED WITH THE INTERNAL REVENUE SERVICE
WITHIN 30 DAYS OF THE DATE THE RESTRICTED STOCK IS GRANTED TO YOU; NO
EXCEPTIONS TO THIS RULE ARE MADE.
3. YOU MUST PROVIDE A COPY OF THE 83(b) ELECTION FORM TO THE CORPORATE
SECRETARY OR OTHER DESIGNATED OFFICER OF THE COMPANY. THIS COPY SHOULD BE
PROVIDED TO THE COMPANY AT THE SAME TIME THAT YOU FILE YOUR 83(b) ELECTION
FORM WITH THE INTERNAL REVENUE SERVICE.
4. IN ADDITION TO MAKING THE FILING UNDER ITEM 2 ABOVE WITH THE INTERNAL
REVENUE SERVICE, YOU MUST ATTACH A COPY OF YOUR 83(b) ELECTION FORM TO
YOUR TAX RETURN FOR THE TAXABLE YEAR IN WHICH YOU RECEIVED THE RESTRICTED
STOCK.
5. IF YOU MAKE AN 83(b) ELECTION AND LATER FORFEIT THE RESTRICTED STOCK, YOU
WILL NOT BE ENTITLED TO A REFUND OF THE TAXES PAID WITH RESPECT TO THE
GROSS INCOME YOU RECOGNIZED UNDER THE 83(b) ELECTION.
6. YOU MUST CONSULT YOUR PERSONAL TAX ADVISOR BEFORE MAKING AN 83(b)
ELECTION. THE ATTACHED ELECTION FORMS ARE INTENDED AS SAMPLES ONLY, THEY
MUST BE TAILORED TO THE TAXPAYER'S CIRCUMSTANCES AND MAY NOT BE RELIED
UPON WITHOUT CONSULTATION WITH A PERSONAL TAX ADVISOR.
SECTION 83(b) ELECTION FORM
ELECTION PURSUANT TO SECTION 83(b) OF THE INTERNAL REVENUE CODE TO INCLUDE
PROPERTY IN GROSS INCOME IN YEAR OF TRANSFER
The undersigned hereby makes an election pursuant to Section 83(b) of the
Internal Revenue Code with respect to the property described below and supplies
the following information in accordance with the regulations promulgated
thereunder:
1. The name, address, and taxpayer identification number of the
undersigned are:
__________________________________
__________________________________
__________________________________
___-__-___
2. The property with respect to which the election is made is ________
shares of Common Stock, par value $.001 per share, of iCurie, Inc., a Nevada
corporation (the "Company").
3. The date on which the property was transferred was _______________, the
date on which the taxpayer received the property pursuant to a grant of
restricted stock.
4. The taxable year to which this election relates is calendar year
______.
5. The property is subject to restrictions in that the property is not
transferable and is subject to a substantial risk of forfeiture until the
taxpayer vests in the property. [DESCRIBE VESTING]
6. The fair market value at the time of transfer (determined without
regard to any restrictions other than restrictions which by their terms will
never lapse) of the property with respect to which this election is being made
is $_____ per share; with a cumulative fair market value of $___________. The
taxpayer did not pay any amount for the property transferred.
7. A copy of this statement was furnished to _______, for whom taxpayer
rendered the services underlying the transfer of such property.
8. This election is made to the same effect, and with the same
limitations, for purposes of any applicable state statute corresponding to
Section 83(b) of the Internal Revenue Code.
The undersigned understands that the foregoing election may not be revoked
except with the consent of the Commissioner of Internal Revenue.
Signed: __________________________
Date: ____________________________
LETTER FOR FILING Section 83(b) ELECTION FORM
[Date]
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Internal Revenue Service Center
__________________________________
__________________________________
__________________________________
(the Service Center to which individual income tax return is filed)
RE: 83(b) ELECTION OF ________________________________
SOCIAL SECURITY NUMBER: __________________________
Dear Sir/Madam:
Enclosed is an election under Section 83(b) of the Internal Revenue Code
of 1986 with respect to certain shares of common stock of iCurie, Inc., a Nevada
corporation, that were transferred to me on _________.
Please file this election.
Sincerely,
______________________________________
cc: Corporate Secretary of iCurie, Inc.
