Exhibit 10.23
XXXXXX AUTOMATION, INC.
RESTRICTED STOCK AGREEMENT
AGREEMENT made this _____________ between Xxxxxx Automation, Inc., a
Delaware corporation (the "Company"), and _____________ (the "Employee").
WITNESSETH:
WHEREAS, as an inducement for the Employee to assist the Company to achieve
long-range performance goals and to enable the Employee to participate in the
long-term growth of the Company, the Company desires to grant to the Employee
______ shares (the "Shares") of the Company's common stock, $.01 par value per
share (the "Common Stock"), pursuant to the Company's Amended and Restated 2000
Equity Incentive Plan (the "Plan") and subject to the terms and conditions set
forth herein;
NOW, THEREFORE, for good and valuable consideration, receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE 1 - ACQUISITION OF SHARES
1.1 Award of Shares. The Company has granted the Shares to the Employee,
and the Employee hereby accepts the Shares, subject to the terms and conditions
of the Plan and this Agreement. In the event of an inconsistency between this
Agreement and the Plan, which is incorporated herein by reference, the Plan will
control. All capitalized terms not defined in this Agreement have the meaning
specified in the Plan.
1.2 Record ownership; custody of certificates, etc.
(a) In accordance with the Plan and Section 158 of the Delaware
General Corporation Law, the Shares shall be evidenced in the books of the
Company as owned by the Employee. The Shares shall be held in uncertificated
form except as the Company otherwise determines. If at any time the Shares are
represented by certificates or other evidence of ownership, the Company may
retain custody of such certificates or other evidence of ownership until such
time as the Shares are either forfeited to the Company or cease to be subject to
the risk of forfeiture and transfer restrictions described herein and in the
Plan. Notwithstanding the foregoing, except as set forth herein or in the Plan
the Employee shall have the rights of an owner of the Shares, including the
right to vote the shares and the right to dividends or other distributions.
(b) Upon the lapsing of the restrictions described herein with respect
to the Shares, the Company shall take such steps as it determines to be
necessary or appropriate to transfer certificates or other evidence of ownership
to the Employee, including, if so determined by the Company, to a brokerage
account held by or for the benefit of the Employee.
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1.3 Employee Representations. The Employee represents, warrants and
covenants as follows:
(a) The Employee has received and reviewed the Plan and the Prospectus
related to the Plan, including the documents incorporated therein by reference.
(b) The Employee understands that (i) the Federal income tax
consequences to the Employee of the transfer of the Shares to the Employee will
vary depending upon whether the Employee makes an election under Section 83(b)
of the Internal Revenue Code of 1986, as amended (the "Code"), (ii) the Company
is not providing the Employee with any advice as to whether to make such
election, (iii) the Employee has been advised to seek the counsel of his or her
own tax advisor as to whether, and if so where and how to make such election,
(iv) such election, if made, must be filed with the Internal Revenue Service
within 30 days of the date of this Agreement, and (v) the Employee must notify
the Company upon making such election.
(c) The Employee understands, agrees and acknowledges that the Shares
are subject to restrictions on transfer and may be forfeited if the conditions
of this Agreement are not satisfied. The Employee also understands, agrees and
acknowledges that if the Shares are ever certificated the Company may, at its
election and in its sole discretion, require that the certificates have affixed
thereto a legend in substantially the following form:
"The shares of stock represented by this certificate are subject to
restrictions on transfer and a risk of forfeiture set forth in a certain
Restricted Stock Agreement between the corporation and the registered owner
of this certificate (or his or her predecessor in interest). Such Agreement
is available for inspection without charge at the principal executive
offices of the corporation."
ARTICLE 2 - FORFEITURE
2.1 Vesting and Forfeiture. For purposes of this Agreement, employment with
the Company shall include employment with a consolidated subsidiary of the
Company. The Shares shall vest as follows unless earlier forfeited in accordance
with this Section 2.1:
(a) Unless earlier vested or forfeited, the Shares shall vest: (i) as
to fifty (50%) percent of the Shares, on ___________, 200x [two years from
date of grant]; (ii) as to an additional twenty-five (25%) of the Shares,
on ____________, 200x [three years from date of grant]; and (iii) as to the
final twenty-five (25%) of the Shares, on ___________, 20xx [four years
from date of grant].
(b) If there is a Qualifying Termination of the Employee's employment
with the Company and its subsidiaries that occurs either before a Change in
Control or more than one year following a Change in Control, then in
addition to any Shares previously vested under Section 2.1(a) above, a
number of Shares equal to the relevant Earned Fraction shall be treated as
having vested immediately prior to the Qualifying Termination.
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(c) If there is a Qualifying Termination of the Employee's employment
with the Company and its subsidiaries that occurs within the one-year
period following a Change in Control, any Shares that were unvested but
outstanding immediately prior to the Qualifying Termination shall be
treated as having vested immediately prior to the Qualifying Termination.
For purposes of this Section 2.1:
(A) "Cause" means (i) the Employee's willful failure to perform, or
serious negligence in the performance of, the Employee's duties and
responsibilities for the Company or any of its subsidiaries that remains
uncured, or continues, beyond the fifteenth (15th) day following the date
on which the Company gives the Employee notice specifying in reasonable
detail the nature of the failure or negligence; (ii) fraud, embezzlement or
other dishonesty with respect to the Company or any of its subsidiaries or
customers; (iii) conviction of, or a plea of guilty or nolo contendere with
respect to, a felony or to any crime (whether or not a felony) that
involves moral turpitude; or (iv) breach of fiduciary duty or violation of
any covenant of confidentiality, assignment of rights to intellectual
property, non-competition or non-solicitation of customers or employees;
provided, that if at the time of termination of employment the Employee is
party to an employment agreement or similar agreement with the Company or
any of its subsidiaries that includes a definition of "Cause", the
definition contained in such employment agreement or similar agreement
shall apply for purposes of this Section 2.1 in lieu of the definition set
forth above in this clause (A).
(B) "Qualifying Termination" means a termination by the Company or by
a subsidiary of the Company of the Employee's employment with the Company
and its subsidiaries, other than a termination for Cause.
(C) "Earned Fraction" means:
(I) for a Qualifying Termination occurring before __________,
200x, the number of unvested Shares outstanding immediately prior to
the Qualifying Termination that would have vested on ___________, 200x
had the Employee continued in the employ of the Company and its
subsidiaries, multiplied by a fraction, the numerator of which is the
number of days elapsed between ____________, 200x and the date of the
Qualifying Termination, and the denominator of which is seven hundred
thirty (730); and
(II) for a Qualifying Termination occurring after _________, 200x
but before __________, 200x, the number of unvested Shares outstanding
immediately prior to the Qualifying Termination that would have vested
on _____________, 200x had the Employee continued in the employ of the
Company and its subsidiaries, multiplied by a fraction, the numerator
of which is the number of days elapsed between ___________, 200x and
the date of the Qualifying Termination, and the denominator of which
is three hundred sixty five (365); and
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(III) for a Qualifying Termination occurring after ___________,
200x but before ___________, 20xx, the number of unvested Shares
outstanding immediately prior to the Qualifying Termination that would
have vested on ______________, 20xx had the Employee continued in the
employ of the Company and its subsidiaries, multiplied by a fraction,
the numerator of which is the number of days elapsed between
____________, 200x and the date of the Qualifying Termination, and the
denominator of which is three hundred sixty five (365).
(D) "Change in Control" means the occurrence of any of the events
described in subsections (i), (ii), (iii) or (iv) below:
(i) Any Person acquires beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of thirty-five (35%)
percent or more of either (x) the then outstanding shares of common
stock of the Company (the "Outstanding Company Common Stock") or (y)
the combined voting power of the then outstanding voting securities of
the Company entitled to vote generally in the election of directors
(the "Outstanding Company Voting Securities"); provided, that for
purposes of this subsection (D)(i) the following acquisitions shall
not constitute a Change in Control: (I) any acquisition directly from
the Company, (II) any acquisition by the Company, (III) any
acquisition by an employee benefit plan (or related trust) sponsored
or maintained by the Employer, or (IV) any Business Combination (but
except as provided in subsection (D)(iii) below a Business Combination
may nevertheless constitute a Change in Control under subsection
(D)(iii)); and provided further, that an acquisition by a Person of
thirty-five percent (35%) percent or more but less than fifty (50%)
percent of the Outstanding Company Common Stock or of the combined
voting power of the Outstanding Company Voting Securities shall not
constitute a Change in Control under this subsection (D)(i) if within
fifteen (15) days of the Board's being advised that such ownership
level has been reached, a majority of the "Incumbent Directors" (as
hereinafter defined) then in office adopt a resolution approving the
acquisition of that level of securities ownership by such Person; or
(ii) Individuals who, as of ____________, 200x, constituted the
Board (the "Incumbent Directors") cease for any reason to constitute
at least a majority of the Board; provided, that any individual who
becomes a member of the Board subsequent to ____________, 200x and
whose election or nomination for election was approved by a vote of at
least two-thirds of the Incumbent Directors shall be treated as an
Incumbent Director unless he or she assumed office as a result of an
actual or threatened election contest with respect to the election or
removal of directors; or
(iii) There is consummated a reorganization, merger or
consolidation involving the Company, or a sale or other disposition of
all or substantially all of the assets of the Company (a "Business
Combination"), in each case unless,
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following such Business Combination, (x) the Persons who were the
beneficial owners, respectively, of the Outstanding Company Common
Stock and of the combined voting power of the Outstanding Company
Voting Securities immediately prior to the Business Combination
beneficially own, directly or indirectly, more than 50% of,
respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, as the case
may be, of the entity resulting from such Business Combination in
substantially the same proportions as their ownership immediately
prior to such Business Combination of the Outstanding Company Common
Stock and of the combined voting power of the Outstanding Company
Voting Securities, as the case may be, (y) unless in connection with
such Business Combination a majority of the Incumbent Directors then
in office determine that this clause (D)(iii)(y) does not apply to
such Business Combination, no Person (excluding any entity resulting
from such Business Combination or any employee benefit plan (or
related trust) of the Employer or of such corporation resulting from
such Business Combination) beneficially owns, directly or indirectly,
thirty-five (35%) percent or more of, respectively, the then
outstanding shares of common stock of the corporation resulting from
such Business Combination or the combined voting power of the then
outstanding voting securities of such corporation entitled to vote
generally in the election of directors, except to the extent that such
ownership existed prior to the Business Combination and (z) at least a
majority of the members of the Board resulting from such Business
Combination were Incumbent Directors at the time of the execution of
the initial agreement, or of the action of the Board, providing for
such Business Combination; or
(iv) The stockholders of the Company approve a complete
liquidation or dissolution of the Company;
provided, that if any payment or benefit payable hereunder upon or
following a Change in Control (as defined herein) would be required to
comply with the limitations of Section 409A(a)(2)(A)(v) of the Code and the
guidance thereunder in order to avoid an additional tax under Section 409A
of the Code, such payment or benefit shall be made only if such Change in
Control constitutes a change in ownership or control of the Company, or a
change in ownership of the Company's assets, described in IRS Notice
2005-1, the proposed regulations under Section 409A of the Code, or any
successor guidance.
(E) "Board" means the Board of Directors of the Company.
(F) "Employer" means the Company and its subsidiaries.
(G) "Person" means any individual, entity or other person, including a
group within the meaning of Sections 13(d) or 14(d)(2) of the Exchange Act.
(H) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
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In the event the Employee ceases to be employed by the Company as a full-time
employee for any reason or no reason, with or without cause, prior to
______________, 20xx, all unvested Shares shall be immediately and automatically
forfeited to the Company.
2.2 Restrictions on Transfer.
(a) Except as otherwise provided in subsection (b) below, for so long
as any of the Shares are subject to a risk of forfeiture as described above, the
Employee shall not sell, assign, transfer, pledge, hypothecate or otherwise
dispose of, by operation of law or otherwise (collectively "transfer"), any such
Shares or any interest therein. Any attempted transfer in contravention of the
foregoing shall be null and void. The Company shall not be required to transfer
record ownership on its books of any Shares subject to the restrictions herein
that have been sold, assigned or otherwise transferred, hypothecated or disposed
of in violation of this Agreement.
(b) Once the risk of forfeiture and the transfer restrictions
described above lapse as to any Shares, such Shares may be sold, transferred or
otherwise disposed of subject only to the restrictions of applicable law,
including applicable securities law, and to any insider-trading or similar
restrictions that may be imposed by the Company.
ARTICLE 3 - MISCELLANEOUS
3.1 Adjustments for Stock Splits, Stock Dividends, etc. If there is any
stock split, reverse stock split, stock dividend, stock distribution or other
reclassification of the Common Stock, any and all new, substituted or additional
securities to which the Employee is entitled by reason of his ownership of the
Shares shall be immediately subject to the risk of forfeiture and transfer
restrictions described herein in the same manner and to the same extent, if any,
as such Shares.
3.2 Restrictions on Distributions. If at any time while the Shares are
subject to the risk of forfeiture and transfer restrictions described herein
there is a dividend (other than a stock dividend described in Section 3.1) or
other distribution with respect to the Shares, whether of cash, Common Stock,
other securities or other property, the Company may require that the cash,
securities, or other property so dividended or distributed be subjected to
restrictions (including, without limitation, if the Company so determines, by
holding any such amounts in escrow) similar to those to which the Shares are
then subject.
3.3 Withholding Taxes.
(a) Pursuant to applicable federal, state, local or foreign laws, the
Company may be required to collect income or other taxes on the transfer of the
Shares to the Employee, the lapse of a restriction placed on the Shares, or at
other times. The Company may require, at such time as it considers appropriate,
that the Employee pay the Company the amount of any taxes that the Company may
determine is required to be withheld or collected, and the Employee shall comply
with the requirement or demand of the Company. The Company may withhold, collect
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or offset against any amount owed by the Company to the Employee, the amount of
any such taxes in any manner (including, without limitation, by payment in whole
or in part in shares of Common Stock, including the Shares, valued at the Fair
Market Value, by check, or by offsetting such amount against compensation
otherwise due to the Employee), if in its sole discretion it deems any such
method to be an appropriate method for withholding or collecting taxes.
(b) If the Employee elects, in accordance with Section 83(b) of the
Code, to recognize ordinary income in the year of acquisition of the Shares, the
Company may require that the Employee, at the time of such election, make an
additional payment for withholding tax purposes based on the difference, if any,
between the purchase price for such Shares and the fair market value of such
Shares.
3.4 No Rights To Employment. Nothing contained in this Agreement shall be
construed as giving the Employee any right to be retained as an employee of the
Company.
3.5 Waiver; Disposition of Stock. From time to time the Company may waive
its rights hereunder either generally or with respect to one or more specific
transfers which have been proposed, attempted or made. Each such waiver shall be
effective only in the specific instance and for the purpose for which it was
given, and shall not constitute a continuing waiver.
3.6 Successors and Assigns; Assignment. This Agreement shall be binding
upon the parties hereto and their heirs, representatives, successors and
assigns. The Company may assign its rights hereunder either generally or from
time to time.
3.7 Notices. All notices to a party hereto shall be in writing and shall be
deemed to have been adequately given if delivered in person or mailed, postage
pre-paid and registered or certified mail or federal express or other recognized
commercial courier service:
If to the Company:
Xxxxxx Automation, Inc.
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chief Financial Officer
If to Employee:
or to such other address as any party may from time to time designate for itself
by notice in writing given to the other parties hereto.
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3.8 Amendments. This Agreement may be amended or modified in whole or in
part only by an instrument in writing signed by the Company and the Employee.
3.9 Entire Agreement. This Agreement constitutes the entire agreement
between the parties, and all premises, representations, understandings,
warranties and agreements with reference to the subject matter hereof have been
expressed herein or in the documents incorporated herein by reference.
3.10 Applicable Law; Severability. This Agreement shall be governed by and
construed and enforced in accordance with Delaware law. Wherever possible, each
provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision hereof shall be
prohibited by or invalid under any such law, that provision shall be ineffective
only to the extent of such prohibition or invalidity, without invalidating or
nullifying the remainder of that provision or any other provisions of this
Agreement.
3.11 Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed in original but all of which together shall
constitute one and the same instrument.
3.12 Effect of Headings. Any table of contents, title of an article or
section heading herein contained is for convenience or reference only and shall
not affect the meaning of construction of any of the provisions hereof.
IN WITNESS WHEREOF, the Employee has hereunto set his or her hand and the
Company has authorized this instrument to be signed by its officers thereunder
duly authorized, effective as an instrument under seal.
XXXXXX AUTOMATION, INC.
By:
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Name:
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Title: SVP & CFO
EMPLOYEE
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Name:
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