Exhibit 10.4
ATARI, INC.
2005 STOCK INCENTIVE PLAN
RESTRICTED STOCK AWARD AGREEMENT
AGREEMENT by and between Atari, Inc., a Delaware Corporation (the
"Company") and [name of Participant] ________________ (the "Participant"), dated
as of the __ day of _____, 200__.
WHEREAS, the Company maintains the Atari, Inc. 2005 Stock Incentive Plan
(the "Plan") (capitalized terms used but not defined herein shall have the
respective meanings ascribed thereto by the Plan);
WHEREAS, the Participant is [a Non-Employee Director of] [an employee of]
[a consultant of] the Company [or its Subsidiaries]; and
WHEREAS, the Committee [if Award is for a member of the Committee,
references to the "Committee" making and administering the Award need to be
changed to the "Board"] has determined that it is in the best interests of the
Company and its shareholders to grant Shares of restricted common stock
[alternatively may refer to units] to the Participant subject to the terms and
conditions set forth below.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Grant of Restricted Stock.
The Company hereby grants the Participant _________ shares of restricted
Common Stock of the Company (the "Shares"), subject to the following terms and
conditions and subject to the provisions of the Plan. The Plan is hereby
incorporated herein by reference as though set forth herein in its entirety.
2. Restrictions and Conditions.
(a) The Shares awarded shall be subject to the following restrictions and
conditions:
(i) Subject to clauses (iii)[,] [and] (iv)[,][(v) and (vi)][___]
below, the period of restriction with respect to the Shares (the
"Restriction Period") shall begin on the date hereof and lapse on the
following schedule:
_______________________________________________
_______________________________________________
_______________________________________________
Notwithstanding the foregoing, unless otherwise expressly provided by
the Committee, the Restriction Period with respect to the Shares shall
only lapse as to whole Shares. Subject to the provisions of the Plan
and this Agreement, during
the Restriction Period, the Participant shall not be permitted
voluntarily or involuntarily to sell, transfer, pledge, anticipate,
alienate, encumber or assign the Shares (or have such Shares attached
or garnished). The Shares may not be transferred, assigned or subject
to any encumbrance, pledge, or charge until all applicable
restrictions are removed or have expired.
(ii) Except as provided in the foregoing clause (i), below in this
clause (ii) or in the Plan, the Participant shall have all rights of a
shareholder with respect to the Shares, including the right to vote
the Shares and receive all dividends and other distributions paid or
made with respect thereto[; provided, however, that any cash dividends
shall, unless otherwise provided by the Committee, be held by [the
Company (unsegregated as a part of its general assets)] [an escrow
agent] during the Restriction Period (and forfeited if the underlying
Shares are forfeited), and paid over to the Participant (without
interest) as soon as practicable after such period lapses (if not
forfeited)]. Certificates for Shares (not subject to restrictions
under the Plan) shall be delivered to the Participant or his or
designee promptly after, and only after, the Restriction Period shall
lapse without forfeiture in respect of the Shares.
(iii) Subject to clause[s] (iv)[or (v)] below, if the Participant has
a termination of service by the Company [and its Subsidiaries] for
Cause, or by the Participant for any reason, during the Restriction
Period, then [(A)] all Shares still subject to restriction shall
thereupon, and with no further action, be forfeited by the
Participant[, and (B) the Company shall pay to the Participant as soon
as practicable (and in no event more than 30 days) after such
termination an amount equal to the lesser of (x) the amount paid by
the Participant for such forfeited Shares as contemplated by the Plan,
and (y) the Fair Market Value on the date of termination of the
forfeited Shares]. Except as otherwise provided herein or in the Plan,
in the event of a termination of service during the Restriction
Period, the Award made hereby shall automatically be forfeited and the
shares of Common Stock subject to the Award shall be returned to the
Company.
(iv) In the event the Participant has a termination of service on
account of death or Disability [Retirement], or the Participant has a
termination of service by the Company [and its Subsidiaries] for any
reason other than Cause[, or in the event of a Change in Control
(regardless of whether a termination follows thereafter),] during the
Restriction Period, then the Restriction Period will immediately lapse
on all Shares. [Without limiting the foregoing, if the Participant's
employment with the Company or any Subsidiary shall be terminated for
Cause, the Participant's rights to the Shares shall terminate in their
entirety.]
(v) [possible provisions as contemplated by Section 13 of the Plan,
regarding Change in Control]
[(vi) Cessation of service as an employee shall not be treated as a
cessation of employment for purposes of this paragraph 2 if the
Grantee continues without
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interruption to serve thereafter as an officer or director of the
Company or in such other capacity as determined by the Committee, and
the termination of such successor service shall be treated as the
applicable termination.]
(vi) [possible provisions as contemplated by Section 8.5 of the Plan,
regarding a "Section 83(b)" election]
(viii) The Committee may require that any stock certificates
evidencing the Shares be held in custody by the Company until the
restrictions hereunder shall have lapsed, and that the Participant
shall have delivered a stock power, endorsed in blank, relating to the
Shares. If and when such restrictions so lapse, the stock certificates
shall be delivered by the Company to the Participant or his or her
designee, and the Participant (or designee) shall own such Shares free
and clear of all restrictions imposed hereby, free to hold or dispose
of such shares in the Participant's (or designee's) discretion,
subject to all applicable federal and state laws.
3. Miscellaneous.
(a) THIS AGREEMENT SHALL BE SUBJECT TO AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO THE PRINCIPLES
OF CONFLICTS OF LAWS, AND TO APPLICABLE FEDERAL SECURITIES LAWS. The
use of captions in this Agreement is for convenience; the captions are
not intended to provide substantive rights. The Board may at any time
and from time to time and in any respect, amend or modify this
Agreement; provided, however, that no amendment or modification of
this Agreement shall adversely affect the Restricted Stock Award
without the consent of the Participant (or, if and where applicable, a
permitted transferee). If any provision of this Agreement or the Plan
shall be determined to be illegal or unenforceable by any court of law
in any jurisdiction, the remaining provisions hereof and thereof shall
be severable and enforceable in accordance with their terms, and all
provisions shall remain enforceable in any other jurisdiction.
(b) The Committee shall have such powers and authority as may be necessary
or appropriate for the Committee to carry out its functions as
described in this Agreement and the Plan. The Committee shall have
discretionary authority to interpret this, to make factual
determinations under this Agreement, and to make all other
determinations necessary or advisable for the administration of this
Agreement, including, without limitation, to correct any defect, to
supply any omission or to reconcile any inconsistency in the
Agreement. The Committee may prescribe, amend, and rescind rules and
regulations relating to the Plan. All interpretations, determinations
and actions by the Committee shall be final, conclusive, and binding
upon all parties.
(c) All notices under the Plan must be in writing or delivered
electronically, if to the Company, at its principal office, addressed
to the attention of the Director of
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Human Relations; and if to the Participant, at the address appearing
in the Company's records.
(d) The failure of the Participant or the Company to insist upon strict
compliance with any provision of this Agreement or the Plan, or to
assert any right the Participant or the Company, respectively, may
have under this Agreement or the Plan, shall not be deemed to be a
waiver of such provision or right or any other provision or right of
this Agreement.
(e) Nothing in this Agreement shall confer upon the Participant any right
to continue in the Service of the Company or any of its Subsidiaries,
or interfere in any way with the right of the Company or any of its
Subsidiaries to terminate the Participant's employment or other
service relationship for any reason at any time.
(f) The Participant hereby represents and warrants that the Shares are
being acquired only for investment purposes and without any current
intention to sell or distribute such Shares.
(g) This Agreement contains the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior
agreements, written or oral, with respect thereto.
IN WITNESS WHEREOF, the Company and the Participant have executed this
Agreement as of the day and year first above written.
ATARI, INC.
By:
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Name:
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Title:
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[Participant's Name]
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