EXHIBIT 10.4
QUADRACOMM, INC.
2001 STOCK OPTION / PERFORMANCE STOCK PLAN
PERFORMANCE STOCK AWARD AGREEMENT
EMPLOYEE/OPTIONEE: <>
NUMBER OF SHARES: <> Shares
DATE OF GRANT: <>
PERFORMANCE PERIOD (IF ANY): A Period of __________ Days from the Date of
Grant, unless sooner terminated by reason
of death, disability or other termination of
status as a Participant, as defined in this
Agreement.
PERFORMANCE GOALS (IF ANY): See Exhibit A.
THIS AWARD AGREEMENT (the "AGREEMENT") is entered into effective as of
the _______ day of __________, 2001 by and between QUADRACOMM, INC., a Colorado
corporation (the "COMPANY"), and the individual designated above (the
"PARTICIPANT").
RECITALS
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A. The 2001 Stock Option / Performance Stock Plan (the "PLAN") was
adopted by the Company on July 9, 2001; and
B. The Participant performs valuable services for the Company, a
Subsidiary or a Parent; and
C. As of the date hereof, the Board of Directors of the Company
establishes the terms, conditions, restrictions and limitations applicable to an
Award and as provided herein;
NOW, THEREFORE, the parties agree to the terms and conditions herein,
including the recitals.
1. GRANT OF AWARDS.
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1.1 Award. The grant of Performance Shares under the Plan to a
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Participant by the Committee pursuant to such terms, conditions, restrictions
and limitations, if any, as the Committee may establish by this Award Agreement
or otherwise.
QUADRACOMM, INC.
2001 Stock Option / Performance Stock Plan
Award Agreement
Page 1
1.2 Committee. The Board of Directors of the Company or the Committee
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appointed by the Board to administer the Plan.
1.3 Employee. Any person employed by or serving as an employee,
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officer or director of the Employer or any Subsidiary of the Employer that is
hereafter organized or acquired by the Employer.
1.4 Consultant. Any natural person who provides bona fide services to
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the Employer that are not in connection with the offer or sale of securities in
a capital-raising transaction, and do not directly or indirectly promote or
maintain a market for the Employer's securities (includes "Advisors").
1.5 Participant. An Employee or Consultant of the Company or its
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subsidiaries selected by the Committee to participate in the Plan.
1.6 Performance Goals. The performance criterion or criteria
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established by the Committee pursuant to the Plan.
1.7 Performance Period. That period established by the Committee at
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the time Performance Shares are granted within which the Participant must meet
his or her Performance Goals.
1.8 Performance Share. Any grant pursuant to the Plan of a unit valued
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by reference to a designated number of shares of common stock, which value may
be paid to the Participant by delivery or such property as the Committee shall
determine, including cash, common stock or any combination thereof.
1.9 Construction. This Agreement shall be construed in accordance and
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consistent with, and subject to, the provisions of the Plan (the provisions of
which are incorporated herein by reference) and, except as otherwise expressly
set forth herein, the capitalized terms used in this Agreement shall have the
same definitions as set forth in the Plan.
1.10 Condition. The Award is conditioned on the Participant's
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execution of this Agreement. If this Agreement is not executed by the
Participant it may be canceled by the Board.
2. PERFORMANCE PERIOD.
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An Award of Performance Shares is granted as of the first day of the
Performance Period. The Performance Period shall be as specified above,
commencing on the date of grant. At the end of the Performance Period, the
Performance Shares are converted into common stock of the Company or cash or a
combination of the two as specified herein. The Award may be forfeited or
terminated, however, as provided in the Plan or in Section 1.7 or Section 5
hereof.
QUADRACOMM, INC.
2001 Stock Option / Performance Stock Plan
Award Agreement
Page 2
3. PERFORMANCE GOALS.
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Performance Goals, if any, are established by the Committee on or before
the Date of Xxxxx. The Award shall vest with respect to the Performance Shares,
on or after the dates set forth above, subject to earlier termination of the
Award as provided in Section 1.7 and Section 5 hereof or in the Plan.
4. PERFORMANCE SHARE RIGHTS.
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4.1 Participants may be required or may elect to defer the issuance of
Performance Shares or the settlement of Awards in cash as follows: [disclose
any deferrals or settlements]
4.2 Awards of Performance Shares may provide the Participant with
dividends or dividend equivalents and voting rights at the time of grant.
5. TERMINATION OF EMPLOYMENT.
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5.1 Termination of Participant Due to Death. If the Participant's
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employment is or services are terminated at any time due to the death of the
Participant, the Award shall, on the date of termination, be paid in full, paid
on an as earned basis or terminated, as determined by the Committee. If paid,
the Award shall be paid to the Participant's estate, or to such person or
persons who have acquired the right to receive the Award by bequest or by
inheritance or by reason of the death of the Participant.
5.2 Termination of Employment Due to Disability. If Participant's
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employment is or services are terminated by reason of a disability (within the
meaning of Section 22(e)(3) of the Code) and if the Participant had been in
Continuous Status as an Employee or Consultant at all times between the date of
grant of the Award and termination of his or her status as an Employee or
Consultant, the Award shall, on the date of termination, be paid in full, paid
on as earned basis or terminated, as determined by the Committee.
5.3 Termination of Employment for Other Reasons. If Participant's
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status as an Employee or Consultant is terminated by the Participant at any time
after the grant of an Award for any reason other than death or disability, as
provided in Sections 5.1 and 5.2, and not for "cause" as provided below, the
Award shall be paid in full, paid on as earned basis or is terminated, as
determined by the Committee, on the date of termination of Participant's status
as an Employee or Consultant.
If Participant's status as an Employee is terminated for "cause" (such
termination being referred to as a "Termination for Cause") at any time by the
Company after the grant of an Award by the Company, then the Award terminates on
the date of termination of Participant's status as an Employee. For purposes of
QUADRACOMM, INC.
2001 Stock Option / Performance Stock Plan
Award Agreement
Page 3
this Section 5.3, Termination for "cause" shall mean a termination due to
objective evidence of any of the following: (i) material dishonesty related to
employment; (ii) fraud; (iii) commission of a felony or a crime involving moral
turpitude; (iv) theft of Company property or intentional destruction of Company
property without good reason and causing significant damage; (v) physical attack
resulting in physical injury to a fellow employee or other individual; (vi)
unsanctioned intoxication at work; (vii) use of unlawful drugs at work; (viii)
any form of substance abuse (including alcohol) to the extent that it
significantly impairs the performance of duties; or (ix) gross insubordination
or gross dereliction of duty.
5.4 Employment by Subsidiary. For purposes of this Section and Section
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8, employment with the Company includes employment with any Parent or Subsidiary
of the Company and service as a Director of the Company or any Parent or
Subsidiary shall be considered employment with the Company. A change of
employment between the Company and any Parent or Subsidiary (or between
Subsidiaries or between a Subsidiary and a Parent) is not a termination of
employment under this Agreement.
6. TRANSFERABILITY.
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Awards of Performance Shares shall not be transferable or assignable other
than: (i) by will or the laws of descent and distribution; (ii) by gift or other
transfer of an Award to any trust or estate in which the original Award
recipient or such recipient's spouse or other immediate relative has a
substantial beneficial interest, or to a spouse or other immediate relative,
provided that any such transfer is permitted subject to Rule 16b-3 issued
pursuant to the Securities Exchange Act of 1934, as amended, as in effect when
such transfer occurs and the Board does not rescind this provision prior to such
transfer; or (iii) pursuant to a qualified domestic relations order (as defined
by the Code). However, any Award so transferred shall continue to be subject to
all the terms and conditions contained in the Award Agreement.
7. RESTRICTIONS ON THE AWARDS; RESTRICTIONS ON THE SHARES.
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The Award may not be paid in common stock unless, in the opinion of counsel
for the Company, the issuance and sale of the common stock is exempt from
registration under the Securities Act of 1933, as amended, or any other
applicable federal or state securities law, rule or regulation, or the common
stock has been duly registered under such laws. The Company shall not be
required to register the common stock issuable pursuant to an Award under any
such laws. Unless the common stock has been registered under all applicable
laws, the Participant shall represent, warrant and agree, as a condition to the
issuance of the common stock, that the shares issued are being received for
investment only and without a view to any sale or distribution of such shares
and that such shares shall not be transferred or disposed of in any manner
without registration under such laws, unless it is the opinion of counsel for
the Company that such a disposition is exempt from such registration. The
Participant acknowledges that, if required by law, an appropriate legend, in
such form as the Company shall determine, giving notice of the foregoing
restrictions shall appear conspicuously on all certificates evidencing the
shares issued in exchange for Performance Shares.
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2001 Stock Option / Performance Stock Plan
Award Agreement
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The Participant also acknowledges and agrees that, in connection with any
public offering of the Company's stock, upon request of the Company or the
underwriters managing any underwritten public offering of the Company's stock
and making such request with the approval of the Company's Board of Directors,
not to sell, make any short sale of, loan, grant any option for the purchase of,
or otherwise dispose of any of his or her shares without the prior written
consent of the Company or such underwriters, as the case may be, from the
effective date of such registration for so long as the Company or the
underwriters may specify, but in any event not to exceed 180 days.
8. NO RIGHT TO CONTINUED STATUS AS AN EMPLOYEE OR CONSULTANT.
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Nothing in this Agreement or the Plan shall be interpreted or construed to
confer upon the Participant any right with respect to continuance of status as
an Employee or Consultant by the Company or any Parent or Subsidiary, nor shall
this Agreement or the Plan interfere in any way with the right of the Company or
a Parent or Subsidiary to terminate the Participant's employment or services at
any time.
9. ADJUSTMENTS UPON CERTAIN EVENTS.
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In the event of a change in capitalization, such as a stock split, the
Committee shall make appropriate adjustments to the number and class of shares
or other stock or securities subject to the Award. The Committee's adjustment
shall be made in accordance with the provisions of Section 6(h) of the Plan and
shall be effective and final, binding and conclusive for all purposes of the
Plan and this Agreement.
Subject to Section 6(j) of the Plan, upon a merger, consolidation,
separation, reorganization or other business combination involving the Company,
the Award shall be deemed earned. All amounts deferred pursuant to the Plan and
any accrued interest thereon shall be paid in cash within 10 days of the sale
transaction before the date of closing of any sale transaction or such earlier
date as the Committee may fix.
10. WITHHOLDINGS OF TAXES.
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The Company shall have the right to deduct from any distribution of cash to
the Participant an amount equal to the federal, state and local income taxes and
other amounts as may be required by law to be withheld (the "Withholdings
Taxes") with respect to the Award. If the Participant is entitled to receive
shares, the Participant shall pay the Withholdings Taxes (if any) to the Company
in cash prior to the issuance of such shares. In satisfaction of the
Withholdings Taxes, the Participant may make a written election (the "Tax
Election"), which may be accepted or rejected in the discretion of the
Committee, to have withheld a portion of the shares issuable to him or her based
upon the Award, having an aggregate Fair Market Value equal to the Withholdings
Taxes, provided that, if the Participant may be subject to liability under
Section 16(b) of the Exchange Act, the election must comply with the
requirements applicable to share transactions by such Participants.
QUADRACOMM, INC.
2001 Stock Option / Performance Stock Plan
Award Agreement
Page 5
11. MODIFICATION OF AGREEMENT.
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This Agreement may be modified, amended, suspended or terminated, and any
terms or conditions may be waived, only by a written instrument executed by the
parties hereto.
12. SEVERABILITY.
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Should any provision of this Agreement be held by a court of competent
jurisdiction to be unenforceable or invalid for any reason, the remaining
provisions of this Agreement shall not be affected by such Holdings and shall
continue in full force in accordance with their terms.
13. GOVERNING LAW.
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The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Colorado without giving
effect to the conflicts of laws principles thereof.
14. SUCCESSORS IN INTEREST.
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This Agreement shall be binding upon, and inure to the benefit of, the
Company and its successors and assigns, and upon any person acquiring, whether
by merger, consolidation, reorganization, purchase of stock or assets, or
otherwise, all or substantially all of the Company's assets and business. This
Agreement shall inure to the benefit of the Participant's heirs and legal
representatives. All obligations imposed upon the Participant and all rights
granted to the Company under this Agreement shall be final, binding and
conclusive upon the Participant's heirs, executors, administrators and
successors.
15. RESOLUTION OF DISPUTES.
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Any dispute or disagreement which may arise under, or as a result of, or in
any way relate to, the interpretation, construction or application of this
Agreement shall be determined by the Board. Any determination made hereunder
shall be final, binding and conclusive on the Participant and the Company for
all purposes.
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QUADRACOMM, INC.
2001 Stock Option / Performance Stock Plan
Award Agreement
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IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the date first above written.
QUADRACOMM, INC.
By:
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Name:
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Title:
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By signing below, Participant hereby accepts the Award subject to all its
terms and provisions and agrees to be bound by the terms and provisions of the
Plan. Participant hereby agrees to accept as binding, conclusive and final all
decisions or interpretations of the Board of Directors of the Company, and of
the Committee responsible for administration of the Plan, upon any questions
arising under the Plan. Participant authorizes the Company to withhold, in
accordance with applicable law, from any compensation payable to him or her, any
taxes required to be withheld by federal, state or local law as a result of the
grant, existence or issuance of the Award or subsequent sale of the shares.
PARTICIPANT
Signature:
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Name: <>
[EXHIBIT FOLLOWS]
QUADRACOMM, INC.
2001 Stock Option / Performance Stock Plan
Award Agreement
Page 7
EXHIBIT A
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PERFRMANCE GOALS
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EXHIBIT A
