Exhibit 10.67
XXXXX INSTRUMENTS CORP.
RESTRICTED STOCK AWARD AGREEMENT
THIS RESTRICTED STOCK AWARD AGREEMENT (this "Award Agreement") is dated as
of ____________, 200___ (the "Award Date") by and between Xxxxx Instruments
Corp., a Delaware corporation (the "Corporation"), and ______________
("Employee").
WITNESSETH
WHEREAS, the Corporation has adopted and the stockholders of the
Corporation have approved the Xxxxx Instruments Corp. 1997 Stock Incentive Plan
(the "Plan").
WHEREAS, pursuant to the Plan, the Corporation hereby grants to Employee,
effective as of the date hereof, a restricted stock award (the "Award"), upon
the terms and conditions set forth herein and in the Plan.
NOW THEREFORE, in consideration of services rendered and to be rendered by
Employee, and the mutual promises made herein and the mutual benefits to be
derived therefrom, the parties agree as follows:
1. DEFINED TERMS. Capitalized terms used herein and not otherwise defined
herein shall have the meaning assigned to such terms in the Plan.
2. GRANT. Subject to the terms of this Award Agreement, the Corporation
hereby grants to Employee an Award with respect to an aggregate of ________
restricted shares of Common Stock of the Corporation (the "Restricted Stock").
3. VESTING. Subject to Section 8 below, the Award shall vest, and
restrictions (other than those set forth in the Plan) shall lapse, according to
the following schedule [Insert Schedule].
4. CONTINUANCE OF EMPLOYMENT. Subject to Section 8 below, the vesting
schedule set forth above requires continued employment or service through each
applicable vesting date as a condition to the vesting of the applicable
installment of the Award and the rights and benefits under this Award Agreement.
Partial employment or service, even if substantial, during any vesting period
will not entitle Employee to any proportionate vesting or avoid or mitigate a
termination of rights and benefits upon or following a termination of employment
or services as provided in Section 8 below or under the Plan.
Unless otherwise set forth in writing, nothing contained in this Award
Agreement or the Plan constitutes an employment or service commitment by the
Corporation, affects Employee's status as an employee at will who is subject to
termination without cause, confers upon Employee any right to remain employed by
or in service to the Corporation or any of its Subsidiaries, interferes in any
way with the right of the Corporation or any of its Subsidiaries at any time to
terminate such employment or services, or affects the right of the Corporation
or any of its Subsidiaries to increase or decrease Employee's other compensation
or benefits. Nothing
1
Exhibit 10.67
in this paragraph, however, is intended to adversely affect any independent
contractual right of Employee without his or her consent thereto.
5. DIVIDEND AND VOTING RIGHTS. After the Award Date, Employee shall be
entitled to cash dividends and voting rights with respect to the shares of
Restricted Stock subject to the Award even though such shares are not vested,
provided that such rights shall terminate immediately as to any shares of
Restricted Stock that are forfeited pursuant to Section 8 below.
6. RESTRICTIONS ON TRANSFER. Prior to the time that they have become
vested pursuant to Section 3, neither the Restricted Stock, nor any interest
therein, amount payable in respect thereof, or Restricted Property (as defined
in Section 9 hereof) may be sold, assigned, transferred, pledged or otherwise
disposed of, alienated or encumbered, either voluntarily or involuntarily. The
transfer restrictions in the preceding sentence shall not apply to (a) transfers
to the Corporation, or (b) transfers by will or the laws of descent and
distribution.
7. STOCK CERTIFICATES.
(a) Book Entry Form. The Corporation shall issue the shares of
Restricted Stock subject to the Award either: (a) in certificate form as
provided in Section 7(b) below; or (b) in book entry form, registered in the
name of Employee with notations regarding the applicable restrictions on
transfer imposed under this Award Agreement.
(b) Certificates to be Held by Corporation; Legend. Any certificates
representing shares of Restricted Stock that may be delivered to Employee by the
Corporation prior to vesting shall be redelivered to the Corporation to be held
by the Corporation until the restrictions on such shares shall have lapsed and
the shares shall thereby have become vested or the shares represented thereby
have been forfeited hereunder. Such certificates shall bear the following
legend:
"The ownership of this certificate and the shares of stock evidenced
hereby and any interest therein are subject to substantial restrictions on
transfer under an Agreement entered into between the registered owner and
Xxxxx Instruments Corp. A copy of such Agreement is on file in the office
of the Secretary of Xxxxx Instruments Corp."
(c) Delivery of Certificates upon Vesting. Promptly after the
vesting of any shares of Restricted Stock pursuant to Section 3, the Corporation
shall, as applicable, either remove the notations on any shares of Restricted
Stock issued in book entry form which have vested or deliver to Employee a
certificate or certificates evidencing the number of shares of Restricted Stock
which have vested. Employee (or the beneficiary or personal representative of
Employee in the event of Employee's death or disability, as the case may be)
shall deliver to the Corporation any representations or other documents or
assurances required pursuant to the Plan. The shares so delivered shall no
longer be restricted shares hereunder.
(d) Stock Power; Power of Attorney. Concurrently with the execution
and delivery of this Award Agreement, Employee shall deliver to the Corporation
an executed stock power in the form attached hereto as Exhibit A, in blank, with
respect to such shares. Employee, by acceptance of the Award, shall be deemed to
appoint, and does so appoint by execution of this
2
Exhibit 10.67
Award Agreement, the Corporation and each of its authorized representatives as
Employee's attorney(s)-in-fact to effect any transfer of unvested forfeited
shares (or shares otherwise reacquired by the Corporation hereunder) to the
Corporation as may be required pursuant to the Plan or this Award Agreement and
to execute such documents as the Corporation or such representatives deem
necessary or advisable in connection with any such transfer.
8. EFFECT OF TERMINATION OF EMPLOYMENT OR SERVICES. Subject to earlier
vesting as provided in the Plan, Section 9 hereof, or in the event of a Change
in Control (as discussed below), if Employee ceases to be employed by or ceases
to provide services to the Corporation or a Subsidiary, Employee's shares of
Restricted Stock (and related Restricted Property as defined in Section 9
hereof) shall be forfeited to the Corporation to the extent such shares have not
become vested pursuant to Section 3 upon the date Employee's employment or
services terminate. Upon the occurrence of any forfeiture of shares of
Restricted Stock hereunder, such unvested, forfeited shares and related
Restricted Property shall be automatically transferred to the Corporation,
without any other action by Employee (or Employee's beneficiary or personal
representative in the event of Employee's death or disability, as applicable)
and the Corporation shall refund the Purchase Price (if any) for such forfeited
shares to Employee (or Employee's beneficiary or personal representative in the
event of Employee's death or disability, as applicable). No additional
consideration shall be paid by the Corporation with respect to such transfer. No
interest shall be credited with respect to nor shall any other adjustments be
made to the Purchase Price for fluctuations in the fair market value of the
Common Stock either before or after the transfer date (except for customary
adjustments to reflect stock splits, reverse stock splits, and stock dividends).
The Corporation may exercise its powers under Section 7(d) hereof and take any
other action necessary or advisable to evidence such transfer. Employee (or
Employee's beneficiary or personal representative in the event of Employee's
death or disability, as applicable) shall deliver any additional documents of
transfer that the Corporation may request to confirm the transfer of such
unvested, forfeited shares and related Restricted Property to the Corporation.
9. ADJUSTMENTS UPON SPECIFIED EVENTS. Upon the occurrence of certain
events relating to the Corporation's stock contemplated by the Plan, the
Committee shall make adjustments if appropriate in the number and kind of
securities that may become vested under the Award. If any adjustment shall be
made under the Plan or an event described in the Plan shall occur and the shares
of Restricted Stock are not fully vested upon such event or prior thereto, the
restrictions applicable to such shares of Restricted Stock shall continue in
effect with respect to any consideration or other securities (the "Restricted
Property" and, for the purposes of this Award Agreement, "Restricted Stock"
shall include "Restricted Property", unless the context otherwise requires)
received in respect of such Restricted Stock. Such Restricted Property shall
vest at such times and in such proportion as the shares of Restricted Stock to
which the Restricted Property is attributable vest, or would have vested
pursuant to the terms hereof if such shares of Restricted Stock had remained
outstanding.
10. TAX WITHHOLDING. The Corporation (or any of its Subsidiaries last
employing Employee) shall be entitled to require a cash payment by or on behalf
of Employee and/or to deduct from other compensation payable to Employee any
sums required by federal, state or local tax law to be withheld with respect to
the vesting of any Restricted Stock. Alternatively, Employee or other person in
whom the Restricted Stock vests may irrevocably elect, in such
3
Exhibit 10.67
manner and at such time or times prior to any applicable tax date as may be
permitted or required under the Plan and rules established by the Committee, to
have the Corporation withhold and reacquire shares of Restricted Stock at their
fair market value at the time of vesting to satisfy any withholding obligations
of the Corporation or its Subsidiaries with respect to such vesting. Any
election to have shares so held back and reacquired shall be subject to such
rules and procedures, which may include prior approval of the Committee, as the
Committee may impose, and shall not be available if Employee makes or has made
an election pursuant to Section 83(b) of the Code with respect to such Award.
11. NOTICES. Any notice to be given under the terms of this Award
Agreement shall be in writing and addressed to the Corporation at its principal
office to the attention of the Secretary, and to Employee at Employee's last
address reflected on the Corporation's payroll records. Any notice shall be
delivered in person or shall be enclosed in a properly sealed envelope,
addressed as aforesaid, registered or certified, and deposited (postage and
registry or certification fee prepaid) in a post office or branch post office
regularly maintained by the United States Government. Any such notice shall be
deemed to have been duly given five business days after the date mailed in
accordance with the foregoing provisions of this Section 11.
12. PLAN. The Award and all rights of Employee under this Award Agreement
are subject to the terms and conditions of the provisions of the Plan,
incorporated herein by reference. Employee agrees to be bound by the terms of
the Plan and this Award Agreement. Employee acknowledges having read and
understanding the Plan, the Prospectus for the Plan, and this Award Agreement.
Unless otherwise expressly provided in other sections of this Award Agreement,
provisions of the Plan that confer discretionary authority on the Board or the
Committee do not (and shall not be deemed to) create any rights in Employee
unless such rights are expressly set forth herein or are otherwise in the sole
discretion of the Board or the Committee so conferred by appropriate action of
the Board or the Committee under the Plan after the date hereof.
13. ENTIRE AGREEMENT. This Award Agreement and the Plan together
constitute the entire agreement and supersede all prior understandings and
agreements, written or oral, of the parties hereto with respect to the subject
matter hereof. The Plan and this Award Agreement may be amended pursuant to the
Plan. Such amendment must be in writing and signed by the Corporation. The
Corporation may, however, unilaterally waive any provision hereof in writing to
the extent such waiver does not adversely affect the interests of Employee
hereunder, but no such waiver shall operate as or be construed to be a
subsequent waiver of the same provision or a waiver of any other provision
hereof.
14. COUNTERPARTS. This Award Agreement may be executed simultaneously in
any number of counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
15. SECTION HEADINGS. The section headings of this Award Agreement are for
convenience of reference only and shall not be deemed to alter or affect any
provision hereof.
4
Exhibit 10.67
16. GOVERNING LAW. This Award Agreement shall be governed by and construed
and enforced in accordance with the laws of the State of California without
regard to conflict of law principles thereunder.
IN WITNESS WHEREOF, the Corporation has caused this Award Agreement to be
executed on its behalf by a duly authorized officer and Employee has hereunto
set his or her hand as of the date and year first above written.
XXXXX INSTRUMENTS CORP.,
A DELAWARE CORPORATION
By:____________________________
Print Name:____________________
Its:___________________________
EMPLOYEE
_______________________________
Signature
_______________________________
Print Name
5
Exhibit 10.67
CONSENT OF SPOUSE
In consideration of the execution of the foregoing Restricted Stock Award
Agreement by Xxxxx Instruments Corp., I, _____________________________, the
spouse of Employee therein named, do hereby join with my spouse in executing the
foregoing Restricted Stock Award Agreement and do hereby agree to be bound by
all of the terms and provisions thereof and of the Plan.
Dated: _____________, 200___
_______________________________
Signature of Spouse
_______________________________
Print Name
6
Exhibit 10.67
EXHIBIT A
STOCK POWER
FOR VALUE RECEIVED and pursuant to that certain Restricted Stock Award
Agreement between Xxxxx Instruments Corp., a Delaware corporation (the
"Corporation"), and the employee named below ("Employee") dated as of
_____________, 200___, Employee, hereby sells, assigns and transfers to the
Corporation, an aggregate ________ shares of Common Stock of the Corporation,
standing in Employee's name on the books of the Corporation and represented by
stock certificate number(s)_______________________________________ to which this
instrument is attached, and hereby irrevocably constitutes and appoints
______________________________________ as his or her attorney in fact and agent
to transfer such shares on the books of the Corporation, with full power of
substitution in the premises.
Dated _____________, ________
________________________
Signature
________________________
Print Name
(Instruction: Please do not fill in any blanks other than the signature line.
The purpose of the assignment is to enable the Corporation to exercise its
sale/purchase option set forth in the Restricted Stock Award Agreement without
requiring additional signatures on the part of Employee.)
