AEHR TEST SYSTEMS RESTRICTED STOCK UNIT AWARD AGREEMENT NOTICE OF GRANT OF RESTRICTED STOCK UNITS
Exhibit
10.20
2016 EQUITY INCENTIVE PLAN
NOTICE OF GRANT OF RESTRICTED STOCK UNITS
Unless
otherwise defined herein, the terms defined in the 2016 Equity
Incentive Plan (the “Plan”) shall have the same defined
meanings in this Restricted Stock Unit Award Agreement, including
the Notice of Grant of Restricted Stock Units (the “Notice of
Grant”), the Terms and Conditions of Restricted Stock Unit
Grant, and any appendices and exhibits attached thereto (all
together, the “Award Agreement”).
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Name
(“Participant):
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«Name»
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Address:
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«Address»
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The
undersigned Participant has been granted the right to receive an
Award of Restricted Stock Units, subject to the terms and
conditions of the Plan and this Award Agreement, as
follows:
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Date of
Xxxxx:
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«GrantDate»
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Vesting
Commencement Date:
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«VCD»
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Number
of Restricted Stock Units:
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«Shares»
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Vesting Schedule:
Subject
to any acceleration provisions contained in the Plan or set forth
below, the Restricted Stock Units will vest in accordance with the
following schedule:
[Insert
Vesting Schedule]
In
the event Participant ceases to be a Service Provider for any or no
reason before Participant vests in the Restricted Stock Units, the
Restricted Stock Units and Participant’s right to acquire any
Shares hereunder will immediately terminate.
Participant
acknowledges receipt of a copy of the Plan and represents that he
or she is familiar with the terms and provisions thereof, and
hereby accepts this Award Agreement subject to all of the terms and
provisions thereof. Participant has reviewed the Plan and this
Award Agreement in their entirety, has had an opportunity to obtain
the advice of counsel prior to executing this Award Agreement and
fully understands all provisions of this Award Agreement.
Participant hereby agrees to accept as binding, conclusive and
final all decisions or interpretations of the Administrator upon
any questions arising under the Plan or this Award Agreement.
Participant further agrees to notify the Company upon any change in
the residence address indicated below.
2016 EQUITY INCENTIVE PLAN
TERMS AND CONDITIONS OF RESTRICTED STOCK UNIT GRANT
1.
Grant of Restricted Stock
Units. The Company hereby grants to the individual (the
“Participant”) named in the Notice of Grant of
Restricted Stock Units of this Award Agreement (the “Notice
of Grant”) under the Plan an Award of Restricted Stock Units,
subject to all of the terms and conditions in this Award Agreement
and the Plan, which is incorporated herein by reference. Subject to
Section 21(c) of the Plan, in the event of a conflict between the
terms and conditions of the Plan and this Award Agreement, the
terms and conditions of the Plan shall prevail.
2.
Company’s Obligation
to Pay. Each Restricted Stock Unit represents the right to
receive a Share on the date it vests. Unless and until the
Restricted Stock Units will have vested in the manner set forth in
Section 3 or 4, Participant will have no right to payment of any
such Restricted Stock Units. Prior to actual payment of any vested
Restricted Stock Units, such Restricted Stock Unit will represent
an unsecured obligation of the Company, payable (if at all) only
from the general assets of the Company.
3. Vesting Schedule. Except as
provided in Section 4, and subject to Section 5, the Restricted
Stock Units awarded by this Award Agreement will vest in accordance
with the vesting schedule set forth in the Notice of Grant, subject
to Participant continuing to be a Service Provider through each
applicable vesting date.
4.
Payment after
Vesting.
(a)
General Rule.
Subject to Section 6, any Restricted Stock Units that vest will be
paid to Participant (or in the event of Participant’s death,
to his or her properly designated beneficiary or estate) in whole
Shares. Subject to the provisions of Section 4(b), such vested
Restricted Stock Units shall be paid in whole Shares as soon as
practicable after vesting, but in each such case within sixty (60)
days following the vesting
date. In no event will Participant be permitted, directly or
indirectly, to specify the taxable year of payment of any
Restricted Stock Units payable under this Award
Agreement.
(b)
Acceleration.
(i) Discretionary
Acceleration. The Administrator, in its discretion, may
accelerate the vesting of the balance, or some lesser portion of
the balance, of the unvested Restricted Stock Units at any time,
subject to the terms of the Plan. If so accelerated, such , such
Restricted Stock Units will be considered as having vested as of
the date specified by the Administrator. If Participant is a U.S. taxpayer, the
payment of Shares vesting pursuant to this Section 4(b) shall
in all cases be paid at a time or in a manner that is exempt from,
or complies with, Section 409A. The prior sentence may be superseded in a future
agreement or amendment to this Award Agreement only by direct and specific reference to
such sentence.
(ii)
Notwithstanding anything in the Plan or this Award Agreement
or any other agreement (whether
entered into before, on or after the Date of Grant), if the
vesting of the balance, or some lesser portion of the balance, of
the Restricted Stock Units is accelerated in connection with
Participant’s termination as a Service Provider (provided
that such termination is a “separation from service”
within the meaning of Section 409A, as determined by the
Company), other than due to Participant’s death, and if
(x) Participant is a U.S. taxpayer and a “specified
employee” within the meaning of Section 409A at the time of
such termination as a Service Provider and (y) the payment of such
accelerated Restricted Stock Units will result in the imposition of
additional tax under Section 409A if paid to Participant on or
within the six (6) month period following Participant’s
termination as a Service Provider, then the payment of such
accelerated Restricted Stock Units will not be made until the date
six (6) months and one (1) day following the date of
Participant’s termination as a Service
Provider, unless Participant
dies following his or her termination as a Service Provider, in
which case, the Restricted Stock Units will be paid in Shares to
Participant’s estate as soon as practicable following his or
her death.
(c)
Section 409A. It is
the intent of this Award Agreement that it and all payments and
benefits to U.S. taxpayers hereunder be exempt from, or comply
with, the requirements of Section 409A so that none of the Restricted Stock Units
provided under this Award Agreement or Shares issuable thereunder will be
subject to the additional tax imposed under Section 409A,
and any ambiguities herein will be interpreted to be so exempt or
so comply. Each payment payable under this Award Agreement is
intended to constitute a separate payment for purposes of Treasury
Regulation Section 1.409A-2(b)(2). For purposes of this Award
Agreement, “Section 409A” means
Section
409A of
the Code, and any final Treasury
Regulations and Internal Revenue Service guidance
thereunder, as each may be amended from time to
time.
5.
Forfeiture Upon
Termination as a Service Provider. Notwithstanding any
contrary provision of this Award Agreement, if Participant ceases
to be a Service Provider for any or no reason, the then-unvested
Restricted Stock Units awarded by this Award Agreement will
thereupon be forfeited at no cost to the Company and Participant
will have no further rights thereunder.
6.
Death of
Participant. Any distribution or delivery to be made to
Participant under this Award Agreement will, if Participant is then
deceased, be made to Participant’s designated beneficiary, or
if no beneficiary survives Participant, the administrator or
executor of Participant’s estate. Any such transferee must
furnish the Company with (a) written notice of his or her status as
transferee, and (b) evidence satisfactory to the Company to
establish the validity of the transfer and compliance with any laws
or regulations pertaining to said transfer.
7.
Tax Consequences.
Participant has reviewed with its own tax advisors the U.S.
federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Award
Agreement. With respect to such matters, Participant relies solely
on such advisors and not on any statements or representations of
the Company or any of its agents, written or oral. Participant
understands that Participant (and not the Company) shall be
responsible for Participant’s own tax liability that may
arise as a result of this investment or the transactions
contemplated by this Award Agreement.
8.
Tax
Obligations
(a)
Responsibility for
Taxes. Participant acknowledges that, regardless of any
action taken by the Company or, if different, Participant’s
employer (the “Employer”), the ultimate liability for
any tax and/or social insurance liability obligations and
requirements in connection with the Restricted Stock Units,
including, without limitation, (a) all federal, state, and local
taxes (including the Participant’s Federal Insurance
Contributions Act (FICA) obligation) that are required to be
withheld by the Company or the Employer or other payment of
tax-related items related to Participant’s participation in
the Plan and legally applicable to Participant, (b) the
Participant’s and, to the extent required by the Company (or
Employer), the Company’s (or Employer’s) fringe benefit
tax liability, if any, associated with the grant, vesting, or
exercise of the Restricted Stock Units or sale of Shares, and
(c) any other Company (or Employer) taxes the responsibility
for which the Participant has, or has agreed to bear, with respect
to the Restricted Stock Units (or exercise thereof or issuance of
Shares thereunder) (collectively, the “Tax
Obligations”), is and remains Participant’s
responsibility and may exceed the amount actually withheld by the
Company or the Employer. Participant further acknowledges that the
Company and/or the Employer (i) make no representations or
undertakings regarding the treatment of any Tax Obligations in
connection with any aspect of the Restricted Stock Units,
including, but not limited to, the grant, vesting or settlement of
the Restricted Stock Units, the subsequent sale of Shares acquired
pursuant to such settlement and the receipt of any dividends or
other distributions, and (ii) do not commit to and are under no
obligation to structure the terms of the grant or any aspect of the
Restricted Stock Units to reduce or eliminate Participant’s
liability for Tax Obligations or achieve any particular tax result.
Further, if Participant is subject to Tax Obligations in more than
one jurisdiction between the Date of Grant and the date of any
relevant taxable or tax withholding event, as applicable,
Participant acknowledges that the Company and/or the Employer (or
former employer, as applicable) may be required to withhold or
account for Tax Obligations in more than one jurisdiction. If
Participant fails to make satisfactory arrangements for the payment
of any required Tax Obligations hereunder at the time of the
applicable taxable event, Participant acknowledges and agrees that
the Company may refuse to issue or deliver the Shares.
(b)
Tax Withholding.
When Shares are issued as payment for vested Restricted Stock
Units, Participant generally will recognize immediate U.S. taxable
income if Participant is a U.S. taxpayer. If Participant is a
non-U.S. taxpayer, Participant will be subject to applicable taxes
in his or her jurisdiction. Pursuant to such procedures as the
Administrator may specify from time to time, the Company and/or
Employer shall withhold the amount required to be withheld for the
payment of Tax Obligations or other greater amount up to the
maximum statutory rate under Applicable Laws, as applicable to the
Participant, if such other greater amount would not result in
adverse financial accounting treatment, as determined by the
Company. The Administrator, in its sole discretion and pursuant to
such procedures as it may specify from time to time, may permit
Participant to satisfy such Tax Obligations, in whole or in part
(without limitation), if permissible by applicable local law, by
(a) paying cash, (b) electing to have the Company withhold
otherwise deliverable Shares having a Fair Market Value equal to
the amount of such Tax Obligations, (c) withholding the amount of
such Tax Obligations from Participant’s wages or other cash
compensation paid to Participant by the company and/or the
Employer, (d) delivering to the Company already vested and
owned Shares having a Fair Market Value equal to such Tax
Obligations, or (e) selling a sufficient number of such Shares
otherwise deliverable to Participant through such means as the
Company may determine in its sole discretion (whether through a
broker or otherwise) equal to the amount of the Tax Obligations. To
the extent determined appropriate by the Company in its discretion,
it will have the right (but not the obligation) to satisfy any Tax
Obligations by reducing the number of Shares otherwise deliverable
to Participant and, until determined otherwise by the Company, this
will be the
method
by which such Tax Obligations are satisfied. Further, if
Participant is subject to tax in more than one jurisdiction between
the Date of Grant and a date of any relevant taxable or tax
withholding event, as applicable, Participant acknowledges and
agrees that the Company and/or the Employer (and/or former
employer, as applicable) may be required to withhold or account for
tax in more than one jurisdiction. If Participant fails to make
satisfactory arrangements for the payment of such Tax Obligations
hereunder at the time any applicable Restricted Stock Units
otherwise are scheduled to vest pursuant to Sections 3 or 4,
Participant will permanently forfeit such Restricted Stock Units
and any right to receive Shares thereunder and the Restricted Stock
Units will be returned to the Company at no cost to the Company.
Participant acknowledges and agrees that the Company may refuse to
deliver the Shares if such Tax Obligations are not delivered at the
time they are due.
9.
Rights as
Stockholder. Neither Participant nor any person claiming
under or through Participant will have any of the rights or
privileges of a stockholder of the Company in respect of any Shares
deliverable hereunder unless and until certificates representing
such Shares (which may be in book entry form) will have been
issued, recorded on the records of the Company or its transfer
agents or registrars, and delivered to Participant (including
through electronic delivery to a brokerage account). After such
issuance, recordation and delivery, Participant will have all the
rights of a stockholder of the Company with respect to voting such
Shares and receipt of dividends and distributions on such
Shares.
10.
No Guarantee of Continued
Service. PARTICIPANT ACKNOWLEDGES AND AGREES THAT THE
VESTING OF THE RESTRICTED STOCK UNITS PURSUANT TO THE VESTING
SCHEDULE HEREOF IS EARNED ONLY BY CONTINUING AS A SERVICE PROVIDER
AT THE WILL OF THE COMPANY (OR THE EMPLOYER) AND NOT THROUGH THE
ACT OF BEING HIRED, BEING GRANTED THIS RESTRICTED STOCK UNIT AWARD
OR ACQUIRING SHARES HEREUNDER. PARTICIPANT FURTHER ACKNOWLEDGES AND
AGREES THAT THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER
AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN
EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS A SERVICE
PROVIDER FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND
SHALL NOT INTERFERE IN ANY WAY WITH PARTICIPANT’S RIGHT OR
THE RIGHT OF THE COMPANY (OR THE EMPLOYER) TO TERMINATE
PARTICIPANT’S RELATIONSHIP AS A SERVICE PROVIDER AT ANY TIME,
WITH OR WITHOUT CAUSE.
11.
Grant is Not
Transferable. Except to the limited extent provided in
Section 6, this grant and the rights and privileges conferred
hereby will not be transferred, assigned, pledged or hypothecated
in any way (whether by operation of law or otherwise) and will not
be subject to sale under execution, attachment or similar process.
Upon any attempt to transfer, assign, pledge, hypothecate or
otherwise dispose of this grant, or any right or privilege
conferred hereby, or upon any attempted sale under any execution,
attachment or similar process, this grant and the rights and
privileges conferred hereby immediately will become null and
void.
12.
Nature of Grant. In
accepting the grant, Participant acknowledges, understands and
agrees that:
(a) the
grant of the Restricted Stock Units is voluntary and occasional and
does not create any contractual or other right to receive future
grants of Restricted Stock Units, or benefits in lieu of Restricted
Stock Units, even if Restricted Stock Units have been granted in
the past;
(b) all
decisions with respect to future Restricted Stock Units or other
grants, if any, will be at the sole discretion of the
Company;
(c)
Participant is voluntarily participating in the Plan;
(d) the
Restricted Stock Units and the Shares subject to the Restricted
Stock Units are not intended to replace any pension rights or
compensation;
(e) the
Restricted Stock Units and the Shares subject to the Restricted
Stock Units, and the income and value of same, are not part of
normal or expected compensation for purposes of calculating any
severance, resignation, termination, redundancy, dismissal,
end-of-service payments, bonuses, long-service awards, pension or
retirement or welfare benefits or similar payments;
(f) the
future value of the underlying Shares is unknown, indeterminable
and cannot be predicted;
(g) for
purposes of the Restricted Stock Units, Participant’s status
as a Service Provider will be considered terminated as of the date
Participant is no longer actively providing services to the Company
or any Parent or Subsidiary (regardless of the reason for such
termination and whether or not later to be found invalid or in
breach of
employment laws in
the jurisdiction where Participant is a Service Provider or the
terms of Participant’s employment or service agreement, if
any), and unless otherwise expressly provided in this Award
Agreement (including by reference in the Notice of Grant to other
arrangements or contracts) or determined by the Administrator,
Participant’s right to vest in the Restricted Stock Units
under the Plan, if any, will terminate as of such date and will not
be extended by any notice period (e.g., Participant’s period
of service would not include any contractual notice period or any
period of “garden leave” or similar period mandated
under employment laws in the jurisdiction where Participant is a
Service Provider or the terms of Participant’s employment or
service agreement, if any, unless Participant is providing bona
fide services during such time); the Administrator shall have the
exclusive discretion to determine when Participant is no longer
actively providing services for purposes of the Restricted Stock
Units grant (including whether Participant may still be considered
to be providing services while on a leave of absence);
(h)
unless otherwise provided in the Plan or by the Company in its
discretion, the Restricted Stock Units and the benefits evidenced
by this Award Agreement do not create any entitlement to have the
Restricted Stock Units or any such benefits transferred to, or
assumed by, another company nor be exchanged, cashed out or
substituted for, in connection with any corporate transaction
affecting the Shares; and
(i) the
following provisions apply only if Participant is providing
services outside the United States:
(i)
the
Restricted Stock Units and the Shares subject to the Restricted
Stock Units are not part of normal or expected compensation or
salary for any purpose;
(ii)
Participant
acknowledges and agrees that none of the Company, the Employer or
any Parent or Subsidiary shall be liable for any foreign
exchange rate fluctuation between Participant’s local
currency and the United States Dollar that may affect the value of
the Restricted Stock Units or of any amounts due to Participant
pursuant to the settlement of the Restricted Stock Units or the
subsequent sale of any Shares acquired upon settlement;
and
(iii)
no claim or
entitlement to compensation or damages shall arise from forfeiture
of the Restricted Stock Units resulting from the termination of
Participant’s status as a Service Provider (for any reason
whatsoever whether or not later found to be invalid or in breach of
employment laws in the jurisdiction where Participant is a Service
Provider or the terms of Participant’s employment or service
agreement, if any), and in consideration of the grant of the
Restricted Stock Units to which Participant is otherwise not
entitled, Participant irrevocably agrees never to institute
any claim against the Company, any Parent or Subsidiary or the
Employer, waives his or her ability, if any, to bring any such
claim, and releases the Company, any Parent or Subsidiary and the
Employer from any such claim; if, notwithstanding the foregoing,
any such claim is allowed by a court of competent jurisdiction,
then, by participating in the Plan, Participant shall be deemed
irrevocably to have agreed not to pursue such claim and agrees to
execute any and all documents necessary to request dismissal or
withdrawal of such claim.
13.
No Advice Regarding
Grant. The Company is not providing any tax, legal or
financial advice, nor is the Company making any recommendations
regarding Participant’s participation in the Plan, or
Participant’s acquisition or sale of the underlying Shares.
Participant is xxxxxx advised to consult with his or her own
personal tax, legal and financial advisors regarding his or her
participation in the Plan before taking any action related to the
Plan.
14. Data
Privacy. Participant hereby
explicitly and unambiguously consents to the collection, use and
transfer, in electronic or other form, of Participant’s
personal data as described in this Award Agreement and any other
Restricted Stock Unit grant materials by and among, as applicable,
the Employer, the Company and any Parent or Subsidiary for the
exclusive purpose of implementing, administering and managing
Participant’s participation in the Plan.
Participant understands that the Company and the Employer may hold
certain personal information about Participant, including, but not
limited to, Participant’s name, home address and telephone
number, date of birth, social insurance number or other
identification number, salary, nationality, job title, any Shares
or directorships held in the Company, details of all Restricted
Stock Units or any other entitlement to Shares awarded, canceled,
exercised, vested, unvested or outstanding in Participant’s
favor (“Data”), for the exclusive purpose of
implementing, administering and managing the Plan.
Participant understands that Data will be transferred to a stock
plan service provider as may be selected by the Company in the
future, which is assisting the Company with the implementation,
administration and management of the Plan. Participant understands
that the recipients of the Data may be located in the United States
or elsewhere, and that the recipients’ country of operation
(e.g., the United States) may have different data privacy laws and
protections than Participant’s country. Participant
understands that if he or she resides outside the United States, he
or she may request a list with the names and addresses of any
potential recipients of the Data by contacting his or her local
human resources representative. Participant authorizes the Company,
any stock plan service provider selected by the Company and any
other possible recipients which may assist the Company (presently
or in the future) with implementing, administering and managing the
Plan to receive, possess, use, retain and transfer the Data, in
electronic or other form, for the sole purpose of implementing,
administering and managing his or her participation in the Plan.
Participant understands that Data will be held only as long as is
necessary to implement, administer and manage Participant’s
participation in the Plan. Participant understands if he or she
resides outside the United States, he or she may, at any time, view
Data, request additional information about the storage and
processing of Data, require any necessary amendments to Data or
refuse or withdraw the consents herein, in any case without cost,
by contacting in writing his or her local human resources
representative. Further, Participant understands that he or she is
providing the consents herein on a purely voluntary basis. If
Participant does not consent, or if Participant later seeks to
revoke his or her consent, his or her status as a Service Provider
and career with the Employer will not be adversely affected; the
only adverse consequence of refusing or withdrawing
Participant’s consent is that the Company would not be able
to grant Participant Restricted Stock Units or other equity awards
or administer or maintain such awards. Therefore, Participant
understands that refusing or withdrawing his or her consent may
affect Participant’s ability to participate in the Plan. For
more information on the consequences of Participant’s refusal
to consent or withdrawal of consent, Participant understands that
he or she may contact his or her local human resources
representative.
15.
Address for
Notices. Any notice to be given to the Company under the
terms of this Award Agreement will be addressed to the Company at
Aehr Test Systems, 000 Xxxx Xxxxxxx, Xxxxxxx, XX 00000, or at such
other address as the Company may hereafter designate in
writing.
16.
Electronic Delivery and
Acceptance. The Company may, in its sole discretion, decide
to deliver any documents related to the Restricted Stock Units awarded under the
Plan or future Restricted Stock
Units that may be awarded under the Plan by electronic means
or request Participant’s consent to participate in the Plan
by electronic means. Participant hereby consents to receive such
documents by electronic delivery and agrees to participate in the
Plan through any on-line or electronic system established and
maintained by the Company or another third party designated by the
Company.
17.
No Waiver. Either
party’s failure to enforce any provision or provisions of
this Agreement shall not in any way be construed as a waiver of any
such provision or provisions, nor prevent that party from
thereafter enforcing each and every other provision of this
Agreement. The rights granted both parties herein are cumulative
and shall not constitute a waiver of either party’s right to
assert all other legal remedies available to it under the
circumstances.
18.
Successors and
Assigns. The Company may assign any of its rights under this
Agreement to single or multiple assignees, and this Agreement shall
inure to the benefit of the successors and assigns of the Company.
Subject to the restrictions on transfer herein set forth, this
Agreement shall be binding upon Participant and his or her heirs,
executors, administrators, successors and assigns. The rights and
obligations of Participant under this Agreement may only be
assigned with the prior written consent of the
Company.
19.
Additional Conditions to
Issuance of Stock. If at any time the Company will
determine, in its discretion, that the listing, registration,
qualification or rule compliance of the Shares upon any securities
exchange or under any state, federal or foreign law, the tax code
and related regulations or under the rulings or regulations of the
United States Securities and Exchange Commission or any other
governmental regulatory body or the clearance, consent or approval
of the United States Securities and Exchange Commission or any
other governmental regulatory authority is necessary or desirable
as a condition to the issuance of Shares to Participant (or his or
her estate) hereunder, such issuance will not occur unless and
until such listing, registration, qualification, rule compliance,
clearance, consent or approval will have been completed, effected
or obtained free of any conditions not acceptable to the Company.
Subject to the terms of the Agreement and the Plan, the Company
shall not be required to issue any certificate or certificates for
Shares hereunder prior to the lapse of such reasonable period of
time following the date of vesting of the Restricted Stock Units as
the Administrator may establish from time to time for reasons of
administrative convenience.
20.
Language. If
Participant has received this Agreement or any other document
related to the Plan translated into a language other than English
and if the meaning of the translated version is different than the
English version, the English version will control.
21.
Interpretation. The
Administrator will have the power to interpret the Plan and this
Award Agreement and to adopt such rules for the administration,
interpretation and application of the Plan as are consistent
therewith and to interpret or revoke any such rules (including, but
not limited to, the determination of whether or not any Restricted
Stock Units have vested). All actions taken and all interpretations
and determinations made by the Administrator in good faith will be
final and binding upon Participant, the Company and all other
interested persons. Neither the Administrator nor any person acting
on behalf of the Administrator will be personally liable for any
action, determination or interpretation made in good faith with
respect to the Plan or this Award Agreement.
22.
Captions. Captions
provided herein are for convenience only and are not to serve as a
basis for interpretation or construction of this Award
Agreement.
23.
Modifications to the
Agreement. This Award Agreement constitutes the entire
understanding of the parties on the subjects covered. Participant
expressly warrants that he or she is not accepting this Award
Agreement in reliance on any promises, representations, or
inducements other than those contained herein. Modifications to
this Award Agreement or the Plan can be made only in an express
written contract executed by a duly authorized officer of the
Company. Notwithstanding anything to the contrary in the Plan or
this Award Agreement, the Company reserves the right to revise this
Award Agreement as it deems necessary or advisable, in its sole
discretion and without the consent of Participant, to comply with
Section 409A or to otherwise avoid imposition of any additional tax
or income recognition under Section 409A in connection to this
Award of Restricted Stock Units.
24.
Governing Law and
Venue. This Award Agreement will be governed by the laws of
California, without giving effect to the conflict of law principles
thereof. For purposes of litigating any dispute that arises under
the Restricted Stock Units or this Award Agreement, the parties
hereby submit to and consent to the jurisdiction of the State of
California, and agree that such litigation will be conducted in the
courts of Alameda County, California or the federal courts for the
United States for the Northern District of California, and no other
courts.
25.
Agreement
Severable. In the event that any provision in this Award
Agreement will be held invalid or unenforceable, such provision
will be severable from, and such invalidity or unenforceability
will not be construed to have any effect on, the remaining
provisions of this Award Agreement.
26.
Amendment, Suspension or
Termination of the Plan. By accepting this Award,
Participant expressly warrants that he or she has received
Restricted Stock Units under the Plan, and has received, read and
understood a description of the Plan. Participant understands that
the Plan is discretionary in nature and may be amended, suspended
or terminated by the Company at any time.
27.
Entire Agreement.
The Plan is incorporated herein by reference. The Plan and this
Award Agreement (including the exhibits referenced herein)
constitute the entire agreement of the parties with respect to the
subject matter hereof and supersede in their entirety all prior
undertakings and agreements of the Company and Participant with
respect to the subject matter hereof, and may not be modified
adversely to the Participant’s interest except by means of a
writing signed by the Company and Participant.
