Exhibit 10.54
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THERMO ELECTRON CORPORATION
RESTRICTED STOCK AGREEMENT
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Granted Under
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2005 Stock Incentive Plan
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1. Award of Restricted Shares.
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This agreement sets forth the terms and conditions of an award by Thermo
Electron Corporation, a Delaware corporation (the "Company"), on February 27,
2006 (the "Award Date") to Xxx Xxxxxxxxx (the "Participant") of 20,000 shares
(the "Restricted Shares") of common stock, $1.00 par value, of the Company
("Common Stock") pursuant to the terms, conditions and restrictions set forth in
this Agreement and in the Company's 2005 Stock Incentive Plan (the "Plan").
Capitalized terms used in this Agreement and not otherwise defined shall have
the same meaning as in the Plan.
2. Vesting Schedule.
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Except as otherwise provided in paragraphs (b) and (c) of Section 3, the
restrictions set forth in this Agreement shall lapse and the Restricted Shares
shall vest as to 33?% of the original number of Restricted Shares on the first
anniversary of the Award Date and as to an additional 33?% of the original
number of Restricted Shares at the end of each anniversary of the Award Date
following the first anniversary of the Award Date until the third anniversary of
the Award Date (each anniversary, a "Vesting Date" and the third anniversary,
the "Final Vesting Date")"; provided, that on each such date the Participant is,
and has been at all times since the Award Date, an employee, officer or director
of, or consultant or advisor to, the Company or any other entity the employees,
officers, directors, consultants, or advisors of which are eligible to receive
restricted stock awards under the Plan (an "Eligible Participant").
3. Forfeiture.
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(a) Termination of Relationship with the Company. In the event that the
Participant ceases to be an Eligible Participant for any reason other than those
set forth in paragraphs (b) and (c) below prior to the Final Vesting Date while
he or she is an Eligible Participant, the Restricted Shares that have not
previously vested shall be immediately forfeited to the Company.
(b) Death or Disability. In the event that the Participant's employment
with the Company or a Subsidiary is terminated by reason of death or
"disability" (as defined below) prior to the Final Vesting Date while he or she
is an Eligible Participant, the Restricted Shares that have not previously
vested shall vest 100% upon the date of such death or disability. For the
purposes of this Agreement, a Participant shall be deemed to be "disabled" at
such time as the Participant is receiving disability benefits under the
Company's Long Term Disability Coverage, as then in effect.
(c) Discharge by the Company other than for Cause. In the event that the
Participant's employment with the Company or a Subsidiary, as the case may be,
is terminated by the Company or such Subsidiary other than for "cause" (as
defined below) prior to the Final Vesting Date, the Restricted Shares that have
not previously vested shall vest 100% upon the effective date of such
termination. For the purposes of this Agreement, "cause" shall mean (i) the
commitment of a felony or any crime involving moral turpitude by the Participant
that is materially injurious to the Company or (ii) in carrying out his or her
duties, the Participant intentionally engages in conduct that constitutes gross
neglect or gross misconduct that is materially injurious to the Company.
4. Restrictions on Transfer.
------------------------
(a) Restricted Shares. The Restricted Shares may not be sold, assigned,
transferred, pledged, or otherwise encumbered or disposed of except by will or
laws of descent and distribution unless and until such Restricted Shares shall
have vested as provided in this Agreement and in the Plan. Notwithstanding the
foregoing, the Company consents to the gratuitous transfer of the Restricted
Shares that have not vested to or for the benefit of any immediate family
member, family trust or family partnership established solely for the benefit of
the Participant and/or an immediate family member; provided that with respect to
such proposed transferee the Company would be eligible to use a Form S-8 for the
registration of the sale of Common Stock constituting the Restricted Shares
under the Securities Act of 1933, as amended; and provided further that such
Restricted Shares shall remain subject to the terms and conditions of this
Agreement (including without limitation forfeiture and restrictions on transfer)
and the Company shall not be required to recognize any such transfer until such
time as the Participant and the permitted transferee shall, as a condition to
such transfer, deliver to the Company a written instrument in form and substance
satisfactory to the Company confirming that such transferee shall be bound by
all of the terms and conditions of this Agreement.
(b) Unrestricted Shares. The Unrestricted Shares (as defined in Section 7
hereof) may not be sold unless and until the Participant is in compliance with
the Company's Executive Officer Stock Ownership policy, as set forth in the
Company's Corporate Governance Guidelines (the "Ownership Policy").
Notwithstanding the foregoing, to the extent that the Participant is not in
compliance with the Ownership Policy on a Vesting Date, the Participant may, on
or after each applicable Vesting Date, sell Unrestricted Shares having a Fair
Market Value calculated to satisfy the difference between the taxes due as a
result of the vesting and the taxes withheld pursuant to Section 10 hereof.
5. Escrow.
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(a) Appointment. The Participant irrevocably authorizes the Company to
deposit with the Secretary of the Company (in such capacity, the "Escrow Agent")
any certificates evidencing Restricted Shares, to be held by the Escrow Agent
hereunder, and any additions and substitutions to said Restricted Shares. For
purposes of this Section 5, "Restricted Shares" shall be deemed to include any
additional or substitute property. The Participant does hereby irrevocably
constitute and appoint the Escrow Agent as his or her attorney-in-fact and agent
for the term of this escrow to execute with respect to such Restricted Shares
all documents necessary or appropriate to make such Restricted Shares negotiable
and to complete any transaction herein contemplated. Subject to the terms of
this Agreement, the Participant shall exercise all rights and privileges of a
stockholder of the Company while the Restricted Shares are held by the Escrow
Agent. The Participant shall, upon request of the Escrow Agent, deliver to the
Escrow Agent a stock assignment duly endorsed in blank, in the form provided by
the Company, and hereby instructs the Company to deliver to the Escrow Agent, on
behalf of the Participant, the certificate(s) evidencing the Restricted Shares.
(b) Withdrawal. The Participant shall have the right to withdraw from
escrow any Restricted Shares that have vested (as provided in this Agreement).
(c) Duties of Escrow Agent. The Escrow Agent shall be obligated only for
the performance of such duties as are specifically set forth herein and may rely
and shall be protected in relying or refraining from acting on any instrument
reasonably believed by him to be genuine and to have been signed or presented by
the proper party or parties. The Escrow Agent shall not be personally liable for
any act he may do or omit to do hereunder as Escrow Agent or as attorney-in-fact
of the Participant while acting in good faith and in the exercise of his good
judgment. The Escrow Agent is hereby expressly authorized to disregard any and
all warnings given by any of the parties or by any other person or entity,
excepting only orders or process of courts of law, and is hereby expressly
authorized to comply with and obey orders, judgments or decrees of any court. If
the Escrow Agent is uncertain of any actions to be taken or instructions to be
followed, he may refuse to act in the absence of an order, judgment or decrees
of a court. In case the Escrow Agent obeys or complies with any such order,
judgment or decree of any court, he shall not be liable to any of the parties or
to any other person or entity, by reason of such compliance, notwithstanding any
such order, judgment or decree being subsequently reversed, modified, annulled,
set aside, vacated or found to have been entered without jurisdiction. The
Escrow Agent shall not be liable in any respect on account of the identity,
authority or rights of the parties executing or delivering or purporting to
execute or deliver this Agreement or any documents or papers deposited or called
for hereunder. It is understood and agreed that if the Escrow Agent believes a
dispute has arisen with respect to the delivery and/or ownership or right of
possession of the securities held by him hereunder, the Escrow Agent is
authorized and directed to retain in his possession without liability to anyone
all or any part of said securities until such dispute shall have been settled
either by mutual written agreement of the parties concerned or by a final order,
decree or judgment of a court of competent jurisdiction after the time for
appeal has expired and no appeal has been perfected, but he shall be under no
duty whatsoever to institute or defend any such proceedings. The Escrow Agent's
rights and responsibilities as Escrow Agent shall terminate if he ceases to be
Secretary of the Company, in which case the successor as Secretary of the
Company shall become Escrow Agent hereunder.
6. Restrictive Legends.
-------------------
(a) Legended Certificates. All certificates representing unvested
Restricted Shares shall have affixed thereto legends in substantially the
following form, in addition to any other legends that may be required under
federal or state securities laws:
"THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS AND CONDITIONS (INCLUDING FORFEITURE AND RESTRICTION ON TRANSFER)OF
THE ISSUER'S STOCK INCENTIVE PLAN AND A RESTRICTED STOCK AGREEMENT BETWEEN
THE ISSUER AND THE REGISTERED OWNER OF THESE SHARES (OR HIS OR HER
PREDECESSOR IN INTEREST). COPIES OF SUCH PLAN AND AGREEMENT ARE AVAILABLE
FOR INSPECTION WITHOUT CHARGE AT THE OFFICE OF THE SECRETARY OF THE
ISSUER."
(b) Book Entry. If unvested Restricted Shares are held in book entry form,
the Participant agrees that the Company may give stop transfer instructions to
the depository to ensure compliance with the provisions of this Agreement. The
Participant hereby (i) acknowledges that the unvested Restricted Shares may be
held in book entry form on the books of the Company's depository (or another
institution specified by the Company), and irrevocably authorizes the Company to
take such actions as may be necessary or appropriate to effectuate a transfer of
the record ownership of any such shares that are unvested and forfeited
hereunder, (ii) agrees to deliver to the Company, as a precondition to the
issuance of any certificate or certificates with respect to unvested Restricted
Shares, one or more stock powers, endorsed in blank, with respect to such
shares, and (iii) agrees to sign such other powers and take such other actions
as the Company may reasonably request to accomplish the transfer or forfeiture
of any unvested Restricted Shares that are forfeited hereunder.
7. Unrestricted Shares.
-------------------
As soon as practicable following the vesting of any Restricted Shares the
Company shall cause a certificate or certificates covering such shares (the
"Unrestricted Shares"), without the legend contained in Section 6(a) of this
Agreement, to be issued and delivered to the Participant, subject to the payment
by the Participant by cash or other means acceptable to the Company of any
federal, state, local and other applicable taxes required to be withheld in
connection with such vesting. The Participant understands that once a
certificate has been delivered to the Participant in respect of Unrestricted
Shares, the Participant will be free to sell the shares of Common Stock
evidenced by such certificate, subject to applicable requirements of federal and
state securities laws and the terms and conditions of this Agreement.
8. Provisions of the Plan.
----------------------
This Agreement is subject to the provisions of the Plan, a copy of which is
furnished to the Participant with this Agreement.
9. Dividends and Voting Rights.
---------------------------
The Participant shall be entitled to any and all dividends or other
distributions paid with respect to the Restricted Shares which have not been
forfeited or otherwise disposed of and shall be entitled to vote any such
Restricted Shares; provided, however, that any property (other than cash)
distributed with respect to the Restricted Shares, including without limitation
a distribution of shares of the Company's stock by reason of a stock dividend,
stock split or otherwise, or a distribution of other securities based on the
ownership of Restricted Shares, shall be subject to the restrictions of this
Restricted Stock Agreement in the same manner and for so long as the Restricted
Shares remain subject to such restrictions, and shall be forfeited to the
Company if and when the Restricted Shares are so forfeited.
10. Withholding Taxes; Section 83(b) Election.
-----------------------------------------
(a) The Participant expressly acknowledges that the award of the
Restricted Shares to the Participant or the vesting thereof will give rise to
"wages" subject to withholding. The Participant expressly acknowledges and
agrees that the Participant's rights hereunder are subject to the Participant's
paying to the Company in cash (or by the delivery of previously acquired shares
of Common Stock or by having the Company hold back from the shares to be
delivered, shares of Common Stock having a Fair Market Value calculated to
satisfy the withholding requirement) all federal, state, local and any other
applicable taxes required to be withheld in connection with such award or
vesting; provided, however, except as otherwise provided by the Board, the total
tax withholding where stock is being used to satisfy such tax obligations cannot
exceed the Company's minimum statutory withholding obligations (based on minimum
statutory withholding rates for federal and state tax purposes, including
payroll taxes, that are applicable to such supplemental taxable income). If the
withholding obligation is not satisfied by the Participant promptly, the
Participant acknowledges and agrees that the Company has the right (without
further consent from the Participant) to deduct any federal, state or local
taxes of any kind required by law to be withheld with respect to the award of
the Restricted Shares to the Participant or the vesting thereof from payments of
any kind otherwise due to the Participant (including but not limited to, the
hold back from the shares to be delivered pursuant to Section 7 of this
Agreement of that number of shares calculated to satisfy all such federal,
state, local or other applicable taxes required to be withheld in connection
with such award or vesting).
(b) The Participant has reviewed with the Participant's own tax advisors
the federal, state, local and foreign tax consequences of this investment and
the transactions contemplated by this Agreement. The Participant is relying
solely on such advisors and not on any statements or representations of the
Company or any of its agents. The Participant understands that the Participant
(and not the Company) shall be responsible for the Participant's own tax
liability that may arise as a result of this investment or the transactions
contemplated by this Agreement. The Participant understands that it may be
beneficial in some circumstances to elect to be taxed at the time the Restricted
Shares are awarded rather than when and as the restrictions thereon lapse by
filing an election under Section 83(b) of the Code with the I.R.S. within 30
days from the date of award.
THE PARTICIPANT ACKNOWLEDGES THAT IT IS THE PARTICIPANT'S SOLE
RESPONSIBILITY AND NOT THE COMPANY'S TO FILE TIMELY THE ELECTION UNDER SECTION
83(b), EVEN IF THE PARTICIPANT REQUESTS THE COMPANY OR ITS REPRESENTATIVES TO
MAKE THIS FILING ON THE PARTICIPANT'S BEHALF.
11. No Right To Employment or Other Status.
------------------------------------------
The grant of an award of Restricted Shares shall not be construed as giving
the Participant the right to continued employment or any other relationship with
the Company or a Subsidiary. The Company and Subsidiaries expressly reserve the
right at any time to dismiss or otherwise terminate its relationship with the
Participant free from any liability or claim under the Plan or this Agreement,
except as expressly provided herein.
12. Governing Law.
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This Agreement shall be governed by and interpreted in accordance with the
laws of the State of Delaware without regard to any applicable conflicts of
laws.
THERMO ELECTRON CORPORATION
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------------
Xxxx X. Xxxxxxxxx
Vice President, General Counsel and
Secretary
e Company while the Restricted Shares are held by the Escrow
Agent. The Participant shall, upon request of the Escrow Agent, deliver to the
Escrow Agent a stock assignment duly endorsed in blank, in the form provided by
the Company, and hereby instructs the Company to deliver to the Escrow Agent, on
behalf of the Participant, the certificate(s) evidencing the Restricted Shares.
(b) Withdrawal. The Participant shall have the right to withdraw from
escrow any Restricted Shares that have vested (as provided in this Agreement).
(c) Duties of Escrow Agent. The Escrow Agent shall be obligated only for
the performance of such duties as are specifically set forth herein and may rely
and shall be protected in relying or refraining from acting on any instrument
reasonably believed by him to be genuine and to have been signed or presented by
the proper party or parties. The Escrow Agent shall not be personally liable for
any act he may do or omit to do hereunder as Escrow Agent or as attorney-in-fact
of the Participant while acting in good faith and in the exercise of his good
judgment. The Escrow Agent is hereby expressly authorized to disregard any and
all warnings given by any of the parties or by any other person or entity,
excepting only orders or process of courts of law, and is hereby expressly
authorized to comply with and obey orders, judgments or decrees of any court. If
the Escrow Agent is uncertain of any actions to be taken or instructions to be
followed, he may refuse to act in the absence of an order, judgment or decrees
of a court. In case the Escrow Agent obeys or complies with any such order,
judgment or decree of any court, he shall not be liable to any of the parties or
to any other person or entity, by reason of such compliance, notwithstanding any
such order, judgment or decree being subsequently reversed, modified, annulled,
set aside, vacated or found to have been entered without jurisdiction. The
Escrow Agent shall not be liable in any respect on account of the identity,
authority or rights of the parties executing or delivering or purporting to
execute or deliver this Agreement or any documents or papers deposited or called
for hereunder. It is understood and agreed that if the Escrow Agent believes a
dispute has arisen with respect to the delivery and/or ownership or right of
possession of the securities held by him hereunder, the Escrow Agent is
authorized and directed to retain in his possession without liability to anyone
all or any part of said securities until such dispute shall have been settled
either by mutual written agreement of the parties concerned or by a final order,
decree or judgment of a court of competent jurisdiction after the time for
appeal has expired and no appeal has been perfected, but he shall be under no
duty whatsoever to institute or defend any such proceedings. The Escrow Agent's
rights and responsibilities as Escrow Agent shall terminate if he ceases to be
Secretary of the Company, in which case the successor as Secretary of the
Company shall become Escrow Agent hereunder.
6. Restrictive Legends.
-------------------
(a) Legended Certificates. All certificates representing unvested
Restricted Shares shall have affixed thereto legends in substantially the
following form, in addition to any other legends that may be required under
federal or state securities laws:
"THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS AND CONDITIONS (INCLUDING FORFEITURE AND RESTRICTION ON TRANSFER)OF
THE ISSUER'S STOCK INCENTIVE PLAN AND A RESTRICTED STOCK AGREEMENT BETWEEN
THE ISSUER AND THE REGISTERED OWNER OF THESE SHARES (OR HIS OR HER
PREDECESSOR IN INTEREST). COPIES OF SUCH PLAN AND AGREEMENT ARE AVAILABLE
FOR INSPECTION WITHOUT CHARGE AT THE OFFICE OF THE SECRETARY OF THE
ISSUER."
(b) Book Entry. If unvested Restricted Shares are held in book entry form,
the Participant agrees that the Company may give stop transfer instructions to
the depository to ensure compliance with the provisions of this Agreement. The
Participant hereby (i) acknowledges that the unvested Restricted Shares may be
held in book entry form on the books of the Company's depository (or another
institution specified by the Company), and irrevocably authorizes the Company to
take such actions as may be necessary or appropriate to effectuate a transfer of
the record ownership of any such shares that are unvested and forfeited
hereunder, (ii) agrees to deliver to the Company, as a precondition to the
issuance of any certificate or certificates with respect to unvested Restricted
Shares, one or more stock powers, endorsed in blank, with respect to such
shares, and (iii) agrees to sign such other powers and take such other actions
as the Company may reasonably request to accomplish the transfer or forfeiture
of any unvested Restricted Shares that are forfeited hereunder.
7. Unrestricted Shares.
-------------------
As soon as practicable following the vesting of any Restricted Shares the
Company shall cause a certificate or certificates covering such shares (the
"Unrestricted Shares"), without the legend contained in Section 6(a) of this
Agreement, to be issued and delivered to the Participant, subject to the payment
by the Participant by cash or other means acceptable to the Company of any
federal, state, local and other applicable taxes required to be withheld in
connection with such vesting. The Participant understands that once a
certificate has been delivered to the Participant in respect of Unrestricted
Shares, the Participant will be free to sell the shares of Common Stock
evidenced by such certificate, subject to applicable requirements of federal and
state securities laws and the terms and conditions of this Agreement.
8. Provisions of the Plan.
----------------------
This Agreement is subject to the provisions of the Plan, a copy of which is
furnished to the Participant with this Agreement.
9. Dividends and Voting Rights.
---------------------------
The Participant shall be entitled to any and all dividends or other
distributions paid with respect to the Restricted Shares which have not been
forfeited or otherwise disposed of and shall be entitled to vote any such
Restricted Shares; provided, however, that any property (other than cash)
distributed with respect to the Restricted Shares, including without limitation
a distribution of shares of the Company's stock by reason of a stock dividend,
stock split or otherwise, or a distribution of other securities based on the
ownership of Restricted Shares, shall be subject to the restrictions of this
Restricted Stock Agreement in the same manner and for so long as the Restricted
Shares remain subject to such restrictions, and shall be forfeited to the
Company if and when the Restricted Shares are so forfeited.
10. Withholding Taxes; Section 83(b) Election.
-----------------------------------------
(a) The Participant expressly acknowledges that the award of the
Restricted Shares to the Participant or the vesting thereof will give rise to
"wages" subject to withholding. The Participant expressly acknowledges and
agrees that the Participant's rights hereunder are subject to the Participant's
paying to the Company in cash (or by the delivery of previously acquired shares
of Common Stock or by having the Company hold back from the shares to be
delivered, shares of Common Stock having a Fair Market Value calculated to
satisfy the withholding requirement) all federal, state, local and any other
applicable taxes required to be withheld in connection with such award or
vesting; provided, however, except as otherwise provided by the Board, the total
tax withholding where stock is being used to satisfy such tax obligations cannot
exceed the Company's minimum statutory withholding obligations (based on minimum
statutory withholding rates for federal and state tax purposes, including
payroll taxes, that are applicable to such supplemental taxable income). If the
withholding obligation is not satisfied by the Participant promptly, the
Participant acknowledges and agrees that the Company has the right (without
further consent from the Participant) to deduct any federal, state or local
taxes of any kind required by law to be withheld with respect to the award of
the Restricted Shares to the Participant or the vesting thereof from payments of
any kind otherwise due to the Participant (including but not limited to, the
hold back from the shares to be delivered pursuant to Section 7 of this
Agreement of that number of shares calculated to satisfy all such federal,
state, local or other applicable taxes required to be withheld in connection
with such award or vesting).
(b) The Participant has reviewed with the Participant's own tax advisors
the federal, state, local and foreign tax consequences of this investment and
the transactions contemplated by this Agreement. The Participant is relying
solely on such advisors and not on any statements or representations of the
Company or any of its agents. The Participant understands that the Participant
(and not the Company) shall be responsible for the Participant's own tax
liability that may arise as a result of this investment or the transactions
contemplated by this Agreement. The Participant understands that it may be
beneficial in some circumstances to elect to be taxed at the time the Restricted
Shares are awarded rather than when and as the restrictions thereon lapse by
filing an election under Section 83(b) of the Code with the I.R.S. within 30
days from the date of award.
THE PARTICIPANT ACKNOWLEDGES THAT IT IS THE PARTICIPANT'S SOLE
RESPONSIBILITY AND NOT THE COMPANY'S TO FILE TIMELY THE ELECTION UNDER SECTION
83(b), EVEN IF THE PARTICIPANT REQUESTS THE COMPANY OR ITS REPRESENTATIVES TO
MAKE THIS FILING ON THE PARTICIPANT'S BEHALF.
11. No Right To Employment or Other Status.
------------------------------------------
The grant of an award of Restricted Shares shall not be construed as giving
the Participant the right to continued employment or any other relationship with
the Company or a Subsidiary. The Company and Subsidiaries expressly reserve the
right at any time to dismiss or otherwise terminate its relationship with the
Participant free from any liability or claim under the Plan or this Agreement,
except as expressly provided herein.
12. Governing Law.
-------------
This Agreement shall be governed by and interpreted in accordance with the
laws of the State of Delaware without regard to any applicable conflicts of
laws.
THERMO ELECTRON CORPORATION
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------------
Xxxx X. Xxxxxxxxx
Vice President, General Counsel and
Secretary
