RESTRICTED STOCK AGREEMENT AND NOTIFICATION OF RESTRICTED STOCK AWARD (this “Agreement”) (Consultant Form)
Exhibit 10.4
RESTRICTED STOCK AGREEMENT
AND NOTIFICATION OF
RESTRICTED STOCK AWARD
(this “Agreement”)
AND NOTIFICATION OF
RESTRICTED STOCK AWARD
(this “Agreement”)
(Consultant Form)
1. Consultant Name (or “Holder”) |
||||||||||||
Address
|
Price On Date Of Grant |
$/share |
||||||||||
| No. of Shares Awarded “Shares” |
Grant Date | |||||||||||
2. GRANT OF RESTRICTED STOCK AWARD: SunCom Wireless Holdings, Inc. (“SunCom”) (SunCom and its subsidiaries being referred to herein
collectively as the “Company”) hereby grants you (or the “Holder”) a Restricted Stock Award (“Award”) for the number of Shares
referenced in Section 1, above. This Award is granted pursuant to the SunCom Wireless Holdings, Inc. Stock and Incentive Plan (as
amended and restated) (the “Plan”) and is subject in all respects to the terms of the Plan and this Agreement.
3. VESTING: The Shares awarded to you vest [___%] per year over a [___]-year period (the “Restriction
Period”), with [___%] first
vesting [___] months after the grant date and an additional [___%] vesting each [anniversary] of the grant date thereafter.
Specifically, the vesting schedule is as follows [Modify vesting schedule as appropriate]:
| Anniversary of Grant Date | Vesting Percent | Vest Date | ||
1st Anniversary
|
[___%] | [ ] | ||
2nd Anniversary
|
[___%] | [ ] | ||
3rd Anniversary
|
[___%] | [ ] | ||
4th Anniversary
|
[___%] | [ ] |
The Shares will cease to vest on the date your service with the Company terminates for any reason. The Award (to the extent it is
not vested) and any unvested Shares will be forfeited upon termination of service.
1
4. RESTRICTIONS ON UNVESTED SHARES; RIGHTS AS STOCKHOLDER; DIVIDENDS: You
will have the right to receive dividends during the Restriction Period, to vote
the Shares subject to the Award, and to enjoy all other stockholder rights,
except that (a) you will not be entitled to delivery of the stock
certificate(s) representing unvested Shares (and distribution of dividends, if
any, declared on unvested Shares) unless and until the Restriction Period with
respect to the Shares expires and the Forfeiture Restrictions lapse (in which
case delivery of the Shares will be made as soon as practicable and
distribution of such dividends will be made no later than March 15th
of the year following the year in which the corresponding portion of the Award
vests); (b) the Company will (or will designate an agent or representative to)
retain custody of the stock certificate(s) during the Restriction Period; (c)
you may not sell, transfer, pledge, exchange, hypothecate, or otherwise dispose
of the Shares during the Restriction Period; and (d) a breach of the terms and
conditions applicable to the Award will cause a forfeiture of the Award and the
underlying Shares subject to the Award.
5. SALES OF VESTED SHARES; NONTRANSFERABILITY OF AWARD: The sale of vested
Shares may be further restricted due to applicable securities or other laws or
pursuant to the Company’s policies, including but not limited to its Xxxxxxx
Xxxxxxx Policy. The Award will not be transferable or assignable otherwise
than by will or the laws of descent and distribution unless otherwise permitted
under the terms of the Plan.
6. TAX LIABILITY: This Award is considered “taxable income” under the
Internal Revenue Code of 1986, as amended (the “Code”), and, therefore carries
with it an income tax liability. By accepting this Award, you agree to satisfy
the income tax liability related to the Award and to the following terms and
conditions:
| (a) | If required by applicable law, the Company will withhold any local, state, federal, foreign and other taxes and any other amounts required to be withheld by any governmental authority or law from any amount payable with respect to the Award. Prior to the delivery or transfer of any certificate for the Shares or any other benefit, the Company will require you to pay to the Company in cash the amount of any tax or other amount required by any governmental authority to be withheld and paid over by the Company to such authority for the account of such recipient. | ||
| (b) | Within thirty (30) days of the Grant Date, you may file an “83(b) election” with the Internal Revenue Service to recognize as income 100% of the Fair Market Value of the Shares as of the Grant Date. The 83(b) election should be sent via certified mail to the Internal Revenue Service. This election is generally irrevocable. You must also send a copy of the 83(b) election to the Company’s Human Resources Department in Berwyn, PA (Attention: Manager of Qualified Plans). | ||
| (c) | The Shares may also be subject to taxation when the stock is eventually sold, at which time you may recognize a capital gain or loss. It is your responsibility to consult a tax advisor to determine and establish implications associated with any grant, vest or sale. The Company has made no warranties or representations to you with respect to the tax consequences (including but not limited to income tax consequences) related to the Award or issuance or transfer of Shares pursuant to the Award. By accepting the Award, you acknowledge the following: (i) you are in no manner relying on the Company or its representatives for an assessment of such tax consequences; (ii) there may be adverse tax consequences upon the grant of the Award and the acquisition or disposition of the Shares subject to the Award and you have been advised that you should consult with your own attorney, accountant, and/or tax advisor regarding the decision to enter into this Agreement and the consequences thereof; and (iii) the Company has no responsibility to take or refrain from taking any actions in order to achieve a certain tax result for you. |
7. NO RIGHT TO CONTINUED SERVICE; FORFEITURE: Unless otherwise provided by
contract, you or the Company may terminate your service at any time for any
reason or for no reason. If your service terminates for any reason and all or
any part of the Award has not vested, the Award, to the extent not then vested,
will be forfeited immediately upon termination of service and you will have no
further rights with respect to the Award or any unvested Shares or other
benefit related to the Award.
2
8. TERMS AND CONDITIONS OF PLAN; AMENDMENT: This Agreement is subject to the
terms, conditions and restrictions set forth in the Plan, the terms of which
are incorporated herein. Unless the context otherwise requires, terms not
defined herein will have the meanings given such terms in the Plan. This
Agreement is not a stock certificate or a negotiable instrument. To the extent
that any conflict may exist between any term or provision of this Agreement and
any term or provision of the Plan, the term or provision of the Plan will
control. All questions of interpretation concerning this Award are determined
by the Compensation Committee of the Board of Directors of SunCom (the
“Committee”). All determinations by the Committee will be final and binding
upon all persons having or claiming an interest in the Award or the Shares.
Unless otherwise determined by SunCom’s Board of Directors, the Committee may
amend this Award at any time, provided that no such amendment may impair your
rights with respect to the Shares without your consent. However,
notwithstanding the preceding sentence, the Committee has unilateral authority
to amend the Plan and this Agreement (without your consent) to the extent
necessary to comply with applicable law or changes to applicable law (including
but in no way limited to Code Section 409A and related regulations or other
guidance and federal securities laws).
9. NOTICES: All notices, designations, consents, offers or any other
communications provided for in this Agreement must be given in writing,
personally delivered, or by facsimile transmission with an appropriate written
confirmation of receipt, by nationally recognized overnight courier or by U.S.
mail. If by mail or overnight courier, notice must be sent with first-class
postage prepaid and return receipt requested, in which event it will be deemed
to have been given on the date following the date it was so posted. Notice to
the Company is to be addressed to its then principal office. Notice to the
Holder or any transferee is to be addressed to his or its respective address as
it appears on the transfer books of the Company, or to such other address as
may be designated by the receiving party by notice in writing to the Secretary
or Assistant Secretary of the Company.
10. PROVISIONS SEVERABLE: If any provision of this Agreement is invalid or
unenforceable, it will not affect the other provisions, and this Agreement will
remain in effect as though the invalid or unenforceable provisions were
omitted. Upon a determination that any term or other provision is invalid or
unenforceable, the Company, in accordance with Delaware general corporate law,
will in good faith modify this Agreement so as to effect the original intent of
the parties as closely as possible.
11. PARTIES TO AGREEMENT: This Agreement will be binding on and will operate
for the benefit of the Company, its successors and assigns, and the Holder and
his heirs, estate, personal representatives, successors and assigns.
12. COUNTERPARTS; FURTHER INSTRUMENTS: This Agreement may be executed in two
or more counterparts, each of which will be deemed an original, but all of
which together will constitute one and the same instrument. At any time, and
from time to time after executing this Agreement, the Holder will execute such
additional instruments and take such actions as may be reasonably requested by
the Company to confirm or perfect or otherwise to carry out the intent and
purpose of this Agreement.
13. RIGHT OF OFFSET: Notwithstanding any other provision of the Plan or this
Agreement, the Company may reduce the amount of any benefit or payment
otherwise payable to you or on your behalf by the amount of any obligation you
have to the Company, and you are deemed to have consented to such reduction by
entering into this Agreement.
3
14. ACCEPTANCE: By accepting this Agreement, you acknowledge and agree that
the grant of the Award, the receipt of the Shares and/or any other benefit
under this Agreement is subject to, and conditioned upon, your execution,
return and compliance with the terms of this Agreement, including but not
limited to the provisions of Section 21 herein. By executing and returning
this Agreement to the Company, you acknowledge and agree that (a) you have read
this Agreement in its entirety; (b) you have had the opportunity to consult
your legal counsel prior to such execution of the Agreement; (c) this Agreement
is valid and binding upon, and enforceable against, you in accordance with its
terms; and (d) the consideration for this Agreement is valuable and sufficient
consideration. The Company may treat the Award as cancelled, and any Shares or
other benefit underlying the Award as forfeited, if you fail to return a signed
copy of the Agreement to [ ] by
[ ].
15. GOVERNING LAW: This Agreement is to be construed in accordance with the
laws of the State of Delaware, without regard to the principles of conflicts of
laws, and in accordance with applicable general laws of the United States.
16. CONSENT TO JURISDICTION: The Holder hereby consents to the jurisdiction
of any state or federal court located in the county in which the principal
executive office of the Company is then located for purposes of the enforcement
of this Agreement and waives personal service of any and all process upon him.
The Holder waives any objection to venue of any action instituted under this
Agreement.
17. NO RESTRICTION ON COMPANY ACTION: Nothing contained in this Agreement
will be construed to prevent the Company from taking any corporate action that
is deemed to be appropriate or in the Company’s best interests, whether or not
such action would have an adverse effect on the Award. Neither the Holder nor
any beneficiary thereof, nor any other person, will have any claim against the
Company as a result of any such action.
18. CAPTIONS: Captions herein are for convenience of reference only and will
not be considered in construing this Agreement.
19. ENTIRE AGREEMENT: This Agreement supersedes any statements,
representations or agreements of the Company with respect to the grant of the
Award or any related rights, and the Holder hereby waives any rights or claims
related to any such statements, representations or agreements. This Agreement
does not supersede or amend any existing confidentiality agreement,
nonsolicitation agreement, noncompetition agreement, consulting agreement or
any other similar agreement between the Holder and the Company, including, but
not limited to, any restrictive covenants contained in such agreements.
20. LEGENDS: The Company may at any time place legends referencing any
applicable federal or state securities law restrictions on certificates
representing the Shares subject to the Award. The Holder will, at the request
of the Company, promptly present to the Company any and all certificates
representing such Shares that are in the possession of the Holder in order to
effectuate the provisions of this Section 20.
4
21. FORFEITURE OF SHARES AND/OR GAIN FROM SHARES:
(a) Notwithstanding any other provision of this Agreement, if, at
any time during the period of the Holder’s service with the Company
or during the 24-month period following termination of the Holder’s
service with the Company for any reason (regardless of whether such
termination was by the Company or the Holder, and whether voluntary
or involuntary), the Holder engages in a Prohibited Activity (as
defined herein), then (i) the Award will immediately be terminated
and forfeited in its entirety, (ii) any vested or unvested Shares
that were granted pursuant to the Award will immediately be
forfeited and returned to the Company and the Holder will cease to
have any rights related thereto and will cease to be recognized as
the legal owner of such Shares, and (iii) any Gain (as defined
herein) realized by the Holder with respect to any Shares subject
to the Award will immediately be paid by the Holder to the Company.
(b) For the purposes herein, a “Prohibited Activity” means (i) the
Holder’s solicitation or assisting any other person in so
soliciting, directly or indirectly, in one or a series of
transactions, of any customers, suppliers, vendors, or other
service providers to or of the Company for the purpose of inducing
that customer, supplier, vendor or other service provider to
terminate or alter his or its relationship with the Company; (ii)
the Holder’s inducement, directly or indirectly, in one or a series
of transactions, of any employees or service providers to terminate
their employment with or service to the Company for the purpose of
performing services for, assisting, advising or otherwise
supporting any business which is competitive with the business of
the Company; (iii) the Holder’s violation of any noncompetition
restrictions applicable to the Holder; (iv) the Holder’s violation
of any of the Company’s policies, including, without limitation,
the Company’s xxxxxxx xxxxxxx policies; (v) the Holder’s violation
of any material (as determined by the Committee) federal, state or
other law, rule or regulation; (vi) the Holder’s disclosure or
misuse of any confidential information or material concerning the
Company (except as otherwise required by law or as agreed to by the
parties herein); (vii) the Holder’s dishonesty, theft or
embezzlement in a manner that negatively impacts the Company in any
way; (viii) the Holder’s refusal or failure to perform his
agreed-upon duties for the Company in a satisfactory manner; or
(ix) the Holder’s engaging in any conduct that could be materially
damaging to the Company without a reasonable good faith belief that
such conduct was in the best interest of the Company. The
Committee (or its designee, to the extent permitted pursuant to the
Plan) has sole and absolute discretion to determine if a Prohibited
Activity has occurred.
(c) For the purposes herein, “Gain” means, unless the Committee
determines otherwise, the greater of the Fair Market Value of the
Shares (or portion thereof) at the time of grant or vesting or the
disposition price of such Shares at the time of disposition,
multiplied by the number of Shares sold or disposed.
(d) Notwithstanding the provisions of Section 21 herein, the
waiver by the Company in any one or more instances of any rights
afforded to the Company pursuant to the terms of Section 21 herein
will not be deemed to constitute a further or continuing waiver of
any rights the Company may have pursuant to the terms of this
Agreement or the Plan (including but not limited to the rights
afforded the Company in Section 21 herein).
(e) By accepting this Agreement, and without limiting the effect
of Section 13 herein, the Holder consents to a deduction (to the
extent permitted by applicable law) from any amounts the Company
may owe the Holder from time to time to the extent of the amounts
the Holder owes the Company pursuant to this Agreement, including
but not limited to Section 13 or Section 21 herein. Whether or not
the Company elects to make any set-off in whole or in part, if the
Company does not recover by means of set-off the full amount owed
by the Holder pursuant to this Agreement, the Holder agrees to
immediately pay the unpaid balance to the Company.
5
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed by its officers
thereunto duly authorized, and the Holder has hereunto set his hand, effective as of the day and
year first above written.
| SUNCOM WIRELESS HOLDINGS, INC. | ||||||
| By: Xxxxxxx X. Xxxxxxxx | ||||||
| Title: Chief Executive Officer | ||||||
| CONSULTANT | ||||||
| By: | ||||||
6
