Exhibit 4.1
FORM OF
RESTRICTED STOCK PURCHASE AGREEMENT
PURSUANT TO THE
ZiLOG, INC. 2002 OMNIBUS STOCK INCENTIVE PLAN
THIS RESTRICTED STOCK PURCHASE AGREEMENT (the "Agreement") is made
by and between [Employee Name] ("Purchaser") and ZiLOG, Inc., a Delaware
corporation (the "Company"), as of May 15, 2002.
WHEREAS, Purchaser is currently employed by the Company; and
WHEREAS, the Company has adopted the ZiLOG, Inc. 2002 Omnibus Stock
Incentive Plan (the "Plan"), which provides for awards of restricted stock to
selected employees;
NOW THEREFORE, it is agreed between the parties as set for the below
and incorporating the foregoing recitals.
Any capitalized terms not defined herein shall have their respective
meanings set forth in the Plan.
1. GRANT OF RIGHT TO PURCHASE RESTRICTED STOCK. Company hereby
grants to Purchaser the right to purchase shares of restricted stock and
Purchaser hereby elects to purchase [M__of_shares] shares, par value $0.01
per share, of the Company's Common Stock ("Shares"), at a purchase price of
$0.01 per share, pursuant to and subject to the terms and provisions of the
Plan and the Agreement (the "Restricted Stock").
2. NONTRANSFERABILITY; REPURCHASE RIGHTS. The Purchaser is subject
to restrictions against transfer of the Restricted Stock in accordance with
the terms set forth in Section 9(d) of the Plan. The Company is hereby
granted repurchase rights with respect to the Restricted Stock (the
"Repurchase Rights") in accordance with the terms set forth in Section 13(d)
of the Plan.
3. TRANSFER OF SHARES UPON REPURCHASE; ESCROW.
(a) Purchaser hereby authorizes and directs the Secretary of the
Company, or such other person designated by the Company, to take such steps
as may be necessary to cause the transfer of the Shares as to which the
repurchase rights have been exercised from Purchaser to the Company.
(b) To insure the availability for delivery of Purchaser's Shares
upon repurchase by the Company pursuant to the Repurchase Rights under
Section 1, Purchaser hereby appoints the Secretary of the Company, or any
other person designated by the Company as escrow agent, as its
attorney-in-fact to sell, assign and transfer unto the Company such Shares,
if any, repurchased by the Company pursuant to the Repurchase Rights and
shall, upon execution of this Agreement, deliver and deposit with the
Secretary of the Company, or such other person designated by the Company, the
share certificates representing the Shares, together with the stock
assignment duly endorsed in blank, attached hereto as Exhibit A. The Shares
and stock assignment shall be held by the Secretary in escrow, pursuant to
the Joint Escrow Instructions of the Company and Purchaser attached as
Exhibit B hereto, until the Company exercises its Repurchase Rights, until
the Repurchase Rights lapse with respect to such Shares or until such time as
this Agreement no longer is in effect. As a further condition to the
Company's obligations under this Agreement, the spouse of the Purchaser, if
any, shall execute and deliver to the Company the Consent of Spouse attached
hereto as Exhibit C. Upon the lapse of Repurchase Rights with respect to the
Shares subject to this Agreement, the escrow agent shall promptly deliver to
the Purchaser the certificate or certificates representing such Shares in the
escrow agent's possession belonging to the Purchaser, and the escrow agent
shall be discharged of all further obligations hereunder; provided that the
escrow agent shall nevertheless retain such certificate or certificates if so
required pursuant to other restrictions imposed pursuant to this Agreement
or, in the event that a loan from the Company, Parent or Related Company was
extended to the Purchaser with respect to the tax withholding attributable to
the Shares of Restricted Stock, until the applicable terms of such loan or
portion thereof or the applicable terms of any related pledge agreement have
been satisfied.
(c) The Company, or its designee, shall not be liable for any act
it may do or omit to do with respect to holding the Shares in escrow and
while acting in good faith and in the exercise of its judgment.
(d) Any purported transfer or sale of the Shares shall be subject
to restrictions on transfer imposed by any applicable state and federal
securities laws. Any transferee shall hold such Shares subject to all the
provisions hereof and shall acknowledge the same by signing a copy of this
Agreement.
4. OWNERSHIP, VOTING RIGHTS, DUTIES. This Agreement shall not affect
in any way the ownership, voting rights or other rights or duties of
Purchaser, except as specifically provided herein.
5. LEGENDS. The share certificate or certificates evidencing the
Shares subject to restrictions issued hereunder shall be endorsed with the
following legend (in addition to any other legend or legends required under
applicable federal and state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS UPON TRANSFER AND RIGHTS OF REPURCHASE AS SET FORTH IN
THE ZiLOG, INC. 2002 OMNIBUS STOCK INCENTIVE PLAN AND AN AGREEMENT
BETWEEN THE COMPANY AND THE SHAREHOLDER, COPIES OF WHICH ARE ON FILE
WITH THE SECRETARY OF THE COMPANY.
6. INVESTMENT REPRESENTATION. In connection with the purchase of the
Common Stock, Purchaser represents to the Company that he or she is
purchasing or acquiring the Shares for investment and not with a view to
resale or distribution to the public.
7. NO OBLIGATION TO REGISTER RESTRICTED STOCK. The Company shall be
under no obligation to register the Restricted Stock pursuant to the
Securities Act or any other federal or state securities law.
8. ADJUSTMENT FOR CHANGE IN CAPITALIZATION. All references to the
number of Shares and the purchase price of the Shares in this Agreement shall
be appropriately adjusted to reflect any Change in Capitalization after the
date of this Agreement.
9. RIGHT OF FIRST REFUSAL PRIOR TO CHANGE OF CONTROL, INITIAL PUBLIC
OFFERING OR THIRD ANNIVERSARY OF THE EFFECTIVE DATE. The right of first
refusal, which applies until the occurrence of a Change of Control, an
Initial Public Offering or the third anniversary of the Effective Date,
whichever occurs first, is determined pursuant to Section 13(e) of the Plan.
10. MARKET STAND-OFF; DRAG-ALONG RIGHTS. The market stand-off and
drag along rights provisions are determined pursuant to Sections 13(a) and
(b) respectively, of the Plan.
11. NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be given by facsimile or first class
mail, and shall be deemed to have been duly given three (3) days after
mailing or twenty-four (24) hours after transmission by facsimile to the
respective parties named below:
If to Company: ZiLOG, Inc.
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Corporate Secretary
If to the Purchaser:
Facsimile:
Either party hereto may change such party's address for notices by notice duly
given pursuant hereto.
12. SURVIVAL OF TERMS. This Agreement shall apply to and bind
Purchaser and the Company and their respective permitted assignees and
transferees, heirs, legatees, executors, administrators and legal successors.
13. PROTECTIONS AGAINST VIOLATIONS OF AGREEMENT. No purported sale,
assignment, mortgage, hypothecation, transfer, pledge, encumbrance, gift,
transfer in trust (voting or other) or other disposition of, or creation of a
security interest in or lien on, any of the Shares by any holder thereof in
violation of the provisions of the Plan, this Agreement or the Certificate of
Incorporation or the By-Laws of the Company, will be valid, and the Company
will not transfer any of said Shares on its books nor will any of said Shares
be entitled to vote, nor will any dividends be paid thereon, unless and until
there has been full compliance with said provisions to the satisfaction of
the Company. The foregoing restrictions are in addition to and not in lieu of
any other remedies, legal or equitable, available to enforce said provisions.
14. WITHHOLDING TAXES. The tax withholding provisions are determined
pursuant to Section 12 of the Plan.
15. SECTION 83(b) ELECTION. The Purchaser hereby acknowledges that
he has been informed that, with respect to the grant of Restricted Stock, an
election may be filed by the Purchaser with the Internal Revenue Service,
within 30 days of the Date of Grant, electing pursuant to Section 83(b) of
the Code to be taxed currently on the fair market value of the unvested
Shares of Restricted Stock on the Date of Grant. A form of such election is
attached hereto as Exhibit D.
THE PURCHASER ACKNOWLEDGES THAT IT IS THE PURCHASER'S SOLE
RESPONSIBILITY AND NOT THE COMPANY'S TO TIMELY FILE THE ELECTION UNDER
SECTION 83(b) OF THE CODE, EVEN IF THE PURCHASER REQUESTS THE COMPANY OR ITS
REPRESENTATIVE TO MAKE THIS FILING ON THE PURCHASER'S BEHALF.
16. REPRESENTATIONS. Purchaser has reviewed with his own tax
advisors the federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Agreement. Purchaser is
relying solely on such advisors and not on any statements or representations
of the Company or any of its agents. Purchaser understands that he or she
(and not the Company) shall be responsible for any tax liability that may
arise as a result of this investment or the transactions contemplated by this
Agreement.
17. FAILURE TO ENFORCE NOT A WAIVER. The failure of the Company to
enforce at any time any provision of this Agreement shall in no way be
construed to be a waiver of such provision or of any other provision hereof.
18. GOVERNING LAW. This Agreement shall be governed by the laws of
the State of Delaware, without giving effect to the conflict of laws
principles thereof.
19. INCORPORATION OF PLAN. The Plan is hereby incorporated by
reference and made a part hereof and this Agreement shall be subject to all
terms and conditions of the Plan.
20. AMENDMENTS. This Agreement may be amended or modified at any
time only by an instrument in writing signed by each of the parties hereto.
21. AGREEMENT NOT A CONTRACT OF EMPLOYMENT. Neither this Agreement
nor any other action taken pursuant to this Agreement shall constitute or be
evidence of any agreement or understanding, express or implied, that the
Purchaser has a right to continue to provide services as an officer,
director, employee, consultant or advisor of the Company, any Parent or
Related Company for any period of time or at any specific rate of
compensation.
22. AUTHORITY OF THE COMMITTEE. The Committee shall have full
authority to interpret and construe the terms of this Agreement. The
determination of the Committee as to any such matter of interpretation or
construction shall be final, binding and conclusive.
Waiver for Restricted Stock Agreements. By executing the Agreement,
the Participant hereby acknowledges and agrees that the Restricted Stock
granted pursuant to the Agreement is in full satisfaction of any awards of
restricted stock granted by the Committee to the Participant under the Plan
and that the Participant is not due any additional shares of restricted stock
under the Plan. The Participant hereby voluntarily and knowingly waives all
claims against the Company or the Committee to any additional shares of
restricted stock under the Plan.
Purchaser represents that he has read this Agreement and is familiar
with its terms and provisions. Purchaser hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Committee upon
any questions arising under this Agreement.
IN WITNESS WHEREOF, this Agreement is deemed made as of the date
first set forth above.
PURCHASER: ZiLOG, INC.
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Signature By
[Employee Name]
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Print Name Title
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Social Security Number
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Residence Address
EXHIBIT A
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ASSIGNMENT SEPARATE FROM CERTIFICATE
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FOR VALUE RECEIVED, [Employee_Name] (the "Purchaser") hereby sells,
assigns and transfers unto ZiLOG, Inc., a Delaware corporation (the
"Company"), [M__of_shares] shares of Company's common stock, $0.01 par value
(the "Shares"), standing in Purchaser's name on the books of said corporation
represented a book entry position on the books of the Company's transfer
agent and does hereby irrevocably constitute and appoint the Secretary of the
Company to transfer the said stock on the books of the Company with full
power of substitution in the premises.
This Assignment Separate from Certificate may be used only in
accordance with the Restricted Stock Purchase Agreement (the "Agreement") of
the Company and the undersigned dated May 15, 2002.
Dated:_______________, ____ Signature:____________________________
INSTRUCTIONS: Please do not fill in any blanks other than the signature line.
The purpose of this Assignment Separate from Certificate is to enable the
Company to exercise its "Repurchase Right," as set forth in the Agreement,
without requiring additional signatures on the part of the Purchaser.
EXHIBIT B
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JOINT ESCROW INSTRUCTIONS
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May 15, 2002
ZiLOG, Inc.
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Attention: Corporate Secretary
Dear [Employee Name]:
As Escrow Agent for both ZiLOG, Inc., a Delaware corporation (the
"Company"), and [Employee Name] ("Purchaser") of the Company's common stock,
$0.01 par value per share (the "Shares") you are hereby authorized and
directed to hold the documents delivered to you pursuant to the terms of that
certain Restricted Stock Purchase Agreement between the Company and
Purchaser, dated May 15, 2002 (the "Agreement"), in accordance with the
following instructions:
1. In the event the Company and/or any assignee of the Company (referred
to collectively for convenience herein as the "Company") exercises the
Company's Repurchase Right set forth in the Agreement (the "Repurchase
Right"), the Company shall give to Purchaser and to you a written
notice specifying the number of Shares to be purchased, the purchase
price, and the time for a closing hereunder at the principal office of
the Company. Purchaser and the Company hereby irrevocably authorize and
direct you to close the transaction contemplated by such notice in
accordance with the terms of said notice.
2. At the closing, you are directed (a) to date the Assignment Separate
From Certificate necessary for the transfer in question, (b) to fill in
the number of Shares being transferred, and (c) to deliver same,
together with the certificate evidencing the Shares to be transferred,
to the Company or its assignee, against the simultaneous delivery to
you of the purchase price for the number of Shares purchased pursuant
to the exercise of the Company's Repurchase Right.
3. Purchaser hereby irrevocably authorizes the Company to deposit with you
any certificates evidencing the Shares to be held by you hereunder and
any additions and substitutions to said Shares as set forth in the
Agreement. Purchaser does hereby irrevocably constitute and appoint you
as Purchaser's attorney-in-fact and agent for the term of this escrow
to execute with respect to such Shares all documents necessary or
appropriate to make such Shares negotiable and to complete any
transaction herein contemplated, including but not limited to, the
filing with any applicable state blue sky authority of any required
applications for consent to, or notice of transfer of, the Shares.
Subject to the provisions of this Section 3, Purchaser shall exercise
all rights and privileges of a shareholder of the Company while the
stock is being held by you.
4. Upon written request of the Purchaser, unless the Company's Repurchase
Right has been exercised, you will deliver to Purchaser a certificate
or certificates representing the aggregate number of Shares that are
not then subject to the Company's Repurchase Right. Within 120 days
after Purchaser's termination of employment or service with the Company
or any Parent or Related Company (each, as defined in the Company's
2002 Omnibus Stock Incentive Plan), you will deliver to Purchaser, or
Purchaser's representative, as the case may be, a certificate or
certificates representing the aggregate number of Shares held or issued
pursuant to the Agreement and not purchased by the Company or its
assignees pursuant to exercise of the Company's Repurchase Right.
5. If at the time of termination of this escrow you should have in your
possession any documents, securities, or other property belonging to
Purchaser, you shall deliver all of the same to Purchaser and shall be
discharged of all further obligations hereunder.
6. Your duties hereunder may be altered, amended, modified or revoked only
by a writing signed by all of the parties hereto.
7. You 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 you to be genuine and to have been signed or presented by the proper
party or parties. You shall not be personally liable for any act you
may do or omit to do hereunder as Escrow Agent or as attorney-in-fact
for Purchaser while acting in good faith, and any act done or omitted
by you pursuant to the advice of your own attorneys shall be conclusive
evidence of such good faith.
8. You are hereby expressly authorized to disregard any and all warnings
given by any of the parties hereto or by any other person or
corporation, excepting only orders or process of courts of law and are
hereby expressly authorized to comply with and obey orders, judgments
or decrees of any court. In case you obey or comply with any such
order, judgment or decree, you shall not be liable to any of the
parties hereto or to any other person, firm or corporation 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.
9. You shall not be liable in any respect on account of the identity,
authorities or rights of the parties executing or delivering or
purporting to execute or deliver the Agreement or any documents or
papers deposited or called for hereunder.
10. You shall not be liable for the outlawing of any rights under the
Statute of Limitations with respect to these Joint Escrow Instructions
or any documents deposited with you.
11. You shall be entitled to employ such legal counsel and other experts as
you may deem necessary and proper to advise you in connection with your
obligations hereunder, may rely upon the advice of such counsel, and
may pay such counsel reasonable compensation therefor.
12. Your responsibilities as Escrow Agent hereunder shall terminate if you
shall cease to be an officer or agent of the Company or if you shall
resign by written notice to each party. In the event of any such
termination, the Company shall appoint a successor Escrow Agent.
13. If you reasonably require other or further instruments in connection
with these Joint Escrow Instructions or obligations in respect hereto,
the necessary parties hereto shall join in furnishing such instruments.
14. It is understood and agreed that should any dispute arise with respect
to the delivery and/or ownership or right of possession of the
securities held by you hereunder, you are authorized and directed to
retain in your possession without liability to anyone all or any part
of said securities until such disputes 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 you
shall be under no duty whatsoever to institute or defend any such
proceedings.
15. All notices and other communications under these Joint Escrow
Instructions shall be in writing and shall be given by facsimile or
first class mail, certified or registered with return receipt
requested, and shall be deemed to have been duly given three days after
mailing or 24 hours after transmission by facsimile to the respective
parties named below at the following addresses or at such other
addresses as a party may designate by ten day's advance written notice
to each of the other parties hereto:
If to Company: ZiLOG, Inc.
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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Attn: Corporate Secretary
If to the Purchaser:
Facsimile:
If to the Escrow Agent:
ZiLOG, Inc.
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: Corporate Secretary
16. By signing these Joint Escrow Instructions, you become a party hereto
only for the purpose of said Joint Escrow Instructions; you do not
become a party to the Agreement.
17. This instrument shall be binding upon and inure to the benefit of the
parties hereto, and their respective successors and permitted assigns.
18. These Joint Escrow Instructions shall be governed by the internal
substantive laws, but not the choice of law rules, of the State of
Delaware.
PURCHASER: ZiLOG, INC.
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Signature By
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Print Name Title
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Residence Address
ESCROW AGENT
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Corporate Secretary
EXHIBIT C
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CONSENT OF SPOUSE
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I, _______________, spouse of [______________], have read and hereby
approve the Restricted Stock Purchase Agreement by and between
[______________] and ZiLOG, Inc. (the "Company"), dated May 15, 2002 (the
"Agreement"). In consideration of the granting of the right to my spouse to
purchase shares, $0.01 par value per share ("Shares"), as set forth in the
Agreement, I hereby appoint my spouse as my attorney-in-fact with respect to
the exercise of any rights under the Agreement and agree to be bound by the
provisions of the Agreement insofar as I may have any rights in said
Agreement or any Shares issued pursuant thereto under the community property
laws or similar laws relating to marital property in effect in the state of
our residence as of the date of the signing of the foregoing Agreement.
Dated:_______________, ___ Signature:______________________
EXHIBIT D
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ELECTION UNDER SECTION 83(b)
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OF THE INTERNAL REVENUE CODE OF 1986
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The undersigned taxpayer hereby elects, pursuant to Section 83(b) of the
Internal Revenue Code of 1986, as amended, to include in taxpayer's gross
income for the current taxable year the amount of any compensation taxable to
taxpayer in connection with taxpayer's receipt of the property described below:
1. The name address, taxpayer identification number and taxable year of
the undersigned are as follows:
NAME OF TAXPAYER: __________________________________________________
NAME OF SPOUSE: ____________________________________________________
ADDRESS: ___________________________________________________________
IDENTIFICATION NO. OF TAXPAYER: ____________________________________
IDENTIFICATION NO. OF SPOUSE: ______________________________________
TAXABLE YEAR: _______________________
2. The property with respect to which the election is made is described
as follows: _______ shares (the "Shares") of the Common Stock of
ZiLOG, Inc. (the "Company").
3. The date on which the property was transferred is: __________, 20__.
4. The property is subject to the following restrictions:
The Shares may not be transferred and are subject to forfeiture under
the terms of an agreement between the taxpayer and the Company. These
restrictions lapse upon the satisfaction of certain conditions in such
agreement.
5. The fair market value at the time of transfer, determined without
regard to any restriction other than a restriction which by its terms
will never lapse, of such property is: $ ______________.
6. The amount (if any) paid for such property is: $ ______________.
The undersigned has submitted a copy of this statement to the person for whom
the services were performed in connection with the undersigned's receipt of
the above-described property. The transferee of such property is the person
performing the services in connection with the transfer of said property.
THE UNDERSIGNED UNDERSTANDS THAT THE FOREGOING ELECTION MAY NOT BE REVOKED
EXCEPT WITH THE CONSENT OF THE COMMISSIONER.
Dated: _________________, 200_ _______________________________
Taxpayer
The undersigned spouse of taxpayer joins in this election.
Dated: _________________, 200_ _______________________________
Spouse of Taxpayer
