EXHIBIT (d)(3)
RESTRICTED STOCK UNIT AGREEMENT
XXXX MICROPRODUCTS, INC.
1998 STOCK PLAN
(AS AMENDED AND RESTATED THROUGH FEBRUARY ___, 2002)
THIS AGREEMENT is made effective as of__________________, 20__, by and
between Xxxx Microproducts, Inc. a California corporation (the "Company"), and
_________________________ (the "Service Provider").
W I T N E S S E T H:
WHEREAS, Service Provider is, on the date hereof, a Service Provider of
the Company, as such term is defined in the Plan; and
WHEREAS, the Company wishes to grant a Restricted Stock Unit Award to
Service Provider which will permit the Service Provider to acquire shares of the
Company's Common Stock pursuant to the Company's 1998 Stock Award Plan (the
"Plan"); and
WHEREAS, the Administrator of the Plan has authorized the grant of a
Restricted Stock Unit Award to Service Provider;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
1. NOTICE OF GRANT OF RESTRICTED STOCK UNIT AWARD. The Company hereby
grants to Service Provider on the date set forth above (the "Date of Award") a
Restricted Stock Unit Award (the "Award") for _____________________ ( )
Restricted Stock Units on the terms and conditions set forth herein, which
shares are subject to adjustment pursuant to Section 14(a) of the Plan. Service
Provider shall not be entitled to vote any shares of stock which may be acquired
through the Restricted Stock Units, shall not receive any dividends attributable
to such shares, and shall not have any other rights as a shareholder with
respect to such shares until the risks of forfeiture described in Section 2 have
lapsed.
2. VESTING OF RESTRICTED STOCK. Except as otherwise provided in Section
4, the Restricted Stock Units subject to this Award shall remain forfeitable
until the risks of forfeiture lapse according to the following vesting schedule:
VESTING DATE CUMULATIVE PERCENTAGE OF UNITS VESTED
------------ -------------------------------------
First Anniversary of Date of Award 25%
Second Anniversary of Date of Award 50%
Third Anniversary of Date of Award 75%
Fourth Anniversary of Date of Award 100%
If Service Provider's employment or other service relationship with the Company
or any Subsidiary terminates at any time prior to a Vesting Date for any reason,
including but not limited to Service Provider's voluntary resignation, death,
disability or termination by the Company, Service Provider shall immediately
forfeit all Restricted Stock Units subject to this Award which have not yet
vested and for which the risks of forfeiture have not lapsed. As the risks of
forfeiture on Restricted Stock Units lapse, the Company shall cause to be issued
one or more stock certificates representing shares of Common Stock in Service
Provider's name and shall deliver such certificates to the Service Provider in
satisfaction of the Restricted Stock Units.
3. GENERAL PROVISIONS.
a. Employment. This Agreement shall not confer on
Service Provider any right with respect to continuance of employment or other
relationship with the Company or any Subsidiary, nor will it interfere in any
way with the right of the Company or any Subsidiary to terminate such employment
or relationship.
b. Securities Law Compliance. Service Provider shall not
transfer or otherwise dispose of the shares of Stock received pursuant to this
Award until such time as the Company shall have determined that such transfer or
other disposition will not violate any state or federal securities or other
laws. Service Provider may be required by the Company, as a condition of the
effectiveness of this Award, to agree in writing that all Stock received
pursuant to this Award shall be held, until such time that such Stock is
registered and freely tradable under applicable state and federal securities
laws, for Service Provider's own account without a view to any further
distribution thereof, that the certificates for such shares shall bear an
appropriate legend to that effect, and that such shares will not be transferred
or disposed of except in compliance with applicable state and federal securities
laws.
c. Mergers, Recapitalizations, Stock Splits, Etc.
Pursuant and subject to Section 14 of the Plan, certain changes in the number or
character of the shares of Stock of the Company (through sale, merger,
liquidation, recapitalization, stock split, stock dividend, or otherwise) shall
result in an adjustment, reduction, or enlargement, as appropriate, in the
number of Restricted Stock Units subject to this Award. Any additional
Restricted Stock Units that are credited pursuant to such adjustment shall be
subject to the same restrictions as are applicable to the Restricted Stock Units
with respect to which the adjustment relates.
2
d. Shares Reserved. The Company shall at all times
during the term of this Award reserve and keep available such number of shares
of Common Stock as will be sufficient to satisfy the requirements of this
Agreement.
e. Withholding Taxes. In order to permit the Company to
comply with all applicable federal or state income tax laws or regulations, the
Company may take such action as it deems appropriate to insure that, if
necessary, all applicable federal or state payroll, income or other taxes are
withheld from any amounts payable by the Company to Service Provider. If the
Company is unable to withhold such federal and state taxes, for whatever reason,
Service Provider hereby agrees to pay to the Company an amount equal to the
amount the Company would otherwise be required to withhold under federal or
state law prior to the transfer of any certificates for the shares of Stock in
satisfaction of the Restricted Stock Units subject to this Award. Service
Provider may, subject to the approval and discretion of the Administrator, or
such other administrative rules it may deem advisable, elect to have all or a
portion of such tax withholding obligations satisfied by delivering shares of
the Company's Common Stock having a fair market value, as of the date the amount
of tax to be withheld is determined under applicable tax law, equal to such
obligations.
f. Scope of Agreement. The terms of the Plan and this
Agreement shall bind and inure to the benefit of the Company and its successors
and assigns and of Service Provider and any successor or successors of Service
Provider.
g. 1998 Stock Plan. The Restricted Stock Unit Award
evidenced by this Agreement is granted pursuant to the Plan, a copy of which
Plan has been made available to Service Provider and is hereby incorporated into
this Agreement. This Agreement is subject to and in all respects limited and
conditioned as provided in the Plan. All defined terms of the Plan shall have
the same meaning when used in this Agreement. The Plan governs this Restricted
Stock Award and, in the event of any questions as to the construction of this
Agreement or in the event of a conflict between the Plan and this Agreement, the
Plan shall govern, except as the Plan otherwise provides.
4. SEVERABILITY. In the event that any provision of this
Agreement is held invalid by a court of competent jurisdiction, the remaining
provisions shall nonetheless be enforceable according to their terms. Any
provision held overbroad as written shall be deemed amended to narrow its
application to the extent necessary to make the provision enforceable under
applicable law, and shall be enforced as amended.
3
ACCORDINGLY, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
XXXX MICROPRODUCTS, INC.
By:
-------------------------------------
Its:
--------------------------------
----------------------------------------
Service Provider
4
