Attached files
file | filename |
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EX-23.1 - EX-23.1 - ENDWAVE CORP | f55328exv23w1.htm |
EX-31.2 - EX-31.2 - ENDWAVE CORP | f55328exv31w2.htm |
EX-31.1 - EX-31.1 - ENDWAVE CORP | f55328exv31w1.htm |
EX-32.1 - EX-32.1 - ENDWAVE CORP | f55328exv32w1.htm |
EX-10.14 - EX-10.14 - ENDWAVE CORP | f55328exv10w14.htm |
10-K - FORM 10-K - ENDWAVE CORP | f55328e10vk.htm |
Exhibit 10.8
Endwave Corporation
Restricted Stock Unit Grant Notice
(2007 Equity Incentive Plan)
Restricted Stock Unit Grant Notice
(2007 Equity Incentive Plan)
Endwave Corporation (the Company), pursuant to its 2007 Equity Incentive Plan (the Plan),
hereby awards to Participant a Restricted Stock Unit Award for the number of shares of
the Companys Common Stock set forth below (the Award). The Award is subject to all of the terms
and conditions as set forth herein and in the Plan and the Restricted Stock Unit Agreement, both of
which are attached hereto and incorporated herein in their entirety. Capitalized terms not
otherwise defined herein shall have the meanings set forth in the Plan or the Restricted Stock Unit
Agreement. In the event of any conflict between the terms in the Award and the Plan, the terms of
the Plan shall control.
Participant: |
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Date of Grant: |
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Vesting Commencement Date: |
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Number of Shares Subject to Award: |
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Consideration:
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Participants services |
Vesting Schedule:
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50% of the shares subject to the Award shall vest on each of the first two anniversaries of the Date of Grant of the Award. Notwithstanding the foregoing, vesting shall terminate upon Participants termination of Continuous Service. | |
Issuance Schedule:
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The shares shall be issued in accordance with the issuance schedule set forth in Section 6 of the Restricted Stock Unit Agreement. |
Additional Terms/Acknowledgements: The undersigned Participant acknowledges receipt of, and
understands and agrees to, this Restricted Stock Unit Grant Notice, the Restricted Stock Unit
Agreement and the Plan. Participant further acknowledges that as of the Date of Grant, this
Restricted Stock Unit Grant Notice, the Restricted Stock Unit Agreement and the Plan set forth the
entire understanding between Participant and the Company regarding the Award and supersedes all
prior oral and written agreements on that subject.
Endwave Corporation | Participant: | |||||||
By: |
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Signature | Signature | |||||||
Title: | Date: | |||||||
Date: | ||||||||
Attachments: | Restricted Stock Unit Agreement, 2007 Equity Incentive Plan |
1
Endwave Corporation
2007 Equity Incentive Plan
2007 Equity Incentive Plan
Restricted Stock Unit Agreement
Pursuant to the Restricted Stock Unit Grant Notice (Grant Notice) and this Restricted
Stock Unit Agreement and in consideration of your services, Endwave Corporation (the Company) has
awarded you a Restricted Stock Unit Award (the Award) under its 2007 Equity Incentive Plan (the
Plan). This Award is granted to you effective as of the Date of Grant set forth in the Grant
Notice for this Award. This Restricted Stock Unit Award Agreement shall be deemed to be agreed to
by the Company and you upon the signing by you of the Restricted Stock Unit Grant Notice to which
it is attached. Defined terms not explicitly defined in this Restricted Stock Unit Agreement shall
have the same meanings given to them in the Plan. In the event of any conflict between the terms
in this Restricted Stock Unit Agreement and the Plan, the terms of the Plan shall control. The
details of your Award, in addition to those set forth in the Grant Notice and the Plan, are as
follows.
1. Grant of the Award. This Award represents the right to be issued on a future date
the number of shares of the Companys Common Stock as indicated in the Grant Notice. As of the
Date of Grant, the Company will credit to a bookkeeping account maintained by the Company for your
benefit (the Account) the number of shares of Common Stock subject to the Award. This Award was
granted in consideration of your services to the Company. Except as otherwise provided herein, you
will not be required to make any payment to the Company (other than past and future services to the
Company) with respect to your receipt of the Award, the vesting of the shares or the delivery of
the underlying Common Stock. The par value of the shares subject to the Award shall be paid by
your past services to the Company.
2. Vesting.
(a) In General. Subject to the limitations contained herein, your Award will vest, if at all,
in accordance with the vesting schedule provided in the Grant Notice, provided that vesting will
cease upon the termination of your Continuous Service. Upon such termination of your Continuous
Service, the shares credited to the Account that were not vested as of the date of such termination
will be forfeited at no cost to the Company and you will have no further right, title or interest
in or to such underlying shares of Common Stock.
3. Number of Shares.
(a) The number of shares subject to your Award may be adjusted from time to time for
Capitalization Adjustments, as provided in the Plan.
(b) Any shares or other property that becomes subject to the Award pursuant to this Section 3,
if any, shall be subject, in a manner determined by the Board, to the same forfeiture restrictions,
restrictions on transferability, and time and manner of delivery as applicable to the other shares
covered by your Award.
1.
(c) Notwithstanding the provisions of this Section 3, no fractional shares or rights for
fractional shares of Common Stock shall be created pursuant to this Section 3. The Board shall, in
its discretion, determine an equivalent benefit for any fractional shares or fractional shares that
might be created by the adjustments referred to in this Section 3.
4. Securities Law Compliance. You may not be issued any shares under your Award
unless either (i) the shares are registered under the Securities Act or (ii) the Company has
determined that such issuance would be exempt from the registration requirements of the Securities
Act. Your Award also must comply with other applicable laws and regulations governing the Award,
and you will not receive such shares if the Company determines that such receipt would not be in
material compliance with such laws and regulations.
5. Limitations on Transfer. Your Award is not transferable, except by will or by the
laws of descent and distribution. In addition to any other limitation on transfer created by
applicable securities laws, you agree not to assign, hypothecate, donate, encumber or otherwise
dispose of any interest in any of the shares of Common Stock subject to the Award until the shares
are issued to you in accordance with Section 6 of this Agreement. After the shares have been
issued to you, you are free to assign, hypothecate, donate, encumber or otherwise dispose of any
interest in such shares provided that any such actions are in compliance with the provisions herein
and applicable securities laws. Notwithstanding the foregoing, by delivering written notice to the
Company, in a form satisfactory to the Company, you may designate a third party who, in the event
of your death, shall thereafter be entitled to receive any distribution of Common Stock to which
you were entitled at the time of your death pursuant to this Agreement.
6. Date of Issuance.
(a) The Company will deliver to you a number of shares of the Companys Common Stock equal to
the number of vested shares subject to your Award, including any additional shares received
pursuant to Section 3 above that relate to those vested shares on the applicable vesting date(s).
However, if a scheduled delivery date falls on a date that is not a business day, such delivery
date shall instead fall on the next following business day.
(b) Notwithstanding the foregoing, in the event that (i) you are subject to the Companys
policy permitting officers and directors to sell shares only during certain window periods, in
effect from time to time or you are otherwise prohibited from selling shares of the Companys
Common Stock in the public market and any shares covered by your Award are scheduled to be
delivered on a day (the Original Distribution Date) that does not occur during an open window
period applicable to you, as determined by the Company in accordance with such policy, or does not
occur on a date when you are otherwise permitted to sell shares of the Companys common stock on
the open market, and (ii) the Company elects not to satisfy its tax withholding obligations by
withholding shares from your distribution, then such shares shall not be delivered on such Original
Distribution Date and shall instead be delivered on the first business day of the next occurring
open window period applicable to you pursuant to such policy (regardless of whether you are still
providing Continuous Service at such time) or the next business day when you are not prohibited
from selling shares of the Companys Common Stock in the open market, but in no event later than
the fifteenth (15th) day of the third calendar month of the calendar year following the calendar
year in which the Original Distribution Date occurs.
2.
The form of such delivery (e.g., a stock certificate or electronic entry evidencing such
shares) shall be determined by the Company.
7. Dividends. You shall receive no benefit or adjustment to your Award with respect
to any cash dividend, stock dividend or other distribution that does not result from a
Capitalization Adjustment as provided in the Plan; provided, however, that this sentence shall not
apply with respect to any shares of Common Stock that are delivered to you in connection with your
Award after such shares have been delivered to you.
8. Restrictive Legends. The shares issued under your Award shall be endorsed with
appropriate legends determined by the Company.
9. Award not a Service Contract.
(a) Your Continuous Service with the Company or an Affiliate is not for any specified term and
may be terminated by you or by the Company or an Affiliate at any time, for any reason, with or
without cause and with or without notice. Nothing in this Restricted Stock Unit Agreement
(including, but not limited to, the vesting of your Award pursuant to the schedule set forth in
Section 2 herein or the issuance of the shares subject to your Award), the Plan or any covenant of
good faith and fair dealing that may be found implicit in this Restricted Stock Unit Agreement or
the Plan shall: (i) confer upon you any right to continue in the employ of, or affiliation with,
the Company or an Affiliate; (ii) constitute any promise or commitment by the Company or an
Affiliate regarding the fact or nature of future positions, future work assignments, future
compensation or any other term or condition of employment or affiliation; (iii) confer any right or
benefit under this Restricted Stock Unit Agreement or the Plan unless such right or benefit has
specifically accrued under the terms of this Agreement or Plan; or (iv) deprive the Company of the
right to terminate you at will and without regard to any future vesting opportunity that you may
have.
(b) By accepting this Award, you acknowledge and agree that the right to continue vesting in
the Award pursuant to the schedule set forth in Section 2 is earned only by continuing as an
employee, director or consultant at the will of the Company (not through the act of being hired,
being granted this Award or any other award or benefit) and that the Company has the right to
reorganize, sell, spin-out or otherwise restructure one or more of its businesses or Affiliates at
any time or from time to time, as it deems appropriate (a reorganization). You further
acknowledge and agree that such a reorganization could result in the termination of your Continuous
Service, or the termination of Affiliate status of your employer and the loss of benefits available
to you under this Restricted Stock Unit Agreement, including but not limited to, the termination of
the right to continue vesting in the Award. You further acknowledge and agree that this Restricted
Stock Unit Agreement, the Plan, the transactions contemplated hereunder and the vesting schedule
set forth herein or any covenant of good faith and fair dealing that may be found implicit in any
of them do not constitute an express or implied promise of continued engagement as an employee or
consultant for the term of this Agreement, for any period, or at all, and shall not interfere in
any way with your right or the Companys right to terminate your Continuous Service at any time,
with or without cause and with or without notice.
3.
10. Withholding Obligations.
(a) On or before the time you receive a distribution of the shares subject to your Award, or
at any time thereafter as requested by the Company, you hereby authorize any required withholding
from the Common Stock issuable to you and/or otherwise agree to make adequate provision in cash for
any sums required to satisfy the federal, state, local and foreign tax withholding obligations of
the Company or any Affiliate which arise in connection with your Award (the Withholding Taxes).
Additionally, the Company may, in its sole discretion, satisfy all or any portion of the
Withholding Taxes obligation relating to your Award by any of the following means or by a
combination of such means: (i) withholding from any compensation otherwise payable to you by the
Company; (ii) causing you to tender a cash payment; or (iii) withholding shares of Common Stock
from the shares of Common Stock issued or otherwise issuable to you in connection with the Award
with a Fair Market Value (measured as of the date shares of Common Stock are issued to pursuant to
Section 6) equal to the amount of such Withholding Taxes; provided, however, that the number of
such shares of Common Stock so withheld shall not exceed the amount necessary to satisfy the
Companys required tax withholding obligations using the minimum statutory withholding rates for
federal, state, local and foreign tax purposes, including payroll taxes, that are applicable to
supplemental taxable income.
(b) Unless the tax withholding obligations of the Company and/or any Affiliate are satisfied,
the Company shall have no obligation to deliver to you any Common Stock.
(c) In the event the Companys obligation to withhold arises prior to the delivery to you of
Common Stock or it is determined after the delivery of Common Stock to you that the amount of the
Companys withholding obligation was greater than the amount withheld by the Company, you agree to
indemnify and hold the Company harmless from any failure by the Company to withhold the proper
amount.
11. Unsecured Obligation. Your Award is unfunded, and as a holder of a vested Award,
you shall be considered an unsecured creditor of the Company with respect to the Companys
obligation, if any, to issue shares pursuant to this Agreement. You shall not have voting or any
other rights as a stockholder of the Company with respect to the shares to be issued pursuant to
this Agreement until such shares are issued to you pursuant to Section 6 of this Agreement. Upon
such issuance, you will obtain full voting and other rights as a stockholder of the Company.
Nothing contained in this Agreement, and no action taken pursuant to its provisions, shall create
or be construed to create a trust of any kind or a fiduciary relationship between you and the
Company or any other person.
12. Other Documents. You hereby acknowledge receipt or the right to receive a
document providing the information required by Rule 428(b)(1) promulgated under the Securities Act,
which includes the Plan prospectus. In addition, you acknowledge receipt of the Companys policy
permitting officers and directors to sell shares only during certain window periods and the
Companys insider trading policy, in effect from time to time.
4.
13. Notices. Any notices provided for in your Award or the Plan shall be given in
writing and shall be deemed effectively given upon receipt or, in the case of notices delivered by
the Company to you, five (5) days after deposit in the United States mail, postage prepaid,
addressed to you at the last address you provided to the Company. Notwithstanding the foregoing,
the Company may, in its sole discretion, decide to deliver any documents related to participation
in the Plan and this Award by electronic means or to request your consent to participate in the
Plan by electronic means. You hereby consent to receive such documents by electronic delivery and,
if requested, to agree to participate in the Plan through an on-line or electronic system
established and maintained by the Company or another third party designated by the Company.
14. Miscellaneous.
(a) The rights and obligations of the Company under your Award shall be transferable to any
one or more persons or entities, and all covenants and agreements hereunder shall inure to the
benefit of, and be enforceable by the Companys successors and assigns. Your rights and
obligations under your Award may only be assigned with the prior written consent of the Company.
(b) You agree upon request to execute any further documents or instruments necessary or
desirable in the sole determination of the Company to carry out the purposes or intent of your
Award.
(c) You acknowledge and agree that you have reviewed your Award in its entirety, have had an
opportunity to obtain the advice of counsel prior to executing and accepting your Award, and fully
understand all provisions of your Award.
(d) This Agreement shall be subject to all applicable laws, rules, and regulations, and to
such approvals by any governmental agencies or national securities exchanges as may be required.
(e) All obligations of the Company under the Plan and this Agreement shall be binding on any
successor to the Company, whether the existence of such successor is the result of a direct or
indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business
and/or assets of the Company.
15. Governing Plan Document. Your Award is subject to all the provisions of the
Plan, the provisions of which are hereby made a part of your Award, and is further subject to all
interpretations, amendments, rules and regulations which may from time to time be promulgated and
adopted pursuant to the Plan. Except as expressly provided herein, in the event of any conflict
between the provisions of your Award and those of the Plan, the provisions of the Plan shall
control.
16. Severability. If all or any part of this Agreement or the Plan is declared by
any court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity
shall not invalidate any portion of this Agreement or the Plan not declared to be unlawful or
invalid. Any Section of this Agreement (or part of such a Section) so declared to be unlawful or
invalid
5.
shall, if possible, be construed in a manner which will give effect to the terms of such
Section or part of a Section to the fullest extent possible while remaining lawful and valid.
17. Effect on Other Employee Benefit Plans. The value of the Award subject to this
Agreement shall not be included as compensation, earnings, salaries, or other similar terms used
when calculating the Employees benefits under any employee benefit plan sponsored by the Company
or any Affiliate, except as such plan otherwise expressly provides. The Company expressly reserves
its rights to amend, modify, or terminate any of the Companys or any Affiliates employee benefit
plans.
18. Choice of Law. The interpretation, performance and enforcement of this Agreement
will be governed by the law of the state of California without regard to such states conflicts of
laws rules.
19. Amendment. This Agreement may not be modified, amended or terminated except by
an instrument in writing, signed by you and by a duly authorized representative of the Company.
Notwithstanding the foregoing, this Agreement may be amended solely by the Board by a writing which
specifically states that it is amending this Agreement, so long as a copy of such amendment is
delivered to you, and provided that no such amendment adversely affecting your rights hereunder may
be made without your written consent. Without limiting the foregoing, the Board reserves the right
to change, by written notice to you, the provisions of this Agreement in any way it may deem
necessary or advisable to carry out the purpose of the grant as a result of any change in
applicable laws or regulations or any future law, regulation, ruling, or judicial decision,
provided that any such change shall be applicable only to rights relating to that portion of the
Award which is then subject to restrictions as provided herein.
6.