Exhibit 99.2
MOTIENT CORPORATION 2004 RESTRICTED STOCK PLAN
RESTRICTED STOCK AGREEMENT
GRANT NOTICE
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GRANTEE: GRANT NO.:
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DATE OF GRANT: COVERED SHARES:
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GRANTEE'S SOCIAL SECURITY NUMBER:
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AGREEMENT TERMS
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1. GRANT OF RESTRICTED STOCK. Pursuant to the Plan and subject to the terms of
this Agreement, the Company hereby grants to the Grantee Restricted Stock equal
to the number of Covered Shares set forth in the above Grant Notice.
2. TERMS OF THE RESTRICTED STOCK.
(a) VESTING SCHEDULE. Your right to the Covered Shares granted under this
Restricted Stock Agreement vests as to the total number of Covered Shares on the
six month anniversary of the Date of Grant, provided you then continue in
Service. You cannot vest in more than the number of shares covered by this
grant.
(b) ACCELERATED VESTING UPON A CHANGE OF CONTROL. Upon a Change of Control,
all of your Covered Shares which have not yet vested shall fully vest.
(c) FORFEITURE. Covered Shares which have not yet otherwise vested pursuant
to either Sections 2(a) or 2(b) shall be forfeited upon your termination of
Service.
(d) ESCROW.
(i) The certificates for the Restricted Stock shall be deposited in
escrow with the Secretary of the Company to be held in accordance with the
provisions of this paragraph. The deposited certificates shall remain in
escrow until such time or times as the certificates are to be released or
otherwise surrendered for cancellation as discussed below. Upon delivery of
the certificates to the Company, you shall be issued an instrument of
deposit acknowledging the number of shares of Restricted Stock delivered in
escrow to the Secretary of the Company.
(ii) In the event of any stock dividend, stock split,
recapitalization or other change affecting the Company's outstanding common
stock as a class effected without receipt of consideration or in the event
of a stock split, a stock dividend or a similar change in the Company's
outstanding common stock, any new, substituted or additional securities or
other property which is by reason of such transaction distributed with
respect to the Company's outstanding common stock shall be immediately
delivered to the Secretary of the Company to be held in escrow hereunder,
but only to the extent the Restricted Stock is at the time subject to the
escrow requirements hereof.
(iii) As your interest in the Restricted Stock vests as described in
Sections 2(a) or 2(b), the certificates for such vested shares shall be
released from escrow and delivered to you, at your request, within 30 days
of such vesting or immediately upon your termination of employment with the
Company.
(e) NO TRANSFERS DURING RESTRICTION PERIOD. During the entire period in
which the Covered Shares have not otherwise vested pursuant to either Sections
2(a) or 2(b), (the "Restriction Period"), you may not sell, assign, transfer,
pledge, or otherwise dispose of the shares of Stock issued or transferred
pursuant to this Agreement or suffer any involuntary assignment or transfer of
such shares whether by operation of law or otherwise, nor may the Restricted
Stock be made subject to execution, attachment or similar process.
(f) EFFECT OF PROHIBITED TRANSFER. The Company shall not be required
(i) to transfer on its books any of the shares of Stock which shall have been
sold or transferred in violation of any of the provisions set forth in this
Agreement, or (ii) to treat as the owner of such shares of Stock or to pay
dividends to any transferee to whom any such shares shall have been so sold or
transferred.
(g) CONSEQUENCES OF TERMINATION OF EMPLOYMENT OR SERVICE. If, during
the Restriction Period, the Grantee's employment or Service with the Company is
terminated, either by act of the Grantee or otherwise, the Grantee, by accepting
this Agreement and the issuance or transfer of the shares of Stock under this
Agreement, agrees to assign,transfer, and deliver the certificates evidencing
ownership of the shares of Stock to the Company and further agrees that all
interest of the Grantee in the shares of Stock of the Company shall terminate
and that the Grantee shall cease to be a stockholder of the Company with respect
to such shares; provided, that the Board may provide for a partial or complete
exception to this requirement as it deems equitable. The Board's determination
as to whether to apply the exception permitted under the preceding sentence
shall be final, binding and conclusive. The Company shall incur no liability to
the Grantee under this Agreement by terminating the Grantee's status as an
employee, consultant, or non-employee director, whether by action with respect
to the Grantee individually, either with or without cause, or by dissolution or
liquidation of the Company or merger or consolidation of the Company with a
corporation in which the Company is not the surviving company.
If the Grantee attempts to breach the restriction on transfer during
the Restriction Period contained in this Section 2, or suffers any attempted
involuntary transfer of the shares of Stock issued or transferred pursuant to
this Agreement, any such attempt shall be ineffective and the Grantee agrees, by
accepting this Agreement and the shares of Stock issued or transferred under
this Agreement, that the Company shall not be required to transfer the shares of
Stock and may impound the certificates for the shares of Stock and hold such
certificates until the expiration of the Restriction Period.
(h) LAPSE OF RESTRICTIONS. If, on the expiration of the Restriction
Period,the Grantee's employment or Service to the Company is continuing, all
restrictions shall terminate, and the Grantee shall be entitled to receive new
certificates not containing the legend described in Section 5; provided that if
shares of Stock have been impounded under Section 2(g) above, (i) the Company
shall have no obligation other than to deliver certificates not containing the
legend prescribed in Section 5 registered in the name of the Grantee, and (ii)
the Company shall be entitled to withhold delivery of any certificates for
shares of Stock if, and for so long as, in the judgment of the Company's
counsel, the Company would incur a risk of liability to any party to whom the
Grantee purported to assign the shares of Stock or to whom shares of Stock were
purported to be assigned by operation of law in violation of Section 2(g).
3. WITHHOLDING TAXES. You agree, as a condition of this grant, that you will
make acceptable arrangements to pay any withholding or other taxes that may be
due as a result of the vesting of Covered Shares. In the event that the Company
determines that any federal, state, local or foreign tax or withholding payment
is required relating to the vesting of the Covered Shares, the Company shall
have the right to require such payments from you, or withhold such amounts from
other payments due to you from the Company or any Affiliate.
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4. SECTION 83(b) ELECTION. Under Code Section 83, you will recognize ordinary
income equal to the fair market value of the Shares received from the Restricted
Stock on the date that the Covered Shares (or any portion thereof) vest.
However, you may elect to be taxed at the time the Restricted Stock is granted,
rather than when the Restricted Stock becomes vested and ceases to be Restricted
Stock. To elect this early taxation, you would need to file an election under
Section 83(b) of the Code with the Internal Revenue Service within 30 days after
the Date of Grant. In addition, you would have to make a payment to the Company
to cover the withholding on the fair market value of the Restricted Stock on the
Date of Grant. The form for making this election is attached as EXHIBIT A
hereto.
YOU ARE RELYING SOLELY ON YOUR OWN ADVISORS WITH RESPECT TO THE DECISION AS
TO WHETHER OR NOT TO FILE ANY SECTION 83(b) ELECTION. IF YOU DETERMINE THAT THE
ELECTION IS ADVISABLE, YOU ACKNOWLEDGE THAT IT IS YOUR SOLE RESPONSIBILITY, AND
NOT THE COMPANY'S, TO FILE A TIMELY ELECTION UNDER SECTION 83(b). THIS IS SO
EVEN IF YOU REQUEST THE COMPANY OR ITS REPRESENTATIVES TO MAKE THIS FILING ON
YOUR BEHALF.
5. LEGENDS. All certificates representing the Restricted Stock issued in
connection with this grant shall, where applicable, have endorsed thereon the
following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER SET FORTH IN AN AGREEMENT BETWEEN THE COMPANY AND THE
REGISTERED HOLDER. A COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE
OF THE COMPANY AND WILL BE FURNISHED UPON WRITTEN REQUEST BY THE SECRETARY OF
THE COMPANY TO THE HOLDER OF RECORD OF THE SHARES REPRESENTED BY THIS
CERTIFICATE."
In addition, certificates representing Restricted Stock that has not been
registered under the Securities Act shall have endorsed thereon the following
legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED WITHOUT
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS AND MAY NOT BE SOLD, PLEDGED, TRANSFERRED OR OTHERWISE DISPOSED
OF EXCEPT IN ACCORDANCE WITH SUCH ACT AND THE RULES AND REGULATIONS THEREUNDER
AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THE COMPANY WILL NOT
TRANSFER SUCH SHARES EXCEPT UPON RECEIPT OF EVIDENCE SATISFACTORY TO THE COMPANY
THAT THE REGISTRATION PROVISIONS OF SUCH ACT HAVE BEEN COMPLIED WITH OR THAT
SUCH REGISTRATION IS NOT REQUIRED AND THAT SUCH TRANSFER WILL NOT VIOLATE ANY
APPLICABLE STATE SECURITIES LAWS."
6. RIGHTS AS STOCKHOLDER. The Grantee has the right to vote the Restricted Stock
and to receive any dividends declared or paid on such stock. Any distributions
Grantee receives as a result of any stock split, stock dividend, combination of
shares or other similar transaction shall be deemed to be a part of the
Restricted Stock and subject to the same conditions, restrictions, and escrow
arrangements applicable thereto. The Company may, in its sole discretion,
require any dividends paid on the Restricted Stock to be reinvested in shares of
the Company's common stock, which the Company may in its sole discretion deem to
be a part of the shares of Restricted Stock and subject to the same conditions,
restrictions and escrow arrangements applicable thereto. Otherwise, all regular
cash dividends paid on the Restricted Stock (or other securities at the time
held in escrow) shall be paid directly to you and shall not be held in escrow.
No adjustments are made for dividends or other rights if the applicable record
date occurs before your stock certificate is issued.
7. ADJUSTMENTS. In the event of a stock split, a reverse stock split, a stock
dividend or a similar change in the Company's common stock, the number of shares
of Restricted Stock shall be adjusted (and may be rounded down to the nearest
whole number) pursuant to the Plan. Your Restricted Stock shall be subject to
the terms of an agreement of merger, liquidation or reorganization in the event
the Company is subject to such corporate activity.
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8. REPURCHASE OF SHARES OF COMMON STOCK. If the Company is not a Public Company
at the time the Grantee desires to dispose of all or any portion of the shares
of Restricted Stock acquired pursuant to this Agreement, the Grantee shall
notify the Company of such desire and shall offer to sell such shares to the
Company pursuant to Section 12 of the Plan.
9. EMPLOYMENT. Neither the granting of the Restricted Stock evidenced by this
Agreement nor any term or provision of this Agreement shall constitute or be
evidence of any understanding, express or implied, on the part of the Company or
any of its Affiliates to employ the Grantee for any period. Whenever reference
is made in this Agreement to the employment of the Grantee, it means employment
by the Company or a Affiliate.
10. DATA PRIVACY. In order to administer the Plan, the Company may process
personal data about you. Such data includes, but is not limited to, the
information provided in this Agreement and any changes thereto, other
appropriate personal and financial data about you such as home address and
business addresses and other contact information, payroll information and any
other information that might be deemed appropriate by the Company to facilitate
the administration of the Plan.
By accepting this grant, you give explicit consent to the Company to
process any such personal data. You also give explicit consent to the Company to
transfer any such personal data outside the country in which you work or are
employed, including, with respect to non-U.S. resident Grantees, to the United
States, to transferees who shall include the Company and other persons who are
designated by the Company to administer the Plan.
11. CONSENT TO ELECTRONIC DISTRIBUTION. The Company may choose to deliver
certain statutory materials relating to the Plan in electronic form. By
accepting this grant you agree that the Company may deliver the Plan prospectus
and the Company's annual report to you in an electronic format. If at any time
you would prefer to receive paper copies of these documents, as you are entitled
to, the Company would be pleased to provide copies. Please contact the legal
department at 847-478-4200 to request paper copies of these documents.
12. DEFINITIONS. In this Agreement, terms with initial capitals shall have the
meanings provided in the Plan, except as follows:
(a) "Agreement" means this Restricted Stock Agreement.
(b) "Change of Control" means the occurrence of any of the following
events:
(i) Any person or persons acting together, excluding employee benefit
plans of the Company, are or become the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act or any successor provisions
thereto except that a person that has the right to acquire securities of
the Company shall be deemed to be the "beneficial owner" of such securities
whether or not such right is immediately exercisable), directly or
indirectly, of securities of the Company representing greater than 50% of
the combined voting power of the Company's then outstanding securities
determined as if all rights of such person or persons to acquire such
securities had been exercised immediately prior to such determination
whether or not such rights are then immediately exercisable;
(ii) The Company's stockholders approve (or, in the event no approval
of the Company's stockholders is required, the Company consummates) a
merger, consolidation, share exchange, division or other reorganization or
transaction of the Company (a "Fundamental Transaction") with any other
corporation, other than a Fundamental Transaction which would result in the
voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) at least 80% of
the combined voting power immediately after such Fundamental Transaction of
(A) the Company's outstanding securities, (B) the surviving entity's
outstanding securities, or (C) in the case of a division, the outstanding
securities of each entity resulting from the division, in each case
determined as if all rights to acquire such securities had been exercised
immediately prior to such determination, whether or not such rights are
then immediately exercisable;
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(iii) The stockholders of the Company approve a plan of complete
liquidation or winding-up of the Company or an agreement for the sale or
disposition (in one transaction or a series of transactions) of all or
substantially all of the assets of the Company and its Affiliates (taken as
a whole); or
(iv) During any period of 24 consecutive months (commencing on or
after the date hereof), individuals who at the beginning of such period
constituted the Board (including for this purpose any new director elected
during such period whose election or nomination for election by the
Company's stockholders was approved by a vote of the directors then still
in office who were directors at the beginning of such period) cease for any
reason to constitute at least a majority of the Board.
(c) "Covered Shares" means the Shares of Restricted Stock set forth as the
"Covered Shares" in the Grant Notice section of this Agreement.
(d) "Company" means Motient Corporation.
(e) "Plan" means the Motient Corporation 2003 Restricted Stock Plan.
(f) "Restricted Stock" means the restricted stock granted to the Grantee in
Paragraph 1 of this Agreement, to the extent such stock is not yet vested.
(g) "Restriction Period" has the meaning set forth in Section 2(e) hereof.
13. SUBJECT TO THE PLAN. The shares of Restricted Stock evidenced by this
Agreement are subject to the terms and conditions of the Plan, which are
incorporated herein by reference and made a part hereof. In addition, the
Restricted Stock is subject to any rules and regulations promulgated by the
Board consistent with the terms of the Plan.
[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, the Company has caused this Agreement to be signed on
its behalf effective as of the Date of ▇▇▇▇▇.
ATTEST: MOTIENT CORPORATION
_________________________ By: ________________________________
Accepted and agreed to as of the Date of ▇▇▇▇▇.
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Grantee
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EXHIBIT A
ELECTION UNDER SECTION 83(b) OF
THE INTERNAL REVENUE CODE
The undersigned hereby makes an election pursuant to Section 83(b) of the
Internal Revenue Code with respect to the property described below and supplies
the following information in accordance with the regulations promulgated
thereunder:
1. The name, address and social security number of the undersigned:
Name:
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Address:
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Social Security No. :
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2. Description of property with respect to which the election is
being made:
__________shares of common stock, par value $.01 per share, Motient Corporation,
a Delaware corporation (the "Company").
3. The date on which the property was transferred is ____________ __,
200__.
4. The taxable year to which this election relates is calendar year
200__.
5. Nature of restrictions to which the property is subject:
The shares of stock are subject to the provisions of a Restricted
Stock Agreement between the undersigned and the Company. The shares
of stock are subject to forfeiture under the terms of the Agreement.
6. The fair market value of the property at the time of transfer
(determined without regard to any lapse restriction) was $__________
per share, for a total of $__________.
7. The amount paid by taxpayer for the property was $____________.
8. A copy of this statement has been furnished to the Company.
Dated: ______________
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Taxpayer's Signature
______________________________
Taxpayer's Printed Name
PROCEDURES FOR MAKING ELECTION
UNDER INTERNAL REVENUE CODE SECTION 83(b)
The following procedures must be followed with respect to the
attached form for making an election under Internal Revenue Code section 83(b)
in order for the election to be effective:
1. You must file one copy of the completed election form with
the IRS Service Center where you file your federal income tax returns within 30
days after the Date of Grant for your Restricted Stock.
2. At the same time you file the election form with the IRS,
you must also give a copy of the election form to the Secretary of the Company.
3. YOU MUST FILE ANOTHER COPY OF THE ELECTION FORM WITH YOUR
FEDERAL INCOME TAX RETURN (GENERALLY, FORM 1040) FOR THE TAXABLE YEAR IN WHICH
THE STOCK IS TRANSFERRED TO YOU.