NOTICE OF GRANT (Employee - Restricted Stock Award)
EXHIBIT
10.1
TERMS
AND CONDITIONS
(For
Grants of Restricted Stock to
Employees
and Non-Employee Directors)
This
Master Restricted Stock Award Agreement (this “Master Agreement” or “Agreement”)
is entered into between you (the “Participant” named below) and Cree, Inc., a
corporation formed under the laws of the State of North Carolina (the
“Company”).
This
Agreement states the terms and conditions that govern shares of common stock
of
the Company (“Shares”) that the Company may from time to time grant to you
subject to a risk of forfeiture and related restrictions for a specified
period
of time (“Restricted Stock”). Grants of Restricted Stock governed by this
Agreement will be made under the Company’s 2004 Long-Term Incentive Compensation
Plan (the “Plan”). The number of Shares and the vesting schedule applicable to
each Restricted Stock Award will be stated in a Notice of Grant issued by
the
Company, the form of which is incorporated in this Agreement by reference.
A
Notice of Grant, together with the terms and conditions set forth in this
Agreement and the Plan, constitute the entire agreement between you and the
Company with respect to the Restricted Stock described in the Notice of
Grant.
Unless
otherwise specified in a Notice of Grant or agreed to in writing by you and
the
Company, this Master Agreement will apply to all Restricted Stock granted
to you
under the Plan on and after the effective date stated below. This Agreement
is
subject to and will be construed in accordance with the Plan. Unless otherwise
defined in this Agreement or a Notice of Grant, capitalized terms used in
this
Agreement and defined in the Plan will have the same meaning as defined in
the
Plan.
Please
indicate that you have read and agree to the terms and conditions of this
Agreement by signing below and returning the signed copy to the Company at
its
principal offices in Durham, North Carolina. By your signature below, you
agree
to be bound by the provisions of this Agreement and the Plan and Notices
of
Grant applicable to Awards of Restricted Stock to which this Agreement applies.
Upon receipt by the Company of a copy of this Agreement signed by you, this
Agreement will be effective as of the first date on which the Company issued
or
issues Shares to you pursuant to a Restricted Stock Award.
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CREE,
INC.
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PARTICIPANT:
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By:
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[Name]
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Signature
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[Title]
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Print
Name:
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Cree,
Inc. Master Restricted Stock Award
Agreement
Terms and Conditions
| 1. |
Grants
of Awards.
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(a)
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Subject
to the terms and conditions contained in this
Agreement, the Notice of Grant applicable to the Award and the
Plan, the
Company may, from time to time in its discretion, grant you Restricted
Stock.
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(b)
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The
Shares issued pursuant to an Award of Restricted Stock will be
registered
in your name. The Shares will be evidenced by one or more certificates
delivered to and deposited with the Secretary of the Company as
escrow
agent or, at the discretion of the Company, may be held in a restricted
book entry account in lieu of issuing a certificate or certificates.
Such
certificates or such book entry shares are to be held by the escrow
agent
until the Restricted Stock vests, at which time the escrow agent
will
release the vested Shares; provided, however, that a portion of
the Shares
may be surrendered in payment of required withholding taxes in
accordance
with Section 8(b) below, unless alternative procedures for the
payment of
required withholding taxes are established by the Company.
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| 2. |
Vesting.
Restricted Stock will vest in accordance with the schedule set
out on the
corresponding Notice of Grant. All Restricted Stock will become
fully
vested, to the extent not already vested, upon your Termination
of Service
on account of your death or
Disability.
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| 3. |
Forfeiture
of Restricted Stock upon Termination of Service. Except as
otherwise provided in this Agreement or the Plan, upon your Termination
of
Service you will forfeit all Restricted Stock that is not vested
as of the
date of your Termination of Service.
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| 4. |
Forfeiture
of Restricted Stock upon Section 83(b) Election. As
permitted under section 15.6 of the Plan, each grant of Restricted
Stock
is conditioned upon and subject to your not making an election
under
Section 83(b) of the Code with respect to such Restricted Stock.
If you
make an election under Section 83(b) of the Code with respect to
any
Restricted Stock, you will forfeit such Restricted
Stock.
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| 5. |
Forfeiture
of Restricted Stock for Awards Not Timely Accepted. Each
grant of Restricted Stock is conditioned upon and subject to your
accepting the Award by signing and delivering to the Company the
corresponding Notice of Grant not later than the date specified
in such
Notice or, if no date is specified, not later than the first date
Shares
would otherwise vest pursuant to the Award. If the Company issues
Restricted Stock pursuant to an Award prior to your acceptance
of the
Award, and if you fail to accept the Award by signing and delivering
to
the Company the corresponding Notice of Grant within the time described
above, you will forfeit such Restricted
Stock.
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| 6. |
Tolling
in the Event of Delayed Disability Determinations. If you
incur a Termination of Service and a determination as to whether
the
Termination of Service is on account of your Disability is outstanding
at
the time of the Termination of Service, the forfeiture of Restricted
Stock
which is not then vested will be tolled for the period beginning
on the
date of your Termination of Service and ending on the date on which
the
determination is made whether your Termination of Service was on
account
of your Disability. If it is determined that your Termination of
Service
occurred on account of your Disability, you will become fully vested
in
such Restricted Stock on the date on such determination. If it
is
determined that your Termination of Service did not occur on account
of
your Disability, then you will forfeit such Restricted Stock on
the date
of such determination.
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| 7. |
Settlement
of Restricted Stock. As soon as administratively practicable
following the vesting of a portion of a Restricted Stock Award,
the
Company shall deliver to you (or, in the event of your death, to
your
estate or, if the Committee establishes a beneficiary designation
procedure pursuant to Section 11 of the Plan, to any beneficiary
that you
have designated pursuant to such procedure) one or more certificates
for
the vested Shares.
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Cree,
Inc. Master Restricted Stock Award
Agreement
Terms and Conditions
| 8. |
Responsibility
for Taxes.
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(a)
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Regardless
of any action the Company takes with respect to
Tax-Related Items, you acknowledge that the ultimate liability
for
reporting and/or payment of all Tax-Related Items legally due by
or from
you is and remains your responsibility and that the Company (1) makes
no representations or undertakings regarding the treatment of any
Tax-Related Items in connection with any aspect of any Restricted
Stock,
including the grant, vesting or release of any Restricted Stock,
the
subsequent sale of Shares and the receipt of any dividends pursuant
to
Shares; and (2) does not commit to structure the terms of
the grant
or any aspect of Restricted Stock to reduce or eliminate your liability
for Tax-Related Items.
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(b)
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Prior
to vesting of Restricted Stock, you agree to pay or make adequate
arrangements satisfactory to the Company to satisfy all withholding
and
payment on account obligations of the Company related to such vesting.
If
permissible under applicable law, the Company shall satisfy this
condition
pursuant to the withholding of Shares consistent with the “Share
Withholding” provisions under section 13.2 of the Plan. The Company, in
its discretion, may authorize alternative arrangements, including,
if
permissible under applicable law, the Company’s selling or arranging for
sale Shares that you acquire under the Plan or allowing you to
deliver to
the Company already vested and owned Shares having a fair market
value
equal to the minimum amount required to be withheld. In any event,
to the
extent this condition is not otherwise satisfied, you authorize
your
Employer under the Plan to withhold all applicable Tax-Related
Items
legally payable by you from your wages or other cash compensation
paid to
you by the Employer and you agree to pay to your Employer the amount
of
any Tax-Related Items the Employer is required to withhold as a
result of
Restricted Stock awarded to you under the Plan that cannot be satisfied
by
the other means described above.
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(c)
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The
Company may refuse to honor the vesting of Restricted Stock and
refuse to release restrictions on the Shares if you fail to comply
with
your obligations in connection with the Tax-Related Items as described
in
this section. |
| 9. |
Transfer
of Restricted Stock. Restricted Stock and any rights under
Restricted Stock may not be assigned, pledged as collateral or
otherwise
transferred, except as permitted by the Plan, nor may Restricted
Stock or
such rights be subject to attachment, execution or other judicial
process
until the Restricted Stock becomes vested pursuant to Section 2
above and
the corresponding Notice of Grant. In the event of any attempt
to assign,
pledge or otherwise dispose of Restricted Stock which is not then
vested,
or any rights under such Restricted Stock, except as permitted
by the
Plan, or in the event of the levy of any attachment, execution
or similar
judicial process upon the rights or interests with respect to Restricted
Stock which is not then vested, the Committee may in its discretion,
upon
notice to you, cause you to forfeit such Restricted
Stock.
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| 10. |
Rights
Prior to Vesting of Shares of Restricted
Stock.
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(a)
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You
will have at all times all rights as a shareholder with respect
to your
Restricted Stock, including, but not limited to, voting rights
and rights
to receive dividends, except for the right to transfer the Restricted
Stock as set forth in Section 7 above; provided, however, that
any
dividends on such Restricted Stock will be automatically deferred
and
reinvested in additional Restricted Stock subject to the same restrictions
as the underlying Restricted Stock.
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(b)
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In
the event of a change in capitalization within the meaning of Section
4.3
of the Plan, the number and class of Shares or other securities
that you
are entitled to pursuant to this Agreement and a Notice of Grant
shall be
appropriately adjusted or changed as determined by the Committee
to
reflect the change in capitalization, provided that any such additional
Shares or additional or different shares of securities shall remain
subject to the restrictions in this Agreement and the applicable
Notice of
Grant.
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Cree,
Inc. Master Restricted Stock Award
Agreement
Terms and Conditions
| 11. |
Definitions.
The following definitions apply under this
Agreement:
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(a)
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“Tax-Related
Items” means any or all income tax, social insurance tax, payroll tax,
payment on account or other tax-related withholding that may be
applicable
to Awards under this Agreement by law or regulation of any governmental
authority, whether federal, state or local, domestic or
foreign.
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(b)
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“Termination
of Service” means the discontinuance of your relationship with the Company
as an employee of the Company or other Employer or as a member
of the
board of directors of Cree, Inc. Except as determined otherwise
by the
Committee, you will not be deemed to have incurred a Termination
of
Service if the capacity in which you provide services to the Company
changes (for example, you change from being a non-employee director
to
being an employee) or if you transfer employment among the various
entities constituting the Employer, so long as there is no interruption
in
your provision of services to the Company or other Employer as
an employee
or as a non-employee member of the board of directors of Cree,
Inc. The
Committee, in its discretion, will determine whether you have incurred
a
Termination of Service. You will not be deemed to have incurred
a
Termination of Service during a period for which you are on military
leave, sick leave, or other leave of absence approved by the
Employer.
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| 12. |
Provisions
of the Plan. The provisions of the Plan are
incorporated by reference in this Agreement as if set out in full
in this
Agreement. To the extent that any conflict may exist between any
other
provision of this Agreement and a provision of the Plan, the Plan
provision will control. All decisions of the Committee with respect
to the
interpretation, construction and application of the Plan or this
Agreement
shall be final, conclusive and binding upon you and the Company.
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| 13. |
Cancellation
and Rescission. If you engage in any Detrimental Activity
prior to or within one (1) year after vesting of any Shares of
Restricted
Stock, the Committee in its discretion may rescind the issuance
of such
Shares upon notice to you within two (2) years after such vesting.
In the
event of such rescission, you will be obligated to pay to the Company
the
amount of any gain realized from the Restricted Stock, in such
manner and
on such terms and conditions as the Company may require, and the
Company
will be entitled to set-off against the amount of any such gain
any amount
the Company or an Employer owes to you. For purposes of this section,
“Detrimental Activity” shall have the meaning defined in Section 14.4(b)
of the Plan.
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| 14. |
Data
Privacy. By signing this Agreement, you explicitly and
unambiguously consent to the collection, use and transfer, in electronic
or other form, of your personal data as described below by and
among, as
applicable, your Employer, the Company and its subsidiaries and
affiliates
for the exclusive purpose of implementing, administering and managing
your
participation in the Plan.
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You
understand that the Employer holds or may hold certain personal information
about you, including, but not limited to, your name, home address and telephone
number, date of birth, social insurance number or other identification number,
salary, nationality, position title, any shares of stock or directorships
held
in the Company, details of all Restricted Stock or any other entitlement
to
Shares of stock awarded, canceled, exercised, vested, unvested or outstanding
in
your favor, for the purpose of implementing, administering and managing the
Plan
(“Data”). You understand that Data may be transferred to any third parties
assisting in the implementation, administration and management of the Plan,
that
these recipients may be located in your country or elsewhere, and that the
recipient’s country may have different data privacy laws and protections than
your country. You understand that you may request a list with the names and
addresses of any potential recipients of the Data by contacting the Company's
Stock Plan Administrator. You authorize the recipients to receive, possess,
use,
retain and transfer the Data, in electronic or other form, for the purposes
of
implementing, administering and managing your participation in the Plan,
including any requisite transfer of such Data as may be required to a broker
or
other third party with whom you may elect to deposit any Shares of stock
acquired pursuant to this Agreement. You understand that Data will be held
pursuant to this Agreement only as long as is necessary to implement, administer
and manage your participation in the Plan. You understand that you may, at
any
time, view Data, request additional information about the storage and processing
of Data, require any necessary amendments to Data or refuse or withdraw the
consents above, in any case without cost, by contacting in writing the Company's
Stock Plan Administrator. You acknowledge, however, that refusing or withdrawing
your consent may affect your ability to participate in the Plan.
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Cree,
Inc. Master Restricted Stock Award
Agreement
Terms and Conditions
| 15. |
Language. If
you have received this Agreement or any other document related
to the Plan
translated into a language other than English and the translated
version
is different than the English version, the English version will
control.
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| 16. |
Electronic
Delivery. The Company may, in its sole discretion, decide
to
deliver any documents related to the Restricted Stock granted under
this
Agreement by electronic means or to request your consent to participate
in
the Plan by electronic means. By signing this Agreement, you 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 Company.
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| 17. |
General.
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(a)
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Nothing
in this Agreement will be construed as constituting a commitment,
agreement or understanding of any kind that the Company or any
other
Employer will continue your service relationship nor to limit or
restrict
either party’s right to terminate the service relationship.
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(b)
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This
Agreement shall be binding upon and inure to the benefit of the
parties
and their respective successors and permitted assigns. You may
not assign
any rights under this Agreement without the written consent of
the
Company, which it may withhold in its sole discretion; any such
attempted
assignment without the Company's written consent shall be void.
The
Company may assign its rights under this Agreement at any time
upon notice
to you.
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(c)
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Notices
under this Agreement must be in writing and delivered either by
hand or by
certified mail (return receipt requested and first-class postage
prepaid),
in the case of the Company, addressed to its principal executive
offices
to the attention of the Stock Plan Administrator, and, in your
case, to
your address as shown on the Employer’s
records.
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(d)
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This
Agreement shall be governed by and construed in accordance with
the laws
of the State of North Carolina as if made and to be performed wholly
within such State.
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(e)
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No
amendment or modification of this Agreement shall be valid unless
the same
is in writing and signed by you and by an authorized officer of
the
Company. If any provision of this Agreement is held to be invalid
or
unenforceable, such determination shall not affect the other provisions
of
the Agreement and the Agreement shall be construed as if the invalid
or
unenforceable provision were omitted and a valid and enforceable
provision, as nearly comparable as possible, substituted in its
place.
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(f)
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This
Agreement, including the corresponding Notice(s) of Grant and the
Plan,
set forth all of the promises, agreements and understandings between
you
and Company relating to Restricted Stock Awards evidenced by this
Agreement. This Agreement, including the corresponding Notice of
Grant and
the Plan, supersede any and all prior agreements or understandings,
whether oral or written, with respect to the Restricted Stock Award
evidenced by this Agreement and such Notice, unless otherwise specified
in
the corresponding Notice of Grant.
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(g)
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Shares
issued pursuant to an award of Restricted Stock may be
subject to such stop-transfer orders and other restrictions as
the
Committee may deem advisable under applicable law or the rules
and
regulations of the Securities and Exchange Commission or any stock
exchange or trading system upon which the common stock of the Company
is
listed, and the Committee may cause a legend or legends to be placed
on
any such certificates or the stock records of the Company to make
appropriate reference to such
restrictions.
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(h)
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You
agree that any and all Restricted Stock issued to you pursuant
to the
Plan, even if later forfeited, serves as additional, valuable
consideration for your obligations, if any, undertaken in any existing
agreement between you and the Company and/or other Employer regarding
confidential information, noncompetition, nonsolicitation or similar
covenants.
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Cree,
Inc. Master Restricted Stock Award
Agreement
Terms and Conditions
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(i)
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You
acknowledge, represent and warrant to the Company, and agree with
the
Company, that (i) except for information provided in the Company’s filings
with the Securities and Exchange Commission and in the Company’s current
prospectus relating to the Plan, you have not relied and will not
rely
upon the Committee, the Company, an Employer or any employee or
agent of
the Company or an Employer in determining whether to accept Restricted
Stock, or in connection with any disposition of Shares obtained
pursuant
to a Restricted Stock Award, or with respect to any tax consequences
related to the grant of Restricted Stock or the disposition of
Shares
obtained pursuant to a Restricted Stock Award; and (ii) you will
seek from
your own professional advisors such investment, tax and other advice
as
you believe necessary.
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(j)
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You
acknowledge that you may incur a substantial tax liability as a
result of
vesting of Restricted Stock. You assume full responsibility for
all such
consequences and the filing of all tax returns and related elections
you
may be required or find desirable to file. If you are required
to make any
valuation of Shares obtained pursuant to a Restricted Stock Award
under
any federal, state or other applicable tax law, and if the valuation
affects any tax return or election of the Company or the Employer
or
affects the Company’s financial statement reporting, you agree that the
Company may determine the value and that you will observe any
determination so made by the Company in all tax returns
and elections
filed by you.
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(k)
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You
acknowledge that copies of the Plan and Plan prospectus are available
upon
written or telephonic request to the Company’s Stock Plan
Administrator.
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| 18. |
Severability.
The provisions of this Agreement are severable and if any one or
more
provisions is determined to be illegal or otherwise unenforceable,
in
whole or in part, the remaining provisions shall nevertheless be
binding
and enforceable.
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NOTICE
OF GRANT
(Employee
- Restricted Stock Award)
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Company:
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Participant:
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Cree,
Inc.
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Award
Number:
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▇▇▇▇:
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▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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Award
Type:
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Restricted
Stock
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Tax
I.D. ▇▇-▇▇▇▇▇▇▇
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Grant
Date:
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Number
Shares:
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Purchase
Price:
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$0 -
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Restriction
Period:
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Grant
Date through ______________
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Vesting
Schedule:
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Dear
Participant:
I
am
pleased to inform you that Cree, Inc. (the “Company”) has awarded you
___________ shares of restricted stock (“Restricted Stock”) pursuant to the
Cree, Inc. 2004 Long-Term Incentive Compensation Plan (the “Plan”) effective
__________ (the “Grant Date”). The Award is governed by the Plan, terms of the
Master Restricted Stock Award Agreement between you and the Company and this
Notice of Grant.
If
not
previously vested or forfeited, the Restricted Stock will vest in installments
on the dates set out below provided you are then serving as an employee of
the
Company or a related Employer under the Plan or as a member of the Board of
Directors of the Company:
[Vesting
Schedule]
If
you
incur a Termination of Service before the end of the Restriction Period, you
will forfeit all Shares of Restricted Stock that are not then vested in
accordance with your Master Restricted Stock Award Agreement, this Notice of
Grant and the Plan.
This
Award and any other Awards granted under the Plan as of the Grant Date are
intended to fulfill any and all agreements, obligations or promises, whether
legally binding or not, previously made by the Company or any Employer under
the
Plan to grant you Restricted Stock. By signing below, you accept such Awards,
along with all prior awards received by you, in full satisfaction of any such
agreement, obligation or promise.
This
Award is subject to the condition that you sign and return this Notice of Grant,
and the accompanying stock power, to the Company not later than
__________________________.
| CREE, INC. | Accepted and agreed to: | ||
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By:
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[Name]
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[Name]
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[Title]
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NOTICE
OF GRANT
(Outside
Director - Restricted Stock Award)
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Company:
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Participant:
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Cree,
Inc.
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Award
Number:
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▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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Award
Type:
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Restricted
Stock
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Tax
I.D. ▇▇-▇▇▇▇▇▇▇
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Grant
Date:
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Number
Shares:
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Purchase
Price:
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$0 -
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Restriction
Period:
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Grant
Date through ______________
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Vesting
Schedule:
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Dear
________________:
I
am
pleased to inform you that Cree, Inc. (the “Company”) has awarded you
___________ shares of restricted stock (“Restricted Stock”) pursuant to the
Cree, Inc. 2004 Long-Term Incentive Compensation Plan (the “Plan”) effective
__________ (the “Grant Date”). The Award is governed by the Plan, terms of the
Master Restricted Stock Award Agreement between you and the Company and this
Notice of Grant.
If
not
previously vested or forfeited, the Restricted Stock will vest on _____________
provided you are then serving as a member of the Board of Directors of the
Company or as an employee of the Company or a related Employer under the
Plan.
If you incur a Termination of Service before the end of the Restriction Period,
you will forfeit all Shares of Restricted Stock that are not then vested
in
accordance with your Master Restricted Stock Award Agreement, this Notice
of
Grant and the Plan.
This
Award and any other Awards granted under the Plan as of the Grant Date are
intended to fulfill any and all agreements, obligations or promises, whether
legally binding or not, previously made by the Company or any Employer under
the
Plan to grant you Restricted Stock. By signing below, you accept such Awards,
along with all prior awards received by you, in full satisfaction of any
such
agreement, obligation or promise.
This
Award is subject to the condition that you sign and return this Notice of
Grant,
and the accompanying stock power, to the Company not later than
__________________________.
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CREE,
INC.
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Accepted and agreed to: | ||
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By:
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[Name]
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[Name]
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[Title]
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