Exhibit 10.1
EMULEX CORPORATION
2005 EQUITY INCENTIVE PLAN
RESTRICTED STOCK AWARD AGREEMENT
This Restricted Stock Award Agreement (this "AGREEMENT"), is made and
entered into on the execution date of the Notice of Grant Award to which it is
attached (the "CERTIFICATE"), by and between Emulex Corporation, a Delaware
corporation (the "COMPANY"), and the Director, Employee or Consultant
("GRANTEE") named in the Certificate.
Pursuant to the Emulex Corporation 2005 Equity Incentive Plan (the
"PLAN"), the Administrator of the Plan has authorized the grant to Grantee of
the right to receive shares of the Company's Common Stock (the "AWARD"), upon
the terms and subject to the conditions set forth in this Agreement and in the
Plan. Capitalized terms not otherwise defined herein shall have the meanings
ascribed to them in the Plan.
NOW, THEREFORE, in consideration of the premises and the benefits to be
derived from the mutual observance of the covenants and promises contained
herein and other good and valuable consideration, the sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. BASIS FOR AWARD. This Award is made pursuant to the Plan for valid
consideration provided to the Company by the Grantee. By your execution of the
Certificate, you agree to accept the Restricted Stock Award rights granted
pursuant to the Certificate and this Restricted Stock Award Agreement and to
receive the shares of Restricted Stock of Emulex Corporation designated in the
Certificate subject to the terms of the Plan, the Certificate and this Award
Agreement.
2. RESTRICTED STOCK AWARD. The Company hereby awards and grants to
Grantee, for valid consideration, the number of shares of Common Stock of the
Company set forth in the Certificate, which shall be subject to the restrictions
and conditions set forth in the Plan, the Certificate and in this Agreement (the
"RESTRICTED STOCK"). One or more stock certificates representing the number of
shares specified in the Certificate shall hereby be registered in the Grantee's
name (the "STOCK CERTIFICATE"), but shall be deposited and held in the custody
of the Company for the Grantee's account as provided in Section 10 hereof until
such Restricted Stock becomes vested. Grantee acknowledges and agrees that the
shares may be issued as a book entry with the Company's transfer agent and that
no physical certificates need be issued for so long as the shares remain
Unvested Shares. Subject to the terms of this Agreement, Grantee shall have all
the rights of a shareholder with respect to the Restricted Stock while they are
held in the custody of the Company for Grantee's account, including the right to
vote the Restricted Stock and to receive any dividends thereon.
3. VESTING. The Restricted Stock shall vest and restrictions on transfer
shall lapse subject to the Vesting Schedule set forth in the Certificate. If the
Grantee shall cease Continuous Service for any reason, the Unvested Shares shall
be forfeited immediately. If the Grantee provided consideration other than in
the form of prior services, the Company may repurchase the Grantee's unvested
Common Stock acquired under this Agreement as provided in Section 7.4 of the
Plan (the "RIGHT OF REPURCHASE"). The Right of Repurchase shall be exercisable
with respect to unvested stock at a price equal to the lesser of the purchase
price at which such Common Stock was acquired under this Agreement or the Fair
Market Value of such Common Stock. The Right of Repurchase may be exercised by
the Company at any time within six months after the date of termination of
Grantee's Continuous Service, provided that such exercise may in any event be
extended at the election of the Company to a date that is at least 60 days after
the six month anniversary of the date the stock was acquired from the Company.
4. COMPLIANCE WITH LAWS AND REGULATIONS. The issuance and transfer of
Common Stock shall be subject to compliance by the Company and Grantee with all
applicable requirements of federal and state securities laws and with all
applicable requirements of any stock exchange on which the Company's Common
Stock may be listed at the time of such issuance or transfer. If the Grantee
provided consideration in the form of prior services, the unvested Shares shall
be forfeited immediately without regard to the Right of Repurchase.
EMULEX CORPORATION RESTRICTED STOCK AWARD AGREEMENT
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5. TAX WITHHOLDING.
(a) Grantee agrees that, no later than the first to occur of (i)
the date as of which the restrictions on the Restricted Stock shall lapse with
respect to all or any of the Restricted Stock covered by this Agreement or (ii)
the date required by Section 5(b) below, Grantee shall pay to the Company (in
cash or to the extent permitted by the Administrator, by tendering Company Stock
held by the Grantee, including shares of Restricted Stock held in escrow that
become vested ("SHARE WITHHOLDING"), with a Fair Market Value on the date the
Restricted Stock vests equal to the amount of Grantee's minimum statutory tax
withholding liability, or to the extent permitted by the Administrator, a
combination thereof) any federal, state or local taxes of any kind required by
law to be withheld, if any, with respect to the Restricted Stock for which the
restrictions shall lapse. The Company shall, to the extent permitted by law,
have the right to deduct from any payment of any kind otherwise due to Grantee
any federal, state or local taxes of any kind required by law to be withheld
with respect to the shares of such Company Stock. Payment of the tax withholding
by a Participant who is an officer, director or other "insider" subject to
Section 16(b) of the Exchange Act by tendering Company Stock or in the form of
Share Withholding is subject to pre-approval by the Administrator, in its sole
discretion, in a manner that complies with the specificity requirements of Rule
16b-3 under the Exchange Act, including the name of the Participant involved in
the transaction, the nature of the transaction, the number of shares to be
acquired or disposed of by the Participant and the material terms of the Award
involved in the transaction.
(b) Grantee may elect, within thirty (30) days of the Offer
Grant Date, to include in gross income for federal income tax purposes an amount
equal to the Fair Market Value of the Restricted Stock less the amount, if any,
paid by the Grantee (other than by prior services) for the Restricted Stock
granted hereunder pursuant to Section 83(b) of the Internal Revenue Code of
1986, as amended. In connection with any such Section 83(b) election, Grantee
shall pay to the Company, or make such other arrangements satisfactory to the
Administrator to pay to the Company based on the Fair Market Value of the
Restricted Stock on the Offer Grant Date, any federal, state or local taxes
required by law to be withheld with respect to such Shares at the time of such
election. If Grantee fails to make such payments, the Company shall, to the
extent permitted by law, have the right to deduct from any payment of any kind
otherwise due to Grantee any federal, state or local taxes required by law to be
withheld with respect to such Shares.
6. NO RIGHT TO CONTINUED SERVICE. Nothing in this Agreement shall be
deemed by implication or otherwise to impose any limitation on any right of the
Company to terminate the Grantee's service at any time. In the event Grantee's
Continuous Service with the Company is terminated by the Company, by Grantee or
as a result of Grantee's death or disability, no unvested shares of Common Stock
shall become vested after such termination of Continuous Service.
7. REPRESENTATIONS AND WARRANTIES OF GRANTEE. Grantee represents and
warrants to the Company that:
(a) Agrees to Terms of the Plan. Grantee has received a copy of
the Plan and has read and understands the terms of the Plan, the
Certificate and this Agreement, and agrees to be bound by their terms
and conditions. Grantee acknowledges that there may be adverse tax
consequences upon the vesting of Restricted Stock or disposition of the
shares of Common Stock once vested, and that Grantee should consult a
tax advisor prior to such time.
(b) Stock Ownership. Grantee is the record and beneficial owner
of the shares of Restricted Stock with full right and power to transfer
the Unvested Shares to the Company free and clear of any liens, claims
or encumbrances and Grantee understands that the stock certificates
evidencing the Restricted Stock will bear a legend referencing this
Agreement.
(c) SEC Rule 144. Grantee understands that Rule 144 promulgated
under the Securities Act may indefinitely restrict transfer of the
Common Stock so long as Grantee remains an "affiliate" of the Company or
if "current public information" about the Company (as defined in Rule
144) is not publicly available.
8. COMPLIANCE WITH U.S. FEDERAL SECURITIES LAWS. Grantee understands and
acknowledges that notwithstanding any other provision of the Agreement to the
contrary, the vesting and holding of the Common Stock
EMULEX CORPORATION RESTRICTED STOCK AWARD AGREEMENT
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is expressly conditioned upon compliance with the Securities Act and all
applicable federal and state securities laws. Grantee agrees to cooperate with
the Company to ensure compliance with such laws.
9. FORFEITURE OF UNVESTED STOCK. Unless otherwise provided in an
employment agreement, the terms of which have been approved by the
Administrator, if unvested Common Stock ("UNVESTED SHARES") standing in the name
of Grantee on the books of the Company does not become vested on or before the
expiration of the period during which the applicable vesting conditions must
occur, such Unvested Shares shall be automatically forfeited and cancelled as
outstanding shares of Common Stock immediately upon the occurrence of the event
or time period after which such Unvested Shares may no longer become vested.
10. RESTRICTIONS ON UNVESTED SHARES.
(a) Deposit of the Unvested Shares. Grantee shall deposit all of
the Unvested Shares with the Company to hold until the Unvested Shares
become vested, at which time such vested shares shall no longer
constitute Unvested Shares. To the extent requested by the Company,
Grantee shall execute and deliver to the Company, concurrently with the
execution of this Agreement (and/or, if requested by the Company, from
time to time thereafter) blank stock powers for use in connection with
the transfer to the Company or its designee of Unvested Shares that do
not become vested. The Company will deliver to Grantee the Stock
Certificate for the shares of Common Stock that become vested upon
vesting of such shares.
(b) Restriction on Transfer of Unvested Shares. Grantee shall
not transfer, assign, ▇▇▇▇▇ ▇ ▇▇▇▇ or security interest in, pledge,
hypothecate, encumber or otherwise dispose of any of the Unvested
Shares, except as permitted by this Agreement.
11. ADJUSTMENTS. The number of Unvested Shares shall be automatically
adjusted to reflect any stock split, stock dividend, recapitalization, merger,
consolidation, reorganization, combination or exchanges of shares or other
similar event affecting the Company's outstanding Common Stock subsequent to the
date of this Agreement. If Grantee becomes entitled to receive any additional
shares of Common Stock or other securities ("ADDITIONAL SECURITIES") in respect
of the Unvested Shares, the total number of Unvested Shares shall be equal to
the sum of (i) the initial Unvested Shares; and, (ii) the number of Additional
Securities issued or issuable in respect of the initial Unvested Shares and any
Additional Securities previously issued to Grantee.
12. RESTRICTIVE LEGENDS AND STOP-TRANSFER ORDERS.
(a) Legends. To the extent that stock certificate(s)
representing Unvested Shares are issued in physical form rather than
through book entry through the Company's transfer agent, Grantee
understands and agrees that the Company will place the legends set forth
below or similar legends on any stock certificate(s) evidencing the
Common Stock, together with any other legends that may be required by
state or U.S. Federal securities laws, the Company's Certificate of
Incorporation or Bylaws, any other agreement between Grantee and the
Company or any agreement between Grantee and any third party:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIONS ON PUBLIC RESALE AND TRANSFER, AS SET FORTH
IN A RESTRICTED STOCK AWARD AGREEMENT BETWEEN THE ISSUER AND THE
ORIGINAL HOLDER OF THESE SHARES. SUCH PUBLIC SALE AND TRANSFER
RESTRICTIONS ARE BINDING ON TRANSFEREES OF THESE SHARES.
The above legend shall be removed at such time as the shares in question
are no longer subject to restrictions on public resale and transfer
pursuant to this Agreement. Any legends required by applicable state or
U.S. Federal securities laws shall be removed at such time as such
legends are no longer required.
(b) Stop-Transfer Instructions. Grantee agrees that, to ensure
compliance with the restrictions imposed by this Agreement, the Company
may issue appropriate "stop-transfer" instructions to its transfer
agent, if any, and if the Company transfers its own securities, it may
make appropriate notations to the same effect in its own records.
EMULEX CORPORATION RESTRICTED STOCK AWARD AGREEMENT
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(c) Refusal to Transfer. The Company will not be required (i) to
transfer on its books any shares of Common Stock that have been sold or
otherwise transferred in violation of any of the provisions of this
Agreement or (ii) to treat as owner of such shares, or to accord the
right to vote or pay dividends to any purchaser or other transferee to
whom such shares have been so transferred.
13. MODIFICATION. The Agreement may not be modified except in writing
signed by both parties.
14. PLAN. Except as otherwise provided herein, or unless the context
clearly indicates otherwise, capitalized terms herein which are defined in the
Plan have the same definitions as provided in the Plan. The terms and provisions
of the Plan are incorporated herein by reference, and the Grantee hereby
acknowledges receiving a copy of the Plan. In the event of a conflict or
inconsistency between the terms and provisions of the Plan and the provisions of
this Agreement, the Plan shall govern and control.
15. INTERPRETATION. Any dispute regarding the interpretation of this
Agreement shall be submitted by Grantee or the Company to the Plan Administrator
for review. The resolution of such a dispute by the Plan Administrator shall be
final and binding on the Company and Grantee.
16. ENTIRE AGREEMENT. The Plan and the Certificate are incorporated
herein by reference. This Agreement, the Certificate and the Plan constitute the
entire agreement of the parties and supercede all prior undertakings and
agreements with respect to the subject matter hereof. If any inconsistency
should exist between the nondiscretionary terms and conditions of this
Agreement, the Certificate and the Plan, the Plan shall govern and control.
17. NOTICES. Any notice required to be given or delivered to the Company
under the terms of this Agreement shall be in writing and addressed to the
Corporate Secretary of the Company at its principal corporate offices. Any
notice required to be given or delivered to Grantee shall be in writing and
addressed to Grantee at the address indicated on the signature page hereof or to
such other address as such party may designate in writing from time to time to
the Company. All notices shall be deemed to have been given or delivered upon:
(a) personal delivery; (b) three (3) days after deposit in the United States
mail by certified or registered mail (return receipt requested); (c) one (1)
business day after deposit with any return receipt express courier (prepaid); or
(d) one (1) business day after transmission by facsimile or telecopier.
18. SUCCESSORS AND ASSIGNS. The Company may assign any of its rights
under this Agreement. This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of the Company. Subject to the
restrictions on transfer set forth herein, this Agreement shall be binding upon
Grantee and Grantee's heirs, executors, administrators, legal representatives,
successors and assigns.
19. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without giving effect to its
conflict of law principles. If any provision of this Agreement is determined by
a court of law to be illegal or unenforceable, then such provision will be
enforced to the maximum extent possible and the other provisions will remain
fully effective and enforceable.
20. ACCEPTANCE. Grantee hereby acknowledges receipt of a copy of the
Plan and this Agreement. Grantee has read and understands the terms and
provisions thereof, and accepts the Award subject to all the terms and
conditions of the Plan and this Agreement. Grantee acknowledges that there may
be adverse tax consequences upon exercise of the Award or disposition of the
Shares and that Grantee should consult a tax advisor prior to such exercise or
disposition.
EMULEX CORPORATION RESTRICTED STOCK AWARD AGREEMENT
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EXHIBIT A
EMULEX CORPORATION 2005 EQUITY INCENTIVE PLAN