Exhibit (d)(2)
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NETPLIANCE, INC.
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT (this "Agreement"), effective as of ____________, 2001, is
made and entered into by and between Netpliance, Inc., a Delaware corporation
(the "Company"), and ___________________ (the "Grantee").
W I T N E S S E T H:
WHEREAS, the Company has implemented the Netpliance Amended and Restated
1999 Stock Option and Restricted Stock Plan (the "Plan"), which was adopted by
the Company's Board of Directors (the "Board") and approved by the Company's
stockholders, and which provides for the grant of shares of Common Stock, $.01
par value, of the Company (the "Common Stock") to certain selected officers, key
employees, directors and consultants of the Company or its subsidiaries;
WHEREAS, the committee appointed by the Board to administer the Plan (the
"Committee") has selected the Grantee to participate in the Plan and has awarded
the restricted stock described in this Agreement (the "Restricted Stock") to the
Grantee;
WHEREAS, the restricted stock provided for under the Plan are intended to
comply with the requirements of Rule 16b-3 under the Securities Exchange Act of
1934, as amended; and
WHEREAS, the parties hereto desire to evidence in writing the terms and
conditions of the Restricted Stock.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements herein contained, and as an inducement to the Grantee
to continue in the employment or service to the Company or its subsidiaries and
to promote the success of the business of the Company and its subsidiaries, the
parties hereby agree as follows:
1. Grant of Restricted Stock. The Company hereby grants to the Grantee,
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upon the terms and subject to the conditions, limitations and restrictions set
forth in the Plan and in this Agreement, ____________ shares of Common Stock
(the "Shares"), effective as of the date of this Agreement (the "Date of
Grant"). The Grantee hereby accepts the Shares from the Company.
2. Vesting. Except as otherwise provided for by the Plan or otherwise
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herein, the Shares shall vest ratably in three (3) equal annual increments
commencing on the first anniversary of the Date of Grant.
Notwithstanding the foregoing, in the event of a Change of Control (as
defined below), to the extent the Shares are not then fully vested, one-third of
the Shares shall immediately vest and become nonforfeitable. Subsequent to any
Change of Control, the Shares shall continue to vest in thirds of the Shares
originally subject to this Agreement on each anniversary of the Date of
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Grant until fully vested. For purposes hereof, "Change of Control" means the
occurrence of any of the following events, as a result of one transaction or a
series of transactions: (a) any "person" (as that term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), but excluding the Company, its affiliates and any qualified or non-
qualified plan maintained by the Company or its affiliates) becomes the
"beneficial owner" (as defined in Rule 13d-3 promulgated under the Exchange
Act), directly or indirectly, of securities of the Company representing more
than 50% of the combined voting power of the Company's then outstanding
securities; (b) individuals who constitute a majority of the Board of Directors
of the Company immediately prior to a contested election for positions on the
Board cease to constitute a majority as a result of such contested election; (c)
the Company is combined (by merger, share exchange, consolidation, or otherwise)
with another corporation and as a result of such combination, less than 50% of
the outstanding securities of the surviving or resulting corporation are owned
in the aggregate by the former shareholders of the Company; (d) the Company
sells, leases, or otherwise transfers all or substantially all of its properties
or assets to another person or entity; or (e) a dissolution or liquidation of
the Company or a partial liquidation involving 50% or more of the assets of the
Company.
3. Forfeiture of Shares. Upon termination of the Grantee's employment,
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directorship or consulting relationship with the Company or its subsidiaries for
any reason, any Shares that have not vested will be immediately forfeited,
without any further action by the Company. Notwithstanding the immediately
preceding sentence, (i) if the Grantee is terminated for dishonesty or other
acts detrimental to the interests of the Company or its subsidiaries or (ii) if
the Grantee competes with the Company or its subsidiaries or solicits the
Company's or its subsidiaries' employees to leave the employ of the Company
during the Grantee's employment or service with the Company or within the 18
month period after the Grantee is terminated, the Committee may, by written
notice to the Grantee, immediately cause the forfeiture of all of the Shares,
whether vested or not. Shares that are forfeited must be immediately transferred
to the Company without any payment by the Company; the Company will have the
full right to cancel certificates evidencing such forfeited Shares automatically
upon such forfeiture, whether or not such certificates have been surrendered to
the Company. Following such forfeiture, the Grantee will have no further rights
with respect to such forfeited Shares. The right of the Grantee to receive any
benefits from the Company or its subsidiaries after termination of employment or
service to the Company or its subsidiaries by reason of employment contract,
severance arrangement or otherwise shall not affect the determination that the
Grantee's employment or service has been terminated with the Company or its
subsidiaries for purposes of this Agreement.
4. Election Under Section 83(b). The Grantee understands that, under
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Section 83 of the Internal Revenue Code of 1986, as amended, and any applicable
regulations promulgated thereunder (the "Code"), the difference between the
purchase price paid for the Shares and their fair market value at the time any
forfeiture restrictions applicable to such Shares lapse may be reportable as
ordinary income at that time. The Grantee understands that the Grantee should
consult with the Grantee's tax advisor regarding the advisability of filing with
the Internal Revenue Service an election under Section 83(b) of the Code. A
blank Section 83(b) election is attached to this Agreement. This election must
be filed no later than 30 days after the date of this Agreement. Shares are
nontransferable and subject to a substantial risk of forfeiture if they are
unvested and are subject to forfeiture if the Grantee's employment or service
with the Company or its
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subsidiaries terminates. The Grantee acknowledges that the Grantee has been
advised to consult with a tax advisor prior to the grant of the Shares regarding
the tax consequences to the Grantee of the receipt of the Shares. AN ELECTION
UNDER SECTION 83(b) MUST BE FILED WITHIN 30 DAYS AFTER THE DATE OF THIS
AGREEMENT. THE GRANTEE ACKNOWLEDGES THAT TIMELY FILING OF A SECTION 83(b)
ELECTION IS THE GRANTEE'S SOLE RESPONSIBILITY, EVEN IF THE GRANTEE REQUESTS THE
COMPANY OR ITS REPRESENTATIVE TO FILE SUCH ELECTION ON HIS OR HER BEHALF.
5. Tax Withholding. Any provision of this Agreement to the contrary
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notwithstanding, the Company may take such steps as it deems necessary or
desirable for the withholding of any taxes that it is required by law or
regulation of any governmental authority, federal, state or local, domestic or
foreign, to withhold in connection with the grant or vesting of any of the
Shares subject hereto.
6. Transfer of Shares. The Grantee shall not, directly or indirectly,
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sell, transfer, pledge, encumber or hypothecate ("Transfer") any unvested
Shares. Any such Transfer will be void and no force or effect, and will result
in the immediate forfeiture of all Shares, whether vested or not. The Company
may elect to hold any certificates representing the Shares until after the
Shares have vested. Once the Shares vest, upon the request of the Grantee, the
Company will deliver to the Grantee a stock certificate representing the Shares
that have vested. If a certificate representing Shares has been issued, the
certificate will be affixed with a legend setting forth the restrictions
applicable to the Transfer of such Shares. The Shares will not be liable for or
subject to, in whole or in part, the debts, contracts, liabilities or torts of
the Grantee, nor shall they be subject to garnishment, attachment, execution,
levy or other legal or equitable process.
7. Certain Legal Restrictions. The Company shall have no obligation to
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the Grantee, express or implied, to list, register or otherwise qualify any of
the Shares. The Shares may not be transferred except in accordance with
applicable federal or state securities laws. At the Company's option, the
certificate evidencing Shares issued to the Grantee may be legended as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE
APPLICABLE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION AND MAY
NOT BE SOLD, ASSIGNED, TRANSFERRED OR PLEDGED EXCEPT IN COMPLIANCE
WITH THE REQUIREMENTS OF SUCH ACT AND THE APPLICABLE SECURITIES LAWS
OF ANY STATE OR OTHER JURISDICTION.
8. Plan Incorporated. The Grantee accepts the Shares subject to all the
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provisions of the Plan, which are incorporated into this Agreement, including
the provisions that authorize the Committee to administer and interpret the Plan
and which provide that the Committee's decisions, determinations and
interpretations with respect to the Plan are final and conclusive on all persons
affected thereby. Except as otherwise set forth in this Agreement, terms defined
in the Plan have the same meanings herein.
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9. Miscellaneous.
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(a) Nothing contained in this Agreement shall affect the right of the
Company to terminate the Grantee's employment or service to the Company at
any time, with or without cause, or shall be deemed to create any rights to
employment or continuance as a director or consultant of the Company on the
part of the Grantee.
(b) The rights and obligations arising under this Agreement are not
intended to and do not affect the employment relationship or other
relationship that otherwise exists between the Company and the Grantee,
whether such relationship is at will or defined by an employment contract,
or otherwise. Moreover, this Agreement is not intended to and does not
amend any existing employment or consulting contract between the Company
and the Grantee.
(c) Whenever any notice is required or permitted hereunder, such
notice must be in writing and personally delivered or sent by mail. Any
notice to be given to the Company under the terms of this Agreement or any
delivery of the Shares to the Company shall be addressed to the Company at
its principal executive offices, and any notice to be given to the Grantee
shall be addressed to the Grantee at the address set forth beneath his or
her signature hereto, or at such other address for a party as such party
may hereafter designate in writing to the other. Any such notice shall be
deemed to have been delivered on the date which it is personally delivered,
or, whether actually received or not, on the third business day after it is
deposited in the United States mail, certified or registered, postage
prepaid, addressed to the party who is to receive it at the above specified
address.
(d) Subject to the limitations in this Agreement on the
transferability by the Grantee of the Shares, this Agreement shall be
binding upon and inure to the benefit of the representatives, executors,
successors or beneficiaries of the parties hereto.
(e) THE INTERPRETATION, PERFORMANCE AND ENFORCEMENT OF THIS AGREEMENT
SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS AND THE UNITED STATES,
AS APPLICABLE, WITHOUT REFERENCE TO THE CONFLICT OF LAWS PROVISIONS
THEREOF.
(f) If any provision of this Agreement is declared or found to be
illegal, unenforceable or void, in whole or in part, then the parties shall
be relieved of all obligations arising under such provision, but only to
the extent that it is illegal, unenforceable or void, it being the intent
and agreement of the parties that this Agreement shall be deemed amended by
modifying such provision to the extent necessary to make it legal and
enforceable while preserving its intent or, if that is not possible, by
substituting therefor another provision that is legal and enforceable and
achieves the same objectives.
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(g) All section titles and captions in this Agreement are for
convenience only, shall not be deemed part of this Agreement, and in no way
shall define, limit, extend or describe the scope or intent of any
provisions of this Agreement.
(h) The parties shall execute all documents, provide all information,
and take or refrain from taking all actions as may be necessary or
appropriate to achieve the purposes of this Agreement.
(i) This Agreement constitutes the entire agreement among the parties
hereto pertaining to the subject matter hereof and supersedes all prior
agreements and understandings pertaining thereto.
(j) No failure by any party to insist upon the strict performance of
any covenant, duty, agreement or condition of this Agreement or to exercise
any right or remedy consequent upon a breach thereof shall constitute
waiver of any such breach or any other covenant, duty, agreement or
condition.
(k) This Agreement may be executed in counterparts, all of which
together shall constitute one agreement binding on all the parties hereto,
notwithstanding that all such parties are not signatories to the original
or the same counterpart.
(l) At any time and from time to time the Committee may execute an
instrument providing for modification of any outstanding shares of
restricted stock, provided that no such modification, extension or renewal
shall (i) impair the Shares in any respect without the consent of the
holder of the Shares or (ii) conflict with the provisions of Rule 16b-3.
Except as provided in the preceding sentence, no supplement, modification
or amendment of this Agreement or waiver of any provision of this Agreement
shall be binding unless executed in writing by all parties to this
Agreement. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provision of this
Agreement (regardless of whether similar), nor shall any such waiver
constitute a continuing waiver unless otherwise expressly provided.
(j) In addition to all other rights or remedies available at law or
in equity, the Company shall be entitled to injunctive and other equitable
relief to prevent or enjoin any violation of the provisions of this
Agreement.
(k) The Grantee's spouse joins this Agreement for the purpose of
agreeing to and accepting the terms of this Agreement and to bind any
community property interest he or she has or may have in the Shares, any
vested portion or any unvested portion of the Shares and any other shares
of Common Stock held by the Grantee.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
COMPANY:
NETPLIANCE, INC.
By:________________________________
Name:______________________________
Title:_____________________________
GRANTEE:
___________________________________
Name:______________________________
Address:___________________________
___________________________________
___________________________________
GRANTEE'S SPOUSE:
___________________________________
Name:______________________________
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Election to Include in Gross Income in Year
of Transfer of Property Pursuant to Section 83(b)
of the Internal Revenue Code
The undersigned (the "Taxpayer") hereby makes an election pursuant to Section
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83(b) of the Internal Revenue Code of 1986, as amended, with respect to the
property described below and supplies the following information in accordance
with the regulations promulgated thereunder:
1. The name, address and taxpayer identification number of the Taxpayer are:
______________________
______________________
______________________
Taxpayer I.D. No: _____________
2. Description of property with respect to which the election is being made:
i. ______ shares of the Common Stock, $.01 par value, of
Netpliance, Inc. (the "Shares")
ii. The Shares were transferred to the Taxpayer on May __, 2001.
The taxable year to which this election relates is calendar
year 2001.
iii. Nature of Restrictions to which the Shares are subject: If the
Taxpayer leaves the employment of Netpliance, Inc. (the
"Company"), the unvested portion of the Shares are subject to
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forfeiture.
iv. The fair market value at time of transfer (determined without
regard to any restrictions other than restrictions which by
their terms will never lapse) of the Shares with respect to
which this election is being made is $________ (the "Shares
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FMV").
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v. The consideration paid by the Taxpayer for the Shares is the
surrender of options to purchase __________ shares of the
Company's Common Stock, the value of which is equal to $0.00.
3. A copy of this statement has been furnished to all persons who are to
receive such a copy in the manner required under Treas. Reg. (S) 1.83-2(d).
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Executed: May ___, 2001.
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