MEMC ELECTRONIC MATERIALS, INC. RESTRICTED STOCK AWARD AGREEMENT For Officers (Performance Vesting)
Exhibit
99.5
MEMC
ELECTRONIC MATERIALS, INC.
For
Officers (Performance Vesting)
2010
Equity Incentive Plan
THIS AGREEMENT is effective (DATE)
between MEMC Electronic Materials, Inc. (the “Company”) and (NAME) (the
“Participant”).
WHEREAS, the Company has adopted and
maintains the MEMC Electronic Materials, Inc. 2010 Equity Incentive Plan (the
“Plan”) to promote the interests of the Company and its stockholders by
providing the directors, key employees and consultants of the Company and its
Subsidiaries with an appropriate incentive to encourage them to continue in the
service and employ of the Company or Subsidiary and to improve the growth and
profitability of the Company; and
WHEREAS, the Plan provides for the
grant to Participants in the Plan of Restricted Stock Awards, and the Company
wishes to grant Restricted Stock Awards to certain officers in consideration for
their Employment with the Company.
NOW, THEREFORE, in consideration of the
mutual promises set forth in this Agreement, the parties hereto hereby agree as
follows:
1. Grant
of Restricted Stock Awards. Subject to the terms and
conditions contained herein and in the Plan, the Company hereby grants to the
Participant (NUMBER)
Restricted Stock Awards. Each Restricted Stock Award represents the
obligation of the Company to transfer one share of Common Stock to the
Participant at the time provided in this Agreement, provided such Restricted
Stock Award is vested at such time.
2. Incorporation
of Plan. All terms,
conditions and restrictions of the Plan are incorporated herein and made part
hereof as if stated herein. If there is any conflict between the
terms and conditions of the Plan and this Agreement, the terms and conditions of
the Plan, as interpreted by the Compensation Committee (the “Committee”), shall
govern. All capitalized terms used herein shall have the meaning
given to such terms in the Plan.
3. Bookkeeping
Account. The Company shall record the number of Restricted
Stock Awards granted hereunder to a bookkeeping account for the Participant (the
“Restricted Stock Account”). The Participant’s Restricted Stock
Account shall be debited by the number of Restricted Stock Awards, if any,
forfeited in accordance with this Agreement and by the number of shares of
Common Stock transferred to the Participant with respect to such Restricted
Stock Awards. The Participant’s Restricted Stock Account also shall
be adjusted from time to time for stock dividends, stock splits and other such
transactions in accordance with the Plan.
4. Terms
and Conditions of Restricted Stock Awards. The Restricted
Stock Awards evidenced hereby are subject to the following terms and
conditions:
|
|
(a)
|
Vesting. The
Restricted Stock Awards granted to the Participant hereby shall become
vested in accordance with the vesting schedule set forth as Schedule I
hereto, which schedule incorporates certain performance
goals. All of the Restricted Stock Awards granted to the
Participant hereby shall become vested upon the death or Total Disability
of the Participant.
|
|
|
Notwithstanding
the foregoing, unless the Committee otherwise determines at a later date,
if within the two year period following a Change in Control the
Participant’s Employment is terminated by the Company without Cause or by
the Participant for Good Reason, all of the Restricted Stock Awards
granted to the Participant hereby shall become vested as of the effective
date of the termination of the Participant’s Employment with the
Company.
|
|
|
(b)
|
Forfeiture
Upon Termination
of Service. Except as otherwise provided in Section 4(a)
above, upon cessation of the Participant’s Employment with the Company for
any reason before (DATE), the number of shares
of Restricted Stock Awards subject to this Agreement that have not become
vested shall be forfeited, except as the Committee may otherwise determine
in its sole discretion.
|
5. Distribution
of Common Stock. Subject to the provisions below, as soon as
practical after each vesting date, the Company shall transfer shares of Common
Stock to the Participant equal in number to the Restricted Stock Awards credited
to the Participant’s Restricted Stock Account that have vested and were not
previously transferred to Participant. Such transfer shall be made
within 30 days following each vesting date. Participant shall pay all
applicable federal, state, local and foreign withholding taxes that the Company
is required to withhold at any time with respect to the Restricted Stock
Awards. Such payment shall be made in full, at Participant’s
election, in cash, check or shares of Common Stock, by withholding from the
Participant’s next normal payroll check, by the tendering of a check by the
Participant for the required withholding amount or by the tender of shares of
the Company’s Common Stock (including shares then vesting under this Restricted
Stock Award). Shares of Common Stock tendered as payment of required
withholding shall be valued at the Fair Market Value of the Company’s Common
Stock on the date such withholding obligation arises.
6. Source
of Payment. Shares of Common Stock transferable to the
Participant, or upon death to his or her beneficiary, under this Agreement shall
be authorized but unissued shares. The Company shall have no duties to segregate
or set aside any assets to secure the Participant’s right to receive shares of
Common Stock under this Agreement. The Participant shall not have any
rights with respect to transfer of shares of Common Stock under this Agreement
other than the unsecured right to receive shares of Common Stock from the
Company.
2
7. Restricted
Stock Awards Non-Transferable. Restricted Stock Awards awarded
hereunder shall not be transferable by the Participant. Except as may
be required by the federal income tax withholding provisions of the Code or by
the tax laws of any State, the interests of the Participant and his or her
beneficiaries under this Agreement are not subject to the claims of their
creditors and may not be voluntarily or involuntarily sold, transferred,
alienated, assigned, pledged, anticipated, or encumbered. Any attempt
by the Participant or a beneficiary to sell, transfer, alienate, assign, pledge,
anticipate, encumber, charge or otherwise dispose of any right to benefits
payable hereunder shall be void.
8. Shareholder
Rights. The Participant shall not have any of the rights of a
shareholder of the Company with respect to Restricted Stock Awards, such as the
right to vote.
9. Death
Benefits. In the event of the death of the Participant, the
Company shall transfer shares of Common Stock equal in number to the vested
Restricted Awards, if any, credited to the Participant’s Restricted Stock
Account to the Participant’s legal representative or
beneficiaries. Such transfer shall be made within 30 days following
death.
The Participant may designate a
beneficiary or beneficiaries (contingently, consecutively, or successively) of
such death benefit and, from time to time, may change his or her designated
beneficiary. A beneficiary may be a trust. A beneficiary
designation shall be made in writing in a form prescribed by the Company and
delivered to the Company while the Participant is alive. If there is
no designated beneficiary surviving at the death of the Participant, payment of
any death benefit of the Participant shall be made to the surviving spouse of
the Participant, if any, and if no such surviving spouse to the estate of the
Participant.
10. Integration. This
Agreement, and the other documents referred to herein or delivered pursuant
hereto which form a part hereof contain the entire understanding of the parties
with respect to its subject matter. There are no restrictions,
agreements, promises, representations, warranties, covenants or undertakings
with respect to the subject matter hereof other than those expressly set forth
herein. This Agreement, including without limitation the Plan,
supersedes all prior agreements and understandings between the parties with
respect to its subject matter.
11. Governing
Law. This Agreement
shall be governed by and construed and enforced in accordance with the laws of
the State of Delaware, without regard to the provisions governing conflict of
laws.
12. Amendment. This
Agreement may be amended by mutual consent of the parties hereto by written
agreement.
13. Participant
Acknowledgment. By accepting this
grant, the Participant acknowledges receipt of a copy of the Plan, and
acknowledges that all decisions, determinations and interpretations of the
Committee in respect of the Plan, this Agreement and the Restricted Stock Awards
granted hereunder shall be final and conclusive.
|
MEMC
ELECTRONIC MATERIALS, INC.
|
|
|
By: ▇▇▇
▇▇▇▇▇▇▇▇ (Interim)
|
|
|
Title: Senior
Vice President, Human Resources
|
3
SCHEDULE
I
4