EXHIBIT 10.45
PYRAMID BREWERIES, INC.
RESTRICTED STOCK AWARD AGREEMENT
Pyramid Breweries, Inc., a Washington corporation (the "Company"), has
granted you an award of shares of restricted common stock of the Company (the
"Stock Award"). This Stock Award is made outside of, but subject to the
applicable terms and conditions of, the Company's 2004 Equity Incentive Plan
(the "Plan").
The terms of the Stock Award are as set forth in this Restricted Stock
Award Agreement (the "Agreement") and, to the extent not inconsistent with this
Agreement, the Plan. Capitalized terms that are not defined in this Agreement
have the meanings given to them in the Plan, a copy of which is attached. The
basic terms of the Stock Award are summarized as follows:
GRANT DATE: _______________
NUMBER OF SHARES _______________
FAIR MARKET VALUE PER SHARE ON GRANT DATE: $____
VESTING COMMENCEMENT DATE: _______________
1. VESTING
(a) The Stock Award is subject to forfeiture upon termination of your
Service with the Company (or a Parent or Subsidiary) as described below. The
Stock Award will vest and no longer be subject to forfeiture according to the
following schedule:
Period of Your Continuous Service With the Company Portion of Stock Award
(or a Parent or Subsidiary) from the Vesting No Longer Subject
Commencement Date to Forfeiture
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(b) Shares that have not vested and remain subject to forfeiture under the
preceding schedule are referred to herein as "Unvested Shares." The Unvested
Shares will vest (and to the extent so vested cease to be Unvested Shares
remaining subject to forfeiture) in accordance with the above schedule.
Collectively, the Unvested Shares and any vested shares are referred to herein
as the "Shares."
(c) Early lapse of the forfeiture restrictions may occur under certain
circumstances as described below.
2. TERMINATION OF SERVICE
If your Service terminates for any reason, any portion of this Stock Award
that has not vested as provided in Sections 1 and 3 of this Agreement will
immediately terminate. You will be required to forfeit all Unvested Shares upon
such occurrence without the payment of any further consideration to you. As
security for the faithful performance by you of the terms of this Agreement and
to ensure the availability for delivery of Unvested Shares upon forfeiture, the
Company or its counsel shall hold all certificates representing Unvested Shares,
together with an adequate number of undated and otherwise blank stock powers
executed by you. The Company shall have the right to cause transfers of such
Unvested Shares to be effected pursuant to this Section 2.
3. ACCELERATED VESTING
[__________].
4. CONSIDERATION
The Company acknowledges your payment of full consideration for this Stock
Award in the form of services previously rendered (in an amount equal to no less
than the aggregate par value of the Shares) and services to be rendered
hereafter to the Company.
5. TRANSFER RESTRICTIONS
Unvested Shares may not be sold, transferred, assigned, pledged, encumbered
or otherwise disposed of in contravention of the provisions of this Agreement.
6. SECURITIES LAW COMPLIANCE
Notwithstanding any other provision of this Agreement, you may not sell the
Shares unless they are registered under the Securities Act of 1933, as amended
(the "Securities Act"), or, if such Shares are not then so registered, the
Company has determined that such sale would be exempt from the registration
requirements of the Securities Act. The sale of the Shares must also comply with
other applicable laws and regulations governing the Shares, and you may not sell
the Shares if the Company determines that such sale would not be in material
compliance with such laws and regulations.
7. SECTION 83(B) ELECTION FOR STOCK AWARD
You understand that under Section 83(a) of the Code, the excess of the Fair
Market Value of the Unvested Shares on the date the forfeiture restrictions
lapse over the purchase price, if any, paid for such Shares will be taxed, on
the date such forfeiture restrictions lapse, as ordinary income subject to
payroll and withholding tax and tax reporting, as applicable. For this purpose,
the term "forfeiture restrictions" means the right of the Company to receive
back any Unvested Shares upon termination of your Services. You understand that
you may elect under Section 83(b) of the Code to be taxed at the time the
Unvested Shares are acquired, rather than when and as the Unvested Shares cease
to be subject to the forfeiture restrictions. Such election (an "83(b)
Election") must be filed with the Internal Revenue
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Service WITHIN 30 DAYS from the Grant Date of the Stock Award. Even if the Fair
Market Value of the Unvested Shares on the Grant Date equals the purchase price,
if any, (and thus no tax is payable), you must file the election within the
30-day period to avoid the risk of adverse tax consequences in the future.
You understand that (a) you will not be entitled to a deduction for any
ordinary income previously recognized as a result of the 83(b) Election if the
Unvested Shares are subsequently forfeited to the Company and (b) the 83(b)
Election may cause you to recognize more ordinary income than you would have
otherwise recognized if the value of the Unvested Shares subsequently declines.
THE FORM FOR MAKING AN 83(b) ELECTION IS ATTACHED TO THIS AGREEMENT AS
EXHIBIT B. YOU UNDERSTAND THAT FAILURE TO FILE SUCH AN ELECTION WITHIN THE
30-DAY PERIOD MAY RESULT IN THE RECOGNITION OF ORDINARY INCOME BY YOU AS THE
FORFEITURE RESTRICTIONS LAPSE. You further understand that an additional copy of
such election form should be filed with your federal income tax return for the
calendar year in which the date of this Agreement falls. You acknowledge that
the foregoing is only a summary of the federal income tax laws that apply to the
purchase of the Unvested Shares under this Agreement and does not purport to be
complete. YOU FURTHER ACKNOWLEDGE THAT THE COMPANY HAS DIRECTED YOU TO SEEK
INDEPENDENT ADVICE REGARDING THE APPLICABLE PROVISIONS OF THE CODE AND THE
INCOME TAX LAWS OF ANY MUNICIPALITY OR STATE IN WHICH YOU MAY RESIDE.
You agree to execute and deliver to the Company with this Agreement a copy
of the Acknowledgment and Statement of Decision Regarding Section 83(b) Election
(the "Acknowledgment") attached hereto as Exhibit A. You further agree that you
will execute and deliver to the Company with this Agreement a copy of the 83(b)
Election attached hereto as Exhibit B if you choose to make such an election.
8. LEGENDS
You understand and agree that the Shares are subject to forfeiture as set
forth in this Agreement. You understand that the certificate(s) representing the
Shares may bear legends in substantially the following form:
"The securities represented by this certificate are subject to certain
forfeiture rights held by the issuer and/or its assignee(s) and may not be sold,
assigned, transferred, encumbered or in any way disposed of except as set forth
in a stock award agreement between the issuer and the original purchaser of
these shares, a copy of which may be obtained at the principal office of the
issuer. Such transfer restrictions and/or forfeiture rights are binding on
transferees of these shares."
"The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended (the "Act"), or under applicable
state securities laws. These securities are subject to restrictions on
transferability and resale and may not be
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transferred or resold except as permitted under the Act and applicable state
securities laws, pursuant to registration or exemption therefrom. Investors
should be aware that they may be required to bear the financial risks of this
investment for an indefinite period of time. The issuer of these securities may
require an opinion of counsel in form and substance satisfactory to the issuer
to the effect that the proposed transfer or resale is in compliance with the Act
and any applicable state securities laws."
9. STOP-TRANSFER NOTICES
You understand and agree that, in order to ensure compliance with the
restrictions referred to in this Agreement, the Company may issue appropriate
"stop-transfer" instructions to its transfer agent, if any, and that, if the
Company transfers its own securities, it may make appropriate notations to the
same effect in its own records. The Company will not be required to (a) transfer
on its books any Shares that have been sold or transferred in violation of the
provisions of this Agreement or (b) treat as the owner of the Shares, or
otherwise accord voting, dividend or liquidation rights to, any transferee to
whom the Shares have been transferred in contravention of this Agreement.
10. INDEPENDENT TAX ADVICE
You acknowledge that determining the actual tax consequences to you of
receiving or disposing of the Shares may be complicated. These tax consequences
will depend, in part, on your specific situation and may also depend on the
resolution of currently uncertain tax law and other variables not within the
control of the Company. You are aware that you should consult a competent and
independent tax advisor for a full understanding of the specific tax
consequences to you of receiving or disposing of the Shares. Prior to executing
this Agreement, you either have consulted with a competent tax advisor
independent of the Company to obtain tax advice concerning the Shares in light
of your specific situation or have had the opportunity to consult with such a
tax advisor but chose not to do so.
11. WITHHOLDING AND DISPOSITION OF SHARES
You agree to make arrangements satisfactory to the Company for the payment
of any federal, state, local or foreign withholding tax obligations that arise
either upon the Grant Date or as the forfeiture restrictions on any Shares
lapse, and you acknowledge that the Company shall not have any obligation to
deliver the Shares until you have made such arrangements. Notwithstanding the
previous sentence, you acknowledge and agree that the Company and any Parent or
Subsidiary has the right to deduct from payments of any kind otherwise due to
you any federal, state or local taxes of any kind required by law to be withheld
with respect this Stock Award.
12. GENERAL PROVISIONS
12.1 ASSIGNMENT. The Company may assign its rights under this Agreement at
any time, whether or not such rights are then exercisable, to any person or
entity selected by the Company's Board of Directors, including, without
limitation, one or more stockholders of the Company.
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12.2 NOTICES. Any notice required in connection with this Agreement will be
given in writing and will be deemed effective upon personal delivery or upon
deposit in the U.S. mail, registered or certified, postage prepaid and addressed
to the party entitled to such notice by 10 days' advance written notice under
this Section 12.2 to all other parties to this Agreement.
12.3 NO WAIVER. No waiver of any provision of this Agreement will be valid
unless in writing and signed by the person against whom such waiver is sought to
be enforced, nor will failure to enforce any right hereunder constitute a
continuing waiver of the same or a waiver of any other right hereunder.
12.4 UNDERTAKING. You hereby agree to take whatever additional action and
execute whatever additional documents the Company may deem necessary or
advisable in order to carry out or effect one or more of the obligations or
restrictions imposed on either you or the Shares pursuant to the express
provisions of this Agreement.
12.5 AGREEMENT IS ENTIRE CONTRACT. This Agreement constitutes the entire
contract between the parties hereto with regard to the subject matter hereof.
12.6 SUCCESSORS AND ASSIGNS. The provisions of this Agreement will inure to
the benefit of, and be binding on, the Company and its successors and assigns
and you and your legal representatives, heirs, legatees, distributees, assigns
and transferees by operation of law, whether or not any such person will have
become a party to this Agreement and agreed in writing to join herein and be
bound by the terms and conditions hereof.
12.7 NO EMPLOYMENT OR SERVICE CONTRACT. This Agreement does not confer upon
you any right with respect to continuance of employment by the Company or any
Parent or Subsidiary, nor does it interfere in any way with the right of your
employer to terminate your employment or services at any time.
12.8 STOCKHOLDER OF RECORD. As of the Grant Date, you will be recorded as a
stockholder of the Company and will have, subject to the provisions of this
Agreement, all the rights of a stockholder with respect to the Shares.
12.9 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but which, upon
execution, will constitute one and the same instrument.
12.10 GOVERNING LAW. This Agreement will be construed and administered in
accordance with and governed by the laws of the State of Washington.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the day and
year indicated above on the first page of this Agreement as the Grant Date.
PYRAMID BREWERIES, INC.
By:
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EXHIBIT A
ACKNOWLEDGMENT AND STATEMENT OF DECISION REGARDING SECTION 83(B) ELECTION
The undersigned, a recipient of ___________ shares of common stock of
Pyramid Breweries, Inc., a Washington corporation (the "Company"), pursuant to a
Stock Award, hereby states as follows:
1. The undersigned acknowledges receipt of a copy of the Stock Award
Agreement (the "Agreement") which the undersigned has carefully reviewed.
2. The undersigned either (check and complete as applicable):
(a) ____ has consulted, and has been fully advised by, the
undersigned's own tax advisor regarding the federal, state
and local tax consequences of receiving the Stock Award and
particularly regarding the advisability of making an
election pursuant to Section 83(b) of the Internal Revenue
Code of 1986, as amended (the "Code"), and pursuant to the
corresponding provisions, if any, of applicable state law,
or
(b) ____ has knowingly chosen not to consult such a tax advisor.
3. The undersigned hereby states that the undersigned has decided (check
as applicable)
(a) ____ to make an election pursuant to Section 83(b) of the Code,
and is submitting to the Company, together with the
undersigned's executed Stock Award Agreement, an executed
form entitled "Election Under Section 83(b) of the Internal
Revenue Code of 1986", or
(b) ____ not to make an election pursuant to Section 83(b) of the
Code.
4. Neither the Company nor any representative of the Company has made any
warranty or representation to the undersigned with respect to the tax
consequences of the undersigned's receipt of the shares or of the making or
failure to make an election pursuant to Section 83(b) of the Code or the
corresponding provisions, if any, of applicable state law.
Dated:
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EXHIBIT B
ELECTION UNDER SECTION 83(B)
OF THE INTERNAL REVENUE CODE OF 1986
The undersigned taxpayer hereby elects, pursuant to Section 83(b) of the
Internal Revenue Code, to include in taxpayer's gross income for the current
taxable year the amount of any compensation taxable to taxpayer in connection
with taxpayer's receipt of the property described below:
1. The name, address, taxpayer identification number and taxable year of the
undersigned are as follows:
NAME OF TAXPAYER: _______________________
ADDRESS: _______________________________
_______________________________
IDENTIFICATION NO. OF TAXPAYER: ________
TAXABLE YEAR: ___________
2. The property with respect to which the election is made is described as
follows: __________ shares of the common stock of Pyramid Breweries, Inc.,
a Washington corporation (the "Company").
3. The date on which the property was transferred is: _____________
4. The property is subject to the following restrictions:
5. The aggregate fair market value at the time of transfer, determined without
regard to any restriction other than a restriction which by its terms will
never lapse, of such property is: $______.
6. The amount (if any) paid for such property is: $0
The undersigned has submitted a copy of this statement to the person for
whom the services were performed in connection with the undersigned's receipt of
the above-described property. The undersigned is the person performing the
services in connection with the transfer of said property.
The undersigned understands that the foregoing election may not be revoked
except with the consent of the Commissioner.
Dated:
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DISTRIBUTION OF COPIES
1. File original with the Internal Revenue Service Center where the taxpayer's
income tax return will be filed. Filing must be made by no later than 30
days after the date the property was transferred.
2. Attach one copy to the taxpayer's income tax return for the taxable year in
which the property was transferred.
3. Mail one copy to the Company at the following address:
Pyramid Breweries Inc.
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