THE EIGHTH AMENDED AND RESTATED 1998 EQUITY PARTICIPATION PLAN OF TEGAL CORPORATION RESTRICTED STOCK UNIT AWARD GRANT NOTICE AND RESTRICTED STOCK UNIT AWARD AGREEMENT
THE
EIGHTH AMENDED AND RESTATED 1998 EQUITY PARTICIPATION PLAN
OF
TEGAL CORPORATION
RESTRICTED
STOCK UNIT AWARD GRANT NOTICE AND
Tegal
Corporation (the “Company”), pursuant
to The Eighth Amended and Restated 1998 Equity Participation Plan of Tegal
Corporation (the “Plan”), hereby
grants to the holder listed below (“Holder”), the
number of Restricted Stock Units set forth below (the “Restricted
Stock Units”). The
Restricted Stock Units are subject to all of the terms and conditions as set
forth herein and in the Restricted Stock Unit Award Agreement attached hereto
as
Exhibit
A
(the
“Restricted
Stock Unit Agreement”) and
the
Plan, each of which are incorporated herein by reference. Unless otherwise
defined herein, the terms defined in the Plan shall have the same defined
meanings in this Grant Notice and the Restricted Stock Unit
Agreement.
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Holder:
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_________________
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Grant
Date:
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_________________
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Total
Number of Restricted Stock Units:
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_________________
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Vesting
Schedule:
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The
Restricted Stock Units shall fully vest upon the permanent relocation
of
Holder to Tegal’s headquarters.
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Distribution
Schedule:
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The
Restricted Stock Units shall be distributable in accordance with
Section
2.3 of the Restricted Stock Unit
Agreement.
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By
his or
her signature and the Company’s signature below, ▇▇▇▇▇▇ agrees to be bound by
the terms and conditions of the Plan, the Restricted Stock Unit Agreement and
this Grant Notice. Holder has reviewed the Restricted Stock Unit Agreement,
the
Plan and this Grant Notice in their entirety, has had an opportunity to obtain
the advice of counsel prior to executing this Grant Notice and fully understands
all provisions of this Grant Notice, the Restricted Stock Unit Agreement and
the
Plan. Holder hereby agrees to accept as binding, conclusive and final all
decisions or interpretations of the Administrator of the Plan upon any questions
arising under the Plan, this Grant Notice or the Restricted Stock Unit
Agreement.
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TEGAL
CORPORATION
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HOLDER:
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Print
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title:
President and Chief Executive Officer
Address: ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Petaluma,
California 94954
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2
EXHIBIT
A
TO
RESTRICTED STOCK UNIT AWARD GRANT NOTICE
Pursuant
to the Restricted Stock Unit Award Grant Notice (“Grant
Notice”) to
which
this Restricted Stock Unit Award Agreement (this “Agreement”) is attached,
Tegal Corporation (the “Company”) has
granted to Holder the number of Restricted Stock Units under The Seventh Amended
and Restated 1998 Equity Participation Plan of Tegal Corporation (the
“Plan”) indicated
in the Grant Notice.
ARTICLE
I
GENERAL
1.1 Defined
Terms.
Capitalized terms not specifically defined herein shall have the meanings
specified in the Plan and the Grant Notice.
1.2 Incorporation
of Terms of Plan.
The
Restricted Stock Units and the shares of Common Stock issuable with respect
thereto are subject to the terms and conditions of the Plan, which are
incorporated herein by reference.
ARTICLE
II
GRANT,
VESTING AND DISTRIBUTION OF RESTRICTED STOCK UNITS
2.1 Grant
of Restricted Stock Units.
In
consideration of Holder’s past and/or continued employment with or service to
the Company or its Subsidiaries and for other good and valuable consideration,
effective as of the Grant Date set forth in the Grant Notice (the “Grant
Date”), the
Company irrevocably grants to Holder an award of the number of Restricted Stock
Units indicated in the Grant Notice, subject to all of the terms and conditions
in the Plan and this Agreement. A Restricted Stock Unit shall represent the
right to receive a share of Common Stock at the time the Restricted Stock Unit
is available for distribution on a deferred basis in accordance with the terms
and conditions of the Plan and this Agreement.
2.2 Vesting
of Restricted Stock Units.
The
Restricted Stock Units shall vest in accordance with the vesting schedule set
forth in the Grant Notice. Unless and until the Restricted Stock Units have
vested in accordance with the vesting schedule set forth in the Grant Notice,
Holder will have no right to any distribution with respect to such Restricted
Stock Units. In the event of Holder’s Termination of Consultancy or Termination
of Employment prior to the vesting of all of the Restricted Stock Units, any
unvested Restricted Stock Units will terminate automatically and be forfeited
without further notice and at no cost to the Company.
2.3 Distribution
of Common Stock.
(a) Shares
of
Common Stock shall be distributed to Holder (or in the event of ▇▇▇▇▇▇’s death,
to his or her estate) with respect to such ▇▇▇▇▇▇’s vested Restricted Stock
Units granted to Holder pursuant to this Agreement, subject to the terms and
provisions of the Plan and this Agreement, commencing following the earliest
to
occur of the following events (each, a “Distribution
Event”):
(i) Holder’s
“separation from service” within the meaning of Section 409A(2)(A)(i) of the
Code and the Treasury Regulations thereunder; provided,
however,
that if
Holder is a “specified employee” at the time of Holder’s “separation from
service,” the “Distribution Event” for purposes of this Section 2.3(a)(i) shall
be the date that is six months after Holder’s “separation from service” (or, if
earlier, the date of Holder’s death). For purposes of this Section 2.3(a)(i),
Holder shall be a “specified employee” if Holder is a key employee (as defined
in Section 416(i) of the Code without regard to paragraph (5) thereof) of the
Company and any stock of the Company is publicly-traded on an established
securities market or otherwise, as determined under Section 409A(a)(2)(B)(i)
of
the Code and the Treasury Regulations thereunder;
(ii) The
date
Holder becomes “disabled” within the meaning of Section 409A(2)(C) of the Code
and the Treasury Regulations thereunder;
(iii) ▇▇▇▇▇▇’s
death;
(iv) the
date
immediately prior to a Change in Control, so long as such “Change in Control”
constitutes a change in the ownership or effective control of the Company,
or in
the ownership of a substantial portion of the assets of the Company within
the
meaning of Section 409A(2)(A)(v) of the Code and the Treasury Regulations
thereunder; or
(v) _________________.
(b) Subject
to Sections 2.3(a) and 2.4, following a Distribution Event, the shares of Common
Stock issuable with respect to Holder’s vested Restricted Stock Units shall be
distributed to him or her in one installment on the
_________________.
(c) The
installments described in Section 2.3(b) shall commence within
thirty (30) days following the occurrence of the Distribution Event. Following
the commencement of installments pursuant to this Section 2.3(c), the time
for
the distribution of the shares of Common Stock issuable with respect to ▇▇▇▇▇▇’s
vested Restricted Stock Units may not be accelerated for any reason. In the
event of ▇▇▇▇▇▇’s death prior to the distribution of all shares of Common Stock
issuable with respect to Holder’s vested Restricted Stock Units pursuant to
Section 2.3(b), any remaining shares of Common Stock shall be distributed to
Holder’s beneficiary or estate in accordance with the schedule set forth in
Section 2.3(b) for such distributions.
(d) All
distributions shall be made by the Company in the form of whole shares of Common
Stock (and cash in an amount equal to the value of any fractional Restricted
Stock Unit, determined based on the Fair Market Value as of the distribution
date).
(e) Notwithstanding
the foregoing, shares of Common Stock shall be issuable pursuant to a Restricted
Stock Unit at such times and upon such events as are specified in this Agreement
only to the extent issuance under such terms will not cause the Restricted
Stock
Units or the shares of Common Stock issuable pursuant to the Restricted Stock
Units to be includible in the gross income of Holder under Section 409A of
the
Code prior to such times or the occurrence of such events, as permitted by
the
Code and the regulations and other guidance thereunder.
2
2.4 Unforeseeable
Emergency.
(a) If
Holder
experiences an Unforeseeable Emergency (as defined below), Holder may petition
the Administrator for the right to receive a partial or full distribution of
the
shares of Common Stock distributable with respect to his or her vested
Restricted Stock Units under this Agreement. If, in the sole discretion of
the
Administrator, ▇▇▇▇▇▇’s petition is approved, the Unforeseeable Emergency shall
be deemed a “Distribution Event” with respect to the number of shares of Common
Stock distributable with respect to ▇▇▇▇▇▇’s vested Restricted Stock Units as
are approved for distribution by the Administrator. Holder shall then be
entitled to receive such shares of Common Stock pursuant to Section
2.3(b).
(b) For
purposes of this Section 2.4, an “Unforeseeable
Emergency”
shall
mean a severe financial hardship to Holder resulting from an illness or accident
of Holder, ▇▇▇▇▇▇’s spouse, or a dependent (as defined in Section 152(a) of the
Code) of Holder, loss of Holder’s property due to casualty, or other similar
extraordinary and unforeseeable circumstances arising as a result of events
beyond the control of Holder. The Fair Market Value of the shares of Common
Stock distributed to Holder with respect to the Unforeseeable Emergency may
not
exceed the amounts necessary to satisfy such Unforeseeable Emergency plus
amounts necessary to pay taxes reasonably anticipated as a result of the
distribution, after taking into account the extent to which such Unforeseeable
Emergency is or may be relieved through reimbursement or compensation by
insurance or otherwise or by liquidation of Holder’s assets (to the extent
liquidation of such assets would not itself cause severe financial hardship),
as
determined under the Treasury Regulations under Section 409A(a)(2)(B)(ii) of
the
Code.
2.5 Changes
to Form or Time of Distribution.
Except
as provided in Section 2.4, neither the time nor form of distribution of shares
of Common Stock with respect to the Restricted Stock Units under this Agreement
may be changed, except as may be permitted by the Administrator in accordance
with Sections 12.3 and 12.4(b) of the Plan and Section 409A of the Code and
the
Treasury Regulations thereunder.
2.6 Restrictions
on Transfer.
Unless
otherwise permitted by the Administrator pursuant to the Plan, no Restricted
Stock Units or shares of Common Stock issuable with respect thereto or any
interest or right therein or part thereof shall be liable for the debts,
contracts or engagements of Holder or his or her successors in interest or
shall
be subject to disposition by transfer, alienation, anticipation, pledge,
encumbrance, assignment or any other means whether such disposition be voluntary
or involuntary or by operation of law by judgment, levy, attachment, garnishment
or any other legal or equitable proceedings (including bankruptcy), and any
attempted disposition thereof shall be null and void and of no
effect.
3
2.7 Conditions
to Issuance of Stock Certificates.
The
shares of Common Stock deliverable with respect to the Restricted Stock Units,
or any portion thereof, may be either previously authorized but unissued shares
or issued shares which have then been reacquired by the Company. Such shares
shall be fully paid and nonassessable. The Company shall not be required to
issue or deliver any shares of Common Stock with respect to the Restricted
Stock
Units prior to fulfillment of all of the following conditions:
(a) The
admission of such shares to listing on all stock exchanges on which such Common
Stock is then listed; and
(b) The
completion of any registration or other qualification of such shares under
any
state or federal law or under rulings or regulations of the Securities and
Exchange Commission or of any other governmental regulatory body, which the
Administrator shall, in its absolute discretion, deem necessary or advisable;
and
(c) The
obtaining of any approval or other clearance from any state or federal
governmental agency which the Administrator shall, in its absolute discretion,
determine to be necessary or advisable; and
(d) The
lapse
of such reasonable period of time following the applicable Distribution Event
as
the Administrator may from time to time establish for reasons of administrative
convenience; and
(e) The
receipt by the Company of full payment for such shares, including payment of
all
amounts which, under federal, state or local tax law, the Company (or other
employer corporation) is required to withhold upon issuance of such shares
in
accordance with Section 10.5 of the Plan.
2.8 Rights
as Stockholder.
Except
as otherwise provided herein, Holder shall not be, nor have any of the rights
or
privileges of, a stockholder of the Company in respect of any shares of Common
Stock issuable pursuant
to the Restricted Stock Units unless and until such shares of Common Stock
shall
have been issued by the Company to Holder.
ARTICLE
III
OTHER
PROVISIONS
3.1 Adjustment
for Stock Split.
In the
event of any stock dividend, stock split, reverse stock split, recapitalization,
combination, reclassification, or similar change in the capital structure of
the
Company, appropriate adjustments shall be made in the Restricted Stock Units
and/or the shares of Common Stock issuable with respect thereto, consistent
with
any adjustment under Section 10.3 of the Plan. The provisions of this Agreement
shall apply, to the full extent set forth herein with respect to the Restricted
Stock Units and the shares of Common Stock issuable with respect thereto, to
any
and all shares of capital stock or other securities which may be issued in
respect of, or in exchange for, in substitution of the Restricted Stock Units
and the shares of Common Stock issuable with respect thereto, and shall be
appropriately adjusted for any stock dividends, splits, reverse splits,
combinations, recapitalizations and the like occurring after the date
hereof.
3.2 Taxes.
Notwithstanding anything to the contrary in this Agreement, the Company shall
be
entitled to require payment to the Company or any of its Subsidiaries in cash
or
deduction from other compensation payable to Holder of any sums required by
federal, state or local tax law to be withheld with respect to the issuance
of
the Restricted Stock Units or distribution of shares of Common Stock with
respect thereto. The Company shall not be obligated to deliver any new
certificate representing shares of Common Stock issuable with respect to the
Restricted Stock Units to Holder or his legal representative unless and until
Holder or his legal representative shall have paid or otherwise satisfied in
full the amount of all federal, state and local taxes applicable to the taxable
income of Holder resulting from the grant of the Restricted Stock Units or
the
distribution of the shares of Common Stock issuable with respect
thereto.
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3.3 Limitations
Applicable to Section 16 Persons.
Notwithstanding any other provision of the Plan or this Agreement, if Holder
is
subject to Section 16 of the Exchange Act, the Plan, the Restricted Stock Units
and the shares of Common stock issuable with respect thereto and this Agreement
shall be subject to any additional limitations set forth in any applicable
exemptive rule under Section 16 of the Exchange Act (including any amendment
to
Rule 16b-3 of the Exchange Act) that are requirements for the application of
such exemptive rule. To the extent permitted by applicable law, this Agreement
shall be deemed amended to the extent necessary to conform to such applicable
exemptive rule.
3.4 Administration.
The
Administrator shall have the power to interpret the Plan and this Agreement
and
to adopt such rules for the administration, interpretation and application
of
the Plan as are consistent therewith and to interpret, amend or revoke any
such
rules. All actions taken and all interpretations and determinations made by
the
Administrator in good faith shall be final and binding upon Holder, the Company
and all other interested persons. No member of the Administrator shall be
personally liable for any action, determination or interpretation made in good
faith with respect to the Plan, this Agreement or the Restricted Stock Units.
3.5 Restrictive
Legends and Stop-Transfer Orders.
(a) Any
share
certificate(s) evidencing the shares of Common Stock issued hereunder shall
be
endorsed with any legend required by any applicable federal and state securities
laws.
(b) ▇▇▇▇▇▇
agrees that, in order to ensure compliance with the restrictions referred to
herein, 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.
(c) The
Company shall 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 of Common
Stock or to accord the right to vote or pay dividends to any purchaser or other
transferee to whom such shares shall have been so transferred.
3.6 Notices.
Any
notice to be given under the terms of this Agreement to the Company shall be
addressed to the Company in care of the Secretary of the Company, and any notice
to be given to Holder shall be addressed to Holder at the address given beneath
▇▇▇▇▇▇’s signature on the Grant Notice. By a notice given pursuant to this
Section 3.6, either party may hereafter designate a different address for
notices to be given to that party. Any notice shall be deemed duly given when
sent via email or when sent by certified mail (return receipt requested) and
deposited (with postage prepaid) in a post office or branch post office
regularly maintained by the United States Postal Service.
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3.7 Titles.
Titles
are provided herein for convenience only and are not to serve as a basis for
interpretation or construction of this Agreement.
3.8 Governing
Law; Severability.
This
Agreement shall be administered, interpreted and enforced under the laws of
the
State of Delaware without regard to conflicts of laws thereof. Should any
provision of this Agreement be determined by a court of law to be illegal or
unenforceable, the other provisions shall nevertheless remain effective and
shall remain enforceable.
3.9 Conformity
to Securities Laws.
Holder
acknowledges that the Plan is intended to conform to the extent necessary with
all provisions of the Securities Act and the Exchange Act and any and all
regulations and rules promulgated by the Securities and Exchange Commission
thereunder, and state securities laws and regulations. Notwithstanding anything
herein to the contrary, the Plan shall be administered, and the Restricted
Stock
Units are granted, only in such a manner as to conform to such laws, rules
and
regulations. To the extent permitted by applicable law, the Plan and this
Agreement shall be deemed amended to the extent necessary to conform to such
laws, rules and regulations.
3.10 Amendments.
This
Agreement may not be modified, amended or terminated except by an instrument
in
writing, signed by ▇▇▇▇▇▇ and by a duly authorized representative of the
Company.
3.11 No
Employment Rights.
If
Holder is an Employee, nothing in the Plan or this Agreement shall confer upon
Holder any right to continue in the employ of the Company or any Subsidiary
or
shall interfere with or restrict in any way the rights of the Company and its
Subsidiaries, which are expressly reserved, to discharge Holder at any time
for
any reason whatsoever, with or without cause, except to the extent expressly
provided otherwise in a written agreement between the Company and
Holder.
3.12 Successors
and Assigns.
The
Company may assign any of its rights under this Agreement to single or multiple
assignees, and this Agreement shall inure to the benefit of the successors
and
assigns of the Company. Subject to the restrictions on transfer herein set
forth, this Agreement shall be binding upon ▇▇▇▇▇▇ and his or her heirs,
executors, administrators, successors and assigns.
3.13 Unfunded,
Unsecured Obligations.
The
obligations of the Company under the Plan and this Agreement shall be unfunded
and unsecured, and nothing contained herein shall be construed as providing
for
assets to be held in trust or escrow or any other form of segregation of the
assets of the Company for the benefit of Holder or any other person. Holder
shall have only the rights of a general, unsecured creditor of the Company
with
respect to the Restricted Stock Units, unless and until shares of Common Stock
shall be distributed to Holder under the terms and conditions of this
Agreement.
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3.14 Compliance
in Form and Operation.
This
Agreement and the Restricted Stock Units are intended to comply with Section
409A of the Code and the Treasury Regulations thereunder and shall be
interpreted in a manner consistent with that intention.
7