Looking for an agreement? Search from over 1 million agreements now.
Home > Agreement Preview

Form A - Restricted Stock Unit Agreement

This is an actual contract by Embrex.

Agreement Preview
Sectors: Biotechnology / Pharmaceuticals
Governing Law: North Carolina, View North Carolina State Laws
Effective Date: January 01, 2006
Search This Document
Exhibit 10.2

EMBREX, INC.

AMENDED AND RESTATED INCENTIVE STOCK OPTION AND NONSTATUTORY STOCK OPTION PLAN

FORM A

RESTRICTED STOCK UNIT AGREEMENT

This Restricted Stock Unit Agreement (" Agreement" ) dated as of , 20 (the " Date of Grant" ) is entered into by and between Embrex, Inc., a North Carolina corporation (the " Company" ), and (the " Grantee" ).

Unless otherwise expressly defined herein, the terms used in this Restricted Stock Unit Agreement shall have the same meanings set forth in the Embrex, Inc. Amended and Restated Incentive Stock Option and Nonstatutory Stock Option Plan, as amended from time to time (the " Plan" ). 1. Grant of RSUs . Subject to this Agreement and the Plan, the terms of which are incorporated herein by this reference, the Company hereby grants to Grantee, and Grantee hereby accepts, restricted stock units (" RSUs" ) as set forth herein. Each Stock Unit granted hereby entitles the Grantee to receive one share of common stock of the Company, $.01 par value per share (the " Common Stock" ), as follows:

Grant Number

Number of RSUs


2. Vesting . Grantee shall vest in the RSUs granted under this Agreement pursuant to the combination of time-based and performance-based vesting requirements set forth in subsections (a) and (b) of this Section 2:

(a) Time-Based Vesting . One-third (1/3) of the total RSUs granted under this Agreement are subject to the time-based vesting requirements set forth in this subsection (a). RSUs subject to time-based vesting shall vest in three equal, annual installments such that one third (1/3) of the RSUs subject to time-based vesting (i.e., one ninth (1/9) of the total RSUs granted under this Agreement) shall vest on each of March 13, 2008; March 13, 2009; and March 13, 2010 as set forth in the vesting schedule below, provided that Grantee does not incur a Separation from Service with the Company (or any Parent, Subsidiary or successor of the Company) prior to the applicable vesting dates:


Fraction of RSUs Subject to Time-Based Vesting
That Vest on Vesting Date

Fraction of Total RSUs Granted Under this
Agreement That Vest on Vesting Date Vesting Date

One-Third (1/3) One-Ninth (1/9) March 13, 2008

One-Third (1/3) One-Ninth (1/9) March 13, 2009

One-Third (1/3) One-Ninth (1/9) March 13, 2010

(b) Performance-Based Vesting . The remaining two-thirds (2/3) of the total RSUs granted under this Agreement are subject to the performance-based vesting requirements set forth in this subsection (b). The vesting of performance-based RSUs will be determined based on the Company' s long-term performance as measured by the Company' s Cumulative Adjusted EPS for the years 2006 2009. As soon as administratively practicable following the public release of the Company' s 2009 fourth quarter earnings, the Committee, in the Committee' s sole discretion, shall calculate the Company' s Cumulative Adjusted EPS for the years 2006 2009 and, provided Grantee has not incurred a Separation from Service prior to such time, Grantee shall automatically vest in that number of RSUs subject to performance-based vesting corresponding to the applicable Cumulative Adjusted EPS, as listed in the Awards Table for Performance-Based Vesting attached as Exhibit A to this Agreement. In the event Grantee Separates from Service with the Company (or any Parent, Subsidiary, or successor of the Company) for any reason prior to the public release of the Company' s earnings for the fourth quarter of 2009, Grantee shall forfeit any and all rights in the RSUs subject to performance-based vesting under this subsection. For the avoidance of doubt and for illustrative purposes only, a Grantee who does not incur a Separation from Service prior to the Company' s release of its 2009 fourth quarter earnings may be entitled to performance-based vesting in as little as zero percent (0%) or as much as one hundred percent (100%) of the RSUs subject to performance-based vesting depending upon the Company' s overall performance for the performance period. (c) Delay in Vesting or Delivery of RSUs to Comply with Code Section 409A . Notwithstanding any other provisions of this Agreement or the Plan to the contrary, if the Committee, in the Committee' s sole discretion, determines that Grantee is a Key Employee and that the vesting and/or delivery of RSUs provided hereunder are subject to the six-month delay restrictions imposed by Code Section 409A(a)(2)(B)(i) and the regulations promulgated thereunder (the " 409A Delay Period" ), then the vesting and/or delivery, if any, of such RSUs shall be delayed until six months and one day following Grantee' s Separation from Service or six months and 1 day from such other date as the Committee, in the Committee' s sole discretion, determines necessary to comply with the 409A Delay Period. 3. Delivery of Shares .

(a) General . The RSUs shall automatically be converted into shares of Common Stock as they vest (or upon such later date elected pursuant to Section 4 below). Certificates representing such shares shall be delivered to the Grantee as soon as practicable thereafter, in written or electronic form as the Committee may determine.

(b) Legal Restrictions . No shares shall be delivered unless such delivery complies with the applicable registration requirements of the Securities Act of 1933, as amended, any applicable listing requirement of any national securities exchange on which stock of the same class is then listed, and any other requirements of federal, state or local law or of any regulatory bodies having jurisdiction over such issuance and exercise. Assuming such compliance, for tax purposes shares shall be considered issued to the Grantee on the date of vesting or the deferred date of delivery, as applicable.

4. Deferral Election Agreement . The Grantee may elect to defer the date the RSUs are converted into shares of Common Stock and such shares are delivered by completing and submitting to the Company a deferral election in the form attached hereto as Exhibit B at the time the Grantee enters into this Agreement. The Committee shall, in its sole discretion, establish the further rules and procedures for such deferral elections.


2

5. Nature of Grant . By signing this Agreement, the Grantee acknowledges that: (a) The Company has established the Plan voluntarily, it is discretionary in nature and the Company may modify, amend, suspend or terminate it at any time, unless otherwise provided in the Plan and this Agreement;

(b) The grant of the RSUs is voluntary and occasional and does not create any contractual or other right to receive future grants of RSUs, or benefits in lieu of RSUs, even if RSUs have been granted repeatedly in the past;

(c) All decisions with respect to future grants of RSUs, if any, shall be at the sole discretion of the Company;

(d) The Grantee' s participation in the Plan does not create an employment or service right or a right to further employment or service with the Grantee' s employer (the " Employer" ) and shall not interfere with the ability of the Employer to terminate the Grantee' s service relationship at any time, with or without cause;

(e) The Grantee is voluntarily participating in the Plan;

(f) The RSUs are an extraordinary item that is outside the scope of the Grantee' s employment or service contract, if any, and that does not constitute compensation of any kind for services of any kind rendered to the Company or the Employer;

(g) The RSUs are not part of normal or expected compensation or salary for any purposes, including, but not limited to, calculating any severance, resignation, termination, redundancy, end of service payments, bonuses, long-service awards, pension or retirement benefits or similar payments;

(h) The grant, vesting, and/or delivery of the RSUs under this Agreement does not constitute an employment contract or relationship or service contract or right between Grantee and the Company (or any Parent, Subsidiary, or successor of the Company);

(i) The future value of the underlying shares is unknown and cannot be predicted with certainty;

(j) If shares are delivered on vesting of the RSUs, or if the Grantee elects to defer delivery of the shares, the shares in either case may increase or decrease in value, even below their value on the date of grant or the date(s) of vesting; (k) In consideration of the grant of the RSUs, no claim or entitlement to compensation or damages shall arise from termination of the RSUs or diminution in value of the RSUs or shares purchased through exercise of the RSUs, if any, resulting from Grantee' s Separation from Service by the Company or the Employer (for any reason whatsoever and whether or not in breach of local labor laws), and the Grantee irrevocably releases the Company and the Employer from any such claim that may arise; if, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen, then, by signing this Agreement, the Grantee shall be deemed irrevocably to have waived his or her entitlement to pursue such claim; and


3

(l) Notwithstanding any terms or conditions of the Plan to the contrary, in the event of Grantee' s Separation from Service (whether or not in breach of local labor laws), the Grantee' s right to vest in and/or receive the RSUs under the Plan, if any, will terminate effective as of the date of such Separation from Service (or the 409A Delay Period, if applicable) and will not be extended by any notice period mandated under local law ( e.g. , active employment or service would not include a period of " garden leave" or similar period pursuant to local law) and the Committee shall have the exclusive discretion to determine whether the Grantee' s status as a service provider has terminated for purposes of this Agreement.

6. Restrictions on Transfer . Until the shares of Commo
-- End of Preview --
Home| About Us| FAQ| Subscription | Contact Us |

Privacy Policy   Terms of Service  34.204.169.76