|
Exhibit
10.1
RESTRICTED STOCK AWARD
AGREEMENT
UNDER THE ARBINET-THEXCHANGE,
INC.
2004 STOCK INCENTIVE PLAN, AS
AMENDED
Name of Participant:
No. of Target Shares:
Final Acceptance Date:
Performance Measure: See attached
Exhibit A (the “Performance Goals”)
Pursuant to the
Arbinet-thexchange, Inc. 2004 Stock Incentive Plan as amended
through the date hereof (the “Plan”),
Arbinet-thexchange, Inc. (the “Company”) hereby grants
a Restricted Stock Award (an “Award”) to the
Participant named above. No shares of Common Stock, par value
$0.001 per share (the “Stock”), of the Company shall be
issued unless the provisions of Section 2 are
satisfied.
1. Acceptance of Award
. The Participant shall have no rights with respect to this Award
unless he shall have accepted this Award prior to the close of
business on the Final Acceptance Date specified above by
(i) signing and delivering to the Company a copy of this Award
Agreement, and (ii) delivering to the Company a stock power
endorsed in blank.
2. Issuance of Restricted
Stock . The actual number of shares of Restricted Stock to be
issued to the Participant will vary depending upon the
Company’s achievement of the Performance Goals, as set forth
on Exhibit A attached hereto. The Compensation Committee of the
Board of Directors (the “Compensation Committee”) shall
certify at its first meeting (the “Grant Date”) after
December 31, 2008 (the “Measurement Date”), which
shall in no event be later than two and one-half months after the
end of the Measurement Date, whether and the extent to which the
Performance Goals have been met on the Measurement Date. The number
of shares of Restricted Stock determined pursuant to this
Section 2 shall be issued and delivered to the Participant,
either via book-entry or actual stock certificates, and the
Participant’s name shall be entered as the stockholder of
record with respect to such shares, including voting and dividend
rights, subject, however, to the restrictions and conditions
specified in Section 3 below.
3. Restrictions and
Conditions .
(a) Any book entries for the
shares of Restricted Stock granted herein shall bear an appropriate
legend, as determined by the Board or Committee (as defined in the
Plan) in its sole discretion, to the effect that such shares are
subject to restrictions as set forth herein and in the
Plan.
(b) Shares of Restricted
Stock granted herein may not be sold, assigned, transferred,
pledged or otherwise encumbered or disposed of by the Participant
prior to vesting.
(c) If the Participant ceases
to be an employee or director of, or consultant or advisor to, the
Company or a subsidiary (an “Eligible Participant”) for
any reason (including death) prior to vesting of shares of
Restricted Stock granted herein, any shares of Restricted Stock
that have not vested shall immediately and automatically be
forfeited and returned to the Company.
4. Vesting of Restricted
Stock . Subject to the issuance of the Restricted Stock
pursuant to Section 2, the restrictions and conditions in
Section 3 of this Award Agreement shall lapse on
the
Vesting Date or Dates specified in the
following schedule, so long as the Participant remains an Eligible
Participant on the relevant Vesting Date. If a series of Vesting
Dates is specified, then the restrictions and conditions in
Section 3 shall lapse only with respect to the number of
shares of Restricted Stock specified as vested on such
Date.
|
|
|
|
Number of Shares
of
Restricted Stock
Vested
|
|
Vesting
Date
|
|
One-third (1/3
rd
)
|
|
Grant Date |
|
One-third (1/3
rd
)
|
|
First Anniversary of Grant Date |
|
One-third (1/3
rd
)
|
|
Second Anniversary of Grant Date |
Subsequent to such Vesting
Date or Dates, the shares of Stock on which all restrictions and
conditions have lapsed shall no longer be deemed Restricted Stock.
Restricted Stock may be subject to accelerated vesting in
accordance with Section 7 below.
5. Dividends .
Dividends on shares of Restricted Stock shall be paid currently to
the Participant.
6. Reorganization
Event .
(a) Upon the occurrence of a
Reorganization Event (as defined in the Plan) other than a
liquidation or dissolution of the Company, if the Award is assumed
or otherwise continued by the Company’s successor, the rights
of the Company under this Award shall inure to the benefit of the
Company’s successor and shall apply to the cash, securities
or other property which the Stock was converted into or exchanged
for pursuant to such Reorganization Event in the same manner and to
the same extent as they applied to the Stock subject to the Award.
Upon the occurrence of a Reorganization Event involving the
liquidation or dissolution of the Company, except to the extent
specifically provided to the contrary in the instrument evidencing
this Award or any other agreement between a Participant and the
Company, all restrictions and conditions on this Award then
outstanding shall automatically be deemed terminated or
satisfied.
(b) This Award Agreement
shall not in any way affect the right of the Company to adjust,
reclassify, reorganize or otherwise change its capital or business
structure or to merge, consolidate, dissolve, liquidate or sell or
transfer all or any part of its business or assets.
7. Change in Control
.
(a) [ALTERNATIVE A] In
the event of a Change in Control (as defined below) of the Company
at any time prior to or on the Measurement Date, the Participant
shall be issued a number of shares of Common Stock equal to the
number of Target Shares as of the consummation of the Change in
Control.
(a) [ALTERNATIVE B] In
the event of a Change in Control (as defined below) of the Company
at any time prior to or on the Measurement Date, the Participant
shall immediately and automatically forfeit this Award as of the
consummation of the Change in Control.
(b) In the event of a Change
in Control of the Company at any time after the Measurement
Date:
(i) Any shares of Restricted
Stock subject to this Award at the time of a Change in Control may
be assumed by the successor entity or otherwise continued in full
force and effect or may be replaced with a cash incentive program
of the successor entity which preserves the fair market value of
any shares of Restricted
| 
