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Exhibit
10.4
Restricted Stock
Agreement
THIS AGREEMENT is entered
into, effective as of this day of
, 200 (the “Grant Date”), between
American Superconductor Corporation, a Delaware corporation (the
“Company”), and
(the “Employee”).
For valuable consideration,
receipt of which is acknowledged, the parties hereto agree as
follows:
1. Issuance of Shares
.
Effective as of the Grant
Date, the Company shall issue to the Employee, subject to the terms
and conditions set forth in this Agreement and in the
Company’s 2007 Stock Incentive Plan (the “Plan”),
shares (the “Shares”) of common stock, $.01 par value,
of the Company (“Common Stock”). The Shares shall be
issued to the Employee in consideration of employment services
rendered by the Employee to the Company. As promptly as practicable
following the Grant Date, the Company shall issue one or more
certificates in the name of the Employee for the Shares. The
Employee agrees that the Shares shall be subject to the forfeiture
provisions set forth in Section 3 of this Agreement and the
restrictions on transfer set forth in Section 4 of this
Agreement.
2. Vesting
.
(a) The Shares shall vest in
accordance with the following vesting schedule [ insert vesting
schedule or date ]. Notwithstanding such vesting schedule, the
Shares shall vest in full upon [the earlier of (i) [ insert
financial targets, if applicable ] or (ii)] a Change in Control
of the Company (as defined below).
For purposes of the
Agreement, a “Change in Control” shall be deemed to
have occurred upon the occurrence of the following events:
(i) any “person”, as such term is used in
Section 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”) (other than the
Company, any trustee or other fiduciary holding securities under an
employee benefit plan of the Company, or any corporation owned
directly or indirectly by the stockholders of the Company in
substantially the same proportion as their ownership of stock of
the Company), is or becomes the “beneficial owner” (as
defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing 50% or more
of the combined voting power of the Company’s then
outstanding securities; (ii) during any period of two
consecutive years ending during the term of this Agreement,
individuals who at the beginning of such period constitute the
Board of Directors of the Company, and any new director (other than
a director designated by a person who has entered into an agreement
with the Company to effect any transaction described in clause (i),
(iii) or (iv) of this Section 2) whose election by
the Board of Directors or nomination for election by the
Company’s stockholders was approved by a vote of at least
two-thirds of the directors then still in office who were either
directors at the beginning of the period or whose election or whose
nomination for election was previously so approved (collectively,
the “Disinterested Directors”), cease for any reason to
constitute a majority of the
Board of Directors; (iii) the
consummation of a merger or consolidation of the Company with any
other corporation, other than a merger or consolidation which would
result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities
of the surviving entity) more than 50% of the combined voting power
of the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation; or
(iv) the stockholders of the Company approve a plan of
complete liquidation of the Company or there occurs the sale or
disposition by the Company of all or substantially all of the
Company’s assets.
3. Forfeiture of Unvested
Shares Upon Employment Termination .
In the event that the
Employee ceases to be employed by the Company for any reason or no
reason, with or without cause, all of the Shares that are unvested
as of the time of such employment termination shall be forfeited
immediately and automatically to the Company, without the payment
of any consideration to the Employee, effective as of such
termination of employment. The Employee shall have no further
rights with respect to any Shares that are so forfeited. For
purposes of the Agreement, employment with the Company shall
include employment with a parent or subsidiary of the
Company.
4. Restrictions on
Transfer .
The Employee shall not sell,
assign, transfer, pledge, hypothecate or otherwise dispose of, by
operation of law or otherwise (collectively “transfer”)
any unvested Shares, or any interest therein, except that the
Employee may transfer unvested Shares (i) to or for the
benefit of any spouse, child or grandchild of the Employee, or to a
trust for their benefit, provided that such Shares shall
remain subject to this Agreement (including without limitation the
forfeiture provisions set forth in Section 3 and the
restrictions on transfer set forth in this Section 4) and such
permitted transferee shall, as a condition to such transfer,
deliver to the Company a written instrument confirming that such
transferee shall be bound by all of the terms and conditions of
this Agreement or (ii) as a part of the sale of all or
substantially all of the shares of capital stock of the Company
(including pursuant to a merger or consolidation), provided that,
in accordance with Section 9 of the Plan, the securities or
other property received by the Employee in connection with such
transaction upon conversion of or in exchange for Shares that are
not then vested shall remain subject to this Agreement.
5. Escrow .
The Employee shall, upon the
execution of this Agreement, execute Joint Escrow Instructions in
the form attached to this Agreement as Exhibit A . The Joint
Escrow Instructions shall be delivered to the Chief Financial
Officer of the Company, as escrow agent thereunder. The Employee
shall deliver to such escrow agent a stock assignment duly endorsed
in blank, in the form attached to this Agreement as Exhibit
B , and hereby instructs the Company to deliver to such escrow
agent, on behalf of the Employee, the certificates(s) evidencing
the Shares issued hereunder. Such materials shall be held by such
escrow agent pursuant to the terms of such Joint Escrow
Instructions.
-2-
6. Restrictive Legends
.
All certificates representing
Shares shall have affixed thereto a legend in substantially the
following form, in addition to any other legends that may be
required under federal or state securities law:
“The shares of stock
represented by this certificate are subject to forfeiture
provisions and restrictions on transfer set forth in a certain
Restricted Stock Agreement between the corporation and the
registered owner of these shares (or his predecessor in interest),
and such Agreement is available for inspection without charge at
the office of the Secretary of the corporation.”
7. Withholding Taxes;
Section 83(b) Election .
(a) Within one business day
of the date of issuance of the Shares or within three business days
of the date of vesting of the Shares, as applicable, the Employee
shall pay to the Company in cash the amount of any federal, state
or local taxes of any kind required by law to be withheld by the
Company in connection with the issuance or vesting of the Shares.
The Employee acknowledges and agrees that the Company has the right
to deduct from payments of any kind otherwise due to the Employee
the amount of any such taxes.
(b) The Employee has had an
opportunity to obtain the advice of the Employee’s own tax
advisors prior to executing this Agreement and fully understands
and agrees to the provisions hereof. The Employee acknowledges that
he has been informed of the availability of making an election in
accordance with Section 83(b) of the Internal Revenue Code of
1986, as amended; that such election must be filed with the
Internal Revenue Service within 30 days of the issuance of the
Shares to the Employee; and that the Employee is solely responsible
for evaluating the tax implications to the Employee or his or her
acquisition of the Shares under this Agreement and
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