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Exhibit
10.5
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
.
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).
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.
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 for making such
election if he or she so chooses.
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8. Miscellaneous
.
(a) No Rights to
Employment . Nothing contained in this Agreement shall be
construed as giving the Employee any right to be retained, in any
position, as an employee of the Company. The Employee further
acknowledges and agrees that the transactions contemplated
hereunder and the vesting provisions set forth herein do not
constitute an express or implied process of continued engagement as
an employee until the Shares vest, for any period of time, or at
all.
(b) Provisions of the
Plan . This Agreement is subject to the provisions of the Plan,
a copy of which has been furnished to the Employee.
(c) Severability . The
invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other
provision of this Agreement, and each other provision of this
Agreement shall be severable and enforceable to the extent
permitted by law.
(d) Waiver . Any
provision for the benefit of the Company contained in this
Agreement may be waived, either generally or in any particular
instance, by the Board of Directors of the Company.
(e) Binding Effect .
This Agreement shall be binding upon and inure to the benefit of
the Company and the Employee and their respective heirs, executors,
administrators, legal representatives, successors and assigns,
subject to the restrictions on transfer set forth in Section 4
of this Agreement.
(f) Notice . All
notices required or permitted hereunder shall be in writing and
deemed effectively given upon personal delivery or five days after
deposit in the United St
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