KLA-Tencor Corporation
2004 EQUITY
INCENTIVE PLAN
RESTRICTED STOCK
UNIT AGREEMENT
FOR NON-U.S.
EMPLOYEES
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Grant . The Company hereby grants to the Employee named in
the Restricted Stock Unit Award Notification an award of Restricted
Stock Units ("RSUs"), as set forth in the Restricted Stock Unit
Award Notification and subject to the terms and conditions in this
Agreement and the Company's 2004 Equity Incentive Plan (the
"Plan"). Unless otherwise defined herein, the terms defined in the
Plan shall have the same defined meanings in this Restricted Stock
Unit Agreement (the "Agreement").
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Company's Obligation . Each RSU represents the right to
receive one Share on the vesting date of that unit. Unless and
until the RSUs vest, the Employee will have no right to receive
Shares under such RSUs. Prior to actual distribution of Shares
pursuant to any vested RSUs, such RSUs will represent an unsecured
obligation of the Company, payable (if at all) only from the
general assets of the Company.
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Vesting Schedule . Subject to paragraph 4, the Employee will
vest in the RSUs awarded by this Agreement according to the vesting
schedule specified in the Restricted Stock Unit Award Notification.
Accordingly, such vesting may be tied to the attainment of
established performance goals and/or the completion of a specified
period of Service Provider status.
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Administrator Discretion . The Administrator, in its
discretion, may accelerate the vesting of the balance, or some
lesser portion of the balance, of the RSU at any time, subject to
the terms of the Plan. If so accelerated, such RSUs will be
considered as having vested as of the date specified by the
Administrator. If the Administrator, in its discretion, accelerates
the vesting of the balance, or some lesser portion of the balance,
of the RSUs, the Shares underlying those accelerated RSUs shall
nevertheless be issued at the same time or times as if such RSUs
had vested in accordance with the vesting schedule set forth in the
Restricted Stock Unit Award Notification (whether or not the
Employee remains in Service Provider status as of such
date(s)).
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Forfeiture upon Termination as Service Provider .
Notwithstanding any contrary provision of this Agreement or the
Restricted Stock Unit Award Notification, if the Employee
terminates service as a Service Provider for any or no reason prior
to vesting, the unvested RSUs awarded by this Agreement will
thereupon be forfeited at no cost to the Company and without any
payment (in cash or otherwise) due the Employee.
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Payment after Vesting . Any RSUs that vest in accordance
with paragraph 3 will be paid to the Employee (or in the event of
the Employee's death, to his or her estate) in Shares as soon as
practicable following the date of vesting, subject to paragraph 9.
Any RSUs that vest in accordance with paragraph 4 will be paid to
the Employee (or in the event of the Employee's death, to his or
her estate) in accordance with the provisions of such paragraph,
subject to paragraph 9. For each RSU that vests, the Employee will
receive one Share. The Shares shall be issued no later than the
later of (i) the close of the calendar year in which the Shares
vest or (for accelerated RSUs under paragraph 4) would have vested
in the absence of such acceleration or (ii) the fifteenth (15th)
day of the third (3rd) calendar month following the date that the
RSUs were originally scheduled to vest without giving effect to any
accelerated vesting under paragraph 4.
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Payments after Death . Any distribution or delivery to be
made to the Employee under this Agreement will, if the Employee is
then deceased, be made to the administrator or executor of the
Employee's estate. Any such administrator or executor must furnish
the Company with (a) written notice of his or her status as such
and (b) evidence satisfactory to the Company to establish the
validity of the transfer and compliance with any laws or
regulations pertaining to said transfer.
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Adjustment in Shares . Should any change be made to the
Common Stock by reason of any stock split, stock dividend, spin-off
transaction, extraordinary distribution (whether made in cash,
securities or other property), recapitalization, combination of
shares, exchange of shares or other change affecting the
outstanding Common Stock as a class without the Company's receipt
of consideration, then equitable adjustments shall be made by the
Administrator to the total number and/or class of securities
issuable pursuant to this Award. Such adjustments shall be made in
such manner as the Administrator deems appropriate in order to
reflect such change and thereby preclude a dilution or enlargement
of benefits hereunder.
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Withholding of Taxes . Regardless of any action the Company
and/or the Subsidiary employing or retaining the Employee (the
"Employer") take with respect to any or all income tax (including
U.S. federal, state and local tax and/or non-U.S. tax), social
insurance, payroll tax, payment on account or other tax-related
items related to the Employee's participation in the Plan and
legally applicable to the Employee or deemed by the Company or the
Employer to be an appropriate charge to the Employee even if
technically due by the Company or the Employer ("Tax-Related
Items"), the Employee acknowledges that the ultimate liability for
all Tax-Related Items is and remains the Employee's responsibility
and may exceed the amount actually withheld by the Company or the
Employer. The Employee further acknowledges that the Company and/or
the Employer (a) make no representations or undertakings regarding
the treatment of any Tax-Related Items in connection with any
aspect of the Award, including the grant of the RSUs, the vesting
of the RSUs, the delivery of Shares, the subsequent sale of any
Shares acquired at vesting and the receipt of any dividends or
dividend equivalents; and (b) do not commit to and are under no
obligation to structure the terms of the grant or any aspect of the
Award to reduce or eliminate the Employee's liability for
Tax-Related Items or to achieve any particular tax result. Further,
if the Employee becomes subject to tax in more than one
jurisdiction between the date of grant and the date of any relevant
taxable event, the Employee acknowledges that the Company and/or
the Employer (or former employer, as applicable) may be required to
withhold or account for Tax-Related Items in more than one
jurisdiction.
Prior to the relevant taxable event, the Company will withhold a
portion of the vested RSUs that have an aggregate Fair Market Value
sufficient to pay the Tax-Related Items. The number of Shares
withheld pursuant to the prior sentence will be rounded up to the
nearest whole Share, with no cash payment due the Employee for the
value of any Share withheld in excess of the Tax-Related Items as a
result of such rounding. If the date of the relevant taxable event
( e.g., the date upon which the RSUs vest, in whole or in
part) occurs on a day on which the established stock exchange on
which the Company's Common Stock is traded (including without
limitation the NASDAQ Global Select Market or the NASDAQ Global
Market) is not open for trading, the Fair Market Value for purposes
of calculating the portion of the vested RSUs to be withheld
pursuant to this paragraph 9 ( i.e., the deemed Fair Market
Value of the Company's Common Stock on the date of such taxable
event) shall be equal to the closing sales price for the Company's
Common Stock as quoted on such stock exchange on the market trading
day immediately prior to such taxable event. Alternatively, the
Company, in its sole discretion, may require or otherwise permit
the Employee to make alternate arrangements satisfactory to the
Company for such Tax-Related Items. In addition, the Company and/or
the Employer has the right to satisfy any Tax-Related Items that
the Company determines cannot be satisfied through the withholding
of otherwise deliverable Shares by one or a combination of the
following: (i) retaining without notice from salary or other
amounts payable to the Employee, cash having a sufficient value to
satisfy any Tax-Related Items; or (ii) arranging for the sale of
Shares otherwise deliverable to the Employee (on the Employee's
behalf and at the Employee's direction pursuant to this
authorization).
To avoid negative accounting treatment, the Company may withhold or
account for Tax-Related Items by considering applicable minimum
statutory withholding amounts or other applicable withholding
rates. If the obligation for Tax-Related Items is satisfied by
withholding a number of Shares as described herein, the Employee
shall be deemed, for tax purposes, to have been issued the full
number of Shares subject to the vested portion of the Award,
notwithstanding that a number of Shares are held back solely for
the purpose of paying the Tax-Related Items due as a result of any
aspect of the Award. By accepting this RSU award, the Employee
expressly consents to the withholding or sale of Shares and to any
additional cash withholding as provided for in this paragraph 9.
Notwithstanding any contrary provision of this Agreement, no Shares
will be issued unless and until satisfactory arrangements (as
determined by the Company) have been made by the Employee with
respect to the payment of any Tax-Related Items.
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Rights as Stockholder . Neither the Employee nor any person
claiming under or through the Employee will have any of the rights
or privileges of a stockholder of the Company in respect of any
Shares deliverable hereunder unless and until certificates
representing such Shares are issued, recorded on the records of the
Company or its transfer agents or registrars, and delivered to the
Employee or Employee's broker.
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No Effect on Employment . To the full extent permitted under
applicable law, the Employee's employment or other Service Provider
status with the Company and its Subsidiaries is on an at-will basis
only. Accordingly, the terms of the Employee's employment or other
Service Provider status with the Company and its Subsidiaries will
be determined from time to time by the Company or the Subsidiary
employing or retaining the Employee (as the case may be), and the
Company or the Subsidiary will have the right, which is hereby
expressly reserved, to terminate or change the terms of the
employment or service relationship of the Employee at any time for
any reason whatsoever, with or without good cause or notice, in
each case subject to compliance with applicable employment or other
laws.
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Address for Notices . Any notice to be given to the Company
under the terms of this Agreement must be addressed to the Company
at 160 Rio Robles, San Jose, California 95134, Attn : Stock
Administration, or at such other address as the Company may
hereafter designate in writing or electronically.
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Grant is Not Transferable . Except to the limited extent
provided in paragraph 7, this grant and the rights and
privileges conferred hereby will not be transferred, assigned,
pledged or hypothecated in any way (whether by operation of law or
otherwise) and will not be subject to sale under execution,
attachment or similar process. Upon any attempt to transfer,
assign, pledge, hypothecate or otherwise dispose of this grant, or
any right or privilege conferred hereby, or upon any attempted sale
under any execution, attachment or similar process, this grant and
the rights and privileges conferred hereby immediately will become
null and void.
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Restrictions on Sale of Securities . Subject to the
provisions of paragraph 16, the Company shall use its best efforts
to assure that the Shares issued in payment of the vested RSUs are
registered under the U.S. federal securities laws or qualify for
any available exemption from such registration and are accordingly
freely tradable. However, any sale of the Shares will be subject to
any market blackout-period that may be imposed by the Company and
must comply with the Company's insider trading policies, and any
other applicable securities laws.
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Binding Agreement . Subject to the limitation on the
transferability of this grant contained herein, this Agreement will
be binding upon and inure to the benefit of the heirs, legatees,
legal representatives, successors and assigns of the parties
hereto.
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Additional Conditions to Issuance of Stock . If at any time
the Company determines, in its discretion, that the listing,
registration or qualification of the Shares upon any securities
exchange or under any U.S. state or federal law, or the consent or
approval of any governmental regulatory authority is necessary or
desirable as a condition to the issuance of Shares to the Employee
(or his or her estate), such issuance will not occur unless and
until such listing, registration, qualification, consent or
approval have been effected or obtained, free of any conditions not
acceptable to the Company. The Company will make all reasonable
efforts to meet the requirements of any such U.S. state or federal
law or securities exchange and to obtain any such consent or
approval of any such governmental authority. In no event, however,
shall any Shares be issued in contravention of applicable U.S.
federal and state securities laws or other regulatory
requirements.
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Plan Governs . This Agreement and the Restricted Stock Unit
Award Notification are subject to all terms and provisions of the
Plan. In the event of a conflict between one or more provisions of
this Agreement or the Restricted Stock Unit Award Notification and
one or more provisions of the Plan, the provisions of the Plan will
govern.
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Administrator Authority . The Administrator will 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 or revoke any
such rules (including, but not limited to, the determination of
whether or not any RSUs have vested). All actions taken and all
interpretations and determinations made by the Administrator in
good faith will be final and binding upon the Employee, the Company
and all other interested persons. No member of the Administrator
will be personally liable for any action, determination or
interpretation made in good faith with respect to the Plan or this
Agreement.
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Captions . Captions provided herein are for convenience only
and are not to serve as a basis for interpretation or construction
of this Agreement.
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Agreement Severable . In the event that any provision in
this Agreement will be held invalid or unenforceable, such
provision will be severable from, and such invalidity or
unenforceability will not be construed to have any effect on, the
remaining provisions of this Agreement.
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Modifications to the Agreement . This Agreement constitutes
the entire understanding of the parties on the subjects covered.
The Employee expressly warrants that he or she is not accepting
this Agreement in reliance on any promises, representations, or
inducements other than those contained herein. Modifications to
this Agreement or the Plan can be made only in an express written
contract executed by a duly authorized officer of the Company.
Notwithstanding anything to the contrary in the Plan or this
Agreement, the Company reserves the right to amend this Agreement
as it deems necessary or advisable, in its sole discretion and
without the consent of the Employee, to comply with Section 409A of
the Code or to otherwise avoid imposition of any additional tax or
income recognition under Section 409A of the Code prior to the
actual payment of Shares pursuant to this RSU award.
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Amendment, Suspension or Termination of the Plan . By
accepting this RSU award, the Employee expressly warrants that he
or she has received a right to receive stock under the Plan
(provided the vesting conditions are satisfied), and has received,
read and understood a description of the Plan. The Employee
understands that the Plan is discretionary in nature and may be
modified, suspended or terminated by the Company at any time.
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Electronic Delivery and Acceptance . The Company may, in its
sole discretion, decide to deliver any documents related to RSUs
awarded under the Plan or future RSUs that may be awarded under the
Plan by electronic means or request the Employee's consent to
participate in the Plan by electronic means. By accepting this RSU
award, the Employee hereby consents to receive such documents by
electronic delivery and agrees to participate in the Plan through
an on-line or electronic system established and maintained by the
Company or another third party designated by the Company.
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Notice of Governing Law and Venue . This RSU award shall be
governed by, and construed in accordance with, the laws of the
State of California without regard to principles of conflict of
laws.
For purposes of litigating any dispute that arises directly or
indirectly from the relationship of the parties evidenced by this
RSU award or this Agreement, the parties hereby submit to and
consent to the exclusive jurisdiction of the State of California
and agree that such litigation shall be conducted only in the
courts of Santa Clara County, California, or the federal courts for
the United States for the Northern District of California, and no
other courts, where this RSU award is made and/or to be
performed.
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Acknowledgement of Nature of Plan and Award . In accepting
the Award, the Employee acknowledges that:
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the Plan is established voluntarily by the Company;
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the Award is voluntary and occasional and does not create any
contractual or other right to receive future awards of RSUs, or
benefits in lieu of RSUs, even if RSUs have been awarded repeatedly
in the past;
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all decisions with respect to future awards, if any, will be at the
sole discretion of the Company;
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the Employee's participation in the Plan is voluntary;
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the Award is an extraordinary item that does not constitute
compensation of any kind for services of any kind rendered to the
Company or any Subsidiary, and which is outside the scope of the
Employee's employment or Service Provider contract, if any;
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the Award is not part of normal or expected compensation or salary
for any purposes, including, but not limited to, calculation of any
severance, resignation, termination, redundancy, end of service
payments, bonuses, long-service awards, pension or retirement or
welfare benefits or similar payments and in no event should be
considered as compensation for, or relating in any way to, past
services for the Company or any Subsidiary;
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the Award and the Shares subject to the Award are not intended to
replace any pension rights or compensation;
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in the event that the Employee is not an Employee of the Company or
any Subsidiary, the Award and his or her participation in the Plan
will not be interpreted to form an employment contract or
relationship with the Company or any Subsidiary;
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the future value of the underlying Shares is unknown and cannot be
predicted with certainty;
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in consideration of the Award, no claim or entitlement to
compensation or damages shall arise from termination of the Award
or from any diminution in value of the RSUs or Shares acquired upon
vesting of the RSUs resulting from termination of the Employee's
employment or Service Provider status by the Company or any
Subsidiary (for any reason whatsoever and whether or not in breach
of local labor laws) and the Employee irrevocably releases the
Company and any Subsidiary 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 accepting the
Award, the Employee shall be deemed irrevocably to have waived his
or her entitlement to pursue such claim;
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in the event of termination of his or her employment (whether or
not in breach of local labor laws), the Employee's right to receive
RSUs and vest in the RSUs under the Plan, if any, will terminate
effe
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