Exhibit 10.2
MIVA, INC.
RESTRICTED STOCK UNIT AGREEMENT
Name of Participant (the “Participant”):
Date of Restricted Stock Unit Award:
Number of Restricted Stock Units:
This
Restricted Stock Unit Agreement (the “Agreement”) is
entered into as of the date set forth above (the “Award
Date”) by and between MIVA, Inc., a Delaware corporation (the
“Company”), and the Participant. Defined terms not
explicitly defined in this Agreement shall have the same
definitions as in the Plan.
* * *
* *
WHEREAS, the
Company has adopted the MIVA, Inc. 2006 Stock Award and Incentive
Plan (the “Plan”) administered by a committee of the
Company’s Board of Directors (the “Committee”);
and
WHEREAS,
pursuant to the Plan, as of the Award Date, the Company granted to
Participant Restricted Stock Units as set forth above (the
“RSUs”) and is executing this Agreement with
Participant for the purpose of setting forth the terms and
conditions of such RSUs;
NOW,
THEREFORE, in consideration of the premises and the covenants and
conditions contained herein, the Company and Participant agree as
follows:
| |
1. |
|
Grant of Restricted Stock
Units .
|
The Company
hereby confirms the grant of the RSUs to Participant as of the
Award Date. Subject to the terms of this Agreement and the Plan,
the RSUs granted under this Agreement shall vest during the period
set forth in Section 2 below. As soon as administratively
practicable following each Vesting Date (as defined in
Section 2 below), the Company shall issue to Participant one
(1) share of Stock free and clear of any vesting restrictions
for each vested RSU, subject to and contingent upon certification
by the Committee that the Performance Goal (as defined in Section 2
below) has been attained.
| |
2. |
|
Vesting of Restricted Stock
Units .
|
The RSUs shall
vest on the Vesting Date, as defined below, if the closing price of
the Stock is at or above $4.00 per share for ten consecutive
trading days (the “Performance Goal”). The Vesting Date
shall be the day following achievement of the Performance Goal;
provided, however, if the Performance Goal is met prior to
June 30, 2008, the Vesting Date shall be June 30, 2008;
and provided further, that no RSUs shall vest upon attainment of
the Performance Goal unless Participant has been continuously
employed by the Company from the Award Date until the date upon
which the Performance Goal is attained.
| |
3. |
|
Termination of
Employment/Change of Control .
|
(a) Except as expressly provided herein, Participant shall
forfeit any unvested RSUs: (i) in the event of a Termination
of Employment of Participant for any reason prior to attainment of
the Performance Goal; and (ii) in the event of a Termination
of Employment of Participant for Cause (as defined in
Participant’s Employment Agreement with the Company as of
_____ , 200_) following attainment of the Performance
Goal but prior to the Vesting Date. For the avoidance of doubt, in
the event of a Termination of Employment of Participant other than
for Cause following attainment of the Performance Goal but prior to
the Vesting Date, the RSUs shall vest on the Vesting Date. For
purposes of this Agreement, a “Termination of
Employment” of Participant means the effective time when the
employer-employee relationship between Participant and the Company
terminates for any reason whatsoever. In determining the existence
of continuous employment of Participant by the Company or the
existence of an employer-employee relationship between Participant
and the Company for purposes of this Agreement, the term
“Company” shall include a subsidiary of the Company;
and neither a transfer of Participant from the employ of the
Company to the employ of a subsidiary nor the transfer of
Participant from the employ of a subsidiary to the employ of the
Company or another subsidiary shall be deemed to be a Termination
of Employment of Participant. Notwithstanding anything herein to
the contrary, in the event of a Termination of Employment of
Participant by reason of Participant’s death following
attainment of the Performance Goal but prior to the Vesting Date,
the Vesting Date shall be deemed to occur as of the date of
Participant’s death.
(b) Notwithstanding anything herein to the contrary:
(i) in the event of a Change in Control (as defined in
Section 9 of the Plan) of the Company prior to attainment of
the Performance Goal, Participant shall forfeit any unvested RSUs,
and (ii) in the event of a Change in Control (as defined in
Section 9 of the Plan) of the Company following attainment of
the Performance Goal but prior to the Vesting Date, the Vesting
Date shall be deemed to occur as of the date of such Change in
Control.
| |
4. |
|
Adjustments Upon the
Occurrence of Certain Events .
|
In the event
that any large, special and non-recurring dividend or other
distribution (whether in the form of cash or property other than
Stock), recapitalization, forward or reverse split, Stock dividend,
reorganization, merger, consolidation, spin-off, combination,
repurchase, share exchange, liquidation, dissolution or other
similar corporate transaction or event affects the Stock, such
substitutions or adjustments shall be made to the RSUs (or Stock
underlying such award) subject to this Agreement in accordance with
Section 11(c) of the Plan, as may be determined to be appropriate
by the Board or the Committee, as the case may be, in its sole
discretion; provided , however , that the number of
shares of Stock covered by the RSUs shall always be a whole
number.
2
| |
5. |
|
Representations of
Participant .
|
Participant
hereby represents and warrants to the Company as follows:
(a) Participant has full legal power, authority, and capacity
to execute and deliver this Agreement and to perform
Participant’s obligations under this Agreement; and this
Agreement is a valid and binding obligation of Participant,
enforceable in accordance with its terms, except that the
enforcement of this Agreement may be subject to bankruptcy,
insolvency, reorganization, moratorium, or other similar laws now
or hereafter in effect relating to creditors’ rights
generally and to general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or
at law).
(b) Participant is aware of the public availability on the
Internet at www.sec.gov of the Company’s periodic and
other filings made with the United States Securities and Exchange
Commission.
(c) Participant acknowledges and agrees that the Plan is
discretionary in nature and may be amended, cancelled or terminated
by the Company, in its sole discretion, at any time; provided,
however, that no such amendment may be made by the Board or
Committee, as the case may be, which in any material respect,
impairs the rights of Participant without Participant’s
consent, except for such amendments which are made to cause the
Plan to qualify for the exemption provided by Rule 16b-3 or to be
in compliance with the provisions of Section 162(m). The grant
of RSUs represents a one-time benefit and does not create any
contractual right or other right to receive RSUs or benefits in
lieu of RSUs in the future.
(d) Participant acknowledges and agrees that
Participant’s participation in the Plan is voluntary. The
value of the RSUs is an extraordinary item of compensation outside
the scope of Participant’s employment contract, if any. The
RSUs are not part of normal or expected compensation for purposes
of calculating any severance, resignation, redundancy, end of
serv
|
