Exhibit 10.3
ARBINET-THEXCHANGE,
INC.
RESTRICTED STOCK UNIT
AGREEMENT
RECITALS
A. The Board has adopted the Plan
for the purpose of retaining the services of selected Employees and
consultants and other independent advisors who provide services to
the Corporation (or any Parent or Subsidiary).
B. Participant is to render valuable
services to the Corporation (or a Parent or Subsidiary), and this
Agreement is executed pursuant to, and is intended to carry out the
purposes of, the Plan in connection with the Corporation’s
issuance of shares of Common Stock to the Participant under the
Plan.
C. All capitalized terms in this
Agreement shall have the meaning assigned to them in the attached
Appendix A.
NOW, THEREFORE
, it is hereby agreed as
follows:
1. Grant of Restricted Stock
Units . The Corporation hereby awards to the Participant,
as of the Award Date, Restricted Stock Units under the Plan. Each
Restricted Stock Unit represents the right to receive one share of
Common Stock on the vesting date of that unit. The number of shares
of Common Stock subject to the awarded Restricted Stock Units, the
applicable vesting schedule for those shares, the dates on which
those vested shares shall be issued to Participant and the
remaining terms and conditions governing the award (the
“Award”) shall be as set forth in this
Agreement.
AWARD SUMMARY
|
|
|
|
|
Participant:
|
|
[
]
|
|
|
|
|
Award Date:
|
|
[
]
|
|
|
|
|
Number of Shares
|
|
[
]shares of Common Stock (the “Shares”)
|
|
Subject to Award:
|
|
|
|
|
|
|
Vesting Schedule:
|
|
The Shares
shall vest in a series of three (3) successive equal annual
installments upon the Participant’s completion of each year
of Service over the three (3)-year period measured from [
], 200 . However, one or more
Shares may be subject to accelerated vesting in accordance with the
provisions of Paragraph 5 of this Agreement.
|
|
|
|
|
Issuance Schedule
|
|
The Shares in
which the Participant vests in accordance with the foregoing
Vesting Schedule will be issuable immediately upon vesting, subject
to the Corporation’s collection of the applicable Withholding
Taxes in accordance with the mandatory Share withholding provisions
of Paragraph 7 of this Agreement.
|
2. Limited
Transferability . Prior to actual receipt of the Shares
which vest hereunder, the Participant may not transfer any interest
in the Award or the underlying Shares. Any attempt by Participant
to do so shall result in an immediate forfeiture of the Restricted
Stock Units awarded hereunder. However, any Shares which vest
hereunder but which otherwise remain unissued at the time of the
Participant’s death may be transferred pursuant to the
provisions of the Participant’s will or the laws of
inheritance or to the Participant’s designated beneficiary or
beneficiaries of this Award. The Participant may also direct the
Corporation to issue the stock certificates for any Shares which in
fact vest and become issuable under the Award during his or her
lifetime to one or more designated family members or a trust
established for the Participant and/or his or her family members.
The Participant may make such a beneficiary designation or
certificate directive at any time by filing the appropriate form
with the Plan Administrator or its designate.
3. Cessation of
Service . Should the Participant cease Service for any
reason prior to vesting in one or more Shares subject to this
Award, then the Award will be immediately cancelled with respect to
those unvested Shares and the number of Restricted Stock Units will
be reduced accordingly. The Participant shall thereupon cease to
have any right or entitlement to receive any Shares under those
cancelled units.
4. Stockholder Rights
. The holder of this Award shall not have any stockholder rights,
including voting or dividend rights, with respect to the Shares
subject to the Award until the Participant becomes the record
holder of those Shares following their actual issuance upon the
Corporation’s collection of the applicable Withholding
Taxes.
5. Reorganization
Event .
(a) Upon the occurrence of a
Reorganization Event other than a liquidation or dissolution of the
Company, the repurchase and other rights of the Company under each
outstanding Restricted Stock Award shall inure to the benefit of
the Company’s successor and shall apply to the cash,
securities or other property which the Common 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 Common
Stock subject to such Restricted Stock 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 any Restricted Stock Award or
any other agreement between a Participant and the Company, all
restrictions and conditions on all Restricted Stock Awards then
outstanding shall automatically be deemed terminated or
satisfied.
(b) This Agreement shall not in any
way affect the right of the Corporation 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.
2
6. Adjustment in
Shares . Should any change be made to the Common Stock by
reason of any stock split, stock dividend, recapitalization,
combination of shares, exchange of shares or other change affecting
the outstanding Common Stock as a class without the
Corporation’s receipt of consideration, appropriate
adjustments shall be made to the total number and/or class of
securities issuable pursuant to this Award in order to reflect such
change and thereby preclude a dilution or enlargement of benefits
hereunder.
7. Issuance of Shares of
Common Stock .
(a) As soon as administratively
practicable following the applicable vesting date of any portion of
the Award, the Corporation shall issue to or on behalf of the
Participant a certificate (which may be in electronic form) for the
applicable number of underlying shares of Common Stock; provided
that the Corporation’s obligation to deliver the Shares which
vest under this Award shall be subject to the Corporation’s
collection of the applicable Withholding Taxes. Such Withholding
Taxes shall be collected in accordance with the following
procedure:
|
|
•
|
|
On each date
vested Shares are to be issued to the Participant under this
Agreement, the Corporation shall automatically withhold a portion
of those vested Shares with a Fair Market Value (measured as of
such vesting date) equal to the amount of the applicable
Withholding Taxes and shall deposit a cash amount equal to the Fair
Market Value of those withheld shares with the appropriate taxing
authorities in satisfaction of such Withholding Taxes;
provided, however , that the amount of any Shares so
withheld shall not exceed the amount necessary to satisfy the
Corporation’s required tax withholding obligations using the
minimum statutory withholding rates for federal and state tax
purposes, including payroll taxes, that are applicable to
supplemental taxable income. To the extent any Shares are converted
into a cash amount in connection w
|
