Exhibit 10.4
POWERWAVE TECHNOLOGIES,
INC.
RESTRICTED STOCK AWARD
AGREEMENT
UNDER
2005 STOCK INCENTIVE
PLAN
THIS RESTRICTED STOCK AWARD
AGREEMENT (the “Agreement”) is entered into as of
, 200 by and between
(hereinafter referred to as “Purchaser”) and Powerwave
Technologies, Inc., a Delaware corporation (hereinafter referred to
as the “Company”), pursuant to the Company’s 2005
Stock Incentive Plan (the “Plan”). Any capitalized term
not defined herein shall have the same meaning ascribed to it in
the Plan.
R E C I T A L S:
A. Purchaser is an employee, director, or other
Eligible Person, and in connection therewith has rendered services
for and on behalf of the Company or its Affiliates.
B. The Company desires to issue shares of common
stock to Purchaser for the consideration set forth herein to
provide an incentive for Purchaser to remain in the service of the
Company and to exert added effort towards its growth and
success.
NOW, THEREFORE, in consideration of
the mutual covenants hereinafter set forth, and for other good and
valuable consideration, the parties agree as follows:
1. Issuance of Shares . The Company
hereby offers to issue to Purchaser an aggregate of
( ) shares
of Common Stock of the Company (the “Shares”) on the
terms and conditions herein set forth. Unless this offer is earlier
revoked in writing by the Company, Purchaser shall have ten
(10) days from the date of the delivery of this Agreement to
Purchaser to accept the offer of the Company by executing and
delivering to the Company two copies of this Agreement, without
condition or reservation of any kind whatsoever, together with the
consideration to be delivered by Purchaser pursuant to
Section 2 below, if applicable.
2. Consideration . The purchase price
for the Shares shall be
($
).
3. Vesting of Shares .
(a) Subject to Section 3(b) below, the Shares
acquired hereunder shall vest and become “Vested
Shares” as to [
percent (
%) of the Shares] on the first anniversary of the
effective date of this Agreement, and thereafter, [
( %)]
of the Shares shall become Vested Shares on each subsequent
anniversary date of this Agreement, such that 100% of the Shares
shall be Vested Shares on the
anniversary
of this Agreement. Shares which have not yet become vested are
herein called “Unvested Shares.” No additional shares
shall vest after the date of termination of Purchaser’s
“Continuous Service” (as defined below).
As used herein, the term
“Continuous Service” means (i) employment by
either the Company or any parent or subsidiary corporation of the
Company, or by any successor entity following a Change in Control,
which is uninterrupted except for vacations, illness (except for
permanent disability, as defined in Section 22(e)(3) of the
Code), or leaves of absence which are approved in
writing by the Company or any of such other
employer corporations, if applicable, or (ii) service as a
member of the Board of Directors of the Company until Purchaser
resigns, is removed from office, or Purchaser’s term of
office expires and he or she is not reelected. The
Purchaser’s Continuous Service shall not terminate merely
because of a change in the capacity in which the Purchaser renders
service to the Company or a corporation or subsidiary corporation
described in clause (i) above. For example, a change in the
Purchaser’s status from an employee to a Non-Employee
Director will not constitute an interruption of the
Purchaser’s Continuous Service, provided there is no
interruption in the Purchaser’s performance of such services.
Notwithstanding the foregoing, for any employee of a subsidiary of
the Company located outside the United States, such
employee’s Continuous Service shall be deemed terminated upon
the commencement of such employee’s “garden leave
period,” “notice period,” or other similar period
where such employee is being compensated by such subsidiary but not
actively providing service to such subsidiary.
(b) Notwithstanding Section 3(a) above, if
Purchaser holds Shares at the time a Change in Control occurs, and
(x) the Change in Control is not approved by a majority of the
Continuing Directors (as defined below), or (y) the acquiring
or successor entity (or parent thereof) does not agree to provide
for the continuance or assumption of this Agreement or the
substitution for this Agreement of a new agreement of comparable
value covering shares of a successor corporation (with appropriate
adjustments as to the number and kind of shares and the purchase
price), then all “Repurchase Rights” (as defined in
Section 4 below) shall automatically terminate immediately
prior to the consummation of such Change in Control and the Shares
subject to those terminated Repurchase Rights shall immediately
vest in full. Notwithstanding the foregoing sentence, if pursuant
to a Change in Control approved by a majority of the Continuing
Directors the acquiring or successor entity (or parent thereof)
provides for the continuance or assumption of this Agreement or the
substitution for this Agreement of a new agreement of comparable
value covering shares of a successor corporation (with appropriate
adjustments as to the number and kind of shares and the purchase
price), then the Repurchase Rights shall not terminate and vesting
of the Shares shall not accelerate in connection with such Change
in Control to the extent this Agreement is continued, assumed or
substituted for; provided, however, if Purchaser’s Continuous
Service is terminated without Cause or pursuant to a Constructive
Termination (as defined below) within 180 days following such
Change in Control, all Repurchase Rights shall terminate and
vesting of the Shares or any substituted shares shall accelerate in
full automatically effective upon such termination. For purposes of
this Section 3, the following terms shall have the meanings
set forth below:
(i) “Cause” means, with respect to a
Purchaser’s Continuous Service, the termination by the
Company of such Continuous Service for any of the following
reasons: (A) The continued, unreasonable refusal or omission
by the Purchaser to perform any material duties required of him by
the Company if such duties are consistent with duties customary for
the position held with the Company; (B) Any material act or
omission by the Purchaser involving malfeasance or gross negligence
in the performance of Purchaser’s duties to, or material
deviation from any of the policies or directives of, the Company;
(C) Conduct on the part of Purchaser which constitutes the
breach of any statutory or common law duty of loyalty to the
Company; including the unauthorized disclosure of material
confidential information or trade secrets of the Company; or
(D) any illegal act by Purchaser which materially and
adversely affects the business of the Company or any felony
committed by Purchaser, as evidenced by conviction thereof,
provided that the Company may suspend Purchaser with pay while any
allegation of such illegal or felonious act is investigated. In the
event that the Purchaser is a party to an employment agreement or
other similar agreement with the Company or any Affiliate that
defines a termination on account of “Cause” (or a term
having similar meaning), such definition shall apply as the
definition of a termination on account of
“Cause”
2
for purposes hereof, but only to the
extent that such definition provides the Purchaser with greater
rights. A termination on account of Cause shall be communicated by
written notice to the Purchaser, and shall be deemed to occur on
the date such notice is delivered to the Purchaser.
(ii) “Constructive Termination” shall
mean a termination of employment by Purchaser within sixty
(60) days following the occurrence of any one or more of the
following events without the Purchaser’s written consent
(i) any reduction in position, title, overall
responsibilities, level of authority, level of reporting, base
compensation, annual incentive compensation opportunity, aggregate
employee benefits or (ii) a request that Purchaser’s
location of employment be relocated by more than fifty
(50) miles. In the event that the Purchaser is a party to an
employment agreement or other similar agreement with the Company or
any Affiliate (or a successor entity) that
