Exhibit 10.5
TIVO INC.
RESTRICTED STOCK BONUS
AGREEMENT
This Restricted Stock Bonus
Agreement (the “ Agreement ”) is made as
of
, 20 , by and between TiVo Inc., a
Delaware corporation (the “ Company ”),
and
(“ Employee ”). Capitalized terms not
defined herein shall have the meanings assigned to such terms in
the Company’s 1999 Equity Incentive Plan (the “
Plan ”).
1. Issuance of Stock
.
(a) Pursuant to the Plan and subject
to the terms and conditions of this Agreement, on the Issuance Date
(as defined below), the Company will issue to Employee
shares of the Company’s Common Stock (the “
Shares ”) for good and valuable consideration
which the Company has determined to exceed the par value of the
Company’s Common Stock. The term “Shares” refers
to the issued Shares and all securities received in replacement of
or in connection with the Shares pursuant to stock dividends or
splits, all securities received in replacement of the Shares in a
recapitalization, merger, reorganization, exchange or the like, and
all new, substituted or additional securities or other properties
to which Employee is entitled by reason of Employee’s
ownership of the Shares.
(b) The parties agree that the
Shares have a Fair Market Value of $
per share as of the date of this Agreement.
(c) The issuance of the Shares under
this Agreement shall occur at the principal office of the Company
simultaneously with the execution of this Agreement by the parties
(the “ Issuance Date ”). On the Issuance
Date, the Company will deliver to Employee a certificate
representing the Shares to be issued to Employee (which shall be
issued in Employee’s name).
2. Limitations on
Transfer .
(a) Subject to the provisions of
Section 2(b) below, if Employee’s Continuous Service
terminates for any reason, including as a result of
Employee’s death or Disability, all of the Unreleased Shares
(as defined below) shall thereupon be forfeited immediately and
without any further action by the Company (the “
Forfeiture Restriction ”). Upon the occurrence
of such a forfeiture, the Company shall become the legal and
beneficial owner of the Shares being forfeited and all rights and
interests therein or relating thereto, and the Company shall have
the right to retain and transfer to its own name the number of
Shares being forfeited by Employee.
(b) Subject to the Employee’s
Continuous Service through each such date, 1/4
th
of the Shares shall be
released from the Forfeiture Restriction on each of the first four
anniversaries of the Issuance Date. In the event of a transaction
described to Section 11(c) of the Plan, the Forfeiture
Restriction shall automatically lapse if and to the same extent
that the vesting of outstanding options accelerates in connection
with such transaction as provided therein. If unvested options are
to be assumed or substituted for by any surviving or acquiring
corporation without acceleration upon the
occurrence of a transaction described in
Section 11(c) of the Plan, the Forfeiture Restrictions shall
continue with respect to the Shares (or any shares of such
surviving or acquiring corporation that may be issued in exchange
for such Shares). Notwithstanding anything to the contrary in this
Section 2(b), the Shares may be released from the Forfeiture
Restriction on an accelerated basis pursuant to Section 11(d)
of the Plan, and, if applicable, the Change of Control Terms and
Conditions between the Company and Employee dated as of
, 20 (the “ Change of
Control Agreement ”).
(c) Any of the Shares which, from
time to time, have not yet been released from the Forfeiture
Restriction are referred to herein as “ Unreleased
Shares .”
(d) No Unreleased Shares or any
interest or right therein or part thereof shall be liable for the
debts, contracts or engagements of Employee or his successors in
interest or shall be subject to disposition by transfer,
alienation, anticipation, pledge, encumbrance, assignment or any
other means whether such disposition be voluntary or involuntary or
by operation of law by judgment, levy, attachment, garnishment or
any other legal or equitable proceedings (including bankruptcy),
and any attempted disposition thereof shall be null and void and of
no effect. Any permitted transfer or sale of the Shares is subject
to restrictions on transfer imposed by any applicable state and
federal securities laws.
3. Escrow .
(a) Employee hereby authorizes and
directs the secretary of the Company, or such other person
designated by the Company from time to time, to transfer any
Unreleased Shares which are forfeited pursuant to Section 2
above from Employee to the Company.
(b) To insure the availability for
delivery of Employee’s Unreleased Shares upon forfeiture
under Section 2, Employee hereby appoints the secretary, or
any other person designated by the Company as escrow agent from
time to time, as its attorney-in-fact to sell, assign and transfer
unto the Company, such Unreleased Shares, if any, forfeited by
Employee pursuant to Section 2 and shall, upon execution of
this Agreement, deliver and deposit with the secretary of the
Company, or such other person designated by the Company, the share
certificate(s) representing the Unreleased Shares, together with
the stock assignment duly endorsed in blank, attached hereto as
Exhibit A . The Unreleased Shares and stock assignment shall
be held by the secretary in escrow, pursuant to the Joint Escrow
Instructions of the Company and Employee attached as
Exhibit B hereto, until the Shares are forfeited as
provided in Section 2, until such Unreleased Shares are fully
released from the Forfeiture Restriction, or until such time as
this Agreement no longer is in effect. Upon release of the
Unreleased Shares from the Forfeiture Restriction, the escrow agent
shall promptly deliver to Employee the certificate or certificates
representing such Shares in the escrow agent’s possession
belonging to Employee, and the escrow agent shall be discharged of
all further obligations hereunder; provided, however, that the
escrow agent shall nevertheless retain such certificate or
certificates as escrow agent if so required pursuant to other
restrictions imposed pursuant to this Agreement.
(c) The Company, or its designee,
shall not be liable for any act it may do or omit to do with
respect to holding the Shares in escrow and while acting in good
faith and in the exercise of its judgment.
4. Taxation
Representations . In connection with the purchase of the
Shares, Employee represents to the Company the
following:
(a) Employee acknowledges that he
has been informed that unless an election is filed by Employee with
the Internal Revenue Service and, if necessary, the proper state
taxing authorities, within thirty (30) days of the date
of this Agreement, electing pursuant to Section 83(b) of the
Internal Revenue Code of 1986, as amended (and similar state tax
provisions if applicable), to be taxed currently on the fair market
value of the Shares on the date of this Agreement, there will be a
recognition of taxable income to Employee equal to the fair market
value of the Shares at the time the Forfeiture Restriction lapses.
Employee represents that Employee has consulted any tax
consultant(s) Employee deems advisable in connection with the
receipt or disposition of the Shares or the filing of the election
under Section 83(b) and similar tax provisions and that
Employee is not relying on the Company for any tax
advice.
EMPLOYEE ACKNOWLEDGES THAT IT IS
EMPLOYEE’S SOLE RESPONSIBILITY AND NOT THE COMPANY’S TO
FILE TIMELY THE ELECTION UNDER SECTION 83(b), EVEN IF EMPLOYEE
REQUESTS THE COMPANY OR ITS REPRESENTATIVE TO MAKE THIS FILING ON
EMPLOYEE’S BEHALF.
(b) Employee has reviewed with his
own tax advisors the federal, state, local and foreign tax
consequences of this investment and the transactions contemplated
by this Agreement. Employee is relying solely on such advisors and
not on any statements or representations of the Company or any of
its agents. Employee understands that Employee (and not the
Company) shall be responsible for his own tax liability that may
arise as a result of this investment or the transactions
contemplated by this Agreement. Employee has reviewed this
Agreement in its entirety, has had an opportunity to obtain the
advice of counsel prior to executing this Agreement and fully
understands all provisions of this Agreement.
(c) Notwithstanding anything to the
contrary in this Agreement, the Company shall be entitled to
require payment (which payment may be made in cash, by deduction
from other compensation payable to Employee or in any form of
consideration permitted by Section 10(f) of the Plan) of any
sums required by federal, state or local tax law to be withheld
with respect to the issuance, lapsing of restrictions on or
exercise of the Shares; provided that unless Employee provides
written notice to the Company of his election to permit the Company
to satisfy its tax withholding obligation otherwise, the Company
may withhold Shares having a Fair Market Value equal to the
statutory minimum withholding obligation. The Company shall not be
obligated to deliver any new certificate representing vested Shares
to Employee or his legal representative unless and until Employee
or his legal representative shall have paid or otherwise satisfied
in full the amount of all federal, state and local taxes applicable
to the taxable income of Employee resulting from the grant of the
Shares or the lapse or removal of the Forfeiture
Restriction.
5. Restrictive Legends and
Stop-Transfer Orders .
(a) Legends . The
certificate or certificates representing the Shares shall bear the
following legend (as well as any legends required by applicable
state and federal corporate and securities laws):
THE SHARES REPRESENTED BY THIS
CERTIFICATE MAY BE TRANSFERRED ONLY IN ACCORDANCE WITH THE TERMS OF
AN AGREEMENT BETWEEN THE COMPANY AND THE SHAREHOLDER, A COPY OF
WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.
(b) Stop-Transfer Notices
. Employee agrees that, in order to ensure compliance with the
restrictions referred to herein, the Company may issue
