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ALLIANCE FIBER OPTIC PRODUCTS, INC.
2000 STOCK INCENTIVE PLAN
NOTICE OF RESTRICTED STOCK UNIT GRANT
You (Grantee) have been granted the following number of restricted stock units (RSUs) of ALLIANCE FIBER OPTIC PRODUCTS, INC. (the Company) under the Companys 2000 Stock Incentive Plan (the Plan):
Name of Grantee: | [insert] |
Total Number of RSUs Granted: | __________ |
Grant Date: | _________________________, 2011 |
Vesting Commencement Date: | [insert] |
Vesting Schedule: | [insert] |
[If the Company is subject to a Change in Control (as defined in the Plan) during your Service, your interest in all Stock Units awarded hereunder shall become fully vested and nonforfeitable as of the date of Change in Control.] | |
[No additional Stock Units vest after your Service has terminated for any reason.] |
By Grantees signature and the signature of the Companys representative below, Grantee and the Company agree that these RSUs are granted under and governed by the term and conditions of the Plan and the Restricted Stock Unit Agreement, which are attached to and made a part of this Notice of Restricted Stock Unit Grant (Notice of Grant).
By signing this Notice of Grant, Grantee further agrees that the Company may deliver by e-mail all documents relating to the Plan or this award (including without limitation, prospectuses required by the U.S. Securities and Exchange Commission) and all other documents that the Company is required to deliver to its security holders (including without limitation, annual reports and proxy statements). Grantee also agrees that the Company may deliver these documents by posting them on a website maintained by the Company or by a third party under contract with the Company. If the Company posts these documents on a website, it will notify Grantee by e-mail.
ALLIANCE FIBER OPTIC PRODUCTS, INC.
2000 STOCK INCENTIVE PLAN
Grantee: | Alliance Fiber Optic Products, Inc. | ||
By: | |||
Grantees Signature | |||
Title: | |||
Grantees Printed Name |
ALLIANCE FIBER
OPTIC PRODUCTS, INC.
2000 STOCK INCENTIVE PLAN
ALLIANCE FIBER OPTIC PRODUCTS, INC.
2000 STOCK INCENTIVE PLAN
RESTRICTED STOCK UNIT AGREEMENT
1. | Grant |
Pursuant to the Notice of Restricted Stock Unit Grant (the Notice of Grant) to which this Restricted Stock Unit Agreement (the Agreement) is attached, ALLIANCE FIBER OPTIC PRODUCTS, INC. (the Company), has granted to Grantee the right to receive one Share for each vested Restricted Stock Unit (RSU) awarded by this Agreement, as set forth in the Notice of Grant, pursuant to the Companys 2000 Stock Incentive Plan (the Plan). The terms Restricted Stock Units and RSUs shall have the same meaning ascribed to the term Stock Units in the Plan. Capitalized terms used in this Agreement without definition shall have the meanings set forth in the Plan. | ||
2. | Payment |
No cash payment is required for the issuance of the Shares subject to the RSUs. The Shares subject to the RSUs shall become payable to Grantee, in consideration of Services rendered by Grantee, if and when the RSUs become nonforfeitable in accordance with Section 3 (Vesting Schedule) hereof. | ||
3. |
Vesting Schedule |
Subject to Section 4 (Forfeiture upon Termination of Service), Grantees right to receive Shares subject to the RSUs awarded by this Agreement will vest in Grantee according to the vesting schedule set forth in the Notice of Grant. | ||
4. | Forfeiture upon Termination of Service |
Notwithstanding any contrary provision of this Agreement or the Notice of Grant, if Grantee terminates Service with the Company 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 consideration to Grantee. The date on which Service terminates shall not be extended by any notice period required to be given under local law (e.g., Service would not include a period of garden leave). The Company determines when Service terminates for this purpose and for all purposes under the Plan, and its determinations are conclusive and binding on all persons. | ||
5. | Leaves of Absence |
For purposes of this Award, Grantees Service does not terminate when Grantee goes on a military leave, a sick leave or another bona fide leave of absence, if the leave was approved by the Company in writing and if continued crediting of Service is required by the terms of the leave or by applicable law. But Grantees Service terminates when the approved leave ends, unless Grantee immediately returns to active work. |
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If Grantee goes
on a leave of absence, then the vesting schedule specified in the Notice
of Grant may be adjusted in accordance with the Companys leave of absence
policy or the terms of Grantees leave. If Grantee commences working on a
part-time basis, then the vesting schedule specified in the Notice of
Grant may be adjusted in accordance with the Companys part-time work
policy or the terms of an agreement between Grantee and the Company
pertaining to Grantees part-time schedule. Except as otherwise provided for
in Section 10 (Adjustments), settlement of the RSUs shall be made in the
form of whole Shares at the time they become nonforfeitable in accordance
with Section 3 (Vesting Schedule) hereof, or as soon as practicable
thereafter, but with regard to U.S. taxpayers, in any event, not later
than 2½ months following the later to occur of the end of (i) Grantees
tax year that includes the date of vesting, or (ii) the Companys tax year
that includes the applicable date of vesting. [Notwithstanding the foregoing, if the RSUs vest upon a Change in
Control of the Company (as defined in the Plan), settlement of the RSUs
shall be made as soon as practicable (but not more than 30 days) after the
Change in Control.] At the time of settlement, Grantee will
receive one Share for each vested RSU; provided, however, that no
fractional Shares will be issued or delivered pursuant to the Plan or this
Agreement, and the Company will determine whether cash will be paid in
lieu of any fractional Share or whether such fractional share and any
rights thereto will be canceled, terminated or otherwise eliminated. In
addition, the Shares are issued to Grantee subject to the condition that
the issuance of the Shares does not violate any law or
regulation. Taxes
and (a) Regardless of any action the
Company or Grantees employer (the Employer) takes with respect to any
or all income tax, social insurance, payroll tax, payment on account or
other tax-related items related to Grantees participation in the Plan and
legally applicable to Grantee (Tax-Related Items), Grantee acknowledges
that the ultimate liability for all Tax-Related Items is and remains
Grantees responsibility and may exceed the amount actually withheld by
the Company or the Employer. Grantee further acknowledges that the Company
and/or the Employer (i) make no representations or undertakings regarding
the treatment of any Tax-Related Items in connection with any aspect of
the RSU, including, but not limited to, the grant, vesting or settlement
of the RSU, the issuance of Shares, or the subsequent sale of Shares
acquired pursuant to such issuance; and (ii) do not commit to and are
under no obligation to structure the terms of the grant or any aspect of
the RSU to reduce or eliminate Grantees liability for Tax-Related Items
or achieve any particular tax result. Further, if Grantee has become
subject to tax in more than one jurisdiction between the date of grant and
the date of any relevant taxable event, Grantee 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.
6.
Form and Time
of
Settlement
7.
Withholding
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(b) Prior to any relevant taxable or tax withholding event, as applicable, Grantee will pay or make adequate arrangements satisfactory to the Company and/or the Employer to satisfy all Tax-Related Items. Unless otherwise determined by the Company, this Tax-Related Items withholding obligation shall be satisfied by the retention by the Company of Shares otherwise deliverable pursuant to the vested RSU; provided, however, that the Shares retained for payment of the Tax-Related Items must not exceed the minimum tax withholding amount permissible under the method that results in the least amount withheld. If the obligation for Tax-Related Items is satisfied by withholding in Shares, for tax purposes, Grantee is deemed to have been issued the full number of Shares subject to the vested RSU, notwithstanding that a number of the Shares are held back solely for the purpose of paying the Tax-Related Items due as a result of any aspect of Grantees participation in the Plan. | ||||
(c) In the alternative and subject to the Companys authorization, Grantee agrees that the Company and/or the Employer, or their respective agents, at their discretion, may satisfy the obligations with regard to all Tax-Related Items by one or a combination of the following without Grantees further consent: | ||||
(i) withholding from Grantees wages or other cash compensation paid to Grantee by the Company, the Employer and/or any Subsidiary or Affiliate; or | ||||
|
(ii) withholding from proceeds of the sale of Shares acquired upon vesting/settlement of the RSUs through a voluntary sale (on Grantees behalf and pursuant to this authorization). | |||
(d) Grantee shall pay to the Company or the Employer any amount of Tax-Related Items that the Company or the Employer may be required to withhold or account for as a result of Grantees participation in the Plan that cannot be satisfied by the means described in this Section. |
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(e) The Company may refuse to issue or deliver the Shares or proceeds of the sale of Shares if Grantee fails to comply with Grantees obligations in connection with the Tax-Related Items. Grantee shall have no further rights with respect to any Shares that are retained by the Company pursuant to this provision, and under no circumstances will the Company be required to issue any fractional Shares. | ||||
8. | Restrictions
on Resale |
By signing this Agreement, Grantee agree not to sell any Shares at a time when applicable laws, Company policies or an agreement between the Company and its underwriters prohibit a sale. This restriction will apply as long as Grantee is an employee, consultant or director of the Company, a Subsidiary or Affiliate. | ||
9. |
Retention Rights |
Neither the Award nor this Agreement gives Grantee the right to be retained by the Company, a Subsidiary or an Affiliate in any capacity. The Award will not be interpreted to form an employment contract or relationship with the Company or any Subsidiary or Affiliate. Grantees participation in the Plan shall not create a right to further employment with the Employer and shall not interfere with the ability of the Employer to terminate Grantees employment or service relationship (if any) at any time with or without cause. | ||
10. |
Adjustments |
In the event of a stock split, a stock dividend or a similar change in Stock or other capitalization adjustment contemplated in Section 11(a) of the Plan, the number of RSUs subject to this Agreement shall be adjusted pursuant to the Plan. | ||
11. | Grant is
not Transferable |
Subject to the provisions of Section 10(f) of the Plan regarding the designation of beneficiaries, neither the RSUs granted hereby nor any interest therein or in the Shares related thereto shall be transferable other than by will or the laws of descent and distribution prior to settlement of the RSUs. Any attempt to transfer the RSUs in violation of this provision will cause the RSUs to immediately become invalid. | ||
12. | No Voting Rights
or Dividend Equivalents |
The RSUs carry neither voting rights nor rights to dividends (or dividend equivalent payments). Neither Grantee nor any person claiming under or through Grantee shall have any of the rights or privileges of a stockholder of the Company in respect of any Shares deliverable hereunder unless and until Shares have been issued, recorded on the records of the Company or its transfer agents or registrars, and delivered to such person or such persons broker. No adjustments will be made for dividends or other rights if the applicable record date occurs before the Shares are issued. |
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For U.S. taxpayers, it is
intended that the vesting and the settlement of RSUs set forth in this
Agreement shall qualify for exemption from the application of or otherwise
comply with Section 409A of the Code, and any ambiguities herein will be
interpreted to so qualify or otherwise comply. The Company reserves the
right, to the extent the Company deems necessary or advisable in its sole
discretion, to unilaterally amend or modify this Agreement as may be
necessary to ensure that all vesting and/or payments provided under this
Agreement are made in a manner that qualifies for exemption from or
complies with Section 409A of the Code; provided, however, that the
Company makes no representation that the vesting or settlement of RSUs
provided under this Agreement will be exempt from or comply with Section
409A of the Code and makes no undertaking to preclude Section 409A of the
Code from applying to the vesting and/or settlement of RSUs provided under
this Agreement or to comply with the provisions
thereof. No Service
Contract The grant of the RSU is voluntary and
occasional and does not create any contractual or other right to receive
future grants of RSUs, or benefits in lieu of RSUs, even if RSUs have been
granted repeatedly in the past. The RSU and the Shares subject to the RSU
are not part of normal or expected compensation or salary for any
purposes, including, but not limited to, calculating any severance,
resignation, termination, redundancy, dismissal, 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, the Employer or
any Subsidiary or Affiliate. Nature of
Grant The RSUs are mere bookkeeping
entries. They represent only the Companys unfunded and unsecured promise
to issue Shares on a future date subject to the terms and conditions of
this Agreement. A holder of RSUs has no rights other than the rights of a
general creditor of the Company. In accepting the grant, Grantee acknowledges
that:
13.
Compliance with
Section 409A of
the
Code
14.
15.
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(b)
all decisions with respect to future RSU
grants, if any, will be at the sole discretion of the
Company; (d)
the future value of the underlying Shares
is unknown and cannot be predicted with
certainty; (f)
for Grantees who reside outside the U.S.,
the following additional provisions shall
apply: (i) the RSUs and the Shares subject to the RSUs are not
intended to replace any pension rights or
compensation; (ii) in consideration of the grant
of RSUs, no claim or entitlement to compensation or damages shall arise
from forfeiture of the RSUs resulting from termination of Grantees
Service with the Company, the Employer or any Subsidiary or Affiliate (for
any reason whatsoever and whether or not in breach of local labor laws),
and Grantee irrevocably releases the Company, the Employer, and any
Subsidiary or Affiliate 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, Grantee shall be deemed irrevocably
to have waived Grantees entitlement to pursue such claim;
and Plan Governs This Agreement and the Notice of Grant 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 Notice of
Grant and one or more provisions of the Plan, the provisions of the Plan
will govern. Amendments Any amendment to the Plan shall
be deemed to be an amendment to this Agreement to the extent that the
amendment is applicable hereto; provided, however, that no
amendment shall adversely affect the rights of Grantee in a material way
under this Agreement without Grantees
consent.
16.
17.
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If any provision of this
Agreement or the application of any provision hereof to any person or
circumstances is held invalid or unenforceable, the remainder of this
Agreement and the application of such provision to any other person or
circumstances shall not be affected, and the provisions so held to be
invalid or unenforceable shall be reformed to the extent (and only to the
extent) necessary to make it enforceable and
valid. Successors and Without limiting Section 11 (Grant is Not
Transferable) hereof, the provisions of this Agreement shall inure to the
benefit of, and be binding upon, the successors, administrators, heirs,
legal representatives and assigns of the Grantee, and the successors and
assigns of the Company. Applicable Law and This Agreement shall be governed
by and construed in accordance with the internal substantive laws of the
State of Delaware, without giving effect to any principle of law that
would result in the application of the law of any other jurisdiction. For
purposes of litigating any dispute that arises under this grant or this
Agreement, the parties hereby submit to and consent to the jurisdiction of
the State of California, and agree that such litigation will be conducted
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 Agreement is made and/or to be
performed. The Company is not providing any tax, legal
or financial advice, nor is the Company making any recommendation
regarding Grantees participation in the Plan, or the acquisition or sale
of underlying Shares. Grantee is advised to consult with his or her
personal tax, legal, and financial advisors regarding the decision to
participate in the Plan before taking any action related to the
Plan. The Company may, in its sole discretion,
decide to deliver any documents related to current or future participation
in the Plan by electronic means. Grantee 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 a third party designated by the Company. If Grantee has received this Agreement or
any other document related to the Plan translated into a language other
than English and if the meaning of the translated version is different
than the English version, the English version will
control.
18.
Severability
19.
Assigns
20.
Venue
21.
No Advice
Regarding
Award
22.
Electronic Delivery
and Participation
23.
Language
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24. | Addresses for Notice |
Any notice necessary under this Agreement shall be addressed to the Company in care of its Secretary at the principal executive office of the Company and to Grantee at the address appearing in the personnel records of the Company for Grantee or to either party at such other address as either party hereto may hereafter designate in writing or electronically to the other. | ||
25. |
Imposition of
Other |
The Company reserves the right to impose other requirements on Grantees participation in the Plan, on the RSUs and on any Shares acquired under the Plan, to the extent the Company determines it is necessary or advisable in order to comply with local law or facilitate the administration of the Plan, and to require Grantee to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing. |
BY SIGNING THE NOTICE OF
GRANT TO THIS AGREEMENT,
GRANTEE
AGREES TO ALL OF THE TERMS AND CONDITIONS DESCRIBED ABOVE,
AS WELL AS IN THE
PLAN
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