exv10w1
Exhibit 10.1
iGo., Inc.
Omnibus Long-Term Incentive Plan
Restricted Stock Unit Award Agreement
This Restricted Stock Unit Award Agreement (the “Agreement”) is made this 28th day
of April, 2011 (the “Grant Date”) by and between iGo, Inc. (the “Company”) and __________ (the
“Participant”).
WHEREAS, Participant is receiving an award of restricted stock units pursuant to the Company’s
Omnibus Long-Term Incentive Plan (the “Plan”); and
WHEREAS, it is a condition to Participant receiving the restricted stock unit award that
Participant deliver an executed version of this Agreement, along with the attached Tax Election
Form, to the Company;
NOW THEREFORE, in consideration of the mutual covenants contained herein and for other good
and valuable consideration, the Company hereby awards restricted stock units to Participant on the
following terms and conditions:
1. Award of Restricted Stock Units. The Company hereby grants to Participant a total of
_______________ (___) restricted stock units (the “Units”) subject to the terms and conditions set
forth in this Agreement.
2. Vesting Schedule. Subject to the terms and conditions of this Agreement, the Units shall
vest upon the earliest to occur, and subject to the terms and conditions, of the following (the
occurrence of such event referred to herein as the “Vesting Date”):
A. Time Based Vesting: One third (1/3) of the Units shall automatically on each of
April 28, 2012, April 28, 2013 and April 28, 2014 (the “Time Based Vesting Date”);
B. Death; Disability; or Termination Without Cause: If the Participant ceases to be
employed by the Company by reason of his or her death, total and permanent disability (as
certified by an independent medical advisor appointed by the Company prior to such
termination), or termination without “Cause” (as defined below), a prorated number of
unvested Units shall vest automatically upon such death, disability, or termination without
Cause, determined by multiplying the number of Units by a fraction, the numerator of which
is the number of complete months of continuous employment by the Participant with the
Company from the Grant Date and the denominator of which is the number of complete months
between the Grant Date and the Time Based Vesting Date. The balance of the Units subject to
the provisions of this Agreement which have not vested shall automatically be forfeited by
the Participant. “Cause” means (i)
Participant’s conviction of a felony or commission of any act of fraud, moral turpitude or
dishonesty, (ii) Participant’s breach of any of the terms or conditions of, or the failure
to perform any covenant contained in, the Company’s Employee Handbook or Code of Business
Conduct and Ethics, as modified from time to time, or (c) Participant’s violation of
reasonable instructions or policies established by the Company with respect to the operation
of its business and affairs or Participant’s failure to carry out the reasonable
instructions required in connection with his or her employment.
C. Change in Control: Upon a “Change in Control,” as defined below, one hundred
percent (100%) of the Units shall vest automatically. A “Change in Control” shall mean the
occurrence of one or more of the following events: (i) any person within the meaning of
Section 13(d) and 14(d) of the Securities Exchange Act or 1934, as amended (the “Exchange
Act”), other than the Company (including its subsidiaries, directors or executive officers)
has become the beneficial owner, within the meaning of Rule 13d-3 under the Exchange Act, of
50 percent or more of the combined voting power of the Company’s then outstanding common
stock or equivalent in voting power of any class or classes of the Company’s outstanding
securities ordinarily entitled to vote in elections of directors (“voting securities”); (ii) shares representing 50 percent or more of the combined voting power of the Company’s voting
securities are purchased pursuant to a tender offer or exchange offer (other than an offer
by the Company or its subsidiaries, directors or executive officers); (iii) as a result of,
or in connection with, any tender offer or exchange offer, merger or other business
combination, sale of assets or contested election, or any combination of the foregoing
transactions (a “Transaction”), the persons who were directors of the Company before the
Transaction shall cease to constitute a majority of the Board or of any successor to the
Company; (iv) following the date hereof, the Company is merged or consolidated with another
corporation and as a result of such merger or consolidation less than 50 percent of the
outstanding voting securities of the surviving or resulting corporation shall then be owned
in the aggregate by the former stockholders of the Company, other than (1) any party to such
merger or consolidation, or (2) any affiliates of any such party; or (v) the Company
transfers more than 50 percent of its assets, or the last of a series of transfers results
in the transfer of more than 50 percent of the assets of the Company, or the Company
transfers a business unit and/or business division responsible for more than 35% of the
Company’s revenue for the twelve-month period preceding the month in which such transfer
occurred, in either case, to another entity that is not wholly-owned by the Company. Any
determination required above in this subsection (v) shall be made by the Compensation
Committee of the Board of Directors of the Company, as constituted immediately prior to the
occurrence of such event.
3. Restrictions. This Agreement and the Units granted pursuant hereto shall be subject to
the following restrictions:
A. Termination of Agreement and Rights to Units. Any Units that have not otherwise
vested pursuant to the terms of this Agreement shall be automatically forfeited upon the
Participant’s termination of employment or service with the Company.
B. Non-Assignability. Unless otherwise determined by the Compensation Committee of
the Board of Directors of the Company, the Participant may not sell, assign, transfer, discount, or
pledge as collateral for a loan, or otherwise anticipate any right to payment under the Plan or
this Agreement other than by will or by the applicable laws of descent and distribution.
4. Form and Timing of Payment. Any vested Units shall be paid by the Company in shares of
the Company’s common stock, par value $0.01 per share (the “Shares”) on a one-to-one basis on, or
as soon as practicable after, the Vesting Date.
5. Tax Withholding. Upon the vesting of any Units, the tax withholding obligations of the
Participant and the Company shall be satisfied, at the Participant’s election pursuant to the
attached Tax Election Form, by the Participant either paying the appropriate tax withholding amount
in cash, or tendering to the Company a sufficient number of Shares necessary to satisfy the
Participant’s and the Company’s tax withholding obligations.
6. Change in Capital Structure. The terms of this Agreement, including the number of Units
subject to this Agreement, shall be adjusted as the Compensation Committee of the Board of
Directors of the Company determines is equitably required in the event the Company effects any
merger, reorganization, consolidation, recapitalization, stock dividend, stock split, reverse stock
split, spin-off, combination, repurchase or exchange of shares or other securities of the Company,
or similar corporate transaction.
7. No Rights as a Stockholder. The Participant shall have no rights as a stockholder with
respect to any Shares until the date of the issuance and delivery of such Shares.
8. No Right to Employment. This Agreement shall not be construed as giving the Participant
the right to be retained in the employ or as a consultant of the Company or any affiliate of the
Company, as the case may be. The Company may at any time terminate the Participant’s employment or
a consultant’s provision of services free from any liability or any claim under the Plan or this
Agreement.
9. Participant Bound by Plan. The Participant hereby acknowledges that a copy of the Plan
and the Prospectus for the Plan has been made available to him or her and the Participant agrees to
be bound by all the terms and provisions of the Plan.
10. Conflicts. In the event of any conflict between the provisions of the Plan as in
effect on the Grant Date and the provisions of this Agreement, the provisions of the Plan shall
govern.
11. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the
legatees, distributes and personal representatives of the Participant and the successors of the
Company.
12. Governing Law. This Agreement shall be governed by, and interpreted under, the laws of
the State of Arizona without regard to conflicts of law provisions thereof, and the Participant and
the Company irrevocably consent to the exclusive jurisdiction of and venue in the federal and/or
state courts located in Phoenix, Arizona.
IN WITNESS WHEREOF, the Company has executed this Agreement as of the day and year first above
written.
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IGO, INC.
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By: |
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Name: |
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Title: |
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The undersigned Participant hereby accepts, and agrees to, all terms and provisions of the
foregoing Agreement. If you do not sign and return this Agreement, you will not be entitled to the
Units.
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| Signature |
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| Print Name |
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| Social Security Number or |
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| Commerce ID Number |
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