EXHIBIT 10.13
FORM OF STOCK AWARD AGREEMENT FOR ACQUISITION EQUITY INCENTIVE
PLAN (5 YEAR CLIFF VESTING)
CALIPER TECHNOLOGIES CORP.
ACQUISITION EQUITY INCENTIVE PLAN
STOCK AWARD AGREEMENT
Caliper Technologies Corp. (the "Company") wishes to sell to you, and you wish
to purchase, shares of Common Stock from the Company, pursuant to the provisions
of the Company's Acquisition Equity Incentive Plan (the "Plan").
Therefore, pursuant to the terms of the Stock Award Grant Notice ("Grant
Notice") and this Stock Award Agreement ("Agreement") (collectively, the
"Award"), the Company grants you the right to purchase the number of shares of
Common Stock indicated in the Grant Notice. Defined terms not explicitly defined
in this Agreement but defined in the Plan shall have the same definitions as in
the Plan.
The details of your Award are as follows:
1. AGREEMENT TO PURCHASE. You hereby agree to purchase from the
Company, and the Company hereby agrees to sell to you, the aggregate number of
shares of Common Stock specified in your Grant Notice at the specified Purchase
Price per Share. You may not purchase less than the aggregate number of shares
specified in the Grant Notice.
2. CLOSING. The purchase and sale of the shares shall be consummated as
follows:
(a) You may purchase the shares by delivering the Total Purchase
Price referenced in your Grant Notice to the Secretary of the Company, or to
such other person as the Company may designate, during regular business hours,
on the Closing Date specified in the Grant Notice (or at such other time and
place as you and the Company may mutually agree upon in writing) along with such
additional documents as the Company may then require, including, but not limited
to, any stockholders agreement that the Company may require you to execute, in
its sole discretion.
(b) You agree to execute three (3) copies of the Assignment
Separate From Certificate (with date and number of shares blank) substantially
in the form attached to the Grant Notice as Attachment III and to execute Joint
Escrow Instructions substantially in the form attached to the Grant Notice as
Attachment IV and to deliver the same to the Company on the Closing Date, along
with the certificate or certificates evidencing the shares, for use by the
Escrow Agent pursuant to the terms of the Joint Escrow Instructions.
3. METHOD OF PAYMENT. You may make payment of the Purchase Price in
cash or by check.
4. VESTING.
(a) GENERAL. Subject to the limitations contained herein, the
shares you purchase shall vest fully five (5) years from the Vesting
Commencement Date, provided that (i) vesting may occur sooner as provided in
Section 4(b) below, and (ii) vesting shall cease upon the termination of your
Continuous Service.
(b) ACCELERATED VESTING. Notwithstanding the vesting schedule in
Section 4(a) of this Agreement, a number of shares subject to this Award, the
Accelerated Amount (as defined below), shall become fully vested and no longer
subject to the Unvested Share Repurchase Option five (5) days after the first
day of an Open Window (as defined below ) that occurs after a Vesting
Acceleration Event (as defined below).
For purposes of this Section, an "Open Window" means a time period
when you may sell your shares without any restriction from Company trading
policies.
For purposes of this Section, the "Stock Purchase Agreement" means
the Stock Purchase Agreement, dated as of June 9, 2003, among the Company, the
Berwind Company LLC, and Berwind Corporation. The terms of the Stock Purchase
Agreement referred to herein shall be as of the effective date of the Stock
Purchase Agreement and the terms of this Agreement shall not be amended or
changed by any amendment to the Stock Purchase Agreement without the written
agreement of you and the Company.
For purposes of this Section, a "Vesting Acceleration Event" means a
date upon which it is finally determined, pursuant to Section 2.1(c)(iii) of the
Stock Purchase Agreement, that Contingent Shares (as defined in the Stock
Purchase Agreement) are to be issued to the Berwind Company LLC pursuant to such
Section 2.1(c)(iii).
For purposes of this Section, the "Accelerated Amount" means, with
respect to each Acceleration Event, the number of shares, rounded to the nearest
whole share, as shall equal the number of shares subject to this Award
multiplied by the "Applicable Ratio" related to such Acceleration Event.
For purposes of this Section, the "Applicable Ratio" related to a
Vesting Acceleration Event means the quotient obtained by dividing (a) the
number of the Contingent Shares finally determined to be issuable to the Berwind
Company LLC, pursuant to Section 2.1(c)(iii) of the Stock Purchase Agreement, on
the date giving rise to the Vesting Acceleration Event by (b) the total number
of Contingent Shares.
5. NUMBER OF SHARES AND PURCHASE PRICE. The number of shares of Common
Stock subject to your Award and your Purchase Price per Share referenced in your
Grant Notice may be adjusted from time to time for Capitalization Adjustments.
6. SECURITIES LAW COMPLIANCE. Notwithstanding anything to the contrary
contained herein, you may not purchase any shares of Common Stock under your
Award unless the shares of Common Stock issuable upon such purchase are then
registered under the
Securities Act or, if such shares of Common Stock are not then so registered,
the Company has determined that such purchase and issuance would be exempt from
the registration requirements of the Securities Act. The purchase of shares
under your Award also must comply with other applicable laws and regulations
governing your Award, and you may purchase such shares if the Company determines
that such purchase would not be in material compliance with such laws and
regulations.
7. UNVESTED SHARE REPURCHASE OPTION
(a) REPURCHASE OPTION. In the event your Continuous Service
terminates, then the Company shall have an irrevocable option (the "Unvested
Share Repurchase Option") for a period of ninety (90) days after said
termination, or such longer period as may be agreed to by you and the Company,
to repurchase from you or your personal representative, as the case may be,
those shares that you purchased pursuant to this Agreement that have not as yet
vested as of such termination date in accordance with the Vesting Schedule
indicated on your Grant Notice (the "Unvested Shares").
(b) REPURCHASE PRICE. The Company may repurchase all or any of the
Unvested Shares at a price equal to the lower of your Purchase Price for such
shares as indicated on your Grant Notice or the Fair Market Value of the
Unvested Shares on the date of repurchase.
8. EXERCISE OF UNVESTED SHARE REPURCHASE OPTION. The Unvested Share
Repurchase Option shall be exercised by written notice signed by such person
designated by the Company and delivered or mailed as provided herein. Such
notice shall identify the number of shares of Common Stock to be purchased and
shall notify you of the time, place and date for settlement of such purchase,
which shall be scheduled by the Company within the term of the Unvested Share
Repurchase Option set forth above. The Company shall be entitled to pay for any
shares of Common Stock purchased pursuant to its Unvested Share Repurchase
Option at the Company's option in cash or by offset against any indebtedness
owing to the Company by you (including, without limitation, any promissory note
given in payment for Common Stock), or by a combination of both. Upon delivery
of such notice and payment of the purchase price in any of the ways described
above, the Company shall become the legal and beneficial owner of the Common
Stock being repurchased and all rights and interest therein or related thereto,
and the Company shall have the right to transfer to its own name the Common
Stock being repurchased by the Company, without further action by you.
9. CORPORATE TRANSACTIONS. In the event of a Corporate Transaction, the
Unvested Share Repurchase Option may be assigned by the Company to the successor
of the Company (or such successor's parent company), if any, in connection with
such Corporate Transaction. To the extent the Unvested Share Repurchase Option
remains in effect following such Corporate Transaction, they shall apply to the
new capital stock or other property received in exchange for the Common Stock in
consummation of the Corporate Transaction, but only to the extent the Common
Stock was at the time covered by such right. Appropriate adjustments shall be
made to the price per share payable upon exercise of the Unvested Share
Repurchase Option to reflect the Corporate Transaction upon the Company's
capital structure; provided, however that the aggregate price per share payable
upon exercise of the Unvested Share Repurchase Option shall remain the same.
10. ESCROW OF COMMON STOCK. As security for your faithful performance of
the terms of this Agreement and to insure the availability for delivery of your
Common Stock upon exercise of the Unvested Share Repurchase Options herein
provided for, you agree, at the closing hereunder, to deliver to and deposit
with Secretary of the Company or the Secretary's designee ("Escrow Agent"), as
Escrow Agent in this transaction, three (3) stock assignments duly endorsed
(with date and number of shares left blank) in the form attached to the Grant
Notice as Attachment III, together with a certificate or certificates evidencing
all of the Common Stock subject to the Unvested Share Repurchase Option; said
documents are to be held by the Escrow Agent and delivered by said Escrow Agent
pursuant to the Joint Escrow Instructions of you and the Company set forth in
Attachment IV to the Grant Notice, which instructions you also agree to deliver
to the Escrow Agent at the closing hereunder.
11. RIGHTS AS STOCKHOLDER. Subject to the provisions of this Agreement,
you shall exercise all rights and privileges of a stockholder of the Company
with respect to the shares deposited in escrow. You shall be deemed to be the
holder of the shares for purposes of receiving any dividends that may be paid
with respect to such shares and for purposes of exercising any voting rights
relating to such shares, even if some or all of the shares have not yet vested
and been released from the Company's Repurchase Option.
12. LIMITATIONS ON TRANSFER. In addition to any other limitation on
transfer created by applicable securities laws, you shall not sell, assign,
hypothecate, donate, encumber or otherwise dispose of any interest in the Common
Stock while the Common Stock is subject to the Unvested Share Repurchase Option.
After any Common Stock has been released from the Unvested Share Repurchase
Option, you shall not sell, assign, hypothecate, donate, encumber or otherwise
dispose of any interest in the Common Stock except in compliance with the
provisions herein and applicable securities laws.
13. RESTRICTIVE LEGENDS. All certificates representing the Common Stock
shall have endorsed thereon legends in substantially the following forms (in
addition to any other legend which may be required by other agreements between
the parties hereto):
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO AN OPTION SET FORTH
IN AN AGREEMENT BETWEEN THE COMPANY AND THE REGISTERED HOLDER, OR SUCH HOLDER'S
PREDECESSOR IN INTEREST, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF
THIS COMPANY. ANY TRANSFER OR ATTEMPTED TRANSFER OF ANY SHARES SUBJECT TO SUCH
OPTION IS VOID WITHOUT THE PRIOR EXPRESS WRITTEN CONSENT OF THE COMPANY."
14. TRANSFERABILITY. Your Award is not transferable except by will or by
the laws of descent and distribution and shall be exercisable during your
lifetime only by you.
15. AWARD NOT A SERVICE CONTRACT. Your Award is not an employment or
service contract, and nothing in your Award shall be deemed to create in any way
whatsoever any obligation on your part to continue in the employ of the Company
or an Affiliate, or of the Company or an Affiliate to continue your employment.
In addition, nothing in your Award shall obligate the Company or an Affiliate,
their respective stockholders, Boards of Directors, Officers
or Employees to continue any relationship that you might have as a Director or
Consultant for the Company or an Affiliate.
16. WITHHOLDING OBLIGATIONS.
(a) At the time your Award is granted, or at any time thereafter
as requested by the Company, you hereby authorize withholding from payroll and
any other amounts payable to you, including these shares, and otherwise agree to
make adequate provision for, any sums required to satisfy the federal, state,
local and foreign tax withholding obligations of the Company or an Affiliate, if
any, which arise in connection with your Award.
(b) Upon your request and subject to approval by the Company, in
its sole discretion, and compliance with any applicable legal conditions or
restrictions, the Company may withhold from fully vested shares of Common Stock
otherwise issuable to you upon the exercise of your option or deliverable to you
upon the vesting of your Award a number of whole shares of Common Stock having a
Fair Market Value, determined by the Company as of the date of exercise, not in
excess of the amount of tax required to be withheld by law (or such lower amount
as may be necessary to avoid variable award accounting). Any adverse
consequences to you arising in connection with such share withholding procedure
shall be your sole responsibility.
(c) Unless the tax withholding obligations of the Company or any
Affiliate are satisfied, the Company shall have no obligation to issue a
certificate for such shares or release such shares from any escrow provided for
herein.
17. TAX CONSEQUENCES. THE ACQUISITION AND VESTING OF THE SHARES OF
COMMON STOCK PURCHASED PURSUANT TO YOUR AWARD MAY HAVE ADVERSE TAX CONSEQUENCES
TO YOU. YOU SHOULD CONSULT WITH YOUR TAX PROFESSIONAL REGARDING THE TAX
CONSEQUENCES OF THIS STOCK AWARD TO YOU.
18. NOTICES. Any notices provided for in your Award or the Plan shall be
given in writing and shall be deemed effectively given upon receipt or, in the
case of notices delivered by mail by the Company to you, five (5) days after
deposit in the United States mail, postage prepaid, addressed to you at the last
address you provided to the Company.
19. MISCELLANEOUS.
(a) The rights and obligations of the Company under your Award
shall be transferable to any one or more persons or entities, and all covenants
and agreements hereunder shall inure to the benefit of, and be enforceable by
the Company's successors and assigns. Your rights and obligations under your
Award may only be assigned with the prior written consent of the Company.
(b) You agree upon request to execute any further documents or
instruments necessary or desirable in the sole determination of the Company to
carry out the purposes or intent of your Award.
(c) You acknowledge and agree that you have reviewed your Award in
its entirety, have had an opportunity to obtain the advice of counsel prior to
executing and accepting your Award and fully understand all provisions of your
Award.
20. GOVERNING PLAN DOCUMENT. Your Award is subject to all the provisions
of the Plan, the provisions of which are hereby made a part of your Award, and
is further subject to all interpretations, amendments, rules and regulations,
which may from time to time be promulgated and adopted pursuant to the Plan. In
the event of any conflict between the provisions of your Award and those of the
Plan, the provisions of the Plan shall control.