Exhibit 10.9


 


[DEFERRAL PERMITTED]


 


TEGAL CORPORATION


 


2007 INCENTIVE AWARD PLAN


 


RESTRICTED STOCK UNIT AWARD GRANT NOTICE
AND 

RESTRICTED STOCK UNIT AWARD AGREEMENT


 


Tegal Corporation,
a Delaware corporation (the "Company"), pursuant to its 2007 Incentive Award Plan (the "Plan"),
hereby grants to the holder listed below ("Participant"), an award of restricted stock units ("Restricted
Stock Units" or "RSUs") with respect to the number of shares of the Company's common stock,
par value $0.01 (the "Shares"). This award for Restricted Stock Units (this "RSU Award")
is subject to all of the terms and conditions as set forth herein and in the Restricted Stock Unit Award Agreement attached
hereto as Exhibit A (the "Restricted Stock Unit Agreement") and the Plan, each of which are incorporated
herein by reference. Unless otherwise defined herein, the terms defined in the Plan shall have the same defined meanings in this
Grant Notice and the Restricted Stock Unit Agreement.


 


	Participant:	Thomas Mika
	 	 
	Grant Date:	November 5, 2010
	 	 
	Vesting Commencement

 Date:	November 5, 2010
	 	 
	Total Number of RSUs

 Subject to Award:	350,000
shares
	 	 
	Vesting Schedule:	The RSU Award
shall vest 38,489 on November 5, 2010, 87,500 vesting on November 5, 2011, 87,500 vesting on November 5, 2012, 87,500 vesting
on November 5, 2013, and 49,011 vesting on November 5, 2014
	 	 
	Distribution
Schedule:	The RSUs shall
be distributable in accordance with Section 2.1(c) of the Restricted Stock Unit Agreement.




  


By his or her signature
and the Company's signature below, Participant agrees to be bound by the terms and conditions of the Plan, the Restricted Stock
Unit Agreement and this Grant Notice. The Participant has reviewed the Restricted Stock Unit Agreement, the Plan and this Grant
Notice in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Grant Notice and fully
understands all provisions of this Grant Notice, the Restricted Stock Unit Agreement and the Plan. Participant hereby agrees to
accept as binding, conclusive and final all decisions or interpretations of the Administrator of the Plan upon any questions arising
under the Plan, this Grant Notice or the Restricted Stock Unit Agreement.


 


	TEGAL CORPORATION


	 	PARTICIPANT



	 	 	 	 	 
	By:	/s/ Christine T. Hergenrother	 	By:	/s/ Thomas R. Mika
	Print Name:	Christine T. Hergenrother	 	Print Name:	Thomas R. Mika
	Title: 	Vice President & CFO	 	 	 
	Address:	 	 	Address:	 
	 	 	 	 	 


 


 






     


     

    

 


EXHIBIT A


 


TO RESTRICTED STOCK UNIT AWARD GRANT
NOTICE

TEGAL CORPORATION

RESTRICTED STOCK UNIT AWARD AGREEMENT


 


Pursuant to the Restricted
Stock Unit Award Grant Notice (the "Grant Notice") to which this Restricted Stock Unit Award Agreement
(this "Agreement") is attached, Tegal Corporation, a Delaware corporation (the "Company"),
has granted to Participant the right to receive the number of Restricted Stock Units under the Company's 2007 Incentive
Award Plan (the "Plan"), with respect to the number of shares of the Company's common stock, par value
$0.01 (the "Stock").


 


ARTICLE
I.


 

GENERAL


 


1.1Definitions.
All capitalized terms used in this Agreement without definition shall have the meanings ascribed in the Plan and the Grant Notice.


 


(a)"Administrator"
shall mean the Board of Directors or the Committee responsible for conducting the general administration of the Plan in
accordance with Article 13 of the Plan; provided that if Participant is a Non-Employee Director, "Administrator" shall
mean the Board of Directors.


 


(b)"Termination
of Consultancy" shall mean the time when the engagement of the Participant as a Consultant to the Company or a Subsidiary
is terminated for any reason, with or without cause, including, but not by way of limitation, by resignation, discharge, death
or retirement, but excluding: (a) terminations where there is a simultaneous employment or continuing employment of the Participant
by the Company or any Subsidiary, and (b) terminations where there is a simultaneous reestablishment of a consulting relationship
or continuing consulting relationship between the Participant and the Company or any Subsidiary. The Administrator, in its absolute
discretion, shall determine the effect of all matters and questions relating to Termination of Consultancy, including, but not
by way of limitation, the question of whether a particular leave of absence constitutes a Termination of Consultancy. Notwithstanding
any other provision of the Plan, the Company or any Subsidiary has an absolute and unrestricted right to terminate a Consultant's
service at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in writing.


 


(c)"Termination
of Directorship" shall mean the time when the Participant, if he or she is or becomes an Independent Director, ceases
to be a Director for any reason, including, but not by way of limitation, a termination by resignation, failure to be elected,
death or retirement. The Board, in its sole and absolute discretion, shall determine the effect of all matters and questions relating
to Termination of Directorship with respect to Independent Directors.


 


(d)"Termination
of Employment" shall mean the time when the employee-employer relationship between the Participant and the Company
or any Subsidiary is terminated for any reason, with or without cause, including, but not by way of limitation, a termination by
resignation, discharge, death, disability or retirement; but excluding: (a) terminations where there is a simultaneous reemployment
or continuing employment of the Participant by the Company or any Subsidiary, and (b) terminations where there is a simultaneous
establishment of a consulting relationship or continuing consulting relationship between the Participant and the Company or any
Subsidiary. The Administrator, in its absolute discretion, shall determine the effect of all matters and questions relating to
Termination of Employment, including, but not by way of limitation, the question of whether a particular leave of absence constitutes
a Termination of Employment.


 






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(e)"Termination
of Services" shall mean the last to occur of a Participant's Termination of Consultancy, Termination of Directorship
or Termination of Employment, as applicable. A Participant shall not be deemed to have a Termination of Services merely because
of a change in the capacity in which the Participant renders service to the Company or any Subsidiary (i.e., a Participant who
is an Employee becomes a Consultant) or a change in the entity for which the Participant renders such service (i.e., an Employee
of the Company becomes an Employee of a Subsidiary), unless following such change in capacity or service the Participant is no
longer serving as an Employee, Director or Consultant of the Company or any Subsidiary.


 


1.2Incorporation
of Terms of Plan. The RSU Award and this Agreement are subject to the Plan, the terms and conditions of which are incorporated
herein by reference. In the event of any inconsistency between the Plan and this Agreement, the terms of the Plan shall control.


 


ARTICLE
II.


 

AWARD OF RESTRICTED STOCK UNITS


 


2.1Award
of Restricted Stock Units.


 


(a)Award.
In consideration of Participant's agreement to remain in the service or employ of the Company or one of its affiliates, and for
other good and valuable consideration, the Company hereby grants to Participant the right to receive the number of RSUs set forth
in the Grant Notice, subject to all of the terms and conditions set forth in this Agreement, the Grant Notice and the Plan (the
"RSU Award"). Each RSU represents the right to receive one Share. Participant is an Employee, a member
of the Board of Directors or other Service Provider. Prior to actual issuance of any Shares, the RSUs and the RSU Award represent
an unsecured obligation of the Company, payable only from the general assets of the Company.


 


(b)Vesting.
The RSUs subject to the RSU Award shall vest in accordance with the Vesting Schedule set forth in the Grant Notice. Unless and
until the RSUs have vested in accordance with the vesting schedule set forth in the Grant Notice, Participant will have no right
to any distribution with respect to such RSUs. In the event of Participant's Termination of Services prior to the vesting of all
of the RSUs, any unvested RSUs will terminate automatically without any further action by the Company and be forfeited without
further notice and at no cost to the Company.


 


(c)Distribution
of Stock.


 


(i)Stock shall
be distributed to Participant (or in the event of Participant's death, to his or her estate) with respect to such Participant's
vested Restricted Stock Units granted to Participant pursuant to this Restricted Stock Unit Agreement, subject to the terms and
provisions of the Plan and this Restricted Stock Unit Agreement, commencing following the earliest to occur of the following events
(each, a "Distribution Event"):


 


(1)Participant's
"separation from service" within the meaning of Section 409A(2)(A)(i) of the Code and the Treasury Regulations thereunder;
provided, however, that if Participant is a "specified employee" at the time of Participant's "separation
from service," the "Distribution Event" for purposes of this Section 2.3(a)(i) shall be the date that is six months
after Participant's "separation from service" (or, if earlier, the date of Participant's death). For purposes of this
Section 2.3(a)(i), Participant shall be a "specified employee" if Participant is a key employee (as defined in Section
416(i) of the Code without regard to paragraph (5) thereof) of the Company and any stock of the Company is publicly-traded on an
established securities market or otherwise, as determined under Section 409A(a)(2)(B)(i) of the Code and the Treasury Regulations
thereunder;


 


(2)The
date Participant becomes "disabled" within the meaning of Section 409A(2)(C) of the Code and the Treasury Regulations
thereunder;


 


(3)Participant's
death;


 






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(4)The
date immediately prior to a Change in Control, so long as such "Change in Control" constitutes a change in the ownership
or effective control of the Company, or in the ownership of a substantial portion of the assets of the Company within the meaning
of Section 409A(2)(A)(v) of the Code and the Treasury Regulations thereunder; or


 


(5)November
5, 2014.


 


(ii)Subject to
Sections 2.1(c)(i) and 2.2, following a Distribution Event, the Stock issuable with respect to Participant's vested Restricted
Stock Units shall be distributed to him or her in a lump sum within ten (10) days.


 


(iii)All distributions
shall be made by the Company in the form of whole shares of Common Stock.


 


(iv)Notwithstanding
the foregoing, shares of Common Stock shall be issuable pursuant to a Restricted Stock Unit at such times and upon such events
as are specified in this Agreement only to the extent issuance under such terms will not cause the Restricted Stock Units or the
shares of Common Stock issuable pursuant to the Restricted Stock Units to be includible in the gross income of Participant under
Section 409A of the Code prior to such times or the occurrence of such events, as permitted by the Code and the regulations and
other guidance thereunder.


 


(d)General.
Stock issued under the RSU Award shall be issued to Participant or Participant's beneficiaries, as the case may be, at the sole
discretion of the Administrator, in either (A) uncertificated form, with the Shares recorded in the name of Participant in the
books and records of the Company's transfer agent with appropriate notations regarding the restrictions on transfer imposed pursuant
to this Agreement; or (B) certificate form.


 


2.2Unforeseeable
Emergency.


 


(a)If
Participant experiences an Unforeseeable Emergency (as defined below), Participant may petition the Administrator for the right
to receive a partial or full distribution of the shares of Common Stock distributable with respect to his or her vested Restricted
Stock Units under this Agreement. If, in the sole discretion of the Administrator, Participant's petition is approved, the Unforeseeable
Emergency shall be deemed a "Distribution Event" with respect to the number of shares of Common Stock distributable with
respect to Participant's vested Restricted Stock Units as are approved for distribution by the Administrator. Participant shall
then be entitled to receive such Stock pursuant to Section 2.1(c)(ii).


 


(b)For
purposes of this Section 2.2, an "Unforeseeable Emergency" shall mean a severe financial hardship to Participant
resulting from an illness or accident of Participant, Participant's spouse, or a dependent (as defined in Section 152(a) of the
Code) of Participant, loss of Participant's property due to casualty, or other similar extraordinary and unforeseeable circumstances
arising as a result of events beyond the control of Participant. The Fair Market Value of the Stock distributed to Participant
with respect to the Unforeseeable Emergency may not exceed the amounts necessary to satisfy such Unforeseeable Emergency plus amounts
necessary to pay taxes reasonably anticipated as a result of the distribution, after taking into account the extent to which such
Unforeseeable Emergency is or may be relieved through reimbursement or compensation by insurance or otherwise or by liquidation
of Participant's assets (to the extent liquidation of such assets would not itself cause severe financial hardship), as determined
under the Treasury Regulations under Section 409A(a)(2)(B)(ii) of the Code.


 


2.3Changes
to Form or Time of Distribution. Except as provided in Section 2.2, neither the time nor form of distribution of Stock with
respect to the Restricted Stock Units under this Restricted Stock Unit Agreement may be changed, except as may be permitted by
the Administrator in accordance with Article 12 of the Plan and Section 409A of the Code and the Treasury Regulations thereunder.


 






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2.4Tax
Withholding; Conditions to Issuance of Certificates. Notwithstanding any other provision of this Agreement (including, without
limitation, Section 2.1(b) hereof):


 


(a)No
new certificate shall be delivered to Participant or his legal representative unless and until Participant or his legal representative
shall have paid to the Company the full amount of all federal and state withholding or other taxes applicable to the taxable income
of Participant resulting from the vesting of the RSUs or the distribution of Shares issuable therunder, or other taxable event
related to the Restricted Stock Units. The Administrator may permit Participant to satisfy the tax withholding obligations using
any of the methods prescribed in the Plan as determined in the sole discretion of the Administrator.


 


(b)The
Company shall not be required to issue or deliver any certificate or certificates for any Shares prior to the fulfillment of all
of the following conditions: (A) the admission of the Shares to listing on all stock exchanges on which such Shares are then listed,
(B) the completion of any registration or other qualification of the Shares under any state or federal law or under rulings or
regulations of the U.S. Securities and Exchange Commission or other governmental regulatory body, which the Administrator shall,
in its sole and absolute discretion, deem necessary and advisable, (C) the obtaining of any approval or other clearance from any
state or federal governmental agency that the Administrator shall, in its absolute discretion, determine to be necessary or advisable
and (D) the lapse of any such reasonable period of time following the date the RSUs vest as the Administrator may from time to
time establish for reasons of administrative convenience.


 


ARTICLE
III.


 

OTHER PROVISIONS


 


3.1RSU
Award and Interests Not Transferable. This RSU Award and the rights and privileges conferred hereby, including the RSUs awarded
hereunder, shall not be liable for the debts, contracts or engagements of Participant 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.


 


3.2Rights
as Shareholder. Neither the Participant nor any person claiming under or through the Participant shall have any of the rights
or privileges of a shareholder of the Company in respect of any Shares issuable hereunder unless and until certificates representing
such Shares (which may be in uncertificated form) will have been issued and recorded on the books and records of the Company or
its transfer agents or registrars, and delivered to the Participant (including through electronic delivery to a brokerage account).
After such issuance, recordation and delivery, the Participant shall have all the rights of a shareholder of the Company, including
with respect to the right to vote the Shares and the right to receive any cash or share dividends or other distributions paid to
or made with respect to the Shares; provided, however, that at the discretion of the Company, and prior to the delivery
of Shares, Participant may be required to execute a shareholders agreement in such form as shall be determined by the Company.


 


3.3Not
a Contract of Employment or other Service Relationship. Nothing in this Agreement or in the Plan shall confer upon Participant
any right to continue to serve as an employee or other service provider of the Company or any of its affiliates.


 


3.4Governing
Law. The laws of the State of Delaware shall govern the interpretation, validity, administration, enforcement and performance
of the terms of this Agreement regardless of the law that might be applied under principles of conflicts of laws.


 






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3.5Conformity
to Securities Laws. Participant acknowledges that the Plan and this Agreement are intended to conform to the extent necessary
with all provisions of the Securities Act and the Exchange Act, and any and all regulations and rules promulgated thereunder by
the U.S. Securities and Exchange Commission, including, without limitation, Rule 16b-3 under the Exchange Act. Notwithstanding
anything herein to the contrary, the Plan shall be administered, and the Awards are granted, only in such a manner as to conform
to such laws, rules and regulations. To the extent permitted by applicable law, the Plan and this Agreement shall be deemed amended
to the extent necessary to conform to such laws, rules and regulations.


 


3.6Amendment,
Suspension and Termination. To the extent permitted by the Plan, this Agreement may be wholly or partially amended or otherwise
modified, suspended or terminated at any time or from time to time by the Committee or the Board of Directors, provided, that,
except as may otherwise be provided by the Plan, no amendment, modification, suspension or termination of this Agreement shall
adversely effect the Award in any material way without the prior written consent of Participant.


 


3.7Notices.
Notices required or permitted hereunder shall be given in writing and shall be deemed effectively given upon personal delivery
or upon deposit in the United States mail by certified mail, with postage and fees prepaid, addressed to Participant to his address
shown in the Company records, and to the Company at its principal executive office.


 


3.8Successors
and Assigns. The Company may assign any of its rights under this Agreement to single or multiple assignees, and this Agreement
shall inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer herein set forth,
this Agreement shall be binding upon Participant and his or her heirs, executors, administrators, successors and assigns.


 


3.9Section
409A. Notwithstanding any other provision of the Plan, this Agreement or the Grant Notice, the Plan, this Agreement and the
Grant Notice shall be interpreted in accordance with, and incorporate the terms and conditions required by, Section 409A of the
Code (together with any Department of Treasury regulations and other interpretive guidance issued thereunder, including without
limitation any such regulations or other guidance that may be issued after the date hereof, "Section 409A"). The
Administrator may, in its discretion, adopt such amendments to the Plan, this Agreement or the Grant Notice or adopt other policies
and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, as the Administrator
determines are necessary or appropriate to comply with the requirements of Section 409A.


 






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[deferral
permitted]


 


Tegal
Corporation


 


2007
INCENTIVE AWARD PLAN



RESTRICTED STOCK UNIT AWARD GRANT NOTICE AND

RESTRICTED STOCK UNIT AWARD AGREEMENT


 


Tegal Corporation,
a Delaware corporation (the “Company”), pursuant to its 2007 Incentive Award Plan (the “Plan”),
hereby grants to the holder listed below (“Participant”), an award of restricted stock units (“Restricted
Stock Units” or “RSUs”) with respect to the number of shares of the Company’s common
stock, par value $0.01 (the “Shares”). This award for Restricted Stock Units (this “RSU Award”)
is subject to all of the terms and conditions as set forth herein and in the Restricted Stock Unit Award Agreement attached hereto
as Exhibit A (the “Restricted Stock Unit Agreement”) and the Plan, each of which are incorporated
herein by reference. Unless otherwise defined herein, the terms defined in the Plan shall have the same defined meanings in this
Grant Notice and the Restricted Stock Unit Agreement.


 


	Participant:	Christine Hergenrother
	 	 
	Grant Date:	November 5, 2010
	 	 
	Vesting Commencement Date:	November 5, 2014
	 	 
	Total Number of RSUs Subject to Award:	215,181                                     shares
	 	 
	Vesting Schedule:	The RSU Award shall vest 16,495 on November 5, 2010, 53,795 vesting on November 5, 2011, 53,795 vesting on November 5, 2012, 53,795 vesting on November 5, 2013, and 37,301 vesting on November 5, 2014
	 	 
	Distribution Schedule:	The RSUs shall be distributable in accordance with Section 2.1(c) of the Restricted Stock Unit Agreement.


 


By his or her signature
and the Company’s signature below, Participant agrees to be bound by the terms and conditions of the Plan, the Restricted
Stock Unit Agreement and this Grant Notice. The Participant has reviewed the Restricted Stock Unit Agreement, the Plan and this
Grant Notice in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Grant Notice and
fully understands all provisions of this Grant Notice, the Restricted Stock Unit Agreement and the Plan. Participant hereby agrees
to accept as binding, conclusive and final all decisions or interpretations of the Administrator of the Plan upon any questions
arising under the Plan, this Grant Notice or the Restricted Stock Unit Agreement.


 


	TEGAL CORPORATION


	 	PARTICIPANT



	 	 	 	 	 
	By:	/s/ Thomas R. Mika	 	By:	/s/ Christine T. Hergenrother
	Print Name:	Thomas R. Mika	 	Print Name:	Christine T. Hergenrother
	Title: 	 President & CEO	 	 	 
	Address:	 	 	Address:	 
	 	 	 	 	 


 



 






    	  



     

    

 


EXHIBIT
A

TO RESTRICTED STOCK UNIT AWARD GRANT NOTICE



TEGAL CORPORATION

RESTRICTED STOCK UNIT AWARD AGREEMENT


 


Pursuant to the Restricted
Stock Unit Award Grant Notice (the “Grant Notice”) to which this Restricted Stock Unit Award Agreement
(this “Agreement”) is attached, Tegal Corporation, a Delaware corporation (the “Company”),
has granted to Participant the right to receive the number of Restricted Stock Units under the Company’s 2007 Incentive Award
Plan (the “Plan”), with respect to the number of shares of the Company’s common stock, par value
$0.01 (the “Stock”).


 


ARTICLE
I.


 

general


 


1.1Definitions.
All capitalized terms used in this Agreement without definition shall have the meanings ascribed in the Plan and the Grant Notice.


 


(a)“Administrator”
shall mean the Board of Directors or the Committee responsible for conducting the general administration of the Plan in accordance
with Article 13 of the Plan; provided that if Participant is a Non-Employee Director, “Administrator” shall mean the
Board of Directors


 


(b)“Termination
of Consultancy” shall mean the time when the engagement of the Participant as a Consultant to the Company or a Subsidiary
is terminated for any reason, with or without cause, including, but not by way of limitation, by resignation, discharge, death
or retirement, but excluding: (a) terminations where there is a simultaneous employment or continuing employment of the Participant
by the Company or any Subsidiary, and (b) terminations where there is a simultaneous re-establishment of a consulting relationship
or continuing consulting relationship between the Participant and the Company or any Subsidiary. The Administrator, in its absolute
discretion, shall determine the effect of all matters and questions relating to Termination of Consultancy, including, but not
by way of limitation, the question of whether a particular leave of absence constitutes a Termination of Consultancy. Notwithstanding
any other provision of the Plan, the Company or any Subsidiary has an absolute and unrestricted right to terminate a Consultant’s
service at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in writing.


 


(c)“Termination
of Directorship” shall mean the time when the Participant, if he or she is or becomes an Independent Director, ceases
to be a Director for any reason, including, but not by way of limitation, a termination by resignation, failure to be elected,
death or retirement. The Board, in its sole and absolute discretion, shall determine the effect of all matters and questions relating
to Termination of Directorship with respect to Independent Directors.


 


(d)“Termination
of Employment” shall mean the time when the employee-employer relationship between the Participant and the Company
or any Subsidiary is terminated for any reason, with or without cause, including, but not by way of limitation, a termination by
resignation, discharge, death, disability or retirement; but excluding: (a) terminations where there is a simultaneous reemployment
or continuing employment of the Participant by the Company or any Subsidiary, and (b) terminations where there is a simultaneous
establishment of a consulting relationship or continuing consulting relationship between the Participant and the Company or any
Subsidiary. The Administrator, in its absolute discretion, shall determine the effect of all matters and questions relating to
Termination of Employment, including, but not by way of limitation, the question of whether a particular leave of absence constitutes
a Termination of Employment.


 






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(e)“Termination
of Services” shall mean the last to occur of a Participant’s Termination of Consultancy, Termination of Directorship
or Termination of Employment, as applicable. A Participant shall not be deemed to have a Termination of Services merely because
of a change in the capacity in which the Participant renders service to the Company or any Subsidiary (i.e., a Participant who
is an Employee becomes a Consultant) or a change in the entity for which the Participant renders such service (i.e., an Employee
of the Company becomes an Employee of a Subsidiary), unless following such change in capacity or service the Participant is no
longer serving as an Employee, Director or Consultant of the Company or any Subsidiary.


 


1.2Incorporation
of Terms of Plan. The RSU Award and this Agreement are subject to the Plan, the terms and conditions of which are incorporated
herein by reference. In the event of any inconsistency between the Plan and this Agreement, the terms of the Plan shall control.


 


ARTICLE
II.


 

award of restricted stock units 


 


2.1Award
of Restricted Stock Units.


 


(a)Award.
In consideration of Participant’s agreement to remain in the service or employ of the Company or one of its affiliates, and
for other good and valuable consideration, the Company hereby grants to Participant the right to receive the number of RSUs set
forth in the Grant Notice, subject to all of the terms and conditions set forth in this Agreement, the Grant Notice and the Plan
(the “RSU Award”). Each RSU represents the right to receive one Share. Participant is an
Employee, a member of the Board of Directors or other Service Provider. Prior to actual issuance of any Shares, the RSUs and the
RSU Award represent an unsecured obligation of the Company, payable only from the general assets of the Company.


 


(b)Vesting.
The RSUs subject to the RSU Award shall vest in accordance with the Vesting Schedule set forth in the Grant Notice. Unless and
until the RSUs have vested in accordance with the vesting schedule set forth in the Grant Notice, Participant will have no right
to any distribution with respect to such RSUs. In the event of Participant’s Termination of Services prior to the vesting
of all of the RSUs, any unvested RSUs will terminate automatically without any further action by the Company and be forfeited without
further notice and at no cost to the Company.


 


(c)Distribution
of Stock.


 


(i)Stock shall
be distributed to Participant (or in the event of Participant’s death, to his or her estate) with respect to such Participant’s
vested Restricted Stock Units granted to Participant pursuant to this Restricted Stock Unit Agreement, subject to the terms and
provisions of the Plan and this Restricted Stock Unit Agreement, commencing following the earliest to occur of the following events
(each, a “Distribution Event”):


 


(1)Participant’s “separation
from service” within the meaning of Section 409A(2)(A)(i) of the Code and the Treasury Regulations thereunder; provided,
however, that if Participant is a “specified employee” at the time of Participant’s “separation
from service,” the “Distribution Event” for purposes of this Section 2.3(a)(i) shall be the date that is six
months after Participant’s “separation from service” (or, if earlier, the date of Participant’s death).
For purposes of this Section 2.3(a)(i), Participant shall be a “specified employee” if Participant is a key employee
(as defined in Section 416(i) of the Code without regard to paragraph (5) thereof) of the Company and any stock of the Company
is publicly-traded on an established securities market or otherwise, as determined under Section 409A(a)(2)(B)(i) of the Code and
the Treasury Regulations thereunder;


 


(2)The date Participant becomes
“disabled” within the meaning of Section 409A(2)(C) of the Code and the Treasury Regulations thereunder;


 






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(3)Participant’s death;


 


(4)The date immediately prior
to a Change in Control, so long as such “Change in Control” constitutes a change in the ownership or effective control
of the Company, or in the ownership of a substantial portion of the assets of the Company within the meaning of Section 409A(2)(A)(v)
of the Code and the Treasury Regulations thereunder; or


 


(5)November 5, 2014.


 


(ii)Subject to
Sections 2.1(c)(i) and 2.2, following a Distribution Event, the Stock issuable with respect to Participant’s vested Restricted
Stock Units shall be distributed to him or her in a lump sum within ten (10) days.


 


(iii)All distributions
shall be made by the Company in the form of whole shares of Common Stock.


 


(iv)Notwithstanding
the foregoing, shares of Common Stock shall be issuable pursuant to a Restricted Stock Unit at such times and upon such events
as are specified in this Agreement only to the extent issuance under such terms will not cause the Restricted Stock Units or the
shares of Common Stock issuable pursuant to the Restricted Stock Units to be includible in the gross income of Participant under
Section 409A of the Code prior to such times or the occurrence of such events, as permitted by the Code and the regulations and
other guidance thereunder.


 


(d)General.
Stock issued under the RSU Award shall be issued to Participant or Participant’s beneficiaries, as the case may be, at the
sole discretion of the Administrator, in either (A) uncertificated form, with the Shares recorded in the name of Participant in
the books and records of the Company’s transfer agent with appropriate notations regarding the restrictions on transfer imposed
pursuant to this Agreement; or (B) certificate form.


 


2.2Unforeseeable
Emergency.


 


(a)If
Participant experiences an Unforeseeable Emergency (as defined below), Participant may petition the Administrator for the right
to receive a partial or full distribution of the shares of Common Stock distributable with respect to his or her vested Restricted
Stock Units under this Agreement. If, in the sole discretion of the Administrator, Participant’s petition is approved, the
Unforeseeable Emergency shall be deemed a “Distribution Event” with respect to the number of shares of Common Stock
distributable with respect to Participant’s vested Restricted Stock Units as are approved for distribution by the Administrator.
Participant shall then be entitled to receive such Stock pursuant to Section 2.1(c)(ii).


 


(b)For
purposes of this Section 2.2, an “Unforeseeable Emergency” shall mean a severe financial hardship to
Participant resulting from an illness or accident of Participant, Participant’s spouse, or a dependent (as defined in Section
152(a) of the Code) of Participant, loss of Participant’s property due to casualty, or other similar extraordinary and unforeseeable
circumstances arising as a result of events beyond the control of Participant. The Fair Market Value of the Stock distributed to
Participant with respect to the Unforeseeable Emergency may not exceed the amounts necessary to satisfy such Unforeseeable Emergency
plus amounts necessary to pay taxes reasonably anticipated as a result of the distribution, after taking into account the extent
to which such Unforeseeable Emergency is or may be relieved through reimbursement or compensation by insurance or otherwise or
by liquidation of Participant’s assets (to the extent liquidation of such assets would not itself cause severe financial
hardship), as determined under the Treasury Regulations under Section 409A(a)(2)(B)(ii) of the Code.


 


2.3Changes
to Form or Time of Distribution. Except as provided in Section 2.2, neither the time nor form of distribution of Stock with
respect to the Restricted Stock Units under this Restricted Stock Unit Agreement may be changed, except as may be permitted by
the Administrator in accordance with Article 12 of the Plan and Section 409A of the Code and the Treasury Regulations thereunder.


 






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2.4Tax
Withholding; Conditions to Issuance of Certificates. Notwithstanding any other provision of this Agreement (including, without
limitation, Section 2.1(b) hereof):


 


(a)No
new certificate shall be delivered to Participant or his legal representative unless and until Participant or his legal representative
shall have paid to the Company the full amount of all federal and state withholding or other taxes applicable to the taxable income
of Participant resulting from the vesting of the RSUs or the distribution of Shares issuable therunder, or other taxable event
related to the Restricted Stock Units. The Administrator may permit Participant to satisfy the tax withholding obligations using
any of the methods prescribed in the Plan as determined in the sole discretion of the Administrator.


 


(b)The
Company shall not be required to issue or deliver any certificate or certificates for any Shares prior to the fulfillment
of all of the following conditions: (A) the admission of the Shares to listing on all stock exchanges on which such Shares are
then listed, (B) the completion of any registration or other qualification of the Shares under any state or federal law or under
rulings or regulations of the U.S. Securities and Exchange
Commission or other governmental regulatory body, which the Administrator shall, in its sole and absolute discretion, deem
necessary and advisable, (C) the obtaining of any approval or other clearance from any state or federal governmental agency that
the Administrator shall, in its absolute discretion, determine to be necessary or advisable and (D) the lapse of any such reasonable
period of time following the date the RSUs vest as the Administrator may from time to time establish for reasons of administrative
convenience.


 


ARTICLE
III.


 

other provisions 


 


3.1RSU
Award and Interests Not Transferable. This RSU Award and the rights and privileges conferred hereby, including the RSUs awarded
hereunder, shall not be liable for the debts, contracts or engagements of Participant 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.


 


3.2Rights
as Shareholder. Neither the Participant nor any person claiming under or through the Participant shall have any of the rights
or privileges of a shareholder of the Company in respect of any Shares issuable hereunder unless and until certificates representing
such Shares (which may be in uncertificated form) will have been issued and recorded on the books and records of the Company or
its transfer agents or registrars, and delivered to the Participant (including through electronic delivery to a brokerage account).
After such issuance, recordation and delivery, the Participant shall have all the rights of a shareholder of the Company, including
with respect to the right to vote the Shares and the right to receive any cash or share dividends or other distributions paid to
or made with respect to the Shares; provided, however, that at the discretion of the Company, and prior to the delivery
of Shares, Participant may be required to execute a shareholders agreement in such form as shall be determined by the Company.


 



3.3Not
a Contract of Employment or other Service Relationship. Nothing in this Agreement or in the Plan shall confer upon Participant
any right to continue to serve as an employee or other service provider of the Company or any of its affiliates.


 






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3.4Governing
Law. The laws of the State of Delaware shall govern the interpretation, validity, administration, enforcement and performance
of the terms of this Agreement regardless of the law that might be applied under principles of conflicts of laws.


 


3.5Conformity
to Securities Laws. Participant acknowledges that the Plan and this Agreement are intended to conform to the extent necessary
with all provisions of the Securities Act and the Exchange Act, and any and all regulations and rules promulgated thereunder by
the U.S. Securities and Exchange Commission, including, without limitation, Rule 16b-3 under the Exchange Act. Notwithstanding
anything herein to the contrary, the Plan shall be administered, and the Awards are granted, only in such a manner as to conform
to such laws, rules and regulations. To the extent permitted by applicable law, the Plan and this Agreement shall be deemed amended
to the extent necessary to conform to such laws, rules and regulations.


 


3.6Amendment,
Suspension and Termination. To the extent permitted by the Plan, this Agreement may be wholly or partially amended or otherwise
modified, suspended or terminated at any time or from time to time by the Committee or the Board of Directors, provided,
that, except as may otherwise be provided by the Plan, no amendment, modification, suspension or termination of this Agreement
shall adversely effect the Award in any material way without the prior written consent of Participant.


 


3.7Notices.
Notices required or permitted hereunder shall be given in writing and shall be deemed effectively given upon personal delivery
or upon deposit in the United States mail by certified mail, with postage and fees prepaid, addressed to Participant to his address
shown in the Company records, and to the Company at its principal executive office.


 


3.8Successors
and Assigns. The Company may assign any of its rights under this Agreement to single or multiple assignees, and this Agreement
shall inure to the benefit of the successors and assigns of the Company. Subject to the restrictions on transfer herein set forth,
this Agreement shall be binding upon Participant and his or her heirs, executors, administrators, successors and assigns.


 


3.9Section
409A. Notwithstanding any other provision of the Plan, this Agreement or the Grant Notice, the Plan, this Agreement and the
Grant Notice shall be interpreted in accordance with, and incorporate the terms and conditions required by, Section 409A of the
Code (together with any Department of Treasury regulations and other interpretive guidance issued thereunder, including without
limitation any such regulations or other guidance that may be issued after the date hereof, “Section 409A”).
The Administrator may, in its discretion, adopt such amendments to the Plan, this Agreement or the Grant Notice or adopt other
policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, as
the Administrator determines are necessary or appropriate to comply with the requirements of Section 409A.


 








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