ex10d49.htm


    Exhibit
10.49

     

    


     

    CPI
INTERNATIONAL, INC.

     

    PERFORMANCE
RESTRICTED STOCK UNIT AWARD AGREEMENT

     

    (Senior
Executives)

     

    


     

    THIS
PERFORMANCE RESTRICTED STOCK UNIT AWARD AGREEMENT (the "Agreement") is made and
entered into as of the date of grant set forth on Exhibit A hereto
by and between CPI International, Inc., a Delaware corporation (the "Company"), and the individual
(the "Grantee") set
forth on Exhibit
A.

     

    A.           The
Grantee is an employee or consultant of the Company or a Subsidiary, and the
Company has determined that it is appropriate, desirable and in the best
interests of the Company to issue Restricted Stock Units (as defined below) to
the Grantee.

     

    B.           Accordingly,
pursuant to the CPI International, Inc. 2006 Equity and Performance Incentive
Plan (the "Plan"), the
Company is hereby issuing to the Grantee the number of Restricted Stock Units as
set forth on Exhibit
A hereto, and in all respects subject to the terms, definitions and
provisions of the Plan, which is incorporated herein by reference.

     

    C.           Unless
otherwise defined herein, capitalized terms used in this Agreement shall have
the meanings set forth in the Plan.

     

    NOW,
THEREFORE, in consideration of the mutual agreements contained herein, the
Grantee and the Company hereby agree as follows:

     

    1. Restricted Stock
Units.

     

    1.1 Issuance of Restricted Stock
Units.  In consideration of the Grantee's service as an
employee or consultant of the Company or a Subsidiary, the Company is hereby
issuing to the Grantee the number of Restricted Stock Units set forth on Exhibit
A.  Each "Restricted Stock Unit"
represents the contingent right to receive in the future one share of common
stock of the Company, $.01 par value ("Common Stock"), and is subject
to the conditions and restrictions on transferability set forth below and in the
Plan. The Restricted Stock Units will be credited to the Grantee in an unfunded
bookkeeping account established for the Grantee and will not be represented by
certificates.

     

    1.2 Restrictions on Transfer of
Restricted Stock Units. The Restricted Stock Units may not be sold,
assigned, transferred, conveyed, pledged, exchanged or otherwise encumbered or
disposed of (each, a "Transfer") by the Grantee,
except to the Company.  Any purported Transfer in violation of the
provisions of this Section 1.2 shall be
void AB INITIO, and the other party to any such purported transaction shall not
obtain any rights to or interest in the Restricted Stock Units.  In
addition, the Grantee may not Transfer Common Stock received upon the vesting of
Restricted Stock Units unless such shares of Common Stock are registered
pursuant to the Securities Act of 1933 (the "Securities Act") or are
transferred under Rule 144 promulgated under the Securities Act or unless the
Company and its counsel agree with the Grantee that such Transfer is not
required to be registered under the Securities Act.

     

    1.3 Vesting; Forfeiture of
Restricted Stock Units.

     

    1.3.1 Upon
vesting of a Restricted Stock Unit, such Restricted Stock Unit will be converted
into one share of Common Stock, and the Grantee will be issued one share of
Common Stock for each such Restricted Stock Unit that has vested, which shares
of Common Stock shall be free of any restrictions other than those imposed
pursuant to applicable securities laws.

     

    1.3.2 This
grant of Restricted Stock Units shall be broken up into two (2) tranches (each a
"Tranche") as follows:

     

    
      	
              1.3.2.1  

            	
              Tranche
      One shall consist of one-half of the Restricted Stock
    Units.

            


    

     

    
      	
              1.3.2.2  

            	
              Tranche
      Two shall consist of one-half of the Restricted Stock
    Units.

            


    

     

    1.3.3 Except as
provided in Section
1.3.7 or 1.3.8 below, the
Restricted Stock Units shall become vested on the first date on which both the
Time Vesting Condition (described below) and the Performance Condition
(described below) are satisfied with respect to such Restricted Stock
Units.

     

    1.3.4 Time Vesting
Condition.  The "Time Vesting Condition" shall
be satisfied with respect to twenty-five percent (25%) of the Restricted Stock
Units in each Tranche on the third (3rd) Trading Day (as defined below)
following the Company's issuance of its press release reporting first quarter
financial results in fiscal year 2010, but no later than the end of February
2010.  On the third (3rd) Trading Day following the Company's issuance
of its press release reporting first quarter financial results in each
subsequent fiscal year, and in no case later than the end of February of each
subsequent year, the Time Vesting Condition shall be satisfied with respect to
an additional 25% of the Restricted Stock Units in each Tranche, until the Time
Vesting Condition has become satisfied with respect to 100% of the Restricted
Stock Units in each Tranche.

     

    1.3.5 Performance
Conditions.  If the Average Stock Price (as defined below)
during any Applicable Trading Period (as defined below) equals or exceeds the
Price Threshold (as defined below) with respect to a Tranche, the "Performance Condition" shall
be deemed to be satisfied with respect to all of the Restricted Stock Units in
such Tranche on the third (3rd) Trading Day after the issuance of the Company's
next press release publicly reporting quarterly or annual financial results, but
no later than the end of the calendar month in which such press release would
otherwise customarily occur.

     

    1.3.6 Defined
Terms.

     

    
      	
              1.3.6.1  

            	
              "Applicable Trading
      Period" means a period of twenty consecutive Trading Days (as
      defined below) during the Performance Period (as defined
      below).

            


    

     

    
      	
              1.3.6.2  

            	
              "Average Stock Price"
      means the average, for any Applicable Trading Period, of (i) the last
      reported sales price of a Share for each Trading Day in the Applicable
      Trading Period, as reported on the principal national securities exchange
      on which the Shares are listed or admitted for trading or (ii) if the
      Shares are not listed or admitted for trading on any national securities
      exchange, the average of the highest bid and lowest asked prices for a
      Share in the domestic over-the-counter market as reported by Pink OTC
      Markets, Inc., or any similar organization for each Trading Day in the
      Applicable Trading Period. The Average Stock Price shall be appropriately
      adjusted to reflect any Share Adjustment Transaction (as defined below)
      which impacts an Applicable Trading
Period.

            


    

     

    
      	
              1.3.6.3  

            	
              "Performance Period"
      shall mean the period beginning on the twentieth (20th) day following the
      Date of Grant and ending on the third (3rd) Trading Day after the issuance
      of the press release publicly reporting first quarter financial results
      for fiscal year 2019, but in no case later than the end of February
      2019.

            


    

     

    
      	
              1.3.6.4  

            	
              "Price Threshold" shall
      mean, (i) with respect to Tranche One, $13.50; and (ii) with respect to
      Tranche Two, $16.00. Each Price Threshold shall be appropriately adjusted
      to reflect any Share Adjustment Transaction during the Performance
      Period.

            


    

     

    
      	
              1.3.6.5  

            	
              "Share Adjustment
      Transaction" shall mean (i) a stock dividend with respect to the
      Shares, (ii) the subdivision of the Shares (by stock split,
      reclassification or otherwise) into a larger number of shares, (iii) the
      combination (by reverse stock split or otherwise) of the Shares into a
      smaller number of shares or (iv) a transaction which has similar
      effect.

            


    

     

    
      	
              1.3.6.6  

            	
              "Trading Day" shall mean
      a day on which the principal national securities exchange on which the
      Shares are listed or admitted to trading is open for trading, or if the
      Shares are not listed or admitted to trading on any national securities
      exchange, any day other than a Saturday, Sunday, or other day on which
      commercial banking institutions in New York, New York are required or
      authorized by law to remain closed.

            


    

     

    1.3.7 In the
event that (i) a Change of Control occurs and the Shares are converted into the
right to receive cash, other securities or other property, or (ii) a Change of
Control occurs and the Shares remain outstanding but are no longer publicly
traded (or the Company is taken private by the Cypress Group or affiliates
thereof), then the Performance Conditions shall no longer be applicable and the
vesting of the Restricted Stock Units shall be subject to the Time Vesting
Condition only.  In addition, if, in connection with a merger,
consolidation, reorganization, recapitalization or similar transaction in which
the Company is not the surviving entity, (i) all obligations under this
Agreement are not fully assumed by the surviving or resulting entity, and (ii)
the Company fails to adjust the cash or property receivable upon vesting of the
Restricted Stock Units such that such cash or property has a fair market value
equal to the Fair Market Value of the Common Stock underlying the non-vested
portion of the Restricted Stock Units, then the Restricted Stock Units shall
become fully vested prior to the effectiveness of such transaction.

     

    1.3.8 Notwithstanding
the foregoing, (a) in the event of termination of the Grantee's employment by
the Company (or a Subsidiary, as applicable) for Cause or the termination of the
Grantee's Continuous Status as an Employee, Director or Consultant by the
Grantee for any reason other than death, Disability or Good Reason (as defined
in the Grantee's employment agreement), the Restricted Stock Units shall
immediately cease vesting as of the date of termination and no further vesting
shall occur, and (b) in the event of termination of the Grantee's
Continuous Status as an Employee, Director or Consultant by the Company (or a
Subsidiary, as applicable) without Cause, as a result of death or Disability, or
by the Grantee for Good Reason, the Restricted Stock Units shall become fully
vested as of the date of termination.  Any Restricted Stock Units that
are not vested on the date of termination shall be forfeited by the Grantee and
shall be cancelled.

     

    1.4 Tax Withholding
Obligations.  If the Company shall be required to withhold any
federal, provincial, state, local or foreign tax in connection with any issuance
or vesting of Restricted Stock Units or the issuance of Common Stock or other
securities or property pursuant to this Agreement, and the amounts available to
the Company for such withholding are insufficient, then the Grantee shall pay
the tax or make provisions that are satisfactory to the Company for the payment
thereof.  Provided the approval of the Committee is obtained, the
Grantee may elect to satisfy all or any part of any such withholding obligation
by surrendering to the Company a portion of the Common Stock issued upon the
vesting of Restricted Stock Units hereunder, and the Common Stock so surrendered
by the Grantee shall be credited against any such withholding obligation based
on the then Fair Market Value per share of such Common Stock on the date of such
surrender.

     

    2. Rights as a
Stockholder.  The Grantee will have no rights as a stockholder
with regard to any Restricted Stock Unit until it vests and converts into a
share of Common Stock.  However, in the event that the Company pays a
cash dividend with respect to its Common Stock, the Company will pay to the
Grantee a cash amount equal to the per-share cash dividend multiplied by the
number of unvested Restricted Stock Units held by the Grantee, at the same time
as dividends are paid on the Company's outstanding shares of Common
Stock.

     

    3. Adjustments.  In
the event of any merger, reorganization, consolidation, recapitalization, stock
dividend, stock split, reverse stock split, spin-off, distribution with respect
to the Common Stock (other than a cash dividend) or a similar transaction or
other change in corporate structure affecting the Common Stock, the Company
shall make equitable and proportionate adjustments to the number of Restricted
Stock Units as well as the type of securities or property to be delivered upon
vesting thereof.  All such adjustments and substitutions shall be made
by the Committee in its sole discretion.

     

    4. General.

     

    4.1 Governing
Law.  This Agreement shall be governed by and construed under
the laws of the state of Delaware applicable to agreements made and to be
performed entirely in Delaware, without regard to the conflicts of law
provisions of Delaware or any other jurisdiction.

     

    4.2 Notices.  Any
notice required or permitted under this Agreement shall be given in writing by
overnight courier or by postage prepaid, United States registered or certified
mail, return receipt requested, to the address set forth below or to such other
address for a party as that party may designate by ten (10) days advance written
notice to the other parties.  Notice shall be effective upon the
earlier of receipt or three (3) days after the date on which such notice is
deposited in the mails or with the overnight courier.

     

    
      	
              If
      to the Company:

            	
              CPI
      International, Inc.

            


    

     

    
      	
               
      

            	
              811
      Hansen Way

            


    

     

    
      	
               
      

            	
              Palo
      Alto, California 94303-1110

            


    

     

    
      	
               
      

            	
              Attention:
      Chief Financial Officer

            


    

     

    
      	
               
      

            	
              If
      to the Grantee, at the address set forth on Exhibit
      A.

            


    

     

    4.3 Community
Property.                                                      
Without prejudice to the actual rights of the spouses as between each other, for
all purposes of this Agreement, the Grantee shall be treated as agent and
attorney-in-fact for that interest held or claimed by his or her spouse with
respect to the Restricted Stock Units, and the parties hereto shall act in all
matters as if the Grantee was the sole owner of the Restricted Stock
Units.  This appointment is coupled with an interest and is
irrevocable.

     

    4.4 Modifications.  This
Agreement may be amended, altered or modified only by a writing signed by each
of the parties hereto.

     

    4.5 Additional
Documents.  Each party agrees to execute any and all further
documents and writings, and to perform such other actions, which may be or
become reasonably necessary or expedient to be made effective and carry out this
Agreement.

     

    4.6 No Third-Party
Benefits.  Except as otherwise expressly provided in this
Agreement, none of the provisions of this Agreement shall be for the benefit of,
or enforceable by, any third-party beneficiary.

     

    4.7 Successors and
Assigns.  Except as provided herein to the contrary, this
Agreement shall be binding upon and inure to the benefit of the parties, their
respective successors and permitted assigns.

     

    4.8 No
Assignment.  Except as otherwise provided in this Agreement,
the Grantee may not assign any of his, her or its rights under this Agreement
without the prior written consent of the Company, which consent may be withheld
in its sole discretion.  The Company shall be permitted to assign its
rights or obligations under this Agreement, but no such assignment shall release
the Company of any obligations pursuant to this Agreement.

     

    4.9 Severability.  The
validity, legality or enforceability of the remainder of this Agreement shall
not be affected even if one or more of the provisions of this Agreement shall be
held to be invalid, illegal or unenforceable in any respect.

     

    4.10 Equitable
Relief.  The Grantee acknowledges that, in the event of a
threatened or actual breach of any of the provisions of this Agreement, damages
alone will be an inadequate remedy, and such breach will cause the Company
great, immediate and irreparable injury and damage.  Accordingly, the
Grantee agrees that the Company shall be entitled to injunctive and other
equitable relief, and that such relief shall be in addition to, and not in lieu
of, any remedies it may have at law or under this Agreement.

     

    4.11 Arbitration.

     

    4.11.1  General.  Any
controversy, dispute, or claim between the parties to this Agreement, including
any claim arising out of, in connection with, or in relation to the formation,
interpretation, performance or breach of this Agreement shall be settled
exclusively by arbitration, before a single arbitrator, in accordance with this
Section 4.11 and the then
most applicable rules of the American Arbitration
Association.  Judgment upon any award rendered by the arbitrator may
be entered by any state or federal court having jurisdiction
thereof.  Such arbitration shall be administered by the American
Arbitration Association.  Arbitration shall be the exclusive remedy
for determining any such dispute, regardless of its
nature.  Notwithstanding the foregoing, either party may in an
appropriate matter apply to a court for provisional relief, including a
temporary restraining order or a preliminary injunction, on the ground that the
award to which the applicant may be entitled in arbitration may be rendered
ineffectual without provisional relief.  Unless mutually agreed by the
parties otherwise, any arbitration shall take place in the City of Palo Alto,
California.

     

    4.11.2  Selection of
Arbitrator.  In the event the parties are unable to agree upon
an arbitrator, the parties shall select a single arbitrator from a list of nine
arbitrators (which shall be retired judges or corporate or litigation attorneys
experienced in executive compensation and stock options) provided by the office
of the American Arbitration Association having jurisdiction over Palo Alto,
California.  If the parties are unable to agree upon an arbitrator
from the list so drawn, then the parties shall each strike names alternately
from the list, with the first to strike being determined by
lot.  After each party has used four (4) strikes, the remaining name
on the list shall be the arbitrator.  If such person is unable to
serve for any reason, then the parties shall repeat this process until an
arbitrator is selected.

     

    4.11.3  Applicability of
Arbitration; Remedial Authority.  This agreement to resolve any
disputes by binding arbitration shall extend to claims against any parent,
subsidiary or affiliate of each party, and, when acting within such capacity,
any officer, director, shareholder, employee or agent of each party, or of any
of the above, and shall apply as well to claims arising out of state and federal
statutes and local ordinances as well as to claims arising under the common
law.  In the event of a dispute subject to this paragraph the parties
shall be entitled to reasonable discovery subject to the discretion of the
arbitrator.  The remedial authority of the arbitrator (which shall
include the right to grant injunctive or other equitable relief) shall be the
same as, but no greater than, would be the remedial power of a court having
jurisdiction over the parties and their dispute.  The arbitrator
shall, upon an appropriate motion, dismiss any claim without an evidentiary
hearing if the party bringing the motion establishes that he or it would be
entitled to summary judgment if the matter had been pursued in court
litigation.  In the event of a conflict between the applicable rules
of the American Arbitration Association and these procedures, the provisions of
these procedures shall govern.

     

    4.11.4  Fees and
Costs.  Any filing or administrative fees shall be borne
initially by the party requesting arbitration.  The Company shall be
responsible for the costs and fees of the arbitration, unless the Grantee wishes
to contribute (up to 50%) of the costs and fees of the
arbitration.  Notwithstanding the foregoing, the prevailing party in
such arbitration, as determined by the arbitrator, and in any enforcement or
other court proceedings, shall be entitled, to the extent permitted by law, to
reimbursement from the other party for all of the prevailing party's costs
(including but not limited to the arbitrator's compensation), expenses, and
attorneys' fees.

     

    4.11.5  Award Final and
Binding.  The arbitrator shall render an award and written
opinion, and the award shall be final and binding upon the
parties.  If any of the provisions of this paragraph, or of this
Agreement, are determined to be unlawful or otherwise unenforceable, in whole or
in part, such determination shall not affect the validity of the remainder of
this Agreement, and this Agreement shall be reformed to the extent necessary to
carry out its provisions to the greatest extent possible and to insure that the
resolution of all conflicts between the parties, including those arising out of
statutory claims, shall be resolved by neutral, binding
arbitration.  If a court should find that the arbitration provisions
of this Agreement are not absolutely binding, then the parties intend any
arbitration decision and award to be fully admissible in evidence in any
subsequent action, given great weight by any finder of fact, and treated as
determinative to the maximum extent permitted by law.

     

    4.12 Headings.  The
section headings in this Agreement are inserted only as a matter of convenience,
and in no way define, limit, extend or interpret the scope of this Agreement or
of any particular section.

     

    4.13 Number and
Gender.  Throughout this Agreement, as the context may require,
(a) the masculine gender includes the feminine and the neuter gender includes
the masculine and the feminine; (b) the singular tense and number includes the
plural, and the plural tense and number includes the singular; (c) the past
tense includes the present, and the present tense includes the past; (d)
references to parties, sections, paragraphs and exhibits mean the parties,
sections, paragraphs and exhibits of and to this Agreement; and (e) periods of
days, weeks or months mean calendar days, weeks or months.

     

    4.14 Counterparts.                                This
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.

     

    4.15 Complete
Agreement.  This Agreement and the Plan constitute the parties'
entire agreement with respect to the subject matter hereof and supersede all
agreements, representations, warranties, statements, promises and
understandings, whether oral or written, with respect to the subject matter
hereof.

     

    CPI
INTERNATIONAL, INC.

     

    By:___________________________________

     

    Its:___________________________________

     

    GRANTEE

     

    ______________________________________

    Name:


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    EXHIBIT
A

     

    DETAILS
OF PERFORMANCE RESTRICTED STOCK UNIT AWARD GRANT

     

    


     

    
      	
              Grantee
      Name:

            	 
      
	
              Date
      of Grant:

            	
              December
      5, 2008

            
	
              Number
      of Restricted Stock Units:

            	 
      


    

    


     

    Grantee
Address:                 ____________________________________________

     

    ____________________________________________

     

    ____________________________________________