**Exhibit 10.2**

 

**RESTRICTEDSTOCK AWARD AGREEMENT**

 

THIS RESTRICTED STOCK AWARD AGREEMENT (“Agreement”),effective as of April 10, 2010 (“Grant Date”), represents the grant of                  shares of Restricted Stock by Netlist, Inc. (the “Company”), to                             (the “Participant”), subject to the terms and conditions set forth below andthe provisions of the Netlist, Inc. 2006 Equity Incentive Plan, as thesame may be amended from time to time (the “Plan”).

 

All capitalized terms shall have the meaningsascribed to them in the Plan, unless specifically set forth otherwise herein.The parties hereto agree as follows:

 

**1.     Grant of Restricted Stock.**By action ofthe Committee, the Company hereby grants to the Participant             sharesof Restricted Stock, subject to the terms and conditions of the Plan and thisAgreement.

 

**2.     Vesting Period:**(a) Theshares of Restricted Stock are subject to restrictions which shall be releasedin installments on the respective dates on which restrictions lapse as setforth below.  The shares of RestrictedStock shall be subject to forfeiture and neither the shares nor interesttherein may be sold, pledged, transferred or otherwise disposed of prior to thedate on which the restrictions lapse as set forth below or as otherwiseprovided in this Agreement or the Plan. Subject to the other conditions in this Agreement and the Plan, therestrictions on the Restricted Stock will lapse under the following schedule:

 
| **Vested   Shares** | ** ** | **Date on Which Restrictions Lapse/Vesting  Date** | ** ** |
|---------------------|------------|----------------------------------------------------|------------|
|                |       |                                               |       |
|                |       | 09/08/2010                                         |       |
|                |       | 03/08/2011                                         |       |
|                |       | 09/08/2011                                         |       |
|                |       | 03/08/2012                                         |       |
|                |       | 09/07/2012                                         |       |
|                |       | 03/08/2013                                         |       |
|                |       | 09/09/2013                                         |       |
|                |       | 03/07/2014                                         |       |

 

(b) Except as set forthin Section 5 below, if the Participant’s employment or service to theCompany terminates before the last vesting date set forth in Section 2(a) above,all shares of Restricted Stock granted hereby that are unvested as of the dateof termination of employment or service to the Company shall be forfeited.  For the specified vesting to occur on anyvesting date set forth therein, the Participant must be continuously employedby, or providing service to, the Company or any of its Affiliates from theGrant Date through such vesting date.

 

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(c) Except as set forthin Section 8 of the Plan, in no event shall a Participant have any rightsto the Shares of Restricted Stock granted hereunder prior to the date suchShares vest pursuant to the vesting set forth in Section 2(a) above.

 

**3.     Voting Rights.**All shares ofRestricted Stock issued hereunder, whether vested or unvested, shall have fullvoting rights accorded to outstanding shares of Stock.

 

**4.     Dividend****Rights****.**(a) Cash Dividends. Subject to theParticipant’s continued employment or service to the Company, the Participantshall be entitled to receive any cash dividends paid with respect to shares ofRestricted Stock granted hereunder.  Anysuch cash dividends shall be distributed to the Participant at the same timecash dividends are paid to holders of Shares, provided that the Participantremains employed on such date.

 

(b) Non-CashDividends. Any stock dividends or other distributions or dividends ofproperty other than cash with respect to shares of Restricted Stock grantedhereunder shall be subject to the same forfeiture restrictions and restrictionson transferability as apply to the Restricted Stock with respect to which suchproperty was paid.

 

**5.     Termination.**(a) Death.In the event a Participant dies while employed by, or when providing serviceto, the Company or any of its Affiliates, all restrictions on 25% of thetotal then unvested shares of Restricted Stock will lapse and 25% of thetotal then unvested shares of Restricted Stock held by such Participant (or hisor her Permitted Assignee) shall vest in the estate of such Participant or inany person who acquired such shares of Restricted Stock by bequest orinheritance, or by the Permitted Assignee. References in this Agreement to a Participant shall include any personwho acquired shares of Restricted Stock from such Participant by bequest orinheritance.

 

(b) Disability.In the event a Participant ceases to perform services of any kind (whether asan employee or director) for the Company or any of its Affiliates due topermanent and total disability, all restrictions on 25% of thetotal then unvested shares of Restricted Stock will lapse and any 25% ofthe total then unvested shares of Restricted Stock held by such Participantshall immediately vest in the Participant, or his guardian or legalrepresentative, or a Permitted Assignee, as of the first date of permanent andtotal disability (as determined in the sole discretion of the Committee). Forpurposes of this Agreement, the term “permanent and total disability” means theParticipant is unable to engage in any substantial gainful activity by reasonof any medically determinable physical or mental impairment that can beexpected to result in death or which has lasted or can be expected to last fora continuous period of not less than 12 months, and the permanence and degreeof which shall be supported by medical evidence satisfactory to the Committee.Notwithstanding anything to the contrary set forth herein, the Committee shalldetermine, in its sole and absolute discretion, (1) whether a Participanthas ceased to perform services of any kind due to a permanent and totaldisability and, if so, (2) the first date of such permanent and totaldisability.

 

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**6.     Issuance of Restricted Stock.**As soon aspracticable after the Grant Date, the Company shall cause to be transferred onthe books of the Company, shares registered in the name of the Participant,evidencing the Restricted Stock covered by this Agreement. Until the lapse orrelease of all restrictions applicable to a grant of Restricted Stock, theshare certificates representing such Restricted Stock may be held in custody bythe Company or its designee.

 

**7.     Administration.**This Agreementand the rights of the Participant hereunder are subject to all the terms andconditions of the Plan, as well as to such rules and regulations as theCommittee may adopt for administration of the Plan. It is expressly understoodthat the Committee is authorized to administer, construe, and make alldeterminations necessary or appropriate to the administration of the Plan, thisAgreement and the Certificate, all of which shall be binding upon theParticipant and Permitted Assignees. Any inconsistency between the Agreement orthe Certificate (on the one hand) and the Plan (on the other hand) shall beresolved in favor of the Plan.

 

**8.     Adjustments.**The number ofShares of Restricted Stock granted hereby shall be subject to adjustment inaccordance with Section 8 of the Plan.

 

**9.     Amendment.**The Committee may, with theconsent of the Participant, at any time or from time to time amend the termsand conditions of this grant of Shares of Restricted Stock. In addition, theCommittee may at any time or from time to time amend the terms and conditionsof this grant of Shares of Restricted Stock in accordance with the Plan.

 

**10.  Notices.**Any notice which either partyhereto may be required or permitted to give to the other shall be in writing,and may be delivered personally or by mail, postage prepaid, or overnightcourier, addressed as follows: if to the Company, at its office at 51Discovery, Suite 150, Irvine, California 92618, Attn: Chief FinancialOfficer, or at such other address as the Company by notice to the Participantmay designate in writing from time to time; and if to the Participant, at theaddress reflected on the books and records of the Company or via theParticipant’s electronic mail account established by the Company. Notices shallbe effective upon receipt.

 

**11.  Withholding Taxes.**(a)  The Participant may incur certain liabilities forfederal, state or local taxes (“Withholding Taxes”) in connection with thegrant or vesting of the shares of Restricted Stock hereunder, and the Companymay be required by law to withhold such taxes. Unless Participant elects to satisfy his or her Withholding Taxes by analternative means in accordance with Section 11(b) below, Participanthereby agrees that, the Company shall withhold all applicable Withholding Taxesat the time of vesting of the Restricted Stock by reducing the number of sharesissued to Participant by that number of shares which is necessary to satisfythe Withholding Taxes, except as provided under Section 13 hereof.  If the number of shares issuable toParticipant following satisfaction of the Withholding Taxes includes anyfractional shares, Participant agrees that the Company may issue to Participanta cash payment in lieu of such fractional share.

 

(b)  At any time notless than five (5) business days before any Withholding Taxes arise,Participant may notify the Company of Participant’s election to pay Participant’sWithholding Taxes by wire transfer, check or other means permitted by theCompany. In such

 

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case, the Participant shall satisfy his or her taxwithholding obligation by paying to the Company on such date as it shallspecify an amount that the Company determines is sufficient to satisfy theexpected Withholding Taxes by (i) wire transfer to such account as theCompany may direct, (ii) delivery of a check payable to the Company, atits office at 51 Discovery, Suite 150, Irvine, California 92618, Attn:Chief Financial Officer, or such other address as the Company may from time totime direct, or (iii) such other means as the Company may establish orpermit. Participant agrees and acknowledges that prior to the date theWithholding Taxes arise, the Company will be required to estimate the amount ofthe Withholding Taxes and accordingly may require the amount paid to theCompany under this Section 11(b) to be more than the minimum amountthat may actually be due and that, if Participant has not delivered payment ofa sufficient amount to the Company to satisfy the Withholding Taxes in full(regardless of whether as a result of the Company underestimating the requiredpayment or Participant failing to timely make the required payment), theadditional amount of Withholding Taxes shall be satisfied in the mannerspecified in Section 11(a) above.

 

**12.  Registration; Legend.**The Company maypostpone the issuance and delivery of the shares of Restricted Stock grantedhereby until (a) the admission of such shares to listing on any stockexchange or exchanges on which shares of the Company of the same class are thenlisted and (b) the completion of such registration or other qualificationof such shares under any state or federal law, rule or regulation as theCompany shall determine to be necessary or advisable. The Participant shallmake such representations and furnish such information as may, in the opinionof counsel for the Company, be appropriate to permit the Company, in light ofthe then existence or non-existence with respect to such shares of an effectiveRegistration Statement under the Securities Act of 1933, as amended, to issuethe shares in compliance with the provisions of that or any comparable act.

 

The Company may cause thefollowing or a similar legend to be set forth on each certificate representingshares of Restricted Stock granted hereby unless counsel for the Company is ofthe opinion as to any such certificate that such legend is unnecessary:

 

THETRANSFERABILITY OF THIS CERTIFICATE AND THE SHARES REPRESENTED BY THISCERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF THE NETLIST, INC. 2006EQUITY INCENTIVE PLAN AND AN AWARD AGREEMENT ENTERED INTO BY THE REGISTEREDOWNER AND NETLIST, INC. COPIES OF SUCH PLAN AND AGREEMENT ARE ON FILE IN THEOFFICES OF NETLIST, INC.

 

**13.  Section 83(b) Election.**If theParticipant makes the election contemplated by Section 83(b) of theCode (a “Section 83(b) Election”) (or any similar provision offederal, state or local law) with respect to the Restricted Stock grantedhereunder, the Participant shall provide the Company with a copy of suchelection within 30 days after the Grant Date (or such earlier date required bylaw) and otherwise comply with the provisions of this Section 13. TheParticipant hereby agrees, as a condition precedent to any issuance ofRestricted Stock under this Agreement, that on or prior to the date of filingof any Section 83(b) Election with respect to 

 

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such Restricted Stock, Participant shall satisfy theCompany’s Withholding Tax obligations with respect to such Section 83(b) Electionby tendering payment to the Company, in readily available funds, of an amountequal to such Withholding Tax obligation (or enter into such other arrangementas shall be acceptable to the Company to satisfy such Withholding Tax obligation).

 

**14.  No Tax Advice.**Participant herebyacknowledges that the Company has not provided any specific tax advice toParticipant in connection with his or her participation in the Plan.Participant understands and acknowledges that the Section 83(b) Electionis valid only if made within 30 days after the Grant Date. Participant willconsult with his or her own tax advisors with respect to any tax consequencesrelating to a grant of Restricted Stock, participation in the Plan, and thedecision of whether or not to make a Section 83(b) Election.

 

**15.  Miscellaneous.**

 

(a)   This Agreement shall not confer upon the Participant any right tocontinuation of employment by, or service to, the Company, nor shall thisAgreement interfere in any way with the Company’s right to terminate theParticipant’s employment or service at any time.

 

(b)   Except as expressly set forth herein, the Participant shall haveno rights as a stockholder of the Company with respect to the shares ofRestricted Stock subject to this Agreement until such time as such shares ofRestricted Stock vest in accordance with Section 2 hereof.

 

(c)   This Agreement shall be subject to all applicable laws, rules, andregulations, and to such approvals by any governmental agencies or nationalsecurities exchanges as may be required.

 

(d)   To the extent not preempted by federal law, this Agreement shallbe governed by, and construed in accordance with the laws of the State ofDelaware.

 

(e)   The provisions of this Agreement are severable and if any one ormore provisions are determined to be illegal or otherwise unenforceable, inwhole or in part, the remaining provisions shall nevertheless be binding andenforceable.

 

(f)    By accepting this grant of shares of Restricted Stock, theParticipant and each person claiming under or through the Participant shall beconclusively deemed to have indicated their acceptance and ratification of, andconsent to, any action taken under the Plan by the Company, the Board or theCommittee.

 

(g)   The Participant, every person claiming under or through theParticipant, and the Company hereby waives to the fullest extent permitted byapplicable law any right to a trial by jury with respect to any litigationdirectly or indirectly arising out of, under, or in connection with the Plan, thisAgreement or the Certificate.

 

(h)   The order of precedence as between the Plan or this Agreement, andany written employment or service agreement between Participant and the Companyshall be as follows:  If there is anyinconsistency between (a) the terms of this Agreement (on the one hand)and the terms of the Plan (on the other hand); or (b) any such writtenemployment or service 

 

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agreement (on the one hand) and the terms of thePlan (on the other hand), the Plan’s terms shall completely supersede andreplace the conflicting terms of this Agreement or the written employment orservice agreement (as the case may be). If there is any inconsistency between the terms of this Agreement (onthe one hand) and the terms of Participant’s written employment  or service agreement, if any (on the otherhand), the terms of this Agreement (as the case may be) shall completelysupersede and replace the conflicting terms of the written employment orservice agreement unless such written employment or service agreement wasapproved by the Committee, in which event such written employment or serviceagreement shall completely supersede and replace the conflicting terms of thisAgreement (as the case may be).

 

**16.               Exculpation.**The shares of Restricted Stock granted hereunder and all documents,agreements, understandings and arrangements relating hereto have been issued onbehalf of the Company by officers acting on its behalf and not by any personindividually. None of the officers, directors or stockholders of the Companynor the directors, officers or stockholders of any Affiliate of the Companyshall have any personal liability hereunder or thereunder. The Participantshall look solely to the assets of the Company for satisfaction of anyliability of the Company in respect of the shares of Restricted Stock grantedhereunder and all documents, agreements, understanding and arrangementsrelating hereto and will not seek recourse or commence any action against anyof the directors, officers or stockholders of the Company or any of thedirectors, officers or stockholders of any Affiliate, or any of their personalassets, for the performance or payment of any obligation hereunder orthereunder. The foregoing shall also apply to any future documents, agreements,understandings, arrangements and transactions between the parties hereto withrespect to the shares of Restricted Stock granted hereunder.

 

**17.               Captions.**The captions in this Agreement are for convenience of reference only,and are not intended to narrow, limit or affect the substance or interpretationof the provisions contained herein.

 

*[Signature Page Follows]*

 

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IN WITNESS WHEREOF, the Company has caused thisAgreement to be executed by its duly authorized representative.  By your signature below, you accept and agreeto abide by the terms of this Agreement and you further agree to be bound byand to comply with all terms and conditions of the Plan.  By your signature below, you acknowledge thatyou have received a copy of the Plan, and understand that you may receive acopy of the Plan as amended and in effect at any time by requesting a copy fromthe Company’s Secretary.  Pleaseacknowledge that you received this agreement by signing a copy and returning itto the Company’s Chief Financial Officer by April 12, 2010.

 

 

**NETLIST, INC.**

 

 
| By:             |                       |   |
|-----------------|----------------------------|--------|
|            | Name: Michael S. Oswald    |   |
|            | Title: Assistant Secretary |   |
|            |                       |   |
|            |                       |   |
| **PARTICIPANT** |                       |
|            |                       |
|            |                       |
| Printed Name:   |                       |

 

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