**EXHIBIT 10.90**

 

**RESTRICTED STOCK AWARD AGREEMENT FOR**

**PATH 1 NETWORK TECHNOLOGIES INC. COMMON STOCK UNDER THE**

**2004 EQUITY INCENTIVE PLAN**

 

**THIS RESTRICTED STOCK AWARD AGREEMENT** (the “Agreement”)entered into as of the 26th day of January, 2005, by and between Path 1 Network Technologies Inc., a Delawarecorporation (the “Company”), and Dan McCrary (herein referred to as the “Participant”); 

 

**W I T N E S S E T H:**

 

**WHEREAS,** the Participant serves as Vice President of Marketing for the Company; 

 

**WHEREAS**, Company, through the Compensation Committee of the Board of Directors and the Board of Directors itself, has determined that it desires tomaintain for Participant an incentive package to retain Participant as a key executive; 

 

**WHEREAS,**the Company has previously adopted the Path 1 Network Technologies Inc. 2004 Equity Incentive Plan (the “Plan”); 

 

**WHEREAS,** pursuant to the Plan, the Company has awarded the Participant shares of common stock under the Plan subjectto the terms and conditions of this Agreement; 

 

**WHEREAS,**Company has determined that it is in its best interests to provide Participant with a restricted stock award as is more fully set forth below. 

 

**NOW, THEREFORE,** in consideration of the premises and the mutual promises and covenants herein contained, the Participant and the Company agree asfollows (all capitalized terms used herein, unless otherwise defined, have the meaning ascribed to such terms as set forth in the Plan): 

 

1. The Plan. The Plan, a copy of which is attached hereto as Exhibit A, is hereby incorporated by reference herein and made a part hereof for allpurposes, and when taken with this Agreement shall govern the rights of the Participant and the Company with respect to the Award (as defined below). 

 

2. Grant of Award. The Company hereby grants to the Participant an award (the “Award”) of Twenty Thousand (20,000) shares of Companycommon stock, par value $0.001 (the “Stock”), on the terms and conditions set forth herein and in the Plan. 

 

3. Terms of Award. 

 

(a) Escrow of Shares. A certificate representing the shares of Stock subject to the Award (the “Restricted Stock”) shall be issued in thename of the Participant and shall be escrowed with the Secretary of the Company (the “Escrow Agent”) subject to removal of the restrictions placed thereon or forfeiture pursuant to the terms of this Agreement. 

(b) Vesting. One-half of the shares of Restricted Stock will vest based on the Participant’scontinuous employment with the Company through January 24, 2006. The remaining one-half of the shares of Restricted Stock will vest over four quarterly installments based on the Participant’s continuous employment with the Company from theperiod January 25, 2006 through January 24, 2007. In the event the Participant’s employment with the Company is terminated by reason of (i) death or (ii) disability, then all remaining shares of Restricted Stock that have not yet been vestedshall immediately vest. All provided, however, that should any vesting date occur on a day during a “closed window period,” where Participant would be restricted from trading Company shares, then the vesting date shall be deemed to occurtwo weeks immediately after the termination of such closed window period. Once vested pursuant to the terms of this Agreement, the Restricted Stock shall be deemed Vested Stock. Participant expressly acknowledges that nothing in the Plan or in thisAgreement gives him any right to continue his employment with the Company for any period of time, nor does the Plan or this Agreement interfere in any way with his right or the Company’s right to terminate that employment at any time, for anyreason, with or without cause. 

 

(c) Voting Rights andDividends. The Participant shall have all of the voting rights attributable to the shares of Restricted Stock issued to him. Cash dividends declared and paid by the Company with respect to the shares of Restricted Stock shall be paid to theParticipant. 

 

(d) Vested Stock—Removal ofRestrictions. Upon Restricted Stock becoming Vested Stock, all restrictions shall be removed from the certificates representing such Stock and the Secretary of the Company shall deliver to the Participant certificates representing such VestedStock free and clear of all restrictions. 

 

(e)Forfeiture. In the event the Participant’s employment with the Company is terminated for any reason other than (i) death or (ii) disability, prior to all shares of Restricted Stock becoming Vested Stock, then all remaining shares ofRestricted Stock which have not yet been vested shall be absolutely forfeited and the Participant shall have no further interest therein of any kind whatsoever. 

 

4. Change of Control.

 

(a) Upon a Change of Control, all Restricted Stock shall immediately become Vested Stock and the Company shall deliver to the Participant certificatesrepresenting the Vested Stock free and clear of all restrictions. 

 

(b) “Change of Control” means the occurrence in a single transaction or a series of related transactions of any one or more of the following events: (i) a sale, lease or other disposition of all or substantially all of the assetsof the Company; (ii) a merger, reverse merger, consolidation or similar transaction involving (directly or indirectly) the Company and, immediately after the consummation of such merger, reverse merger, consolidation or similar transaction, thestockholders of the Company immediately prior thereto do not own, directly or indirectly, outstanding voting securities representing more than 50% of the combined outstanding voting power of the surviving entity or more than 50% of the combinedvoting power of the parent of the surviving entity in such merger, reverse merger, consolidation or similar transaction; (iii) any person, entity or group (within the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, asamended, who or that becomes the owner, directly or indirectly, of securities of the Company representing more than 50% of the combined voting power of the Company’s then outstanding securities other than by virtue of a merger, reverse merger,consolidation or similar transaction; or (iv) the stockholders of the Company approve, or the Board of Directors approves, a plan of complete dissolution or liquidation of the Company, or a complete dissolution or liquidation of the Company shallotherwise occur. 

 

2 

5. Legends. The shares of Stock that are the subject of the Award shall be subject to thefollowing legend: 

 

**“THE SHARES OF STOCK EVIDENCED BYTHIS CERTIFICATE ARE SUBJECT TO AND ARE TRANSFERABLE ONLY IN ACCORDANCE WITH THE 2004 EQUITY INCENTIVE PLAN. ANY ATTEMPTED TRANSFER OF THE SHARES OF STOCK EVIDENCED BY THIS CERTIFICATE IN VIOLATION OF SUCH AGREEMENT SHALL BE NULL AND VOID ANDWITHOUT EFFECT. A COPY OF THE AGREEMENT MAY BE OBTAINED FROM THE SECRETARY OF PATH 1 NETWORK TECHNOLOGIES INC.”**

 

6. Stock Powers and the Beneficiary. The Participant hereby agrees to execute and deliver to the Secretary of the Company a stock power (endorsedin blank) in the form of Exhibit B hereto covering his Award and authorizes the Secretary to deliver to the Company any and all shares of Restricted Stock that are forfeited under the provisions of this Agreement, together with such stock power.

 

7. Non-transferability of Award. The Participant shallnot have the right to sell, assign, transfer, convey, dispose, pledge, hypothecate, burden, encumber or charge any shares of Restricted Stock or any interest therein in any manner whatsoever before they vest. 

 

8. Notices. All notices or other communications relating to the Planand this Agreement as it relates to the Participant shall be in writing. 

 

9. Binding Effect and Governing Law. This Agreement shall be (i) binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns except as may be limited by thePlan and (ii) governed and construed under the laws of the State of California, without regard to its conflicts of laws provisions. 

 

10. Withholding. The Company and the Participant shall comply with all federal and state laws and regulations, if any, respecting the withholding,deposit and payment of any income, employment or other taxes relating to the Award. 

 

11. Captions. The captions of specific provisions of this Agreement are for convenience and reference only, and in no way define, describe, extend or limit the scope of this Agreement or the intent of anyprovision hereof. 

 

12. Counterparts. This Agreement maybe executed in any number of identical counterparts, each of which shall be deemed an original for all purposes, but all of which taken together shall form but one agreement. 

 

13. No Amendments. This Agreement constitutes the complete agreement of the parties, and supersedes all prioragreements, oral or written. This Agreement may not be amended except in writing and signed by the parties hereto. 

 

3 

**IN WITNESS WHEREOF,** the parties hereto have executed this Agreement as of the day and year firstabove written. 

 

Path 1 Network Technologies Inc.

(a Delawarecorporation)
By:  Its: CEO Participant:     Dan McCrary
 

4 

Exhibit A 

 

**2004 EQUITY INCENTIVE PLAN**

Exhibit B 

 

**ASSIGNMENT SEPARATE FROM CERTIFICATE**

 

FOR VALUE RECEIVED,                                , an individual, hereby irrevocably assignsand conveys to                         ,                         (         ) shares of the Common Stock of Path 1Network Technologies Inc., a Delaware corporation, $0.001 par value, and appoints                         asattorney to transfer such shares on the books of such corporation. 

 

Dated:________ 

 

________________________________________