Exhibit 10.2


 


RESTRICTED
STOCK 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 and
the provisions of the Netlist, Inc. 2006 Equity Incentive Plan, as the
same may be amended from time to time (the “Plan”).


 


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


 


1.     Grant of Restricted Stock. By action of
the Committee, the Company hereby grants to the Participant
             shares
of Restricted Stock, subject to the terms and conditions of the Plan and this
Agreement.


 


2.     Vesting Period: (a) The
shares of Restricted Stock are subject to restrictions which shall be released
in installments on the respective dates on which restrictions lapse as set
forth below.  The shares of Restricted
Stock shall be subject to forfeiture and neither the shares nor interest
therein may be sold, pledged, transferred or otherwise disposed of prior to the
date on which the restrictions lapse as set forth below or as otherwise
provided in this Agreement or the Plan. 
Subject to the other conditions in this Agreement and the Plan, the
restrictions 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 forth
in Section 5 below, if the Participant’s employment or service to the
Company 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 date
of termination of employment or service to the Company shall be forfeited.  For the specified vesting to occur on any
vesting date set forth therein, the Participant must be continuously employed
by, or providing service to, the Company or any of its Affiliates from the
Grant Date through such vesting date.


 

















 


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


 


3.     Voting Rights. All shares of
Restricted Stock issued hereunder, whether vested or unvested, shall have full
voting rights accorded to outstanding shares of Stock.


 


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


 


(b) Non-Cash
Dividends. Any stock dividends or other distributions or dividends of
property other than cash with respect to shares of Restricted Stock granted
hereunder shall be subject to the same forfeiture restrictions and restrictions
on transferability as apply to the Restricted Stock with respect to which such
property was paid.


 


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


 


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


 

















 


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


 


7.     Administration. This Agreement
and the rights of the Participant hereunder are subject to all the terms and
conditions of the Plan, as well as to such rules and regulations as the
Committee may adopt for administration of the Plan. It is expressly understood
that the Committee is authorized to administer, construe, and make all
determinations necessary or appropriate to the administration of the Plan, this
Agreement and the Certificate, all of which shall be binding upon the
Participant and Permitted Assignees. Any inconsistency between the Agreement or
the Certificate (on the one hand) and the Plan (on the other hand) shall be
resolved in favor of the Plan.


 


8.     Adjustments. The number of
Shares of Restricted Stock granted hereby shall be subject to adjustment in
accordance with Section 8 of the Plan.


 


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


 


10.  Notices. Any notice which either party
hereto 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 overnight
courier, addressed as follows: if to the Company, at its office at 51
Discovery, Suite 150, Irvine, California 92618, Attn: Chief Financial
Officer, or at such other address as the Company by notice to the Participant
may designate in writing from time to time; and if to the Participant, at the
address reflected on the books and records of the Company or via the
Participant’s electronic mail account established by the Company. Notices shall
be effective upon receipt.


 


11.  Withholding Taxes. (a)  The Participant may incur certain liabilities for
federal, state or local taxes (“Withholding Taxes”) in connection with the
grant or vesting of the shares of Restricted Stock hereunder, and the Company
may be required by law to withhold such taxes. 
Unless Participant elects to satisfy his or her Withholding Taxes by an
alternative means in accordance with Section 11(b) below, Participant
hereby agrees that, the Company shall withhold all applicable Withholding Taxes
at the time of vesting of the Restricted Stock by reducing the number of shares
issued to Participant by that number of shares which is necessary to satisfy
the Withholding Taxes, except as provided under Section 13 hereof.  If the number of shares issuable to
Participant following satisfaction of the Withholding Taxes includes any
fractional shares, Participant agrees that the Company may issue to Participant
a cash payment in lieu of such fractional share.


 


(b)  At any time not
less than five (5) business days before any Withholding Taxes arise,
Participant may notify the Company of Participant’s election to pay Participant’s
Withholding Taxes by wire transfer, check or other means permitted by the
Company. In such


 

















 


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


 


12.  Registration; Legend. The Company may
postpone the issuance and delivery of the shares of Restricted Stock granted
hereby until (a) the admission of such shares to listing on any stock
exchange or exchanges on which shares of the Company of the same class are then
listed and (b) the completion of such registration or other qualification
of such shares under any state or federal law, rule or regulation as the
Company shall determine to be necessary or advisable. The Participant shall
make such representations and furnish such information as may, in the opinion
of counsel for the Company, be appropriate to permit the Company, in light of
the then existence or non-existence with respect to such shares of an effective
Registration Statement under the Securities Act of 1933, as amended, to issue
the shares in compliance with the provisions of that or any comparable act.


 


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


 


THE
TRANSFERABILITY OF THIS CERTIFICATE AND THE SHARES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO THE TERMS AND CONDITIONS OF THE NETLIST, INC. 2006
EQUITY INCENTIVE PLAN AND AN AWARD AGREEMENT ENTERED INTO BY THE REGISTERED
OWNER AND NETLIST, INC. COPIES OF SUCH PLAN AND AGREEMENT ARE ON FILE IN THE
OFFICES OF NETLIST, INC.


 


13.  Section 83(b) Election. If the
Participant makes the election contemplated by Section 83(b) of the
Code (a “Section 83(b) Election”) (or any similar provision of
federal, state or local law) with respect to the Restricted Stock granted
hereunder, the Participant shall provide the Company with a copy of such
election within 30 days after the Grant Date (or such earlier date required by
law) and otherwise comply with the provisions of this Section 13. The
Participant hereby agrees, as a condition precedent to any issuance of
Restricted Stock under this Agreement, that on or prior to the date of filing
of any Section 83(b) Election with respect to 


 

















 


such Restricted Stock, Participant shall satisfy the
Company’s Withholding Tax obligations with respect to such Section 83(b) Election
by tendering payment to the Company, in readily available funds, of an amount
equal to such Withholding Tax obligation (or enter into such other arrangement
as shall be acceptable to the Company to satisfy such Withholding Tax obligation).


 


14.  No Tax Advice. Participant hereby
acknowledges that the Company has not provided any specific tax advice to
Participant in connection with his or her participation in the Plan.
Participant understands and acknowledges that the Section 83(b) Election
is valid only if made within 30 days after the Grant Date. Participant will
consult with his or her own tax advisors with respect to any tax consequences
relating to a grant of Restricted Stock, participation in the Plan, and the
decision of whether or not to make a Section 83(b) Election.


 


15.  Miscellaneous.


 


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


 


(b)   Except as expressly set forth herein, the Participant shall have
no rights as a stockholder of the Company with respect to the shares of
Restricted Stock subject to this Agreement until such time as such shares of
Restricted Stock vest in accordance with Section 2 hereof.


 


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


 


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


 


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


 


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


 


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


 


(h)   The order of precedence as between the Plan or this Agreement, and
any written employment or service agreement between Participant and the Company
shall be as follows:  If there is any
inconsistency 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 written
employment or service 


 

















 


agreement (on the one hand) and the terms of the
Plan (on the other hand), the Plan’s terms shall completely supersede and
replace the conflicting terms of this Agreement or the written employment or
service agreement (as the case may be). 
If there is any inconsistency between the terms of this Agreement (on
the one hand) and the terms of Participant’s written employment  or service agreement, if any (on the other
hand), the terms of this Agreement (as the case may be) shall completely
supersede and replace the conflicting terms of the written employment or
service agreement unless such written employment or service agreement was
approved by the Committee, in which event such written employment or service
agreement shall completely supersede and replace the conflicting terms of this
Agreement (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 on
behalf of the Company by officers acting on its behalf and not by any person
individually. None of the officers, directors or stockholders of the Company
nor the directors, officers or stockholders of any Affiliate of the Company
shall have any personal liability hereunder or thereunder. The Participant
shall look solely to the assets of the Company for satisfaction of any
liability of the Company in respect of the shares of Restricted Stock granted
hereunder and all documents, agreements, understanding and arrangements
relating hereto and will not seek recourse or commence any action against any
of the directors, officers or stockholders of the Company or any of the
directors, officers or stockholders of any Affiliate, or any of their personal
assets, for the performance or payment of any obligation hereunder or
thereunder. The foregoing shall also apply to any future documents, agreements,
understandings, arrangements and transactions between the parties hereto with
respect 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 interpretation
of the provisions contained herein.


 


[Signature Page Follows]


 

















 


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


 


 


NETLIST, INC.


 


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Name: Michael S. Oswald

  	
   

  
	
   

  	
  Title: Assistant Secretary

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  PARTICIPANT

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Printed Name: