exv10w45



 





Exhibit 10.45




Non-Employee Director RSA Award Agreement (4-2006)




ASYST TECHNOLOGIES, INC.




2003 EQUITY INCENTIVE PLAN




RESTRICTED STOCK AWARD AGREEMENT




     1. Restricted Stock Award. As of [insert date] (the “Date of Award”), Asyst
Technologies, Inc., a California corporation (the “Company”), has granted to [insert name]
(the “Grantee”) a Restricted Stock Award (the “Restricted Stock Award”) ___shares
of Common Stock, which is granted by the Company subject to the terms and provisions of this
Restricted Stock Award agreement (the “Stock Award Agreement”) and the Company’s 2003 Equity
Incentive Plan, as amended from time to time (the “Plan”), which are incorporated herein by
reference.



          Unless to the extent otherwise defined herein, the terms in this Stock Award Agreement shall
be given the same defined meanings as defined in the Plan.




     2. Vesting Schedule. Subject to the terms of this Stock Award Agreement and the Plan,
and provided that you remain in continuous service as a member of the Company’s Board of Directors
(the “Board”) from the Date of Award, to the vesting date listed below; the shares subject to the
Restricted Stock Award shall vest as provided below. No shares will be transferable prior to the
applicable vesting date.







	 	 	 	 	 
	Number of Shares	 	Vesting Date	 
	     a. Holding and Other Restrictions on Delivery
	 	 	 	 





     The Grantee may not sell, transfer or otherwise dispose of shares subject to the Restricted
Stock Award until the third anniversary of the grant date.



     b. Acceleration in the event of Death, Disability or Termination of Service




          Regardless of any hold or other restriction on delivery of shares, shares that have vested
under the Stock Award will be automatically be available for sale, transfer or other disposition by
the Grantee as of the date of the first to occur of the




 









 




following specific events (provided that such date is after the original vesting date for the
shares): (i) a change in control of the Company (as defined under Code Section 409A), (ii)
termination of Grantee’s service with the Company (for any reason), (iii) determination of
Grantee’s permanent disability, or (iv) the date of Grantee’s death.




     3. Taxes. Regardless of any action the Company or Grantee’s actual employer takes
with respect to any or all income tax (including federal, state and local taxes), social insurance,
payroll tax, payment on account or other tax-related withholding (“Tax Related Items”), Grantee
acknowledges that the ultimate liability for all Tax Related Items legally due by Grantee is and
remains Grantee’s responsibility and that the Company and/or the Grantee’s actual employer (i) make
no representations or undertakings regarding the treatment of any Tax Related Items in connection
with any aspect of the Restricted Stock Award, including the grant of the Restricted Stock Award,
the vesting of the Restricted Stock Award, or the subsequent sale of shares acquired at vesting,
pursuant to such Restricted Stock Award and the receipt of any dividends, or the sufficiency of any
withholdings or other payments made for or by the Grantee to satisfy the Tax-Related Items; and
(ii) do not commit to structure the terms of the grant or any aspect of the Restricted Stock Award
to reduce or eliminate the Grantee’s liability for Tax Related Items.



          Prior to the issuance of shares of Common Stock upon vesting of Restricted Stock Award,
Grantee shall pay, or make adequate arrangements satisfactory to the Company or to the Grantee’s
actual employer (in their sole discretion) to satisfy all withholding and payment on account
obligations of the Company and/or the Grantee’s actual employer. In this regard, Grantee
authorizes the Company or the Grantee’s actual employer to (in their sole discretion) withhold all
applicable Tax Related Items legally payable by Grantee (i) from Grantee’s wages or other cash
compensation payable to Grantee by the Company or the Grantee’s actual employer and/or (ii) to
withhold in shares, provided that the Company and the Grantee’s actual employer shall withhold only
the number of shares necessary to satisfy the minimum withholding amount. Alternatively, or in
addition, if permissible under local law Grantee (i) may tender payment in cash or by delivering to
the Company owned and unencumbered shares of Asyst Technologies, Inc. and/or (ii) authorize the
Company or the Grantee’s actual employer to, sell or arrange for the sale of the number of shares
as necessary to satisfy the withholding or payment on account obligation that is due at the vesting
of the Restricted Stock Award. Grantee shall pay to the Company or to the Grantee’s actual
employer any amount of Tax Related Items that the Company or the Grantee’s actual employer may be
required to withhold as a result of Grantee’s receipt of the Restricted Stock Award, the vesting of
the Restricted Stock Award, or the subsequent sale of shares acquired pursuant to such Restricted
Stock Award and the receipt of any dividends that cannot be satisfied by the means previously
described. The Company may refuse to deliver shares to Grantee if Grantee fails to comply with
Grantee’s obligation in connection with the Tax Related Items as described herein.




     4. Restrictions on Issuance. No shares will be issued in connection with the
Restricted Stock Award if the issuance of such shares would constitute a violation of any
applicable laws.



2









 





     5. Termination of Continuous Service. In the event that the Grantee ceases to remain
in Continuous Service with the Company for any reason, including death or disability, resignation
or failure of nomination or election for subsequent term, any unvested portion of the Restricted
Stock Award shall automatically terminate and be deemed forfeited.



     6. Transferability of Award. The Restricted Stock Award may not be transferred,
pledged, sold, assigned, alienated or otherwise encumbered by the Grantee, in any manner other than
by will or by the laws of descent and distribution. Any such purported transfer, pledge, sale,
assignment, alienation or encumbrance will be void and unenforceable against the Company. The
terms of the Restricted Stock Award shall be binding upon the executors, administrators, heirs and
successors of the Grantee.



     7. Refusal to Transfer. The Company shall not be required (i) to transfer on its
books any shares that have been sold or otherwise transferred in violation of any of the provisions
of this Restricted Stock Award Agreement or (ii) to treat as owner of such shares or to accord the
right to vote or pay dividends to any purchaser or other transferee to whom such shares shall have
been so transferred.



     8. Tax Consultation. The Grantee understands that he or she may suffer adverse tax
consequences as a result of the Grantee’s receipt or disposition of the shares subject to the
Restricted Stock Award (or the vesting of Grantee’s right to receive or dispose of the shares
subject to the Restricted Stock Award). The Grantee represents that he or she has had an
opportunity to consult with any tax consultants the Grantee deems advisable in connection with
receipt or disposition of the shares and that the Grantee is not relying on the Company or its
counsel for any tax advice.



     9. Entire Agreement: Governing Law. The Plan and this Stock Award Agreement
constitute the entire agreement of the parties with respect to the subject matter hereof and
supersede in their entirety all prior undertakings and agreements of the Company and the Grantee
with respect to the subject matter hereof, and may not be modified adversely to the Grantee’s
interest except by means of a writing signed by the Company and the Grantee. Nothing in the Plan
and this Stock Award Agreement (except as expressly provided therein) is intended to confer any
rights or remedies on any persons other than the parties. The Plan and this Stock Award Agreement
are to be construed in accordance with and governed by the laws of the State of California without
giving effect to any conflict of law rule. Should any provision of the Plan or this Stock Award
Agreement be determined by a court of law to be illegal or unenforceable, such provision shall be
enforced to the fullest extent allowed by law and the other provisions shall nevertheless remain
effective and shall remain enforceable.



     10. Headings. The captions used in this Stock Award Agreement are inserted for
convenience and shall not be deemed a part of the Stock Award for construction or interpretation.



     11. Notices. Any notice required or permitted hereunder shall be given in writing and
shall be deemed effectively given upon personal delivery or upon deposit in



3









 




the United States mail by certified mail (if the parties are within the United States) or upon
deposit for delivery by an internationally recognized express mail courier service (for
international delivery of notice), with postage and fees prepaid, addressed to the other party at
its address as shown below or to such other address as such party may designate in writing from
time to time to the other party.




     12. Rights as Shareholder. Except with regard to the disposition of the shares
subject to the Restricted Stock Award, Grantee shall generally have all the rights of a shareholder
with regard to the shares subject to the Restricted Stock Award from the Date of Award, including
without limitation, the right to receive dividends with respect to such shares and the right to
vote such shares, but subject to those restrictions in this Stock Award Agreement or in the Plan.



     13. Mandatory Arbitration to Resolve Disputes. Any differences, disputes or
controversies arising from the Restricted Stock Award or this Stock Award Agreement, and rights or
obligations thereunder or hereunder, shall be exclusively submitted to binding arbitration before
an independent and qualified arbitrator in accordance with the American Arbitration Association and
its rules then in effect, without reference to conflict of laws principles. Arbitration shall be
the exclusive forum for any dispute, claim or cause arising hereunder, and the decision and award
by the arbitrator shall be final, binding upon and non-appealable by the parties and may be entered
in any state court of California having jurisdiction. The arbitrator shall be without authority or
jurisdiction to award either party its attorneys’ fees or costs incurred in the matter. In
addition, the arbitrator shall be without authority or jurisdiction to award either party, for any
claim, cause or action arising hereunder, any incidental, special, consequential or exemplary
damages of any nature, including but not limited to punitive damages; provided, however, that
provisional or injunctive remedies and relief shall be available as appropriate to each party.



     14. Waiver of Right to Jury Trial. Each party, to the fullest extent permitted by
law, waives any right or expectation against the other to trial or adjudication by a jury of any
claim, cause or action arising hereunder, or the rights, duties or liabilities created hereby.



     15. Nature of the Restricted Stock Award. In accepting the Restricted Stock Award,
the Grantee acknowledges and agrees that:



          (a) the Plan is established voluntarily by the Company, it is discretionary in nature and it
may be modified, amended, suspended or terminated by the Company at any time, unless otherwise
provided in the Plan and this Stock Award Agreement;




          (b) the grant of the Restricted Stock Award is voluntary and occasional, and does not create
any contractual or other right to receive future grants of stock, or benefits in lieu of awards,
even if stock awards have been granted repeatedly in the past;




4









 








          (c) all decisions with respect to future grants, if any, will be at the sole discretion of the
Company;




          (d) the Grantee’s participation in the Plan shall not create a right to further employment
with Grantee’s employer and shall not interfere with the ability of the Company to terminate the
Grantee’s employment relationship at any time, with or without cause;




          (e) the Grantee is voluntarily participating in the Plan;




          (f) the Restricted Stock Award is an extraordinary item that does not constitute compensation
of any kind for services of any kind rendered to the Company, and which is outside the scope of the
Grantee’s employment contract, if any;




          (g) the Restricted Stock Award is not part of normal or expected compensation or salary for
any purposes, including, but not limited to, calculating any severance, resignation, termination,
redundancy, end of service payments, bonuses, long-service awards, pension or retirement benefits
or similar payments;




          (h) in the event that the Grantee is not an employee of the Company, the grant of the
Restricted Stock Award will not be interpreted to form an employment contract or relationship with
the Company; and furthermore, the grant of the Restricted Stock Award will not be interpreted to
form an employment contract with any subsidiary or Affiliate of the Company;




          (i) the future value of the shares is unknown and cannot be predicted with certainty;




          (j) the value of the shares obtained pursuant to the Restricted Stock Award may increase or
decrease in value;




          (k) in consideration of the grant of the Restricted Stock Award, the Grantee does not acquire
any claim or entitlement to compensation or damages that otherwise could arise from termination of
the Restricted Stock Award or diminution in value of the Restricted Stock Award, or shares acquired
pursuant to the Restricted Stock Award, upon termination of the Grantee’s employment by the Company
(for any reason whatsoever and whether or not in breach of local labor laws), and the Grantee
hereby irrevocably waives and releases the Company from any such claim or entitlement that may
arise; if, notwithstanding the foregoing, any such claim or entitlement is found by a court of
competent jurisdiction to have arisen;




          (l) by signing this Stock Award Agreement, the Grantee shall be deemed irrevocably to have
waived his or her right to pursue or seek remedy for any such claim or entitlement;




          (m) notwithstanding any terms or conditions of the Plan to the contrary, in the event of
involuntary termination of the Grantee’s employment (whether or not in breach of local labor laws),
the Grantee’s right to receive shares under the Plan,




5









 




or vesting of such right, if any, will terminate automatically as of the Termination Date, and
will not be extended by any notice period mandated under local law (e.g., active employment would
not include a period of “garden leave” or similar period pursuant to local law); and




          (n) the Committee shall have the exclusive discretion to determine when the Grantee is no
longer actively employed for purposes of this Restricted Stock Award.




     16. Data Privacy. The Grantee hereby explicitly and unambiguously consents to the
collection, use and transfer, in electronic or other form, of his or her personal data as described
in this document by and among, as applicable, the Company and its subsidiaries and Affiliates for
the exclusive purpose of implementing, administering and managing the Grantee’s participation in
the Plan.



          The Grantee understands that the Company may hold certain personal information about him or
her, including, but not limited to, the Grantee’s name, home address and telephone number, date of
birth, social security or insurance number or other identification number, salary, nationality, job
title, any shares of stock or directorships held in the Company, details of the Restricted Stock
Award or any other entitlement to shares, canceled, exercised, vested, unvested or outstanding in
the Grantee’s favor, for the purpose of implementing, administering and managing the Plan (“Data”).
The Grantee understands that Data may be transferred to any third parties assisting in the
implementation, administration and management of the Plan, that these recipients may be located in
the Grantee’s country or elsewhere, and that the recipients ‘country may have different data
privacy laws and protections than the Grantee’s country. The Grantee understands that he or she
may request a list with the names and addresses of any potential recipients of the Data by
contacting his or her local human resources representative. The Grantee authorizes the recipients
to receive, possess, use, retain and transfer the Data, in electronic or other form, for the
purposes of implementing, administering and managing the Grantee’s participation in the Plan,
including any requisite transfer of such Data as may be required to a broker or other third party
with whom the Grantee may elect to deposit any shares acquired upon vesting of the Restricted Stock
Award. The Grantee understands that Data will be held as long as is reasonably necessary to
implement, administer and manage the Grantee’s participation in the Plan. The Grantee understands
that he or she may, at any time, view Data, request additional information about the storage and
processing of Data, require any necessary amendments to Data or refuse or withdraw the consents
herein, in any case without cost, by contacting in writing the Grantee’s local human resources
representative. The Grantee understands, however, that refusing or withdrawing his or her consent
may affect the Grantee’s ability to participate in the Plan. For more information on the
consequences of refusal to consent or withdrawal of consent, the Grantee understands that he or she
may contact his or her local human resources representative.




6









 








     17. Language. If the Grantee has received this or any other document related to the
Plan translated into a language other than English and if the translated version is different than
the English version, the English version will control.



     18. Electronic Delivery. The Company may, in its sole discretion, decide to deliver
any documents related to the Restricted Stock Award and participation in the Plan, or future Stock
Awards that may be granted under the Plan, by electronic means or to request the Grantee’s consent
to participate in the Plan by electronic means. The Grantee hereby consents to receive such
documents by electronic delivery and, if requested, to agree to participate in the Plan through an
on-line or electronic system established and maintained by the Company or another third party
designated by the Company.



****************************




     The Grantee acknowledges receipt of a copy of the Plan and the Stock Award Agreement, and
represents that he or she has had an opportunity to review these documents and to be familiar with
the terms and provisions thereof, and hereby accepts the Restricted Stock Award subject to all of
the terms and provisions hereof and thereof. The Grantee has reviewed the Plan and the Stock Award
Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to
executing this Stock Award Agreement. The Grantee agrees to notify the Company upon any change in
the residence address indicated in this Stock Award Agreement.



	 	 	 	 	 	 	 	 	 
	Submitted by:	 	 	 	Accepted by:	 	 
	 
	 	 	 	 	 	 	 	 
	GRANTEE:	 	 	 	ASYST TECHNOLOGIES, INC.	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 	 	 	 	Title: Vice President, General Counsel & Secretary	 	 
	 

(Signature)

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Address:	 	 	 	Address:	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	46897 Bayside Parkway	 	 
	 	 	 	 	Fremont, CA 94538	 	 







7