Form of Restricted Stock Units Agreement for Non-Employee Directors
Exhibit 10.3
A-Mark Precious Metals, Inc.
2014 Stock Award and Incentive Plan
Restricted Stock Units Agreement – Non-Employee Director
This Restricted Stock Units Agreement (the "Agreement") confirms the grant on April 29, 2021 (the "Grant Date") by A-Mark Precious Metals, Inc., a Delaware corporation (the "Company" or “A-Mark”), to __________________ ("Grantee"), of Restricted Stock Units (the "RSUs") relating to A-Mark Common Stock, par value $0.01 per share (the "Shares"), as set forth below. The RSUs are granted under Section 6(e) of the Company’s 2014 Stock Award and Incentive Plan, as amended (the “Plan”), in consideration of Grantee’s service to A-Mark as a non-employee director.
The principal terms of the RSUs granted hereby are as follows (subject to adjustment in accordance with the Plan and this Agreement):
Number granted: _____ RSUs.
RSUs vest:
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| (i) | The RSUs, if they have not previously been forfeited as provided herein, will vest as to 100% of the underlying Shares on the first anniversary of the Grant Date. The foregoing notwithstanding, the RSUs, if not previously forfeited, will vest in full on an accelerated basis upon the occurrence of certain events relating to Termination of Service, in accordance with Section 4 hereof. |
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| (ii) | The date of vesting above is the “Vesting Date.” The term “vesting” or “vests” means that Grantee’s substantial risk of forfeiture of the RSUs, based on Grantee’s Termination of Service, has lapsed. |
Forfeiture and Clawback of RSUs:
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| (i) | The RSUs (including vested RSUs) will be forfeited, or Grantee will be required to surrender the Shares issued in settlement of the RSUs to the Company, or Grantee will be required to pay to the Company the fair market value of the Shares issued in settlement of the RSUs, in accordance with the terms of any policy relating to recoupment (or clawback) approved by the Board of Directors and in effect at or before the time of vesting of the RSUs. |
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| (ii) | Except as provided in Section 4 of this Agreement, upon Grantee’s Termination of Service before the Vesting Date, the RSUs will be forfeited. |
Settlement: The RSUs that become vested will be settled by delivery of one Share of the Company's Common Stock, $0.01 par value per Share, for each RSU being settled. Such settlement will occur not later than the fifth business day after the Vesting Date, except as otherwise provided under the terms of Grantee’s valid deferral election, in accordance with Section 6(b), or as otherwise provided in Section 4.
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The RSUs are subject to the terms and conditions of the Plan and this Agreement, including the Terms and Conditions of Restricted Stock Units attached hereto and deemed a part hereof. The number of RSUs, the number and kind of Shares deliverable in settlement of RSUs and the number of Shares subject to clawback are subject to adjustment in accordance with Section 5 hereof and the applicable sections of the Plan. Capitalized terms used in this Agreement but not defined herein shall have the same meanings as in the Plan.
Grantee acknowledges and agrees that (i) the RSUs are nontransferable as set forth in Section 7 hereof and Section 10(b) of the Plan, (ii) the RSUs are forfeitable and subject to clawback, as set forth herein, (iii) sales of Shares delivered in settlement of RSUs will be subject to compliance with applicable Federal and state securities laws, which at times may preclude such sales, and will be subject to the Company's policies regulating insider trading by directors and employees, and (iv) a copy of the Plan and related information previously have been delivered to Grantee, are being delivered to Grantee herewith, or are available as specified in Section 1 and 8(e) hereof.
IN WITNESS WHEREOF, A-Mark Precious Metals, Inc. has caused this Agreement to be executed by its officer thereunto duly authorized.
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| A-MARK PRECIOUS METALS, INC. | |
| Date: April 29, 2021 | By: |
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| Carol Meltzer |
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| General Counsel and EVP |
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TERMS AND CONDITIONS OF RESTRICTED STOCK UNITS
The following Terms and Conditions apply to the RSUs granted to Grantee by A-MARK PRECIOUS METALS, INC. (the "Company"), as specified in the Restricted Stock Units Agreement (of which these Terms and Conditions form a part). Certain terms of the RSUs, including the number of RSUs granted, vesting date(s) and settlement date(s), are set forth on the preceding cover page, which is an integral part of this Agreement.
1.General. The RSUs are granted to Grantee under the Company’s 2014 Stock Award and Incentive Plan (the “Plan”), which has previously been delivered to Grantee and/or is available upon request to the General Counsel of the Company. All of the applicable terms, conditions and other provisions of the Plan are incorporated by reference herein. Capitalized terms used in this Agreement but not defined herein shall have the same meanings as in the Plan. If there is any conflict between the provisions of this document and mandatory provisions of the Plan, the provisions of the Plan govern. By accepting the grant of the RSUs, Grantee agrees to be bound by all of the terms and provisions of the Plan (as presently in effect or later amended), the rules and regulations under the Plan adopted from time to time, and the decisions and determinations of the Company's Compensation Committee (the "Committee") or Board of Directors made from time to time, provided that, without the Grantee’s written consent, no such Plan amendment, rule or regulation or Committee decision or determination shall materially and adversely affect the rights of Grantee with respect to outstanding RSUs.
2.Account Maintained for Grantee. The Company shall maintain a bookkeeping account for Grantee (the "Account") reflecting the number of RSUs then credited to Grantee hereunder as a result of such grant of RSUs and any rights to cash or property relating to such RSUs.
3.Non-transferability. Until RSUs become settleable in accordance with the terms of this Agreement, Grantee may not transfer RSUs or any rights hereunder to any third party other than by will or the applicable laws of descent and distribution, except for transfers to a Beneficiary upon death of Grantee or otherwise if and to the extent permitted by the Company and in accordance with Plan Section 10(b) and Section 7 below.
4.Termination Provisions. In the event of Grantee's Termination of Service for any reason before a given RSU has vested, such unvested RSU shall be forfeited unless otherwise determined by the Committee or otherwise provided in subsections (a) – (c) below. All references to RSUs mean only those outstanding RSUs that have not been previously forfeited.
(a)Death or Disability. In the event of the death of Grantee or Grantee's Termination of Service due to a Disability, the RSUs (if not previously vested) will vest in full and become non-forfeitable immediately, and such RSUs will be settled not later than 30 days following the date of death or the date of such Termination of Service, subject to any valid deferral election of the Grantee under Section 6(b).
(b)Termination of Service at Subsequent Annual Meeting. In the event of Grantee's Termination of Service at the Annual Meeting of Stockholders in the fiscal year following the fiscal year of grant, if the Grantee has served as a Director until the day of that Annual Meeting (regardless of the reason the Grantee is not elected to the Board at that Annual Meeting), the RSUs will vest in full and become non-forfeitable immediately, and such RSUs will be settled not later than 15 days following such Termination of Service, subject to any valid deferral election of the Grantee under Section 6(b).
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(c)Termination of Service Upon or Following a Change in Control. In the event of Grantee's Termination of Service at the time of a Change in Control or at any time thereafter, the RSUs will vest in full and become non-forfeitable immediately, and such RSUs will be settled not later than 15 days following such Termination of Service, subject to any valid deferral election of the Grantee under Section 6(b).
(d)Certain Definitions. The following definitions apply for purposes of this
Agreement:
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| (i) | “Change in Control” has the meaning as defined in Section 8(f) of the Plan, except that an event will constitute a Change in Control only if that event (or an event closely associated with that event) also constitutes a change in the ownership of the Company, a change in effective control of the Company or a change in the ownership of a substantial portion of the assets of the Company as defined in Treasury Regulation § 1.409A-3(i)(5). |
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| (ii) | “Disability” means Grantee’s inability to perform the duties and responsibilities of a director due to physical or mental incapacity or impairment, which is reasonably expected to continue for a period of more than 180 consecutive days or to result in death. |
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| (iii) | "Termination of Service” means the earliest time at which Grantee has had a separation from service from the Company as defined in Treasury Regulation § 1.409A-1(h). |
5.Dividends and Adjustments.
(a)Dividends. RSUs will be entitled to payments or credits equivalent to dividends that would have been paid if the RSUs had been outstanding Shares at any record date that occurs before the settlement date. Such dividend equivalents will be credited as amounts deemed to be retained by the Company as cash, without interest, and paid to Grantee at the time the related RSUs are settled if and to the extent the related RSUs have become vested and are settled.
(b)Adjustments. The number of RSUs credited to Grantee's Account and/or the property deliverable upon settlement of RSUs shall be appropriately adjusted, in order to prevent dilution or enlargement of Grantee's rights with respect to RSUs in connection with, or to reflect any changes in the number and kind of outstanding Shares of Common Stock resulting from, any corporate transaction or event referred to in Section 10(c) of the Plan (this provision takes precedence over Section 5(a) in the case of a large and non-recurring cash dividend or any non-cash dividend, and any adjustment otherwise shall take into account any value received as dividend equivalents).
(c)Terms and Settlement of RSUs Resulting from Adjustments. RSUs, cash and other property deliverable in settlement of RSUs that directly or indirectly result from adjustments to an RSU granted hereunder shall be subject to the terms (including vesting terms) that apply to the granted RSU, and will become vested and be settled at the same time as the granted RSU.
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6.Settlement; Deferral.
(a)Settlement. The settlement terms set forth on the Cover Page and in Section 4 of this Agreement apply to the RSUs if the Grantee has made no valid deferral election under Section 6(b).
(b)Deferral. Grantee may elect to defer settlement of the RSUs by making an election on a form provided by the Company and timely filing such election. Such election form shall be attached as Exhibit A, and the terms thereof shall govern the time of settlement of the RSUs.
(c) Code Section 409A Compliance. It is intended that the terms of RSUs shall comply with requirements under Section 409A of the Internal Revenue Code (the “Code”). The foregoing notwithstanding, if any RSUs are deemed to be a deferral of compensation (taking into account the terms of any legally binding right of Grantee), such RSUs will be subject to no acceleration of settlement in the discretion of the Committee. In the case of all RSUs, any rights of Grantee or retained authority of the Company with respect to the RSUs shall be automatically modified and limited to the extent necessary so that Grantee will not be deemed to be in constructive receipt of income relating to the RSUs prior to settlement and so that Grantee shall not be subject to any penalty under Code Section 409A. The six-month delay rule specified in Section 1(a)(iii)(B) of the “Compliance Rules Under Code Section 409A” (Appendix A to the Plan) applies to such RSUs that are deemed to be a deferral of compensation under Section 409A.
7.Nontransferability. Grantee may not transfer the RSUs or any rights hereunder to any third party other than by will or the laws of descent and distribution, except for transfers to a Beneficiary in the event of death or as otherwise permitted and subject to the conditions under Section 10(b) of the Plan.
8.Other Terms Relating to RSUs.
(a)Representations and warranties. As a condition to the settlement of the RSUs, the Company may require Grantee to make any other representation or warranty to the Company as then may be required or deemed by the Company advisable in order to ensure compliance under any applicable law or regulation.
(b)Stockholder Rights. Grantee acknowledges and agrees that he or she shall have no voting rights or other rights of a stockholder with respect to the RSUs or the Shares issuable in settlement of the RSUs until such time as the Shares have been issued and delivered to Grantee in settlement of the RSUs.
(c)Fractional RSUs and Shares. The number of RSUs credited to Grantee's Account shall not include fractional RSUs, unless otherwise determined by the Committee. Unless settlement is effected through a third-party broker or agent that can accommodate fractional Shares (without requiring issuance of a fractional Share by the Company), upon settlement of the RSUs Grantee shall be paid, in cash, an amount equal to the value of any fractional Share that would have been otherwise deliverable in settlement of such RSUs.
(d)Tax Withholding. If the Company is required to withhold taxes or other amounts from compensation payable to Grantee at the time of settlement of the RSUs, Grantee will make arrangements acceptable to the Company to pay such withholding amounts.
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(e)Consent to Electronic Delivery. GRANTEE HEREBY CONSENTS TO ELECTRONIC DELIVERY OF THE PLAN, ANY PROSPECTUS FOR THE PLAN AND OTHER DOCUMENTS RELATED TO THE PLAN (COLLECTIVELY, THE “PLAN DOCUMENTS”), IN RESPECT OF THIS EQUITY AWARD AND ALL OTHER EQUITY AWARDS THAT MAY BE GRANTED OR HAVE BEEN GRANTED BY THE COMPANY. THE COMPANY WILL DELIVER THE PLAN DOCUMENTS ELECTRONICALLY TO GRANTEE BY E-MAIL, BY POSTING SUCH DOCUMENTS ON ITS INTRANET WEBSITE OR BY ANOTHER MODE OF ELECTRONIC DELIVERY AS DETERMINED BY THE COMPANY IN ITS SOLE DISCRETION. THE COMPANY WILL SEND TO GRANTEE AN E-MAIL ANNOUNCEMENT WHEN A NEW PLAN DOCUMENT IS AVAILABLE ELECTRONICALLY FOR GRANTEE’S REVIEW, DOWNLOAD OR PRINTING AND WILL PROVIDE INSTRUCTIONS ON WHERE THE PLAN DOCUMENT CAN BE FOUND. UNLESS OTHERWISE SPECIFIED IN WRITING BY THE COMPANY, GRANTEE WILL NOT INCUR ANY COSTS FOR RECEIVING THE PLAN DOCUMENTS ELECTRONICALLY THROUGH THE COMPANY’S COMPUTER NETWORK. GRANTEE WILL HAVE THE RIGHT TO RECEIVE PAPER COPIES OF ANY PLAN DOCUMENT BY SENDING A WRITTEN REQUEST FOR A PAPER COPY TO THE COMPANY AT THE ADDRESS SET FORTH IN SECTION 9(e) BELOW. GRANTEE’S CONSENT TO ELECTRONIC DELIVERY OF THE PLAN DOCUMENTS WILL BE VALID AND REMAIN EFFECTIVE UNTIL THE EARLIER OF (i) THE TERMINATION OF GRANTEE’S PARTICIPATION IN THE PLAN AND (ii) THE WITHDRAWAL OF GRANTEE’S CONSENT TO ELECTRONIC DELIVERY OF THE PLAN DOCUMENTS. THE COMPANY ACKNOWLEDGES AND AGREES THAT GRANTEE HAS THE RIGHT AT ANY TIME TO WITHDRAW HIS OR HER CONSENT TO ELECTRONIC DELIVERY OF THE PLAN DOCUMENTS BY SENDING A WRITTEN NOTICE OF WITHDRAWAL TO THE COMPANY AT THE ADDRESS SET FORTH IN SECTION 9(e) BELOW. IF GRANTEE WITHDRAWS HIS OR HER CONSENT TO ELECTRONIC DELIVERY, THE COMPANY WILL RESUME SENDING PAPER COPIES OF THE PLAN DOCUMENTS WITHIN TEN (10) BUSINESS DAYS OF ITS RECEIPT OF THE WITHDRAWAL NOTICE. GRANTEE ACKNOWLEDGES THAT HE OR SHE IS ABLE TO ACCESS, VIEW AND RETAIN AN E-MAIL ANNOUNCEMENT INFORMING GRANTEE THAT THE PLAN DOCUMENTS ARE AVAILABLE IN EITHER HTML, PDF OR SUCH OTHER FORMAT AS THE COMPANY DETERMINES IN ITS SOLE DISCRETION.
9.Miscellaneous.
(a)Binding Agreement; Written Amendments. This Agreement shall be binding upon the heirs, executors, administrators and successors of the parties. This Agreement constitutes the entire agreement between the parties with respect to the RSUs, and supersedes any prior agreements or documents with respect thereto. No amendment or alteration of this Agreement that may impose any additional obligation upon the Company shall be valid unless expressed in a written instrument duly executed in the name of the Company, and no amendment, alteration, suspension or termination of this Agreement that may materially impair the rights of Grantee with respect to the RSUs shall be valid unless expressed in a written instrument executed by Grantee.
(b)No Promise of Continued Service. The RSUs and the granting thereof shall not constitute or be evidence of any agreement or understanding, express or implied, that Grantee has a right to continue as a director of the Company or any of its subsidiaries or affiliates for any period of time, or at any particular rate of compensation. Grantee acknowledges and agrees that the Plan is discretionary in nature and limited in duration, and may be amended, cancelled, or terminated by the Company, in its sole discretion, at any time, provided, however that any
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outstanding RSUs shall not be materially and adversely affected without the written agreement of Grantee. The grant of RSUs under the Plan is a one-time benefit and does not create any contractual or other right to receive a grant of restricted stock units or stock options or benefits in lieu of units or stock options in the future. Future grants, if any, will be at the sole discretion of the Company, including, but not limited to, the timing of any grant, the number of units and vesting provisions.
(c) Unfunded Plan. Any provision for distribution in settlement of Grantee's Account hereunder shall be by means of bookkeeping entries on the books of the Company and shall not create in Grantee any right to, or claim against any, specific assets of the Company, nor result in the creation of any trust or escrow account for Grantee. With respect to Grantee's entitlement to any distribution hereunder, Grantee shall be a general creditor of the Company.
(d)Governing Law. THE VALIDITY, CONSTRUCTION, AND EFFECT OF THIS AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS (INCLUDING THOSE GOVERNING CONTRACTS) OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS, AND APPLICABLE FEDERAL LAW. The RSUs and the granting thereof are subject to Grantee’s compliance with the applicable laws of the jurisdiction of Grantee’s service.
(e)Notices. Any notice to be given the Company under this Agreement shall be addressed to the Company at 2121 Rosecrans Avenue, Suite 6300, El Segundo, California 90245, attention: General Counsel, and any notice to Grantee shall be addressed to Grantee at Grantee’s address as then appearing in the records of the Company.
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