EXHIBIT 10.3
RSA SECURITY INC.
RESTRICTED STOCK AGREEMENT
GRANTED UNDER 2005 STOCK INCENTIVE PLAN
This Restricted Stock Agreement, dated as of ____________, is made between
RSA Security Inc., a Delaware corporation (the "COMPANY"), and ________________
(the "PARTICIPANT").
The parties agree as follows:
1. Issuance of Shares. The Company shall issue to the Participant, subject
to the terms and conditions set forth in this Agreement and in the Company's
2005 Stock Incentive Plan (the "PLAN"), __________ shares of the Company's
common stock, $0.01 par value (the "SHARES"), at a purchase price of $0.00. The
Shares will be held in book entry by the Company's transfer agent in the name of
the Participant for that number of Shares issued to the Participant. The
Participant agrees that the Shares are subject to the forfeiture options set
forth in Section 2 of this Agreement and the restrictions on transfer set forth
in Section 5 of this Agreement.
2. Forfeiture Option.
(a) Except as set forth in Section 8 below, if the Participant ceases
to be employed by the Company for any reason or no reason, with or without
cause, before [third anniversary date], the Company shall have the right and
option (the "FORFEITURE OPTION") to cause the Participant, without
consideration, to forfeit some or all of the Unvested Shares to the Company.
"UNVESTED SHARES" means the total number of Shares multiplied by the Applicable
Percentage at the time the Forfeiture Option becomes exercisable by the Company.
The "APPLICABLE PERCENTAGE" is (a) 100% during the period beginning on the date
of this Agreement and ending on [first anniversary date], (b) 66.67% during the
period beginning on [first anniversary date] and ending on [second anniversary
date], (c) 33.33% during the period beginning on [second anniversary date] and
ending on [third anniversary date], and (d) zero on or after [third anniversary
date]. If the Participant is employed by a parent or subsidiary of the Company,
any references in this Agreement to employment with the Company or termination
of employment by or with the Company are instead deemed to refer to such parent
or subsidiary.
(b) Delivery of Certificates. Subject to Section 3 below, the
Participant may request that the Company deliver the Shares in certificated form
with respect to any Shares that have ceased to be subject to the Forfeiture
Option described above.
3. Automatic Sale Upon Expiration of Company Forfeiture Option.
(a) Upon the expiration of the Company Forfeiture Option with respect
to any Shares pursuant to Section 2 hereof, the Company shall sell, or arrange
for the sale of, such
number of the Shares no longer subject to the Forfeiture Option under Section 2
as is sufficient to generate net proceeds sufficient to satisfy the Company's
minimum statutory withholding obligations with respect to the income recognized
by the Participant upon the lapse of the Forfeiture Option (based on minimum
statutory withholding rates for all tax purposes, including payroll and social
security taxes, that are applicable to such income), and the Company shall
retain such net proceeds in satisfaction of such tax withholding obligations.
(b) The Participant hereby appoints the Company's General Counsel his
attorney in fact to sell the Participant's Shares in accordance with this
Section 3. The Participant agrees to execute and deliver such documents,
instruments and certificates as may reasonably be required in connection with
the sale of the Shares pursuant to this Section 3.
(c) The Participant represents to the Company that, as of the date
hereof, he is not aware of any material nonpublic information about the Company
or the Common Stock. The Participant and the Company have structured this
Agreement to constitute a "binding contract" relating to the sale of Common
Stock pursuant to this Section 3, consistent with the affirmative defense to
liability under Section 10(b) of the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT") under Rule 10b5-1(c) promulgated under the Exchange Act.
4. Exercise of Forfeiture Option and Closing.
(a) The Company may exercise the Forfeiture Option by delivering or
mailing to the Participant, within 90 days after the termination of the
Participant's employment with the Company, a written notice of exercise of the
Forfeiture Option. Such notice shall specify the number of Shares to be
forfeited. If the Company fails to give such notice within such 90-day period,
the Forfeiture Option automatically expires and terminates upon the expiration
of such 90-day period.
(b) Within 10 days after delivery to the Participant of the Company's
notice of the exercise of the Forfeiture Option pursuant to subsection (a)
above, the Participant shall deliver to the Company at its principal offices
duly endorsed stock powers (in the form attached hereto as Exhibit A) relating
to the Shares that the Company has elected to cause the Participant to forfeit
in accordance with the terms of this Agreement.
(c) After the time when any Shares are required to be delivered to the
Company for transfer to the Company pursuant to subsection (b) above, the
Company shall not pay any dividend to the Participant on account of such Shares
or permit the Participant to exercise any of the privileges or rights of a
stockholder with respect to such Shares, but shall, to the extent permitted by
law, treat the Company as the owner of such Shares.
(d) The Company shall not cause the Participant to forfeit any
fraction of a Share upon exercise of the Forfeiture Option, and any fraction of
a Share resulting from a computation made pursuant to Section 2 of this
Agreement shall be rounded to the nearest whole Share (with any one-half Share
being rounded upward).
(e) The Company may assign its Forfeiture Option to one or more
persons or entities.
-2-
5. Restrictions on Transfer. The Participant shall not sell, assign,
transfer, pledge, hypothecate or otherwise dispose of, by operation of law or
otherwise (collectively "TRANSFER") any Shares, or any interest therein, that
are subject to the Forfeiture Option, except as follows:
(a) The Participant may transfer such Shares to or for the benefit of
any spouse, children, parents, uncles, aunts, siblings, grandchildren and any
other relatives approved by the Board of Directors (collectively, "APPROVED
RELATIVES") or to a trust established solely for the benefit of the Participant
and/or Approved Relatives. However, such Shares shall remain subject to this
Agreement (including without limitation the restrictions on transfer set forth
in this Section 5 and the Forfeiture Option), and such permitted transferee
shall, as a condition to such transfer, deliver to the Company a written
instrument confirming that such transferee shall be bound by all of the terms
and conditions of this Agreement.
(b) The Participant may transfer such Shares as part of the sale of
all or substantially all of the shares of capital stock of the Company
(including pursuant to a merger or consolidation). However, in accordance with
the Plan and subject to Section 7 of this Agreement, the securities or other
property received by the Participant in connection with such transaction shall
remain subject to this Agreement.
6. Restrictive Legends. All certificates representing Unvested Shares shall
have affixed thereto a legend in substantially the following form: "The shares
of stock represented by this certificate are subject to restrictions on transfer
and a forfeiture option set forth in a certain Restricted Stock Agreement
between the corporation and the registered owner of these shares (or his
predecessor in interest), and such Agreement is available for inspection without
charge at the office of the Secretary of the corporation." In addition, all
certificates representing Shares may have affixed thereto any other legends that
may be required under federal or state securities laws.
7. Change in Control Events.
(a) Definition. "CHANGE IN CONTROL EVENT" means:
(1) the acquisition by an individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a "PERSON") of
beneficial ownership of the Company's capital stock if, after such acquisition,
such Person beneficially owns (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) 50% or more of either (x) the then-outstanding shares of
common stock of the Company (the "OUTSTANDING COMMON STOCK") or (y) the combined
voting power of the then-outstanding securities of the Company entitled to vote
generally in the election of directors (the "OUTSTANDING VOTING SECURITIES");
except that for purposes of this subsection (1), the following acquisitions do
not constitute a Change in Control Event: (A) any acquisition directly from the
Company (excluding an acquisition pursuant to the exercise, conversion or
exchange of any security exercisable for, convertible into or exchangeable for
common stock or voting securities of the Company, unless the Person exercising,
converting or exchanging such security acquired such security directly from the
Company or an underwriter or agent of the Company), (B) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the Company
or any
-3-
corporation controlled by the Company, or (C) any acquisition by any corporation
pursuant to a Business Combination (as defined below) that complies with clauses
(x) and (y) of subsection (3) of this definition; or
(2) such time as the Continuing Directors (as defined below) do
not constitute a majority of the Board (or, if applicable, the Board of
Directors of a successor corporation to the Company), where the term "CONTINUING
DIRECTOR" means at any date a member of the Board (x) who was a member of the
Board on the date of the initial adoption of this Plan by the Board or (y) who
was nominated or elected after such date by at least a majority of the directors
who were Continuing Directors at the time of such nomination or election or
whose election to the Board was recommended or endorsed by at least a majority
of the directors who were Continuing Directors at the time of such nomination or
election, except that there shall be excluded from this clause (y) any
individual whose initial assumption of office occurred as a result of an actual
or threatened election contest with respect to the election or removal of
directors or other actual or threatened solicitation of proxies or consents, by
or on behalf of a person other than the Board; or
(3) the consummation of a merger, consolidation, reorganization,
recapitalization or statutory share exchange involving the Company or a sale or
other disposition of all or substantially all of the assets of the Company (a
"BUSINESS COMBINATION"), unless, immediately after such Business Combination,
both of the following conditions are satisfied: (x) all or substantially all of
the individuals and entities who were the beneficial owners of the Outstanding
Common Stock and Outstanding Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more than 50% of
the then-outstanding shares of common stock and the combined voting power of the
then-outstanding securities entitled to vote generally in the election of
directors, respectively, of the resulting or acquiring corporation in such
Business Combination (which includes, without limitation, a corporation which as
a result of such transaction owns the Company or substantially all of the
Company's assets either directly or through one or more subsidiaries) (such
resulting or acquiring corporation is referred to herein as the "ACQUIRING
CORPORATION") in substantially the same proportions as their ownership of the
Outstanding Common Stock and Outstanding Voting Securities, respectively,
immediately prior to such Business Combination and (y) no Person (excluding the
Acquiring Corporation or any employee benefit plan (or related trust) maintained
or sponsored by the Company or by the Acquiring Corporation) beneficially owns,
directly or indirectly, 50% or more of the then-outstanding shares of common
stock of the Acquiring Corporation, or of the combined voting power of the
then-outstanding securities of such corporation entitled to vote generally in
the election of directors (except to the extent that such ownership existed
prior to the Business Combination).
(b) Effect of Change in Control Event on Forfeiture Option. If a
Change in Control Event occurs, then, except to the extent any other agreement
between the Participant and the Company specifies otherwise, the Forfeiture
Option will automatically expire, and all Unvested Shares will automatically
become vested. The terms and provisions of this Section 7 are in addition to,
and not in limitation of, any terms and provisions of the Plan, including
without limitation Section 9(b) of the Plan, or any other agreement between the
Participant and the Company.
-4-
8. Effect of Death of Participant on Forfeiture Option.
(a) Exercise Period and Acceleration Upon Death. If the Participant
dies before the expiration of the Company Forfeiture Option, or if the
Participant dies within ninety days after he ceases to be an employee of the
Company (other than as the result of the Company's termination of his
relationship with it for "cause" as specified in subsection (b) below), then
upon the date of his death, the Forfeiture Option will automatically expire, and
all Unvested Shares will automatically become vested.
(b) Definition. "CAUSE" means the Participant's willful misconduct or
willful failure to perform his responsibilities in the best interests of the
Company (including, without limitation, the Participant's breach of any
provision of any employment, consulting, advisory, nondisclosure,
non-competition or other similar agreement between the Participant and the
Company), as determined by the Company, which determination is conclusive. The
Participant will be considered to have been discharged for cause if the Company
determines, within 30 days after his discharge, that discharge for cause was
warranted.
9. Withholding Taxes, Section 83(b) Election. The Participant acknowledges
and agrees that the Company has the right to deduct from payments of any kind
otherwise due to the Participant any federal, state or local taxes of any kind
required by law to be withheld with respect to the issuance of the Shares to the
Participant or the lapse of the Forfeiture Option. The Participant has reviewed
with the Participant's own tax advisors the federal, state, local and foreign
tax consequences of this investment and the transactions contemplated by this
Agreement. The Participant is relying solely on such advisors and not on any
statements or representations of the Company or any of its agents. The
Participant understands that the Participant (and not the Company) is
responsible for the Participant's own tax liability that may arise as a result
of this investment or the transactions contemplated by this Agreement. The
Participant understands that it may be beneficial in many circumstances to elect
to be taxed at the time the Shares are issued rather than when and as the
Company's Forfeiture Option expires by filing an election under Section 83(b) of
the Internal Revenue Code of 1986 with the I.R.S. within 30 days from the date
of purchase. THE PARTICIPANT ACKNOWLEDGES THAT IT IS SOLELY THE PARTICIPANT'S
RESPONSIBILITY AND NOT THE COMPANY'S TO FILE TIMELY THE ELECTION UNDER SECTION
83(B), EVEN IF THE PARTICIPANT REQUESTS THE COMPANY OR ITS REPRESENTATIVES TO
MAKE THIS FILING ON THE PARTICIPANT'S BEHALF.
10. No Rights to Employment. The Participant acknowledges and agrees that
the vesting of the Shares pursuant to Section 2 hereof is earned only by
continuing service as an employee at the will of the Company (not through the
act of being hired or receiving shares hereunder). The Participant further
acknowledges and agrees that the transactions contemplated hereunder and the
vesting schedule set forth herein do not constitute an express or implied
promise of continued engagement as an employee or consultant for the vesting
period, for any period, or at all.
-5-
11. Severability. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, and each other provision of this Agreement shall be
severable and enforceable to the extent permitted by law.
12. Waiver. Any provision for the benefit of the Company contained in this
Agreement may be waived, either generally or in any particular instance, by the
Company's Board of Directors.
13. Binding Effect. This Agreement is binding upon and inures to the
benefit of the Company and the Participant and their respective heirs,
executors, administrators, legal representatives, successors and assigns,
subject to the restrictions on transfer set forth in Section 5 of this
Agreement.
14. Notice. All notices required or permitted hereunder shall be in writing
and deemed effectively given upon personal delivery or five days after deposit
in the United States Post Office, by registered or certified mail, postage
prepaid, addressed to the other party hereto at the address shown beneath his or
its respective signature to this Agreement, or at such other address or
addresses as either party shall designate to the other in accordance with this
Section 14.
15. Entire Agreement. This Agreement and the Plan constitute the entire
agreement between the parties, and supersede all prior agreements and
understandings, relating to the subject matter of this Agreement.
16. Amendment. This Agreement may be amended or modified only by a written
instrument executed by both the Company and the Participant.
17. Governing Law. This Agreement shall be construed, interpreted and
enforced in accordance with the internal laws of the State of Delaware without
regard to any applicable conflicts of laws.
18. Participant's Acknowledgments. The Participant acknowledges that he (a)
has read this Agreement; (b) has been represented in the preparation,
negotiation, and execution of this Agreement by legal counsel of the
Participant's own choice or has voluntarily declined to seek such counsel; (c)
understands the terms and consequences of this Agreement; (d) is fully aware of
the legal and binding effect of this Agreement; and (e) understands that the law
firm of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP is acting as counsel to the
Company in connection with the transactions contemplated by the Agreement, and
is not acting as counsel for the Participant.
[SIGNATURE PAGE FOLLOWS ON NEXT PAGE]
-6-
The parties hereto have executed this Agreement as of the date first above
written.
COMPANY: RSA SECURITY INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: 000 Xxxxxxxxx Xxxxxxxx
Xxxxxxx, XX 00000
PARTICIPANT:
----------------------------------------
Name:
----------------------------------
Address:
-------------------------------
-7-
EXHIBIT A
(STOCK ASSIGNMENT SEPARATE FROM CERTIFICATE)
FOR VALUE RECEIVED, I hereby sell, assign and transfer unto __________________
(_________) shares of Common Stock, $0.01 par value per share, of RSA Security
Inc. (the "Corporation") standing in my name on the books of the Corporation,
and do hereby irrevocably constitute and appoint ______________________ attorney
to transfer the said stock on the books of the Corporation with full power of
substitution in the premises.
Dated:
--------------------
IN PRESENCE OF
------------------------------
-------------------------------------
NOTICE: The signature(s) to this assignment must correspond with the name as
written upon the face of the certificate, in every particular, without
alteration, enlargement, or any change whatever and must be guaranteed by a
commercial bank, trust company or member firm of the Boston, New York or Midwest
Stock Exchange.
-8-
