VOCUS, INC. 2005 STOCK AWARD PLAN RESTRICTED STOCK AGREEMENT
Exhibit 10.18
Unless otherwise defined herein, the terms defined in the 2005 Stock Award Plan shall have the
same defined meanings in this Restricted Stock Agreement (the “Agreement”).
I. NOTICE OF RESTRICTED STOCK GRANT
| Name: | (“Recipient”) | |||||
| Address: | ||||||
The undersigned Recipient has been granted shares of common stock of the Company (“Common
Stock”), subject to the terms and conditions of the Plan and this Restricted Stock Agreement, as
follows:
| Date of Grant: | ||||||
| Vesting Commencement Date: | ||||||
| Total Number of Shares Granted: | ||||||
| Type of Grant: | Restricted Stock Award | |||||
| Vesting Schedule: This Grant shall be vested according to the following vesting schedule: | ||||||
% of the shares subject to the Grant shall vest
[on each of the first, second, third and fourth
anniversaries] of the Vesting Commencement Date,
subject to Recipient’s Continuous Service on such
dates.
II. AGREEMENT
1. Award of Restricted Stock. The Plan Administrator of the Company hereby grants to
the Recipient named in the Notice of Restricted Stock Grant, the number of Shares set forth in the
Notice of Restricted Stock Grant (collectively the “Restricted Stock”), and subject to the terms
and conditions of the Plan, which is incorporated herein by reference. Subject to Section 10(e) of
the Plan, in the event of a conflict between the terms and conditions of the Plan and this
Agreement, the terms and conditions of the Plan shall prevail. As a condition to entering into
this Agreement, and as a condition to the issuance of any shares of Restricted Stock (or any other
securities of the Company), the Recipient agrees to be bound by all of the terms and conditions
herein and in the Plan.
2. Vesting of Restricted Stock.
(a) Except as otherwise provided in Sections 2 and 4 of this Agreement, the shares of
Restricted Stock shall become vested in accordance with the Vesting Schedule set out in the Notice
of Restricted Stock Grant and with the applicable provisions of the Plan and this Agreement,
provided that the Continuous Service of the Recipient continues through and on the applicable
Vesting Date.
There shall be no proportionate or partial vesting of shares of Restricted Stock in or during
the months, days or periods prior to each vesting date, and all vesting of shares of Restricted
Stock shall
occur only on the applicable vesting date. Upon the termination or cessation of Recipient’s
Continuous Service, for any reason whatsoever, any portion of the Restricted Stock which has not
vested, and which does not then become vested pursuant to this Section 2 shall automatically and
without notice terminate, be forfeited and be and become null and void.
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(b) Notwithstanding any other term or provision of this Agreement, in the event of any merger,
consolidation or other reorganization in which the Company does not survive, or in the event of any
Change in Control, as defined in Section 2(h) of the Plan, the Restricted Stock may be dealt with
in accordance with any of the following approaches, as determined by the agreement effectuating the
transaction or, if and to the extent not so determined, as determined by the Plan Administrator:
(a) the continuation of the grant of the Restricted Stock by the Company, if the Company is a
surviving corporation, subject to the terms and conditions set forth herein, (b) the assumption or
substitution for, as those terms are defined in Section 9(b)(iv) of the Plan, the Restricted Stock
by the surviving corporation or its parent or subsidiary, (c) full vesting of the Restricted Stock,
or (d) as otherwise determined by the Plan Administrator.
(c) Notwithstanding any other provision in this Agreement, if, within the 12 month period
following the effective date of a Change in Control, the Company terminates Recipient’s employment
without Cause (other than as a result of Recipient’s death or disability) or Recipient resigns for
Good Reason, as such terms are defined in the employment agreement between the Company and
Recipient or the Plan if no such employment agreement exists, then the Non-Vested Shares will
become fully vested upon such termination of employment.
If Recipient resigns for any reason in the seventh month following the month in which a Change in
Control occurs, then the Non-Vested Shares will become fully vested upon such termination of
employment (the accelerated vesting described in this Section 2(c) only applies if such resignation
occurs in the seventh month and no other month).
If the Company terminates Recipient’s employment without Cause (other than as a result of your
death or disability) or Recipient resigns for Good Reason, any Non-Vested Shares shall continue to
vest in accordance with the vesting schedule set forth herein for the period set forth in
Recipient’s employment agreement after the date of termination of your employment, as though you
were to continue to be employed by the Company during that period
(c) For purposes of this Agreement, the following terms shall have the meanings indicated:
(i) “Non-Vested Shares” means any portion of the Restricted Stock subject to this Agreement
that has not become vested pursuant to this Section 2.
(ii) “Vested Shares” means any portion of the Restricted Stock subject to this Agreement that
is and has become vested pursuant to this Section 2.
3. Delivery of Restricted Stock.
(a) One or more stock certificates evidencing the Restricted Stock shall be issued in the name
of the Recipient but shall be held and retained by the Company until the date (the “Applicable
Date”) on which the shares (or a portion thereof) subject to this Restricted Stock award become
Vested Shares. All such stock certificates shall bear the following legends, along with such other
legends that the Board or the Plan Administrator shall deem necessary and appropriate or which are
otherwise required or indicated pursuant to any applicable stockholders agreement:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO SUBSTANTIAL VESTING AND OTHER
RESTRICTIONS AS SET FORTH IN THE RESTRICTED STOCK AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL
HOLDER OF THE SHARES, A
COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. SUCH RESTRICTIONS ARE BINDING
ON TRANSFEREES OF THESE SHARES AND INCLUDE VESTING CONDITIONS WHICH MAY RESULT IN THE COMPLETE
FORFEITURE OF THE SHARES.
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(b) The Recipient shall deposit with the Company stock powers or other instruments of transfer
or assignment, duly endorsed in blank with signature(s) guaranteed, corresponding to each
certificate representing shares of Restricted Stock until such shares become Vested Shares. If the
Recipient shall fail to provide the Company with any such stock power or other instrument of
transfer or assignment, the Recipient hereby irrevocably appoints the Secretary of the Company as
his or her attorney-in-fact, with full power of appointment and substitution, to execute and
deliver any such power or other instrument which may be necessary to effectuate the transfer of the
Restricted Stock (or assignment of distributions thereon) on the books and records of the Company.
(c) On or after each Applicable Date, upon written request to the Company by the Recipient,
the Company shall promptly cause a new certificate or certificates to be issued for and with
respect to all shares that become Vested Shares on that Applicable Date. Such certificate(s) shall
be delivered to the Recipient within fifteen (15) business days of the date of receipt by the
Company of the Recipient’s written request. The new certificate or certificates shall continue to
bear those legends and endorsements that the Company shall deem necessary or appropriate (including
any relating to restrictions on transferability and/or obligations and restrictions under any
applicable securities laws).
4. Termination of Continuous Service. If the Recipient’s Continuous Service with the
Company is terminated, any Non-Vested Shares shall be forfeited immediately upon such termination
of Continuous Service and revert back to the Company without any payment to the Recipient. The
Plan Administrator shall have the power and authority to enforce on behalf of the Company any
rights of the Company under this Agreement in the event of the Recipient’s forfeiture of Non-Vested
Shares pursuant to this Section 4.
5. Rights with Respect to Restricted Stock.
(a) Except as otherwise provided in this Agreement, the Recipient shall have, with respect to
all of the shares of Restricted Stock, whether Vested Shares or Non-Vested Shares, all of the
rights of a holder of shares of Common Stock, including without limitation (i) the right to vote
such Restricted Stock, (ii) the right to receive dividends, if any, as may be declared on the
Restricted Stock from time to time, and (iii) the rights available to all holders of shares of
Common Stock upon any merger, consolidation, reorganization, liquidation or dissolution, stock
split-up, stock dividend or recapitalization undertaken by the Company; provided, however, that all
of such rights shall be subject to the terms, provisions, conditions and restrictions set forth in
this Agreement (including without limitation conditions under which all such rights shall be
forfeited). Any Shares issued to the Recipient as a dividend with respect to shares of Restricted
Stock shall have the same status and bear the same legend as the shares of Restricted Stock and
shall be held by the Company, if the shares of Restricted Stock that such dividend is attributed to
is being so held, unless otherwise determined by the Plan Administrator. In addition,
notwithstanding any provision to the contrary herein, any cash dividends declared with respect to
shares of Restricted Stock subject to this Agreement shall be automatically reinvested in
additional shares of Restricted Stock or applied to the purchase of additional Awards under the
Plan. In the event that the shares of Restricted Stock are subsequently forfeited, any dividends
of cash (including reinvested cash dividends), Shares distributed in connection with a stock split
or stock dividend, and other property distributed as a dividend shall be forfeited as well.
(b) If at any time while this Agreement is in effect (or shares granted hereunder shall be or
remain unvested while Recipient’s Continuous Service continues and has not yet terminated or ceased
for any reason), there shall be any increase or decrease in the number of issued and outstanding
Shares of the Company through the declaration of a stock dividend or through any recapitalization
resulting in a stock split, combination or exchange of such shares, then and in that event, the
Board or the Plan Administrator
shall make any adjustments it deems fair and appropriate, in view of such change, in the
number of shares of Restricted Stock then subject to this Agreement. If any such adjustment shall
result in a fractional share, such fraction shall be disregarded.
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6. Transferability. The shares of Restricted Stock are not transferable until and
unless they become Vested Shares. The terms of this Agreement shall be binding upon the executors,
administrators, heirs, successors and assigns of the Recipient. Any attempt to effect a Transfer
of any shares of Restricted Stock prior to the date on which the shares become Vested Shares shall
be void ab initio. For purposes of this Agreement, “Transfer” shall mean any sale, transfer,
encumbrance, margin transaction, gift, donation, assignment, pledge, hypothecation, or other
disposition, whether similar or dissimilar to those previously enumerated, whether voluntary or
involuntary, and including, but not limited to, any disposition by operation of law, by court
order, by judicial process, or by foreclosure, levy or attachment.
7. Tax Matters; Section 83(b) Election.
(a) If the Recipient properly elects, within thirty (30) days of the Date of Grant, to include
in gross income for federal income tax purposes an amount equal to the fair market value (as of the
Date of Grant) of the Restricted Stock pursuant to Section 83(b) of the Internal Revenue Code of
1986, as amended (the “Code”), the Recipient shall make arrangements satisfactory to the Company to
pay to the Company any federal, state or local income taxes required to be withheld with respect to
the Restricted Stock. If the Recipient shall fail to make such tax payments as are required, the
Company shall, to the extent permitted by law, have the right to deduct from any payment of any
kind otherwise due to the Recipient any federal, state or local taxes of any kind required by law
to be withheld with respect to the Restricted Stock.
(b) If the Recipient does not properly make the election described in Subsection 7(a) above,
the Recipient shall, no later than the date or dates as of which the restrictions referred to in
this Agreement hereof shall lapse, pay to the Company, or make arrangements satisfactory to the
Plan Administrator for payment of, any federal, state or local taxes of any kind required by law to
be withheld with respect to the Restricted Stock (including without limitation the vesting
thereof), and the Company shall, to the extent permitted by law, have the right to deduct from any
payment of any kind otherwise due to Recipient any federal, state, or local taxes of any kind
required by law to be withheld with respect to the Restricted Stock.
(c) Tax consequences on the Recipient (including without limitation federal, state, local and
foreign income tax consequences) with respect to the Restricted Stock (including without limitation
the grant, vesting and/or forfeiture thereof) are the sole responsibility of the Recipient. The
Recipient shall consult with his or her own personal accountant(s) and/or tax advisor(s) regarding
these matters, the making of a Section 83(b) election, and the Recipient’s filing, withholding and
payment (or tax liability) obligations.
8. Amendment or Modification. This Agreement may only be modified or amended in a
writing signed by the parties hereto. No promises, assurances, commitments, agreements,
undertakings or representations, whether oral, written, electronic or otherwise, and whether
express or implied, with respect to the subject matter hereof, have been made by either party which
are not set forth expressly in this Agreement.
9. Complete Agreement. This Agreement (together with those agreements and documents
expressly referred to herein, for the purposes referred to herein) embody the complete and entire
agreement and understanding between the parties with respect to the subject matter hereof, and
supersede any and all prior promises, assurances, commitments, agreements, undertakings or
representations, whether oral, written, electronic or otherwise, and whether express or implied,
which may relate to the subject matter hereof in any way.
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10. Miscellaneous.
(a) Entire Agreement; Governing Law. The Plan is incorporated herein by reference.
The Plan and the Restricted Stock 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 Recipient with respect to the subject matter hereof, and may not be
modified adversely to the Recipient’s interest except by means of a writing signed by the Company
and Recipient. This agreement is governed by the internal substantive laws but not the choice of
law rules of the State of Delaware.
(b) No Guarantee of Continued Service. Recipient acknowledges and agrees that the
vesting of shares pursuant to the vesting schedule hereof is earned only by continuing as an
Employee, Consultant or Director (not through the act of being hired, being granted this Restricted
Stock or acquiring shares hereunder). Recipient further acknowledges and agrees that this
Agreement, 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, Consultant or
Director for the vesting period, for any period, or at all, and shall not interfere in any way with
Recipient’s right or the company’s right to terminate Recipient’s relationship as an Employee,
Consultant or Director, as applicable, at any time, with or without cause.
(c) No Trust or Fund Created. Neither this Agreement nor the grant of Restricted
Stock hereunder shall create or be construed to create a trust or separate fund of any kind or a
fiduciary relationship between the Company and the Recipient or any other person. To the extent
that the Recipient or any other person acquires a right to receive payments from the Company
pursuant to this Agreement, such right shall be no greater than the right of any unsecured general
creditor of the Company.
(d) Interpretation. Recipient acknowledges receipt of a copy of the Plan and
represents that he or she is familiar with the terms and provisions thereof, and hereby accepts
this Restricted Stock subject to all of the terms and provisions thereof. Recipient has reviewed
the Plan and this Restricted Stock in their entirety, has had an opportunity to obtain the advice
of counsel prior to executing this Restricted Stock and fully understands all provisions of the
Restricted Stock. Recipient hereby agrees to accept as binding, conclusive and final all decisions
or interpretations of the Plan Administrator upon any questions arising under the Plan or this
Restricted Stock. Recipient further agrees to notify the Company under any change in the residence
address indicated below.
(e) Notices. Any notice under this Agreement shall be in writing and shall be deemed
to have been duly given when delivered personally or when deposited in the United States mail,
registered, postage prepaid, and addressed, in the case of the Company, to the Company’s President
at its principal office and, in the case of the Recipient, to the Recipient’s last permanent
address as shown on the Company’s records, subject to the right of either party to designate some
other address at any time hereafter in a notice satisfying the requirements of this Section.
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Recipient
|
Vocus, Inc. | |||
Signature
|
Signature | |||
Printed Name
|
Xxxxxxx X. Xxxxx, CFO | |||
Residence Address |
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