PHASE FORWARD INCORPORATED 2004 STOCK OPTION AND INCENTIVE PLAN RESTRICTED STOCK AWARD AGREEMENT
Exhibit 10.1
PHASE
FORWARD INCORPORATED
2004 STOCK OPTION AND INCENTIVE PLAN
RESTRICTED STOCK
AWARD AGREEMENT
Name of Grantee: ____________________________
Number of Shares of Restricted Stock: ____________
Grant Date: __________________
Phase Forward Incorporated (the “Company”) has selected you to receive an award of shares of Restricted Stock identified above, subject to the terms set forth on Appendix A hereto and the provisions of the Phase Forward Incorporated 2004 Stock Option and Incentive Plan (the “Plan”) and the attached Statement of Terms and Conditions.
Please indicate your acceptance of this Agreement by signing below and returning it promptly to the Company, to the attention of Xxxxxx Xxxxxxx.
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PHASE FORWARD INCORPORATED |
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By: |
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Title: |
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I hereby accept the award of shares of Restricted Stock and agree to the terms and conditions thereof as set forth in the Plan and the attached Statement of Terms and Conditions. [*I hereby further waive any rights that I may have under my Executive Agreement with the Company dated _______________ with respect to any accelerated vesting of any shares of Restricted Stock granted herein in the event of any Change in Control of the Company.]
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Dated: |
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Xxxxxxx’s Signature |
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Grantee’s Name and Address |
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*For executives only.
Appendix A
1. Vesting Schedule
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2. Acceleration Events
(a) In the event of a Change in Control, the shares of Restricted Stock shall vest as follows:
· On the effective date of the Change in Control, the number of shares that vest shall be determined by multiplying the number of shares of Restricted Stock subject to the Award by the product of ______% and the number of full months that have elapsed since the Grant Date [*plus _______] reduced by the shares that have previously vested pursuant to the vesting schedule set forth above.
· The remaining shares of Restricted Stock shall vest on each subsequent anniversary of the Grant Date through the fourth anniversary, measured pro rata monthly from the effective date of Change in Control over the number of months (rounded up) remaining between the date of Change in Control and the fourth anniversary of the Grant Date.
[*Notwithstanding the foregoing, all remaining shares of Restricted Stock shall vest in the event that within the 12-month period following a Change in Control, the Grantee is terminated by the Company for any reason other than Cause, death, or Disability or the Grantee notifies the Company in writing of his resignation within sixty (60) days after any event constituting Good Reason and describes with reasonable specificity such event.]
*(b) In the event the Grantee dies while employed or ceases to be employed by the Company on account of Disability, the shares of Restricted Stock shall vest as follows:
· On the date the Grantee ceases to be employed by the Company, the number of shares that vest shall be determined by multiplying the number of shares of
*If applicable.
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Restricted Stock subject to the Award by the product of ______% and the number of full months that have elapsed since the Grant Date plus 12.
*(c) In the event the Grantee’s employment is terminated by the Company for any reason other than Cause, death or Disability or the Grantee terminates his/her employment for Good Reason, in either case either before a Change in Control or after the 12-month period following a Change in Control, shares of Restricted Stock shall vest as follows:
· On the date the Grantee ceases to be employed by the Company, the number of shares that vest shall be determined by multiplying the number of shares of Restricted Stock subject to the Award by the product of ______% and the number of full months that have elapsed since the Grant Date.
*If applicable.
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STATEMENT OF TERMS AND CONDITIONS
1. Preamble. This Statement contains the terms and conditions of an award (“Award”) of shares of common stock of the Company (“Stock”) subject to a risk of forfeiture (“Restricted Stock”) made to the Grantee identified in the Restricted Stock Award Agreement attached hereto pursuant to the Plan. Any consideration due to the Company upon the issuance of the Restricted Stock has been deemed to be satisfied by past services rendered by the Grantee to the Company.
2. Acceptance of Award. The Grantee shall have no rights with respect to this Award unless he/she shall have accepted this Award by signing and delivering to the Company a copy of the Restricted Stock Award Agreement within 30 days of the Grant Date indicated on such agreement. Upon timely acceptance of this Award by the Grantee, the shares of Restricted Stock so accepted shall be issued and held by the Company’s transfer agent in book entry form, and the Grantee’s name shall be entered as the stockholder of record on the books of the Company. Thereupon, the Grantee shall have all the rights of a shareholder with respect to such shares, including voting and dividend rights, subject, however, to the restrictions and conditions specified in Paragraph 3 below.
3. Restrictions and Conditions.
(a) Any book entries for the shares of Restricted Stock granted herein shall bear an appropriate legend, as determined by the Company in its sole discretion, to the effect that such shares are subject to restrictions as set forth herein and in the Plan.
(b) Shares of Restricted Stock granted herein may not be sold, assigned, transferred, pledged or otherwise encumbered or disposed of by the Grantee prior to vesting.
(c) If the Grantee’s employment with the Company and its Subsidiaries is voluntarily or involuntarily terminated for any reason (including death) prior to vesting of shares of Restricted Stock granted herein, all such shares of Restricted Stock shall immediately and automatically be forfeited and returned to the Company.
4. Vesting of Restricted Stock.
The term “vest” as used in this Statement means the lapsing of the restrictions that are described in this Statement with respect to the Restricted Stock. The Restricted Stock shall vest in accordance with the schedule set forth in Section 1 of Appendix A to the Restricted Stock Award Agreement so long as the Grantee remains an employee of the Company or a Subsidiary on each vesting date.
Notwithstanding the foregoing, the Grantee shall become vested in the Restricted Stock prior to the vesting dates set forth in Section 1 of Appendix A to the Restricted Stock Award Agreement in certain circumstances as described in Section 2 of Appendix A.
5. Dividends. Dividends, if any, payable on shares of Restricted Stock shall be paid currently to the Grantee.
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6. Definitions.* As used in this Agreement, the following terms shall have the meanings set forth herein:
(a) “Board” shall mean Board of Directors of the Company.
(b) “Cause” shall mean any one or more of the following: (i) Grantee’s willful failure or refusal (except due to Disability or a condition reasonably likely to be deemed a Disability with the passage of time) to perform substantially his/her duties on behalf of the Company for a period of thirty (30) days after receiving written notice identifying in reasonable detail the nature of such failure or refusal; (ii) Xxxxxxx’s conviction of, entry of a plea of guilty or nolo contendere to, or admission of guilt in connection with a felony; (iii) disloyalty, willful misconduct or breach of fiduciary duty by Grantee which causes material harm to the Company; or (iv) Grantee’s willful violation of any confidentiality, developments or non-competition agreement which causes material harm to the Company. Notwithstanding the foregoing, Grantee shall not be deemed to have been terminated for Cause unless and until there shall have been delivered to him a copy of a resolution duly adopted by the Board (excluding Grantee if he/she is a Director) at a meeting of the Board called and held for (but not necessarily exclusively for) that purpose (after reasonable notice to Grantee and an opportunity for Grantee, together with counsel of his/her choice, to be heard by the Board) finding that Grantee has, in the good faith opinion of the Board, engaged in conduct constituting Cause and specifying the particulars thereof in reasonable detail.
(c) “Change in Control” shall mean the occurrence of any of the following events:
(i) The Company is merged or consolidated or reorganized into or with another corporation or other legal person, and as a result of such merger, consolidation or reorganization less than fifty percent (50%) of the combined voting power of the then-outstanding securities of such surviving, resulting or reorganized corporation or person immediately after such transaction is held in the aggregate by the holders of the then-outstanding securities entitled to vote generally in the election of directors of the Company (“Voting Stock”) immediately prior to such transaction;
(ii) The Company sells or otherwise transfers all or substantially all of its assets to any other corporation or other legal person, and as a result of such sale or transfer less than fifty percent (50%) of the combined voting power of the then-outstanding securities of such corporation or person immediately after such sale or transfer is held in the aggregate by the holders of Voting Stock of the Company immediately prior to such sale or transfer;
(iii) Any corporation or other legal person, pursuant to a tender offer, exchange offer, purchase of stock (whether in a market transaction or otherwise) or other transaction or event acquires securities representing 30% or more of the Voting Stock of the Company, or there is a report filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each as promulgated pursuant to the U.S. Securities
*Delete any definitions that do not apply.
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Exchange Act of 1934, as amended (the “Exchange Act”), disclosing that any “person” (as such term is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the “beneficial owner” (as such term is used in Rule 13d-3 under the Exchange Act) of securities representing 30% or more of the Voting Stock of the Company;
(iv) The Company files a report or proxy statement with the Securities and Exchange Commission pursuant to the Exchange Act disclosing under or in response to Form 8-K or Schedule 14A (or any successor schedule, form or report or item therein) that a change in control of the Company has occurred; or
(v) If during any period of two consecutive years, individuals who at the beginning of any such period constitute the Board cease for any reason to constitute at least a majority thereof, unless the election, or the nomination for election by the Company’s stockholders, of each director of the Company first elected during such period was approved by a vote of at least a majority of the directors then still in office who were directors of the Company at the beginning of any such period;
provided, however, that a “Change in Control” shall not be deemed to have occurred for purposes of this Agreement solely because (1) the Company, (2) an entity in which the Company directly or indirectly beneficially owns 50% or more of the Voting Stock, or (3) any Company-sponsored employee stock ownership plan or any other employee benefit plan of the Company, either files or becomes obligated to file a report or a proxy statement under or in response to Schedule 13D, Schedule 14D-1, Form 8-K or Schedule 14A (or any successor schedule, form or report) under the Exchange Act, disclosing beneficial ownership by it of shares of Voting Stock or because the Company reports that a change in control of the Company has occurred by reason of such beneficial ownership.
Notwithstanding the foregoing, a Change in Control shall not be deemed to have occurred if (A) the Company is the surviving company in a transaction described in subparagraph 6(c)(i), (B) a majority of the Board of Directors of the surviving company is comprised of the members of the Board of the Company immediately prior to such transaction and remains so for at least twelve (12) months thereafter, and (C) the President and Chief Executive Officer of the surviving company immediately after the effective date of the transaction is the President and Chief Executive Officer of the Company immediately prior to such transaction and remains so for at least twelve (12) months thereafter or until his/her voluntary resignation, if earlier.
(d) “Disability” shall mean any physical or meant disability that renders Grantee unable to perform his/her essential job responsibilities for a cumulative period of 180 days in any twelve-month period, where such disability cannot be reasonably accommodated absent undue hardship.
(e) “Good Reason” after a Change in Control shall mean the occurrence of any of the following events, without Xxxxxxx’s prior written consent:
(i) The substantial reduction of (1) Grantee’s aggregate base salary, (2) Grantee’s Incentive Pay Eligibility, or (3) the benefits for which Grantee was eligible, in each case, in effect immediately prior to a Change in Control; unless, however, in the
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case of subclause (3) only, such reduction is due to an across-the-board reduction applicable to all senior executives of the Company and any Successor, and the benefits available to Grantee after such across-the-board reduction are no less favorable than those available to similarly-situated executives of the Company and such Successor;
(ii) The permanent relocation of Xxxxxxx’s primary workplace to a location more than thirty (30) miles away from Xxxxxxx’s workplace in effect immediately prior to a Change in Control; or
(iii) Failure of any successor to, or assignee of, the Company to assume the duties and obligations of the Company under this Agreement pursuant to Paragraph 13 hereof.
(f) “Good Reason” prior to a Change in Control shall mean the occurrence of any of the following events, without the Grantee’s prior written consent:
(i) The substantial reduction of (1) Grantee’s aggregate base salary, (2) Grantee’s Incentive Pay Eligibility, or (3) the benefits for which Grantee was eligible, in each case, in effect as of the Grant Date and as may be increased from time to time, unless, however, in the case of subclause (3) only, such reduction is due to an across-the-board reduction applicable to all senior executives of the Company, and the benefits available to Grantee after such across-the-board reduction are no less favorable than those available to similarly-situated executives of the Company; or
(ii) The permanent relocation of Xxxxxxx’s primary workplace to a location more than thirty (30) miles from Xxxxxxx’s workplace in effect on the Grant Date.
(g) “Incentive Pay Eligibility” shall mean the aggregate amount of any cash compensation derived from any bonus, incentive, performance, profit-sharing or similar agreement, policy, plan or arrangement of the Company that Grantee is eligible to receive based upon the attainment of 100% target or quota with respect to any one year; provided, however that Incentive Pay Eligibility shall exclude any commission or bonus calculated on the basis of sales or bookings that Executive is eligible to received under the Company’s 2004 Global Sales Incentive Compensation Plan or any successor plan thereto (“Sales Plan”), but will include any bonus calculated on the basis of (i) corporate objectives applicable to all executives of the Company (if specified in the Sales Plan) and (ii) any quarterly bonus calculated on the basis of quarterly quota achievement specified in the Sales Plan, assuming achievement of the greater of (x) 100% of the quarterly quota or (y) the actual percentage of the quarterly quota achieved prior to the Termination Date.
(h) “Successor” shall mean any successor to the Company (whether direct or indirect, by Change in Control, operation of law or otherwise), including but not limited to any successor (whether direct or indirect, by Change in Control, operation of law or otherwise) to, or ultimate parent entity of any successor to, the Company.
7. Incorporation of Plan. Notwithstanding anything herein to the contrary, this Award shall be subject to and governed by all the terms and conditions of the Plan. Capitalized
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terms in this Award shall have the meaning specified in the Plan, unless a different meaning is specified herein.
8. Non-Transferability. This Award is personal to the Grantee, is non-assignable and is not transferable in any manner, by operation of law or otherwise, other than by will or the laws of descent and distribution.
9. Tax Withholding. The Company intends to meet its minimum tax withholding obligation by withholding from shares of Stock to be issued to the Grantee.
10. Election Under Section 83(b). The Grantee and the Company hereby agree that the Grantee may, within 30 days following the acceptance of this Award as provided in Paragraph 2 hereof, file with the Internal Revenue Service and the Company an election under Section 83(b) of the Internal Revenue Code. In the event the Grantee makes such an election, he/she agrees to provide a copy of the election to the Company.
11. No Obligation to Continue Employment. Neither the Company nor any Subsidiary is obligated by or as a result of the Plan or this Award to continue the Grantee in employment and neither the Plan nor this Award shall interfere in any way with the right of the Company or any Subsidiary to terminate the employment of the Grantee at any time.
12. Notices. Notices hereunder shall be mailed or delivered to the Company at its principal place of business and shall be mailed or delivered to the Grantee at the address on file with the Company or, in either case, at such other address as one party may subsequently furnish to the other party in writing.
13. Successors and Assigns. The Company will require its respective assign and Successors to expressly assume this Award and to agree to perform hereunder in the same manner and the same extent that the Company would be required to perform if no such succession or assignment had taken place. Regardless of whether such an agreement is executed, this Award shall inure to the benefit of, and be binding upon, the Company’s Successor and assigns and Xxxxxxx’s heirs, estates, legatees, executors, administrators, and legal representatives.
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