RESTRICTED STOCK AGREEMENT CAMPUSU, INC.
CAMPUSU,
INC.
AGREEMENT
made as of the _______ day
of
___________________, 200__ (the “Grant Date”), between CampusU,
Inc.
(the
“Company”), a Delaware corporation, and ________________________
(the
“Participant”).
WHEREAS,
the Company has adopted the CampusU,
Inc. 2007 Equity Incentive Plan
(the
“Plan”) to promote the interests of the Company by providing an incentive for
employees, directors and consultants of the Company or its
Affiliates;
WHEREAS,
pursuant to the provisions of the Plan, the Company desires to offer to the
Participant shares of the Company’s common stock, $.0001 par value per share
(“Common Stock”), in accordance with the provisions of the Plan, all on the
terms and conditions hereinafter set forth;
WHEREAS,
Participant wishes to accept said offer; and
WHEREAS,
the parties hereto understand and agree that any terms used and not defined
herein have the meanings ascribed to such terms in the Plan.
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as
follows:
1. Terms
of Grant.
The
Participant hereby accepts the offer of the Company to issue to the Participant,
in accordance with the terms of the Plan and this Agreement, ______________________
(_________) Shares
of
the Company’s Common Stock (such shares, subject to adjustment pursuant to
Section 24 of the Plan and Subsection 2.1(h) hereof, the “Granted Shares”) at a
purchase price of $.[par
value] per
share
(the “Purchase Price”), receipt of which is hereby acknowledged by the
Participant’s prior service to the Company and which amount will be reported as
income on the Participant’s W-2 for this calendar year1 .
2.1. Forfeiture
Provisions.
(a) Lapsing
Forfeiture Right.
In the
event that for any reason the Participant is no longer an employee, director
or
consultant of the Company or an Affiliate prior to __________________ (the
“Termination”), the Participant (or the Participant’s Survivor) shall, on the
date of Termination, immediately forfeit to the Company (or its designee) all
of
the Granted Shares which have not yet lapsed in accordance with the schedule
set
forth below (the “Lapsing Forfeiture Right”).
The
Company’s Lapsing Forfeiture Right is as follows:
(i) If
the
Participant’s Termination is prior to [the
first anniversary of the Grant Date],
all of
the Granted Shares shall be forfeited to the Company.
1
Consider
statutory minimum purchase price per share, if applicable (e.g., Delaware
requires at least par value).
(ii) If
the
Participant’s Termination is on or after [the
first anniversary of the Grant Date]
but
prior to _______________, __% of the Granted Shares shall be forfeited to the
Company (rounded up to the next highest whole number of shares).
(b) Effect
of Termination for Disability or upon Death.
The
following rules apply if the Participant’s Termination is by reason of
Disability or death: to the extent the Company’s Lapsing Forfeiture Right has
not lapsed as of the date of Disability or death, as case may be, the
Participant shall forfeit to the Company any or all of the Granted Shares
subject to such Lapsing Forfeiture Right; provided, however, that the Company’s
Lapsing Forfeiture Right shall be deemed to have lapsed to the extent of a
pro
rata portion of the Granted Shares through the date of Disability or death,
as
would have lapsed had the Participant not become Disabled or died, as the case
may be. The proration shall be based upon the number of days accrued in such
current vesting period prior to the Participant’s date of Disability or death,
as the case may be.
(c) Effect
of a For Cause Termination. Notwithstanding
anything to the contrary contained in this Agreement, in the event the Company
or an Affiliate terminates the Participant’s employment or service for
“cause” (as
defined in the Plan) or in the event the Administrator determines, within one
year after the Participant’s termination, that either prior or subsequent to the
Participant’s termination the Participant engaged in conduct that would
constitute “cause,” all of the Granted Shares then held by the Participant shall
be forfeited to the Company immediately as of the time the Participant is
notified that he or she has been terminated for “cause” or that he or she
engaged in conduct which would constitute “cause”.
[(d) Effect
of Change of Control.
Except as otherwise provided in Subsection 2.1(c) above, the Company’s Lapsing
Forfeiture Right shall terminate, and the Participant’s ownership of all Granted
Shares then owned by the Participant shall become vested in accordance with
the
terms and conditions set forth in Section 24B of the
Plan.]
(e) Escrow.
The
certificates representing all Granted Shares acquired by the Participant
hereunder which from time to time are subject to the Lapsing Forfeiture Right
shall be delivered to the Company and the Company shall hold such Granted Shares
in escrow as provided in this Subsection 2.1(e). The Company shall promptly
release from escrow and deliver to the Participant a certificate for the whole
number of Granted Shares, if any, as to which the Company’s Lapsing Forfeiture
Right has lapsed. In the event of forfeiture to the Company of Granted Shares
subject to the Lapsing Forfeiture Right, the Company shall release from escrow
and cancel a certificate for the number of Granted Shares so forfeited. Any
securities distributed in respect of the Granted Shares held in escrow,
including, without limitation, shares issued as a result of stock splits, stock
dividends or other recapitalizations, shall also be held in escrow in the same
manner as the Granted Shares.
(f) Prohibition
on Transfer.
The
Participant recognizes and agrees that all Granted Shares which are subject
to
the Lapsing Forfeiture Right may not be sold, transferred, assigned,
hypothecated, pledged, encumbered or otherwise disposed of, whether voluntarily
or by operation of law, other than to the Company (or its designee).
However,
the Participant, with the approval of the Administrator, may transfer the
Granted Shares for no consideration to or for the benefit of the Participant’s
Immediate Family (including, without limitation, to a trust for the benefit
of
the Participant’s Immediate Family or to a partnership or limited liability
company for one or more members of the Participant’s Immediate Family), subject
to such limits as the Administrator may establish, and the transferee shall
remain subject to all the terms and conditions applicable to this Agreement
prior to such transfer and each such transferee shall so acknowledge in writing
as a condition precedent to the effectiveness of such transfer. The term
“Immediate Family” shall mean the Participant’s spouse, former spouse, parents,
children, stepchildren, adoptive relationships, sisters, brothers, nieces and
nephews and grandchildren (and, for this purpose, shall also include the
Participant. The
Company shall not be required to transfer any Granted Shares on its books which
shall have been sold, assigned or otherwise transferred in violation of this
Subsection 2.1(f), or to treat as the owner of such Granted Shares, or to accord
the right to vote as such owner or to pay dividends to, any person or
organization to which any such Granted Shares shall have been so sold, assigned
or otherwise transferred, in violation of this Subsection 2.1(f).
2
(g) Failure
to Deliver Granted Shares to be Forfeited.
In the
event that the Granted Shares to be forfeited to the Company under this
Agreement are not in the Company’s possession pursuant to Subsection 2.1(e)
above or otherwise and the Participant or the Participant’s Survivor fails to
deliver such Granted Shares to the Company (or its designee), the Company may
immediately take such action as is appropriate to transfer record title of
such
Granted Shares from the Participant to the Company (or its designee) and treat
the Participant and such Granted Shares in all respects as if delivery of such
Granted Shares had been made as required by this Agreement. The Participant
hereby irrevocably grants the Company a power of attorney which shall be coupled
with an interest for the purpose of effectuating the preceding
sentence.
(h) Adjustments.
The
Plan contains provisions covering the treatment of Shares in a number of
contingencies such as stock splits and mergers. Provisions in the Plan for
adjustment with respect to the Granted Shares and the related provisions with
respect to successors to the business of the Company are hereby made applicable
hereunder and are incorporated herein by reference.
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2.2
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General
Restrictions on Transfer of Granted Shares.
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(a) The
Participant agrees that in the event the Company proposes to offer for sale
to
the public any of its equity securities and such Participant is requested by
the
Company and any underwriter engaged by the Company in connection with such
offering to sign an agreement restricting the sale or other transfer of Shares,
then it will promptly sign such agreement and will not transfer, whether in
privately negotiated transactions or to the public in open market transactions
or otherwise, any Shares or other securities of the Company held by him or
her
during such period as is determined by the Company and the underwriters, not
to
exceed 90 days following the closing of the offering, plus such additional
period of time as may be required to comply with Marketplace Rule 2711 of the
National Association of Securities Dealers, Inc. or similar rules thereto (such
period, the “Lock-Up Period”). Such agreement shall be in writing and in form
and substance reasonably satisfactory to the Company and such underwriter and
pursuant to customary and prevailing terms and conditions. Notwithstanding
whether the Participant has signed such an agreement, the Company may impose
stop-transfer instructions with respect to the Shares or other securities of
the
Company subject to the foregoing restrictions until the end of the Lock-Up
Period.
(b) The
Participant acknowledges and agrees that neither the Company nor, its
shareholders nor its directors and officers, has any duty or obligation to
disclose to the Participant any material information regarding the business
of
the Company or affecting the value of the Shares before, at the time of, or
following a Termination, including, without limitation, any information
concerning plans for the Company to make a public offering of its securities
or
to be acquired by or merged with or into another firm or entity.
3. Securities
Law Compliance.
The
Participant specifically acknowledges and agrees that any sales of Granted
Shares shall be made in accordance with the requirements of the Securities
Act
of 1933, as amended.
3
4. Rights
as a Stockholder.
The
Participant shall have all the rights of a stockholder with respect to the
Granted Shares, including voting and dividend rights, subject to the transfer
and other restrictions set forth herein and in the Plan.
5. Legend.
In
addition to any legend required pursuant to the Plan, all certificates
representing the Granted Shares to be issued to the Participant pursuant to
this
Agreement shall have endorsed thereon a legend substantially as
follows:
“The
shares represented by this certificate are subject to restrictions set forth
in
a Restricted Stock Agreement dated as of ____________________ with this Company,
a copy of which Agreement is available for inspection at the offices of the
Company or will be made available upon request.”
6. Incorporation
of the Plan.
The
Participant specifically understands and agrees that the Granted Shares issued
under the Plan are being sold to the Participant pursuant to the Plan, a copy
of
which Plan the Participant acknowledges he or she has read and understands
and
by which Plan he or she agrees to be bound. The provisions of the Plan are
incorporated herein by reference.
7. Tax
Liability of the Participant and Payment of Taxes.
The
Participant acknowledges and agrees that any income or other taxes due from
the
Participant with respect to the Granted Shares issued pursuant to this
Agreement, including, without limitation, the Lapsing Forfeiture Right, shall
be
the Participant’s responsibility. Without limiting the foregoing, the
Participant agrees that, to the extent that the lapsing of restrictions on
disposition of any of the Granted Shares or the declaration of dividends on
any
such shares before the lapse of such restrictions on disposition results in
the
Participant’s being deemed to be in receipt of earned income under the
provisions of the Code, the Company shall be entitled to immediate payment
from
the Participant of the amount of any tax required to be withheld by the
Company.
Upon
execution of this Agreement, the Participant may file an election under Section
83 of the Code in substantially the form attached as Exhibit
B.
The
Participant acknowledges that if he does not file such an election, as the
Granted Shares are released from the Lapsing Forfeiture Right in accordance
with
Section 2.1, the Participant will have income for tax purposes equal to the
fair
market value of the Granted Shares at such date, less the price paid for the
Granted Shares by the Participant. The Participant has been given the
opportunity to obtain the advice of his or her tax advisors with respect to
the
tax consequences of the purchase of the Granted Shares and the provisions of
this Agreement.2
[If
the
Participant has not filed an election under Section 83 of the Code, the
Participant shall be required to deposit with the Company an amount of cash
equal to the amount determined by the Company to be required with respect
to the
statutory minimum of the Participant’s estimated total federal, state and local
tax obligations associated with the termination of the Lapsing Forfeiture
Right
with respect to the Granted Shares. In connection with the foregoing, the
Participant agrees that the Company shall authorize a registered broker(s)
(the
“Broker”) to sell on the date that the Granted Shares shall be released from the
Lapsing Forfeiture Right such number of Granted Shares as the Company instructs
the Broker to sell to satisfy the Company’s withholding obligations, after
deduction of the Broker’s commission, and the Broker shall remit to the Company
the cash necessary in order for the Company to satisfy its withholding
obligation. The Company shall not deliver any of the Granted Shares until
the
deposit required herein for withholding has been made. In connection with
such
sale of Granted Shares, the Participant shall execute any such documents
requested by Broker in order to effectuate the sale of the Granted Shares
and
payment of the withholding obligation to the Company.]
2
If
the
Shares are purchased at fair market value then the 83(b) election would be
protective in nature and would not result in any additional tax on purchase
of
the Shares. If the Shares are being purchased at a discount from fair market
value, the 83(b) election accelerates the timing of the taxation to the time
of
the grant, and later dispositions are taxed at capital gain rates. If the 83(b)
election is not made then the tax is paid at the time the restrictions lapse
(which could result in a higher possible taxable spread at that time). An 83(b)
election must be made within 30 days of the grant.
If
the
Company pays cash dividends and an 83(b) election is filed, dividends receive
dividend tax treatment. However, if no 83(b) election is made (as is the case
with most public companies) the Employee will pay ordinary income tax rates
on
the cash dividend payments until the restrictions on the shares underlying
those
dividends lapse.
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8. Equitable
Relief.
The
Participant specifically acknowledges and agrees that in the event of a breach
or threatened breach of the provisions of this Agreement or the Plan, including
the attempted transfer of the Granted Shares by the Participant in violation
of
this Agreement, monetary damages may not be adequate to compensate the Company,
and, therefore, in the event of such a breach or threatened breach, in addition
to any right to damages, the Company shall be entitled to equitable relief
in
any court having competent jurisdiction. Nothing herein shall be construed
as
prohibiting the Company from pursuing any other remedies available to it for
any
such breach or threatened breach.
9. No
Obligation to Maintain Relationship.
The
Company is not by the Plan or this Agreement obligated to continue the
Participant as an employee, director or consultant of the Company or an
Affiliate. The Participant acknowledges: (i) that the Plan is discretionary
in
nature and may be suspended or terminated by the Company at any time; (ii)
that
the grant of the Shares is a one-time benefit which does not create any
contractual or other right to receive future grants of shares, or benefits
in
lieu of shares; (iii) that all determinations with respect to any such future
grants, including, but not limited to, the times when shares shall be granted,
the number of shares to be granted, the purchase price, and the time or times
when each share shall be free from a lapsing repurchase or forfeiture right,
will be at the sole discretion of the Company; (iv) that the Participant’s
participation in the Plan is voluntary; (v) that the value of the Shares is
an
extraordinary item of compensation which is outside the scope of the
Participant’s employment contract, if any; and (vi) that the Shares are not part
of normal or expected compensation for purposes of calculating any severance,
resignation, redundancy, end of service payments, bonuses, long-service awards,
pension or retirement benefits or similar payments.
10. Notices.
Any
notices required or permitted by the terms of this Agreement or the Plan shall
be given by recognized courier service, facsimile, registered or certified
mail,
return receipt requested, addressed as follows:
If
to the
Company:
CampusU,
Inc.
000
Xxxxxxx Xxxx XX
Xxxxxxxx,
XX 00000
If
to the
Participant:
EMPLOYEE
NAME AND ADDRESS
or
to
such other address or addresses of which notice in the same manner has
previously been given. Any such notice shall be deemed to have been given on
the
earliest of receipt, one business day following delivery by the sender to a
recognized courier service, or three business days following mailing by
registered or certified mail.
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11. Benefit
of Agreement.
Subject
to the provisions of the Plan and the other provisions hereof, this Agreement
shall be for the benefit of and shall be binding upon the heirs, executors,
administrators, successors and assigns of the parties hereto.
12. Governing
Law.
This
Agreement shall be construed and enforced in accordance with the laws of the
State of Delaware, without giving effect to the conflict of law principles
thereof. For the purpose of litigating any dispute that arises under this
Agreement, whether at law or in equity, the parties hereby consent to exclusive
jurisdiction in Virginia and
agree
that such litigation shall be conducted in the state or federal courts of
Virginia.
13. Severability.
If any
provision of this Agreement is held to be invalid or unenforceable by a court
of
competent jurisdiction, then such provision or provisions shall be modified
to
the extent necessary to make such provision valid and enforceable, and to the
extent that this is impossible, then such provision shall be deemed to be
excised from this Agreement, and the validity, legality and enforceability
of
the rest of this Agreement shall not be affected thereby.
14. Entire
Agreement.
This
Agreement, together with the Plan, constitutes the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior oral or written agreements and understandings
relating to the subject matter hereof. No statement, representation, warranty,
covenant or agreement not expressly set forth in this Agreement shall affect
or
be used to interpret, change or restrict the express terms and provisions of
this Agreement provided, however, in any event, this Agreement shall be subject
to and governed by the Plan.
15. Modifications
and Amendments; Waivers and Consents.
The
terms and provisions of this Agreement may be modified or amended as provided
in
the Plan. Except as provided in the Plan, the terms and provisions of this
Agreement may be waived, or consent for the departure therefrom granted, only
by
written document executed by the party entitled to the benefits of such terms
or
provisions. No such waiver or consent shall be deemed to be or shall constitute
a waiver or consent with respect to any other terms or provisions of this
Agreement, whether or not similar. Each such waiver or consent shall be
effective only in the specific instance and for the purpose for which it was
given, and shall not constitute a continuing waiver or consent.
16. Consent
of Spouse/Domestic Partner.
If the
Participant has a spouse or domestic partner as of the date of this Agreement,
the Participant’s spouse or domestic partner shall execute a Consent of
Spouse/Domestic Partner in the form of Exhibit
A
hereto,
effective as of the date hereof. Such consent shall not be deemed to confer
or
convey to the spouse or domestic partner any rights in the Granted Shares that
do not otherwise exist by operation of law or the agreement of the parties.
If
the Participant subsequent to the date hereof, marries, remarries or applies
to
the Company for domestic partner benefits, the Participant shall, not later
than
60 days thereafter, obtain his or her new spouse/domestic partner’s
acknowledgement of and consent to the existence and binding effect of all
restrictions contained in this Agreement by having such spouse/domestic partner
execute and deliver a Consent of Spouse/Domestic Partner in the form of Exhibit
A.
17. Counterparts.
This
Agreement may be executed in one or more counterparts, and by different parties
hereto on separate counterparts, each of which shall be deemed an original,
but
all of which together shall constitute one and the same instrument.
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18. Data
Privacy.
By
entering into this Agreement, the Participant: (i) authorizes the Company and
each Affiliate, and any agent of the Company or any Affiliate administering the
Plan or providing Plan record keeping services, to disclose to the Company
or
any of its Affiliates such information and data as the Company or any such
Affiliate shall request in order to facilitate the grant of Shares and the
administration of the Plan; (ii) waives any data privacy rights he or she may
have with respect to such information; and (iii) authorizes the Company and
each
Affiliate to store and transmit such information in electronic
form.
[THE
NEXT
PAGE IS THE SIGNATURE PAGE]
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first above written.
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CAMPUSU,
INC.
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Name:
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Title:
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Participant:
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Print
Name:
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