Exhibit 10.1
SAPIENT CORPORATION
RESTRICTED STOCK UNITS
AGREEMENT
In recognition of the important contributions that ___________ (the
"Employee") makes to the success of Sapient Corporation (the "Company") and its
Affiliates (together with the Company, the "Company Group"), pursuant to the
Sapient Corporation 1998 Stock Incentive Plan (the "Plan"), the Company hereby
grants to the Employee the Restricted Stock Units Award described below.
1. The Restricted Stock Unit Award. The Company hereby grants to the
Employee ________________ (________) Units, subject to the terms and
conditions of this Agreement and the Plan. An Award shall be paid
hereunder, only to the extent that such Award is Vested, as provided
in this Agreement. The Employee's rights to the Units are subject to
the restrictions described in this Agreement and the Plan in addition
to such other restrictions, if any, as may be imposed by law.
2. Definitions. The following definitions will apply for purposes of this
Agreement. Capitalized terms not defined in this Agreement are used as
defined in the Plan.
a. "Agreement" means this Restricted Stock Units Agreement granted
by the Company and agreed to by the Employee.
b. "Award" means the grant of Units in accordance with this
Agreement.
c. "Common Stock" means common stock of the Company, .01 par value.
d. "Grant Date" means ______________, 200__.
e. "Fair Market Value" means the average trading price of the Common
Stock over the twenty trading days prior to the Valuation Date,
based on the closing price on each such day. For this purpose,
the "closing price" of the Common Stock on any trading day will
be the last sale price with respect to such Common Stock reported
on the NASDAQ, or, if on any such date such Common Stock is not
quoted by NASDAQ, the average of the closing bid and asked prices
with respect to such Common Stock, as furnished by a professional
market maker making a market in such Common Stock selected by the
Company in good faith; or, if no such market maker is available,
the fair market value of such Common Stock as of such day as
determined in good faith by the Company.
f. "NASDAQ" means the Nasdaq Stock Market.
g. "Payment Date" means, as to Vested Units, within 30 days of the
date on which the Units become Vested.
h. "Unit" means a notional unit which is equivalent to a single
share of Common Stock on the Grant Date, subject to Section 4.
i. "Valuation Date" means the date on which the Fair Market Value of
the Common Stock is to be determined.
j. "Vested" means that portion of the Award to which the Employee
has a nonforfeitable right.
k. "Vesting Dates" means the dates set forth in Section 3.
3. Vesting.
a. An Award shall become Vested only upon the Vesting Dates
described in this Section 3, except as otherwise provided herein
or determined by the Company in its sole discretion. No portion
of any Award shall become Vested on the Vesting Date unless the
Employee is then, and since the Grant Date has continuously been,
employed by a member of the Company Group.
b. An Award shall become Vested based on the following schedule.
Vesting Date Percentage Vested on Anniversary Date
[Vesting schedule to be determined at the time of the grant
and may include time-based vesting, performance-based vesting
or both.]
c. In the event that the Employee's employment terminates prior to a
Vesting Date for any reason, including without limitation (1)
death, (2) disability, or (3) termination by the Company or the
Company Group, or (4) other termination of employment, any
portion of the Award that has not then become Vested will be
forfeited automatically.
d. In the event of a merger or acquisition of the Company in which
the Company is not the surviving entity, or a sale of
substantially all of the Company's assets, the Company, may in
its sole discretion accelerate the Vesting of all or any portion
of any Award, unless the surviving entity agrees to assume or
provide substituted awards in respect of the portion of the
Awards that have not yet become Vested.
4. Adjustments Based on Certain Changes in the Common Stock. In the event
of any stock split, reverse stock split, stock dividend,
recapitalization or similar change affecting the Common Stock, the
Award shall be equitably adjusted.
5. No Voting Rights/Dividends. The Award shall not be interpreted to
bestow upon the Employee any equity interest or ownership in the
Company Group prior to the Payment Date. The Employee is not entitled
to vote any Common Stock by reason of the granting of this Award or to
receive or be credited with any dividends declared and payable on any
Common Stock underlying any Award prior to any Payment Date
6. Payment of Award. On the Payment Date, the Company shall issue to the
Employee that number of shares of Common Stock as equals that number
of Units which have become Vested.
7. Employment Rights. This Agreement shall not create any right of the
Employee to continued employment with the Company or the Company Group
or limit the right of the Company Group to terminate the Employee's
employment at any time and shall not create any right of the Employee
to employment with the Company Group. The Employee acknowledges and
represents to the Company that the Employee has not been induced to
receive any Award by expectation of employment or continued
employment. Except to the extent required by applicable law that
cannot be waived, the loss of the Award shall not constitute an
element of damages or indemnity in the event of termination of the
Employee's employment even if the termination is determined to be in
violation of an obligation of the Company Group to the Employee by
contract or otherwise.
8. Unfunded Status. The obligations of the Company Group hereunder shall
be contractual only. The Employee shall rely solely on the unsecured
promise of the Company and nothing herein shall be construed to give
the Employee or any other person or persons any right, title, interest
or claim in or to any specific asset, fund, reserve, account or
property of any kind whatsoever owned by the Company Group.
9. No Assignment. No right or benefit or payment under the Plan shall be
subject to assignment or other transfer nor shall it be liable or
subject in any manner to attachment, garnishment or execution.
10. Withholding. The Company's obligation to deliver to the Employee
shares of Common Stock under an Award shall be subject to the
satisfaction of all applicable federal, state and local income and
employment tax withholding requirements as determined by the Company
Group ("Withholding Taxes"). To satisfy any Withholding Taxes due upon
vesting of the Employee's Units, the Employee agrees to pay to the
Company, or make provision satisfactory to the Company for payment of,
any Withholding Taxes, no later than the Payment Date. The Company and
any Affiliate may, to the extent permitted by law, deduct any such tax
obligations from any payment of any kind due to the Employee. Such
withheld amounts shall include shares retained from the Award creating
the tax obligation, valued at their Fair Market Value on the date of
retention.
Further, as a condition of receiving any Vested Award, the Employee
hereby agrees to the terms of the Irrevocable Standing Order to Sell
Shares (the "Standing Order"), attached as Exhibit A. Pursuant to the
Standing Order, and in lieu of taking the actions described in the
immediately preceding paragraph of this Section 10, the Company, in
its sole discretion, may require, and, in such event the Employee
agrees, to the following:
a. The Employee authorizes the Company's agent to sell, at the
market price and on each Vesting Date (or the first NASDAQ
trading day thereafter if a Vesting Date is a day in which NASDAQ
is closed), the number of Vested shares that, per the Company's
instructions to its agent, is necessary to obtain proceeds
sufficient to satisfy the Withholding Taxes. The Employee
understands and agrees that the number of shares that such agent
will sell will be based on the closing price of the Common Stock
on the NASDAQ trading day immediately preceding the Vesting Date.
b. The Employee agrees that the proceeds received from the sale of
Vested shares pursuant to this Section 10 will be used to satisfy
the Withholding Taxes and, accordingly, the Employee hereby
authorizes the Company's agent to pay such proceeds to the
Company for such purpose. The Employee understands that to the
extent that the proceeds obtained by such sale exceed the amount
necessary to satisfy the Withholding Taxes, such excess proceeds
shall be deposited into the Employee's stock brokerage account
with E*TRADE Financial or such other third party brokerage under
which the Employee maintains a brokerage account (the "Account").
The Employee further understands that any remaining Vested shares
shall be deposited into the Account.
c. The Employee acknowledges and agrees that, in the event that a
market in the Common Stock does not exist, the Employee shall pay
to the Company amounts sufficient to pay the Withholding Taxes
and, to the extent that such payment is not made, the Company
shall have the right to make other arrangements to satisfy the
Withholding Taxes due upon the vesting of the Employee's Shares.
11. Amendment or Termination. This Agreement may be amended by mutual
written agreement of the parties.
12. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, Sapient Corporation has executed this Restricted Stock
Units Agreement as of the ____ day of __________, 200__.
Sapient Corporation
/s/ Xxxxx X. Xxxxxxxxx
------------------------------
By: Xxxxx X. Xxxxxxxxx
Title: Co-Chief Executive Officer
Exhibit A
IRREVOCABLE STANDING ORDER TO SELL SHARES
I have received from the Company on a voluntary basis the right to acquire
shares of Sapient common stock (the "Shares") pursuant to the attached
Restricted Stock Units Agreement between Sapient and me.
I understand that I must maintain a securities brokerage account with E*TRADE
Financial or such other third party brokerage (each of E*TRADE Financial or such
other third party brokerage is herein defined as the "Broker") to participate in
the stock unit plan described in detail in the restricted Stock Units Agreement,
and Sapient has informed me about this requirement as well as the requirements
for the opening of such a securities brokerage account so that the vested Shares
can be deposited into account. Furthermore, I understand that on each vesting
date, the vested Shares will be deposited into my stock brokerage account with
the broker and that I will incur taxable ordinary employment income ("Taxable
Income") upon my receipt of the vested Shares. Per the terms of the Agreement,
and if so directed by Sapient, I understand and agree to do the following as a
condition of my receipt of vested Shares:
Upon each vesting date, I must sell a number of Shares that is
sufficient to satisfy all withholding taxes, as determined by Sapient
or my Sapient-affiliated employer, which are applicable to my Taxable
Income (the "Withholding Taxes"). Accordingly, I HEREBY DIRECT THE
BROKER TO SELL, ON EACH VESTING DATE LISTED ABOVE (OR THE FIRST NASDAQ
TRADING DAY THEREAFTER IF A VESTING DATE IS A DAY ON WHICH NASDAQ IS
CLOSED), THAT NUMBER OF SHARES THAT, PER SAPIENT'S INSTRUCTIONS TO THE
AGENT, IS SUFFICIENT TO OBTAIN SALE PROCEEDS SUFFICIENT TO SATISFY THE
WITHHOLDING TAXES. THE PER SHARE SALES PRICE SHALL BE CALCULATED BASED
ON THE CLOSING PRICE OF A SHARE OF SAPIENT COMMON STOCK ON THE NASDAQ
TRADING DAY IMMEDIATELY PRECEDING THE APPLICABLE VESTING DATE.
I understand that the Broker will remit the proceeds of the foregoing sale
promptly to Sapient for payment by Sapient or my Sapient-affiliated employer of
the Withholding Taxes, and I authorize and direct the Broker to pay such
proceeds to Sapient for this purpose. I hereby agree to indemnify and hold the
Broker harmless from and against all losses, liabilities, damages, claims and
expenses, including reasonable attorneys' fees and court costs, arising out of
any (i) negligent act, omission or willful misconduct by Sapient in carrying out
actions pursuant to the preceding paragraph and (ii) any action taken or omitted
by the Broker in good faith reliance upon instructions herein or upon
instructions or information transmitted to the Broker by Sapient pursuant to the
preceding paragraph.
I acknowledge that I have not been induced to participate in any trade in return
for or as an expectation of employment or continued employment. I understand and
agree that by signing below, I am making an Irrevocable Standing Order to Sell
Shares that will remain in effect until such time as I have received all Shares
to which I am entitled under this Agreement. I also agree that this Irrevocable
Standing Order to Sell Shares is in addition and subject to the terms and
conditions of any existing Account Agreement that I have with the Broker.
