AQUANTIVE, INC.
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RESTRICTED STOCK AWARD AGREEMENT
TO: XXXXX X. XXXXXXXXX
We are pleased to inform you that you have been awarded a restricted
stock award (the "Restricted Stock Award") under the aQuantive, Inc., (the
"Company") Restated 1999 Stock Incentive Compensation Plan (the "Plan").
The terms of the Restricted Stock Award are as set forth in this
Restricted Stock Award Agreement (this "Agreement"). Except as expressly
provided otherwise in this Agreement, the Restricted Stock Award is limited by
and subject to the express terms and conditions of the Plan. Capitalized terms
that are not defined in this Agreement but defined in the Plan have the meanings
given to them in the Plan.
The basic terms of the Restricted Stock Award are summarized as
follows:
1. NUMBER OF SHARES: 114,659
2. GRANT DATE: JANUARY 2, 2006
3. FAIR MARKET VALUE PER SHARE: $25.24
4. VESTING
The Restricted Stock Award is subject to forfeiture upon varying
circumstances relating to your termination of employment with the Company. The
restrictions on the shares will lapse and no longer be subject to forfeiture
according to the following schedule:
PORTION OF
RESTRICTED STOCK
DATE ON WHICH PORTION OF RESTRICTED STOCK AWARD IS NO LONGER AWARD NO
SUBJECT TO FORFEITURE LONGER SUBJECT
TO FORFEITURE
First vesting installment on March 18, 2006 5%
Quarterly vesting installments of 1.25% in subsequent twelve months 5%
Quarterly vesting installments of 2.5% in subsequent twelve months 10%
Quarterly vesting installments of 3.75% in subsequent twelve month 15%
Quarterly vesting installments of 6.25% in subsequent twelve months 25%
Quarterly vesting installments of 10% in subsequent twelve months 40%
Fully vested as of March 18, 2011 100%
Shares that have vested and are no longer subject to forfeiture
according to the above schedule are referred to herein as "Vested Shares."
Shares that are not vested and remain subject to forfeiture under the preceding
schedule are referred to herein as "Unvested Shares." The Unvested Shares will
vest (and to the extent so vested cease to be Unvested Shares remaining subject
to forfeiture) in accordance with the above schedule. Collectively, the Unvested
Shares and the Vested Shares are referred to herein as the "Shares."
5. TERMINATION OF EMPLOYMENT; CHANGE OF CONTROL AND CERTAIN OTHER EVENTS
5.1 TERMINATION OF EMPLOYMENT
Except as provided in Section 5.2 below, the Unvested Shares shall be
forfeited by you to the Company upon the termination of your employment for any
reason, including without limitation, termination by the Company for Cause (as
defined in your Employment Agreement with the Company dated as of January 20,
2000, or any successor employment agreement in effect at the time your
employment terminates (the "Change of Control Agreement")), voluntary
resignation by you or the occurrence of your death or Disability (as defined in
the Change of Control Agreement).
5.2 CHANGE OF CONTROL AND CERTAIN OTHER EVENTS
(a) Upon a Change of Control, 50% of the then Unvested Shares
shall automatically become Vested Shares.
(b) If, prior to a Change of Control, the Company terminates
your employment without Cause or you voluntarily terminate your employment for
"good reason", the number of then Unvested Shares that would have become Vested
Shares during the one-year period following the termination date, if the
termination had not occurred and you had remained in the employment of the
Company for such period, shall automatically become Vested Shares.
(c) If a Successor Company terminates your employment without
Cause within one year after a Change of Control or if you voluntarily terminate
your employment for "good reason" at any time following a Change of Control, all
of the then Unvested Shares shall automatically become Vested Shares.
(d) In addition, Section 12.3.3 of the Plan, which provides
for acceleration of vesting of stock awards in specified circumstances in the
event of a Corporate Transaction (as defined in the Plan), shall apply to the
Shares.
(e) For purposes of this Section 5.2, "Change of Control",
"Cause", "good reason" and "Successor Company" have the meaning given those
terms in the Change of Control Agreement.
6. SECURITIES LAW COMPLIANCE
Notwithstanding any other provision of this Agreement, you may not sell
the Shares unless they are registered under the Securities Act or, if such
Shares are not then so registered, the Company has determined that such sale
would be exempt from the registration requirements of the Securities Act. The
sale of the Shares must also comply with other applicable laws and regulations
governing the Shares, and you may not sell the Shares if the Company determines
that such sale would not be in material compliance with such laws and
regulations.
7. TRANSFER RESTRICTIONS
Any sale, transfer, assignment, encumbrance, pledge, hypothecation,
conveyance in trust, gift, transfer by bequest, devise or descent, or other
transfer or disposition of any kind, whether voluntary or by operation of law,
directly or indirectly, of Unvested Shares shall be strictly prohibited and
void; however, such restrictions on transfer will not apply to a gratuitous
transfer of the Shares; provided, that you obtain the Company's prior written
consent to such transfer, which consent will not be unreasonably withheld.
8. SECTION 83(B) ELECTION FOR RESTRICTED STOCK AWARD
You understand that under Section 83(a) of the Code, the fair market
value of the Unvested Shares on the date the forfeiture restrictions lapse will
be taxed, on the date such forfeiture restrictions lapse, as ordinary income
subject to payroll and withholding tax and tax reporting, as applicable. For
this purpose, the term "forfeiture restrictions" means the right of the Company
to receive back any Unvested Shares upon termination of your employment with the
Company. You understand that you may elect under Section 83(b) of the Code to be
taxed at ordinary income rates on the fair market value of the Unvested Shares
at the time they are acquired, rather than when and as the Unvested Shares cease
to be subject to the forfeiture restrictions. Such election (an "83(b)
Election") must be filed with the Internal Revenue Service WITHIN 30 DAYS from
the Grant Date of the Restricted Stock Award. You understand that (a) you will
not be entitled to a deduction for any ordinary income previously recognized as
a result of the 83(b) Election if the Unvested Shares are subsequently forfeited
to the Company and (b) the 83(b) Election may cause you to recognize more
compensation income than you would have otherwise recognized if the value of the
Unvested Shares subsequently declines.
THE FORM FOR MAKING AN 83(B) ELECTION IS ATTACHED TO THIS AGREEMENT AS
EXHIBIT B. YOU UNDERSTAND THAT FAILURE TO FILE SUCH AN ELECTION WITHIN THE
30-DAY PERIOD MAY RESULT IN THE RECOGNITION OF ORDINARY INCOME BY YOU AS THE
FORFEITURE RESTRICTIONS LAPSE.
You further understand that an additional copy of such election form
should be filed with your federal income tax return for the calendar year in
which the date of this Agreement falls. You acknowledge that the foregoing is
only a summary of the federal income tax laws that apply to the award of the
Shares under this Agreement and does not purport to be complete.
YOU FURTHER ACKNOWLEDGE THAT THE COMPANY HAS DIRECTED YOU TO SEEK
INDEPENDENT ADVICE REGARDING THE APPLICABLE PROVISIONS OF THE CODE, THE INCOME
TAX LAWS OF ANY MUNICIPALITY, STATE OR FOREIGN COUNTRY IN WHICH YOU MAY RESIDE,
AND THE TAX CONSEQUENCES OF YOUR DEATH.
You agree to execute and deliver to the Company with this Agreement a
copy of the Acknowledgment and Statement of Decision Regarding Section 83(b)
Election (the "Acknowledgment") attached hereto as Exhibit A. You further agree
that you will execute and deliver to the Company with this Agreement a copy of
the 83(b) Election attached hereto as Exhibit B if you choose to make such an
election.
9. ASSIGNMENT SEPARATE FROM CERTIFICATE
As security for the faithful performance of this Agreement, you agree,
upon execution of this Agreement, to deliver a stock power in the form attached
as Exhibit C for each certificate you receive evidencing Shares issued to you
pursuant to this Agreement, executed by you (WITH THE TRANSFEREE, CERTIFICATE
NUMBER, DATE AND NUMBER OF SHARES LEFT BLANK), along with any such
certificate(s), to the Secretary of the Company or its designee ("Escrow
Holder"), who is hereby appointed to hold such stock power and any such
certificate(s) in escrow and to take all such actions and to effectuate all such
transfers and/or releases of such Shares as are in accordance with the terms of
this Agreement. You and the Company agree that Escrow Holder shall not be liable
to any party to this Agreement (or to any other party) for any actions or
omissions unless Escrow Holder is grossly negligent relative thereto. Escrow
Holder may rely on any letter, notice or other document executed by any
signature purported to be genuine and may rely on advice of counsel and obey any
order of any court with respect to the transactions contemplated in this
Agreement. The Shares will be released from escrow as they cease to be Unvested
Shares.
10. LEGENDS
You understand and agree that the Unvested Shares are subject to
forfeiture and that the certificate(s) representing the Unvested Shares may bear
a legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER AND FORFEITURE RESTRICTIONS AND MAY NOT BE
SOLD, ASSIGNED, TRANSFERRED, ENCUMBERED OR IN ANY WAY DISPOSED OF
EXCEPT AS SET FORTH IN A RESTRICTED STOCK AWARD AGREEMENT BETWEEN THE
ISSUER AND THE ORIGINAL RECIPIENT OF THESE SHARES, A COPY OF WHICH MAY
BE OBTAINED AT THE PRINCIPAL OFFICE OF THE ISSUER. SUCH TRANSFER
RESTRICTIONS AND FORFEITURE RESTRICTIONS ARE BINDING ON TRANSFEREES OF
THESE SHARES."
11. STOP-TRANSFER NOTICES
You understand and agree that, in order to ensure compliance with the
restrictions referred to in this Agreement, the Company may issue appropriate
"stop-transfer" instructions to its transfer agent, if any, and that, if the
Company transfers its own securities, it may make appropriate notations to the
same effect in its own records. The Company will not be required to (a) transfer
on its books any Shares that have been sold or transferred in violation of the
provisions of this Agreement or (b) treat as the owner of the Shares, or
otherwise accord voting, dividend or liquidation rights to, any transferee to
whom the Shares have been transferred in contravention of this Agreement.
12. INDEPENDENT TAX ADVICE
You acknowledge that determining the actual tax consequences to you of
receiving or disposing of the Shares may be complicated. These tax consequences
will depend, in part, on your specific situation and may also depend on the
resolution of currently uncertain tax law and other variables not within the
control of the Company. You are aware that you should consult a competent and
independent tax advisor for a full understanding of the specific tax
consequences to you of receiving or disposing of the Shares. Prior to executing
this Agreement, you either have consulted with a competent tax advisor
independent of the Company to obtain tax advice concerning the Shares in light
of your specific situation or have had the opportunity to consult with such a
tax advisor but have chosen not to do so.
13. WITHHOLDING AND DISPOSITION OF SHARES
You agree to make arrangements satisfactory to the Company for the
payment of any federal, state, local or foreign withholding tax obligations that
arise either upon receipt of the Shares or as the forfeiture restrictions on any
Shares lapse.
14. GENERAL PROVISIONS
14.1 NOTICES
Any notice required in connection with (a) the Company's forfeiture
rights or (b) the disposition of any Shares covered thereby will be given in
writing and will be deemed effective upon personal delivery, electronic
delivery, or upon deposit in the U.S. mail, registered or certified, postage
prepaid and addressed to the party entitled to such notice at the address
indicated in this Agreement or at such other address as such party may designate
by ten days' advance written notice under this Section 14.1 to all other parties
to this Agreement.
14.2 NO WAIVER
No waiver of any provision of this Agreement will be valid unless in
writing and signed by the person against whom such waiver is sought to be
enforced, nor will failure to enforce any right hereunder constitute a
continuing waiver of the same or a waiver of any other right hereunder.
14.3 UNDERTAKING
You hereby agree to take whatever additional action and execute
whatever additional documents the Company may deem necessary or advisable in
order to carry out or effect one or more of the obligations or restrictions
imposed on either you or the Shares pursuant to the express provisions of this
Agreement.
14.4 ENTIRE CONTRACT
This Agreement, the Plan and the Change of Control Agreement constitute
the entire contract between the parties hereto with regard to the subject matter
hereof. This Agreement is made pursuant to the provisions of the Plan and will
in all respects be construed in conformity with the express terms and provisions
of the Plan.
14.5 SUCCESSORS AND ASSIGNS
The provisions of this Agreement will inure to the benefit of, and be
binding on, the Company and its successors and assigns and you and your legal
representatives, heirs, legatees, distributees, assigns and transferees by
operation of law, whether or not any such person will have become a party to
this Agreement and agreed in writing to join herein and be bound by the terms
and conditions hereof.
14.6 SHAREHOLDER OF RECORD
You will be recorded as a shareholder of the Company and will have,
subject to the provisions of this Agreement and the Plan, all the rights of a
shareholder with respect to the Shares.
14.7 COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of
which will be deemed an original, but which, upon execution, will constitute one
and the same instrument.
14.8 GOVERNING LAW
This Agreement will be governed by and construed in accordance with the
laws of the State of Washington.
IN WITNESS WHEREOF, the parties have executed this Agreement dated
January 2, 2006.
AQUANTIVE, INC.
By: /s/ Xxxxx Xxxxxxxxxx
Its: Senior Vice President & General Counsel
EMPLOYEE
/s/ Xxxxx X. XxXxxxxxx
Xxxxx X. XxXxxxxxx
