Exhibit 10.2
NUANCE COMMUNICATIONS, INC.
STAND-ALONE
RESTRICTED STOCK PURCHASE AGREEMENT
(PERFORMANCE-BASED VESTING)
(A) Name of Grantee: Xxxxxx Xxxx
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(B) Credit Date: October 10, 2006
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(C) Number of Shares: 450,000
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(D) Price per Share: $0.001
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(E) Effective Date: October 10, 2006
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THIS RESTRICTED STOCK PURCHASE GRANT AGREEMENT (the "AGREEMENT"), is
effective as of the date set forth in Item E above (the "EFFECTIVE DATE")
between Nuance Communications, Inc., a Delaware corporation (the "COMPANY") and
the person named in Item A above ("GRANTEE").
THE PARTIES AGREE AS FOLLOWS:
1. STOCK PURCHASE RIGHTS. Pursuant to terms set forth in this Agreement, the
Company hereby credits to a separate account maintained on the books of the
Company (the "ACCOUNT") Stock Purchase Rights which will give Grantee the
right to purchase that number of shares of Common Stock of the Company, par
value $0.001 (the "SHARES"), listed in Item C above on the terms and
conditions set forth herein.
2. COMPANY'S OBLIGATION TO PAY; PURCHASE PRICE. Each Stock Purchase Right has
a value equal to the Fair Market Value of a Share on the date of this
Agreement. Unless and until the Stock Purchase Rights will have vested in
the manner set forth in Section 4, the Grantee will have no right to
receive the Shares subject to the Stock Purchase Rights. Prior to actual
payment of any Shares, such Stock Purchase Rights will represent an
unsecured obligation of the Company, payable (if at all) only from the
general assets of the Company. The purchase price for the Shares subject to
the Stock Purchase Rights shall be the price set forth in Item D above.
3. DEFINITIONS.
(a) "ADMINISTRATOR" means the Board or any committee of the Board that has
been designated by the Board to administer this Agreement.
(b) "BOARD" means the Board of Directors of the Company.
(c) "CODE" means the Internal Revenue Code of 1986, as amended.
(d) "COMMON STOCK" means the Common Stock of the Company.
(e) "CONSULTANT" means any person, including an advisor, engaged by the
Company or a Parent or Subsidiary to render services to such entity
(f) "DIRECTOR" means a member of the Board or a member of the Board of
Directors of any parent or Subsidiary to render services to such
entity.
(g) "EMPLOYEE" means an employee of the Company or any Parent or
Subsidiary of the Company. A Service Provider shall not cease to be an
Employee in the case of (i) any leave of absence approved by the
Company or (ii) transfers between locations of the Company or between
the Company, its Parent, any Subsidiary of the Company, or any
successor.
(h) "FISCAL YEAR" means the fiscal year of the Company.
(i) "PARENT" means a "parent corporation", whether now or hereafter
existing, as defined in Section 424(e) of the Code.
(j) "SERVICE PROVIDER" means an Employee, Director or Consultant.
(k) "SUBSIDIARY" means a "subsidiary corporation", whether now or
hereafter existing, as defined in Section 424(f) of the Code.
4. VESTING. Subject to Grantee's continuing to be a Service Provider on each
date set forth below and the terms and conditions of letter agreement
entered into between the Company and Grantee dated September 25, 2006 (the
"LETTER AGREEMENT"), the Stock Purchase Rights shall vest, if at all, in
the amounts and on the dates (if applicable) or earlier achievement of the
performance objectives set forth below:
Vesting Date Performance Objective
Shares (for time-based vesting) (for performance-based vesting)
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112,500 October 10, 2009 Achievement of the Board-approved financial targets for
the fiscal year ended September 30, 2007
112,500 October 10, 2009 Achievement of the Board-approved financial targets for
the fiscal year ended September 30, 2007
75,000 None Achievement of the Board-approved financial targets for
the fiscal year ended September 30, 2007
75,000 None Achievement of the Board-approved financial targets for
the fiscal year ended September 30, 2008
75,000 None Achievement of the Board-approved financial targets for
the fiscal year ended September 30, 2009
If the Board-approved financial targets for the fiscal years ended September 30,
2007, 2008 or 2009 are not achieved, the Stock Purchase Rights without a
scheduled vesting date (75,000 on each such date) shall immediately terminate.
5. FORFEITURE UPON TERMINATION AS SERVICE PROVIDER. Notwithstanding any
contrary provision of this Agreement, except as otherwise set forth in the
Letter Agreement, if the Grantee's status as a Service Provider terminates
for any or no reason, prior to a vesting date set forth above, the unvested
Stock Purchase Rights awarded by this Agreement will immediately terminate
and be forfeited at no cost to the Company.
6. PAYMENT AFTER VESTING. Any Stock Purchase Rights that vest in accordance
with Section 4 will be paid to the Grantee in Shares at the purchase price
(which shall be satisfied through past services to the Company) set forth
in Section 2, provided that to the extent determined appropriate by the
Company, the Grantee shall satisfy any federal, state and local withholding
taxes with respect to such Stock Purchase Rights prior to the payment of
any vested Shares to the Grantee.
7. RIGHTS AS STOCKHOLDER. Neither the Grantee nor any person claiming under or
through the Grantee will have any of the rights or privileges of a
stockholder of the Company in respect of any Shares deliverable hereunder
unless and until certificates representing such Shares will have been
issued, recorded on the records of the Company or its transfer agents or
registrars, and delivered to the Grantee.
8. RELATION TO THE COMPANY. Grantee is presently an officer, director, or
other employee of, or Consultant to the Company and in such capacity has
become personally familiar with the business, affairs, financial condition,
and results of the operations of the Company.
9. ADJUSTMENT UPON CHANGES IN CAPITALIZATION, DISSOLUTION, MERGER OR ASSET
SALE.
(a) Changes in Capitalization. Subject to any required action by the
stockholders of the Company, the number and class of Shares that may
be delivered under this Award, shall be proportionately adjusted for
any increase or decrease in the number of issued Shares resulting from
a stock split, reverse stock split, stock dividend, combination or
reclassification of the Shares, or any other increase or decrease in
the number of issued Shares effected without receipt of consideration
by the Company; provided, however, that conversion of any convertible
securities of the Company shall not be deemed to have been "effected
without receipt of consideration." Such adjustment shall be made by
the Board, whose determination in that respect shall be final, binding
and conclusive. Except as expressly provided herein, no issuance by
the Company of shares of stock of any class, or securities convertible
into shares of stock of any class, shall affect, and no adjustment by
reason thereof shall be made with respect to, the number or price of
Shares subject to this Award.
(b) Dissolution or Liquidation. In the event of the proposed dissolution
or liquidation of the Company, the Administrator shall notify Grantee
as soon as practicable prior to the effective date of such proposed
transaction. To the extent it has not been previously vested, this
Award will terminate immediately prior to the consummation of such
proposed action.
(c) Merger or Asset Sale. In the event of a merger of the Company with or
into another corporation, or the sale of substantially all of the
assets of the Company, shares subject to this Award that remain
outstanding at such time shall be assumed or an equivalent right
substituted by the successor corporation or a Parent or Subsidiary of
the successor corporation. In the event that the successor corporation
refuses to assume or substitute for the Award, the Grantee will fully
vest in and have the right to such shares even if such shares would
not otherwise be vested and all vesting criteria will be deemed
achieved at target levels and all other terms and conditions met.
10. TAX ADVICE. The Company has made no warranties or representations to
Grantee with respect to the income tax consequences of the transactions
contemplated by the agreement pursuant to which the Stock Purchase Rights
have been issued and Shares will be purchased and Grantee is in no manner
relying on the Company or its representatives for an assessment of such tax
consequences. The Grantee acknowledges that the Grantee has not relied and
will not rely upon the Company or the Company's counsel with respect to any
tax consequences related to the Stock Purchase Rights or the ownership,
purchase, or disposition of the Shares. The Grantee assumes full
responsibility for all such consequences and for the preparation and filing
of all tax returns and elections which may or must be filed in connection
with the Stock Purchase Rights and the Shares.
11. WITHHOLDING OF TAXES.
(a) Notwithstanding any contrary provision of this Agreement, no
certificate representing Shares may be released from the Company
unless and until the Grantee shall have delivered to the Company the
full amount of any federal, state or local income or other taxes which
the Company may be required by law to withhold with respect to such
Shares. At the election of the Company, any federal, state and local
withholding taxes with respect to the Stock Purchase Rights and/or the
Shares may be paid by reducing the number of vested Shares actually
paid to the Grantee.
(b) At the Grantee's election, the Company may deduct from any payment of
distribution of Restricted Stock the amount of any tax required by law
to be withheld with respect to the purchase of the shares of
Restricted Stock or the lapse of the Purchase Option. GRANTEE MUST
INFORM THE COMPANY OF HIS OR HER PREFERENCE FOR PAYMENT OF THEIR
WITHHOLDING TAX OBLIGATIONS WITHIN 30 DAYS OF RECEIPT OF THE
DOCUMENTATION. AN ELECTION FORM IS ATTACHED HERETO AS EXHIBIT A.
12. ASSIGNMENT; BINDING EFFECT. Subject to the limitations set forth in this
Agreement, this Agreement shall be binding upon and inure to the benefit of
the executors, administrators, heirs, legal representatives, and successors
of the parties hereto; provided, however, that Grantee may not assign any
of Grantee's rights under this Agreement.
13. DAMAGES. Grantee shall be liable to the Company for all costs and damages,
including incidental and consequential damages, resulting from a
disposition of the Stock Purchase Rights which is not in conformity with
the provisions of this Agreement.
14. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the Commonwealth of
Massachusetts excluding
those laws that direct the application of the laws of another jurisdiction.
15. NOTICES. All notices and other communications under this Agreement shall be
in writing. Unless and until the Grantee is notified in writing to the
contrary, all notices, communications, and documents directed to the
Company and related to the Agreement, if not delivered by hand, shall be
mailed, addressed as follows:
Nuance Communications, Inc.
Xxx Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: HR Director
Unless and until the Company is notified in writing to the contrary, all
notices, communications, and documents intended for the Grantee and related
to this Agreement, if not delivered by hand, shall be mailed to Grantee's
last known address as shown on the Company's books. Notices and
communications shall be mailed by first class mail, postage prepaid;
documents shall be mailed by registered mail, return receipt requested,
postage prepaid. All mailings and deliveries related to the Agreement shall
be deemed received when actually received, if by hand delivery, and two
business days after mailing, if by mail.
16. ARBITRATION. Any and all disputes or controversies arising out of this
Agreement shall be finally settled by arbitration conducted in Essex County
in accordance with the then existing rules of the American Arbitration
Association, and judgment upon the award rendered by the arbitrators may be
entered in any court having jurisdiction thereof; provided that nothing in
this Section 14 shall prevent a party from applying to a court of competent
jurisdiction to obtain temporary relief pending resolution of the dispute
through arbitration. The parties hereby agree that service of any notices
in the course of such arbitration at their respective addresses as provided
for in Section 13 shall be valid and sufficient.
17. NO RIGHTS TO STOCK PURCHASE RIGHTS, SHARES, OPTIONS OR EMPLOYMENT. Other
than with respect to the Stock Purchase Rights, neither Grantee nor any
other person shall have any claim or right to be issued stock or granted an
option under this agreement. Having received a Stock Purchase Right shall
not give the Grantee any right to receive any other grant or options under
any Company Plan. This Stock Purchase Right is not an employment contract
and nothing in this Stock Purchase Right shall be deemed to create in any
way whatsoever any obligation on your part to continue in the employ of the
Company, or the Company to continue your employment with the Company.
18. ENTIRE AGREEMENT. Company and Grantee agree that this Agreement (including
its attached Exhibits) is the complete and exclusive statement between
Company and Grantee regarding its subject matter and supersedes all prior
proposals, communications, and agreements of the parties, whether oral or
written, regarding the grant Stock Purchase Rights and Shares to Grantee.
19. ADDITIONAL CONDITIONS TO ISSUANCE OF SHARES. If at any time the Company
will determine, in its discretion, that the listing, registration or
qualification of the Shares upon any securities exchange or under any state
or federal law, or the consent or approval of any governmental regulatory
authority is necessary or desirable as a condition to the issuance of
Shares to the Grantee, such issuance will not occur unless and until such
listing, registration, qualification, consent or approval will have been
effected or obtained free of any conditions not acceptable to the Company.
The Company will make all reasonable efforts to meet the requirements of
any such state or federal law or securities exchange and to obtain any such
consent or approval of any such governmental authority.
20. ADMINISTRATOR AUTHORITY. The Administrator will have the power to interpret
this Agreement and to adopt such rules for the administration,
interpretation and application of this agreement as are consistent
therewith and to interpret or revoke any such rules (including, but not
limited to, the determination of whether or not any Stock Purchase Rights
have vested). All actions taken and all interpretations and determinations
made by the Administrator in good faith will be final and binding upon the
Grantee, the Company and all other interested persons. No member of the
Administrator will be personally liable for any action, determination or
interpretation made in good faith with respect to this Agreement.
21. CAPTIONS. Captions provided herein are for convenience only and are not to
serve as a basis for interpretation or construction of this Agreement.
22. AGREEMENT SEVERABLE. In the event that any provision in this Agreement will
be held invalid or unenforceable, such provision will be severable from,
and such invalidity or unenforceability will not be construed to have any
effect on, the remaining provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
NUANCE COMMUNICATIONS, INC.
By:/s/ Xxxx Xxxxx
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Xxxx X. Xxxxx, CEO and Chairman of the Board
The Grantee hereby accepts and agrees to be bound by all of the terms and
conditions of this Agreement and the Plan.
/s/ Xxxxxx Xxxx
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Grantee- Xxxxxx Xxxx
EXHIBIT
Exhibit A Trade-for-Taxes
EXHIBIT A
TO: Grantee
FROM: Xxxxxxx X. Xxxxxxx, Global Equity Manager
RE: Payment of Withholding Taxes Applicable to Restricted Stock Awards
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As you know,
Nuance Communications, Inc. ("Company") granted you an award of
Company restricted stock (the "Award"). In connection with the Award, you will
have taxable income at the time the Award vests.
Under applicable law, withholding taxes are due and payable at the time the
Award vests. Before Company delivers to you any shares under the Award, Company
must withhold applicable federal, state, and local taxes (the "Withholding
Tax"). The current federal supplemental wage withholding rate is twenty-five
percent (25%). In addition to the federal supplemental wage withholding rate,
withholding for state and local taxes may also be required, the rate of which
will vary depending on where you live.
In connection with your Award, you agreed to make appropriate arrangements
regarding the Withholding Tax applicable to your Award.
Company is offering you the opportunity to elect one of two methods to satisfy
your Withholding Tax. Select one of the two methods of payment described below:
___________ PAYMENT BY CHECK. Our stock administration department will
contact you via e-mail with the amount of the Withholding Tax due
and payable. Please make your check payable to
Nuance
Communications, Inc. and mail it to
Nuance Communications, Inc.,
Attention: Xxxxxxx X. Xxxxxxx, Xxx Xxxxxxx Xxxx, Xxxxxxxxxx, XX
00000. You are required to satisfy your Withholding Tax
obligations by tendering to Company the amount of the Withholding
Tax due and payable the day after Company notifies you of the
amount.
__________ RETENTION OF SHARES BY THE COMPANY. Company will retain the
number of shares equal to the amount of minimum withholding due
and payable. Fractional shares will not be retained to satisfy
any portion of the withholding tax. Accordingly, you agree that
in the event that the amount of withholding you owe would result
in a fraction of a share being owed, that amount will be
satisfied by withholding the fractional amount from your
paycheck. If such amount is required to be withheld, you
expressly acknowledge that by checking this box you are giving
the Company permission to withhold from your paycheck an amount
equal to the remaining withholding tax due and payable.
Please elect the method of payment that you wish to satisfy your Withholding Tax
from the two choices above, sign and date the form, and return it to the Xxxxxxx
X. Xxxxxxx at
Nuance Communications, Inc.. You may either mail this election
form to:
Nuance Communications, Inc., Attention: Xxxxxxx X. Xxxxxxx, Xxx Xxxxxxx
Xxxx, Xxxxxxxxxx, XX 00000 or fax it to 000-000-0000, attn: Xxxxxxx X.
Xxxxxxx/Withholding Election.
By signing below, I understand (1) that Company will withhold an amount required
by applicable law to satisfy the minimum Withholding Tax applicable to my Award,
and (2) agree to have such Withholding Tax obligation satisfied by the method I
checked above.
, 2007
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Grantee: Xxxxxx Xxxx Date
