Gomez, Inc. Restricted Stock Agreement
| Participant: | Exhibit 10.12 |
Xxxxx, Inc.
Xxxxx, Inc. has selected you to receive the restricted stock award described above, which is
subject to the provisions of the Xxxxx, Inc. 2008 Stock Incentive Plan and the terms and conditions
contained in this Restricted Stock Agreement. Please confirm your acceptance of this restricted
stock award and of the terms and conditions of this Agreement by signing a copy of this Agreement
where indicated below.
| XXXXX, INC. | ||||||
| By: | ||||||
| Title: | ||||||
Accepted and Agreed:
XXXXX, INC.
The terms and conditions of the award of shares of restricted common stock (the “Restricted
Shares”) of Xxxxx, Inc. (the “Company”) made to the Recipient, as set forth on the cover page of
this Agreement, are as follows:
1. Issuance of Restricted Shares.
(a) The Restricted Shares are issued to the Recipient, effective as of the Grant Date (as set
forth on the cover page of this Agreement), in consideration of employment services rendered and to
be rendered by the Recipient to the Company.
(b) As promptly as practicable following the Grant Date, the Company shall issue one or more
certificates in the name of the Recipient for the Restricted Shares. Such certificate(s) shall
initially be held on behalf of the Recipient by the Secretary of the Company. Following the
vesting of any Restricted Shares pursuant to Section 2 below, the Secretary shall, if requested by
the Recipient, deliver to the Recipient a certificate representing the vested Restricted Shares.
The Recipient agrees that the Restricted Shares shall be subject to the forfeiture provisions set
forth in Section 3 of this Agreement and the restrictions on transfer set forth in Section 4 of
this Agreement.
2. Vesting.
(a) Vesting Schedule. Unless otherwise provided in this Agreement or the Xxxxx, Inc.
2008 Stock Incentive Plan (the “Plan”), the Restricted Shares shall vest in accordance with the
following vesting schedule: ___% of the total number of
Restricted Shares shall vest ___ days
following the Grant Date and ___% of the total number of Restricted Shares shall vest at the end of
each successive ___-day period following such initial ___-day period, through and including the
___ anniversary of the Grant Date. Any fractional number of Restricted Shares resulting from the
application of the foregoing percentages shall be rounded down to the nearest whole number of
Restricted Shares.
(b) [Acceleration of Vesting. Notwithstanding the foregoing vesting schedule, ___%
of the [then-remaining number of unvested Restricted Shares] [total number of Restricted Shares]
shall vest effective immediately prior to a Change in Control Event (as defined in the Plan). The
remaining unvested Restricted Shares, if any, shall continue to vest pursuant to the vesting
schedule set forth in Section 2(a)[, provided that such unvested Restricted Shares shall vest as to
].]
3. Forfeiture of Unvested Restricted Shares Upon Termination.
In the event that the Recipient ceases to be employed by the Company for any reason or no
reason, with or without cause [(except as provided in Section 2(b) above)], all of the Restricted
Shares that are unvested as of the time of such employment termination shall be forfeited
immediately and automatically to the Company, without the payment of any consideration to the
Recipient, effective as of such termination of employment. The Recipient hereby authorizes the
Company to take any actions necessary or appropriate to cancel any certificate(s) representing
forfeited Restricted Shares and transfer ownership of such forfeited Restricted Shares to the
Company; and if the Company or its transfer agent requires an executed stock power or similar
confirmatory instrument in connection with such cancellation and transfer, the Recipient shall
promptly execute and deliver the same to the Company. The Recipient shall have no further rights
with respect to any Restricted Shares that are so forfeited. If the Recipient is employed by a
subsidiary of the Company, any references in this Agreement to employment with the Company shall
instead be deemed to refer to employment with such subsidiary.
4. Restrictions on Transfer.
The Recipient shall not sell, assign, transfer, pledge, hypothecate or otherwise dispose of,
by operation of law or otherwise (collectively “transfer”) any Restricted Shares, or any interest
therein, until such Restricted Shares have vested, except that the Recipient may transfer such
Restricted Shares: (a) to or for the benefit of any spouse, children, parents, uncles, aunts,
siblings, grandchildren and any other relatives approved by the Compensation Committee
(collectively, “Approved Relatives”) or to a trust established solely for the benefit of the
Recipient and/or Approved Relatives, provided that such Restricted Shares shall remain
subject to this Agreement (including without limitation the forfeiture provisions set forth in
Section 3 and the restrictions on transfer set forth in this Section 4) and such permitted
transferee shall, as a condition to such transfer, deliver to the Company a written instrument
confirming that such transferee shall be bound by all of the terms and conditions of this
Agreement; or (b) as part of the sale of all or substantially all of the shares of capital stock of
the Company (including pursuant to a merger or consolidation). The Company shall not be required
(i) to transfer on its books any of the Restricted Shares which have been transferred in violation
of any of the provisions of this Agreement or (ii) to treat as owner of such Restricted Shares or
to pay dividends to any transferee to whom such Restricted Shares have been transferred in
violation of any of the provisions of this Agreement.
5. Restrictive Legends.
All certificates representing Restricted Shares shall have affixed thereto a legend in
substantially the following form, in addition to any other legends that may be required under
applicable law:
“These shares of stock are subject to forfeiture provisions and restrictions on transfer set
forth in a certain Restricted Stock Agreement between the corporation and the registered owner of
these shares (or his or her predecessor in interest), and such Agreement is available for
inspection without charge at the office of the Secretary of the corporation.”
6. Rights as a Shareholder.
Except as otherwise provided in this Agreement, for so long as the Recipient is the registered
owner of the Restricted Shares, the Recipient shall have all rights as a shareholder with respect
to the Restricted Shares, whether vested or unvested, including, without limitation, any rights to
receive dividends and distributions with respect to the Restricted Shares and to vote the
Restricted Shares and act in respect of the Restricted Shares at any meeting of shareholders.
7. Provisions of the Plan.
This Agreement is subject to the provisions of the Plan, a copy of which is furnished to the
Recipient with this Agreement.
8. Tax Matters.
(a) Acknowledgments; Section 83(b) Election. The Recipient acknowledges that he or
she is responsible obtaining the advice of the Recipient’s own tax advisors with respect to the
acquisition of the Restricted Shares and the Recipient is relying solely on such advisors and not
on any statements or representations of the Company or any of its agents with respect to the tax
consequences relating to the Restricted Shares. The Recipient understands that the Recipient (and
not the Company) shall be responsible for the Recipient’s tax liability that may arise in
connection with the acquisition, vesting and/or disposition of the Restricted Shares. The
Recipient acknowledges that he or she has been informed of the availability of making an election
under Section 83(b) of the Internal Revenue Code, as amended,
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with respect to the issuance of the Restricted Shares and that the Recipient has decided not
to file a Section 83(b) election.
(b) Withholding. The Recipient acknowledges and agrees that the Company has the right
to deduct from payments of any kind otherwise due to the Recipient any federal, state, local or
other taxes of any kind required by law to be withheld with respect to the vesting of the
Restricted Shares. On each date on which Restricted Shares vest, the Company shall deliver written
notice to the Recipient of the amount of withholding taxes due with respect to the vesting of the
Restricted Shares that vest on such date; provided, however, that the total tax withholding cannot
exceed the Company’s minimum statutory withholding obligations (based on minimum statutory
withholding rates for federal and state tax purposes, including payroll taxes, that are applicable
to such supplemental taxable income) [Withholding payment in cash: The Recipient shall satisfy
such tax withholding obligations by making a cash payment to the Company on the date of vesting of
the Restricted Shares, in the amount of the Company’s withholding obligation in connection with the
vesting of such Restricted Shares.] [Withholding payment in stock: The Recipient [shall] [may, at
the option of the Recipient,] [may, if the Compensation Committee so approves in writing in advance
of the applicable vesting date,] satisfy such tax withholding obligations by transferring to the
Company, on each date on which Restricted Shares vest under this Agreement, such number of
Restricted Shares that vest on such date as have a fair market value (calculated using the last
reported sale price of the common stock of the Company on The NASDAQ Global Market on the trading
date immediately prior to such vesting date) equal to the amount of the Company’s tax withholding
obligation in connection with the vesting of such Restricted Shares. To effect such delivery of
Restricted Shares, the Recipient hereby authorizes the Company to take any actions necessary or
appropriate to cancel any certificate(s) representing such Restricted Shares and transfer ownership
of such Restricted Shares to the Company; and if the Company or its transfer agent requires an
executed stock power or similar confirmatory instrument in connection with such cancellation and
transfer, the Recipient shall promptly execute and deliver the same to the Company.]
9. Miscellaneous.
(a) No Right to Continued Employment. The Recipient acknowledges and agrees that,
notwithstanding the fact that the vesting of the Restricted Shares is contingent upon his or her
continued employment by the Company, this Agreement does not constitute an express or implied
promise of continued employment or confer upon the Recipient any rights with respect to continued
employment by the Company.
(b) Governing Law. This Agreement shall be construed, interpreted and enforced in
accordance with the internal laws of the State of Delaware without regard to any applicable
conflicts of laws provisions.
(c) Recipient’s Acknowledgments. The Recipient acknowledges that he or she has read
this Agreement, has received and read the Plan, and understands the terms and conditions of this
Agreement and the Plan.
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