Attached files
Exhibit 10.22
RSU (EXECUTIVE) PERFORMANCE VESTING
__, 20__
[Name of Recipient]
[Address]
[Address]
Notice of Grant of Performance-Based Restricted Stock Units
Dear [Name]:
Congratulations! You have been granted a performance-based Restricted Stock Unit Award (the
Award) pursuant to the terms and conditions [of the UK Sub-Plan]1 of the Verint
Systems Inc. (the Company) [Restricted Stock Unit Award Agreement (the Agreement). The details
of your Award are specified below and in the attached Agreement.] / [[2002/2004] Stock Incentive
Compensation Plan (as the same may be amended or supplemented from time to time the (Plan) for a
target of [Number] restricted stock units) as outlined below.]/ [[2002/2004] Stock Incentive
Compensation Plan (as the same may be amended or supplemented from time to time, including by any
applicable country supplements, collectively the Plan) and the attached Performance Based
Restricted Stock Unit Award Agreement (the Agreement). The details of your Award are specified
below and in the attached Agreement.]
Granted To:
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[Name] [Social Security Number] |
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Grant Date:
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[Date] | |
Target Number of Units Granted:
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[Number] [(with the opportunity to earn up to [Number]2 additional Units)] | |
Price Per Unit:
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$0.00 |
1 | Applicable to UK Grantees. |
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2 | Not to exceed 100% of the Target Number of Units (i.e.,
if the Target Number of Units is 100, the opportunity for additional Units may
not exceed 100, for a grand total of 200). |
MASTER FORM RSU Agreement (Performance Vesting)
Vesting Schedule:
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The Restricted Stock Units granted hereby shall vest on the dates set forth in the Agreement, upon the achievement [(the Vesting Dates)] of specified performance goals[; provided, however, that if either of the following events has not occurred when Restricted Stock Units would otherwise vest (upon the achievement of such performance goals), such Restricted Stock Units will not vest until the later of such events to occur: | |
[(1) the date the Company becomes current with its reporting obligations under the Securities Exchange Act of 1934, as amended; and] | ||
[(2) the date on which the Companys shares of common stock are listed on one or more established stock exchanges or national market systems, including without limitation The Nasdaq Global Market; and] | ||
[(3) the date the Company has sufficient available capacity under one or more of its existing equity plans or a new shareholder-approved equity incentive plan for all equity awards granted on the date of this award which remain outstanding at such time to vest in compliance with the Nasdaq restriction which provides that only legacy Witness employees and new Company hires since May 25, 2007 may receive awards under the Witness Systems, Inc. Amended & Restated Stock Incentive Plan assumed by the Company in connection with the merger with Witness.] | ||
Restrictions on Re-Sale:
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Regardless of the vesting of your Award, in no event shall you be allowed to re-sell the shares underlying this grant of Restricted Stock Units until the Company has an effective registration statement under the Securities Act of 1933, as amended, relating to the shares desired to be sold. |
MASTER FORM RSU Agreement (Performance Vesting)
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Termination Date:
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Notwithstanding any other provision of this Notice or of the related Performance-Based Restricted Stock Unit Award Agreement, if Restricted Stock Units have not vested by the tenth anniversary of the Date of Grant, such Restricted Stock Units shall be forfeited by Grantee as of such date. | |
[In addition, any unvested Restricted Stock Units shall be cancelled if your employment terminates prior to the vesting on such units as described above.] |
Verint Systems Inc. |
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By: | ||||
Name: | ||||
Title: |
By my signature below, I hereby acknowledge my receipt of this Award granted on the date shown
above, which has been issued to me under the terms and conditions of [the Plan] [and the
Agreement]. I further acknowledge receipt of a copy of [the Plan], the Agreement, and the summary
information sheet. I agree that the Award is subject to all of the terms and conditions of [the
Plan], this Notice and the Agreement [(including any equity plan referred to therein)].
Signature:
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Date: | |||||||||
MASTER FORM RSU Agreement (Performance Vesting)
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VERINT SYSTEMS INC.
PERFORMANCE-BASED RESTRICTED STOCK UNIT AWARD AGREEMENT
This Performance-Based Restricted Stock Unit Award Agreement (Agreement) governs the
terms and conditions of the Performance-Based Restricted Stock Unit Award (the Award)
specified in the Notice of Grant of Performance-Based Restricted Stock Units (the Notice of
Grant) delivered herewith entitling the person to whom the Notice of Grant is addressed
(Grantee) to receive from Verint Systems Inc. (the Company) the targeted number
of performance-based Restricted Stock Units indicated in the Notice of Grant (and the opportunity
to earn additional Restricted Stock Units if targeted performance is exceeded, as described
herein,[ if provided for in the Notice of Grant]), subject to the terms and conditions of this
Agreement. [Capitalized terms used but not defined in this Agreement shall have the meanings set
forth in the [UK Sub-Plan of the]3 Verint Systems Inc. [2002/2004] Stock Incentive
Compensation Plan (as the same may be amended or supplemented, from time to time, including by any
applicable country supplements, collectively, the Plan).]
1 | RESTRICTED STOCK UNITS; VESTING |
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1.1 | Grant of Performance-Based Restricted Stock Units. |
(a) | Subject to the terms of [the Plan and] [this Agreement,] the Company hereby grants to Grantee
the targeted number of performance-based Restricted Stock Units indicated in the Notice of
Grant (the Target Units), vesting of which depends upon the Companys performance
during each Performance Period (defined below), as specified for each such Performance Period. |
(b) | Grantees right to receive all, any portion of, or more than the Target Units will be
contingent upon the Companys achievement of specified levels of Revenue measured over the
following periods (each, a Performance Period and, collectively, the
Performance Periods): |
(i) | Payment of the first one-third of the Target Units (the [2009]
Units) will be contingent upon the achievement of specified levels of Revenue
during the period from [February 1, 2009 through January 31, 2010] (the [2009]
Period); |
(ii) | Payment of the second one-third of the Target Units (the [2010]
Units) will be contingent upon the achievement of specified levels of Revenue
during the period from [February 1, 2010 through January 31, 2011] (the [2010]
Period); and |
3 | Applicable to UK Grantees. |
MASTER FORM RSU Agreement (Performance Vesting)
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(iii) | Payment of the final one-third of the Target Units (the [2011]
Units) will be contingent upon the achievement of specified levels of Revenue
during the period from [February 1, 2011 through January 31, 2012] (the [2011]
Period). |
(c) | The applicable Revenue definition and target, Threshold level, and Maximum level (as
described below) for each Performance Period will be set by the Board or Committee prior to
the conclusion of each such Performance Period, and to the extent practicable, within the
first 90 days of each such Performance Period, and will be attached in a performance matrix
(the Performance Matrix) as an exhibit to this Agreement. A sample Performance
Matrix is set forth on Exhibit A hereto. |
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1.2 | Vesting of Performance-Based Restricted Stock Units. |
(a) | Below Threshold. If upon conclusion of the relevant Performance Period, Revenue for
that Performance Period falls below the Threshold level, as set forth in the applicable
Performance Matrix, no Restricted Stock Units for that Performance Period shall become vested. |
(b) | Between Threshold and Target. If, upon conclusion of the relevant Performance
Period, Revenue for that Performance Period equals or exceeds the Threshold level, but is
less than the Target level, as set forth in the applicable Performance Matrix, a portion of
the Target Units eligible for vesting during such Performance Period (of between the
percentage specified on the Performance Matrix opposite the Threshold Revenue level and
100%) will vest based on where actual Revenues for such Performance Period fall between the
Threshold level and the Target level. If the foregoing calculation would result in the
vesting of a fraction of a Unit, the result of the calculation will be rounded down to the
nearest whole Unit. |
(c) | Between Target and Maximum. If, upon the conclusion of the relevant Performance
Period, Revenue for that Performance Period equals or exceeds the Target level, but is less
than the Maximum level, as set forth in the applicable Performance Matrix, 100% of the
Target Units for such Performance Period will become vested, plus, if the Notice of Grant
indicates that units in excess of the Target Units are eligible to be earned, an additional
number of Restricted Stock Units (of between 0% and the maximum percentage of the Target Units
for such Performance Period specified on the Performance Matrix opposite the Maximum Revenue
level) based on where actual Revenues for such Performance Period fall between the Target
level and the Maximum level. If the foregoing calculation would result in the vesting of a
fraction of a Unit, the result of the calculation will be rounded down to the nearest whole
Unit. |
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(d) | Equals or Exceeds Maximum. If the Notice of Grant indicates that units in excess of
the Target Units are eligible to be earned, and upon conclusion of the relevant
Performance Period, Revenue for that Performance Period equals or exceeds the Maximum
level, as set forth in the applicable Performance Matrix, the maximum percentage of the
Target Units for such Performance Period specified on the Performance Matrix opposite the
Maximum Revenue level shall become vested. |
(e) | [Change in Control. Upon the occurrence of a Change in Control (other than a Hostile
Change in Control), the Committee may, in its sole discretion, elect to accelerate the vesting
of all unvested Restricted Stock Units. In the event of a Hostile Change in Control, such
accelerated vesting shall occur automatically upon the occurrence of such Hostile Change in
Control. At any time before a Change in Control, the Committee may, without the consent of
the Grantee (i) require the entity effecting the Change in Control or a parent or subsidiary
of such entity to assume this Award or substitute an equivalent cash award therefor or (ii)
terminate and cancel all outstanding Restricted Stock Units upon the Change in Control. In
connection with any such termination and cancellation of outstanding Restricted Stock Units
upon a Change in Control, the Committee may, in its discretion, cause the payment to the
Grantee for each unvested Restricted Stock Unit equal to the Fair Market Value of the Common
Stock on the date of the Change in Control. For the purposes of this Section, Restricted
Stock Units under this Award shall be considered assumed if, following the closing of the
Change in Control transaction, each Restricted Stock Unit confers the right to receive cash in
an amount equal to the consideration (if such consideration was cash) or the fair market value
of the consideration (if such consideration was stock, other securities, or property) received
in such transaction by holders of Common Stock for each share of Common Stock held on the
effective date of the transaction (and if holders were offered a choice of consideration, the
type of consideration chosen by the holders of a majority of the outstanding shares of Common
Stock).] |
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(f) | Conditions; Forfeiture. |
(i) | Any Restricted Stock Units that do not become vested based on the foregoing
provisions with respect to a given Performance Period will be automatically forfeited
by Grantee without consideration. |
MASTER FORM RSU Agreement (Performance Vesting)
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(ii) | Except as otherwise provided herein, Grantees right to receive any of the
Restricted Stock Units is contingent upon his or her remaining in the Continuous
Service of the Company or a Subsidiary [or Affiliate]4 through the end of
the relevant Performance Period. If Grantees Continuous Service terminates for any
reason, all Restricted Stock Units which are then unvested shall [be forfeited by
Grantee as of the date of
termination, unless otherwise determined by the Committee in its sole discretion.
In the event of any such forfeiture, all such forfeited Restricted Stock Units
shall become the property of the Company.]/[, unless otherwise determined by the
Board of Directors of the Company (the Board) or a committee thereof
designated to administer the Award (the Committee) in its sole
discretion, be cancelled and the Company shall thereupon have no further obligation
thereunder.] For the avoidance of doubt, Grantee acknowledges and agrees that he
or she has no expectation that any Restricted Stock Units will vest on the
termination of his or her Continuous Service for any reason and that he or she will
not be entitled to make a claim for any loss occasioned by such forfeiture as part
of any claim for breach of his or her employment or service contract or
otherwise. |
(iii) | A Grantees Continuous Service shall not be considered interrupted in the
case of any approved leave of absence. An approved leave of absence shall include
sick leave, military leave, or any other leave that is required by statute or promised
by contract, by Company policy, or by other authorization of the Company. Any other
leave of absence will be considered unauthorized and Grantees Continuous Service will
be considered terminated for purposes of this Agreement at the start of such
unauthorized leave. Notwithstanding the foregoing, unless Grantees right to return
from an authorized leave is guaranteed by statute or by contract, if an approved leave
of absence exceeds six (6) months in any single Performance Period, Grantee will
forfeit all of the Restricted Stock Units that are or were eligible for vesting during
such Performance Period, on the date such authorized leave exceeds six (6) months in
duration; provided, however, that the Committee shall have discretion
to waive the effect of the foregoing forfeiture provision or lengthen the six month
period before a forfeiture occurs to the extent necessary to comply with applicable
tax, labor, or other law or based on the particular facts and circumstances of the
leave in question. |
(iv) | [Notwithstanding anything to the contrary contained herein, if either of the
following events has not occurred on the date Restricted Stock Units would otherwise
vest hereunder, such Restricted Stock Units will not vest until the later of such
events to occur: (1) the date the Company becomes current with its reporting
obligations under the Securities Exchange Act of 1934, as amended; and (2) the date on
which the Companys Common Stock is listed on one or more established stock exchanges
or national market systems, including without limitation The Nasdaq Global Market.] |
4 | Not applicable to UK Grantees. |
MASTER FORM RSU Agreement (Performance Vesting)
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[(iv) | Notwithstanding anything to the contrary contained herein, if any of the
following events has not occurred on the date Restricted Stock
Units would otherwise vest hereunder, such Restricted Stock Units will not vest
until the latest of such events to occur: (1) the date the Company becomes current
with its reporting obligations under the Securities Exchange Act of 1934, as
amended; (2) the date on which the Companys Common Stock is listed on one or more
established stock exchanges or national market systems, including without
limitation The Nasdaq Global Market; and (3) the date the Company has sufficient
available capacity under one or more of its existing equity plans or a new
shareholder-approved equity incentive plan for all equity awards granted on the
date of this award which remain outstanding at such time to vest in compliance with
the Nasdaq restriction which provides that only legacy Witness employees and new
Company hires since May 25, 2007 may receive awards under the Witness Systems, Inc.
Amended & Restated Stock Incentive Plan assumed by the Company in connection with
the merger with Witness.] |
(v) | [Notwithstanding anything to the contrary contained herein, the issuance of
Shares (as defined below) upon the vesting of a Restricted Stock Unit shall be delayed
in the event the Company reasonably anticipates that the issuance of such shares would
constitute a violation of federal securities laws or other applicable law [or Nasdaq
rule]. If the issuance of the Shares is delayed by the provisions of this paragraph,
such issuance shall occur at the earliest date at which the Company reasonably
anticipates issuing such shares will not cause a violation of federal securities laws
or other applicable law [or Nasdaq rule]. For purposes of this paragraph, the
issuance of Shares that would cause inclusion in gross income or the application of
any penalty provision or other provision of the Code is not considered a violation of
applicable law.] |
(vi) | Notwithstanding any other provision of the Notice of Grant or of this
Agreement, if Restricted Stock Units have not vested by the tenth anniversary of the
Date of Grant, such Restricted Stock Units shall be forfeited by Grantee as of such
date. In the event of any such forfeiture, all such forfeited Restricted Stock Units
shall become the property of the Company. |
MASTER FORM RSU Agreement (Performance Vesting)
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(g) | Determination of Earned Award. Within 60 days following the Boards receipt of the
Companys audited financial statements covering the relevant Performance Period, the Board or
the Committee will determine (i) whether and to what extent the goals relating to Revenue have
been satisfied for each Performance Period, (ii) the number of Restricted Stock Units that
shall have become vested hereunder and (iii) whether all other conditions to receipt of the
Shares have been met. The Board or Committees determination of the foregoing shall be final
and binding on Grantee absent a showing of manifest error. Notwithstanding the any other
provisions of this Agreement, no Restricted Stock Units for a given Performance Period
shall vest until the Board or Committee has made the foregoing determinations for such
Performance Period [(the date of such determination for each Performance Period a
Vesting Date)]. In the case of the [2011] Period, such determination shall not
be final until on or after the third anniversary of the Date of Grant. |
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(h) | Issuance of Shares. |
(i) | If and when the Restricted Stock Units vest in accordance with the terms of
this Agreement without forfeiture, and upon the satisfaction of all other applicable
conditions as to the Restricted Stock Units, one Share shall be issuable to Grantee
for each Restricted Stock Unit that vests on such date, which Shares, except as
otherwise provided herein or in the Notice of Grant, will be free of any
Company-imposed transfer restrictions. |
(ii) | As soon as administratively practicable following the vesting of Restricted
Stock Units in accordance with the terms of this Agreement [(but in no event later
than March 15th of the year following the year in which such vesting occurs)], and
subject to the satisfaction of all other applicable conditions and provisions
hereunder, including, but not limited to, the payment by Grantee of all applicable
withholding taxes, the Company shall issue the applicable Shares and, at its option,
(a) deliver or cause to be delivered to Grantee a certificate or certificates for the
applicable Shares or (b) transfer or arrange to have transferred the Shares to a
brokerage account of Grantee designated by the Company. |
(iii) | [Subject to any other provision of this Agreement which would further delay
the delivery of such Shares, the Shares underlying any portion of this Award which
vests shall not be delivered to the Grantee until the earliest of the following
events: (a) the date Grantees employment with the Company (or a Subsidiary or
Affiliate) is terminated (by either party), (b) the date the Company has an effective
registration statement under the Securities Act of 1933, as amended, covering the
resale of such Shares, and (c) the date that the short-term deferral period under
Section 409A of the Code expires with respect to such vested Shares. |
MASTER FORM RSU Agreement (Performance Vesting)
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(iv) | Notwithstanding anything to the contrary contained herein, the issuance of
Shares (as defined below) upon the vesting of a Restricted Stock Unit shall be delayed
in the event the Company reasonably anticipates that the issuance of such shares would
constitute a violation of federal securities laws or other applicable law or Nasdaq
rule. If the issuance of the Shares is delayed by the provisions of this paragraph,
such issuance shall occur at the earliest date at which the Company reasonably
anticipates issuing such shares will not cause a
violation of federal securities laws or other applicable law or Nasdaq rule. For
purposes of this paragraph, the issuance of Shares that would cause inclusion in
gross income or the application of any penalty provision or other provision of the
Code is not considered a violation of applicable law. ] |
1.3 | Restrictions. |
(a) | Grantee shall not have any right in, to, or with respect to any of the Shares (including any
voting rights or rights with respect to dividends paid on the Companys Common Stock) issuable
under the Award unless and until the Award is settled by the issuance of such Shares to
Grantee, whereupon the Grantee shall have all the rights of a shareholder with respect to such
Shares. |
(b) | The Restricted Stock Units may not be transferred in any manner other than by will or by the
laws of descent and distribution. Any attempt to dispose of Restricted Stock Units or any
interest in the same in a manner contrary to the restrictions set forth in this Agreement
shall be void and of no effect. |
(c) | Regardless of the vesting of your Award, in no event shall you be allowed to re-sell any
shares of Common Stock underlying this grant of Restricted Stock Units (the Shares)
until the Company has an effective registration statement under the Securities Act of 1933, as
amended, relating to the shares desired to be sold. |
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1.4 | Tax; Withholding. |
(a) | The [Committee]/[Company] shall determine the amount of any withholding or other tax required
by law to be withheld or paid by the Company or its Subsidiary with respect to any income
recognized by Grantee with respect to the Restricted Stock Units or the [conversion thereof to
Shares]/[issuance of Shares pursuant to the terms of the Restricted Stock Units]. |
(b) | Neither the Company nor any Subsidiary[, Affiliate]5 or agent makes any
representation or undertaking regarding the treatment of any tax or withholding in connection
with the grant or vesting of the Award or the subsequent sale of Shares subject to the Award.
The Company and its Subsidiaries [and Affiliates]6 do not commit and are under no
obligation to structure the Award to reduce or eliminate Grantees tax liability. |
5 | Not applicable to UK Grantees. |
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6 | Not applicable to UK Grantees. |
MASTER FORM RSU Agreement (Performance Vesting)
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(c) | Grantee shall be required to meet any applicable tax withholding obligation, whether United
States federal, state, local or non-U.S., including any employment tax obligations or social
security obligations (the Tax Withholding Obligation),
[in accordance with the provisions of the Plan,] prior to any event in connection with the
Award (e.g., vesting, [delivery...etc.]) that the Company determines may result in any Tax
Withholding Obligation, and [subject to the Plan,] the Company reserves the
right to determine the method or methods by which such Tax Withholding Obligations will be
satisfied together with any associated timing or other details required to effectuate such
method or methods. |
(d) | If[, pursuant to the Plan, Grantee wishes]/[the Company allows, the Grantee may, in order] to
satisfy his or her minimum Tax Withholding Obligation, in whole or in part, (i) [by
providing]/[provide] the Company with funds sufficient to enable the Company to pay
such tax or (ii) [by requiring (subject to Committee disapproval as provided in the
Plan)]/[request] that the Company retain or accept, or [by requesting]/[request]
that the Company arrange for the sale by Grantee of, shares of its stock sufficient in value
(as determined [under the Plan]/[by the Committee in its sole discretion]) to cover the
amount of such tax. Grantee will provide written notice of the same, together with a wire
transfer or certified check for such funds in the case of clause (i) above, to the Company or
its designee in accordance with the timing and other terms of the Companys notice of election
procedures to be separately provided to Grantee, prior to the applicable vesting date or other
event in connection with the Award that the Company has advised Grantee may result in a Tax
Withholding Obligation. [In addition, Grantee agrees, as a condition to its acceptance of the
Award, and as a condition to its vesting, to satisfy any requirement of the Company or any
Subsidiary that, prior to vesting of all or any part of the Award, Grantee enter into a joint
election under section 431(1) of the UK Income Tax (Earnings and Pensions) Act 2003, the
effect of which is that the Shares issued on vesting will be treated as if they were not
restricted securities. |
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(e) | Tax Withholding Obligations shall include, without limitation: |
(i) | United Kingdom (UK) income tax; and |
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(ii) | UK primary class 1 (employees) national insurance contributions.]7 |
(f) | Grantee is ultimately liable and responsible for all taxes owed by Grantee in connection with
the Award, regardless of any action the Company or any of its Subsidiaries[,
Affiliates]8 or agents takes with respect to any tax withholding obligations that
arise in connection with the Award. Accordingly, Grantee agrees to pay to the Company or its
relevant Subsidiary [or Affiliate]9 as soon as
practicable, including through additional payroll withholding [(if permitted under
applicable law),] any amount of [required] tax withholding that is not satisfied
by any such action of the Company or its Subsidiary [or Affiliate]10. |
7 | Applicable to UK Grantees only. |
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8 | Not applicable to UK Grantees. |
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9 | Not applicable to UK Grantees. |
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10 | Not applicable to UK Grantees. |
MASTER FORM RSU Agreement (Performance Vesting)
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(g) | [The Committee shall be authorized, in its sole discretion, to establish such rules and
procedures relating to the use of shares of Common Stock to satisfy tax withholding
obligations as it deems necessary or appropriate to facilitate and promote the conformity of
Grantees transactions under [the Plan and] this Agreement with Rule 16b-3 under
the Securities Exchange Act of 1934, as amended, if such Rule is applicable to transactions by
Grantee.]11 |
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2 | [CERTAIN DEFINITIONS |
Defined terms used herein and not otherwise defined in [the Plan or] the body of this
Agreement are defined in Appendix A hereto.]
3 | REPRESENTATIONS OF GRANTEE |
Grantee hereby represents to the Company that Grantee has read and fully understands the provisions
of [the Plan and] this Agreement, and Grantee acknowledges that Grantee is relying
solely on his or her own advisors with respect to the tax consequences of this Award. Grantee
acknowledges that this Agreement has not been reviewed or approved by any regulatory authority in
his or her country of residence or otherwise.
4 | NOTICES |
All notices or communications under this Agreement shall be in writing, addressed as follows:
To the Company:
Verint Systems Inc.
330 South Service Road
Melville, NY 11747-3201
U.S.A.
(631) 962-9600 (phone)
(631) 962-9623 (fax)
Attn: Chief Legal Officer
330 South Service Road
Melville, NY 11747-3201
U.S.A.
(631) 962-9600 (phone)
(631) 962-9623 (fax)
Attn: Chief Legal Officer
11 | Keep this provision only for grants made to Accredited
Investors under Reg. D. Delete it in grants made under the no sale theory. |
MASTER FORM RSU Agreement (Performance Vesting)
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To Grantee:
[as set forth in the Notice of Grant (or if the Notice of Grant does not specify or
is provided electronically without a mailing address, as set forth in the Companys
payroll records)]/[as set forth in the Companys payroll records]
Any such notice or communication shall be (a) delivered by hand (with written confirmation of
receipt) or sent by a nationally recognized overnight delivery service (receipt requested) or (b)
sent certified or registered mail, return receipt requested, postage prepaid, addressed as above
(or to such other address as such party may designate in writing from time to time), and the actual
date of receipt shall determine the time at which notice was given. Grantee will promptly notify
the Company in writing upon any change in Grantees address.
5 | ASSIGNMENT; BINDING AGREEMENT |
This Agreement shall be binding upon and inure to the benefit of the heirs and representatives of
Grantee and the assigns and successors of the Company, but neither this Agreement nor any rights
hereunder shall be assignable or otherwise subject to hypothecation by Grantee.
6 | ENTIRE AGREEMENT; AMENDMENT |
This Agreement and the Notice of Grant represent the entire agreement of the parties with respect
to the subject matter hereof, except that the [Company reserves the right, in its sole discretion,
to make the Award and this Agreement subject to the terms of an equity incentive plan of the
Company so long as the terms of such equity incentive plan do not contradict any of the provisions
of the Agreement or the Notice of Grant.]/[provisions of the Plan are incorporated in this
Agreement in their entirety. In the event of any conflict between the provisions of this Agreement
or the Notice of Grant and the Plan, the provisions of the Plan shall control.] [In the event that
the Grantee becomes entitled to units in excess of the Target Units under the terms of this
Agreement and there are insufficient shares available to cover such excess units under the Plan,
such excess units shall be settled from another equity incentive plan of the Company to be
designated by the Committee and the terms and conditions of such plan shall govern such excess
units and the shares underlying the same.] This Agreement or the Notice of Grant may be amended by
the Committee without the consent of Grantee except in the case of an amendment adverse to Grantee,
in which case Grantees consent shall be required. [Notwithstanding the foregoing, however, the
Committee shall have the power to adopt regulations for carrying out this Agreement and to make
changes in such regulations, as it shall, from time to time, deem advisable. Any interpretation by
the Committee of the terms and provisions of this Agreement and the administration thereof, and all
action taken by the Committee, shall be final and binding.]
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7 | GOVERNING LAW |
[This Agreement and its validity, interpretation, performance and enforcement shall be
governed by the laws of the State of New York other than the conflict of laws provisions of such
laws.]/[This Agreement shall be governed by the laws of the state of New York, without giving
effect to any principle of law that would result in the application of the law of any other
jurisdiction. Each party to this Agreement hereby consents and submits himself, herself or itself
to the jurisdiction of the courts of the state of New York for the purposes of any legal action or
proceeding arising out of this Agreement. Nothing in this Agreement shall affect the right of the
Company to commence proceedings against the Grantee in any other competent jurisdiction, or
concurrently in more than one jurisdiction, or to serve process, pleadings and other papers upon
the Grantee in any manner authorized by the laws of any such jurisdiction. The Grantee irrevocably
waives:
(a) any objection which it may have now or in the future to the laying of the venue of any
action, suit or proceeding in any court referred to in this Section; and
(b) any claim that any such action, suit or proceeding has been brought in an inconvenient
forum.]
8 | SEVERABILITY |
Whenever possible, each provision in this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement shall be held to
be prohibited by or invalid under applicable law, then (a) such provision shall be deemed amended
to accomplish the objectives of the provision as originally written to the fullest extent permitted
by law and (b) all other provisions of this Agreement shall remain in full force and effect.
9 | ONE-TIME GRANT; NO RIGHT TO CONTINUED SERVICE OR PARTICIPATION; EFFECT ON OTHER PLANS |
Grantees award of Restricted Stock Units is a voluntary, discretionary bonus being made on a
one-time basis and it does not constitute a commitment to make any future awards. Neither this
Agreement nor the Notice of Grant shall confer upon Grantee any right with respect to continued
service with the Company, a Subsidiary [or Affiliate]12, nor shall it interfere in any
way with the right of the Company a Subsidiary [or Affiliate]13 to terminate Grantees
Continuous Service at any time. Payments received by Grantee pursuant to this Agreement and the
Notice of Grant shall not be [considered salary or other compensation for purposes of any severance
pay or similar allowance and
shall not be]14 included in the determination of benefits under any pension, group
insurance[,severance]15 or other benefit plan of the Company or any Subsidiaries [or
Affiliate]16 in which Grantee may be enrolled or for which Grantee may become eligible,
except as [otherwise required by law, as]17 may be provided under the terms of such
plans, or as determined by the Board of Directors of the Company.
12 | Not applicable to UK Grantees. |
|
13 | Not applicable to UK Grantees. |
|
14 | Not applicable to UK Grantees. |
|
15 | Applicable to UK Grantees. |
|
16 | Not applicable to UK Grantees. |
|
17 | Not applicable to UK Grantees. |
MASTER FORM RSU Agreement (Performance Vesting)
14
10 | NO STRICT CONSTRUCTION |
No rule of strict construction shall be implied against the Company, the Committee or any other
person in the interpretation of any of the terms of [the Plan,] this Agreement, the Notice of Grant
or any rule or procedure established by the Committee.
11 | USE OF THE WORD GRANTEE |
Wherever the word Grantee is used in any provision of this Agreement under circumstances where
the provision should logically be construed to apply to the executors, the administrators, or the
person or persons to whom the Restricted Stock Units may be transferred by will or the laws of
descent and distribution, the word Grantee shall be deemed to include such person or persons.
12 | FURTHER ASSURANCES |
Grantee agrees, upon demand of the Company or the Committee, to do all acts and execute, deliver
and perform all additional documents, instruments and agreements which may be reasonably required
by the Company or the Committee, as the case may be, to implement the provisions and purposes of
this Agreement [and the Plan].
13 | AMENDMENT TO MEET THE REQUIREMENTS OF SECTION 409A |
Grantee acknowledges that the Company, in the exercise of its sole discretion and without the
consent of Grantee, may amend or modify this Agreement in any manner and delay the payment of any
amounts payable pursuant to this Agreement to the minimum extent necessary to meet the requirements
of Section 409A of the Code as amplified by any Internal Revenue Service or U.S. Treasury
Department regulations or guidance[, or any other applicable equivalent tax law, rule, or
regulation,] as the Company deems appropriate or advisable.
MASTER FORM RSU Agreement (Performance Vesting)
15
14 | ADJUSTMENTS UPON CHANGES IN CAPITALIZATION |
In the event of a reorganization, recapitalization, stock split, spin-off, split-off, split-up,
stock dividend, issuance of stock rights, combination of shares, merger, consolidation or any other
change in the corporate structure of the Company affecting Common Stock, or any distribution to
stockholders other than a regular cash dividend, the Board shall make appropriate adjustment in the
number and kind of shares to which the Restricted Stock Units relate and any other adjustments to
the Award as it determines appropriate. No fractional Restricted Stock Units shall be awarded
pursuant to such an adjustment.
15 | CONSENT TO TRANSFER PERSONAL DATA |
[By accepting this award of Restricted Stock Units, Grantee voluntarily acknowledges and consents
to the collection, use, processing and transfer of personal data as described in this paragraph.
Grantee is not obliged to consent to such collection, use, processing and transfer of personal
data. However, failure to provide the consent may affect Grantees ability to participate in the
Plan.] The Company and its Subsidiaries hold certain personal information about Grantee, that may
include Grantees name, home address and telephone number, date of birth, social security number or
other employee identification number, salary, nationality, job title, any shares of stock held in
the Company, or details of any entitlement to shares of stock awarded, canceled, purchased, vested,
or unvested, for the purpose of implementing, managing and administering [the Plan,]
[the Award or the Agreement] (Data). [The Company and/or its
Subsidiaries will]/[The Grantee hereby agrees that the Company and/or its Subsidiaries] may
transfer Data amongst themselves as necessary for the purpose of implementation, administration and
management of Grantees participation in [the Plan,] [the Award or the Agreement], and
the Company and/or any of its Subsidiaries may each further transfer Data to any third parties
assisting the Company in the implementation, administration and management of [the Plan,]
[the Award or the Agreement]. These recipients may be located throughout the world, including
[the United States.]/[outside the Grantees country of residence (or outside of the European Union,
for Grantees located within the European Union). Such countries may not provide for a similar
level of data protection as provided for by local law (such as, for example, European privacy
directive 95/46/EC and local implementations thereof).] [Grantee authorizes them]/[Grantee hereby
authorizes those recipients even if they are located in a country outside of Grantees country of
residence (or outside of the European Union, for Grantees located within the European Union)] to
receive, possess, use, retain and transfer the Data, in electronic or other form, for the purpose
of implementing, administering and managing Grantees participation in [the Plan,] [the
Award or the Agreement], including any requisite transfer of such Data as may be required for the
administration of [the Plan,] [the Award or the Agreement] and/or the
subsequent holding of shares of stock on Grantees behalf by a broker or other third party with
whom Grantee or the Company may elect to deposit any shares of stock acquired pursuant to [the
Plan,] [the Award or the Agreement]. Grantee [is not obliged to consent to such
collection, use, processing and transfer of personal data and] may, at any time, review Data,
require any necessary amendments to
it or withdraw the consent contained in this section by contacting the Company in writing.
However, withdrawing or withholding consent may affect Grantees ability to participate in [the
Plan,] [the Award or the Agreement]. More information on the Data and/or the
consequences of withholding or withdrawing consent can be obtained from the Companys legal
department.
END OF AGREEMENT
MASTER FORM RSU Agreement (Performance Vesting)
16
Appendix A
CERTAIN DEFINITIONS
[For purposes of this Agreement, the following terms have the following meanings:
1934 Act means the Securities Exchange Act of 1934, as amended.
Affiliate means any entity other than the Subsidiaries in which the Company has a
substantial direct or indirect equity interest, as determined by the Board.
Change in Control means (i) the Board (or, if approval of the Board is not required as a
matter of law, the stockholders of the Company) shall approve (a) any consolidation or merger of
the Company in which the Company is not the continuing or surviving corporation or pursuant to
which shares of Common Stock would be converted into cash, securities or other property, other than
a merger of the Company in which the holders of Common Stock immediately prior to the merger have
the same proportionate ownership of common stock of the surviving corporation immediately after the
merger, or (b) any sale, lease, exchange or other transfer (in one transaction or a series of
related transactions) of all, or substantially all, the assets of the Company or (c) the adoption
of any plan or proposal for the liquidation or dissolution of the Company; (ii) any person (as such
term is defined in Section 13(d) of the 1934 Act), corporation or other entity other than the
Company shall make a tender offer or exchange offer to acquire any Common Stock (or securities
convertible into Common Stock) for cash, securities or any other consideration, provided that (a)
at least a portion of such securities sought pursuant to the offer in question is acquired and (b)
after consummation of such offer, the person, corporation or other entity in question is the
beneficial owner (as such term is defined in Rule 13d-3 under the 1934 Act), directly or
indirectly, of 20% or more of the outstanding shares of Common Stock (calculated as provided in
paragraph (d) of such Rule 13d-3 in the case of rights to acquire Common Stock); (iii) during any
period of two consecutive years, individuals who at the beginning of such period constituted the
entire Board ceased for any reason to constitute a majority thereof unless the election, or the
nomination for election by the Companys stockholders, of each new director was approved by a vote
of at least two-thirds of the directors then still in office who were directors at the beginning of
the period; or (iv) the occurrence of any other event the Committee determines shall constitute a
Change in Control hereunder.
Code means the Internal Revenue Code of 1986, as amended.
Common Stock means the common stock of the Company, par value $.001 per share, or such
other class or kind of shares or other securities resulting from the application of Section 14 of
the Agreement.
MASTER FORM RSU Agreement (Performance Vesting)
17
Continuous Service means that the provision of services to the Company or a Subsidiary or
Affiliate in any capacity of employee, director or consultant is not interrupted or terminated. In
jurisdictions requiring notice in advance of an effective termination as an employee, director or
consultant, Continuous Service shall be deemed terminated upon the actual cessation of providing
services to the Company or a subsidiary or affiliate notwithstanding any required notice period
that must be fulfilled before a termination as an employee, director or consultant can be effective
under applicable labor laws. Continuous Service shall not be considered interrupted in the case of
(i) any approved leave of absence, (ii) transfers among the Company, any Subsidiary or Affiliate,
or any successor, in any capacity of employee, director or consultant, or (iii) any change in
status as long as the individual remains in the service of the Company or a Subsidiary or Affiliate
in any capacity of employee, director or consultant. An approved leave of absence shall include
sick leave, military leave, or any other authorized personal leave.
Fair Market Value means, as of any date, the value of Common Stock determined as follows:
(a) If the Common Stock is listed on one or more established stock exchanges or national
market systems, including without limitation The Nasdaq National Market or The Nasdaq
SmallCap Market of The Nasdaq Stock Market, its Fair Market Value shall be the closing
sales price for such stock (or the closing bid, if no sales were reported) as quoted on the
principal exchange or system on which the Common Stock is listed (as determined by the
Committee) on the date of determination (or, if no closing sales price or closing bid was
reported on that date, as applicable, on the last trading date such closing sales price or
closing bid was reported), as reported in The Wall Street Journal or such other source as
the Committee deems reliable;
(b) If the Common Stock is regularly quoted on an automated quotation system (including the
OTC Bulletin Board or Pink Sheets) or by a recognized securities dealer, its Fair Market
Value shall be the closing sales price for such stock as quoted on such system or by such
securities dealer on the date of determination, but if selling prices are not reported, the
Fair Market Value of a share of Common Stock shall be the mean between the high bid and low
asked prices for the Common Stock on the date of determination (or, if no such prices were
reported on that date, on the last date such prices were reported), as reported in The Wall
Street Journal or such other source as the Committee deems reliable; or
(c) In the absence of an established market for the Common Stock of the type described in
(a) and (b), above, the Fair Market Value thereof shall be determined by the Committee in
good faith.
MASTER FORM RSU Agreement (Performance Vesting)
18
Hostile Change in Control means any Change in Control that is not approved or recommended
by the Board.
Subsidiary means any corporation (other than the Company) in an unbroken chain of
corporations beginning with the Company (or any subsequent parent of the Company) if each of the
corporations other than the last corporation in the unbroken chain owns stock possessing 50% or
more of the total combined voting power of all classes of stock in one of the other corporations in
such chain.]
MASTER FORM RSU Agreement (Performance Vesting)
19
EXHIBIT A
Performance Matrix for 20[__] Period
20[__] Units (Target Units for 20[__] Period):
Definition of Revenue for period (e.g., Consolidated GAAP revenue including/excluding the
following items...):
Target Revenue for 20[__] Period: $
Percent of 20[XX] | ||||
Revenue Achieved in 20[XX] Period | Units Vesting | |||
Threshold ([ ]% of 20[ ] Target Revenues) |
[ ] | % | ||
Target (100% of 20[ ] Target Revenues) |
100 | % | ||
Maximum ([ ]% of 20[ ] Target Revenues) |
[ ] | %18 |
18 | Not to exceed 200% (i.e., if the Target Number of
Units is 100, the opportunity for additional Units may not exceed 100, for a
grand total of 200 Units). If the Notice of Grant does not make additional
units available for over-performance, replace this line of the table with
Maximum: Not Applicable. |
MASTER FORM RSU Agreement (Performance Vesting)
20