BOARD OF DIRECTORS RESTRICTED STOCK AGREEMENT
Exhibit 4.19
BOARD OF DIRECTORS
RESTRICTED STOCK AGREEMENT
This RESTRICTED STOCK AGREEMENT (the “Agreement”), dated as of the grant date set forth in the Notice of Restricted Stock Grant (the “Grant Notice”), is between Deltek, Inc., a Delaware corporation (together with its successors, the “Company”), and the individual whose name is set forth on the Grant Notice (the “Grantee”).
This Agreement evidences the award of restricted shares of common stock, par value $.001 per share, of the Company (each, an “Award Share,” and collectively, the “Award Shares”) to the Grantee pursuant to the Company’s Amended and Restated 2007 Stock Incentive and Award Plan (the “Plan”) and as set forth in the Grant Notice. The award is conditioned upon the Grantee’s agreement to the terms described below. All of the provisions of the Plan are expressly incorporated into this Agreement.
1. Terminology. Unless otherwise provided in this Agreement, capitalized words used in this Agreement are defined in the Glossary at the end of this Agreement or in the Plan.
2. Vesting. The Award Shares are subject to the following vesting schedule:
a. Prior to the first anniversary of the Grant Date as set forth in the Grant Notice (the “Grant Date”), none of the Award Shares will be vested;
b. On the one-year anniversary of the Grant Date, 100% of the aggregate number of Award Shares will become fully vested so long as the Grantee is a member of the Board of Directors on such anniversary date;
provided, however, in the event that a Change in Control occurs while the Grantee is a member of the Board of Directors of the Company, the Award Shares shall become vested in full on the date of such Change in Control to the extent then unvested.
3. Death; Disability. Subject to the provisions of this Agreement and the Plan, and notwithstanding any other provision of Section 2, the Award Shares will become fully vested if the Grantee (i) dies or (ii) ceases to be a member of the Board of Directors due to the Disability of the Grantee.
4. New Mountain Sales or Other Events. If the Grantee is permitted to participate in a sale of shares by the NMP Entities (an “NMP Sale”) pursuant to any applicable Shareholder’s Agreement, the Company will give the Grantee notice of such sale (a “Sale Notice”) prior to the anticipated date of such sale. Notwithstanding anything in Section 2 to the contrary, in connection with an NMP Sale in which the Grantee will participate, unvested Award Shares will vest to the extent that (A) the number of shares with respect to which the Grantee is permitted to participate in such NMP Sale exceeds (B) the number of shares previously issued to the Grantee
and not previously disposed of. If such NMP Sale is not completed, any accelerated vesting of Award Shares pursuant to this Section 4 will be of no force or effect, and Award Shares will continue to vest thereafter to the extent they would have vested if no Sale Notice had been given.
5. Multiple Agreements. Notwithstanding anything in Section 4 to the contrary, if the Grantee is permitted to participate in an NMP Sale pursuant to the analogous provisions of more than one restricted stock agreement or stock option agreement between the Grantee and the Company (any such agreement, including this Agreement, an “Award Agreement”), then the Company will have the right, at its option, to designate the Award Agreement or Award Agreements pursuant to which the Grantee may, or will, participate in such NMP Sale (including the accelerated vesting of shares or options thereunder); provided, however, that in no event will any such determination reduce the aggregate number of shares that the Grantee would otherwise be permitted to sell in connection with such NMP Sale.
6. Continuation of Plan upon Total Sale. Subject to the provisions of Section 2, upon the effective date of any Total Sale, any unvested portion of the Award Shares will terminate unless provision will be made in writing in connection with such Total Sale for the continuance of the Plan and such unvested portion of the Award Shares or for the assumption of such unvested portion of the Award Shares by a successor to the Company or for the substitution for such unvested portion of the Award Shares with new Award Shares or other securities or other equity interests of such successor with appropriate adjustments as to number and kind of shares or other securities or other equity interests, prices and other terms of such Award Shares. In the event that provision in writing is made as mentioned above in connection with a Total Sale, the unvested portion of the Award Shares or the new award shares substituted therefor will continue in the manner and under the terms provided in the Plan and this Agreement and in such writing.
7. Termination of Directorship.
(a) If the Grantee ceases to be a member of the Board of Directors of the Company, all Award Shares that are not then vested will be immediately forfeited by the Grantee and transferred to the Company upon such cessation for no consideration.
(b) The Grantee acknowledges and agree that upon the forfeiture of any unvested Award Shares in accordance with Section 7(a), (i) the Grantee’s right to vote and to receive cash dividends on, and all other rights, title or interest in, to or with respect to, the forfeited Award Shares shall automatically, without further act, terminate and (ii) the forfeited Award Shares shall be returned to the Company. The Grantee hereby irrevocably appoints (which appointment is coupled with an interest) the Company as the Grantee’s agent and attorney-in-fact to take any necessary or appropriate action to cause the forfeited Award Shares to be returned to the Company, including without limitation executing and delivering stock powers and instruments of transfer, making endorsements and/or making, initiating or issuing instructions or entitlement orders, all in the Grantee’s name and on the Grantee’s behalf. The Grantee hereby ratifies and approves all acts done by the Company as such attorney-in-fact. Without limiting the foregoing, the Grantee expressly acknowledges and agrees that any transfer agent for the Common Stock of the Company is fully authorized and protected in relying on, and
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shall incur no liability in acting on, any documents, instruments, endorsements, instructions, orders or communications from the Company in connection with the forfeited Award Shares or the transfer thereof, and that any such transfer agent is a third party beneficiary of this Agreement.
8. Restrictions on Transfer.
(a) Until an Award Share becomes vested and unrestricted pursuant to the terms of any applicable Shareholders Agreement, it may not, without the prior written consent of the Company, be sold, assigned, transferred, pledged, hypothecated or disposed of in any way (whether by operation of law or otherwise), except by will or the laws of descent and distribution, and will not be subject to execution, attachment or similar process.
(b) Any attempt to dispose of any such Award Shares in contravention of the restrictions set forth in Section 8(a) will be null and void and without effect. The Company will not be required to (i) transfer on its books any Award Shares that have been sold or transferred in contravention of this Agreement or (ii) treat as the owner of Award Shares, or otherwise accord voting, dividend or liquidation rights to, any transferee to whom Award Shares have been transferred in contravention of this Agreement.
9. Stock Certificates. The Grantee shall be reflected as the owner of record of the Award Shares as of the Grant Date. The Company or an escrow agent appointed by the Administrator will hold in escrow the share certificates for safekeeping, or the Company may otherwise retain the Award Shares in uncertificated book entry form, until the Award Shares become vested and unrestricted. Until the Award Shares become vested and unrestricted, any share certificates representing such shares will include a legend to the effect that the Grantee may not sell, assign, transfer, exchange, pledge, encumber or hypothecate the Award Shares. All regular cash dividends, if any, on the Award Shares held by the Company will be paid directly to the Grantee on the dividend payment date. As soon as practicable after the Award Shares have vested and become unrestricted, the Company will make arrangements for the delivery of the shares to the Grantee. The Grantee will deliver to the Company a stock power, endorsed in blank, with respect to any Award Shares that have been forfeited pursuant to this Agreement.
10. Tax Election.
(a) The Grantee agrees to make full provision for foreign, federal, state and local taxes required by law to be withheld, if any, which arise in connection with the grant or vesting of the Award Shares.
(b) The Grantee acknowledges that he or she has been advised by the Company to seek independent tax advice from his or her own advisors regarding the advisability of making an election under Section 83(b) of the Internal Revenue Code of 1986, as amended, and that any such election, if made, must be made within 30 days of the Grant Date. The Grantee expressly acknowledges that he or she is solely responsible for filing any such Section 83(b) election with the appropriate governmental authorities, irrespective of the fact that such election is also delivered to the Company.
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11. Adjustments for Changes in Capitalization and Other Events.
(a) Change in Capitalization. In the event of a Change in Capitalization, as defined in the Plan, the Administrator will make such adjustments, if any, as it determines are equitable and appropriate to the number and class of shares which are subject to this award of Award Shares. The Administrator will make adjustments, in its discretion, to address the treatment of fractional shares with respect to the Award Shares as a result of a Change in Capitalization; provided, however, that such adjustments do not result in the issuance of fractional Award Shares. Adjustments under this Section 11 will be made by the Administrator, whose determination as to what adjustments, if any, will be made and the extent thereof will be final, binding and conclusive.
(b) Binding Nature of Agreement. The terms and conditions of this Agreement will apply with equal force to any additional and/or substitute securities received by the Grantee in exchange for, or by virtue of his or her ownership of, the Award Shares, to the same extent as the Award Shares with respect to which such additional and/or substitute securities are distributed, whether as a result of any Change in Capitalization, or similar event, except as otherwise determined by the Administrator. If the Award Shares are converted into or exchanged for, or stockholders of the Company receive by reason of any distribution in total or partial liquidation or pursuant to any merger of the Company or acquisition of its assets, securities of another entity, or other property (including cash), then the rights of the Company under this Agreement will inure to the benefit of the Company’s successor, and this Agreement will apply to the securities or other property (including cash) received upon such conversion, exchange or distribution in the same manner and to the same extent as the Award Shares.
12. Non—Guarantee of Directorship. Nothing in the Plan or in this Agreement, nor any action taken pursuant to the Plan, shall confer any right on the Grantee to continue in the service of the Company as a member of the Board of Directors or in any other capacity for any period of time or at a particular retainer or other rate of compensation, or as limiting, interfering with or otherwise affecting the provisions of the Company’s charter, bylaws or the Delaware General Corporation Law relating to the removal of directors.
13. Rights as Stockholder. Except as otherwise provided in Section 9 of this Agreement, the Grantee will possess all incidents of ownership of the Award Shares, including the right to vote the Award Shares and receive dividends and/or other distributions declared on the Award Shares; provided, however, that if Award Shares are subject to any applicable Shareholders’ Agreement, or any other agreement governing the rights, duties and obligations of award holders with respect to shares issued pursuant to such Award, such Award Shares will be maintained as provided in, and subject to the restrictions in, such Shareholders’ Agreement or other agreement.
14. The Company’s Rights. The existence of the Award Shares will not affect in any way the right or power of the Company or its stockholders to make or authorize any or all adjustments, recapitalizations, reorganizations or other changes in the Company’s capital structure or its business, or any merger or consolidation of the Company, or any issue of bonds, debentures, preferred or other stocks with preference ahead of or convertible into, or otherwise
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affecting the Common Stock or the rights thereof, or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of the Company’s assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise.
15. Notices. Unless otherwise provided herein, all notices, requests and other communications provided for under the terms of this Agreement must be in writing. Any notice, request or other communication hereunder must be sent by (i) personal delivery, (ii) facsimile, with confirmation of receipt, to the number indicated, (iii) commercial overnight delivery service courier or (iv) registered or certified mail, return receipt requested, postage prepaid, in each case addressed to the intended recipient as set forth below:
(a) If to the Company, to:
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Senior Vice President and General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to the Grantee, at the most recent address or facsimile number contained in the Company’s records, and if to the Grantee’s legal representative, to such Person at the address of which the Company is notified in accordance with this Section 15.
All such notices, requests and other communications will be deemed to have been given when received. Any party may change its facsimile number or its address to which notices, requests and other communications hereunder are to be delivered by giving the other parties hereto notice in the manner then set forth.
16. Entire Agreement. This Agreement contains the entire agreement between the parties with respect to the Award Shares granted hereunder. Any oral or written agreements, representations, warranties, written inducements, or other communications made prior to the execution of this Agreement with respect to the Award Shares granted hereunder will be void and ineffective for all purposes.
17. Amendment. This Agreement may be amended from time to time by the Administrator in its discretion; provided, however, that this Agreement may not be modified in a manner that would adversely alter or impair any rights or obligations under the Agreement as determined in the discretion of the Administrator, except as provided in the Plan or in a written document signed by each of the parties hereto.
18. Conformity with Plan. This Agreement is intended to conform in all respects with, and is subject to all applicable provisions of, the Plan. Inconsistencies between this Agreement and the Plan will be resolved in accordance with the terms of the Plan. In the event of any ambiguity in this Agreement or any matters as to which this Agreement is silent, the Plan will govern. A copy of the Plan is available upon request to the General Counsel.
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19. Governing Law. The validity, construction and effect of this Agreement, and of any determinations or decisions made by the Administrator relating to this Agreement, and the rights of any and all persons having or claiming to have any interest under this Agreement, will be determined exclusively in accordance with the laws of the State of Delaware, without regard to its provisions concerning the applicability of laws of other jurisdictions. Any suit with respect to this Agreement or the Award Shares will be brought in the federal or state courts in the districts which include Herndon, Virginia, and the Grantee agrees and submits to the personal jurisdiction and venue of all such courts.
20. Waiver of Jury Trial. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, THE COMPANY AND THE GRANTEE IRREVOCABLY, WAIVES, AND COVENANTS THAT NEITHER WILL ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING IN WHOLE OR IN PART ARISING OUT OF, OR RELATING TO, THIS AGREEMENT, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AND AGREE THAT EITHER MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR AGREEMENT IRREVOCABLY TO WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY SUCH ACTION OR PROCEEDING. SUCH ACTION OR PROCEEDING WILL INSTEAD BE TRIED IN A SELECTED COURT BY A JUDGE SITTING WITHOUT A JURY.
21. Headings. The headings in this Agreement are for reference purposes only and will not affect the meaning or interpretation of this Agreement.
22. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
23. Electronic Delivery of Documents. By accepting the Award Shares and signing the Grant Notice, the Grantee (i) consents to the electronic delivery of this Agreement, all information with respect to the Plan and the Award Shares and any reports of the Company provided generally to the Company’s stockholders; (ii) acknowledges that he or she may receive from the Company a paper copy of any documents delivered electronically at no cost to him or her by contacting the Company by telephone or in writing; (iii) acknowledges that he or she may revoke his or her consent to the electronic delivery of documents at any time by notifying the Company of such revoked consent by telephone, postal service or electronic mail; and (iv) acknowledges that he or she understand that he or she is not required to consent to electronic delivery of documents.
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GLOSSARY
(a) “Administrator” means the Compensation Committee of the Board of Directors of Deltek, Inc. (the “Board”) or such committee or committees appointed by the Board to administer the Plan.
(b) “Affiliate” means any entity, whether now or hereafter existing, which controls, is controlled by, or is under common control with Deltek, Inc. (including, but not limited to, joint ventures, limited liability companies and partnerships). For this purpose, “control” means ownership of 50% or more of the total combined voting power or value of all classes of stock or interests of the entity.
(c) A “Change in Control” will have occurred if (A) any third party not affiliated with New Mountain Partners II, L.P., New Mountain Affiliated Investors II, L.P. or Allegheny New Mountain Partners, L.P. or any of their affiliates (collectively, “New Mountain”), but excluding the deLaski Shareholders (as defined in the Shareholders’ Agreement), owns, directly or indirectly, more voting capital stock of the Company than New Mountain owns or (B) a third party not so affiliated has or obtains the right to elect a majority of the Board.
(d) “Disability” means a physical or mental condition as a result of which the Grantee is unable to perform the primary duties, responsibilities and functions of his or her position at the Company for a period of at least 90 days, as determined by the Administrator.
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