EXHIBIT 10.19
UNICA CORPORATION
Restricted Stock Agreement
Granted Under 2005 Stock Option Plan
AGREEMENT made this ____ day of _____________, 200_, between Unica
Corporation, a Delaware corporation (the "Company"), and
________________________ (the "Participant").
For valuable consideration, receipt of which is acknowledged, the
parties hereto agree as follows:
1. Purchase of Shares.
The Company shall issue and sell to the Participant, and the
Participant shall purchase from the Company, subject to the terms and conditions
set forth in this Agreement and in the Company's 2005 Stock Option Plan (the
"Plan"), ______ shares (the "Shares") of common stock, $__ par value, of the
Company ("Common Stock"), at a purchase price of $____ per share. The aggregate
purchase price for the Shares shall be paid by the Participant by check payable
to the order of the Company or such other method as may be acceptable to the
Company. Upon receipt by the Company of payment for the Shares, the Company
shall issue to the Participant one or more certificates in the name of the
Participant for that number of Shares purchased by the Participant. The
Participant agrees that the Shares shall be subject to the purchase option set
forth in Section 2 of this Agreement and the restrictions on transfer set forth
in Section 4 of this Agreement.
2. Purchase Option.
(a) In the event that the Participant ceases to be employed by
the Company for any reason or no reason, with or without cause, prior to
_______, 20_, the Company shall have the right and option (the "Purchase
Option") to purchase from the Participant, for a sum of $____ per share (the
"Option Price"), some or all of the Unvested Shares (as defined below).
"Unvested Shares" means the total number of Shares multiplied by the
Applicable Percentage at the time the Purchase Option becomes exercisable by the
Company. The "Applicable Percentage" shall be (i) 100% during the 12-month
period ending ____________, 200_, (ii) 75% less 6.25% for each three months of
employment completed by the Participant with the Company from and after
_________, 200_, and (iii) zero on or after ________, 200__.
(b) In the event that the Participant's employment with the
Company is terminated by reason of death or disability, the number of the Shares
for which the Purchase Option becomes exercisable shall be __________ percent
(__%) of the number of Unvested Shares for which the Purchase Option would
otherwise become exercisable. For this purpose, "disability" shall mean the
inability of the Participant, due to a medical reason, to carry out his duties
as an employee of the Company for a period of six consecutive months.
(c) If the Participant is employed by a parent or subsidiary
of the Company, any references in this Agreement to employment with the Company
or termination of employment by or with the Company shall instead be deemed to
refer to such parent or subsidiary.
3. Exercise of Purchase Option and Closing.
(a) The Company may exercise the Purchase Option by delivering
or mailing to the Participant (or his estate), within 90 days after the
termination of the employment of the Participant with the Company, a written
notice of exercise of the Purchase Option. Such notice shall specify the number
of Shares to be purchased. If and to the extent the Purchase Option is not so
exercised by the giving of such a notice within such 90-day period, the Purchase
Option shall automatically expire and terminate effective upon the expiration of
such 90-day period.
(b) Within 10 days after delivery to the Participant of the
Company's notice of the exercise of the Purchase Option pursuant to subsection
(a) above, the Participant (or his estate) shall, pursuant to the provisions of
the Joint Escrow Instructions referred to in Section 7 below, tender to the
Company at its principal offices the certificate or certificates representing
the Shares which the Company has elected to purchase in accordance with the
terms of this Agreement, duly endorsed in blank or with duly endorsed stock
powers attached thereto, all in form suitable for the transfer of such Shares to
the Company. Promptly following its receipt of such certificate or certificates,
the Company shall pay to the Participant the aggregate Option Price for such
Shares (provided that any delay in making such payment shall not invalidate the
Company's exercise of the Purchase Option with respect to such Shares).
(c) After the time at which any Shares are required to be
delivered to the Company for transfer to the Company pursuant to subsection (b)
above, the Company shall not pay any dividend to the Participant on account of
such Shares or permit the Participant to exercise any of the privileges or
rights of a stockholder with respect to such Shares, but shall, in so far as
permitted by law, treat the Company as the owner of such Shares.
(d) The Option Price may be payable, at the option of the
Company, in cancellation of all or a portion of any outstanding indebtedness of
the Participant to the Company or in cash (by check) or both.
(e) The Company shall not purchase any fraction of a Share
upon exercise of the Purchase Option, and any fraction of a Share resulting from
a computation made pursuant to Section 2 of this Agreement shall be rounded to
the nearest whole Share (with any one-half Share being rounded upward).
(f) The Company may assign its Purchase Option to one or more
persons or entities.
4. Restrictions on Transfer.
(a) The Participant shall not sell, assign, transfer, pledge,
hypothecate or otherwise dispose of, by operation of law or otherwise
(collectively "transfer") any Shares, or any interest therein, that are subject
to the Purchase Option, except that the Participant may
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transfer such Shares (i) to or for the benefit of any spouse, children, parents,
uncles, aunts, siblings, grandchildren and any other relatives approved by the
Board of Directors (collectively, "Approved Relatives") or to a trust
established solely for the benefit of the Participant and/or Approved Relatives,
provided that such Shares shall remain subject to this Agreement (including
without limitation the restrictions on transfer set forth in this Section 4 and
the Purchase Option 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 (ii) 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), provided
that, in accordance with the Plan, the securities or other property received by
the Participant in connection with such transaction shall remain subject to this
Agreement.
(b) The Participant shall not transfer any Shares, or any
interest therein, that are no longer subject to the Purchase Option.
5. Escrow.
The Participant shall, upon the execution of this Agreement, execute
Joint Escrow Instructions in the form attached to this Agreement as Exhibit A.
The Joint Escrow Instructions shall be delivered to the Secretary and General
Counsel of the Company, as escrow agent thereunder. The Participant shall
deliver to such escrow agent a stock assignment duly endorsed in blank, in the
form attached to this Agreement as Exhibit B, and hereby instructs the Company
to deliver to such escrow agent, on behalf of the Participant, the
certificate(s) evidencing the Shares issued hereunder. Such materials shall be
held by such escrow agent pursuant to the terms of such Joint Escrow
Instructions.
6. Restrictive Legends.
All certificates representing Shares shall have affixed thereto legends
in substantially the following form, in addition to any other legends that may
be required under federal or state securities laws:
"The shares of stock represented by this certificate
are subject to restrictions on transfer and an
option to purchase set forth in a certain Restricted
Stock Agreement between the corporation and the
registered owner of these shares (or his predecessor
in interest), and such Agreement is available for
inspection without charge at the office of the
Secretary of the corporation."
7. Provisions of the Plan.
(a) This Agreement is subject to the provisions of the Plan, a
copy of which will be furnished to the Participant upon request.
(b) As provided in the Plan, upon the occurrence of a
Reorganization Event (as defined in the Plan), the repurchase and other rights
of the Company hereunder shall inure to the benefit of the Company's successor
and shall apply to the cash, securities or other property which the Shares were
converted into or exchanged for pursuant to such Reorganization Event in
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the same manner and to the same extent as they applied to the Shares under this
Agreement. If, in connection with a Reorganization Event, a portion of the cash,
securities and/or other property received upon the conversion or exchange of the
Shares is to be placed into escrow to secure indemnification or similar
obligations, the mix between the vested and unvested portion of such cash,
securities and/or other property that is placed into escrow shall be the same as
the mix between the vested and unvested portion of such cash, securities and/or
other property that is not subject to escrow.
8. Withholding Taxes; Section 83(b) Election.
(a) The Participant acknowledges and agrees that the Company
has the right to deduct from payments of any kind otherwise due to the
Participant any federal, state or local taxes of any kind required by law to be
withheld with respect to the purchase of the Shares by the Participant or the
lapse of the Purchase Option.
(b) The Participant has reviewed with the Participant's own
tax advisors the federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Agreement. The Participant
is relying solely on such advisors and not on any statements or representations
of the Company or any of its agents. The Participant understands that the
Participant (and not the Company) shall be responsible for the Participant's own
tax liability that may arise as a result of this investment or the transactions
contemplated by this Agreement. The Participant understands that it may be
beneficial in many circumstances to elect to be taxed at the time the Shares are
purchased rather than when and as the Company's Purchase Option expires by
filing an election under Section 83(b) of the Internal Revenue Code of 1986 with
the I.R.S. within 30 days from the date of purchase.
THE PARTICIPANT ACKNOWLEDGES THAT IT IS SOLELY THE
PARTICIPANT'S RESPONSIBILITY AND NOT THE COMPANY'S TO FILE TIMELY THE ELECTION
UNDER SECTION 83(b), EVEN IF THE PARTICIPANT REQUESTS THE COMPANY OR ITS
REPRESENTATIVES TO MAKE THIS FILING ON THE PARTICIPANT'S BEHALF.
9. Miscellaneous.
(a) No Rights to Employment. The Participant acknowledges and
agrees that the vesting of the Shares pursuant to Section 2 hereof is earned
only by continuing service as an employee at the will of the Company (not
through the act of being hired or purchasing shares hereunder). The Participant
further acknowledges and agrees that the transactions contemplated hereunder and
the vesting schedule set forth herein do not constitute an express or implied
promise of continued engagement as an employee or consultant for the vesting
period, for any period, or at all.
(b) Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, and each other provision of this
Agreement shall be severable and enforceable to the extent permitted by law.
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(c) Waiver. Any provision for the benefit of the Company
contained in this Agreement may be waived, either generally or in any particular
instance, by the Board of Directors of the Company.
(d) Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the Company and the Participant and their respective
heirs, executors, administrators, legal representatives, successors and assigns,
subject to the restrictions on transfer set forth in Section 4 of this
Agreement.
(e) Notice. All notices required or permitted hereunder shall
be in writing and deemed effectively given upon personal delivery or five days
after deposit in the United States Post Office, by registered or certified mail,
postage prepaid, addressed to the other party hereto at the address shown
beneath his or its respective signature to this Agreement, or at such other
address or addresses as either party shall designate to the other in accordance
with this Section 9(e).
(f) Pronouns. Whenever the context may require, any pronouns
used in this Agreement shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include the
plural, and vice versa.
(g) Entire Agreement. This Agreement and the Plan constitute
the entire agreement between the parties, and supersedes all prior agreements
and understandings, relating to the subject matter of this Agreement.
(h) Amendment. This Agreement may be amended or modified only
by a written instrument executed by both the Company and the Participant.
(i) 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.
(j) Participant's Acknowledgments. The Participant
acknowledges that he or she: (i) has read this Agreement; (ii) has been
represented in the preparation, negotiation, and execution of this Agreement by
legal counsel of the Participant's own choice or has voluntarily declined to
seek such counsel; (iii) understands the terms and consequences of this
Agreement; (iv) is fully aware of the legal and binding effect of this
Agreement; and (v) understands that the law firm of WilmerHale, is acting as
counsel to the Company in connection with the transactions contemplated by the
Agreement, and is not acting as counsel for the Participant.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
UNICA CORPORATION
By:
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Title:
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Address:
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[Name of Participant]
Address:
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Exhibit A
UNICA CORPORATION
Joint Escrow Instructions
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Unica Corporation
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Dear Sir:
As Escrow Agent for Unica Corporation, a Delaware corporation, and its
successors in interest under the Restricted Stock Agreement (the "Agreement") of
even date herewith, to which a copy of these Joint Escrow Instructions is
attached (the "Company"), and the undersigned person ("Holder"), you are hereby
authorized and directed to hold the documents delivered to you pursuant to the
terms of the Agreement in accordance with the following instructions:
1. Appointment. Holder irrevocably authorizes the Company to deposit
with you any certificates evidencing Shares (as defined in the Agreement) to be
held by you hereunder and any additions and substitutions to said Shares. For
purposes of these Joint Escrow Instructions, "Shares" shall be deemed to include
any additional or substitute property. Holder does hereby irrevocably constitute
and appoint you as his attorney-in-fact and agent for the term of this escrow to
execute with respect to such Shares all documents necessary or appropriate to
make such Shares negotiable and to complete any transaction herein contemplated.
Subject to the provisions of this Section 1 and the terms of the Agreement,
Holder shall exercise all rights and privileges of a stockholder of the Company
while the Shares are held by you.
2. Closing of Purchase.
(a) Upon any purchase by the Company of the Shares pursuant to
the Agreement, the Company shall give to Holder and you a written notice
specifying the purchase price for the Shares, as determined pursuant to the
Agreement, and the time for a closing hereunder (the "Closing") at the principal
office of the Company. Holder and the Company hereby irrevocably authorize and
direct you to close the transaction contemplated by such notice in accordance
with the terms of said notice.
(b) At the Closing, you are directed (i) to date the stock
assignment form or forms necessary for the transfer of the Shares, (ii) to fill
in on such form or forms the number of Shares being transferred, and (iii) to
deliver same, together with the certificate or certificates
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evidencing the Shares to be transferred, to the Company against the simultaneous
delivery to you of the purchase price for the Shares being purchased pursuant to
the Agreement.
3. Withdrawal. The Holder shall have the right to withdraw from this
escrow any Shares as to which the Purchase Option (as defined in the Agreement)
has terminated or expired.
4. Duties of Escrow Agent.
(a) Your duties hereunder may be altered, amended, modified or
revoked only by a writing signed by all of the parties hereto.
(b) You shall be obligated only for the performance of such
duties as are specifically set forth herein and may rely and shall be protected
in relying or refraining from acting on any instrument reasonably believed by
you to be genuine and to have been signed or presented by the proper party or
parties. You shall not be personally liable for any act you may do or omit to do
hereunder as Escrow Agent or as attorney-in-fact of Holder while acting in good
faith and in the exercise of your own good judgment, and any act done or omitted
by you pursuant to the advice of your own attorneys shall be conclusive evidence
of such good faith.
(c) You are hereby expressly authorized to disregard any and
all warnings given by any of the parties hereto or by any other person or
entity, excepting only orders or process of courts of law, and are hereby
expressly authorized to comply with and obey orders, judgments or decrees of any
court. If you are uncertain of any actions to be taken or instructions to be
followed, you may refuse to act in the absence of an order, judgment or decrees
of a court. In case you obey or comply with any such order, judgment or decree
of any court, you shall not be liable to any of the parties hereto or to any
other person or entity, by reason of such compliance, notwithstanding any such
order, judgment or decree being subsequently reversed, modified, annulled, set
aside, vacated or found to have been entered without jurisdiction.
(d) You shall not be liable in any respect on account of the
identity, authority or rights of the parties executing or delivering or
purporting to execute or deliver the Agreement or any documents or papers
deposited or called for hereunder.
(e) You shall be entitled to employ such legal counsel and
other experts as you may deem necessary properly to advise you in connection
with your obligations hereunder and may rely upon the advice of such counsel.
(f) Your rights and responsibilities as Escrow Agent hereunder
shall terminate if (i) you cease to be Secretary of the Company or (ii) you
resign by written notice to each party. In the event of a termination under
clause (i), your successor as Secretary shall become Escrow Agent hereunder; in
the event of a termination under clause (ii), the Company shall appoint a
successor Escrow Agent hereunder.
(g) If you reasonably require other or further instruments in
connection with these Joint Escrow Instructions or obligations in respect
hereto, the necessary parties hereto shall join in furnishing such instruments.
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(h) It is understood and agreed that if you believe a dispute
has arisen with respect to the delivery and/or ownership or right of possession
of the securities held by you hereunder, you are authorized and directed to
retain in your possession without liability to anyone all or any part of said
securities until such dispute shall have been settled either by mutual written
agreement of the parties concerned or by a final order, decree or judgment of a
court of competent jurisdiction after the time for appeal has expired and no
appeal has been perfected, but you shall be under no duty whatsoever to
institute or defend any such proceedings.
(i) These Joint Escrow Instructions set forth your sole duties
with respect to any and all matters pertinent hereto and no implied duties or
obligations shall be read into these Joint Escrow Instructions against you.
(j) The Company shall indemnify you and hold you harmless
against any and all damages, losses, liabilities, costs, and expenses, including
attorneys' fees and disbursements, (including without limitation the fees of
counsel retained pursuant to Section 4(e) above, for anything done or omitted to
be done by you as Escrow Agent in connection with this Agreement or the
performance of your duties hereunder, except such as shall result from your
gross negligence or willful misconduct.
5. Notice. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery or upon
deposit in the United States Post Office, by registered or certified mail with
postage and fees prepaid, addressed to each of the other parties thereunto
entitled at the following addresses, or at such other addresses as a party may
designate by ten days' advance written notice to each of the other parties
hereto.
COMPANY: Notices to the Company shall be sent to the
address set forth in the salutation hereto, Attn:
President
HOLDER: Notices to Holder shall be sent to the address
set forth below Holder's signature below.
ESCROW AGENT: Notices to the Escrow Agent shall be sent to the
address set forth in the salutation hereto.
6. Miscellaneous.
(a) By signing these Joint Escrow Instructions, you become a
party hereto only for the purpose of said Joint Escrow Instructions, and you do
not become a party to the Agreement.
(b) This instrument shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
Very truly yours,
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UNICA CORPORATION
By:
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Title:
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HOLDER:
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(Signature)
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Print Name
Address:
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Date Signed:
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ESCROW AGENT:
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Exhibit B
(STOCK ASSIGNMENT SEPARATE FROM CERTIFICATE)
FOR VALUE RECEIVED, I hereby sell, assign and transfer unto
__________________ (_________) shares of Common Stock, $0.01 par value per
share, of ______________________ (the "Corporation") standing in my name on the
books of the Corporation represented by Certificate(s) Number __________
herewith, and do hereby irrevocably constitute and appoint
______________________ attorney to transfer the said stock on the books of the
Corporation with full power of substitution in the premises.
Dated:
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IN PRESENCE OF ------------------------------------
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NOTICE: The signature(s) to this assignment must correspond with the
name as written upon the face of the certificate, in every particular, without
alteration, enlargement, or any change whatever and must be guaranteed by a
commercial bank, trust company or member firm of the Boston, New York or Midwest
Stock Exchange.
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