EXHIBIT 99.2
▇.▇▇▇▇▇▇▇, INC.
1999 STOCK PLAN
RESTRICTED STOCK AGREEMENT
▇.▇▇▇▇▇▇▇, Inc. (the "Company") hereby grants you, [NAME OF EMPLOYEE]
(the "Employee"), a Stock Purchase Right to purchase restricted Common Stock of
the Company (the "Restricted Stock") under the Company's 1999 Stock Plan. The
date of this Restricted Stock Agreement (the "Agreement") is October 20, 2004
(the "Grant Date"). Subject to the provisions of Appendix A (attached hereto),
the principal features of this grant are as follows:
Total Number of Shares of Restricted Stock: [NUMBER]
Purchase Price per Share: $0.0001, par value
SCHEDULED VESTING DATES: NUMBER OF SHARES:
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Grant Date 0
October 1, 2006 (the "Two-year Anniversary Date")* [1/2 OF SHARES]
October 1, 2008 (the "Four-year Anniversary Date")* [1/2 OF SHARES]
*Except as otherwise provided in Appendix A, Employee will not vest in the
Restricted Stock unless he or she is employed by the Company or one of its
Affiliates through the applicable vesting date.
Your signature below indicates your agreement to purchase the Shares
subject to this grant and your agreement and understanding that this grant is
subject to all of the terms and conditions contained in Appendix A and the Plan.
For example, important additional information on vesting and forfeiture of the
Shares covered by this grant is contained in Paragraphs 3 through 6 of Appendix
A. PLEASE BE SURE TO READ ALL OF APPENDIX A, WHICH CONTAINS THE SPECIFIC TERMS
AND CONDITIONS OF THIS AGREEMENT.
E.PIPHANY, INC. EMPLOYEE
By:_______________________ -----------------------------
[NAME]
Title:____________________
Date:_____________________ Date: ______________, 2004
APPENDIX A
TERMS AND CONDITIONS OF RESTRICTED STOCK AGREEMENT
1. Grant. The Company hereby grants to the Employee an award of
[NUMBER] Shares of Restricted Stock at a purchase price $0.0001 (par value) per
share, commencing on the Grant Date, subject to all of the terms and conditions
in this Agreement and the Plan. By accepting this grant of Restricted Stock, the
par value purchase price for each Share of Restricted Stock will be deemed paid
by the Employee by past services rendered by the Employee.
2. Shares Held in Escrow. Unless and until the Shares of
Restricted Stock shall have vested in the manner set forth in Paragraph 3, such
Shares shall be issued in the name of the Employee and held by the Secretary of
the Company (or its designee) as escrow agent (the "Escrow Agent"), and shall
not be sold, transferred or otherwise disposed of, and shall not be pledged or
otherwise hypothecated. The Company may determine to issue the Shares in book
entry form and/or may instruct the transfer agent for its Common Stock to place
a legend on the certificates representing the Restricted Stock or otherwise note
its records as to the restrictions on transfer set forth in this Agreement and
the Plan. The certificate or certificates representing such Shares shall not be
delivered by the Escrow Agent to the Employee unless and until the Shares have
vested and all other terms and conditions in this Agreement have been satisfied.
3. Vesting Schedule/Period of Restriction. Subject to
Paragraphs 4 and 5 of this Agreement and Section 14 of the Plan, the Shares of
Restricted Stock awarded by this Agreement shall vest in accordance with the
vesting provisions set forth on the first page of this Agreement. Shares of
Restricted Stock shall not vest in the Employee in accordance with any of the
provisions of this Agreement unless the Employee shall have been continuously
employed by the Company or by one of its Affiliates from the Grant Date until
the date otherwise is scheduled to occur. For purposes of this Agreement,
"Affiliate" means any corporation or any other entity (including, but not
limited to, partnerships and joint ventures) controlling, controlled by, or
under common control with the Company.
4. Administrator Discretion and Acceleration. The
Administrator, in its discretion, may accelerate the vesting of the balance, or
some lesser portion of the balance, of the unvested Shares of Restricted Stock
at any time, subject to the terms of the Plan. If so accelerated, such Shares
will be considered as having vested as of the date specified by the
Administrator.
5. Change of Control. In the event of a Change of Control, as
defined in the Change of Control Severance Agreement between the Employee and
the Company, the Employee shall immediately be vested in 100% of the Shares of
Restricted Stock.
6. Forfeiture. Notwithstanding any contrary provision of this
Agreement, the balance of the Shares of Restricted Stock that have not vested at
the time of the Employee's Termination of Service will be forfeited and
automatically transferred to and reacquired by the Company at no cost to the
Company. The Employee shall not be entitled to a refund of the price paid for
the Shares returned to the Company pursuant to this paragraph 5. The Employee
hereby appoints the Escrow Agent with full power of substitution, as the
Employee's true and lawful attorney-in-fact with irrevocable power and authority
in the name and on behalf of the Employee to take any action and execute all
documents and instruments, including, without limitation, stock powers which may
be necessary to transfer the certificate or certificates evidencing such
unvested Shares to the Company upon such Termination of Service. For purposes of
this Agreement, "Termination of Service" means a cessation of the
employee-employer relationship between the Employee and the Company or an
Affiliate for any reason, including, but not by way of limitation, a termination
by resignation, discharge, death, disability, retirement, or the disaffiliation
of an Affiliate, but excluding any such termination where there is a
simultaneous reemployment by the Company or an Affiliate.
7. Death of Employee. Any distribution or delivery to be made
to the Employee under this Agreement will, if the Employee is then deceased, be
made to the administrator or executor of the Employee's estate. Any such
administrator or executor must furnish the Company with (a) written notice of
his or her status as transferee, and (b) evidence satisfactory to the Company to
establish the validity of the transfer and compliance with any laws or
regulations pertaining to said transfer.
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8. Withholding of Taxes. The Company (or the employing
Affiliate) will withhold a portion of the Shares of Restricted Stock that have
an aggregate market value sufficient to pay the minimum federal, state and local
income, employment and any other applicable taxes required to withheld by the
Company or the employing Affiliate with respect to the Shares, unless the
Employee makes alternate arrangements satisfactory to the Administrator for such
withholdings in advance of the arising of any withholding obligations.
Notwithstanding any contrary provision of this Agreement, no Restricted Stock
will be granted unless and until satisfactory arrangements (as determined by the
Administrator) will have been made by the Employee with respect to the payment
of any income and other taxes which the Company determines must be withheld or
collected with respect to such Shares.
9. Rights as Stockholder. Neither the Employee nor any person
claiming under or through the Employee will have any of the rights or privileges
of a stockholder of the Company in respect of any Shares deliverable hereunder
unless and until certificates representing such Shares will have been issued,
recorded on the records of the Company or its transfer agents or registrars, and
delivered to the Employee or the Escrow Agent. After such issuance, recordation
and delivery, the Employee will have all the rights of a stockholder of the
Company with respect to voting such Shares and receipt of dividends and
distributions on such Shares.
10. No Effect on Employment. Subject to any employment contract
with the Employee, the terms of such employment will be determined from time to
time by the Company, or the Affiliate employing the Employee, as the case may
be, and the Company, or the Affiliate employing the Employee, as the case may
be, will have the right, which is hereby expressly reserved, to terminate or
change the terms of the employment of the Employee at any time for any reason
whatsoever, with or without good cause. The transactions contemplated hereunder
and the vesting schedule set forth on the first page of this Agreement do not
constitute an express or implied promise of continued employment for any period
of time. A leave of absence or an interruption in service (including an
interruption during military service) authorized or acknowledged by the Company
or the Affiliate employing the Employee, as the case may be, shall not be deemed
a Termination of Service for the purposes of this Agreement.
11. Address for Notices. Any notice to be given to the Company
under the terms of this Agreement will be addressed to the Company, in care of
its General Counsel, at E.piphany, Inc., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
or at such other address as the Company may hereafter designate in writing.
12. Changes in Shares. In the event that as a result of a stock
dividend, stock split, reclassification, recapitalization, combination of Shares
or the adjustment in capital stock of the Company or otherwise, or as a result
of a merger, consolidation, spin-off or other reorganization, the Shares will be
increased, reduced or otherwise changed, and by virtue of any such change the
Employee will in his or her capacity as owner of unvested Shares of Restricted
Stock which have been awarded to him or her (the "Prior Shares") be entitled to
new or additional or different shares of stock, cash or securities (other than
rights or warrants to purchase securities); such new or additional or different
shares, cash or securities will thereupon be considered to be unvested
Restricted Stock and will be subject to all of the conditions and restrictions
which were applicable to the Prior Shares pursuant to this Agreement and the
Plan. If the Employee receives rights or warrants with respect to any Prior
Shares, such rights or warrants may be held or exercised by the Employee,
provided that until such exercise any such rights or warrants and after such
exercise any shares or other securities acquired by the exercise of such rights
or warrants will be considered to be unvested Restricted Stock and will be
subject to all of the conditions and restrictions which were applicable to the
Prior Shares pursuant to the Plan and this Agreement. The Administrator in its
absolute discretion at any time may accelerate the vesting of all or any portion
of such new or additional shares of stock, cash or securities, rights or
warrants to purchase securities or shares or other securities acquired by the
exercise of such rights or warrants.
13. Grant is Not Transferable. Except to the limited extent
provided in paragraph 7 above, the unvested Shares subject to this grant and the
rights and privileges conferred hereby will not be transferred, assigned,
pledged or hypothecated in any way (whether by operation of law or otherwise)
and will not be subject to sale under execution, attachment or similar process.
Upon any attempt to transfer, assign, pledge, hypothecate or otherwise dispose
of any unvested Shares subject to this grant, or any right or privilege
conferred hereby, or upon any attempted sale under any execution, attachment or
similar process, this grant and the rights and privileges conferred hereby
immediately will become null and void.
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14. Binding Agreement. Subject to the limitation on the
transferability of this grant contained herein, this Agreement will be binding
upon and inure to the benefit of the heirs, legatees, legal representatives,
successors and assigns of the parties hereto.
15. Additional Conditions to Issuance of Certificates for Shares
and Release from Escrow. The Company shall not be required to issue any
certificate or certificates for Shares hereunder or release such Shares from the
escrow established pursuant to paragraph 2 prior to fulfillment of all the
following conditions: (a) the admission of such Shares to listing on all stock
exchanges on which such class of stock is then listed; (b) the completion of any
registration or other qualification of such Shares under any state or federal
law or under the rulings or regulations of the Securities and Exchange
Commission or any other governmental regulatory body, which the Administrator
shall, in its absolute discretion, deem necessary or advisable; (c) the
obtaining of any approval or other clearance from any state or federal
governmental agency, which the Administrator shall, in its absolute discretion,
determine to be necessary or advisable; and (d) the lapse of such reasonable
period of time following the date of grant of the Restricted Stock as the
Administrator may establish from time to time for reasons of administrative
convenience.
16. Plan Governs. This Agreement is subject to all terms and
provisions of the Plan. In the event of a conflict between one or more
provisions of this Agreement and one or more provisions of the Plan, the
provisions of the Plan will govern. Capitalized terms used and not defined in
this Agreement will have the meaning set forth in the Plan.
17. Administrator Authority. The Administrator will have the
power to interpret the Plan and this Agreement and to adopt such rules for the
administration, interpretation and application of the Plan as are consistent
therewith and to interpret or revoke any such rules (including, but not limited
to, the determination of whether or not any Shares of Restricted Stock have
vested). All actions taken and all interpretations and determinations made by
the Administrator in good faith will be final and binding upon the Employee, the
Company and all other interested persons. No member of the Administrator will be
personally liable for any action, determination or interpretation made in good
faith with respect to the Plan or this Agreement.
18. Captions. Captions provided herein are for convenience only
and are not to serve as a basis for interpretation or construction of this
Agreement.
19. Agreement Severable. In the event that any provision in this
Agreement will be held invalid or unenforceable, such provision will be
severable from, and such invalidity or unenforceability will not be construed to
have any effect on, the remaining provisions of this Agreement.
20. Modifications to the Agreement. This Agreement constitutes
the entire understanding of the parties on the subjects covered. The Employee
expressly warrants that he or she is not accepting this Agreement in reliance on
any promises, representations, or inducements other than those contained herein.
Modifications to this Agreement or the Plan can be made only in an express
written contract executed by a duly authorized officer of the Company.
21. Amendment, Suspension or Termination of the Plan. By
accepting this award, the Employee expressly warrants that he or she has
received a Stock Purchase Right under the Plan, and has received, read and
understood a description of the Plan. The Employee understands that the Plan is
discretionary in nature and may be modified, suspended or terminated by the
Company at any time.
22. Notice of Governing Law. This option shall be governed by,
and construed in accordance with, the laws of the State of California without
regard to principles of conflict of laws.
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