PERFICIENT, INC. AMENDED AND RESTATED 1999 STOCK OPTION/STOCK ISSUANCE PLAN RESTRICTED STOCK AWARD AGREEMENT
EXHIBIT
A
EXHIBIT
10.4
PERFICIENT,
INC.
AMENDED
AND RESTATED 1999 STOCK OPTION/STOCK ISSUANCE PLAN
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To:
[NAME]
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Date
of ▇▇▇▇▇: [DATE]
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Number
of Shares:[SHARES]
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PERFICIENT,
INC., a Delaware corporation, (the “Corporation”),
is
pleased to grant you (the “Award”)
the
aggregate number of Restricted Shares of the Corporation’s authorized Common
Stock, par value $0.001 per share, listed above, subject to the terms and
conditions set forth in this Restricted Stock Award Agreement (this
“Agreement”).
This
Award is granted pursuant to the Perficient, Inc. Amended and Restated 1999
Stock Option/Stock Issuance Plan, which was adopted effective May 3, 1999,
a
copy of which has been furnished to you and shall be deemed a part of this
Agreement as if fully set forth herein. If any provision of this Agreement
conflicts with the expressly applicable terms of the Plan, the provisions of
the
Plan shall control and, if necessary, the applicable provisions of the Agreement
shall be deemed to be amended to comply with the terms of the Plan. The Date
of
Grant of the Award and the number of Restricted Shares subject to this Award
are
stated above. Terms capitalized but not defined herein shall have the meaning
set forth in the Plan.
This
Agreement sets forth the terms of the agreement between you and the Corporation
with respect to the Restricted Shares. By accepting this Agreement, you agree
to
be bound by all of the terms hereof.
1. Definitions.
As used
in this Agreement, the following terms have the meanings yet forth
below:
(a) “Agreement”
means
this Restricted Stock Award Agreement.
(b) “Award”
has
the
meaning set forth in the first paragraph of this Agreement.
(c) “Board
of Directors”
means
the board of directors of the Corporation.
(d) “Business
Day”
means
any day other than a Saturday, a Sunday or a day on which banking institutions
in the State of Texas are authorized or obligated by law or executive order
to
close.
(e) “Committee”
means
the Compensation Committee of the Board of Directors.
(f) “Common
Stock”
means
the authorized common stock, par value $.001 per share, as described in the
Corporation’s Certificate of Incorporation.
(g) “Corporate
Transaction”
means
either
of
the following stockholder-approved transactions to which the Corporation is
a
party:
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(i) a
merger
or consolidation in which securities possessing more than fifty percent (50%)
of
the total combined voting power of the Corporation’s outstanding securities are
transferred to a person or persons different from the persons holding those
securities immediately prior to such transaction, or
(ii) the
sale,
transfer or other disposition of all or substantially all of the Corporation’s
assets in complete liquidation or dissolution of the Corporation.
(h) “Corporation”
means
Perficient, Inc., a Delaware corporation.
(i) “Date
of Grant”
means
the date designated as such in the first paragraph of this
Agreement.
(j) “Employee”
means
an individual who is in the employ of the Corporation (or any Parent or
Subsidiary), subject to the control and direction of the employer entity as
to
both the work to be performed and the manner and method of
performance.
(k) “Exchange
Act”
means
the Securities Exchange Act of 1934.
(l) “Fair
Market Value”
per
share of Common Stock on any relevant date shall be determined in accordance
with the following provisions:
(i) If
the
Common Stock is at the time traded on the Nasdaq National Market, then the
Fair
Market Value shall be the closing selling price per share of Common Stock on
the
date in question, as the price is reported by the National Association of
Securities Dealers on the Nasdaq National Market. If there is no closing selling
price for the Common Stock on the date in question, then the Fair Market Value
shall be the closing selling price on the last preceding date for which such
quotation exists;
(ii) If
the
Common Stock is at the time listed on any Stock Exchange, then the Fair Market
Value shall be the closing selling price per share of Common Stock on the date
in question on the Stock Exchange determined by the Board to be the primary
market for the Common Stock, as such price is officially quoted in the composite
tape of transactions on such exchange. If there is no closing selling price
for
the Common Stock on the date in question, then the Fair Market Value shall
be
the closing selling price on the last preceding date for which such quotation
exists; or
(iii) If
shares
of Common Stock are not traded on the Nasdaq National Market as provided in
subparagraph (i) or listed on any Stock Exchange as provided in subparagraph
(ii) as of the date of determining Fair Market Value, then the Fair Market
Value
shall be determined in good faith by the Plan Administrator which determination
shall be conclusive for all purposes.
(m) “Involuntary
Termination”
means
the termination of your Service which occurs by reason of:
(i) Your
involuntary dismissal or discharge by the Corporation for reasons other than
Misconduct, or
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(ii) Your
voluntary resignation following (A) a change in your position with the
Corporation (or the Parent or the Subsidiary employing you) which materially
reduces your duties and responsibilities or the level of management to which
you
report, (B) a reduction in your level of compensation (including base salary,
fringe benefits and target bonus under any corporate performance-based bonus
or
incentive programs) by more than fifteen percent (15%) or (C) a relocation
of
your place of employment by more than fifty (50) miles, provided and only if
such change, reduction or relocation is effected without your
consent.
(n) “Misconduct”
means
the
commission of any act of fraud,
embezzlement or dishonesty by you, any unauthorized
use or disclosure by you of confidential information or trade
secrets of the Corporation (or any Parent or Subsidiary), or any intentional
wrongdoing by you, whether by omission or commission, which adversely
affects the business or affairs of the Corporation (or any Parent or
Subsidiary)
in a material manner. This shall not limit the grounds for the dismissal
or discharge of any person in the Service of the Corporation (or any
Parent
or
Subsidiary).
(o) “Nasdaq”
means
the National Association of Securities Dealers, Inc. Automated Quotations,
Inc.
(p) “Stock”
means
Common Stock, or any other securities that are substituted for Stock as provided
in Paragraph 7.
(q) “Parent”
means
any corporation (other than the Corporation) in an unbroken chain of
corporations ending with the Corporation, provided each corporation in the
unbroken chain (other than the Corporation) owns, at the time of the
determination, stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
(r) “Restricted
Shares”
means
the shares of Stock subject to the restrictions specified in Paragraph 4 of
this
Agreement.
(s) “Service”
means
your performance of services for the Corporation (or any Parent or Subsidiary)
in the capacity of an Employee, a non-employee member of the board of directors
or a consultant or independent advisor. With respect to the Restricted Shares,
the Committee may, in its sole discretion, determine that if you are on leave
of
absence for any reason you will be considered to still be in Service to the
Corporation.
(t) “Subsidiary”
means
any corporation (other than the Corporation) in an unbroken chain of
corporations beginning with the Corporation, provided each corporation (other
than the last corporation) in the unbroken chain owns, at the time of the
determination, stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
2. Escrow
of Restricted Shares.
The
Corporation shall issue in your name a certificate or certificates representing
the Restricted Shares and retain that certificate or those certificates until
the restrictions on such Restricted Shares expire as described in Paragraph
5 of
this Agreement or the Restricted Shares are forfeited as contemplated in
Paragraph 4 of this Agreement. You shall execute one or more stock powers in
blank for those certificates and deliver those stock powers to the Corporation.
You hereby agree that the Corporation shall hold the certificate or certificates
representing the Restricted Shares and the related stock powers pursuant to
the
terms of this Agreement until such time as such certificate or certificates
are
either delivered to you or canceled pursuant to this Agreement.
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3. Ownership
of Restricted Shares.
From
and after the time that a certificate or certificates representing the
Restricted Shares has been issued in your name, you will be entitled to all
the
rights of absolute ownership of the Restricted Shares, including the right
to
vote those shares and to receive dividends thereon if, as, and when declared
by
the Board of Directors, subject, however, to the terms, conditions and
restrictions set forth in this Agreement.
4. Restrictions;
Forfeiture.
The
Restricted Shares are restricted in that they may not be sold, transferred
or
otherwise alienated or hypothecated until such restrictions are removed or
expire as described in Paragraph 5 of this Agreement. The Restricted Shares
are
also restricted in the sense that they may be forfeited to the Corporation.
You
hereby agree that if the Restricted Shares are forfeited as provided in
Paragraph 6, the Corporation shall have the right to deliver the certificate(s)
representing the Restricted Shares, along with the stock power(s) described
in
Paragraph 2 of this Agreement, to the Corporation’s transfer agent for
cancellation or, at the Corporation’s election, for transfer to the Corporation
to be held by the Corporation in treasury or any designee of the
Corporation.
5. Expiration
of Restrictions and Risk of Forfeiture.
The
restrictions on all of the Restricted Shares granted pursuant to this Agreement
will expire and become transferable and nonforfeitable according to the schedule
set forth in this Paragraph 5; provided, however, that such restrictions will
expire on such dates only if you have been performing Service continuously
since
the Date of Grant through the applicable vesting date.
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On
or After Each of the Following
Vesting
Dates
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Cumulative
Percentage of Shares as to
Which
the Restricted Shares are
Transferable
and Nonforfeitable
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[DATE]
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[NUMBER]%
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[DATE]
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[NUMBER]%
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[DATE]
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[NUMBER]%
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[DATE]
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[NUMBER]%
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[DATE]
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[NUMBER]%
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6. Termination
of Service.
(a) Intentionally
Left Blank
(b) Other
Termination.
If your
Service is terminated for any reason, including your death or disability, then
that portion, if any, of this Award for which restrictions have not lapsed
as of
the date of termination shall become null and void; provided, however, that
the
portion, if any, of this Award for which restrictions have expired as of the
date of such termination shall survive such termination.
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7. Adjustment
Provisions.
Adjustment
of Award.
The
terms of the Award and the number of Restricted Shares granted hereunder shall
be subject to adjustment, from time to time, in accordance with the following
provisions:
(a) If
at any
time or from time to time, the Corporation shall subdivide as a whole (by
reclassification, by a Stock split, by the issuance of a distribution on Stock
payable in Stock, or otherwise) the number of shares of Stock then outstanding
into a greater number of shares of Stock, then the number of Restricted Shares
granted under the Award shall be increased proportionately.
(b) If
at any
time or from time to time the Corporation shall consolidate as a whole (by
reclassification, reverse Stock split, or otherwise) the number of shares of
Stock then outstanding into a lesser number of shares of Stock, the number
of
Restricted Shares granted under the Award shall be decreased
proportionately.
(c) Whenever
the number of Restricted Shares subject to the Award is required to be adjusted
as provided in this Paragraph 7 the Corporation shall, within thirty (30) days
following such adjustment, prepare and give to you a notice setting forth,
in
reasonable detail, the event requiring adjustment, the amount of the adjustment,
the method by which such adjustment was calculated, and the change in the number
of Restricted Shares subject to the Award after giving effect to the
adjustment.
(d) Adjustments
under Paragraphs 7(a) and (b) shall be made by the Committee, and its
determination as to what adjustments shall be made and the extent thereof shall
be final, binding and conclusive. No fractional interest shall be issued on
account of any such adjustments.
8. Delivery
of Certificates of Stock.
Promptly following the expiration of the restrictions on the Restricted Shares
as contemplated in Paragraph 5 of this Agreement, and subject to Paragraph
9,
the Corporation shall cause to be issued and delivered to you or your designee
a
certificate representing the number of Restricted Shares as to which
restrictions have lapsed, free of any restrictive legend relating to the lapsed
restrictions, upon receipt by the Corporation of any tax withholding as may
be
requested. The value of such Restricted Shares shall not bear any interest
owing
to the passage of time.
9. Conditions
to Delivery of Stock.
Nothing
herein shall require the Corporation to issue any shares with respect to the
Award if that issuance would, in the opinion of counsel for the Corporation,
constitute a violation of the Securities Act of 1933 or any similar or
superseding statute or statutes, any other applicable statute or regulation,
or
the rules of any applicable securities exchange or securities association,
as
then in effect.
10. Securities
Act Legend.
Certificates for shares of Stock, when issued, may have the following legend,
or
statements of other applicable restrictions endorsed thereon and may not be
immediately transferable:
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THE
SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS. THE SHARES MAY NOT
BE
OFFERED FOR SALE, SOLD, PLEDGED, TRANSFERRED, OR OTHERWISE DISPOSED OF UNTIL
THE
HOLDER HEREOF PROVIDES EVIDENCE SATISFACTORY TO THE ISSUER (WHICH, IN THE
DISCRETION OF THE ISSUER, MAY INCLUDE AN OPINION OF COUNSEL SATISFACTORY TO
THE
ISSUER) THAT SUCH OFFER, SALE, PLEDGE, TRANSFER, OR OTHER DISPOSITION WILL
NOT
VIOLATE APPLICABLE FEDERAL OR STATE LAWS.
This
legend shall not be required for shares of Stock issued pursuant to an effective
registration statement under the Securities Act of 1933.
11. Legend
Regarding Restrictions on Transfer.
Each
certificate representing shares issued to you pursuant to this Agreement shall
bear the following legend with respect to the restrictions on transferability
contained in this Agreement:
THE
SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS
ON
TRANSFERABILITY IMPOSED BY THAT CERTAIN RESTRICTED STOCK AWARD AGREEMENT BETWEEN
PERFICIENT, INC. (THE “CORPORATION”) AND __________________ DATED AS OF
_____________________, AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE ALIENATED
OR HYPOTHECATED EXCEPT AS THEREIN PROVIDED. THE CORPORATION WILL FURNISH A
COPY
OF SUCH AGREEMENT TO THE RECORD HOLDER OF THIS CERTIFICATE WITHOUT CHARGE ON
REQUEST TO THE CORPORATION AT ITS PRINCIPAL PLACE OF BUSINESS OR REGISTERED
OFFICE.
12. Rights
as a Stockholder.
You
shall have no right as a stockholder with respect to any Restricted Shares
until
a certificate representing those shares is issued in your name. No adjustment
shall be made for dividends (ordinary or extraordinary, whether in cash or
other
property) or distributions or other rights for which the record date is before
the date that certificate is issued, except as contemplated by Paragraph
7.
13. Furnish
Information.
You
agree to furnish to the Corporation all information requested by the Corporation
to enable it to comply with any reporting or other requirement imposed upon
the
Corporation by or under any applicable statute or regulation.
14. Remedies.
The
Corporation shall be entitled to recover from you reasonable attorneys’ fees
incurred in connection with the enforcement of the terms and provisions of
this
Agreement whether by an action to enforce specific-performance or for damages
for its breach or otherwise.
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15. Information
Confidential.
As
partial consideration for the granting of the Award hereunder, you hereby agree
with the Corporation that you will keep confidential all information and
knowledge that you have relating to the terms and conditions of this Agreement;
provided, however, that such information may be disclosed as required by law
and
may be given in confidence to your spouse, tax and financial advisors, or to
a
financial institution to the extent that such information is necessary to secure
a loan. In the event any breach of this promise comes to the attention of the
Corporation, it shall take into consideration that breach in determining whether
to recommend the grant of any future similar award to you, as a factor
militating against the advisability of granting any such future award to
you.
16. Consideration.
No
restriction on the Restricted Shares shall lapse unless and until you have
performed services for the Corporation or any of its Subsidiaries that the
Corporation believes is equal to or greater in value than the par value of
the
Stock subject to this Award.
17. Payment
of Taxes.
The
Corporation may from time to time, in its discretion, require you to pay to
the
Corporation (or a Subsidiary or Parent if you are an employee of a Subsidiary
or
Parent), the amount that the Corporation deems necessary to satisfy the
Corporation’s or its Parent’s or its Subsidiary’s current or future obligation
to withhold federal, state or local income or other taxes that you incur as
a
result of the Award. With respect to any required tax withholding, you may
a)
direct
the Corporation to withhold from the shares of Stock to be issued to you the
number of shares necessary to satisfy the Corporation’s obligation to withhold
taxes, that determination to be based on the shares’ Fair Market Value at the
time as of which such determination is made; b)
deliver
to the Corporation sufficient shares of Stock to satisfy the Corporation’s tax
withholding obligations, based on the shares’ Fair Market Value at the time as
of which such determination is made; or c)
deliver
sufficient cash to the Corporation to satisfy its tax withholding obligations.
If you elect to use such a stock withholding feature, you must make the election
at the time and in the manner that the Corporation prescribes. The Corporation
may, at its sole option, deny your request to satisfy withholding obligations
through Stock instead of cash. In the event the Corporation subsequently
determines that the aggregate Fair Market Value (as determined above) of any
shares of Stock withheld as payment of any tax withholding obligation is
insufficient to discharge that tax withholding obligation, then you shall pay
to
the Corporation, immediately upon the Corporation’s request, the amount of that
deficiency.
18. Right
of the Corporation, Parent and Subsidiary to Terminate
Service.
Nothing
contained in this Agreement shall confer upon you the right to continue in
Service with the Corporation or any Parent or any Subsidiary, or interfere
in
any way with the rights of the Corporation or any Parent or any Subsidiary
to
terminate your Service at any time.
19. No
Liability for Good Faith Determinations.
The
Corporation and the members of the Board of Directors shall not be liable for
any act, omission or determination taken or made in good faith with respect
to
this Agreement or the Restricted Shares granted hereunder.
20. Amendment.
The
Option may be amended by the Board or by the Committee at any time d)
if the
Board or the Committee determines, in its sole discretion, that amendment is
necessary or advisable in light of any addition to or change in any federal
or
state, tax or securities law or other law or regulation, which change occurs
after the Date of Grant and by its terms applies to the Option; or e)
other
than in the circumstances described in clause (a) or provided in the Plan,
with
your consent.
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21. Execution
of Receipts and Releases.
Any
payment of cash or any issuance or transfer of shares of Stock or other property
to you, or to your legal representative, heir, legatee or distributee, in
accordance with the provisions hereof, shall, to the extent thereof, be in
full
satisfaction of all claims of such persons hereunder. The Corporation may
require you or your legal representative, heir, legatee or distributee, as
a
condition precedent to such payment or issuance, to execute a release and
receipt therefor in such form as it shall determine.
22. No
Guarantee of Interests.
The
Board of Directors and the Corporation do not guarantee the Stock of the
Corporation from loss or depreciation.
23. Corporation
Records.
Records
of the Corporation or its Subsidiaries regarding your period of Service,
termination of Service and the reason therefor, leaves of absence,
re-employment, and other matters shall be conclusive for all purposes hereunder,
unless determined by the Corporation to be incorrect.
24. Corporation
Action.
Any
action required of the Corporation shall be by resolution of its Board of
Directors or by a person authorized to act by resolution of the Board of
Directors.
25. Severability.
If any
provision of this Agreement is held to be illegal or invalid for any reason,
the
illegality or invalidity shall not affect the remaining provisions hereof,
but
such provision shall be fully severable and this Agreement shall be construed
and enforced as if the illegal or invalid provision had never been included
herein.
26. Notices.
Whenever any notice is required or permitted hereunder, such notice must be
in
writing and personally delivered or sent by mail. Any such notice required
or
permitted to be delivered hereunder shall be deemed to be delivered on the
date
on which it is personally delivered, or, whether actually received or not,
on
the third Business Day after it is deposited in the United States mail,
certified or registered, postage prepaid, addressed to the person who is to
receive it at the address which such person has theretofore specified by written
notice delivered in accordance herewith.
The
Corporation and you agree that any notices shall be given to the Corporation
or
to you at the following address; provided that the Corporation or you may
change, at any time and from time to time, by written notice to the other,
the
address which it or he had previously specified for receiving
notices.
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Corporation
or Board of
Directors:
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Holder:
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At
your current address as shown in the
Corporation’s
records
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27. Waiver
of Notice.
Any
person entitled to notice hereunder may waive such notice.
28. Successors.
This
Agreement shall be binding upon you, your legal representatives, heirs, legatees
and distributees, and upon the Corporation, its successors and
assigns.
29. Headings.
The
titles and headings of Paragraphs are included for convenience of reference
only
and are not to be considered in construction of the provisions hereof.
30. Governing
Law.
All
questions arising with respect to the provisions of this Agreement shall be
determined by application of the laws of the State of Texas except to the extent
Texas law is preempted by federal law. The obligation of the Corporation to
sell
and deliver Stock hereunder is subject to applicable laws and to the approval
of
any governmental authority required in connection with the authorization,
issuance, sale, or delivery of such Stock.
31. Word
Usage.
Words
used in the masculine shall apply to the feminine where applicable, and wherever
the context of this Agreement dictates, the plural shall be read as the singular
and the singular as the plural.
[THE
REMAINDER OF THIS PAGE HAS BEEN LEFT INTENTIONALLY BLANK]
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IN
WITNESS WHEREOF,
the
Corporation has caused this Agreement to be executed by its duly authorized
officer as of the Date of Grant first above written.
| PERFICIENT, INC. | ||
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[NAME] |
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| [TITLE] | ||
| ACKNOWLEDGED AND AGREED: | |||
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| [NAME] |
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