Director Restricted Stock
Agreement
This Director
Restricted Stock Agreement is made between Netezza Corporation (the
“Company”) and
(the “Recipient”) as of
(the “Grant Date”).
1. Grant
of Restricted Shares .
(a) In
consideration of the Recipient’s service as a director of the
Company, the Company is granting to the Recipient, as of the Grant
Date,
shares of restricted common stock of the Company (the
“Restricted Shares”). The number of Restricted Shares
being granted represents $60,000 divided by the closing price of
the common stock of the Company on NYSE Arca on the Grant Date. The
Restricted Shares are being granted pursuant to the provisions of
the Company’s 2007 Stock Incentive Plan (the
“Plan”) and are subject to the terms and conditions
contained in this Restricted Stock Agreement, including the
forfeiture provisions set forth in Section 3 of this
Agreement, the deferred delivery provisions set forth in
Section 4 of this Agreement, and the restrictions on transfer
set forth in Section 5 of this Agreement.
(b) As
promptly as practicable following the Grant Date, the Company shall
issue one or more certificates in the name of the Recipient for the
Restricted Shares. Such certificate(s) shall be held on behalf of
the Recipient by the Secretary of the Company until the Delivery
Date (as defined in Section 4 below). The Secretary shall hold
such certificate(s) in accordance with the terms of the Joint
Escrow Instructions in the form attached to this Agreement as
Exhibit A , which shall be executed by the Company, the
Recipient and the Secretary as escrow agent upon the execution of
this Agreement. In connection with the execution of the Joint
Escrow Instructions, the Recipient shall deliver to the escrow
agent a stock assignment duly endorsed in blank.
2.
Vesting . The Restricted Shares shall vest upon the earlier
of (a) the first anniversary of the Grant Date and
(b) immediately prior to an Acquisition (as defined below) of
the Company. For purposes of this Agreement, the term
“Acquisition” shall mean (i) any merger or
consolidation in which (A) the Company is a constituent party
or (B) a subsidiary of the Company is a constituent party and
the Company issues shares of its capital stock pursuant to such
merger or consolidation (except, in the case of both clauses
(A) and (B) above, any such merger or consolidation
involving the Company or a subsidiary in which the outstanding
capital stock of the Company immediately prior to such merger or
consolidation is converted into or continues to represent,
immediately following such merger or consolidation, at least 51% by
voting power of the capital stock of (I) the surviving or
resulting corporation or (II) if the surviving or resulting
corporation is a wholly owned subsidiary of another corporation
immediately following such merger or consolidation, of the parent
corporation of such surviving or resulting corporation) or
(ii) the sale or transfer, in a single transaction or series
of related transactions, of outstanding capital stock representing
at least 51% of the voting power of the outstanding capital stock
of the Company immediately following such transaction or
(iii) the sale of all or substantially all of the assets of
the Company; provided that such Acquisition event also
constitutes a “change in the ownership or effective control
of a corporation or a change in the ownership of a substantial
portion of the assets of a corporation,” as defined for
purposes of Section 409A of the Internal Revenue Code of 1986,
as amended, and the guidance issued thereunder
(“Section 409A”).
3.
Forfeiture of Unvested Restricted Shares Upon Termination of
Director Service . In the event that the Recipient ceases to
serve as a director of the Company for any reason or no reason
prior to the vesting of the Restricted Shares, the Restricted
Shares shall be forfeited immediately and automatically to the
Company, without the payment of any consideration to the Recipient,
effective as of such termination of director service. For purposes
of clarification, if the cessation of the Recipient’s service
as a director of the Company occurs in connection with the closing
of an Acquisition, the Restricted Shares shall be deemed to vest
immediately prior to such cessation of service and shall not be
forfeited. The Recipient hereby authorizes the Company to take any
actions necessary or appropriate to cancel any certificate(s)
representing forfeited Restricted Shares and transfer ownership of
such forfeited Restricted Shares to the Company. The Recipient
shall have no further rights with respect to any Restricted Shares
that are so forfeited.
4.
Distribution of Shares; Deferral of Delivery . The Secretary
shall deliver to the Recipient a certificate representing the
vested Restricted Shares upon the earlier of (a) such time as
the Recipient ceases to serve as a director of the Company provided
that such cessation constitutes a “separation from
service” as defined in Section 409A and (b) an
Acquisition of the Company (the first of such events, the
“Delivery Date”). Notwithstanding any provision of this
Agreement or the Plan to the contrary, (x) neither the Company
nor the Recipient may accelerate or defer the delivery of the
Restricted Shares and (y) in the event that the Recipient is a
“specified employee” within the meaning of
Section 409A upon his or her “separation from
service”, then the Delivery Date shall be delayed until the
date that is six months and one day after the separation from
service.
5.
Restrictions on Transfer . The Recipient shall not sell,
assign, transfer, pledge, hypothecate or otherwise dispose of, by
operation of law or otherwise (collectively “transfer”)
any Restricted Shares, or any interest therein, until the Delivery
Date. The Company shall not be required (i) to transfer on its
books any of the Restricted Shares which have been transferred in
violation of any of the provisions of this Agreement or
(ii) to treat as owner of such Restricted Shares or to pay
dividends to any transferee to whom such Restricted Shares have
been transferred in violation of any of the provisions of this
Agreement.
6.
Restrictive Legends . Prior to the Delivery Date, all
certificates representing Restricted Shares shall have affixed
thereto a legend in substantially the followi
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