Exhibit 10.2
NIC INC. 2006 AMENDED AND RESTATED
STOCK OPTION AND INCENTIVE PLAN
Performance-Based Restricted Stock
Agreement
The
Company seeks to provide a means by which the Company, through the
grant of the Shares to Grantee, may retain Grantee’s services
and motivate Grantee to exert his or her best efforts on behalf of
the Company and any Affiliate;
NOW, THEREFORE, in consideration of the
foregoing and for other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the parties
agree as follows:
1.
Grant of Performance-Based Restricted Stock . NIC Inc., a Colorado corporation
(the “Company”), hereby promises to grant to
(“Grantee”), as of
,
20 (the “Grant Date”)
shares of the Company’s no par value Common Stock (the
“Shares”), subject to the restrictions, terms,
conditions and other provisions of this Performance-Based
Restricted Stock Agreement (the “Agreement”) and of the
NIC Inc. 2006 Amended and Restated Stock Option and Incentive Plan
(the “Plan”), which restrictions, terms, conditions and
other provisions are incorporated herein by this reference.
Unless otherwise defined herein, the terms defined in the Plan
shall have the same defined meanings in this Agreement.
The
actual number of Shares, if any, (subject to any adjustment to the
number of Shares as provided in Section 3 hereof, and as will
be reflected by delivery of Share certificates or registered as
book entry shares with the Company’s transfer agent) that
will be delivered pursuant to this Agreement is dependent upon the
level of achievement of the performance goals set forth in
Exhibit A (the “Performance Goals”) during the
period from January 1, 2008 through December 31, 2010
(the “Performance Period”) and the compliance with all
terms and conditions set forth in this Agreement and the
Plan.
2.
Restrictions and Forfeiture
If Grantee’s
Continuous Status as an Employee, Director or Consultant terminates
for any reason other than death or disability (as disability is
defined in Internal Revenue Code Section 22(e)(3)) or
following a Control Change as provided for in Section 4(b),
Grantee shall forfeit all rights to receive any undelivered Shares
under this Agreement. Grantee’s right to receive an
undelivered Shares will also be forfeited if the Committee
determines that Grantee engaged in misconduct in connection with
his or her employment with NIC.
From the date of this Agreement and until a
Share is delivered to Grantee, Grantee shall have no rights to
sell, assign, exchange, transfer, pledge, hypothecate or otherwise
encumber any right he or she may have to receive such Share under
this Agreement.
3.
Acceleration of Payment of Shares on Death or Disability
.
If
Grantee’s Continuous Status as an Employee, Director or
Consultant terminates due to his or her death or disability,
Grantee shall receive a pro rata portion of the Shares eligible to
be
received under this Agreement. The pro
rata portion will be determined by calculating the product of
(a) the total number of Shares Grantee would have received if
his or her employment had not terminated and based on the ultimate
level of achievement toward the Performance Goals at the end of the
Performance Period multiplied by (b) a fraction, the numerator
of which is the number of full and partial months of employment
Grantee completed after the Grant Date and the denominator is
thirty-six (36). For the avoidance of doubt, unless otherwise
determined by the Committee in its sole discretion, in no event
will any Shares be paid on account of Grantee’s death or
disability if the Performance Goals are achieved at a level less
than Threshold.
4.
Terms and Conditions .
(a)
Adjustments in Event of Change in Common Stock .
If any change is made in the Shares, without the receipt of
consideration by the Company (through merger, consolidation,
reorganization, recapitalization, reincorporation, stock dividend,
dividend in property other than cash, stock split, liquidating
dividend, combination of shares, exchange of shares, change in
corporate structure or other transaction not involving the receipt
of consideration by the Company), the number of Shares eligible to
be paid pursuant to the terms and conditions of this Agreement
(including any Dividend Shares credited to Grantee’s account
in accordance with Section 4(c)) will be appropriately
adjusted in the class(es) and number of shares and price per share
of stock of those subject Shares in such manner as the Board may
deem equitable to prevent substantial dilution or enlargement of
the rights granted to Grantee; provided, however, that no such
adjustment shall cause the Company to issue a fractional
share. Such adjustments shall be final, binding and
conclusive. (The conversion of any convertible securities of
the Company shall not be treated as a transaction not involving the
receipt of consideration by the Company.)
(b)
Sale of the Company . In the event of a
dissolution, liquidation or sale of all or substantially all of the
assets of the Company, or a transaction following which the Company
is not the surviving corporation in any merger, consolidation, or
reorganization (a “Control Change”), then all or a
portion of the number of the Shares eligible to be delivered
pursuant to this Agreement shall be delivered in accordance with
the following:
(i)
If the Control Change occurs on or prior to the first anniversary
of the Grant Date and this Agreement is not assumed, converted, or
replaced by the continuing entity, Grantee shall be paid
immediately before the Control Change a number of Shares equal to
that number of Shares Grantee would have been paid if each of the
Performance Goals was achieved at the “Target”
level.
(ii)
If the Control Change occurs after the first anniversary of the
Grant Date and this Agreement is not assumed, converted, or
replaced by the continuing entity, Grantee shall be paid
immediately before the Control Change a number of Shares based on
the actual performance of the Company as if the Performance Period
ended on December 31 immediately preceding the date, on which
the Control Change occurs, with appropriate adjustments, if
necessary to reflect such shortened Performance Period.
2
(iii)
If the Control Change occurs on or before the first anniversary of
the Grant Date and this Agreement is assumed by the continuing
entity, Grantee shall be paid at the end of the Performance Period
the same number of Shares Grantee would have been paid if each of
the Performance Goals was achieved at the “Target”
level, subject to Grantee’s Continuous Status as an Employee,
Director or Consultant through the end of the Performance
Period.
(iv)
If the Control Change occurs after the first anniversary of the
Grant Date and this Agreement is assumed by the continuing entity,
Grantee shall be paid at the end of the Performance Period the same
number of Shares based on the actual performance of the Company as
if the Performance Period ended on December 31 immediately
preceding the date on which the Control Change occurs, subject to
Grantee’s Continuous Status as an Employee, Director or
Consultant through the end of the Performance Period with
appropriate adjustments, if necessary, to reflect such shortened
Performance Period.
Notwithstanding the provisions of clause
(iii) and (iv) to the contrary, if, during the remaining
portion of the applicable Performance Period for the applicable
award and following the Control Change, (A) Grantee’s
Continuous Status as an Employee, Director or Consultant is
terminated by the Company other than for cause or, (B) if
Grantee is a participant in an arrangement or covered by an
employment agreement that provides for certain rights upon
Grantee’s resignation with “good reason” and
Grantee resigns for such a “good reason”, then, to the
extent not then-vested, Grantee shall be paid upon his or her
termination of employment the number of Shares that would have been
paid under (iii) or (iv) as applicable.
If this Agreement is assumed in connection with a Control Change
transaction, then the Board shall equitably and proportionately
adjust the number of Shares and the kind of Shares or securities
covered by this Agreement immediately after such transaction solely
as necessary to preserve (but not increase) the level of incentives
intended by this Agreement.
This Agreement shall not in any way affect the right of the Company
to adjust, reclassify, reorganize or otherwise change its capital
or business structure or to merge, consolidate, dissolve,
liquidate, sell or transfer all or any part of its business or
assets.
(c)
Dividend
Shares . Provided this
Agreement has not otherwise been terminated or any of
Grantee’s rights to receive Shares have not been forfeited,
Grantee shall be entitled to receive dividend equivalent accruals
on the Shares for any cash dividends d
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