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Exhibit 10.19
INSIGHTFUL CORPORATION AMENDED AND RESTATED
2001 STOCK OPTION AND INCENTIVE PLAN
RESTRICTED STOCK AGREEMENT
Unless otherwise defined herein, the terms defined in the
Insightful Corporation Amended and Restated 2001 Stock Option and
Incentive Plan (the "Plan") will have the same defined meanings in
this Restricted Stock Agreement (the "Agreement").
Name: [insert name] (the "Employee")
You have been granted the right to receive an award of
Restricted Stock under the Plan. Subject to the provisions of
Appendix A (attached hereto) and of the Plan, the principal
features of this award are as follows:
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Award Number
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______
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Date of Award
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______
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Vesting Commencement Date
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______
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Number of Shares of Restricted Stock
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______
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Purchase Price per Share
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$
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0.001
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Scheduled Vesting/Period of Restriction
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One-fourth (1/4 th ) of the Shares will vest one (1) year after the
Vesting Commencement Date (i.e., the first annual anniversary of
the Vesting Commencement Date), and an additional one-fourth
(1/4 th ) of the Shares will vest on each of the next three
(3) annual anniversaries of the Vesting Commencement Date, so
that 100% of the Shares will be vested four (4) years from the
Vesting Commencement Date, subject to the last sentence in this
paragraph. If a Change of Control occurs while the Employee is a
Service Provider, then the preceding sentence will be deemed
replaced by the following (which shall be applied both
retroactively and prospectively): One-thirty-sixth (1/36
th ) of the
Shares will vest each month after the Vesting Commencement Date on
the same day of the month as the Vesting Commencement Date, so that
100% of the Shares will be vested three (3) years from the
Vesting Commencement Date, subject to the last sentence in this
paragraph. The additional Shares that vest as a result of the
preceding sentence and are attributable to the period prior to the
date of the Change of Control shall be considered to have vested as
of the date of the Change of Control and shall be released by the
Escrow Agent (in accordance with paragraph 2 of Appendix A )
as soon as administratively practicable following such date. Except
as otherwise provided in Appendix A , the Employee will not
vest in any Shares unless he or she remains a Service Provider
through the applicable vesting date.
For purposes of this Agreement:
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a.
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"Committee" means the Compensation
Committee consisting of the board of directors (the "Board") of
TIBCO Software Inc. ("TIBCO") or a subcommittee thereof or such
other committee as may be designated by the Board to administer the
Plan.
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b.
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"Fair Market Value" means the
closing per share selling price for Shares for the date of grant on
the principal securities exchange on which the Shares are traded
or, if there is no such sale on the relevant date, then on the last
previous day on which a sale was reported. If the Shares are not
listed for trading on a national securities exchange, the fair
market value of Shares shall be determined in good faith by the
Committee. Notwithstanding the preceding, for federal, state, and
local income tax reporting purposes, fair market value shall be
determined by TIBCO in accordance with uniform and
nondiscriminatory standards adopted by it from time to
time.
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c.
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"Service Provider" means an Employee
or Consultant.
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d.
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"Shares" means the common stock, par
value $0.001 per share, of TIBCO.
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e.
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"Tax Obligations" means income tax
and social insurance contribution, payroll tax, payment on account,
or other tax-related withholding obligations and requirements in
connection with the Awards, including, without limitation,
(a) all federal, national, state, foreign and local taxes
(including the Participant’s FICA obligation) that are
required to be withheld by TIBCO or the employing employer or
Subsidiary, (b) the Participant’s and, to the extent
required by TIBCO (or the employing employer or Subsidiary),
TIBCO’s (or the employing employer or Subsidiary) fringe
benefit tax liability if any, associated with the grant, vesting,
exercise or sale of Shares, and (c) any other TIBCO (or the
employing employer or Subsidiary) taxes the responsibility for
which the Participant has agreed to bear with respect to such Award
(including the exercise thereof or issuance of Shares
thereunder).
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Your signature below indicates your
acknowledgement of the purchase of the Shares covered by this
Agreement and your understanding that this award 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 award is contained in
paragraphs 3 through 5 of Appendix A . PLEASE BE SURE TO
READ ALL OF APPENDIX A , WHICH CONTAINS THE SPECIFIC TERMS
AND CONDITIONS OF THIS AGREEMENT.
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EMPLOYEE:
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Signature
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Print Name
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APPENDIX A
TERMS AND CONDITIONS OF RESTRICTED STOCK
AWARD
1. Award . TIBCO Software Inc. ("TIBCO") hereby grants to
the Employee under the Plan an award of Shares for $0.001 per
Share, commencing on the Date of Award, subject to all of the terms
and conditions in this Agreement and the Plan. By accepting this
award of Restricted Stock, the par value purchase price for each
Share of Restricted Stock (a) will be deemed paid by the
Employee by past services rendered by the Employee, if the Employee
is an existing employee of TIBCO or one of its Subsidiaries, or
(b) shall be paid to TIBCO by cash or check by the Employee,
if the Employee is a newly-hired employee of TIBCO or one of its
Subsidiaries. Only whole shares shall be issued.
2. Shares Held in Escrow . Unless and until the Shares
will have vested in the manner set forth in paragraphs 3 through 5,
such Shares will be issued in the name of the Employee and held by
the Shareholder Services Department of TIBCO (or its designee) as
escrow agent (the "Escrow Agent"), and will not be sold,
transferred or otherwise disposed of, and will not be pledged or
otherwise hypothecated. TIBCO may determine to issue the Shares in
book entry form and/or may instruct the transfer agent for its
Shares 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 will 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 . Except as
provided in paragraph 4, and subject to paragraph 5, the Shares
awarded by this Agreement shall vest in accordance with the vesting
provisions set forth on the first page of this Agreement. Shares
shall not vest in the Employee in accordance with any of the
provisions of this Agreement unless the Employee remains a Service
Provider through the date(s) vesting otherwise is scheduled to
occur.
4. Committee Discretion . The Committee, in its
discretion, may accelerate the vesting of the balance, or some
lesser portion of the balance, of the unvested Shares 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
Committee.
5. Forfeiture . Notwithstanding any contrary provision of
this Agreement, the balance of the Shares that have not vested at
the time of Employee ceases to be a Service Provider will be
forfeited and automatically transferred to and reacquired by TIBCO
at no cost to TIBCO upon the date the Employee ceases to be a
Service Provider. The Employee shall not be entitled to a refund of
the price paid for the Shares returned to TIBCO 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 forfeited Shares to TIBCO.
6. Withholding of Taxes . TIBCO or the
Employee’s employer (the "Employer") will withhold a portion
of the Shares that have an aggregate market value sufficient to pay
all Tax Obligations required to be withheld by TIBCO or the
Employer with respect to the Shares, unless the Committee, in its
sole discretion, requires or permits the Employee to make alternate
arrangements satisfactory to TIBCO or the Employer for such
withholdings in advance of the arising of any withholding
obligations. The Committee, in its sole discretion and pursuant to
such procedures as it may specify from time to time, may permit the
Employee to satisfy his or her Tax Obligations, in whole or in part
by one or more of the following (without limitation):
(a) paying cash, (b) electing to have TIBCO or the
Employer withhold otherwise deliverable Shares having a Fair Market
Value equal to the minimum statutory amount required to be
withheld, or (c) selling a sufficient number of such Shares
otherwise deliverable to Employee through such means as TIBCO or
the Employer may determine in its sole discretion (whether through
a broker or otherwise) equal to the amount required to be withheld.
Notwithstanding any contrary provision of this Agreement, no
Restricted Stock will be granted unless and until satisfactory
arrangements (as determined by TIBCO or the Employer) will have
been made by the Employee with respect to the payment of any income
and other taxes which TIBCO or the Employer determin
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