EXHIBIT 10.1
UNICA CORPORATION
Restricted Stock Unit Agreement
Granted Under 2005 Stock Incentive Plan
1. Grant of Award.
This Agreement evidences the grant by Unica Corporation, a Delaware
corporation (the "Company") on ___________, 200_ (the "Grant Date") to
____________ (the "Participant") of ________ restricted stock units of the
Company (individually, an "RSU" and collectively, the "RSUs"), subject to the
terms and conditions set forth in this Agreement and in the Company's 2005 Stock
Incentive Plan (the "Plan"). Each RSU represents the right to receive one share
of the common stock, $0.01 par value per share, of the Company ("Common Stock")
as provided in this Agreement. The shares of Common Stock that are issuable upon
vesting of the RSUs are referred to in this Agreement as "Shares."
2. Vesting; Forfeiture.
(a) This award shall vest as to 25% of the original number of RSUs
on December 1, 2006 and thereafter, as to 25% on December 1, 2007, 25% on
December 1, 2008 and 25% on December 1, 2009.
(b) For purposes of this Agreement, employment with the Company
shall include employment with a parent or subsidiary of the Company.
(c) If the Participant, prior to the final vesting date, violates
the non-competition, non-solicitation, assignment of inventions or
confidentiality provisions of any employment contract, assignment of inventions,
confidentiality and nondisclosure agreement or other agreement between the
Participant and the Company, upon written notice to the Participant from the
Company describing such violation, the Participant, in the sole discretion of
the Company, will return or (if not received) forfeit, to the Company, the
economic value of any award which is realized or obtained (measured at the date
of exercise, vesting, or payment) by such Participant during such period as
determined by the Company. The Company shall be entitled to set-off against the
amount of any such gain any amount owed by the Participant to the Company.
3. Distribution of Shares.
(a) The Company will distribute to the Participant (or to the
Participant's estate in the event that his or her death occurs after a vesting
date but before distribution of the corresponding Shares), as soon as
administratively practicable after each vesting date (each such date of
distribution is hereinafter referred to as a "Settlement Date"), the Shares of
Common Stock represented by RSUs that vested on such vesting date.
(b) The Company shall not be obligated to issue to the Participant
the Shares upon the vesting of any RSU (or otherwise) unless the issuance and
delivery of such Shares shall comply with all relevant provisions of law and
other legal requirements including, without
limitation, any applicable federal or state securities laws and the requirements
of any stock exchange upon which shares of Common Stock may then be listed.
4. Restrictions on Transfer.
The Participant shall not sell, assign, transfer, pledge, hypothecate or
otherwise dispose of, by operation of law or otherwise (collectively "transfer")
any RSUs, or any interest therein, except by will, trust, or the laws of descent
and distribution.
5. Dividend and Other Shareholder Rights.
Except as set forth in the Plan, neither the Participant nor any person
claiming under or through the Participant shall be, or have any rights or
privileges of, a stockholder of the Company in respect of the Shares issuable
pursuant to the RSUs granted hereunder until the Shares have been delivered to
the Participant.
6. Provisions of the Plan; Reorganization Event.
(a) This Agreement is subject to the provisions of the Plan, a copy
of which is furnished to the Participant with this Agreement.
(b) Upon the occurrence of a Reorganization Event and/or a Change in
Control (as defined in the Plan), each RSU shall be subject to the vesting as
defined in the Plan and shall thereafter become the right to receive the cash,
securities or other property that a Share was converted into or exchanged for
pursuant to such Reorganization Event. If, in connection with a Reorganization
Event, a portion of the cash, securities and/or other property received upon the
conversion or exchange of the Shares is to be placed into escrow to secure
indemnification or similar obligations, the mix between the vested and unvested
portion of such cash, securities and/or other property that is placed into
escrow shall be the same as the mix between the vested and unvested portion of
such cash, securities and/or other property that is not subject to escrow.
7. Withholding Taxes; Section 83(b) Election.
(a) At each vesting date the Company will withhold and deduct from
the Participant that number of RSUs which is required to pay the Participant's
withholding obligation as determined by the Company.
(b) The Participant acknowledges that no election under Section
83(b) of the Internal Revenue Code of 1986 may be filed with respect to this
award.
8. Miscellaneous.
(a) No Rights to Employment. The Participant acknowledges and agrees
that the vesting of the RSUs pursuant to Section 2 hereof is earned only by
continuing service as an employee at the will of the Company (not through the
act of being hired or purchasing shares hereunder). The Participant further
acknowledges and agrees that the transactions contemplated hereunder and the
vesting schedule set forth herein do not constitute an express or implied
promise of continued engagement as an employee or consultant for the vesting
period, for any
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period, or at all.
(b) Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, and each other provision of this
Agreement shall be severable and enforceable to the extent permitted by law.
(c) Waiver. Any provision for the benefit of the Company contained
in this Agreement may be waived, either generally or in any particular instance,
by the Board of Directors of the Company.
(d) Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the Company and the Participant and their respective heirs,
executors, administrators, legal representatives, successors and assigns,
subject to the restrictions on transfer set forth in Section 4 of this
Agreement.
(e) Notice. All notices required or permitted hereunder shall be in
writing and deemed effectively given upon personal delivery or five days after
deposit in the United States Post Office, by registered or certified mail,
postage prepaid, addressed to the other party hereto at the address shown
beneath his or its respective signature to this Agreement, or at such other
address or addresses as either party shall designate to the other in accordance
with this Section 8(e).
(f) Pronouns. Whenever the context may require, any pronouns used in
this Agreement shall include the corresponding masculine, feminine or neuter
forms, and the singular form of nouns and pronouns shall include the plural, and
vice versa.
(g) Entire Agreement. This Agreement and the Plan constitute the
entire agreement between the parties, and supersedes all prior agreements and
understandings, relating to the subject matter of this Agreement.
(h) Amendment. This Agreement may be amended or modified only by a
written instrument executed by both the Company and the Participant.
(i) Governing Law. This Agreement shall be construed, interpreted
and enforced in accordance with the internal laws of the State of Delaware
without regard to any applicable conflicts of laws.
(j) Participant's Acknowledgments. The Participant acknowledges that
he or she: (i) has read this Agreement; (ii) has been represented in the
preparation, negotiation, and execution of this Agreement by legal counsel of
the Participant's own choice or has voluntarily declined to seek such counsel;
(iii) understands the terms and consequences of this Agreement; (iv) is fully
aware of the legal and binding effect of this Agreement; and (v) understands
that the law firm of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP is acting as
counsel to the Company in connection with the transactions contemplated by the
Agreement, and is not acting as counsel for the Participant.
(k) Unfunded Rights. The right of the Participant to receive Common
Stock
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pursuant to this Agreement is an unfunded and unsecured obligation of the
Company. The Participant shall have no rights under this Agreement other than
those of an unsecured general creditor of the Company.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
UNICA CORPORATION
By:___________________________
Name:
Title:
______________________________
[Name of Participant]
Address:
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