ex1069.htm


    Exhibit
10.69

     

    Chordiant
Software, Inc.

     

    Restricted Stock Unit Grant
Notice

     

    2005
Equity Incentive Plan

     

    Chordiant
Software, Inc. (the “Company”),
pursuant to its 2005 Equity Incentive Plan (the “Plan”),
hereby awards to Participant a Restricted Stock Unit Award for the number of shares of
the Company’s Common Stock set forth below (the “Award”).  The
Award is subject to all of the terms and conditions as set forth herein, in the
Plan and in the Restricted Stock Unit Agreement, both of which are attached
hereto and incorporated herein in their entirety.  Capitalized terms
not otherwise defined herein shall have the meanings set forth in the Plan or
the Restricted Stock Unit Agreement.  In the event of any conflict
between the terms set forth herein and the Plan, the terms of the Plan shall
control.

     

    
      
        	
                Participant:

              	 
      	 
      	 
      
	
                Date
      of Grant:

              	 
      	 
      	 
      
	
                Vesting
      Commencement Date:

              	 
      	 
      	 
      
	
                Number
      of Shares Subject to Award:

              	 
      	 
      	 
      
	
                Consideration

              	 
      	 
      	 
      
	 
      	
                Participant’s
      past services

              	 
      	 
      
	 	 	 	 
	
                Vesting
      Schedule:

              	
                [

              	 
      	
                ]

              	
                .

              


      

    

    Notwithstanding
the foregoing, vesting shall terminate upon the Participant’s termination of
Continuous Service.  In addition, subject to the Participant’s
Continuous Service through the time that is immediately prior to a Change in
Control, 100% of the shares subject to this Award will become fully vested as of
immediately prior to the Change in Control.

    


    
      	
              Issuance
      Schedule:

            	
              The
      shares will be issued in accordance with the issuance schedule set forth
      in Section 8 of the Restricted Stock Unit
  Agreement.

            


    

     

    Additional
Terms/Acknowledgements:  The undersigned Participant
acknowledges receipt of, and understands and agrees to, this Restricted Stock
Unit Grant Notice, the Restricted Stock Unit Agreement, the Plan and the Plan
prospectus.  Participant further acknowledges that as of the Date of
Grant, this Restricted Stock Unit Grant Notice, the Restricted Stock Unit
Agreement and the Plan set forth the entire understanding between Participant
and the Company with respect to the subject matter hereof and supersede in their
entirety all prior undertakings and agreements of the Company
and Participant with respect to the subject matter hereof.

     

    
      
        	
                Chordiant
      Software, Inc.

              	 
      	
                Participant:

              
	 
      	 
      	 
      	 
      
	
                By:

              	 
      	 
      	 
      
	 
      	
                Signature

              	 
      	
                Signature

              
	 	 	 	 
	
                Title:

              	 
      	 
      	
                Date:

              	 
      
	 
      	 
      	 
      	 
      	 
      
	
                Date:

              	 
      	 
      	 
      	 
      


      

    

    


    


    
      


    

    
      	
              Attachments:

            	
              Restricted
      Stock Unit Agreement, 2005 Equity Incentive
Plan

            


    


    
      
        
          
 

        

         


      

      
         


        
          

        

      

      
         


      

    


    Attachment
I

    


    Chordiant
Software, Inc.

    2005
Equity Incentive Plan

     

    Restricted
Stock Unit Agreement

     

    Pursuant
to the Restricted Stock Unit Grant Notice (the “Grant
Notice”) and this Restricted Stock Unit Agreement (the “Agreement”)
and in consideration of your services, Chordiant Software, Inc. (the “Company”)
has awarded you a Restricted Stock Unit Award (the “Award”)
under its 2005 Equity Incentive Plan (the “Plan”).
Your Award is granted to you effective as of the Date of Grant set forth in the
Grant Notice for this Award.  This Agreement shall be deemed to be
agreed to by the Company and you upon the signing by you of the Grant Notice to
which it is attached.  Defined terms not explicitly defined in this
Agreement shall have the same meanings given to them in the Plan.  In
the event of any conflict between the terms in this Agreement and the Plan, the
terms of the Plan shall control.  The details of your Award, in
addition to those set forth in the Grant Notice and the Plan, are as
follows.

     

    1. Grant of
the Award.    This Award represents the right to be
issued on a future date the number of shares of the Company’s Common Stock as
indicated in the Grant Notice.  As of the Date of Grant, the Company
will credit to a bookkeeping account maintained by the Company for your benefit
(the “Account”)
the number of shares of Common Stock subject to the Award.  This Award
was granted in consideration of your services to the Company.  Except
as otherwise provided herein, you will not be required to make any payment to
the Company (other than past and future services to the Company) with respect to
your receipt of the Award, the vesting of the shares or the delivery of the
underlying Common Stock.

     

    2. Vesting.  Subject to the
limitations contained herein, your Award will vest, if at all, in accordance
with the vesting schedule provided in the Grant Notice, provided that vesting
will cease upon the termination of your Continuous
Service.   Upon such termination of your Continuous Service, the
shares credited to the Account that were not vested on the date of such
termination will be forfeited at no cost to the Company and you will have no
further right, title or interest in or to such underlying shares of Common
Stock.

     

    3. Holding
Period.  You agree that you will not sell or otherwise transfer
(excluding transfers to certain family trusts as provided in Section 6
below) any of the shares of Common Stock issued under the Award until the
earlier of (1) the second anniversary of the vesting date of such shares, (2) a
Change in Control, or (3) the termination of your Continuous Service as a result
of death or Disability (such period, the “Holding
Period”).  Shares sold or withheld by the Company to cover
applicable tax withholdings will not be deemed a violation of the Holding
Period.  The shares of Common Stock issued pursuant to this Award
shall be endorsed with appropriate legends as determined by the Company and
subject to escrow (as provided in Section 7 below) in order to enforce the
provisions of this Section 3, and you will enter into such other arrangements as
determined reasonably necessary by the Company in order to enforce the
provisions of this Section 3.

     

    4. Number of
Shares.

     

    (a) The
number of shares subject to your Award may be adjusted from time to time for
Capitalization Adjustments, as provided in the Plan.

     

    (b) Any
shares, cash or other property that becomes subject to the Award pursuant to
this Section 4, if any, shall be subject, in a manner determined by the Board,
to the same forfeiture restrictions, restrictions on transferability, and time
and manner of delivery as applicable to the other shares covered by your
Award.

     

    (c) Notwithstanding
the provisions of this Section 4, no fractional shares or rights for fractional
shares of Common Stock shall be created pursuant to this Section
4.  The Board shall, in its discretion, determine an equivalent
benefit for any fractional shares or fractional shares that might be created by
the adjustments referred to in this Section 4.

     

    5. Securities
Law Compliance.  You may not be
issued any shares under your Award unless either (a) the shares are registered
under the Securities Act; or (b) the Company has determined that such issuance
would be exempt from the registration requirements of the Securities Act. Your
Award also must comply with other applicable laws and regulations governing the
Award, and you will not receive such shares if the Company determines that such
receipt would not be in material compliance with such laws and
regulations.

     

    6. Limitations
on Transfer.  Your Award and
any shares of Common Stock subject to the Holding Period are not transferable,
except by will or by the laws of descent and distribution.  In
addition to any other limitation on transfer created by applicable securities
laws, you agree not to assign, hypothecate, donate, encumber or otherwise
dispose of any interest in any of the shares of Common Stock subject to the
Award until the shares are released from escrow in accordance with
Section 7 of this Agreement.  After the shares have been released
to you, you are free to assign, hypothecate, donate, encumber or otherwise
dispose of any interest in such shares provided that any such actions are in
compliance with the provisions herein and applicable securities
laws.  Notwithstanding the foregoing, by delivering written notice to
the Company, in a form satisfactory to the Company, you may (a) designate a
third party who, in the event of your death, shall thereafter be entitled to
receive any distribution of Common Stock to which you were entitled at the time
of your death pursuant to this Agreement and/or (b) instruct the Company to
distribute shares of Common Stock to a spouse or former spouse pursuant to a
domestic relations order.  In addition, notwithstanding the foregoing,
you may transfer shares of Common Stock subject to the Holding Period to a trust
for the benefit of you or your “immediate family”, provided that each such
transferee agrees in a writing satisfactory to the Company that the provisions
of this Agreement (including but not limited to Section 3 and Section 7)
will continue to apply to the transferred shares in the hands of such
transferee, and provided further that following such transfer, you continue to
be deemed to be the “beneficial owner” of the shares for purposes of the
Exchange Act.  As used herein, the term “immediate family”
will mean your spouse, brother, sister, child, grandchild, adopted child,
adopted grandchild, or the spouse of your child, grandchild, adopted child, or
adopted grandchild.

     

    7. Escrow of
Shares Subject to Holding Period.  As security for your
faithful performance of the terms of this Agreement (including Section 3), you
agree to the following “Joint Escrow” and “Joint Escrow Instructions,” and you
and the Company hereby authorize and direct the Corporate Secretary of the
Company or the Corporate Secretary’s designee (“Escrow
Agent”) to hold the documents delivered to Escrow Agent pursuant to the
terms of this Agreement and of your Grant Notice, in accordance with the
following Joint Escrow Instructions:

     

    (a) At
any closing involving the transfer or delivery of some or all of the property
subject to the Grant Notice and this Agreement, Escrow Agent is directed
(i) to date any stock assignments necessary for the transfer in question,
(ii) to fill in the number of shares being transferred, and (iii) to
deliver the same, together with the certificate, if any, evidencing the shares
of Common Stock to be transferred, to you or the Company, as
applicable.

     

    (b) You
irrevocably authorize the Company to deposit with Escrow Agent the certificates,
if any, evidencing shares of Common Stock to be held by Escrow Agent hereunder
and any additions and substitutions to such shares as specified in this
Agreement.  You hereby irrevocably constitute and appoint Escrow Agent
as your attorney-in-fact and agent for the term of this escrow to execute with
respect to such securities and other property all documents of assignment and/or
transfer and all stock certificates necessary or appropriate to make all
securities negotiable and complete any transaction contemplated
herein.

     

    (c) This
escrow shall terminate upon the later of the expiration of the Holding Period,
and the completion of the tasks contemplated by these Joint Escrow
Instructions.

     

    (d) If
at the time of termination of this escrow, Escrow Agent should have in its
possession any documents, securities, or other property belonging to you, Escrow
Agent shall deliver all of same to you and shall be discharged of all further
obligations hereunder.

     

    (e) Except
as otherwise provided in these Joint Escrow Instructions, Escrow Agent’s duties
hereunder may be altered, amended, modified, or revoked only by a writing signed
by all of the parties hereto.

     

    (f) Escrow
Agent shall be obligated only for the performance of such duties as are
specifically set forth herein and may rely and shall be protected in relying or
refraining from acting on any instrument reasonably believed by Escrow Agent to
be genuine and to have been signed or presented by the proper party or parties
or their assignees.  Escrow Agent shall not be personally liable for
any act Escrow Agent may do or omit to do hereunder as Escrow Agent or as
attorney-in-fact for you while acting in good faith and any act done or omitted
by Escrow Agent pursuant to the advice of Escrow Agent’s own attorneys shall be
conclusive evidence of such good faith.

     

    (g) Escrow
Agent is hereby expressly authorized to disregard any and all warnings given by
any of the parties hereto or by any other person or corporation, excepting only
orders, judgments, decrees or process of courts of law, and is hereby expressly
authorized to comply with and obey orders, judgments, or decrees of any
court.  In case Escrow Agent obeys or complies with any such order,
judgment, or decree of any court, Escrow Agent shall not be liable to any of the
parties hereto or to any other person, firm, or corporation by reason of such
compliance, notwithstanding any such order, judgment, or decree being
subsequently reversed, modified, annulled, set aside, vacated, or found to have
been entered without jurisdiction.

     

    (h) Escrow
Agent shall not be liable in any respect on account of the identity, authority,
or rights of the parties executing or delivering or purporting to execute or
deliver this Agreement or any documents or papers deposited or called for
hereunder.

     

    (i) Escrow
Agent shall not be liable for the outlawing of any rights under any statute of
limitations with respect to these Joint Escrow Instructions or any documents
deposited with Escrow Agent.

     

    (j) Escrow
Agent’s responsibilities as Escrow Agent hereunder shall terminate if Escrow
Agent shall cease to be the Secretary of the Company, if applicable, or if
Escrow Agent shall resign by written notice to each party.  In the
event of any such termination, the Company may appoint any officer or assistant
officer of the Company or any other person as successor Escrow Agent and you
hereby confirm the appointment of such successor or successors as your
attorney-in-fact and agent to the full extent of such successor Escrow Agent’s
appointment.

     

    (k) If
Escrow Agent reasonably requires other or further instruments in connection with
these Joint Escrow Instructions or obligations in respect hereto, the necessary
parties hereto shall join in furnishing such instruments.

     

    (l) It
is understood and agreed that should any dispute arise with respect to the
delivery and/or ownership or right of possession of the securities, Escrow Agent
is authorized and directed to retain in its possession without liability to
anyone all or any part of such securities until such dispute shall have been
settled either by mutual written agreement of the parties concerned or by a
final order, decree, or judgment of a court of competent jurisdiction after the
time for appeal has expired and no appeal has been perfected, but Escrow Agent
shall be under no duty whatsoever to institute or defend any such
proceedings.

     

    (m) By
signing this Agreement below Escrow Agent becomes a party hereto only for the
purpose of the Joint Escrow Instructions in this Section 7; Escrow Agent does
not become a party to any other rights and obligations of this Agreement apart
from those in this Section 7.

     

    (n) Escrow
Agent shall be entitled to employ such legal counsel and other experts as Escrow
Agent may deem necessary to properly advise Escrow Agent in connection with
Escrow Agent’s obligations hereunder.  Escrow Agent may rely upon the
advice of such counsel, and may pay such counsel reasonable compensation
therefor.  The Company shall be responsible for all fees generated by
such legal counsel in connection with Escrow Agent’s obligations
hereunder.

     

    (o) These
Joint Escrow Instructions set forth in this Section 7 shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns.  It is understood and agreed that references to
“Escrow Agent” herein refer to the original Escrow Agent and to any and all
successor Escrow Agents.  It is understood and agreed that the Company
may at any time or from time to time assign its rights under the Agreement and
these Joint Escrow Instructions in whole or in part.

     

    8. Date
of Issuance.

     

    (a) The
Company will deliver to the Escrow Agent a number of shares of the Company’s
Common Stock equal to the number of vested shares subject to your Award,
including any additional shares received pursuant to Section 4 above that
relate to those vested shares on the applicable vesting
date(s).  However, if a scheduled delivery date falls on a date that
is not a business day, such delivery date shall instead fall on the next
following business day.

     

    (b) Notwithstanding
the foregoing, in the event that (i) you are subject to the Company’s policy (as
in effect from time to time) permitting officers and directors to sell shares
only during certain “window” periods or you are otherwise prohibited from
selling shares of the Company’s Common Stock in the public market under
applicable law and any shares covered by your Award are scheduled to be
delivered on a day (the “Original
Distribution Date”) that does not occur during an open “window period”
applicable to you, as determined by the Company in accordance with such policy,
or does not occur on a date when you are otherwise permitted under applicable
law to sell shares of the Company’s Common Stock on the open market, and (ii)
the Company elects not to satisfy its tax withholding obligations by withholding
shares of Common Stock from your distribution under this Award and you do not
otherwise make arrangements for the payment in cash of your tax obligations,
then such shares shall not be delivered on such Original Distribution Date and
shall instead be delivered on the first business day of the next occurring open
“window period” applicable to you pursuant to such policy (regardless of whether
you are still providing Continuous Service at such time) or the next business
day when you are not prohibited from selling shares of the Company’s Common
Stock in the open market, but in no event later than the fifteenth (15th) day of
the third calendar month of the calendar year following the calendar year in
which the Original Distribution Date occurs.  The form of such
delivery (e.g., a stock
certificate or electronic entry evidencing such shares) shall be determined by
the Company.  In all cases, the delivery of shares under this Award is
intended to comply with Treasury Regulation 1.409A-1(b)(4) and shall be
construed and administered in such a manner.

     

    9. Dividends.  You shall receive no
benefit or adjustment to your Award with respect to any cash dividend, stock
dividend or other distribution that does not result from a Capitalization
Adjustment; provided,
however, that this sentence shall not apply with respect to any shares of
Common Stock that are delivered to you in connection with your Award after such
shares have been delivered to you.

     

    10. Award not a
Service Contract.

     

    (a) Your
Continuous Service with the Company or an Affiliate is not for any specified
term and may be terminated by you or by the Company or an Affiliate at any time,
for any reason, with or without cause and with or without notice.  Nothing
in this Agreement (including, but not limited to, the vesting of your Award
pursuant to the schedule set forth in Section 2 herein or the issuance of
the shares subject to your Award), the Plan or any covenant of good faith and
fair dealing that may be found implicit in this Agreement or the Plan
shall:  (i) confer upon you any right to continue in the employ of, or
affiliation with, the Company or an Affiliate; (ii) constitute any promise or
commitment by the Company or an Affiliate regarding the fact or nature of future
positions, future work assignments, future compensation or any other term or
condition of employment or affiliation; (iii) confer any right or benefit under
this Agreement or the Plan unless such right or benefit has specifically accrued
under the terms of this Agreement or Plan; or (iv) deprive the Company of the
right to terminate you at will and without regard to any future vesting
opportunity that you may have.

     

    (b) By
accepting this Award, you acknowledge and agree that the right to continue
vesting in the Award pursuant to the schedule set forth in Section 2 is
earned only by continuing as an employee, director or consultant at the will of
the Company (not through the act of being hired, being granted this Award or any
other award or benefit) and that the Company has the right to reorganize, sell,
spin-out or otherwise restructure one or more of its businesses or Affiliates at
any time or from time to time, as it deems appropriate (a “reorganization”). 
You further acknowledge and agree that such a reorganization could result in the
termination of your Continuous Service, or the termination of Affiliate status
of your employer and the loss of benefits available to you under this Agreement,
including but not limited to, the termination of the right to continue vesting
in the Award.  You further acknowledge and agree that this Agreement,
the Plan, the transactions contemplated hereunder and the vesting schedule set
forth herein or any covenant of good faith and fair dealing that may be found
implicit in any of them do not constitute an express or implied promise of
continued engagement as an employee or consultant for the term of this
Agreement, for any period, or at all, and shall not interfere in any way with
your right or the Company’s right to terminate your Continuous Service at any
time, with or without cause and with or without notice.

     

    11. Withholding
Obligations.

     

    (a) On
or before the time you receive a distribution of the shares subject to your
Award, or at any time thereafter as requested by the Company, you hereby
authorize any required withholding from the Common Stock issuable to you or the
Escrow Agent and/or otherwise agree to make adequate provision in cash for any
sums required to satisfy the federal, state, local and foreign tax withholding
obligations of the Company or any Affiliate which arise in connection with your
Award (the “Withholding
Taxes”).  Additionally, the Company may, in its sole
discretion, satisfy all or any portion of the Withholding Taxes obligation
relating to your Award by any of the following means or by a combination of such
means: (i) withholding from any compensation otherwise payable to you by the
Company; (ii) causing you to tender a cash payment; (iii) permitting you to
enter into a “same day sale” commitment with a broker-dealer that is a member of
the Financial Industry Regulatory Authority (a “FINRA
Dealer”) whereby you irrevocably elect to sell a portion of the shares to
be delivered under the Award to satisfy the Withholding Taxes and whereby the
FINRA Dealer irrevocably commits to forward the proceeds necessary to satisfy
the Withholding Taxes directly to the Company and/or its Affiliates or (iv)
withholding shares of Common Stock from the shares of Common Stock issued or
otherwise issuable to you or the Escrow Agent in connection with the Award with
a Fair Market Value (measured as of the date shares of Common Stock are issued
pursuant to Section 8 equal to the amount of such Withholding Taxes;
provided, however, that the number of such shares of Common Stock so withheld
shall not exceed the amount necessary to satisfy the Company’s required tax
withholding obligations using the minimum statutory withholding rates for
federal, state, local and foreign tax purposes, including payroll taxes, that
are applicable to supplemental taxable income.

     

    (b) Unless
the tax withholding obligations of the Company and/or any Affiliate are
satisfied, the Company shall have no obligation to deliver to you any Common
Stock.

     

    (c) In
the event the Company’s obligation to withhold arises prior to the delivery to
you of Common Stock or it is determined after the delivery of Common Stock to
you that the amount of the Company’s withholding obligation was greater than the
amount withheld by the Company, you agree to indemnify and hold the Company
harmless from any failure by the Company to withhold the proper
amount.

     

    12. Unsecured
Obligation.  Your Award is unfunded, and as a holder of a
vested Award, you shall be considered an unsecured creditor of the Company with
respect to the Company’s obligation, if any, to issue shares pursuant to this
Agreement.  You shall not have voting or any other rights as a
stockholder of the Company with respect to the shares to be issued pursuant to
this Agreement until such shares are issued pursuant to Section 8 of this
Agreement.   Upon such issuance, you will obtain full voting and
other rights as a stockholder of the Company.  Nothing contained in
this Agreement, and no action taken pursuant to its provisions, shall create or
be construed to create a trust of any kind or a fiduciary relationship between
you and the Company or any other person.

     

    13. Other
Documents.  You hereby acknowledge receipt or the right to
receive a document providing the information required by Rule 428(b)(1)
promulgated under the Securities Act, which includes the Plan
prospectus.  In addition, you acknowledge receipt of the Company’s
policy permitting certain individuals to sell shares only during certain
“window” periods and the Company’s insider trading policy, in effect from time
to time.

     

    14. Notices.  Any notices
provided for in your Award or the Plan shall be given in writing and shall be
deemed effectively given upon receipt or, in the case of notices delivered by
the Company to you, five (5) days after deposit in the United States mail,
postage prepaid, addressed to you at the last address you provided to the
Company.  Notwithstanding the foregoing, the Company may, in its sole
discretion, decide to deliver any documents related to participation in the Plan
and this Award by electronic means or to request your consent to participate in
the Plan by electronic means.  You hereby consent to receive such
documents by electronic delivery and, if requested, to agree to participate in
the Plan through an on-line or electronic system established and maintained by
the Company or another third party designated by the Company.

     

    15. Miscellaneous.

     

    (a) The
rights and obligations of the Company under your Award shall be transferable to
any one or more persons or entities, and all covenants and agreements hereunder
shall inure to the benefit of, and be enforceable by the Company’s successors
and assigns. Your rights and obligations under your Award may only be assigned
with the prior written consent of the Company.

     

    (b) You
agree upon request to execute any further documents or instruments necessary or
desirable in the sole determination of the Company to carry out the purposes or
intent of your Award.

     

    (c) You
acknowledge and agree that you have reviewed your Award in its entirety, have
had an opportunity to obtain the advice of counsel prior to executing and
accepting your Award, and fully understand all provisions of your
Award.

     

    (d) This
Agreement shall be subject to all applicable laws, rules, and regulations, and
to such approvals by any governmental agencies or national securities exchanges
as may be required.

     

    (e) All
obligations of the Company under the Plan and this Agreement shall be binding on
any successor to the Company, whether the existence of such successor is the
result of a direct or indirect purchase, merger, consolidation, or otherwise, of
all or substantially all of the business and/or assets of the
Company.

     

    16. Governing
Plan Document.  Your Award is
subject to all the provisions of the Plan, the provisions of which are hereby
made a part of your Award, and is further subject to all interpretations,
amendments, rules and regulations which may from time to time be promulgated and
adopted pursuant to the Plan.  Except as expressly provided herein, in
the event of any conflict between the provisions of your Award and those of the
Plan, the provisions of the Plan shall control.

     

    17. Severability.  If
all or any part of this Agreement or the Plan is declared by any court or
governmental authority to be unlawful or invalid, such unlawfulness or
invalidity shall not invalidate any portion of this Agreement or the Plan not
declared to be unlawful or invalid. Any Section of this Agreement (or part of
such a Section) so declared to be unlawful or invalid shall, if possible, be
construed in a manner which will give effect to the terms of such Section or
part of a Section to the fullest extent possible while remaining lawful and
valid.

     

    18. Effect on
Other Employee Benefit Plans.  The value of the Award subject
to this Agreement shall not be included as compensation, earnings, salaries, or
other similar terms used when calculating your benefits under any employee
benefit plan sponsored by the Company or any Affiliate, except as such plan
otherwise expressly provides. The Company expressly reserves its rights to
amend, modify, or terminate any of the Company’s or any Affiliate’s employee
benefit plans.

     

    19. Choice
of Law.  The
interpretation, performance and enforcement of this Agreement will be governed
by the law of the state of Delaware without regard to such state’s conflicts of
laws rules.

     

    20. Amendment.  This
Agreement may not be modified, amended or terminated except by an instrument in
writing, signed by you and by a duly authorized representative of the Company.
Notwithstanding the foregoing, this Agreement may be amended solely by the Board
by a writing which specifically states that it is amending this Agreement, so
long as a copy of such amendment is delivered to you, and provided that no such
amendment adversely affecting your rights hereunder may be made without your
written consent. Without limiting the foregoing, the Board reserves the right to
change, by written notice to you, the provisions of this Agreement in any way it
may deem necessary or advisable to carry out the purpose of the grant as a
result of any change in applicable laws or regulations or any future law,
regulation, ruling, or judicial decision, provided that any such change shall be
applicable only to rights relating to that portion of the Award which is then
subject to restrictions as provided herein.

     

    21. Compliance
with Section 409A of the Code.  This Award is
intended to comply with the “short-term deferral” rule set forth in Treasury
Regulation Section 1.409A-1(b)(4).  Notwithstanding the foregoing, if
it is determined that the Award fails to satisfy the requirements of the
short-term deferral rule and is otherwise deferred compensation subject to
Section 409A, and if you are a “Specified Employee” (within the meaning set
forth Section 409A(a)(2)(B)(i) of the Code) as of the date of your separation
from service (within the meaning of Treasury Regulation Section 1.409A-1(h)),
then the issuance of any shares that would otherwise be made upon the date of
the separation from service or within the first six (6) months thereafter will
not be made on the originally scheduled date(s) and will instead be issued in a
lump sum on the date that is six (6) months and one day after the date of the
separation from service, with the balance of the shares issued thereafter in
accordance with the original vesting and issuance schedule set forth above, but
if and only if such delay in the issuance of the shares is necessary to avoid
the imposition of taxation on you in respect of the shares under Section 409A of
the Code.  Each installment of shares that vests is intended to
constitute a “separate payment” for purposes of Treasury Regulation Section
1.409A-2(b)(2).

     

    


     

    Escrow
Agent hereby acknowledges and accepts its rights and responsibilities pursuant
to Section 7, above.

    


    


    ___________________________

     

    Escrow
Agent

     

    


     


    
      
        
                                                                   
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