**Exhibit 10.3**

 

PHASE FORWARD INCORPORATED

 

NON-STATUTORY STOCK OPTIONAGREEMENT (U.K.)

 

PhaseForward Incorporated (the “Company”) hereby grants the following stockoption pursuant to its 2004 Stock Option and Incentive Plan.  The terms and conditions attached hereto arealso a part hereof.

 
| Name of optionee  (the “Optionee”):                                                                   |   |                                                           |
|-----------------------------------------------------------------------------------------------------------------|--------|----------------------------------------------------------------|
|                                                                                                            |   |                                                           |
| Date of this  option grant:                                                                                     |   |                                                           |
|                                                                                                            |   |                                                           |
| Number of shares  of the Company’s Common Stock subject to this option (“Shares”):               |   |                                                           |
|                                                                                                            |   |                                                           |
| Option exercise  price per share:                                                                               |   |                                                           |
|                                                                                                            |   |                                                           |
| Number, if any,  of Shares that may be purchased on or after the grant date:                                    |   | 0[**]                                                          |
|                                                                                                            |   |                                                           |
| Shares that are  subject to vesting schedule:                                                                   |   | 100%[**]                                                       |
|                                                                                                            |   |                                                           |
| Vesting Start  Date:                                                                                            |   |                                                           |
| [*]Vesting  Schedule:                                                                                           |   |                                                           |
| One year  from Vesting Start Date:                                                                         |   | 25% of the  Shares subject to this option[**]                  |
|                                                                                                            |   |                                                           |
| Each subsequent  month following the first anniversary of the Vesting Start Date:                               |   | An additional  2.083% of the Shares subject to this option[**] |
|                                                                                                            |   |                                                           |
| All vesting is  dependent on the continuation of a Business Relationship with the Company, as  provided herein. |   |                                                           |
| Payment  alternatives (specify any or all of Section 7(a)(i) though (iii):                            |   | Section 7(a) (i) through  (iii)                 |

 

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[* Theforegoing is a sample vesting schedule only.  Actual vesting schedule for eachOptionee will be determined by the Board of Directors on the grant date.]

 

[**Vested amount of shares may be expressed as a number, a percentage or afraction.]

 

Thisoption satisfies in full all commitments that the Company has to the Optioneewith respect to the issuance of stock, stock options or other equitysecurities.

 

 

I hereby agree to all ofthe terms contained in this Stock Option Agreement

 
| **SIGNED**  as a Deed                                                         | )                       |      |   |   |   |
|-------------------------------------------------------------------------------|-------------------------|-----------|--------|--------|--------|
| by **optionee name**                                                          | **)**                   | Signature |   | Date   |   |
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| in the presence  of:-                                                         |                    |
| Signature of  witness:                                                        |                    |
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| Name of witness:                                                              |                    |
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| Address:                                                                      |                    |
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| Occupation:                                                                   |                    |
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| NB. the witness  must be over 18 and not related to you by blood or marriage. |                    |
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|                                                                          |                    |
| Phase Forward Incorporated                                                    |                    |
|                                                                          |                    |
| By:                                                                           |                    |      |   |
|                                                                          | Robert K. Weiler        |      |   |
|                                                                          | Chief Executive Officer |      |   |
|                                                                               |                         |           |        |        |        |  |  |

 

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PHASE FORWARD INCORPORATED

 

STOCK OPTION AGREEMENT — INCORPORATED TERMS ANDCONDITIONS

 

1.             GrantUnder Plan.  This option is grantedpursuant to and is governed by the Company’s 2004 Stock Option and IncentivePlan (the “Plan”) and, unless the context otherwise requires, terms usedherein shall have the same meaning as in the Plan.

 

2.             Grantas Non-Qualified Stock Option.  Thisoption is a non-statutory stock option and is not intended to qualify as anincentive stock option under Section 422 of the Internal Revenue Code of1986, as amended, and the regulations thereunder (the “Code”).

 

3.             Vestingof Option.

 

(a)           Vestingif Business Relationship Continues. The Optionee may exercise this optionon or after the date of this option grant for the number of shares of Common Stock,if any, set forth on the cover page hereof.  If the Optionee has continuously maintained aBusiness Relationship (as defined below) with the Company through the dateslisted on the vesting schedule set forth on the cover page hereof,the Optionee may exercise this option for the additional number of shares ofCommon Stock set opposite the applicable vesting date.  Notwithstanding the foregoing, the Board may,in its discretion, accelerate the date that any installment of this optionbecomes exercisable.  The foregoingrights are cumulative and may be exercised only before the date which is tenyears from the date of this option grant.

 

(b)  Accelerated Vesting Due toAcquisition. In the event an Acquisition that is not a Private Transactionoccurs while the Optionee maintains a Business Relationship with the Companyand this option has not fully vested, this option shall become exercisable forone-quarter of the Shares (in addition to any Shares already vested), suchvesting to occur immediately prior to the closing of the Acquisition, withvesting to continue after the closing at the rate/number set forth on the coverpage as to the remainder of the Shares subject to vesting and on the samevesting dates, *provided that* the Optioneecontinuously maintains a Business Relationship with the Company or itssuccessor through the applicable vesting dates.

 

(c)  Definitions. The followingdefinitions shall apply:

 

“Business Relationship” means service to theCompany or its successor in the capacity of an employee, officer, director orconsultant.

 

“Cause” means: (i) gross negligence or willfulmalfeasance in the performance of the Optionee’s work or a breach of fiduciaryduty or confidentiality obligations to the Company by the Optionee; (ii) failureto follow the proper directions of the Optionee’s direct or indirect supervisorafter written notice of such failure; (iii) the commission by the Optioneeof illegal conduct relating to the Company; (iv) disregard by the Optioneeof the material rules or material policies of the Company which has notbeen cured within 15 days after notice thereof from the Company; or (v) intentionalacts

 

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on thepart of the Optionee that have generated material adverse publicity toward orabout the Company.

 

“Private Transaction” means any Acquisitionwhere the consideration received or retained by the holders of the thenoutstanding capital stock of the Company does not consist of (i) cash orcash equivalent consideration, (ii) securities which are registered underthe Securities Act and/or (iii) securities for which the Company or anyother issuer thereof has agreed, including pursuant to a demand, to file aregistration statement within ninety (90) days of completion of the transactionfor resale to the public pursuant to the Securities Act.

 

4.             Terminationof Business Relationship.

 

(a)           Termination.  If the Optionee’s Business Relationship withthe Company ceases, voluntarily or involuntarily, with or without cause, nofurther installments of this option shall become exercisable, and this optionshall expire (may no longer be exercised) after the passage of ninety days fromthe date of termination, but in no event later than the scheduled expirationdate.  Any determination under this agreementas to the status of a Business Relationship or other matters referred to aboveshall be made in good faith by the Board of Directors of the Company.

 

(b)           EmploymentStatus. For purposes hereof, with respect to employees of the Company,employment shall not be considered as having terminated during any**leave of absence if such leave of absence has been approvedin writing by the Company and if such written approval contractually obligatesthe Company to continue the employment of the Optionee after the approvedperiod of absence; in the event of such an approved leave of absence, vestingof this option shall be suspended (and the period of the leave of absence shallbe added to all vesting dates) unless otherwise provided in the Company’swritten approval of the leave of absence.. For purposes hereof, a terminationof employment followed by another Business Relationship shall be deemed atermination of the Business Relationship with all vesting to cease unless theCompany enters into a written agreement related to such other BusinessRelationship in which it is specifically stated that there is no termination ofthe Business Relationship under this agreement. This option shall not beaffected by any change of employment within or among the Company and itsSubsidiaries so long as the Optionee continuously remains an employee of theCompany or any Subsidiary.

 

(c)           Terminationfor Cause.  If the BusinessRelationship of the Optionee is terminated for Cause (as defined above), thisoption may no longer be exercised from and after the Optionee’s receipt ofwritten notice of such termination.

 

(d)           PartialAcceleration Upon Death.  In theevent the Optionee dies prior to the vesting of the first tranche of Shares (asset forth on the cover page hereto), the vesting of such first tranche ofShares will automatically accelerate and become exercisable until theexpiration of this option pursuant to Section 4(a).

 

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5.             Death;Disability.

 

(a)           Death.  Upon the death of the Optionee while theOptionee is maintaining a Business Relationship with the Company, this optionmay be exercised, to the extent otherwise exercisable on the date of theOptionee’s death, by the Optionee’s estate, personal representative orbeneficiary to whom this option has been transferred pursuant to Section 10,only at any time within 365 days after the date of death, but not laterthan the scheduled expiration date.

 

(b)           Disability.  If the Optionee ceases to maintain a BusinessRelationship with the Company by reason of his or her disability, this optionmay be exercised, to the extent otherwise exercisable on the date of cessationof the Business Relationship, only at any time within 180 days after suchcessation of the Business Relationship, but not later than the scheduledexpiration date.  For purposes hereof, “disability”means “permanent and total disability” as defined in Section 22(e)(3) ofthe Code.

 

6.             PartialExercise.  This option may beexercised in part at any time and from time to time within the above limits,except that this option may not be exercised for a fraction of a share.

 

7.             Paymentof Exercise Price.

 

(a)           PaymentOptions.  The exercise price shall bepaid by one or any combination of the following forms of payment that areapplicable to this option, as indicated on the cover page hereof:

 

(i)            by checkin US currency payable to the order of the Company; or

 

(ii)           deliveryof an irrevocable and unconditional undertaking, satisfactory in form andsubstance to the Company, by a creditworthy broker to deliver promptly to theCompany sufficient funds to pay the exercise price, or delivery by the Optioneeto the Company of a copy of irrevocable and unconditional instructions,satisfactory in form and substance to the Company, to a creditworthy broker todeliver promptly to the Company cash or a check sufficient to pay the exerciseprice; or

 

(iii)          subjectto Section 7(b) below, if the Common Stock is then traded on anational securities exchange or on the Nasdaq National Market (or successortrading system), by delivery of shares of Common Stock having a fair marketvalue equal as of the date of exercise to the option price.

 

In the case of (iii) above, fair market value asof the date of exercise shall be determined as of the last business day forwhich such prices or quotes are available prior to the date of exercise andshall mean (i) the last reported sale price (on that date) of the CommonStock on the principal national securities exchange on which the Common Stockis traded, if the Common Stock is then traded on a national securitiesexchange; or (ii) the last reported sale price (on that date) of theCommon Stock on the Nasdaq National Market (or successor trading system), ifthe Common Stock is not then traded on a national securities exchange.

 

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(b)           Limitationson Payment by Delivery of Common Stock. If Section 7(a)(iii) is applicable, and if the Optioneedelivers Common Stock held by the Optionee (“Old Stock”) to the Companyin full or partial payment of the exercise price and the Old Stock so deliveredis subject to restrictions or limitations imposed by agreement between theOptionee and the Company, an equivalent number of Shares shall be subject toall restrictions and limitations applicable to the Old Stock to the extent thatthe Optionee paid for the Shares by delivery of Old Stock, in addition to anyrestrictions or limitations imposed by this agreement.  Notwithstanding the foregoing, the Optioneemay not pay any part of the exercise price hereof by transferring Common Stockto the Company unless such Common Stock has been owned by the Optionee free ofany substantial risk of forfeiture for at least six months.

 

8.             SecuritiesLaws Restrictions on Resale. Until registered under the Securities Act of1933, as amended, or any successor statute (the “Securities Act”), theShares will be illiquid and will be deemed to be “restricted securities” forpurposes of the Securities Act. Accordingly, such shares must be sold in compliance with theregistration requirements of the Securities Act or an exemption therefrom andmay need to be held indefinitely.  Unlessthe Shares have been registered under the Securities Act, each certificateevidencing any of the Shares shall bear a restrictive legend specified by theCompany.

 

9.             Methodof Exercising Option.  Subject to theterms and conditions of this agreement, this option may be exercised by writtennotice to the Company at its principal executive office, or to such transferagent as the Company shall designate. Such notice shall state the election to exercise this option and thenumber of Shares for which it is being exercised and shall be signed by theperson or persons so exercising this option. Such notice shall be accompanied by payment of the full purchase priceof such shares, and the Company shall deliver a certificate or certificatesrepresenting such shares as soon as practicable after the notice shall bereceived.  Such certificate or certificatesshall be registered in the name of the person or persons so exercising thisoption (or, if this option shall be exercised by the Optionee and if theOptionee shall so request in the notice exercising this option, shall beregistered in the name of the Optionee and another person jointly, with rightof survivorship). In the event this option shall be exercised, pursuant to Section 5hereof, by any person or persons other than the Optionee, such notice shall beaccompanied by appropriate proof of the right of such person or persons to exercisethis option.

 

10.           OptionNot Transferable.  This option is nottransferable or assignable except by will or by the laws of descent anddistribution.  During the Optionee’slifetime only the Optionee can exercise this option.

 

11.           NoObligation to Exercise Option.  Thegrant and acceptance of this option imposes no obligation on the Optionee toexercise it.

 

12.           NoObligation to Continue Business Relationship.  Neither the Plan, this agreement, nor thegrant of this option imposes any obligation on the Company to continue theOptionee in employment or other Business Relationship.

 

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13.           Adjustments.  Except as is expressly provided in the Planwith respect to certain changes in the capitalization of the Company, noadjustment shall be made for dividends or similar rights for which the recorddate is prior to such date of exercise.

 

14.           OptionTax Liability.

 

(a)           In this Section andSection 15, the following definitions shall have the following meanings:-

 
| ** ** | **“Employer’s  NIC Election”** |   | means, an  election, in such form as may be agreed by the relevant tax authorities (if  required), entered into by the Optionee and his employing company (or any  other UK Subsidiary) under which the Optionee agrees that any liability to  Employer’s NICs which arises in respect of or in relation to this agreement  or its exercise shall be transferred to the Optionee;                                  |
|------------|-----------------------------------------------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| ** ** | ** **                                    |   |                                                                                                                                                                                                                                                                                                                                                                                                                    |
| ** ** | **“Employer’s  NICs”**         |   | means secondary Class 1  NICs;                                                                                                                                                                                                                                                                                                                                                                                     |
| ** ** | ** **                                    |   |                                                                                                                                                                                                                                                                                                                                                                                                                    |
| ** ** | **“NICs”**                          |   | means UK  National Insurance contributions;                                                                                                                                                                                                                                                                                                                                                                             |
| ** ** | ** **                                    |   |                                                                                                                                                                                                                                                                                                                                                                                                                    |
| ** ** | **“NI  Regulations”**               |   | means the laws  regulations and practices currently in force relating to liability for and  the collection of NICs;                                                                                                                                                                                                                                                                                                     |
| ** ** | ** **                                    |   |                                                                                                                                                                                                                                                                                                                                                                                                                    |
| ** ** | **“Optionee’s  Employer”**     |   | means such  company as is the Optionee’s employer or, if he has ceased to be employed by  the Company or a UK Subsidiary, was his employer or such other company, or  other person as, under the PAYE Regulations or, as the case may be, the N.I.  Regulations, or any other statutory or regulatory enactment (whether in the  United Kingdom or otherwise) is obliged to account for any Option Tax  Liability. |
| ** ** | ** **                                    |   |                                                                                                                                                                                                                                                                                                                                                                                                                    |
| ** ** | **“Option  Gain”**                  |   | means any gain  realised upon the exercise or release of, or the acquisition of Shares  pursuant to an Option, being a gain that is treated as remuneration derived  from the Optionee’s employment by virtue of section 4(4)(a) of the  UK Social Security Contributions and Benefits Act 1992;                                                                                                         |
| ** ** | ** **                                    |   |                                                                                                                                                                                                                                                                                                                                                                                                                    |
| ** ** | **“Option  Tax Liability”**         |   | means in  relation to the Optionee, any liability of the Optionee’s Employer to account  to the UK Inland Revenue or any other tax authority for any amount of, or  representing, income tax or NICs (including, without limitation, Employer’s  NICs) or any other tax charge levy or other sum (whether under the laws of  the United Kingdom or                                                            |

 

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| ** ** | ** **                        |   | otherwise) which  may arise on the grant, vesting or exercise of the Option or the acquisition  of Shares under the Plan; and                                                            |
|------------|-----------------------------------|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| ** ** | ** **                        |   |                                                                                                                                                                                     |
| ** ** | **“PAYE  Regulations”** |   | means the  regulations under section 684 of the UK Income Tax (Earnings and  Pensions) Act 2003.                                                                                    |
| ** ** | ** **                        |   |                                                                                                                                                                                     |
| ** ** | **“UK  Subsidiary”**    |   | means any  company whose registered office is situated in the UK which is for the time  being a subsidiary of the Company (as defined in section 736 of the UK  Companies Act 1985) |

 

(b)           The provisions of this Section 14 shall not applyin relation to the issue or transfer of Shares on any occasion if, before thedate of issue or transfer, the Optionee has either:-

 

(i)                 paid to the Company or the Optionee’sEmployer a sum which, in the opinion of the Company (or, if different, the Optionee’sEmployer) is, or will be, sufficient to satisfy the Optionee’s liability underthe indemnity in Section 14(c); or

 

(ii)                entered into arrangements with the Company or theOptionee’s Employer which, in the opinion of the Company (or, if different the Optionee’sEmployer), will ensure that the liability under such indemnity is satisfiedwithin such period as the Company (or, if different the Optionee’s Employer)may determine.

 

(c)           The Optionee hereby agrees to the extent permitted bylaw, to indemnify the Company and, if different, the Optionee’s Employeragainst any liability of any such person to account for any Option TaxLiability in respect of anything done pursuant to the Plan or this agreement.

 

(d)           The Company shall not be obliged to issue, transfer orprocure the transfer of any Shares or any interest in any Shares under thePlan, and the Option shall not be validly exercised, unless and until theOptionee has paid to the Company or the Optionee’s Employer (as appropriate)such sum as is, in the opinion of the Company, sufficient to indemnify theCompany or the Optionee’s Employer (as appropriate) in full against any OptionTax Liability or has made such other arrangement as, in the opinion of theCompany, will ensure that the Optionee will satisfy his liability under theindemnity in Section 14(c).

 

15.           Employer’s NICs 

 

(a)           The Optionee agrees that, and undertakes to theCompany and his Employer that:-

 

(i)                  the Optionee’s Employer may recoverfrom the Optionee (in such manner as the Company may determine and notify tothe Optionee at any time before the Option is exercised) the whole or any partof any Employer’s NICs payable in respect of any such Option Gain; and

 

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(ii)                 the Optionee shall join with hisEmployer in making an election (in such terms and such form as the Company maydetermine and is approved by the UK Inland Revenue) for the transfer to theOptionee of the whole, or such part as the Company may determine, of anyliability of the Optionee’s Employer to Employer’s NICs on any such OptionGain; and

 

(iii)                on any occasion on which the Optionis exercised or released after such an election has been made, the Optioneeshall procure that any amount of Employer’s NICs for which the Optionee isliable is paid to the Optionee’s Employer in time to enable his Employer toremit such Employer’s NICs to the Collector of Taxes before the 14thday following the end of the Pay As You Earn month in which the Option isexercised or released.

 

(b)           The Optionee understands and accepts that the Companyshall not be obliged to transfer title to any Shares upon the exercise of theOption unless and until the Optionee has paid, or procured the payment, to hisEmployer of such sum as, in the opinion of his Employer, is sufficient tosatisfy the Optionee’s liability under the indemnity referred to in Section 14(c) abovewithin such period as the Optionee’s Employer shall determine and notify to theOptionee.

 

(c)           Theprovisions of this Section 15 shall not have effect in relation toEmployer’s NICs payable in respect of any gain realised upon the exercise orrelease of, or the acquisition of Shares pursuant to, the Option or anyoccasion if to do so would contravene the provisions of the UK Social SecurityContributions and Benefits Act 1992 or of any regulations made under that Act.

 

16.           Lock-upAgreement. The Optionee agrees that in the event that the Company effectsan underwritten public offering of Common Stock registered under the SecuritiesAct, the Shares may not be sold, offered for sale or otherwise disposed of,directly or indirectly, without the prior written consent of the managingunderwriter(s) of the offering, for such period of time after the execution ofan underwriting agreement in connection with such offering that all of theCompany’s then directors and executive officers agree to be similarlybound.  In the event the managingunderwriter(s) consent to the sale or disposition of Shares during theaforementioned period, such sale or disposition shall nevertheless be made inaccordance with the Company’s insider trading policy, as amended and in effectfrom time to time.

 

17.           Arbitration.  Any dispute, controversy, or claim arisingout of, in connection with, or relating to the performance of this agreement orits termination shall be settled by arbitration in the Commonwealth ofMassachusetts, pursuant to the rules then obtaining of the AmericanArbitration Association. Any award shall be final, binding and conclusive uponthe parties and a judgment rendered thereon may be entered in any court havingjurisdiction thereof.

 

18.           Provisionof Documentation to Optionee.  Bysigning this agreement the Optionee acknowledges receipt of a copy of thisagreement and a copy of the Plan.

 

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19.           Miscellaneous.

 

(a)           Notices.  All notices hereunder shall be in writing andshall be deemed given when sent by mail, if to the Optionee, to the address setforth below or at the address shown on the records of the Company, and if tothe Company, to the Company’s principal executive offices, attention of theCorporate Secretary.

 

(b)           EntireAgreement; Modification.  Thisagreement constitutes the entire agreement between the parties relative to thesubject matter hereof, and supersedes all proposals, written or oral, and allother communications between the parties relating to the subject matter of thisagreement. This agreement may be modified, amended or rescinded only by awritten agreement executed by both parties.

 

(c)           FractionalShares. If this option becomes exercisable for a fraction of a sharebecause of the adjustment provisions contained in the Plan, such fraction shallbe rounded down.

 

(d)           Issuancesof Securities; Changes in Capital Structure. Except as expressly providedherein or in the Plan, no issuance by the Company of shares of stock of anyclass, or securities convertible into shares of stock of any class, shallaffect, and no adjustment by reason thereof shall be made with respect to, thenumber or price of shares subject to this option.  No adjustments need be made for dividendspaid in cash or in property other than securities of the Company. If thereshall be any change in the Common Stock of the Company through merger,consolidation, reorganization, recapitalization, stock dividend, stock split,combination or exchange of shares, spin-off, split-up or other similar changein capitalization or event, the restrictions contained in this agreement shallapply with equal force to additional and/or substitute securities, if any,received by the Optionee in exchange for, or by virtue of his or her ownershipof, Shares, except as otherwise determined by the Board.

 

(e)           Severability.  The invalidity, illegality orunenforceability of any provision of this agreement shall in no way affect thevalidity, legality or enforceability of any other provision.

 

(f)            Successorsand Assigns.  This agreement shall bebinding upon and inure to the benefit of the parties hereto and theirrespective successors and assigns, subject to the limitations set forth in Section 10hereof.

 

(g)           GoverningLaw.  This agreement shall begoverned by and interpreted in accordance with the laws of the State ofDelaware, without giving effect to the principles of the conflicts of lawsthereof.

 

20.           Data Protection Consent

 

(a)           For the purposes of this Section:-

 
| ** ** | **“Data”** |   | means  personally identifiable information of the Optionee, including employee  details |
|------------|----------------------|--------|-----------------------------------------------------------------------------------------|

 

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| ** ** | ** **                 |   | relevant to the  above mentioned purposes, the Optionee’s name, home address, e-mail address,  telephone number, date of birth, National Insurance number, details of the  Optionee’s Option and of Shares issued or transferred to the Optionee  pursuant to the Plan or any other employees’ share scheme                                                                                                                                                                                                     |
|------------|----------------------------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| ** ** | ** **                 |   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           |
| ** ** | **“Processing”** |   | means  in relation to the Optionee’s Data shall have the meaning set out in the UK  Data Protection Act 1988 and includes obtaining, recording or holding the  Data or carrying out any operation or set of operations on the Data,  including organisation, adaptation or alteration of the Data, retrieval,  consultation or use of the Data, disclosure or sharing of the Data by  transmission, dissemination or otherwise making available, or alignment,  combination, blocking, erasure or destruction of the Data |

 

(b)              In entering into this agreement the Optionee shallagree and consent to the Processing of his Data by his Employer and thirdparties involved in the operation and administration of the Plan for thepurposes of the operation and administration of the Plan.  Such third parties are likely to includemembers of the Group and any Plan administrator.”

 

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