exv10w23



 





Exhibit 10.23




PACKETEER, INC.

NOTICE OF GRANT OF RESTRICTED STOCK UNITS

(For Nonemployee Directors)



The Participant has been granted an award of Restricted Stock Units (the “Award”) pursuant to the
Packeteer, Inc. 1999 Stock Incentive Plan (the “Plan”), each of which represents the right to
receive on the applicable Settlement Date one (1) share of Common Stock, as follows:




	 	 	 	 	 	 	 	 	 	 	 
	Participant:

	 	 	 	 	 	ID:	 	 	 	 
	 

	 	 

	 	 	 	 	 	 

	 	 
	Grant Date:

	 	 	 	 	 	Grant No.:	 	 	 	 
	 

	 	 

	 	 	 	 	 	 

	 	 
	Number of
Restricted Stock
Units:	 	                    , subject to adjustment as provided by the Restricted
Stock Units Agreement.
	 
	 	 	 	 	 	 	 	 	 	 
	Settlement Date:	 	For each Restricted Stock Unit, except as otherwise
provided by the Restricted Stock Units Agreement, the date
on which such unit becomes a Vested Unit in accordance
with the vesting schedule set forth below.
	 
	 	 	 	 	 	 	 	 	 	 
	Vested Units:	 	Except as provided by the Restricted Stock Units Agreement
and provided that the Participant’s Service has not
terminated prior to the relevant date, the number of
Vested Units shall cumulatively increase on each
respective date set forth below by the number of units set
forth opposite such date, as follows:






	 	 	 	 	 
	 	 	Vesting Date	 	Number of Units Vesting





By their signatures below or by electronic acceptance or authentication in a form authorized by the
Corporation, the Corporation and the Participant agree that the Award is governed by this Notice
and by the provisions of the Plan and the Restricted Stock Units Agreement, both of which are made
a part of this document. The Participant acknowledges that copies of the Plan, Restricted Stock
Units Agreement and the prospectus for the Plan are available on the Corporation’s internal web
site and may be viewed and printed by the Participant for attachment to the Participant’s copy of
this Grant Notice. The Participant represents that the Participant has read and is familiar with
the provisions of the Plan and Restricted Stock Units Agreement, and hereby accepts the Award
subject to all of their terms and conditions.




	 	 	 	 	 	 	 	 	 
	PACKETEER, INC.	 	 	 	PARTICIPANT
	 
	 	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Signature
	 
	 	 	 	 	 	 	 	 
	Its:
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Date
	Address:	 	10201 North de Anza Boulevard	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	Cupertino, CA 95014, USA
	 	 	 	Address
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 






			
	ATTACHMENTS:	 	1999 Stock Incentive Plan, as amended to the Grant Date; Restricted Stock Units
Agreement and Plan Prospectus






 









 








PACKETEER, INC.

RESTRICTED STOCK UNITS AGREEMENT

(For Nonemployee Directors)




     Packeteer, Inc. has granted to the Participant named in the Notice of Grant of Restricted
Stock Units (the “Grant Notice”) to which this Restricted Stock Units Agreement (the “Agreement”)
is attached an Award consisting of Restricted Stock Units (the “Units”) subject to the terms and
conditions set forth in the Grant Notice and this Agreement. The Award has been granted pursuant
to the Packeteer, Inc. 1999 Stock Incentive Plan (the “Plan”), as amended to the Grant Date, the
provisions of which are incorporated herein by reference. By signing the Grant Notice, the
Participant: (a) acknowledges receipt of and represents that the Participant has read and is
familiar with the Grant Notice, this Agreement, the Plan and a prospectus for the Plan (the “Plan
Prospectus”) in the form most recently prepared in connection with the registration with the
Securities and Exchange Commission of shares issuable pursuant to the Plan, (b) accepts the Award
subject to all of the terms and conditions of the Grant Notice, this Agreement and the Plan and
(c) agrees to accept as binding, conclusive and final all decisions or interpretations of the Plan
Administrator upon any questions arising under the Grant Notice, this Agreement or the Plan.



     1. Definitions and Construction.



          1.1 Definitions. Unless otherwise defined herein, capitalized terms shall have the meanings
assigned to such terms in the Grant Notice or the Plan.




          1.2 Construction. Captions and titles contained herein are for convenience only and shall not
affect the meaning or interpretation of any provision of this Agreement. Except when otherwise
indicated by the context, the singular shall include the plural and the plural shall include the
singular. Use of the term “or” is not intended to be exclusive, unless the context clearly
requires otherwise.




     2. Administration.



          All questions of interpretation concerning the Grant Notice, this Agreement and the Plan shall
be determined by the Plan Administrator. All determinations by the Plan Administrator shall be
final and binding upon all persons having an interest in the Award. Any officer of the Corporation
shall have the authority to act on behalf of the Corporation with respect to any matter, right,
obligation, or election which is the responsibility of or which is allocated to the Corporation
herein, provided that such officer has apparent authority with respect to such matter, right,
obligation, or election.




     3. The Award.



          3.1 Grant of Units. On the Grant Date, the Participant shall acquire, subject to the
provisions of this Agreement, the Number of Restricted Stock Units set forth in the Grant Notice,
subject to adjustment as provided in Section 9. Each Unit represents a right to receive on a date
determined in accordance with the Grant Notice and this Agreement one (1) share of Common Stock.




 









 








          3.2 No Monetary Payment Required. The Participant is not required to make any monetary
payment (other than applicable tax withholding, if any) as a condition to receiving the Units or
shares of Common Stock issued upon settlement of the Units, the consideration for which shall be
past services actually rendered and/or future services to be rendered to the Corporation (or any
Parent or Subsidiary) or for its benefit. Notwithstanding the foregoing, if required by applicable
state corporate law, the Participant shall furnish consideration in the form of cash or past
services rendered to the Corporation (or any Parent or Subsidiary) or for its benefit having a
value not less than the par value of the shares of Common Stock issued upon settlement of the
Units.




     4. Vesting of Units.



          4.1 Regular Vesting. Except as provided by Section 4.2 or by Section 8, the Units shall vest
and become Vested Units as provided in the Grant Notice.




          4.2 Vesting Upon Death or Permanent Disability. Upon the cessation of the Participant’s
service as a member of the Board by reason of death or Permanent Disability, the vesting of the
Units shall be accelerated in full and the total Number of Restricted Stock Units shall be deemed
Vested Units effective as of the date of such termination of Service.




     5. Corporation Reacquisition Right.



          In the event that the Participant’s Service terminates for any reason or no reason, with or
without cause, the Participant shall forfeit and the Corporation shall automatically reacquire all
Units which are not, as of the time of such termination, Vested Units, and the Participant shall
not be entitled to any payment therefor.




     6. Settlement of the Award.



          6.1 Issuance of Shares of Common Stock. Subject to the provisions of Section 6.3 below, the
Corporation shall issue to the Participant on the Settlement Date with respect to each Vested Unit
to be settled on such date one (1) share of Common Stock. Shares of Common Stock issued in
settlement of Units shall not be subject to any restriction on transfer other than any such
restriction as may be required pursuant to Section 6.3, Section 7 or the Corporation’s Insider
Trading Policy.




          6.2 Beneficial Ownership of Shares; Certificate Registration. The Participant hereby
authorizes the Corporation, in its sole discretion, to deposit for the benefit of the Participant
with any broker with which the Participant has an account relationship of which the Corporation has
notice any or all shares acquired by the Participant pursuant to the settlement of the Award.
Except as provided by the preceding sentence, a certificate for the shares as to which the Award is
settled shall be registered in the name of the Participant, or, if applicable, in the names of the
heirs of the Participant.




          6.3 Restrictions on Grant of the Award and Issuance of Shares. The grant of the Award and
issuance of shares of Common Stock upon settlement of the Award shall be subject to compliance with
all applicable requirements of federal, state law or foreign law with respect to such securities.
No shares of Common Stock may be issued hereunder if the issuance




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of such shares would constitute a violation of any applicable federal, state or foreign
securities laws or other law or regulations or the requirements of any stock exchange or market
system upon which the Common Stock may then be listed. The inability of the Corporation to obtain
from any regulatory body having jurisdiction the authority, if any, deemed by the Corporation’s
legal counsel to be necessary to the lawful issuance of any shares subject to the Award shall
relieve the Corporation of any liability in respect of the failure to issue such shares as to which
such requisite authority shall not have been obtained. As a condition to the settlement of the
Award, the Corporation may require the Participant to satisfy any qualifications that may be
necessary or appropriate, to evidence compliance with any applicable law or regulation and to make
any representation or warranty with respect thereto as may be requested by the Corporation.




          6.4 Fractional Shares. The Corporation shall not be required to issue fractional shares upon
the settlement of the Award.




     7. Tax Withholding.



          7.1 In General. At the time the Grant Notice is executed, or at any time thereafter as
requested by the Company, the Participant hereby authorizes withholding from payroll and any other
amounts payable to the Participant, and otherwise agrees to make adequate provision for, any sums
required to satisfy the federal, state, local and foreign tax withholding obligations of the
Company, if any, which arise in connection with the Award or the issuance of shares of Stock in
settlement thereof. The Corporation shall have no obligation to process the settlement of the
Award or to deliver shares until the tax withholding obligations as described in this Section have
been satisfied by the Participant.




          7.2 Withholding in Shares. Subject to applicable law, the Corporation shall require the
Participant to satisfy its tax withholding obligations by deducting from the shares of Common Stock
otherwise deliverable to the Participant in settlement of the Award a number of whole shares having
a fair market value, as determined by the Corporation as of the date on which the tax withholding
obligations arise, not in excess of the amount of such tax withholding obligations determined by
the applicable minimum statutory withholding rates.




     8. Effect of Corporate Transaction or Change in Control on Award.



          In the event of a Corporate Transaction or Change in Control while the Participant remains in
Service, the vesting of the Units shall be accelerated in full and the total Number of Restricted
Stock Units subject to the Award shall be deemed Vested Units effective immediately prior to the
effective time, but conditioned upon the consummation, of such Corporate Transaction or Change in
Control, and the Award shall be settled in full in accordance with Section 6 immediately prior to
the Corporate Transaction.




     9. Adjustments for Changes in Capital Structure.



          Subject to any required action by the stockholders of the Corporation, in the event of any
change in the Common Stock effected without receipt of consideration by the Corporation, whether
through merger, consolidation, reorganization, reincorporation, recapitalization, reclassification,
stock dividend, stock split, reverse stock split, split-up, split-off,




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spin-off, combination of shares, exchange of shares, or similar change in the capital
structure of the Corporation, appropriate adjustments shall be made in the number of Units subject
to the Award and/or the number and kind of shares to be issued in settlement of the Award, in order
to prevent dilution or enlargement of the Participant’s rights under the Award. For purposes of
the foregoing, conversion of any convertible securities of the Corporation shall not be treated as
“effected without receipt of consideration by the Corporation.” Any fractional share resulting
from an adjustment pursuant to this Section shall be rounded down to the nearest whole number.
Such adjustments shall be determined by the Plan Administrator, and its determination shall be
final, binding and conclusive.




     10. Rights as a Stockholder.



          The Participant shall have no rights as a stockholder with respect to any shares which may be
issued in settlement of this Award until the date of the issuance of a certificate for such shares
(as evidenced by the appropriate entry on the books of the Corporation or of a duly authorized
transfer agent of the Corporation). No adjustment shall be made for dividends, distributions or
other rights for which the record date is prior to the date such certificate is issued, except as
provided in Section 9.




     11. Legends.



          The Corporation may at any time place legends referencing any applicable federal, state or
foreign securities law restrictions on all certificates representing shares of Common Stock issued
pursuant to this Agreement. The Participant shall, at the request of the Corporation, promptly
present to the Corporation any and all certificates representing shares acquired pursuant to this
Award in the possession of the Participant in order to carry out the provisions of this Section.




     12. Miscellaneous Provisions.



          12.1 Termination or Amendment. The Plan Administrator may terminate or amend the Plan or this
Agreement at any time; provided, however, that no such termination or amendment may adversely
affect the Participant’s rights under this Agreement without the consent of the Participant unless
such termination or amendment is necessary to comply with applicable law or government regulation.
No amendment or addition to this Agreement shall be effective unless in writing.




          12.2 Nontransferability of the Award. Prior to the issuance of shares of Common Stock on the
applicable Settlement Date, neither this Award nor any Units subject to this Award shall be subject
in any manner to anticipation, alienation, sale, exchange, transfer, assignment, pledge,
encumbrance, or garnishment by creditors of the Participant or the Participant’s beneficiary,
except transfer by will or by the laws of descent and distribution. All rights with respect to the
Award shall be exercisable during the Participant’s lifetime only by the Participant or the
Participant’s guardian or legal representative.




          12.3 Further Instruments. The parties hereto agree to execute such further instruments and to
take such further action as may reasonably be necessary to carry out the intent of this Agreement.




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          12.4 Binding Effect. This Agreement shall inure to the benefit of the successors and assigns
of the Corporation and, subject to the restrictions on transfer set forth herein, be binding upon
the Participant and the Participant’s heirs, executors, administrators, successors and assigns.




          12.5 Delivery of Documents and Notices. Any document relating to participation in the Plan or
any notice required or permitted hereunder shall be given in writing and shall be deemed
effectively given (except to the extent that this Agreement provides for effectiveness only upon
actual receipt of such notice) upon personal delivery, electronic delivery at the e-mail address,
if any, provided for the Participant by the Corporation or a Parent or Subsidiary, or upon deposit
in the U.S. Post Office or foreign postal service, by registered or certified mail, or with a
nationally recognized overnight courier service, with postage and fees prepaid, addressed to the
other party at the address shown below that party’s signature to the Grant Notice or at such other
address as such party may designate in writing from time to time to the other party.




               (a) Description of Electronic Delivery. The Plan documents, which may include but do not
necessarily include: the Plan, the Grant Notice, this Agreement, the Plan Prospectus, and any
reports of the Corporation provided generally to the Corporation’s stockholders, may be delivered
to the Participant electronically. In addition, the Participant may deliver electronically the
Grant Notice to the Corporation or to such third party involved in administering the Plan as the
Corporation may designate from time to time. Such means of electronic delivery may include but do
not necessarily include the delivery of a link to a Corporation intranet or the internet site of a
third party involved in administering the Plan, the delivery of the document via e-mail or such
other means of electronic delivery specified by the Corporation.



               (b) Consent to Electronic Delivery. The Participant acknowledges that the Participant has
read Section 12.5(a) of this Agreement and consents to the electronic delivery of the Plan
documents and Grant Notice, as described in Section 12.5(a). The Participant acknowledges that he
or she may receive from the Corporation a paper copy of any documents delivered electronically at
no cost to the Participant by contacting the Corporation by telephone or in writing. The
Participant further acknowledges that the Participant will be provided with a paper copy of any
documents if the attempted electronic delivery of such documents fails. Similarly, the Participant
understands that the Participant must provide the Corporation or any designated third party
administrator with a paper copy of any documents if the attempted electronic delivery of such
documents fails. The Participant may revoke his or her consent to the electronic delivery of
documents described in Section 12.5(a) or may change the electronic mail address to which such
documents are to be delivered (if Participant has provided an electronic mail address) at any time
by notifying the Corporation of such revoked consent or revised e-mail address by telephone, postal
service or electronic mail. Finally, the Participant understands that he or she is not required to
consent to electronic delivery of documents described in Section 12.5(a).



          12.6 Integrated Agreement. The Grant Notice, this Agreement and the Plan shall constitute the
entire understanding and agreement of the Participant and the Corporation with respect to the
subject matter contained herein or therein and supersedes any prior




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agreements, understandings, restrictions, representations, or warranties between the
Participant and the Corporation with respect to such subject matter other than those as set forth
or provided for herein or therein. To the extent contemplated herein or therein, the provisions of
the Grant Notice and the Agreement shall survive any settlement of the Award and shall remain in
full force and effect.




          12.7 Applicable Law. This Agreement shall be governed by the laws of the State of California
as such laws are applied to agreements between California residents entered into and to be
performed entirely within the State of California.




          12.8 Counterparts. The Grant Notice may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same instrument.





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