exv10w9







Exhibit 10.9




NETEZZA CORPORATION




Director Restricted Stock Agreement



     This Director Restricted Stock Agreement is made between Netezza Corporation (the “Company”)
and                      (the “Recipient”) as of                      ___, 20___(the “Grant Date”).



     1. Grant of Restricted Shares.



          (a) In consideration of the Recipient’s service as a director of the Company, the
Company is granting to the Recipient, as of the Grant Date,                      shares of restricted common
stock of the Company (the “Restricted Shares”). The Restricted Shares are being granted pursuant
to the provisions of the Company’s 2007 Stock Incentive Plan (the “Plan”) and are subject to the
terms and conditions contained in this Restricted Stock Agreement, including the forfeiture
provisions set forth in Section 3 of this Agreement, the deferred delivery provisions set forth in
Section 4 of this Agreement, and the restrictions on transfer set forth in Section 5 of this
Agreement.




          (b) As promptly as practicable following the Grant Date, the Company shall issue
one or more certificates in the name of the Recipient for the Restricted Shares. Such
certificate(s) shall be held on behalf of the Recipient by the Secretary of the Company until the
Delivery Date (as defined in Section 4 below). The Secretary shall hold such certificate(s) in
accordance with the terms of the Joint Escrow Instructions in the form attached to this
Agreement as Exhibit A, which shall be executed by the Company, the Recipient
and the Secretary as escrow agent upon the execution of this Agreement (the “Joint Escrow
Instructions”). In connection with the execution of the Joint Escrow Instructions, the
Recipient shall deliver to the escrow agent a stock assignment duly endorsed in blank.




     2. Vesting. The Restricted Shares shall vest upon the earlier of (a) the first
anniversary of the Grant Date and (b) immediately prior to an Acquisition (as defined below) of the
Company. For purposes of this Agreement, the term “Acquisition” shall mean (i) any merger or
consolidation in which (A) the Company is a constituent party or (B) a subsidiary of the Company is
a constituent party and the Company issues shares of its capital stock pursuant to such merger or
consolidation (except, in the case of both clauses (A) and (B) above, any such merger or
consolidation involving the Company or a subsidiary in which the outstanding capital stock of the
Company immediately prior to such merger or consolidation is converted into or continues to
represent, immediately following such merger or consolidation, at least 51% by voting power of the
capital stock of (I) the surviving or resulting corporation or (II) if the surviving or resulting
corporation is a wholly owned subsidiary of another corporation immediately following such merger
or consolidation, of the parent corporation of such surviving or resulting corporation) or (ii) the
sale or transfer, in a single transaction or series of related transactions, of outstanding capital
stock representing at least 51% of the voting power of the



 









 




outstanding capital stock of the Company immediately following such transaction or (iii) the
sale of all or substantially all of the assets of the Company; provided that such
Acquisition event also constitutes a “change in the ownership or effective control of a corporation
or a change in the ownership of a substantial portion of the assets of a corporation,” as defined
for purposes of Section 409A of the Internal Revenue Code of 1986, as amended, and the guidance
issued thereunder (“Section 409A”).




     3. Forfeiture of Unvested Restricted Shares Upon Termination of Director Service. In
the event that the Recipient ceases to serve as a director of the Company for any reason or no
reason prior to the vesting of the Restricted Shares, the Restricted Shares shall be forfeited
immediately and automatically to the Company, without the payment of any consideration to the
Recipient, effective as of such termination of director service. For purposes of clarification, if
the cessation of the Recipient’s service as a director of the Company occurs in connection with the
closing of an Acquisition, the Restricted Shares shall be deemed to vest immediately prior to such
cessation of service and shall not be forfeited. The Recipient hereby authorizes the Company to
take any actions necessary or appropriate to cancel any certificate(s) representing forfeited
Restricted Shares and transfer ownership of such forfeited Restricted Shares to the Company. The
Recipient shall have no further rights with respect to any Restricted Shares that are so forfeited.



     4. Distribution of Shares; Deferral of Delivery. The Secretary shall deliver to the
Recipient a certificate representing the vested Restricted Shares upon the earlier of (a) such time
as the Recipient ceases to serve as a director of the Company provided that such cessation
constitutes a “separation from service” as defined in Section 409A and (b) an Acquisition of the
Company (the first of such events, the “Delivery Date”). Notwithstanding any provision of this
Agreement or the Plan to the contrary, (x) neither the Company nor the Recipient may accelerate or
defer the delivery of the Restricted Shares and (y) in the event that the Recipient is a “specified
employee” within the meaning of Section 409A upon his or her “separation from service”, then the
Delivery Date shall be delayed until the date that is six months and one day after the separation
from service.



     5. Restrictions on Transfer. The Recipient shall not sell, assign, transfer, pledge,
hypothecate or otherwise dispose of, by operation of law or otherwise (collectively “transfer”) any
Restricted Shares, or any interest therein, until the Delivery Date. The Company shall not be
required (i) to transfer on its books any of the Restricted Shares which have been transferred in
violation of any of the provisions of this Agreement or (ii) to treat as owner of such Restricted
Shares or to pay dividends to any transferee to whom such Restricted Shares have been transferred
in violation of any of the provisions of this Agreement.



     6. Restrictive Legends. Prior to the Delivery Date, all certificates representing
Restricted Shares shall have affixed thereto a legend in substantially the following form, in
addition to any other legends that may be required under applicable law:



     “These shares of stock are subject to forfeiture provisions and restrictions on
transfer set forth in a certain Restricted Stock Agreement between the corporation and the
registered owner of these shares (or his or her predecessor in interest), and such Agreement is
available for inspection without charge at the office of the Secretary of the corporation.”



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     7. Rights as a Shareholder. Except as otherwise provided in this Agreement, for
so long as the Recipient is the registered owner of the Restricted Shares, the Recipient shall have
all rights as a shareholder with respect to the Restricted Shares, whether vested or unvested,
including, without limitation, any rights to vote the Restricted Shares and act in respect of the
Restricted Shares at any meeting of shareholders; provided, however, that if any dividends or
distributions are paid or made with respect to Restricted Shares (including cash dividends, or
dividends or distributions consisting of shares of capital stock or other property), such dividends
or distributions will be subject to the same restrictions on transferability and forfeitability as
the shares of Restricted Stock with respect to which they were paid. Any dividends shall be
delivered to the escrow agent designated in the Joint Escrow Instructions at the time
such amounts are paid to stockholders generally. Any dividends so delivered to the escrow agent
shall be held in escrow for distribution to the Recipient in accordance with the terms of the Joint
Escrow Instructions.



     8. Provisions of the Plan. This Agreement is subject to the provisions of the Plan, a
copy of which is furnished to the Recipient with this Agreement.



     9. Acknowledgments. The Recipient acknowledges that he or she is responsible
for obtaining the advice of the Recipient’s own tax advisors with respect to the issuance of the
Restricted Shares and the Recipient is relying solely on such advisors and not on any statements or
representations of the Company or any of its agents with respect to the tax consequences relating
to the Restricted Shares. The Recipient understands that the Recipient (and not the Company) shall
be responsible for the Recipient’s tax liability that may arise in connection with the issuance,
vesting, delivery and/or disposition of the Restricted Shares. The Recipient acknowledges that he
or she has decided not to make an election under Section 83(b) of the Internal Revenue Code, as
amended, with respect to the issuance of the Restricted Shares.



     10. Miscellaneous.



          (a) Authority of Compensation Committee. In making any decisions or
taking any actions with respect to the matters covered by this Agreement, the Compensation
Committee shall have all of the authority and discretion, and shall be subject to all of the
protections, provided for in the Plan. All decisions and actions by the Compensation Committee
with respect to this Agreement shall be made in the Compensation Committee’s discretion and shall
be final and binding on the Recipient.




          (b) Recipient’s Acknowledgments. The Recipient acknowledges that he or
she has read this Agreement, has received and read the Plan, and understands the terms and
conditions of this Agreement and the Plan.




	 	 	 	 	 	 	 
	 	 	NETEZZA CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

Name: Patrick J. Scannell, Jr.
	 	 
	 

	 	 	 	Title: Sr. Vice President & CFO	 	 
	 
	 	 	 	 	 	 
	 	 	Accepted and Agreed:	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 





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Exhibit A




Netezza Corporation




Joint Escrow Instructions



                     ___, 20___



Corey C. DuFresne

Secretary

Netezza Corporation

26 Forest St.

Marlborough, MA 01752



Dear Sir:




     As Escrow Agent for Netezza Corporation, a Delaware corporation, and its successors in
interest under the Restricted Stock Agreement (the “Agreement”) of even date herewith, to which a
copy of these Joint Escrow Instructions is attached (the “Company”), and the undersigned person
(“Holder”), you are hereby authorized and directed to hold the documents delivered to you pursuant
to the terms of the Agreement in accordance with the following instructions:



     1. Appointment. Holder irrevocably authorizes the Company to deposit with you any
certificates evidencing Restricted Shares (as defined in the Agreement) to be held by you hereunder
and any additions and substitutions to said Restricted Shares. For purposes of these Joint Escrow
Instructions, “Restricted Shares” shall be deemed to include any additional or substitute property,
including, without limitation, any dividends (including ordinary cash dividends) and distributions
with respect to such Restricted Shares. Holder does hereby irrevocably constitute and appoint you
as his attorney-in-fact and agent for the term of this escrow to execute with respect to such
Restricted Shares all documents necessary or appropriate to make such Restricted Shares negotiable
and to complete any transaction herein contemplated. Subject to the provisions of this Section 1
and the terms of the Agreement, Holder shall exercise all rights and privileges of a stockholder of
the Company while the Restricted Shares are held by you.



     2. Forfeiture. Upon any forfeiture of the Restricted Shares to the Company pursuant
to the Agreement, the Company shall give to you a written notice of such forfeiture. Upon receipt
of such notice, you are directed to date the stock assignment form or forms necessary for the
transfer of the Restricted Shares to the Company, and to deliver the same, together with the
certificate(s) evidencing the Restricted Shares, to the Company.



     3. Delivery. The Company shall give you prompt written notice of the occurrence of a
Delivery Date (as defined in the Agreement). Promptly following the Delivery Date, and in any
event within 30 days thereof, you shall deliver to Holder the certificate(s) representing the
Restricted Shares and any such additional or substitute property constituting the Restricted Shares
hereunder. Holder shall have no right to withdraw from this escrow any Restricted Shares until the
Delivery Date.



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     4. Duties of Escrow Agent.



          (a) These Joint Escrow Instructions set forth your sole duties with respect to any and all
matters pertinent hereto and no implied duties or obligations shall be read into these Joint Escrow
Instructions against you. Your duties hereunder may be altered, amended, modified or revoked only
by a writing signed by all of the parties hereto. You may rely and shall be protected in relying
or refraining from acting on any instrument reasonably believed by you to be genuine and to have
been signed or presented by the proper party or parties. You shall not be personally liable for
any act you may do or omit to do hereunder as Escrow Agent or as attorney-in-fact of Holder while
acting in good faith and in the exercise of your own good judgment, and any act done or omitted by
you pursuant to the advice of your own attorneys shall be conclusive evidence of such good faith.




          (b) You are hereby expressly authorized to disregard any and all warnings given by any of the
parties hereto or by any other person or entity, excepting only orders or process of courts of law,
and are hereby expressly authorized to comply with and obey orders, judgments or decrees of any
court. If you are uncertain of any actions to be taken or instructions to be followed, you may
refuse to act in the absence of an order, judgment or decrees of a court. In case you obey or
comply with any such order, judgment or decree of any court, you shall not be liable to any of the
parties hereto or to any other person or entity, 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.




          (c) You 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 the Agreement or any
documents or papers deposited or called for hereunder. You shall be entitled to employ such legal
counsel and other experts as you may deem necessary properly to advise you in connection with your
obligations hereunder and may rely upon the advice of such counsel.




          (d) Your rights and responsibilities as Escrow Agent hereunder shall terminate if (i) you
cease to be Secretary of the Company or (ii) you resign by written notice to each party. In the
event of a termination under clause (i), your successor as Secretary shall become Escrow Agent
hereunder; in the event of a termination under clause (ii), the Company shall appoint a successor
Escrow Agent hereunder.




          (e) The Company shall indemnify you and hold you harmless against any and all damages, losses,
liabilities, costs, and expenses, including attorneys’ fees and disbursements, (including without
limitation the fees of counsel retained pursuant to Section 2(c) above), for anything done or
omitted to be done by you as Escrow Agent in connection with this Agreement or the performance of
your duties hereunder, except such as shall result from your gross negligence or willful
misconduct.




     5. Notice. Any notice required or permitted hereunder shall be given in writing and
shall be deemed effectively given upon personal delivery or upon deposit in the United States Post
Office, by registered or certified mail with postage and fees prepaid, addressed to each of the
other parties thereunto entitled at the following addresses, or at such other addresses as a party
may designate by ten days’ advance written notice to each of the other parties hereto.



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	 	COMPANY:
	 	Notices to the Company shall be sent to the address set forth in the salutation
hereto, Attn: President
	 
	 	 	 	 
	 

	 	HOLDER:
	 	Notices to Holder shall be sent to the address set forth below Holder’s signature
below.
	 
	 	 	 	 
	 

	 	ESCROW AGENT:
	 	Notices to the Escrow Agent shall be sent to the address set forth in the
salutation hereto.






	 	 	 	 	 	 	 
	 	 	Very truly yours,
	 
	 	 	 	 	 	 
	 	 	Netezza Corporation
	 
	 	 	 	 	 	 
	 	 	By: Patrick J. Scannell, Jr.
	 
	 	 	Title: Sr. Vice President & CFO
	 
	 	 	 	 	 	 
	 	 	HOLDER:
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	(Signature)	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	Print Name	 	 
	 
	 	 	 	 	 	 
	 	 	Address:
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	Date Signed:	 	 	 	 
	 

	 	 	 	 

	 	 





ESCROW AGENT:



Corey C. DuFresne







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