Forms of Performance Restricted Stock Unit Award Grant Notice and Agreement under 2012 Equity Incentive Plan
EX-10.1 2 yelpq1-19exhibit101.htm EXHIBIT 10.1 Exhibit
PERFORMANCE RESTRICTED STOCK UNIT GRANT NOTICE
2012 EQUITY INCENTIVE PLAN
Yelp Inc. (the "Company") hereby awards to Participant the number of performance restricted stock units ("PRSUs") set forth below (the "Award"). The Award is subject to all of the terms and conditions as set forth in this Notice (including Exhibit A), the 2012 Equity Incentive Plan (the "Plan") and the Performance Restricted Stock Unit Agreement (the "Award Agreement"), both of which are attached hereto and incorporated herein in their entirety. Capitalized terms not explicitly defined herein but defined in the Plan or the Award Agreement will have the same definitions as in the Plan or the Award Agreement. In the event of any conflict between the terms of the Award and the Plan, the terms of the Plan will control.
Date of Grant:
Vesting Commencement Date:
Number of PRSUs:
See the Performance Vesting Terms attached hereto as Exhibit A.
Subject to any change on a Capitalization Adjustment, one share of Common Stock will be issued for each PRSU which vests at the time set forth in Section 6 of the Award Agreement.
Additional Terms/Acknowledgements: Participant acknowledges receipt of, and understands and agrees to, this Performance Restricted Stock Unit Grant Notice, the Award Agreement, the Plan and the stock plan prospectus for this Plan. As of the Date of Grant, this Performance Restricted Stock Unit Grant Notice, the Award Agreement and the Plan set forth the entire understanding between Participant and the Company regarding the Award and supersede all prior oral and written agreements on the terms of the Award, with the exception, if applicable, of (i) the Company’s Executive Severance Benefit Plan (to the extent provided in Exhibit A), and (ii) any compensation recovery policy that is adopted by the Company or is otherwise required by applicable law. By accepting this Award, you consent to receive Plan documents by electronic delivery and 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.
Yelp Inc. Participant:
Performance Vesting Terms, Award Agreement, 2012 Equity Incentive Plan
PERFORMANCE VESTING TERMS
The PRSUs awarded hereunder shall vest, if at all, based upon achievement of both (A) the Performance Goal and (B) Participant’s Continuous Services over a Time-Based Vesting Schedule, as described below and subject to the terms and conditions of the Plan, the Grant Notice, Agreement and this Exhibit A.
1.Vesting Schedule. If the Performance Goal is achieved, the PRSUs shall immediately become vested, to the extent (if any) that Participant has met the Time-Based Vesting Schedule (and has not terminated Continuous Service) as of the date of such Performance Goal achievement. Thereafter, the PRSUs shall continue to be eligible to vest in accordance with the Time-Based Vesting Schedule, subject to Participant’s Continuous Service as of each such vesting date. No PRSUs shall vest in the event that Performance Goal is not achieved.
(a) The "Performance Goal" is met when the Closing Price first equals or exceeds $45.3125 for any 60 consecutive-trading-day period during the period beginning on the Date of Grant and ending on the four-year anniversary of the Date of Grant (the "Performance Period"). In the event of any stock split, reverse stock split or other Capitalization Adjustment that affects the Common Stock, $45.3125 (and all such references thereto in this Exhibit A) shall be equitably adjusted as determined to be appropriate by the Board or Compensation Committee thereof in its sole discretion. The "Closing Price" means the closing sales price for one (1) share of Common Stock as reported by the New York Stock Exchange (or, if the New York Stock Exchange is not the principal trading market for such shares, the closing sales price reported by the principal trading market for such shares).
(b)The "Time-Based Vesting Schedule" will be satisfied as follows: the total number of PRSUs awarded, as indicated on the Grant Notice, will vest in sixteen equal quarterly installments on each February 20, May 20, August 20 and November 20 following the Date of Grant, subject, in each case, to the Participant’s Continuous Service through each such vesting date.
2.Maximum PRSUs; Partial Achievement of Performance Goal. In no event may more than the total number of PRSUs awarded, as indicated on the Grant Notice, be eligible to vest and in no event may any PRSUs be eligible to vest upon partial achievement of the Performance Goal.
3.Impact of a Change in Control.
(a)If a Change in Control (as defined below) occurs during the Performance Period and prior to the Participant’s cessation of Continuous Service, the number of PRSUs that will be eligible to become vested under the Award as a result of such Change in Control, if any, shall be determined based on the Change in Control Price. The "Change in Control Price" means the per-share consideration received by the Company stockholders in a Change in Control, provided that if such consideration consists in whole or in part of non-cash consideration, the Board or Compensation Committee thereof will determine the value of the non-cash per-share consideration for purposes of this Award in good faith in its sole discretion. "Change in Control" for purposes of this Exhibit A has the meaning set forth in the Company’s Executive Severance Benefit Plan in effect as of the Date of Grant (the "Severance Plan"); provided, however, that the occurrence of the events described in section 2(c)(iv) of the Severance Plan will not constitute a Change in Control for purposes of this Exhibit A.
(b)If the Change in Control Price is equal to or greater than $45.3125, the Performance Goal shall be deemed achieved as of such Change in Control and the PRSUs shall become immediately vested to the extent the Time-Based Vesting Schedule is met as of immediately prior to, and contingent upon, the effective date of such Change in Control. If the Change in Control price is less than $45.3125 and the Performance Goal has not otherwise been achieved prior to the Change in Control, the PRSUs will immediately terminate and be forfeited for no consideration as of immediately prior to, and contingent upon, the effective date of the Change in Control.
(c)To the extent the Performance Goal is achieved prior to (or as a result of) a Change in Control and the PRSUs are not fully vested as of such Change in Control, if the acquiring, surviving or continuing entity continues, assumes or substitutes for the PRSUs in such Change in Control on substantially the same terms and conditions as in effect prior to the Change in Control (in accordance with the terms of the Plan), the PRSUs will be eligible to continue to vest after such Change in Control subject to the Participant’s Continuous Service in accordance with the Time-Based Vesting Schedule, subject to potential vesting acceleration upon and following such Change in Control pursuant to the terms and conditions of the Severance Plan. Notwithstanding the terms of the Severance Plan, the potential vesting acceleration of the Participant’s equity awards set forth in the Severance Plan shall apply to the PRSUs only if the Performance Goal is achieved prior to (or as a result of) a Change in Control; no PRSUs shall be eligible to accelerate vesting under the Severance Plan if the Performance Goal has not been achieved prior to (or as a result of) the Change in Control.
4.Impact of Termination of Continuous Service. In the event of the Participant’s cessation of Continuous Service for any reason, the PRSUs credited to the Account that were not vested at the Participant’s cessation of Continuous Service will immediately terminate and be forfeited as of such date for no consideration, after giving effect to any vesting acceleration provided above under the Severance Plan.
5.Termination of Award. Any portion of the Award that is not vested as of the earlier of the occurrence of the following events will immediately terminate and be forfeited with no consideration:
(a) the end of the Performance Period, if the Performance Goal has not been achieved by such time;
(b)the effective time of a Change in Control if the Performance Goal has not been achieved as of such date (including as a result of such Change in Control pursuant to Section 3);
(c)the effective time of a Change in Control where the acquiring, surviving or continuing entity in such Change in Control refuses to continue, assume or substitute for the PRSUs in such Change in Control on substantially the same terms and conditions as in effect prior to the Change in Control (in accordance with the terms of the Plan), after giving effect to any vesting that occurs as a result of the Change in Control; and
(d) the cessation of Participant’s Continuous Service for any reason, after giving effect to any vesting acceleration under the Severance Plan set forth in Section 3, if applicable.
2012 EQUITY INCENTIVE PLAN
PERFORMANCE RESTRICTED STOCK UNIT AGREEMENT
Pursuant to the Performance Restricted Stock Unit Grant Notice, including Exhibit A attached thereto (the "Grant Notice"), and this Performance Restricted Stock Unit Agreement (the "Agreement") and in consideration of your services, Yelp Inc. (the "Company") has awarded you a Performance Restricted Stock Unit award (the "Award") under its 2012 Equity Incentive Plan (the "Plan") for the number of Performance Restricted Stock Units ("Restricted Stock Units") indicated in the Grant Notice. Capitalized terms not explicitly defined in this Agreement or in the Grant Notice but defined in the Plan will have the same definitions as in the Plan. In the event of any conflict between the terms in this Agreement and the Plan, the terms of the Plan will 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 your right to be issued on a future date one share of the Company’s Common Stock for each Restricted Stock Unit that vests.
2.Vesting. Your Restricted Stock Units will vest as provided in the Grant Notice. Vesting will cease upon the termination of your Continuous Service. Any Restricted Stock Units that have not yet vested will be forfeited on the termination of your Continuous Service.
3.Number of Restricted Stock Units & Shares of Common Stock.
(a)The Restricted Stock Units subject to your Award will be adjusted for Capitalization Adjustments, as provided in the Plan.
(b)Any additional Restricted Stock Units and any shares, cash or other property that become subject to the Award pursuant to this Section 3 will 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 Restricted Stock Units and shares covered by your Award.
(c)No fractional shares or rights for fractional shares of Common Stock will be created pursuant to this Section 3. Any fraction of a share will be rounded down to the nearest whole share.
4.Securities Law Compliance. You will not be issued any Common Stock underlying the Restricted Stock Units or other shares with respect to your Restricted Stock Units unless either (i) the shares are registered under the Securities Act, or (ii) 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 shares underlying your Restricted Stock Units if the Company determines that such receipt would not be in material compliance with such laws and regulations.
5.Transferability. Prior to the time that shares of Common Stock have been delivered to you, you may not transfer, pledge, sell or otherwise dispose of any portion of the Restricted Stock Units or the shares in respect of your Restricted Stock Units. For example, you may not use shares that may be issued in respect of your Restricted Stock Units as security for a loan, nor may you transfer, pledge, sell or otherwise dispose of such shares. This restriction on transfer will lapse upon delivery to you of shares in respect of your vested Restricted Stock Units.
(a)Death. Your Restricted Stock Units are not transferable other than by will and by the laws of descent and distribution. Upon receiving written permission from the Board or its duly authorized designee, you may, by delivering written notice to the Company, in a form provided by or otherwise satisfactory to the Company and any broker designated by the Company to effect transactions under the Plan, designate a third party who, in the event of your death, will thereafter be entitled to receive any distribution of Common Stock or other consideration to which you were entitled at the time of your death pursuant to this Agreement. In the absence of such a designation, your executor or administrator of your estate will be entitled to receive, on behalf of your estate, such Common Stock or other consideration.
(b)Domestic Relations Orders. Upon receiving written permission from the Board or its duly authorized designee, and provided that you and the designated transferee enter into transfer and other agreements required by the Company, you may transfer your right to receive the distribution of Common Stock or other consideration under your Restricted Stock Units,
pursuant to the terms of a domestic relations order or official marital settlement agreement that contains the information required by the Company to effectuate the transfer. You are encouraged to discuss with the Company’s General Counsel the proposed terms of any such transfer prior to finalizing the domestic relations order or marital settlement agreement to help ensure the required information is contained within the domestic relations order or marital settlement agreement. The Company is not obligated to allow you to transfer your Award in connection with your domestic relations order or marital settlement agreement.
6.Date of Issuance.
(a)The issuance of shares in respect of the Restricted Stock Units is intended to comply with Treasury Regulation Section 1.409A-1(b)(4) and will be construed and administered in such a manner.
(b)Subject to the satisfaction of the withholding obligations set forth in Section 10 of this Agreement, in the event one or more Restricted Stock Units vests, the Company will issue to you, on the applicable vesting date, one share of Common Stock for each Restricted Stock Unit that vests and such issuance date is referred to as the "Original Issuance Date." If the Original Issuance Date falls on a date that is not a business day, delivery will instead occur on the next following business day.
(c)However, if (i) the Original Issuance Date does not occur (1) during an "open window period" applicable to you, as determined by the Company in accordance with the Company’s then-effective policy on trading in Company securities, or (2) on a date when you are otherwise permitted to sell shares of Common Stock on an established stock exchange or stock market (including but not limited to under a previously established Company-approved 10b5-1 trading plan), and (ii) the Company elects, prior to the Original Issuance Date, (1) not to satisfy the Withholding Taxes described in Section 10 by withholding shares of Common Stock from the shares otherwise due, on the Original Issuance Date, to you under this Award, (2) not to permit you to enter into a "same day sale" commitment with a broker-dealer pursuant to Section 10 of this Agreement (including but not limited to a commitment under a previously established Company-approved 10b5-1 trading plan), and (3) not to permit you to pay your Withholding Taxes in cash, then the shares that would otherwise be issued to you on the Original Issuance Date will not be delivered on such Original Issuance Date and will instead be delivered on the first business day when you are not prohibited from selling shares of the Company’s Common Stock in the open public market, but in no event later than December 31 of the calendar year in which the Original Issuance Date occurs (that is, the last day of your taxable year in which the Original Issuance Date occurs), or, if and only if permitted in a manner that complies with Treasury Regulation Section 1.409A-1(b)(4), no later than the date that is the 15th day of the third calendar month of the year following the year in which the shares of Common Stock under this Award are no longer subject to a "substantial risk of forfeiture" within the meaning of Treasury Regulation Section 1.409A-1(d).
7.Dividends. You will receive no benefit or adjustment to your Restricted Stock Units with respect to any cash dividend, stock dividend or other distribution except as provided in the Plan with respect to a Capitalization Adjustment.
8.Restrictive Legends. The Common Stock issued with respect to your Restricted Stock Units will be endorsed with appropriate legends determined by the Company.
9.Award not a Service Contract. Your Continuous Service 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 Restricted Stock Units or the issuance of the shares subject to your Restricted Stock Units), 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 or service 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.
(a)On each vesting date, and on or before the time you receive a distribution of the shares underlying your Restricted Stock Units, and at any other time as reasonably requested by the Company in accordance with applicable tax laws, you agree to make adequate provision for any sums required to satisfy the federal, state, local and foreign tax withholding obligations of the Company or any Affiliate that arise in connection with your Award (the "Withholding Taxes"). Specifically, the Company or an Affiliate may, in its sole discretion, satisfy all or any portion of the Withholding Taxes 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 or an Affiliate; (ii) causing you to tender a cash payment; (iii) permitting or requiring 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 in connection with your Restricted Stock Units 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 in connection with your Restricted Stock Units with a Fair Market Value (measured as of the date shares of Common Stock are issued to you) equal to the amount of such Withholding Taxes; provided, however, that the number of such shares of Common Stock so withheld will 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 Withholding Taxes of the Company and/or any Affiliate are satisfied, the Company will 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.
11.Unsecured Obligation. Your Award is unfunded, and as a holder of vested Restricted Stock Units, you will be considered an unsecured creditor of the Company with respect to the Company’s obligation, if any, to issue shares or other property pursuant to this Agreement. You will 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 to you. 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, will create or be construed to create a trust of any kind or a fiduciary relationship between you and the Company or any other person.
12.Other Documents. You hereby acknowledge receipt of and 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.
13.Notices. Any notices provided for in this Agreement or the Plan will be given in writing (including electronically) and will be deemed effectively given upon receipt or, in the case of notices delivered by the Company to you, five days after deposit in the United States mail, postage prepaid, addressed to you at the last address you provided to the Company. 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. By accepting this Award, you consent to receive such documents by electronic delivery and 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.
(a)The rights and obligations of the Company under your Award will be transferable to any one or more persons or entities, and all covenants and agreements hereunder will inure to the benefit of, and be enforceable by the Company’s successors and assigns.
(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 will 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 will 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.
15.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 in this Agreement, in the event of any conflict between the provisions of your Award and those of the Plan, the provisions of the Plan will control.
16.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 will 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.
17.Effect on Other Employee Benefit Plans. The value of the Award subject to this Agreement will not be included as compensation, earnings, salaries, or other similar terms used when calculating the Employee’s 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.
18.Amendment. Any amendment to this Agreement must be in writing, signed by a duly authorized representative of the Company. The Board reserves the right to amend 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, interpretation, ruling, or judicial decision.
19.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). However, if this Award fails to satisfy the requirements of the short-term deferral rule and is otherwise not exempt from, and therefore deemed to be deferred compensation subject to, Section 409A of the Code, 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 months thereafter will not be made on the originally scheduled dates and will instead be issued in a lump sum on the date that is six 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 a "separate payment" for purposes of Treasury Regulation Section 1.409A-2(b)(2).
20.No Obligation to Minimize Taxes. The Company has no duty or obligation to minimize the tax consequences to you of this Award and will not be liable to you for any adverse tax consequences to you arising in connection with this Award. You are hereby advised to consult with your own personal tax, financial and/or legal advisors regarding the tax consequences of this Award and by signing the Grant Notice, you have agreed that you have done so or knowingly and voluntarily declined to do so.
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This Performance Restricted Stock Unit Agreement will be deemed to be signed by you upon the signing by you of the Performance Restricted Stock Unit Grant Notice to which it is attached.