EXHIBIT 10.23
RESTRICTED STOCK AWARD AGREEMENT
This Restricted Stock Award Agreement (the "Award") is made this 29th
day of March, 2004 ("Date of Grant") by ServiceWare Technologies, Inc., a
Delaware corporation (the "Company") to Xxxx X. Xxxxxx (the "Grantee").
WHEREAS, Grantee is receiving the Award as part of his compensation for
services rendered to date; and
WHEREAS, it is a condition to Grantee receiving the Award that Grantee
execute and deliver to the Company this agreement evidencing the terms,
conditions and restrictions applicable to the Restricted Stock (as hereinafter
defined).
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for other good and valuable consideration, the Company hereby awards
Restricted Stock to Grantee on the following terms and conditions:
1. AWARD OF RESTRICTED STOCK. The Company hereby grants to Grantee a
total of sixty thousand seven hundred fourteen (60,714) shares of the Company's
common stock (the "Restricted Stock") subject to the terms and conditions set
forth below.
2. RESTRICTIONS.
A. The Restricted Stock is being awarded to Grantee subject to
the transfer and forfeiture conditions set forth in Paragraph B below
(the "Restrictions") which shall lapse, if at all, as described in
Section 3 below. For purposes of this Award, the term Restricted Stock
includes any additional shares of stock granted to the Grantee with
respect to any Restricted Stock prior to the expiration of the
Restricted Period (as defined in Section 3 below).
B. Grantee may not directly or indirectly, by operation of law
or otherwise, voluntarily or involuntarily, sell, assign, pledge,
encumber, charge or otherwise transfer (a "transfer") any of the
Restricted Stock until the expiration of the Restricted Period. Any
transfer or attempted transfer prior to such time shall be null and
void and of no effect whatsoever. If the Grantee's employment with the
Company terminates during the Restricted Period for any reason other
than as set forth in Section 3 below, then the Grantee shall forfeit
all of the Grantee's right, title and interest in and to the Restricted
Stock as of the date of such termination and such Restricted Stock
shall be reconveyed to the Company as of the date of such termination
without further consideration or any act or action by the Grantee. The
restrictions imposed under this Section 2 shall apply to all shares of
the Company's common stock or other securities issued with respect to
Restricted Stock hereunder in connection with any merger,
reorganization, consolidation, recapitalization, stock dividend or
other change in corporate structure affecting the common stock of the
Company.
3. EXPIRATION AND TERMINATION OF RESTRICTIONS. The Restrictions imposed
under Section 2 above will expire on the earliest to occur of the following
dates (the period prior to such expiration being referred to herein as the
"Restricted Period"):
A. March 29, 2006;
B. On the date of a "Change in Control" of the Company (as
defined in Section 4 below);
C. Ninety (90) days after the termination of Grantee's
employment with the Company by Grantee for Good Reason under the terms
of Grantee's employment agreement with the Company;
D. Ninety (90) days after the termination of Grantee's
employment with the Company by the Company without cause under the
terms of Grantee's employment agreement with the Company; or
E. The date of the death or total disability of the Grantee.
4. CHANGE IN CONTROL. For purposes of Section 3 above, "Change in
Control" shall be defined as the occurrence of either or both of the following:
(i) The effective date or date of consummation of any
transaction or series of transactions (other than a transaction to
which only the Company and one or more of its subsidiaries are parties)
pursuant to which the Company: (1) becomes a subsidiary of another
corporation or business entity; (2) is merged or consolidated with or
into another corporation or other business entity; (3) engages in an
exchange of stock with another corporation; or (4) transfers, sells or
otherwise disposes of all or substantially all of its assets to a
single purchaser (other than the Grantee) or a group of purchasers
(none of whom is the Grantee); provided, however, that this subsection
(i) shall not be applicable to a transaction or series of transactions
in which a majority of the capital stock of the surviving or resulting
corporation immediately following such transaction or series of
transactions, is owned or controlled by the holders of the Company's
outstanding capital stock immediately before such transaction; or
(ii) The date upon which any person (other than the Grantee),
group of associated persons acting in concert (none of whom is the
Grantee) or corporation (other than a corporation in which the Grantee
owns a controlling interest) becomes a direct or indirect beneficial
owner of stock of the Company representing an aggregate of more than
fifty percent (50%) of the votes then entitled to be cast at an
election of directors of the Company; provided, however, that this
subsection (ii) shall not be applicable to the acquisition of such
stock interest by Xxxxxx Xxxxxxxxx and his affiliates or to an equity
financing transaction or series of transactions, which are for the sole
purpose of raising cash to finance the continuing operations of the
Company.
2
5. ADJUSTMENTS. If the number of outstanding shares of common stock of
the Company is changed as a result of stock dividend, stock split or the like
without additional consideration to the Company, the number of shares of
Restricted Stock subject to this Award shall be adjusted to correspond to the
change in the outstanding shares of the Company's common stock.
6. VOTING AND DIVIDENDS. Subject to the restrictions contained in
Section 2 hereof, Grantee shall have all rights of a stockholder of the Company
with respect to the Restricted Stock, including the right to vote the shares of
Restricted Stock and the right to receive any cash or stock dividends, including
dividends of stock of a company other than the Company. Stock dividends issued
with respect to the Restricted Stock shall be treated as additional shares of
Restricted Stock (even if they are shares of a company other than the Company)
that are subject to the same restrictions and other terms and conditions that
apply to the shares with respect to which such dividends are issued. If a
dividend is paid in other property, the Grantee will be credited with the amount
of property which would have been received had the Grantee owned a number of
shares of common stock equal to the number of shares of Restricted Stock
credited to his account. The property so credited will be subject to the same
Restrictions and other terms and conditions applicable to the Restricted Stock
and will be disbursed to Grantee in kind at the time the Restrictions lapse.
7. DELIVERY OF SHARES. The shares of Restricted Stock will be issued in
the name of the Grantee as Restricted Stock and will be held by the Company
during the Restricted Period in certificated or uncertificated form. If a
certificate for Restricted Stock is issued during the Restricted Period, such
certificate shall be registered in the name of the Grantee and shall bear a
legend in substantially the following form:
"This certificate and the shares of stock represented hereby are
subject to the terms and conditions (including forfeiture and restrictions
against transfer) contained in a Restricted Stock Award Agreement dated March
29, 2004, between the registered owner of the shares represented hereby and
ServiceWare Technologies, Inc. Release from such terms and conditions shall be
made only in accordance with the provisions of such Agreement, copies of which
are on file in the office of ServiceWare Technologies, Inc."
The Grantee shall deposit with the Company a stock power, or powers,
executed in blank and sufficient to reconvey the Restricted Shares to the
Company upon any forfeiture of the Restricted Stock, in accordance with the
provisions of this Agreement. Upon the expiration of the Restricted Period, all
stock certificates and stock powers shall be released to Grantee.
8. WITHHOLDING TAXES. The Company is entitled to withhold an amount
equal to the Company's required minimum statutory withholding taxes for the
respective tax jurisdiction attributable to any share of common stock or
property deliverable in connection with the Restricted Stock. Grantee may
satisfy any withholding obligation in whole or in part of electing to have the
Company retain shares of the Restricted Stock having a Fair Market Value on the
date of the expiration of the Restricted Period equal to the minimum amount to
be withheld. Fair Market Value for this purpose shall be the closing price for a
share of the Company's common stock on the last trading day before the date the
Restrictions lapse.
3
9. OTHER RIGHTS. The grant of Restricted Stock does not confer upon
Grantee any right to continue in the employ of the Company or to interfere with
the right of the Company to terminate Grantee's employment at any time.
10. NOTICES. Any written notice under this Award shall be deemed given
on the date that is three business days after it is sent by registered or
certified mail, postage prepaid, addressed either to the Grantee at his address
set forth below or to the Company at One North Shore Center, 00 Xxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxxxxx 00000. Any notice may be sent using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, ordinary mail or electronic mail) but no such notice shall be deemed
to have been duly given unless and until it is actually received by the intended
recipient. The Grantee and the Company may change the address to which notices
are to be delivered by giving the other party notice in the manner set forth
herein.
11. NONTRANSFERABILITY. This Agreement and all rights hereunder are
nontransferable and nonassignable by the Grantee, other than by the last will
and testament of the Grantee or the laws of descent and distribution, unless the
Company consents thereto in writing. Any transfer or attempted transfer except
pursuant to the preceding sentence shall be null and void and of no effect
whatsoever.
12. SECTION 83(b) ELECTION. The Grantee may make an election to be
taxed upon the grant of his Restricted Stock under Section 83(b) of the Internal
Revenue Code of 1986, as amended. To effect such election, the Grantee must file
an appropriate election with the Internal Revenue Service within thirty (30)
days after the grant of the Restricted Stock and otherwise in accordance with
the applicable Treasury Regulations.
13. AMENDMENT. This Agreement may not be amended except by a writing
signed by the Company and the Grantee.
14. HEIRS AND SUCCESSORS. Subject to Section 11 above, this Agreement
and all terms and conditions hereof shall be binding upon the Company and its
successors and assigns, and upon the Grantee and his heirs, legatees and legal
representatives.
15. SEVERABILITY. The provisions of this Agreement, and of each
separate section and subsection, are severable, and if any one or more
provisions may be determined to be illegal or otherwise unenforceable, in whole
or in part, the remaining provisions, and any unenforceable provisions to the
extent enforceable, shall nevertheless be binding and enforceable.
16. GOVERNING LAW. All questions concerning the construction, validity
and interpretation of this Award shall be governed by and construed according to
the internal law and not the law of conflicts of the State of Pennsylvania.
4
17. WAIVER. The failure of the Company to enforce at any time any
provision of this Award shall in no way be construed to be a waiver of such
provision or any other provision hereof.
IN WITNESS WHEREOF, the Company has executed this Agreement as of day
and year first above written.
SERVICEWARE TECHNOLOGIES, INC.
By:
-------------------------------
Its:
------------------------------
The undersigned Grantee hereby accepts, and agrees to, all terms and
provisions of the foregoing Award.
----------------------------
Xxxx X. Xxxxxx
00 Xxxxxxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
5
