EXHIBIT 10.12
RESTRICTED STOCK AWARD AGREEMENT
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Grantee: Xxxxxx X. Xxxxx
Number of Shares of WebMD, Inc. Series E Common Stock: 105,000
Number of Shares of WebMD, Inc. Series F Preferred Stock: 4,038
Number of Shares of XXX.XXX, Inc. Series C Preferred Stock: 44,183
Grant Date: May 5, 1999
1. Grant of Shares. Premiere Technologies, Inc. (the "Company") hereby
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grants to Xxxxxx X. Xxxxx (the "Grantee"), as compensation for services rendered
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and as an incentive for the continued performance of services, and subject to
the restrictions and the other terms and conditions set forth in this agreement
(this "Agreement"), 105,000 shares of WebMD, Inc. Series E Common Stock and
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4,038 shares of WebMD, Inc. Series F Preferred Stock (collectively "WebMD
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Shares") and 44,183 shares of XXX.XXX, Inc. Series C Preferred Stock ("XXX.XXX
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Shares"), which are presently owned by the Company. The WebMD Shares and
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XXX.XXX Shares are referred to collectively as the "Shares." In the event that
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WebMD, Inc., XXX.XXX, Inc. or both do not transfer any fractional shares to
which this Agreement relates, the shares of WebMD, Inc. or XXX.XXX, Inc., as
applicable, to which Grantee is entitled, shall be reduced to the largest number
of whole shares included in the amount set forth above plus, if the issuer
transfers any fractional shares of such series, the greatest portion of any
fractional share included in the amount set forth above that such issuer shall
transfer.
2. Restrictions. The Shares are subject to each of the restrictions set
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forth in this Section 2.
(a) The term "Restricted Shares" means those Shares which are subject to
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the restrictions imposed hereunder which restrictions have not then expired or
terminated pursuant to Section 3 hereof. Restricted Shares may not be sold,
transferred, exchanged, assigned, pledged, hypothecated or otherwise encumbered,
except as provided herein. If Grantee's employment with the Company terminates
for any reason other than as set forth in Section 3(b) hereof, then Grantee
shall forfeit all of Grantee's right, title and interest in and to the
Restricted Shares as of the date of employment termination, and such Restricted
Shares shall be transferred back to the Company pursuant to a Stock Assignment
in favor of the Company with respect to the Shares in the form attached hereto
as Exhibit A (the "Stock Assignment"), and without any further act or action by
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Grantee. Grantee shall execute the Stock Assignment as a condition to receiving
the Shares.
(b) Grantee hereby agrees that he will be subject to and will comply with
the additional restrictions set forth on Exhibit B (the "Company Restrictions"),
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pursuant to the terms thereof. Grantee also agrees that he is an "accredited
investor" within the meaning of Rule 501 of Regulation D of the Securities Act
of 1933, as amended (the "Act"), as presently in effect. This Agreement is made
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with Grantee in reliance upon Grantee's representation to the Company that the
Shares to be received by Grantee will be acquired for investment for Grantee's
own account, not as a nominee or agent, and not with a view to the resale or
distribution of any part thereof, and Grantee has no present intention of
selling, granting any participation in, or otherwise distributing the same. The
Grantee further represents that he does not have any contract, undertaking,
agreement or arrangement with any person to sell, transfer or grant
participation to such person, or to any third person, with respect to the
Shares. The Grantee has substantial experience in evaluating and investing in
private placement transactions of securities in companies similar to WebMD, Inc.
and XXX.XXX, Inc. so that he is capable of evaluating the merits and risks of
his
investment in the Shares and has the capacity to protect his own interests.
Grantee acknowledges and agrees that he must bear the economic risk of this
investment indefinitely unless the Shares are registered pursuant to the Act, or
an exemption from registration is available. Grantee understands that the
Shares have not been registered under the Act or any applicable state securities
laws and that there is no present intention to register the Shares and that
there is no assurance that any exemption from registration under the Act will be
available. Grantee has had the opportunity to ask questions of and receive
answers from the Company, WebMD and XXX.XXX and their respective management
regarding the terms and conditions of this investment. Grantee acknowledges and
agrees that the Shares are characterized as "restricted securities" under the
federal securities laws, and that he will not sell or otherwise transfer the
Shares, or any portion thereof, without registration under any applicable
federal and state securities laws or an exemption therefrom.
(c) The restrictions imposed under this Section 2 shall apply to all Shares
or other securities issued with respect to the Shares hereunder in connection
with any merger, reorganization, consolidation, recapitalization, stock dividend
or other change in corporate structure affecting any of the Shares.
3. Expiration and Termination of Restrictions. The restrictions imposed
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under Section 2(a) will expire on the earliest to occur of the following:
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(a) As to the following numbers of Restricted Shares (adjusted
proportionately in the event of any change in the total number of Restricted
Shares) on the following respective dates:
Number of
WebMD Shares Number of Date of Termination
Percentage of Shares Series E Series F XXX.XXX Shares of Restrictions
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50% 52,500 2,019 22,092 Immediately on grant date
25% 26,250 1,010 11,046 6-month anniversary of
grant date
25% Balance Balance Balance 12-month anniversary of
grant date
(b) On the date of the termination of Grantee's employment with the Company
due to Grantee's death or disability, as defined in "Premiere Technologies, Inc.
Amended and Restated Executive Employment and Incentive Option Agreement" dated
November 6, 1995 ("the Grantee's Executive Employment Agreement").
(c) On the effective date of the termination of Grantee's employment by the
Company without "cause," as defined in the Grantee's Executive Employment
Agreement.
(d) On the effective date of the termination of Grantee's employment by the
Grantee for "good reason." "Good reason" shall mean any significant change to
the Grantee's title, his powers, duties or responsibilities, or any significant
relocation of his workplace.
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(e) On the date specified by the Compensation Committee of the Board of
Directors of the Company (the "Committee") in the event of an acceleration of
vesting as provided in Section 4(b) of this Agreement.
4. Acceleration of Vesting.
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(a) Change in Control. All restrictions imposed under Section 2(a) on
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outstanding Restricted Shares shall lapse upon the occurrence of a Change in
Control of the Company, as defined in the Grantee's Executive Employment
Agreement, as amended from time to time.
(b) Any Other Reason. Regardless of whether a Change in Control has
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occurred, the Committee may in its sole discretion at any time determine that
all or a part of the restrictions imposed under Section 2(a) on all or a portion
of the outstanding Restricted Shares shall lapse, in each case, as of such date
as the Committee may, in its sole discretion, declare.
5. Delivery of Shares. The Restricted Shares will be transferred to Grantee
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as restricted stock and will be held by the Company during the restricted period
described in Section 2(a). Each certificate for shares issued to Grantee under
this Agreement shall be registered in Grantee's name and shall bear a legend in
substantially the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
OR ANY STATE SECURITIES ACTS AND MAY NOT BE TRANSFERRED OR OTHERWISE
DISPOSED OF UNLESS THEY HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 AND ANY APPLICABLE STATE SECURITIES ACTS OR EXEMPTIONS FROM SUCH
REGISTRATIONS ARE AVAILABLE.
THESE SECURITIES ARE SUBJECT TO THE TERMS AND CONDITIONS CONTAINED IN A
RESTRICTED STOCK AWARD AGREEMENT DATED AS OF MAY 5, 1999 BETWEEN THE
REGISTERED OWNER OF THE SHARES REPRESENTED HEREBY AND PREMIERE
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 PREMIERE TECHNOLOGIES, INC.
Grantee shall deposit with the Company, a stock power, executed in blank and
sufficient to reconvey the Restricted Shares to the Company upon termination of
the Company's employment during the restricted period, in accordance with the
provisions of this Agreement. Stock certificates shall be delivered to Grantee
as soon as practicable after vesting of the Shares.
6. Voting and Dividend Rights. Grantee, as beneficial owner of the Shares,
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shall be entitled to receive currently any and all cash dividends or other cash
income with respect to the Restricted Shares. Grantee shall have the right to
exercise voting rights with respect to such Restricted Shares. In the event of
any stock dividend that becomes effective during the term of this Agreement, the
portion of such stock dividend attributable to Restricted Shares will also be
deemed to be Restricted Shares hereunder.
7. Restrictions on Transfer and Pledge. The Restricted Shares may not be
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pledged, encumbered, or hypothecated to or in favor of any party other than the
Company or a subsidiary of the Company, or a commercial financial institution or
brokerage firm which has made a
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Withholding Loan (as defined below) to Grantee, or be subject to any lien,
obligation, or liability of Grantee to any other party other than the Company or
a subsidiary of the Company, or a commercial financial institution which has
made a Withholding Loan to Grantee. In addition, the Restricted Securities may
not be pledged to anyone other than the Company unless the pledge agreement
provides that the pledgee agrees that (i) the Restricted Shares remain subject
to the Restated Shareholders Agreement by and among the Company, WebMD, Inc.,
and certain shareholders of WebMD, Inc., dated as of October 18, 1996, as
amended by the First through Fourth Amendments thereto (the "Restated
Shareholders Agreement") or the Second Amended and Restated Investors' Rights
Agreement, dated as of August 1998, by and among XXX.XXX, Inc. and the holders
of its Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock and Series D Preferred Stock (the "Investors' Rights Agreement"), as the
case may be, including all provisions with respect to any subsequent transfer,
and (ii) prior to the exercise of any remedy by the pledgee affecting the
Restricted Shares pursuant to the terms of the pledge agreement entered into in
connection with a Withholding Loan, whether by foreclosure or otherwise, the
pledge or other transferee agrees to be bound by the terms of the Restated
Shareholders Agreement or the Investors' Rights Agreement, as the case may be,
unless such requirement is waived or otherwise amended by the parties to such
agreements. The Restricted Shares are not assignable or transferable by Grantee
other than by will or the laws of descent and distribution.
8. No Right of Continued Employment. Nothing in this Agreement shall
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interfere with or limit in any way the right of the Company or any subsidiary of
the Company to terminate Grantee's employment at any time, nor confer upon
Grantee any right to continue in the employ of the Company or any subsidiary of
the Company.
9. Payment of Taxes. Upon grant to the Grantee of the Restricted Shares
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hereunder, Grantee may make an election to be taxed upon such award under
Section 83(b) of the Internal Revenue Code of 1986, as amended. To effect such
election, Grantee shall file an appropriate election with the Internal Revenue
Service within thirty (30) days after grant of the Restricted Shares and
otherwise in accordance with applicable Treasury regulations. The Company
will (a) lend to the Grantee, pursuant to a Promissory Note in the Company's
favor, in substantially the form attached hereto as Exhibit C, in an amount
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equal to the federal, state and local taxes of any kind required by law to be
withheld with respect to the value of the Shares treated as compensation to the
Grantee (the "Withholding Taxes"), which Promissory Note shall be secured by a
pledge of the Shares pursuant to a Stock Pledge Agreement in substantially the
form attached hereto as Exhibit D, or (b) guaranty indebtedness of Grantee to a
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commercial financial institution or brokerage firm incurred by Grantee to
reimburse the Company for the Withholding Taxes (the "Withholding Loan").
10. Miscellaneous.
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(a) Binding Effect. This Agreement shall inure to the benefit of and
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shall be binding upon the parties hereto and their executors, administrators,
heirs, personal representatives and assigns.
(b) Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Georgia, without regard to conflicts of
laws principles.
(c) Amendment. This Agreement is intended by the parties hereto to be the
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final expression of their agreement respecting the subject matter hereof and may
be modified only by a written instrument signed by the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
May 5, 1999.
COMPANY:
PREMIERE TECHNOLOGIES, INC.
By: /s/
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Its:
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GRANTEE:
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
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EXHIBIT A-1
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STOCK ASSIGNMENT
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FOR VALUE RECEIVED, the undersigned does hereby sell, assign, and transfer to
Premiere Technologies, Inc. all of its right, title and interest in and to
_______ shares of Series E Common Stock of WebMD, Inc. represented by
Certificates Nos. ______________, pursuant to the terms of that certain
Restricted Stock Award Agreement of even date herewith by and between the
undersigned and Premiere Technologies, Inc.
The undersigned does hereby irrevocably constitute and appoint
__________________ attorney to transfer said shares on the books of said
corporation, with full power of substitution in the premises.
Dated: ____________, 1999
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Xxxxxx X. Xxxxx
EXHIBIT A-2
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STOCK ASSIGNMENT
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FOR VALUE RECEIVED, the undersigned does hereby sell, assign, and transfer to
Premiere Technologies, Inc. all of its right, title and interest in and to
_______ shares of Series F Preferred Stock of WebMD, Inc. represented by
Certificates Nos. ______________, pursuant to the terms of that certain
Restricted Stock Award Agreement of even date herewith by and between the
undersigned and Premiere Technologies, Inc.
The undersigned does hereby irrevocably constitute and appoint
__________________ attorney to transfer said shares on the books of said
corporation, with full power of substitution in the premises.
Dated: ____________, 1999
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Xxxxxx X. Xxxxx
EXHIBIT A-3
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STOCK ASSIGNMENT
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FOR VALUE RECEIVED, the undersigned does hereby sell, assign, and transfer to
Premiere Technologies, Inc. all of its right, title and interest in and to
_______ shares of Series C Preferred Stock of XXX.XXX, Inc. represented by
Certificates Nos. ______________, pursuant to the terms of that certain
Restricted Stock Award Agreement of even date herewith by and between the
undersigned and Premiere Technologies, Inc.
The undersigned does hereby irrevocably constitute and appoint
__________________ attorney to transfer said shares on the books of said
corporation, with full power of substitution in the premises.
Dated: ____________, 1999
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Xxxxxx X. Xxxxx
EXHIBIT B
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COMPANY RESTRICTIONS
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1. The Restated Shareholders Agreement by and among WebMD, Inc., Premiere
Technologies, Inc., and certain shareholders of WebMD, Inc., dated as of
October 18, 1996, as amended by the First through Fourth Amendments thereto.
2. The Investor's Agreement, dated as of December 15, 1997, by and between
Premiere Technologies, Inc. and WebMD, Inc.
3. The Registration Rights Agreement, dated as of December 15, 1997, by and
between Premier Technologies, Inc. and WebMD, Inc.
4. The Second Amended and Restated Investors' Rights Agreement, dated as of
August 1998, by and among XXX.XXX, Inc. and the holders of its Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and
Series D Preferred Stock.
5. XXX.XXX lock-up letter dated May 3, 1999.
