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EXHIBIT 10.46
FORM OF
RESTRICTED STOCK AGREEMENT
WANG LABORATORIES, INC.
EMPLOYEES' STOCK INCENTIVE PLAN
Name of Grantee: _______________
No. of Shares: ______________
Grant Date: xxxxxxx, xx, 1997
Purchase Price: $xx.xx per share
Pursuant to the Wang Laboratories, Inc. Employees' Stock Incentive Plan
(the "Plan") as amended through the date hereof, Wang Laboratories, Inc. (the
"Company") hereby grants a Restricted Stock Award (an "Award") to the Grantee
named above. Upon acceptance of this Award, the Grantee shall receive the number
of shares of Common Stock, par value $0.01 per share (the "Stock"), of the
Company specified above, subject to the restrictions and conditions set forth
herein and in the Plan.
1. ACCEPTANCE OF AWARD. The Grantee shall have no rights with respect
to this Award unless he or she shall have accepted this Award by signing and
delivering to the Company a copy of this Agreement. Upon acceptance of this
Award by the Grantee, and payment of the Purchase Price as specified herein,
certificates evidencing the Stock so accepted shall be issued and delivered to
the Company to be held for the Grantee, and the Grantee's name shall be entered
as the stockholder of record on the books of the Company. Thereupon, the Grantee
shall have all the rights of a shareholder with respect to such Stock, including
voting and dividend rights, subject, however, to the restrictions and conditions
specified in Section 2 below.
2. RESTRICTIONS AND CONDITIONS.
(a) Certificates evidencing the Restricted Stock granted
hereby shall bear an appropriate legend, as set forth in the Plan.
(b) Subject to Section 3(b) below, if the Grantee ceases to be
an employee of the Company or any of its subsidiaries prior to the expiration or
other termination of the applicable restrictions, any Restricted Stock granted
to the Grantee which is still subject to restriction shall (i) if no purchase
price had been paid for such Restricted Stock, be forfeited and all rights of
the Grantee to such Restricted Stock shall terminate without further obligation
on the part of the Company; or (ii) if a purchase price had been paid for such
Restricted Stock, be deemed to be offered for sale by the Grantee to the Company
for a period of thirty (30) days after the date of such cessation of employment
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at a price (the "Option Price") equal to the lesser of (x) the fair market price
of the stock at such time or (y) the purchase price set forth on the first page
of this agreement (the "Purchase Option").
3. VESTING OF RESTRICTED SHARES.
(a) The restrictions and conditions in Section 2 of this
Agreement shall lapse on the Vesting Date or Dates specified in the following
schedule. If a series of Vesting Dates is specified, then the restrictions and
conditions in Section 2 shall lapse only with respect to the number of Shares of
Restricted Stock specified as vested on such date.
Number of Shares Vested Vesting Date
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________ March 26, 1999
Subsequent to such Vesting Date or Dates, the Restricted Stock on which all
restrictions and conditions have lapsed shall no longer be deemed Restricted
Stock. The Organization, Compensation and Nominating Committee of the Company's
Board of Directors (the "Committee") may accelerate the vesting schedule
specified in this Section 3(a) in accordance with the terms of the Plan.
(b) If, prior to any Vesting Date, (i) the Grantee ceases to
be an employee of the Company or any of its subsidiaries prior to the expiration
of the applicable Restricted Period by reason of death, Permanent Disability or
Retirement, or (ii) the Company terminates the Grantee's employment other than
for cause (as defined below), all restrictions set forth herein shall terminate
as to any Restricted Stock subject hereto. For the purpose of this Agreement,
the term "cause" shall mean willful misconduct by the Grantee or willful failure
to perform his or her responsibilities in the best interests of the Company
(including, without limitation the breach of any provision of the Company's
Standards of Ethics and Business Conduct Guide, or breach by the Grantee of any
provision of any employment, consulting, advisory, nondisclosure,
non-competition or other similar agreement between the grantee and the Company),
as determined by the Company, which determination shall be conclusive.
In the event of a Change in Control (as defined in the Plan or in any
agreement between the Grantee and the Corporation)("Change in Control"),
occurring prior to the first anniversary of the Grant Date, 50% of the shares of
Restricted Stock shall vest immediately. In the event of a Change in Control
occurring on or after the first anniversary of the Grant Date, all of the
Restricted Stock shall vest immediately.
4. EXERCISE OF PURCHASE OPTION AND CLOSING.
(a) The Company may exercise the Purchase Option by delivering
or mailing to the Grantee (or his predetermined transferees), in accordance with
notice provisions of Section 11, within 30 days after the cessation of the
employment of the Grantee, a written notice of exercise of the Purchase Option.
Such notice shall specify the
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number of shares of Restricted Stock to be purchased. If and to the extent the
Purchase Option is not so exercised by the giving of such a notice within such
30-day period, the Purchase Option shall automatically expire and terminate
effective upon the expiration of such 30-day period.
(b) After the time the Company exercises the Purchase Option,
the Company shall not pay any dividend to the Grantee on account of such shares
of Restricted Stock or permit the Grantee to exercise any of the privileges or
rights of a stockholder with respect to such shares of Restricted Stock, but
shall, in so far as permitted by law, treat the Company as the owner of such
shares of Restricted Stock.
(c) The Option Price may be payable, at the option of the
Company, in cancellation of all or a portion of any outstanding indebtedness of
the Grantee to the Company or in cash (by check) or both.
(d) The Company shall not purchase any fraction of a share of
Restricted Stock upon exercise of the Purchase Option, and any fraction of a
share resulting from a computation made pursuant to Section 3 of this Agreement
shall be rounded to the nearest whole share (with any one-half share being
rounded upward).
5. EFFECT OF PROHIBITED TRANSFER. The Company shall not be required to
(a) transfer on its books any of the shares of Restricted Stock which shall have
been sold or transferred in violation of any of the provisions set forth in this
Agreement, or (b) treat as owner of such shares of Restricted Stock or pay
dividends to any transferee to whom any such shares of Restricted Stock shall
have been sold or transferred in violation of any of the provisions of this
Agreement.
6. DIVIDENDS AND VOTING RIGHTS. During the Restricted Period, the
Grantee shall have the right to receive all dividends payable with respect to
the Restricted Stock and to exercise the voting rights attaching to the
Restricted Stock.
7. INCORPORATION OF PLAN. Notwithstanding anything herein to the
contrary, this Agreement shall be subject to and governed by all the terms and
conditions of the Plan. In the event of any inconsistency between the provisions
of the Plan and this instrument, the terms of the Plan shall prevail.
Capitalized terms in this Agreement shall have the meaning specified in the
Plan, unless a different meaning is specified herein.
8. TRANSFERABILITY. Except as otherwise provided in this Section 8, the
Restricted Stock and this Agreement and all rights granted hereunder may not be
transferred, assigned, pledged or hypothecated (whether by operation of law or
otherwise), except by will or by the laws of descent and distribution. The
Grantee may name one or more beneficiaries, to receive, in the event of the
Grantee's death, any right to which the Grantee would be entitled under the
Plan, by setting forth their names and addresses at the end of this Agreement.
In addition, the Grantee may transfer the Restricted Stock and this Agreement
and the rights granted hereunder, without consideration therefor, to a member or
members of his or her immediate family, including, without limitation, to his or
her
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children, grandchildren or spouse, a trust or trusts the only beneficiaries
of which are members of his or her immediate family or a partnership the only
partners of which are members of his or her immediate family, provided that the
Grantee gives written notice of such transfer to the Company's General Counsel
not less than fifteen (15) days prior to such transfer. The Restricted Stock
shall not be subject to execution, attachment or other process.
9. ADJUSTMENT UPON CHANGES IN CAPITALIZATION. The shares of Stock
subject to this Award are shares of Common Stock par value $.01 per share of the
Company. If the shares of the Company's Common Stock as a whole are increased or
decreased, changed into, or exchanged for a different number or kind of share or
securities of the Company, whether through merger, consolidation,
reorganization, recapitalization, reclassification, stock dividend, stock split,
combination of shares, exchange of shares, change in corporate structure or the
like, an appropriate and proportionate adjustment shall be made in the number
and kind of shares, and the Purchase Price per share, if any, of shares subject
to this Award. Adjustments under this Section 9 shall be made by the Committee,
whose determination as to what adjustment shall be made, and the extent thereof,
shall be conclusive.
10. TAX WITHHOLDING. The Grantee shall, not later than the date as of
which the receipt of this Award becomes a taxable event for Federal income tax
purposes, pay to the Company or make arrangements satisfactory to the Committee
for payment of any Federal, state, and local taxes required by law to be
withheld on account of such taxable event. The Grantee may elect to (i) tender
back to the Company vested shares of Stock received pursuant to a grant, (ii)
deliver to the Company previously acquired Stock, or (iii) reimburse the Company
in cash, in order to satisfy part or all of the obligation for any taxes
required to be withheld or otherwise deducted and paid by the Company or any
such subsidiary in respect of the Stock subject to this Award. If the Grantee
fails to make an election fully satisfying the Grantee's obligations, the
Grantee shall be deemed to have made an election pursuant to clause (i) of the
immediately preceding sentence to the extent of such unsatisfied obligation.
11. MISCELLANEOUS.
(a) Notice hereunder shall be given to the Company at its
principal place of business, and shall be given to the Grantee at the address
set forth below, or in either case at such other address as one party may
subsequently furnish to the other party in writing.
(b) This Agreement does not confer upon the Grantee any rights
with respect to continuance of employment by the Company or any subsidiary.
(c) The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, and each other provision of this Agreement shall be
severable and enforceable to the extent permitted by law.
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(d) Any provision contained in this Agreement may be waived,
either generally or in any particular instance, by the Committee in writing.
(e) This Agreement shall be binding upon and inure to the
benefit of the Company and the Grantee and their respective heirs, executors,
administrators, legal representatives, successors and assigns, subject to the
restrictions on transfer set forth in Section 2 of this Agreement.
(f) Whenever the context may require, any pronouns used in
this Agreement shall include all corresponding masculine, feminine or neuter
forms, and the singular form of nouns and pronouns shall include the plural, and
vice versa.
(g) This Agreement constitutes the entire agreement between
the parties, and supersedes all prior agreements and understandings, relating to
the subject matter of this Agreement.
(h) This Agreement may be amended or modified only by a
written instrument executed by both the Company and the Grantee.
(i) This Agreement shall be construed, interpreted and
enforced in accordance with the law of the Commonwealth of Massachusetts without
regard to such Commonwealth's choice of law provisions.
WANG LABORATORIES, INC.
By:
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The foregoing Agreement is hereby accepted and the terms and conditions thereof
hereby agreed to by the undersigned.
Date:
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Grantee's Signature
Grantee's Name and Address:
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Name of Grantee's Beneficiary: Beneficiary's Address:
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WANG LABORATORIES, INC. RESTRICTED STOCK PLAN
TAX WITHHOLDING PROCEDURES
Name
Address
On [____________________], you were granted a Restricted Stock Award
under the Wang Laboratories, Inc. Employees Stock Incentive Plan. The
restrictions and conditions with respect to xxxx of shares of Restricted Stock
will lapse on [________________], and the value of such shares, based upon the
closing price of the Stock on [__________________]will be taxable to you in
[___]. As described in Section 10 of the Restricted Stock Agreement, applicable
Federal, state and local tax withholding requirements will be satisfied by
withholding vested shares of Stock otherwise issuable under your grant unless
you elect to (i) deliver to the Company previously acquired shares, or (ii)
reimburse the Company in cash or by check.
The exact dollar amount of required tax withholding cannot be
calculated until after [_____________], when the value of the shares issuable
under your Award becomes determinable. If you elect to pay the withholding taxes
in cash or by check, or by delivery of shares of Stock you already own, Benefits
Administration will advise you by letter in [_________]of the exact dollar
amount due. Otherwise, the Company will use [xxxx] vested shares of Stock held
by the Company in satisfaction of tax withholding requirements based upon
applicable Social Security (FICA) tax and Federal, state, and local income tax
withholding tables.
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_____ I elect to pay withholding taxes on the shares in cash or by check.
_____ I elect to sell to the Company shares of Stock I already own. (Share
certificates must be delivered to Benefits Administration by
[________________].)
_____ Please pay withholding taxes with vested shares held by the Company
under my grant. (If you are electing this option, it is not necessary
to return this election form.)
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Employee Signature Date
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