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EXHIBIT 10.9
WITNESS SYSTEMS, INC.
RESTRICTED STOCK AWARD AGREEMENT
THIS AGREEMENT is made and entered into as of this 31st day of March,
1999 (the "Award Date"), by and between Witness Systems, Inc. (the "Company"), a
Delaware corporation, and Xxxxx Xxxxx (the "Employee").
BACKGROUND
A. The Company has adopted the Witness Systems, Inc. Stock Incentive
Plan (the "Plan") for the purpose of securing and retaining the services of
officers, directors, key employees, and consultants of the Company, by promoting
and increasing their personal interests in the welfare of the Company and by
providing incentives to those who are primarily responsible for the operations
of the Company and for shaping and carrying out the long-range plans of the
Company and aiding in its continued growth and financial success.
B. A Committee of the Board of Directors of the Company (the
"Committee") has authorized the grant to Employee of a restricted stock award
under the Plan to purchase shares of the common stock, par value $.01 ("Common
Stock"), of the Company.
C. The Company and Employee wish to confirm herein the terms,
conditions, and restrictions of the restricted stock award.
For and in consideration of the premises, the mutual covenants
contained herein, and other good and valuable consideration, the parties hereto
agree:
SECTION 1.
AWARD OF SHARES
1.1 Award of Shares. Subject to the terms, restrictions, limitations,
and conditions stated herein and in the Plan, the Company hereby awards to
Employee 488,757 shares of Common Stock (the "Bonus Shares") with a value as of
the Award Date of $2.99 per share (the "Award Date Value"). As consideration for
the grant of the Bonus Shares, Employee hereby agrees to deliver to the Company
a promissory note payable for the purchase price of $1,461,383.43 (488,757
shares x $2.99 per share) in substantially the form attached hereto as EXHIBIT A
(the "Promissory Note").
1.2. Vesting of Bonus Shares. Employee shall become vested in the Bonus
Shares as described in the vesting schedule attached hereto as SCHEDULE I (the
"Vesting Schedule"), except that the Board of Directors may, in its sole
discretion, waive the Vesting Schedule, in which case all Bonus Shares shall
become fully vested. The Bonus Shares which have become vested pursuant to the
Vesting Schedule or by virtue of waiver of the Vesting Schedule by the Board of
Directors are herein referred to as the "Vested Bonus Shares" and all Bonus
Shares which are not Vested Bonus Shares are sometimes herein referred to as the
"Unvested Bonus Shares."
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1.3 Additional Condition to Bonus Shares. In the event that Employee
does not file an election pursuant to Section 83(b) of the Internal Revenue Code
of 1986, as amended, with the Internal Revenue Service within thirty (30) days
of the date hereof, Employee must deliver to the Company, within ten (10) days
after the occurrence of an event in the Vesting Schedule, pursuant to which some
or all of the Bonus Shares become Vested Bonus Shares (a "Vesting Date"), either
a certified check payable to the Company in the amount of all withholding tax
obligations (whether federal, state or local) imposed on the Company by reason
of the vesting of the Bonus Shares, or the Withholding Election described in
Section 1.4, in order to not forfeit the Bonus Shares.
1.4 Optional Withholding Election. In lieu of paying the withholding
tax obligation in cash, as described in Section 1.3, Employee may elect to have
the actual number of Vested Bonus Shares reduced by the smallest number of whole
shares of Common Stock which, when multiplied by the fair market value of the
Common Stock on the Vesting Date as determined by the Board of Directors, is
sufficient to satisfy the minimum amount of the withholding tax obligations
imposed on the Company by reason of the vesting of the Bonus Shares (the
"Withholding Election"). Employee may make a Withholding Election only if all of
the following conditions are met:
(a) the Withholding Election must be made on or prior to the
date on which the amount of tax required to be withheld is determined
(the "Tax Date") by executing and delivering to the Company a properly
completed Notice of Withholding Election, in substantially the form of
EXHIBIT B attached hereto;
(b) any Withholding Election made will be irrevocable;
however, the Board of Directors may, in its sole discretion, disapprove
and give no effect to any Withholding Election; and
(c) if Employee is required to file beneficial ownership
reports pursuant to Subsection (a) of Section 16 of the Securities
Exchange Act of 1934, at any time during a period in which some or all
of the Bonus Shares vest, then the Withholding Election must be made
either (A) at least six months prior to the Tax Date applicable to the
Vesting Date of Bonus Shares, or (B) prior to the Tax Date and in any
ten-day period beginning on the third day following the release of the
Company's quarterly or annual summary statement of sales and earnings.
1.5. Investment Representations. Employee hereby represents, warrants,
covenants, and agrees with the Company as follows:
(a) The Bonus Shares being acquired by Employee will be
acquired for Employee's own account without the participation of any
other person, with the intent of holding the Bonus Shares for
investment and without the intent of participating, directly or
indirectly, in a distribution of the Bonus Shares and not with a view
to, or for resale in connection with, any distribution of the Bonus
Shares, nor is Employee aware of the existence of any distribution of
the Bonus Shares;
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(b) Employee is not acquiring the Bonus Shares based upon any
representation, oral or written, by any person with respect to the
future value of, or income from, the Bonus Shares but rather upon an
independent examination and judgment as to the prospects of the
Company;
(c) The Bonus Shares were not offered to Employee by means of
publicly disseminated advertisements or sales literature, nor is
Employee aware of any offers made to other persons by such means;
(d) Employee is able to bear the economic risks of the
investment in the Bonus Shares, including the risk of a complete loss
of my investment therein;
(e) Employee understands and agrees that the Bonus Shares will
be issued and sold to Employee without registration under any state law
relating to the registration of securities for sale, and will be issued
and sold in reliance on the exemptions from registration under the
Securities Act of 1933 (the "1933 Act"), provided by Sections 3(b)
and/or 4(2) thereof and the rules and regulations promulgated
thereunder;
(f) The Bonus Shares cannot be offered for sale, sold or
transferred by Employee other than pursuant to: (A) an effective
registration under the 1933 Act or in a transaction otherwise in
compliance with the 1933 Act; and (B) evidence satisfactory to the
Company of compliance with the applicable securities laws of other
jurisdictions. The Company shall be entitled to rely upon an opinion of
counsel satisfactory to it with respect to compliance with the above
laws;
(g) The Company will be under no obligation to register the
Bonus Shares or to comply with any exemption available for sale of the
Bonus Shares without registration or filing, and the information or
conditions necessary to permit routine sales of securities of the
Company under Rule 144 of the 1933 Act are not now available and no
assurance has been given that it or they will become available. The
Company is under no obligation to act in any manner so as to make Rule
144 available with respect to the Bonus Shares;
(h) Employee has and has had complete access to and the
opportunity to review and make copies of all material documents related
to the business of the Company, including, but not limited to,
contracts, financial statements, tax returns, leases, deeds, and other
books and records. Employee has examined such of these documents as
Employee has wished and is familiar with the business and affairs of
the Company. Employee realizes that the purchase of the Bonus Shares is
a speculative investment and that any possible profit therefrom is
uncertain;
(i) Employee has had the opportunity to ask questions of and
receive answers from the Company and any person acting on its behalf
and to obtain all material information reasonably available with
respect to the Company and its affairs. Employee has received all
information and data with respect to the Company which Employee has
requested and which Employee has deemed relevant in connection with the
evaluation of the merits and risks of Employee's investment in the
Company;
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(j) Employee has such knowledge and experience in financial
and business matters that Employee is capable of evaluating the merits
and risks of the purchase of the Bonus Shares hereunder and Employee is
able to bear the economic risk of such purchase; and
(k) The agreements, representations, warranties, and covenants
made by Employee herein extend to and apply to all of the Bonus Shares
of the Company issued to Employee pursuant to this restricted stock
award. Acceptance by Employee of the certificate representing such
Bonus Shares shall constitute a confirmation by Employee that all such
agreements, representations, warranties, and covenants made herein
shall be true and correct at that time.
SECTION 2.
RESTRICTIONS ON BONUS SHARES
2.1 Restrictions on Unvested Bonus Shares.
(a) Forfeiture Upon Cessation of Employment. All Unvested
Bonus Shares shall automatically revert back to the Company immediately
upon cessation of Employee's employment by the Company for any reason.
Executive shall be entitled to payment of the Award Date Value of all
such Unvested Bonus Shares which may be accomplished by appropriate
reduction in the principal of the Promissory Note. The parties hereto
acknowledge that all Unvested Bonus Shares shall become Vested Bonus
Shares upon a Change of Control as described on SCHEDULE I hereto,
provided Executive is employed by the Company at such time.
(b) Restrictions on Transfer of Unvested Bonus Shares.
Unvested Bonus Shares shall not be transferable by Employee for any
reason or in any manner, including by will or intestacy.
(c) Termination of Restrictions. The restrictions contained in
this Section 2.1 shall continue in effect, notwithstanding the earlier
termination or expiration of this Agreement, until the Bonus Shares
become Vested Bonus Shares.
2.2. Right of First Refusal. Before any Vested Bonus Shares held by
Employee or any transferee (either being sometimes referred to herein as the
"Holder") may be sold or otherwise transferred (including transfer by gift or
operation of law), the Company shall have an assignable right of first refusal
to purchase the Vested Bonus Shares on the terms and conditions set forth in
this Section 2.2 (the "Right of First Refusal").
(a) Notice of Proposed Transfer. The Holder of the Vested
Bonus Shares shall deliver to the Company a written notice (the
"Notice") stating (i) the Holder's bona fide intention to sell or
otherwise transfer such Vested Bonus Shares, (ii) the name of each
proposed purchaser or other transferee ("Proposed Transferee"), (iii)
the number of Vested Bonus Shares to be transferred to each Proposed
Transferee, and (iv) the bona fide cash price or other consideration
for which the Holder proposes to transfer the Vested
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Bonus Shares (the "Offered Price"); in addition, by providing the
Notice, the Holder is deemed to be offering to sell the Vested Bonus
Shares at the Offered Price to the Company.
(b) Exercise of Right of First Refusal. At any time within
thirty (30) days after receipt of the Notice, the Company or its
assignee may, by giving written notice to the Holder, elect to purchase
all, but not less than all, of the Vested Bonus Shares proposed to be
transferred to any one or more of the Proposed Transferees, at the
purchase price determined in accordance with Subsection (c) below.
(c) Purchase Price. The purchase price for the Vested Bonus
Shares purchased under this Section 2.2 shall be the Offered Price. If
the Offered Price includes consideration other than cash, the cash
equivalent value of the non-cash consideration shall be determined by
the Board of Directors of the Company in good faith.
(d) Payment. Payment of the purchase price shall be made, at
the option of the Company or its assignee, either (i) in cash (by
check), by cancellation of all or a portion of any outstanding
indebtedness of the Holder to the Company or such assignee, or by any
combination thereof within thirty (30) days after receipt of the Notice
or (ii) in the manner and at the time(s) set forth in the Notice.
(e) Holder's Right to Transfer. If the Vested Bonus Shares
proposed in the Notice to be transferred to a given Proposed Transferee
are not purchased by the Company and/or its assignee as provided in
this Section 2.2, then the Holder may sell or otherwise transfer such
Vested Bonus Shares to that Proposed Transferee at the Offered Price or
at a higher price, provided that such sale or other transfer is
consummated within one hundred and twenty (120) days after the date of
the Notice and provided further that any such sale or other transfer is
effected in accordance with any applicable securities laws and the
Proposed Transferee agrees in writing that the provisions of this
Section 2.2 shall continue to apply to the Vested Bonus Shares in the
hands of such Proposed Transferee. If the Vested Bonus Shares described
in the Notice are not transferred to the Proposed Transferee within
such period, a new Notice shall be given to the Company, and the
Company shall again be offered the Right of First Refusal, before any
Vested Bonus Shares held by the Holder may be sold or otherwise
transferred.
(f) Exception for Certain Family Transfers. Anything to the
contrary contained in this Section 2.2 notwithstanding, the transfer of
any or all of the Vested Bonus Shares, during Employee's lifetime or on
Employee's death by will or intestacy, to Employee's immediate family
or to a trust for the benefit of Employee or Employee's immediate
family shall be exempt from the provisions of this Section; provided,
that as a condition to receiving the Vested Bonus Shares, the
transferee or other recipient shall agree in writing to receive and
hold the Vested Bonus Shares so transferred subject to the provisions
of this Agreement, and to transfer such Vested Bonus Shares no further
except in accordance with the terms of this Agreement. As used herein,
"immediate family" shall mean Employee's spouse, lineal descendant or
antecedent, father, mother, brother or sister.
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(g) Termination of Right of First Refusal. The Right of First
Refusal shall terminate as to any Vested Bonus Shares upon the first
sale of Common Stock of the Company to the general public pursuant to a
registration statement filed with and declared effective by the
Securities and Exchange Commission (other than a registration statement
solely covering an employee benefit plan or corporate reorganization).
2.3. Company's Repurchase Option for Vested Bonus Shares. The Company
shall have the option to repurchase all or a portion of the Vested Bonus Shares
on the terms and conditions set forth in this Section 2.3 (the "Repurchase
Option") if Employee should cease to be employed by the Company for any reason,
including death or Disability, as defined in that certain Employment Agreement
between Employee and the Company dated February 2, 1999 (the "Employment
Agreement").
(a) Exercise of Repurchase Option. At any time within sixty
(60) days after the Termination Date (as defined below), the Company or
its assignee may elect to repurchase any or all of the Vested Bonus
Shares by giving Employee (or Employee's personal representative, as
the case may be) written notice of exercise of the Repurchase Option.
(b) Purchase Price. The purchase price for Vested Bonus Shares
purchased pursuant to this Section 2.3 shall be the "fair market value"
of such Shares on the Termination Date. For purposes of this Section
2.3, "fair market value" of the Vested Bonus Shares shall be determined
in the good faith and sole discretion of the Board of Directors.
(c) Payment of Repurchase Price. The repurchase price shall be
payable, at the option of the Company or its assignee, by (i) check,
(ii) by cancellation of all or a portion of any outstanding
indebtedness of Employee to the Company or such assignee, (iii) to the
extent Employee has no outstanding indebtedness to the Company or its
assignee, by delivery of a promissory note of the Company payable in
equal annual installments over a four (4) year period from the date of
repurchase at per annum interest rate equal to the prime rate as
announced by the Company's principal bank as of the Termination Date
or, if the Company has no principal bank, that rate announced as of the
Termination Date by the Wall Street Journal as the prevailing "prime
rate" of interest per annum, or (iv) any combination of the above.
(d) Termination of Repurchase Rights. The Right of Repurchase
shall terminate as to any Vested Bonus Shares upon the first sale of
common stock of the Company to the general public pursuant to a
registration statement filed with and declared effective by the
Securities and Exchange Commission (other than a registration statement
solely covering an employee benefit plan or corporate reorganization).
2.4. Pledging of Bonus Shares. If the Company incurs indebtedness and
in connection therewith, at the time the Employee receives his Vested Bonus
Shares, all other shareholders of the Company have either pledged their shares
of Common Stock, or have been asked to pledge their shares of Common Stock for
the benefit of certain lenders of the Company, the Employee, if
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so requested by the Company, shall pledge any Vested Bonus Shares which are not
already pledged to the Company or its assignee on the same terms and conditions
as the other shareholders of the Company and shall take such actions as may be
required to accomplish the pledge as may be requested by the Company.
2.5. Lockup Agreement. Employee agrees, in connection with any public
offering of the Company's securities, upon request of the Company or the
underwriters managing any underwritten offering of the Company's securities, not
to sell, make any short sale of, loan, grant any option for the purchase of, or
otherwise dispose of any Bonus Shares without the prior written consent of the
Company or such underwriters, as the case may be, from the effective date of
such registration for so long as the Company or the underwriters may specify,
but in any event not to exceed 180 days. Employee agrees to execute and deliver
such other documents and agreements as the Company or such underwriters may
reasonably request to further evidence these commitments.
2.6. Right of Termination Unaffected. Nothing in this Agreement shall
be construed to limit or otherwise affect in any manner whatsoever the right or
power of the Company to terminate Employee's employment or association with the
Company at any time, for any reason or no reason, with or without cause. For
purposes of this Agreement, Employee shall be considered to be employed by the
Company if Employee is employed pursuant to the Employment Agreement or is an
officer, director or full-time employee of the Company or any parent or
subsidiary of the Company or if the Board of Directors determines that Employee
is rendering substantial services as a part-time employee, consultant,
contractor or advisor to the Company or any parent or subsidiary of the Company.
Subject to the provisions of that certain Employment Agreement between Company
and Employee dated February 2, 1999 (the "Employment Agreement"), the Board of
Directors shall have discretion to determine whether Employee has ceased to be
employed by or associated with the Company or any parent or subsidiary and the
effective date on which such employment or association is terminated (the
"Termination Date").
SECTION 3.
GENERAL PROVISIONS
3.1 Change in Capitalization. If the number of outstanding shares of
the Common Stock shall be increased or decreased by a change in par value,
split-up, stock split, reverse stock split, reclassification, distribution of
common stock dividend, or other similar capital adjustment, an appropriate
adjustment shall be made by the Board of Directors in the number and kind of
Bonus Shares, such that Employee's proportionate interest shall be maintained as
before the occurrence of the event. No fractional shares shall be issued in
making such adjustment. All adjustments made by the Board of Directors under
this Section shall be final, binding, and conclusive.
3.2. Legends. Each certificate representing the Bonus Shares shall be
endorsed with the following legend and Employee shall not make any transfer of
the Bonus Shares without first complying with the restrictions on transfer
described in such legend:
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TRANSFER IS RESTRICTED
THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT OF
FIRST REFUSAL AND OTHER RESTRICTIONS ON TRANSFER SET FORTH IN A
RESTRICTED STOCK AWARD AGREEMENT DATED MARCH 31, 1999, A COPY OF WHICH
IS AVAILABLE FROM THE COMPANY.
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED, OR HYPOTHECATED UNLESS (1) THERE IS AN EFFECTIVE
REGISTRATION UNDER SUCH ACT COVERING SUCH SECURITIES, (2) THE TRANSFER
IS MADE IN COMPLIANCE WITH RULE 144 PROMULGATED UNDER SUCH ACT, OR (3)
THE ISSUER RECEIVES AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO
THE COMPANY, STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR
HYPOTHECATION IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT.
Employee agrees that the Company may also endorse any other legends
required by applicable federal or state securities laws.
The Company need not register a transfer of the Bonus Shares, and may
also instruct its transfer agent, if any, not to register the transfer of the
Bonus Shares unless the conditions specified in the foregoing legends are
satisfied.
3.3 Removal of Legend and Transfer Restrictions.
(a) Any legend endorsed on a certificate pursuant to Section
3.2 and the stop transfer instructions with respect to the Bonus Shares
shall be removed and the Company shall issue a certificate without such
legend to the holder thereof if such Bonus Shares are registered under
the Securities Act and a prospectus meeting the requirements of Section
10 of the Securities Act is available.
(b) The restrictions described in the second sentence of the
legend set forth in Section 3.2 may be removed at such time as
permitted by Rule 144(k) promulgated under the Securities Act.
3.4. Governing Laws. This Agreement shall be construed, administered
and enforced according to the laws of the State of Georgia; provided, however,
no Bonus Shares shall be issued except, in the reasonable judgment of the Board
of Directors, in compliance with exemptions under applicable state securities
laws of the state in which Employee resides, and/or any other applicable
securities laws.
3.5. Successors. This Agreement shall be binding upon and inure to the
benefit of the heirs, legal representatives, successors, and permitted assigns
of the parties.
3.6. Notice. Except as otherwise specified herein, all notices and
other communications under this Agreement shall be in writing and shall be
deemed to have been
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given if personally delivered or if sent by registered or certified United
States mail, return receipt requested, postage prepaid, addressed to the
proposed recipient at the last known address of the recipient. Any party may
designate any other address to which notices shall be sent by giving notice of
the address to the other parties in the same manner as provided herein.
3.7. Severability. In the event that any one or more of the provisions
or portion thereof contained in this Agreement shall for any reason be held to
be invalid, illegal, or unenforceable in any respect, the same shall not
invalidate or otherwise affect any other provisions of this Agreement, and this
Agreement shall be construed as if the invalid, illegal or unenforceable
provision or portion thereof had never been contained herein.
3.8. Entire Agreement. Subject to the terms and conditions of the Plan,
this Agreement expresses the entire understanding and agreement of the parties
with respect to the subject matter. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same instrument.
3.9. Violation. Any transfer, pledge, sale, assignment, or
hypothecation of the Bonus Shares or any portion thereof shall be a violation of
the terms of this Agreement and shall be void and without effect.
3.10. Headings. Paragraph headings used herein are for convenience of
reference only and shall not be considered in construing this Agreement.
3.11. Specific Performance. In the event of any actual or threatened
default in, or breach of, any of the terms, conditions and provisions of this
Agreement, the party or parties who are thereby aggrieved shall have the right
to specific performance and injunction in addition to any and all other rights
and remedies at law or in equity, and all such rights and remedies shall be
cumulative.
3.12. No Employment Rights Created. Neither the establishment of the
Plan nor the award of Bonus Shares hereunder shall be construed as giving
Employee the right to continued employment with the Company.
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IN WITNESS WHEREOF, the parties have executed and sealed this Agreement
on the day and year first set forth above.
WITNESS SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxxx, Xx.
-----------------------------------------
Title: Chairman of the Board of Directors
--------------------------------------
XXXXX XXXXX
/s/ Xxxxx Xxxxx
--------------------------------------------
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SCHEDULE I
TO
WITNESS SYSTEMS, INC.
RESTRICTED STOCK AWARD AGREEMENT
Vesting Schedule
"Vested Bonus Shares" means:
168,395 of the Bonus Shares shall be Vested Bonus Shares as of the date
hereof.
77,999 of the Bonus Shares shall become Vested Bonus Shares on February
2, 2000.
The remaining 242,363 Bonus Shares shall become Vested Bonus Shares in
36 equal monthly installments, with the first installment vesting on March 2,
2000.
Notwithstanding anything herein to the contrary, (i) all vesting shall
cease immediately upon cessation of Employee's employment by the Company for any
reason, including death or Disability (as defined in the Employment Agreement),
and (ii) all Unvested Bonus Shares shall become fully vested upon a Change of
Control. For this purpose, Change of Control shall mean:
(a) Approval of the shareholders of Company of a merger,
consolidation or other reorganization in each case, with respect to
which persons who were the shareholders of Company immediately prior to
such merger, consolidation or other reorganization, immediately
thereafter, do not own more than fifty percent (50%) of the combined
voting power entitled to vote generally in the election of directors of
the merged, consolidated or reorganized Company's then outstanding
voting securities;
(b) Sale of all or substantially all of the assets of
Company; or
(c) The sale of common stock of the Company to the general
public pursuant to a registration statement filed with and declared
effective by the Securities and Exchange Commission (other than a
registration statement solely covering an employee benefit plan or
corporate reorganization).
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EXHIBIT A
TO
WITNESS SYSTEMS, INC.
RESTRICTED STOCK AWARD AGREEMENT
Form of Promissory Note
[See Separate Exhibit filed herewith]
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EXHIBIT B
TO
WITNESS SYSTEMS, INC.
RESTRICTED STOCK AWARD AGREEMENT
Notice of Withholding Election
TO: WITNESS SYSTEMS, INC.
FROM:
----------------
RE: Withholding Election
This election relates to the Restricted Stock Award identified in
Paragraph 3 below. I hereby certify that:
(1) My correct name and social security number and my
current address are set forth at the end of this document.
(2) I am (check one, whichever is applicable).
[ ] the original recipient of the Restricted
Stock Award.
[ ] the legal representative of the estate of
the original recipient of the Restricted Stock Award.
[ ] a legatee of the original recipient of the
Restricted Stock Award.
[ ] the legal guardian of the original recipient
of the Restricted Stock Award.
(3) The Restricted Stock Award pursuant to which this
election is made is dated and was issued under the Witness Systems,
Inc. Stock Incentive Plan (the "Plan") in the name of Xxxxx Xxxxx for
488,757 shares of Common Stock. This election relates to
_________________ shares of Common Stock issuable upon vesting of the
Bonus Shares, provided that the numbers set forth above shall be deemed
changed as appropriate to reflect stock splits and other adjustments
contemplated by the applicable Plan provisions.
(4) In connection with any future vesting of the
Restricted Stock Award with respect to the Bonus Shares, I hereby elect
to have certain of the shares issuable pursuant to the exercise
withheld by the Company for the purpose of having the value of the
shares applied to pay federal, state, and local, if any, taxes arising
from the exercise. The shares to be withheld shall have, as of the Tax
Date applicable to the exercise, a fair market
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value equal to the minimum statutory tax withholding requirement under
federal, state, and local law in connection with the exercise.
(5) This Withholding Election is made prior to the Tax
Date and is otherwise timely made.
(6) I understand that this Withholding Election may not
be revised, amended or revoked by me but is subject to the disapproval
of the Board of Directors.
(7) I further understand that, if this Withholding
Election is not disapproved by the Board of Directors, the Company
shall withhold from the Vested Bonus Shares a number of shares of
Common Stock having the value specified in Paragraph 4 above.
(8) The Plan has been made available to me by the
Company, I have read and understand the Plan and I have no reason to
believe that any of the conditions therein to the making of this
Withholding Election have not been met. Capitalized terms used in this
Notice of Withholding Election without definition shall have the
meanings given to them in the Plan.
Dated: 3/31/99 /s/ Xxxxx Xxxxx
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Legal Signature
Xxxxx Xxxxx
------------------------------------ -----------------------------------
Social Security Number Name (Printed)
0000 Xxxxxx Xxxx Xxxxx
-----------------------------------
Street Address
Xxxxxxx, XX 00000
-----------------------------------
City, State, Zip Code
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