Exhibit 10.6
FORM OF
RESTRICTED STOCK AWARD AGREEMENT
UNDER THE STRIDE & ASSOCIATES, INC.
1998 STOCK OPTION AND GRANT PLAN
NAME OF GRANTEE:
NO. AND CLASS OF SHARES:
GRANT DATE:
PER SHARE PURCHASE PRICE:
Pursuant to the Stride & Associates, Inc. 1998 Stock Option and Grant
Plan (the "Plan"), Stride & Associates, Inc., a Delaware corporation
(together with its successors and assigns, the "Company"), hereby grants,
sells and issues to the person named above (the "Grantee"), who is an
officer, employee, director, consultant, advisor or other key person of the
Company or any of its Subsidiaries (as defined in the Plan), the number of
shares of Common Stock, par value $.01 per share, of the Company indicated
above (subject to the provisions below, the "Shares"), for the per share
purchase price specified above, subject to the terms and conditions set forth
herein and in the Plan. The Grantee agrees to the provisions set forth herein
and acknowledges that each such provision is a material condition of the
Company's agreement to issue and sell the Shares to him or her. All references
to amounts herein shall be equitably adjusted to reflect stock splits, stock
dividends, reverse stock splits, mergers, reorganizations, recapitalizations
and similar changes affecting the capital stock of the Company, and any shares
of capital stock of the Company received on or in respect of Shares in
connection with any such event (including any shares of capital stock or any
right, option or warrant to receive the same or any security convertible into
or exchangeable for any such shares or received upon conversion of any such
shares) shall be subject to this Agreement on the same basis and extent at the
relevant time as the Shares in respect of which they were issued, and shall be
deemed Shares as if and to the same extent they were issued on the Grant Date
(as set forth above).
For the purposes of this Agreement, the following terms shall have the
following respective meanings:
"ACT" shall mean the Securities Act of 1933, as amended, and the rules and
regulations thereunder.
"COMMON STOCK" shall mean the Company's Common Stock, par value $.01 per
share, together with any shares into which Common Stock may be converted or
exchanged.
"INITIAL PUBLIC OFFERING" shall mean the consummation of the first fully
underwritten, firm commitment public offering pursuant to an effective
registration statement under the Act, other than on Forms X-0, X-0, X-00 or S-15
or their then equivalents, covering the offer and sale by the Company of its
Common Stock; or such other event as a result of or following which the
Company's Common Stock shall be publicly traded.
"PERMITTED TRANSFEREES" shall mean the Grantee's spouse, parents, children
(natural or adopted), stepchildren or grandchildren or a trust for their sole
benefit of which the Grantor is the settlor; provided, however, that any such
trust does not require or permit distribution of any Shares during the term of
this Agreement unless such Shares remain subject to the terms of this Agreement.
"RESTRICTED SHARES" shall mean all of the Shares that are not Vested
Shares.
"SALE EVENT" shall mean any of the following transactions: (i) a merger,
reorganization or consolidation of the Company with or into another corporation
(with respect to which less than a majority of the outstanding voting power of
the surviving or consolidated corporation is held by shareholders of the Company
immediately prior to such event), (ii) the sale or transfer of all or
substantially all of the properties and assets of the Company and its
Subsidiaries, (iii) the sale of all of the outstanding stock of the Company to
an unrelated person or entity or (iv) the liquidation or dissolution of the
Company.
"SHARES" shall mean the number of shares of Common Stock being purchased
by the Grantee on the date hereof and any additional shares of Common Stock or
other securities received as a dividend on, or otherwise on account of, the
Shares, as contemplated by the first paragraph of this Agreement.
"TERMINATION EVENT" shall mean the termination of the Grantee's employment
or Service Relationship (as defined in the Plan) with the Company and its
Subsidiaries, for any reason whatsoever whether with or without cause, voluntary
or involuntary.
"VESTED SHARES" shall mean all Shares that have vested in accordance with
Section 2 hereof prior to any Termination Event.
SECTION 1. PURCHASE AND SALE OF SHARES; INVESTMENT REPRESENTATIONS.
1.1. PURCHASE AND SALE. On the date hereof, the Company hereby sells to
the Grantee, and the Grantee hereby purchases from the Company, the number of
Shares set forth above for the per share purchase price set forth above, payable
in cash or a promissory note acceptable to the Company.
1.2. INVESTMENT REPRESENTATIONS. In connection with the purchase and sale
of the Shares contemplated by Section 1.1 above, the Grantee hereby represents
and warrants to the Company as follows:
(a) The Grantee is purchasing the Shares for his or her own account
for investment only, and not for resale or with a view to the distribution
thereof.
(b) The Grantee has had such opportunity as he has deemed adequate
to obtain from the Company such information as is necessary to permit him
or her to evaluate the merits and
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risks of the foregoing investment in the Company and has consulted with his
or her own advisers with respect to such investment in the Company.
(c) The Grantee is either an "accredited investor" as that term is
defined in Rule 501 promulgated under the Act or has sufficient experience
in business, financial and investment matters to be able to evaluate the
risks involved in the purchase of the Shares and to make an informed
investment decision with respect to such purchase.
(d) The Grantee can afford a complete loss of the value of the
Shares and is able to bear the economic risk of holding such Shares for an
indefinite period.
(e) The Grantee understands that the Shares are not registered under
the Act or any applicable state securities or "blue sky" laws and may not
be sold or otherwise transferred or disposed of in the absence of an
effective registration statement under the Act and under any applicable
state securities or "blue sky" laws (or exemptions from the registration
requirements thereof). The Grantee further acknowledges that certificates
representing the Shares will bear restrictive legends reflecting the
foregoing.
SECTION 2. VESTING. 100% of the Shares shall become Vested Shares on April
30, 1999.
2.1 ADJUSTMENTS UPON CERTAIN TRANSACTIONS. Upon the occurrence of any
Transaction (as defined in Section 3(c) of the Plan), the Shares shall be
subject to such accelerated vesting, if any, assumption and termination as are
provided for in Section 3(c) of the Plan and any Restricted Shares which are not
assumed or vested after giving effect to such Transaction shall be subject to
repurchase under Section 3 hereof.
SECTION 3. REPURCHASE OF RESTRICTED SHARES.
3.1. REPURCHASE RIGHT. Upon the occurrence of a Termination Event, the
Company or its assigns shall have the right to repurchase (a) all or any portion
of the Restricted Shares held by the Grantee as of the date of such Termination
Event at a repurchase price equal to $68.80 per Restricted Share (the
"Restricted Repurchase Price"); and (b) all or any portion of the Vested Shares
held by the Grantee as of the date of such Termination Event at a repurchase
price equal to the fair market value per Vested Share as determined in good
faith by the Board of Directors of the Company (the "Vested Repurchase Price"
and together with the Restricted Repurchase Price, the "Total Repurchase
Price"). The purchase and sale arrangements contemplated by this Section 3 are
referred to herein as the "Repurchase." Any Shares repurchased hereunder are
referred to as the Repurchased Shares.
3.2. CLOSING PROCEDURE. The Company or its assigns shall effect the
Repurchase by delivering or mailing to the Grantee written notice within six (6)
months after the Termination Event, specifying a date within such six-month
period in which the Repurchase shall be effected. Upon such notification, the
Grantee shall promptly surrender to the Company any certificates representing
the Repurchased Shares being purchased, together with a duly executed stock
power
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for the transfer of such Repurchased Shares to the Company or the Company's
assignee or assignees. Upon the Company's or its assignee's receipt of the
certificates from the Grantee, the Company or its assignee or assignees shall
deliver to the Grantee a check for the Total Repurchase Price of the Repurchased
Shares being purchased; provided, however, that the Company may pay the Total
Repurchase Price for such Repurchased Shares by offsetting and canceling any
indebtedness then owed by the Grantee to the Company. At such time, the Grantee
shall deliver to the Company the certificate or certificates representing the
Repurchased Shares so repurchased, duly endorsed for transfer, free and clear of
any liens or encumbrances. The Repurchase rights and obligations specified in
this Section 3 shall survive and remain in effect as to Restricted Shares (but
not Vested Shares) following and notwithstanding any public offering by the
Company and certificates representing such Restricted Shares shall bear legends
to such effect.
3.3. REMEDY. Without limitation of any other provision of this Agreement
or other rights, in the event that the Grantee is required to sell his, her or
its Repurchased Shares pursuant to the provisions of this Section 3 and in the
further event that he, she or it refuses or for any reason fails to deliver to
the designated purchaser of such Repurchased Shares the certificate or
certificates evidencing such Repurchased Shares together with a related stock
power, such designated purchaser may deposit the Repurchase Price for such
Repurchased Shares with any bank doing business within fifty (50) miles of the
Company's principal office, or with the Company's independent public accounting
firm, as agent or trustee, or in escrow, for the Grantee, to be held by such
bank or accounting firm for the benefit of and for delivery to him, them or it,
and/or, in the discretion of such bank or accounting firm, pay such Repurchase
Price by offsetting any indebtedness then owed by the Grantee as provided above.
Upon any such deposit and/or offset by the designated purchaser of such amount
and upon notice to the person or entity who was required to sell the Repurchased
Shares to be sold pursuant to the provisions of this Section 3, such Repurchased
Shares shall at such time be deemed to have been sold, assigned, transferred and
conveyed to such purchaser, the holder thereof shall have no further rights
thereto (other than the right to withdraw the payment thereof held in escrow, if
applicable), and the Company shall record such transfer in its stock transfer
book or in any appropriate manner.
3.4. ESCROW. In order to carry out the provisions of this Section 3 more
effectively, the Company may hold the Shares in escrow together with separate
stock powers executed by the Grantee in blank for transfer. The Company shall
not dispose of the Shares except as otherwise provided in this Agreement. In the
event of any Repurchase, the Company is hereby authorized by the Grantee, as the
Grantee's attorney-in-fact, to date and complete the stock powers necessary for
the transfer of the Repurchased Shares being purchased and to transfer such
Repurchased Shares in accordance with the terms hereof. At such time as any
Shares are no longer Repurchased Shares the Company shall, at the written
request of the Grantee, deliver to the Grantee a certificate representing such
Shares with the balance of the Shares, if any, to be held in escrow pursuant to
this Section 3.3.
Section 4. RESTRICTIONS ON TRANSFER OF SHARES.
4.1 NO TRANSFERS UNLESS IN COMPLIANCE WITH LAW AND THIS AGREEMENT. None of
the Shares now owned or hereafter acquired shall be sold, assigned, transferred,
pledged,
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hypothecated, given away or in any other manner disposed of or encumbered,
whether voluntarily or by operation of law (each, a "Transfer"), unless such
Transfer is in compliance with all foreign, federal and state securities laws
(including, without limitation, the Act), and such Transfer is in accordance
with the terms and conditions of this Section 4. In connection with any Transfer
of Shares, the Company may require an opinion of counsel to the transferor,
satisfactory to the Company, that such Transfer is in compliance with all
foreign, federal and state securities laws (including without limitation, the
Act). No Restricted Shares may be Transferred by the Grantee.
4.2 TRANSFERS TO PERMITTED TRANSFEREES. Subject to this Section 4.2, the
Grantee may Transfer any or all of the Vested Shares without receipt of
consideration or for such consideration as such holder shall determine to
Permitted Transferees. The Grantee agrees to give the Company prior written
notice of any Transfer of Shares to a Permitted Transferee. No Transfer
permitted hereby shall be effective unless the Permitted Transferee to whom the
Shares are proposed to be transferred has delivered to the Company a written
acknowledgment, in the form of APPENDIX A hereto, that the Shares to be received
by it are and will remain subject to the provisions of this Agreement (including
without limitation, the provisions of this Section 4) and that the Permitted
Transferee is bound hereby and thereby. The restrictions on transfer of Vested
Shares contained in this Section 4.2 shall terminate upon an Initial Public
Offering.
4.3 TRANSFERS UPON DEATH. Upon the death of the Grantee, the Vested Shares
held by the Grantee may be transferred and distributed by will or other
instrument taking effect at his or her death or by the laws of descent and
distribution to the Grantee's estate, executors, administrators and personal
representatives, and then to such holder's heirs, legatees or distributees
whether or not such heirs, legatees or distributees are Permitted Transferees.
No Transfer permitted under this Section 4.3 shall be effective unless the
transferee to whom the Shares are proposed to be transferred pursuant to this
provision has delivered to the Company a written acknowledgment, in the form of
APPENDIX A hereto, that the Shares to be received by it are subject to the
provisions of this Agreement (including without limitation, the provisions of
this Section 4) and that such transferee is bound hereby and thereby. The
restrictions on transfer of Vested Shares contained in this Section 4.3 shall
terminate upon an Initial Public Offering.
4.4. RIGHT OF FIRST REFUSAL. Prior to making any Transfer of Vested Shares
(other than to a Permitted Transferee in accordance with Section 4.2), the
Grantee shall deliver written notice (the "Transfer Notice") to the Company. The
Transfer Notice shall disclose in reasonable detail the identity of the
prospective transferees, the number of shares to be Transferred (the "Offered
Shares") and the terms and conditions of the proposed Transfer. By giving the
Transfer Notice, the Grantee shall be deemed to have granted the Company an
option to purchase the Offered Shares. The Company may purchase all, but not
less than all, of the Offered Shares upon the same terms and conditions as those
set forth in the Transfer Notice by delivering written notice of such election
to the Grantee within 20 days after the receipt of the Transfer Notice by the
Company (the "Election Period"). If the Company has not elected to purchase or
otherwise acquire all of the Offered Shares prior to the expiration of the
Election Period, the Grantee may Transfer such Shares at a price and on terms no
more favorable to the transferees thereof than specified in the Transfer Notice
during the 30-day period immediately following the expiration of the Election
Period (the "Transfer Period"). Any Offered Shares that are not Transferred
within the Transfer
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Period shall be subject to the provisions of this Section 4.4 upon any
subsequent Transfer. If the Company has elected to purchase any Offered Shares
hereunder, the Transfer of such Offered Shares shall be consummated as soon as
practical after the delivery of the election notice to the Grantee, but in any
event within 15 days after the expiration of the Election Period. The
restrictions on transfer of Vested Shares contained in this Section 4.4 shall
terminate upon an Initial Public Offering.
4.5 INVALID TRANSFERS. Any attempted disposition of Shares not in
accordance with the terms and conditions of this Agreement shall be null and
void, and the Company shall not reflect on its records any change in record
ownership of any Shares pursuant to any such disposition, shall otherwise refuse
to recognize any such disposition and shall not in any way give effect to any
such disposition of any Shares.
SECTION 5. LEGEND. Any certificate(s) representing the Shares shall carry
substantially the following legends:
"The transferability of this certificate and the shares of stock
represented hereby are subject to the restrictions, terms and
conditions (including repurchase rights and transfer restrictions)
contained in a certain Restricted Stock Award Agreement between the
Company and the holder of record of this certificate (a copy of
which is available at the offices of the Company for examination)."
"The shares represented by this certificate have not been registered
under the Securities Act of 1933, as amended, and may not be
offered, sold or otherwise transferred, pledged or hypothecated
unless and until such shares are registered under such Act or an
opinion of counsel satisfactory to the corporation is obtained to
the effect that such registration is not required."
SECTION 6. WITHHOLDING TAXES. The Grantee acknowledges and agrees that the
Company or any of its Subsidiaries has the right to deduct from payments of any
kind otherwise due to the Grantee, or from the Shares held pursuant to Section
3.3 hereof, any federal, state or local taxes of any kind required by law to be
withheld with respect to the purchase of the Shares by the Grantee. In
furtherance of the foregoing the Grantee agrees to elect, in accordance with
Section 83(b) of the Internal Revenue Code of 1986, as amended (the "Code"), to
recognize ordinary income in the year of acquisition of the Shares, and to pay
(or make arrangements with the Company for the payment of) all withholding taxes
shown as due on his or her Section 83(b) election form, or otherwise ultimately
determined to be due with respect to such election, based on the excess, if any,
of the Fair Market Value (as defined in the Plan) of such Shares as of the date
of the purchase of such Shares by the Grantee over the purchase price for such
Shares.
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SECTION 7. OTHER CONTRACTUAL RESTRICTIONS; MARKET STAND-OFF.
7.1. CONTRACTUAL RESTRICTIONS. The Grantee, and to the extent applicable
the Grantee's legal representative or any Permitted Transferee, shall agree to
be bound by, and upon receipt of shares of Stock hereunder to execute an
acknowledgment to, that certain Shareholders' Agreement dated as of June 4,
1998, as amended from time to time, among the Company and certain holders of its
capital stock.
7.2 MARKET STAND-OFF. The Grantee agrees, and to the extent applicable the
Grantee's legal representative or each Permitted Transferee shall agree, if
requested by the Company and any underwriter engaged by the Company, not to sell
or otherwise transfer or dispose of any securities of the Company (including,
without limitation pursuant to Rule 144 under the Act (or any successor or
similar exemptive rule hereafter in effect)) held by him, her or it for such
period following the effective date of any registration statement of the Company
filed under the Act as the Company or such underwriter shall specify reasonably
and in good faith, provided that such period shall not exceed 180 days.
SECTION 8. MISCELLANEOUS PROVISIONS.
8.1. RECORD OWNER; DIVIDENDS. The Grantee and any Permitted Transferees,
during the duration of this Agreement, shall be considered the record owners of
and shall be entitled to vote the Shares. The Grantee and any Permitted
Transferees shall be entitled to receive all dividends and any other
distributions declared on the Shares; provided, however, that the Company is
under no duty to declare any such dividends or to make any such distribution.
8.2. EQUITABLE RELIEF. The parties hereto agree and declare that legal
remedies are inadequate to enforce the provisions of this Agreement and that
equitable relief, including specific performance and injunctive relief, may be
used to enforce the provisions of this Agreement.
8.3. CHANGE AND MODIFICATIONS. This Agreement may not be orally changed,
modified or terminated, nor shall any oral waiver of any of its terms be
effective. This Agreement may be changed, modified or terminated only by an
agreement in writing signed by the Company and the Grantee.
8.4. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts.
8.5. HEADINGS. The headings are intended only for convenience in finding
the subject matter and do not constitute part of the text of this Agreement and
shall not be considered in the interpretation of this Agreement.
8.6. SAVING CLAUSE. If any provision(s) of this Agreement shall be
determined to be illegal or unenforceable, such determination shall in no manner
affect the legality or enforceability of any other provision hereof.
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8.7. NOTICES. All notices, requests, consents and other communications
shall be in writing and be deemed given when delivered personally, by telex or
facsimile transmission or when received if mailed by a nationally recognized
overnight carrier or by first class registered or certified mail, postage
prepaid. Notices to the Company shall be addressed to its principal offices and
to the Grantee as set forth underneath his or her signature below, or to such
other address or addresses as may have been furnished by such party in writing
to the other. Notices to any holder of the Shares other than the Grantee shall
be addressed to the address furnished by such holder to the Company.
8.8. BENEFIT AND BINDING EFFECT. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto, their respective successors,
assigns, legal representatives, estates, executors, administrators and heirs.
The Company has the right to assign this Agreement, and such assignee shall
become entitled to all the rights of the Company hereunder to the extent of such
assignment.
8.9 ASSIGNMENT OF REPURCHASE RIGHT. At the discretion of the Board of
Directors of the Company, the Company shall have the right to assign the right
to exercise its obligation and rights with respect to the Repurchase to any
person or persons, in whole or in part in any particular instance, upon the same
terms and conditions applicable to the exercise thereof by the Company, and such
assignee or assignees of the Company shall then take and hold any Shares so
acquired subject to such terms as may be specified by the Company in connection
with any such assignment.
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IN WITNESS WHEREOF, the Company and the Grantee have executed this
Restricted Stock Award Agreement as of the date first above written.
STRIDE & ASSOCIATES, INC.
By:
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Name:
Title:
GRANTEE:
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Name:
Grantee's Address:
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Social Security No.:
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SPOUSE'S CONSENT
I acknowledge that I have read the
foregoing Restricted Stock Award Agreement
and understand the contents thereof.
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APPENDIX A
ACKNOWLEDGMENT AND JOINDER AGREEMENT
The undersigned hereby acknowledges that the shares of Common Stock, par
value $.01 per share, of Stride & Associates, Inc. (the "Company") acquired from
the transferor are subject to the terms and conditions of that certain
Restricted Stock Award Agreement (the "Agreement") dated as of June 4, 1998 by
and between the Company and the undersigned, including but not limited to a
right of repurchase by the Company and certain restrictions on transfer pursuant
to Sections 3 and 4 thereof. For the purposes of the Agreement, the undersigned
shall be included within the term "Grantee" (as defined in the Agreement) and
the undersigned agrees to bound by all of the obligations applicable to the
Grantee thereunder, including Sections 3 and 4 thereof. The address to which
notices may be sent to the undersigned is as follows:
Address:
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Date:
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Name:
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