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EXHIBIT 10.21
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT, dated as of July 8, 1996, is by and between Xxxxx Systems
Corporation ("Xxxxx Systems"), a Delaware corporation and Xxxxx Xxxxxx
("Participant").
WITNESSETH:
WHEREAS, Xxxxx Systems has adopted the Xxxxx Systems Corporation Restricted
Stock Plan (the "Plan"), a copy of which is attached hereto as Attachment E, to
enable employees of Xxxxx Systems and its subsidiaries, if any (collectively,
the "Company") to acquire shares of Class A Common Stock, $0.01 par value, of
Xxxxx Systems ("Common Stock") in accordance with the provisions of the Plan;
and
WHEREAS, the Restricted Stock Committee of Xxxxx Systems (the "Committee") has
selected Participant to participate in the Plan and granted Participant the
right to purchase shares of Common Stock in accordance with the terms and
conditions of this Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the mutual promises
and other terms and conditions set forth in this Agreement, Xxxxx Systems and
Participant agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have
the respective meanings indicated as follows:
(a) "Holding Period" shall mean, (i) for one-half of the shares of Vested
Stock vesting on a particular Vesting Date the period of time
commencing on the Vesting Date upon which such shares become Vested
Stock and ending two years thereafter, and (ii) for the other
one-half of the shares of Vested Stock vesting on a particular
Vesting Date, a period of time consisting of the day upon which such
shares become Vested Stock; provided, however, that there shall be no
Holding Period for any shares of Vested Stock from and after the date
that the Participant's employment with Company is terminated (whether
by the Company or Participant) for any reason.
(b) "Market Value" of a share of Restricted Stock on a given date shall
mean (i) if the Common Stock is Publicly Traded the closing sale
price for Common Stock on such date or, if no closing sale price is
available for such date, on the most recent prior date for which a
closing sale price is available or, if no closing sale price is
available, the average of the closing bid and ask prices on such date
or, if no closing bid and ask prices are available for such date,
the average of the closing bid and ask prices on the most recent
prior date for which such bid and ask prices are available, or (ii)
if the Restricted Stock is not Publicly Traded, its fair market
value, as determined in good faith by the Board of Directors, as of
the most recent Valuation Date before or after the date.
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(c) "Person" will be broadly construed to include an individual,
corporation, partnership, association, trust, unincorporated
organization, governmental entity, other entity or group.
(d) "Publicly Traded" means Xxxxx Systems Common Stock has been listed on
a registered national securities exchange or approved for quotation
in the National Association of Securities Dealers Automated Quotation
("NASDAQ") system.
(e) "Restricted Stock" shall mean the Common Stock issued to Participant
pursuant to the Plan and this Agreement, together with any successor
security, property or cash issued or distributed by Xxxxx Systems or
any successor entity, whether by way of merger, consolidation, share
exchange, reorganization, liquidation, recapitalization, dividend or
otherwise.
(f) "Transfer" or "transfer" or derivations thereof includes any sale,
assignment, gift, pledge, encumbrance, hypothecation, mortgage,
exchange or any other disposition.
(g) "Unvested Stock" shall mean all shares of Restricted Stock other than
Vested Stock.
(h) "Valuation Date" means each June 30 and December 31 of every year,
beginning on January 1, 1991, or any other date as of which the Board
of Directors determines the Market Value of Restricted Stock.
(i) "Vesting Date" shall mean a date upon which shares of Restricted
Stock vest to Participant or Participant's estate pursuant to this
Agreement.
(j) "Vesting Period" shall mean the period of time commencing on the date
of this Agreement and ending on the last Vesting Date.
(k) "Vested Stock" shall mean those shares of Restricted Stock that have
vested to Participant or Participant's estate pursuant to this
Agreement.
Other terms used in this Agreement are defined in the context in which
they occur and shall have the meanings there indicated.
2. Purchase and Sale. Subject to the terms, conditions, and restrictions set
forth in this Agreement, on the Effective Date under the Associate
Agreement between Xxxxx Systems and Participant of even date herewith (the
"Associate Agreement") Xxxxx Systems shall sell to Participant, and
Participant shall purchase from Xxxxx Systems, for a purchase price of
$2.50 per share, payable on the Effective Date, the number of shares of
Common Stock specified on Attachment A hereto, which shares shall vest to
Participant in accordance with the vesting schedule set forth on
Attachment A hereto for so long as Participant is an employee of the
Company and as follows:
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(a) If Company terminates Participant's employment effective on or before
August 12, 1997, for any reason other than Cause or Substantial
Misconduct (each as defined in the Associate Agreement), the
Restricted Stock scheduled to vest on the Vesting Dates in 1997 and
1998 will vest on such Vesting Dates notwithstanding such
termination.
(b) If (i) Participant's employment with Company is terminated by Company
for any reason other than Cause or Substantial Misconduct effective
after August 12, 1997 and on or before August 12, 1998 or (ii)
Participant is Constructively Terminated (as defined in the Associate
Agreement) on or before August 12, 1998, then the Restricted Stock
scheduled to vest on each Vesting Date to and including the Vesting
Date in 2000 will vest on such Vesting Dates (to the extent not
previously vested) notwithstanding such termination. If (i)
Participant's employment with Company is terminated by Company for
any reason other than Cause or Substantial Misconduct effective after
August 12, 1998 or (ii) Participant is Constructively Terminated
after August 12, 1998, then the Restricted Stock scheduled to vest on
each Vesting Date up to the date occurring two years after the date
of termination will vest on such Vesting Dates (to the extent not
previously vested) notwithstanding such termination.
(c) If a Change in Control (as defined in the Associate Agreement)
occurs on or before August 12, 1998, and Champy's employment with the
Company is terminated by either party within one year after such
Change in Control (other than a termination by the Company for
Cause), then the Restricted Stock scheduled to vest on each Vesting
Date to and including the Vesting Date in 2000 will vest on such
Vesting Dates (to the extent not previously vested) notwithstanding
such termination. If a Change in Control occurs after August 12,
1998, and Champy's employment with the Company is terminated by
either party within one year after such Change in Control (other than
a termination by the Company for Cause), then the Restricted Stock
scheduled to vest on each Vesting Date up to the date occurring two
years after the date of termination will vest on such Vesting Dates
(to the extent not previously vested) notwithstanding such
termination.
(d) If Participant's employment is terminated as a result of
Participant's death or disability, then the Restricted Stock
scheduled to vest on each Vesting Date to and including the Vesting
Date one year following such termination will vest on such Vesting
Dates (to the extent not previously vested) notwithstanding such
termination.
If a termination occurs that is covered by the provisions of both
subsection (a) and subsection (c) above, the terms of subsection (c) above
shall govern.
3. Restrictions on Transfer. All shares of Restricted Stock shall be subject
to the following restrictions on transfer unless the Company shall
otherwise agree in writing:
(a) Shares of Unvested Stock may not be sold or otherwise transferred.
(b) Shares of Vested Stock may not be sold or otherwise transferred
during the Holding Period for those shares.
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(c) For the benefit of Xxxxx Systems and the underwriters of the initial
underwritten public offering of Xxxxx Systems Common Stock registered
under the Securities Act of 1933, as amended (the "Securities Act"),
Participant will not effect any transfer of Vested Stock without the
written consent of the representatives of such underwriters for the
same period as the underwriters request from the top five executive
officers of Xxxxx Systems (as designated by the CEO of Xxxxx
Systems), but in no event for a period of more than 270 days.
(d) Shares of Vested Stock may not be sold or otherwise transferred after
the Holding Period for those shares and prior to the date the Common
Stock is Publicly Traded unless Participant has given Xxxxx Systems
any notice required under Section 4 and Xxxxx Systems has waived or
failed to exercise its option to purchase those shares pursuant to
Section 4 hereof.
(e) Notwithstanding the foregoing restrictions on transfer, Participant
may transfer, while he is alive or as a distribution upon his death,
all or a portion of the Restricted Stock to a maximum of five
transferees, but only if each transferee is Participant's spouse,
descendant or a trust for their benefit. Any such transfer must be
effected pursuant to documentation reasonably acceptable in form and
substance to Xxxxx Systems, and such documentation must provide that
the Restricted Stock transferred remains subject to all of the
vesting provisions, transfer restrictions, repurchase options and
other provisions of this Agreement, in each case as if such
Restricted Stock continued to be held by Participant. Without
limiting the generality of the foregoing, a transferee under this
paragraph will hold the Restricted Stock subject to Xxxxx Systems'
repurchase options and other rights under Section 4, Section 6 and
Section 9 hereof.
Xxxxx Systems shall not be obligated to recognize any purported sale or
other transfer of Restricted Stock in violation of this Section 3 and,
unless it elects to do otherwise, may treat any such purported sale or
transfer as null, void, and of no effect.
4. Options to Purchase Vested Stock. Unless and until waived by Xxxxx
Systems and regardless of whether or not Participant is still employed by
the Company, Xxxxx Systems shall have the following options to purchase
Vested Stock:
If, after the Holding Period therefor and prior to the date the Common
Stock is Publicly Traded, Participant, or any subsequent holder of
Vested Stock, desires or is obligated to sell or otherwise transfer
any shares of Vested Stock (other than a transfer upon Participant's
death), the holder of such shares shall give Xxxxx Systems written
notice of the proposed sale or transfer, including the identity of the
proposed purchaser or transferee, and, for a period of 30 days after
receipt of such notice, Xxxxx Systems shall have the option to
purchase for cash any or all of such shares at the Market Value
thereof.
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5. Manner of Stock Buy Back. Whenever Xxxxx Systems has a right to buy back
shares of Restricted Stock pursuant to this Agreement, Xxxxx Systems may
exercise its right by notifying Participant or the subsequent holder of
Xxxxx Systems' election to exercise its right within the designated
exercise period. In the case of a buy back under Section 4 or Section 9,
the giving of such notice will give rise to an obligation on the part of
Participant or the subsequent holder to tender to Xxxxx Systems, within
ten days, any previously issued certificate representing shares of
Restricted Stock to be bought back, duly endorsed in blank or having a
duly executed stock power attached in proper form for transfer. If any
such endorsed certificate or stock power is not tendered within ten days,
Xxxxx Systems may cancel any outstanding certificate representing shares
to be bought back (subject to Xxxxx Systems issuing a new certificate as
to shares included in the outstanding certificate but not subject to the
buy back right exercised by Xxxxx Systems). Xxxxx Systems is required to
tender the purchase price within ten days of the tender of the shares. If
the person from whom the shares are to be bought back has not complied
with an obligation to return a certificate and stock power representing
shares to be bought back, however, Xxxxx Systems is not required to tender
the purchase price until ten days after the certificate is returned or ten
days after it cancels the certificate (as provided above in this Section
5), whichever occurs first.
6. Termination of Employment. In the event that, during the Vesting Period,
Participant's employment with the Company is voluntarily or involuntarily
terminated for any reason, Xxxxx Systems shall be entitled, by notice to
Participant within 90 days after such termination, to exercise the rights
specified in Section 9(b) below, but only as to Unvested Stock, other than
Unvested Stock that will vest at or following such termination pursuant to
Section 2(a), (b), (c) or (d) hereof.
7. Stock Repurchase. If Participant's employment is terminated for any
reason, at Participant's option, Xxxxx Systems shall repurchase all or
such portion as shall be requested by Participant of the Restricted Stock
purchased and still held by Participant at the price paid by Participant
(subject to adjustment in the event of stock splits, stock dividends,
combinations and recapitalizations affecting such shares) plus simple
interest on such amount at the rate of 8% per annum from the date of
payment by Participant to the date of tender of payment by Xxxxx Systems,
minus the amount or value, as applicable, of any dividends or
distributions paid on such Restricted Stock to and retained by Participant
pursuant to Section 11, provided Participant gives Xxxxx Systems written
notice of his election to exercise such option and tenders to Xxxxx
Systems any previously issued certificate representing shares of
Restricted Stock to be bought back, duly endorsed in blank or having a
duly executed stock power attached in proper form for transfer, within 30
days of the date of termination. Xxxxx Systems is required to tender the
purchase price within ten days of the tender of the shares to it.
8. Competition. Participant acknowledges that, in the course and as a result
of employment with the Company, Participant will obtain special training
and knowledge and will come in contact with the Company's customers and
potential customers, which training, knowledge and contacts could provide
invaluable benefits to competitors of the Company.
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Accordingly, and in consideration of Xxxxx Systems' agreement to issue
Restricted Stock to Participant hereunder, which Participant acknowledges
is conditioned on the covenants contained herein, Participant agrees that
Xxxxx Systems shall be entitled to exercise the rights specified in
Section 9 below in the event that, during the time Participant is employed
by the Company or within one year thereafter, except with the prior
written consent of the Company, Participant, either directly or
indirectly, does any of the following:
(a) except for Exempted Activities (as defined below), solicits or
performs (or assists a third party in soliciting or performing)
services (a "Restricted Solicitation or Performance"), as an
employee, independent contractor, subcontractor or otherwise (other
than as an employee of the Company), for any Person (including any
Persons known by Participant to be affiliates or subsidiaries of the
specified Person) that is or was a customer or prospect of the
Company for which Participant solicited business or performed
services on behalf of the Company during the two-year period prior to
the Restricted Solicitation or Performance (a "PSC Customer or
Prospect");
(b) knowingly recruits or employs or knowingly assists any Person in
recruiting any person who is, or at any time within the preceding one
year was, an employee of the Company; and
(c) provides services to, or otherwise is associated with, as an
employee, independent contractor, subcontractor or otherwise (except
as an employee of the Company), any of the companies or divisions
listed on Attachment C attached hereto and their more than 50% owned
subsidiaries (cumulatively the "Named Competitors"). Upon
termination of Participant's employment with Company for any reason,
Xxxxx Systems will have ten days to add up to six additional Named
Competitors to the list set forth on Attachment C by notice to
Participant. Notwithstanding the foregoing, this Section 8( c) will
not apply if Participant's employment is Constructively Terminated,
terminated within one year following a Change in Control or
terminated by Company other than for Cause.
The following activities by Participant shall constitute "Exempted
Activities" for purposes of clause (a) above:
(i) soliciting or performing services for any of the Persons
listed on Exhibit A to the Associate Agreement (including
subsidiaries and affiliates of such Persons);
(ii) the performance by Participant of consulting services or the
like as an independent contractor working solely for himself
and by himself other than for administrative and editorial
support (or a business of which Participant is the owner of
all of the equity and the sole non-administrative,
non-editorial employee); provided, however, that the
performance of such services by Participant for a PSC
Customer or Prospect only shall constitute an Exempted
Activity if Participant has obtained the written consent of
the Company's Chairman or CEO, which consent shall not be
unreasonably withheld;
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(iii) the presentation by Participant of speeches, seminars or the
like as an independent contractor working solely for himself
and (except as to participation on a panel or with a group of
unrelated persons) by himself other than for administrative
support (or a business of which Participant is the owner of
all of the equity and the sole non-administrative employee)
and publishing of books and articles by Participant; and
(iv) serving as a member of the faculty or administration of an
academic or non-profit institution.
If any provision of this Section 8 should be found by any court of
competent jurisdiction to be unreasonable by reason of its being too broad
as to the period of time, territory, and/or scope, then, and in that
event, such provision shall nevertheless remain valid and fully effective,
but shall be considered to be amended so that the period of time,
territory, and/or scope set forth shall be changed to be the maximum
period of time, the largest territory, and/or the broadest scope, as the
case may be, which would be found reasonable and enforceable by such
court.
9. Rights Upon Termination or Competition.
(a) If Participant has engaged in any conduct prohibited by Section 8 or
if Participant's employment was terminated by the Company for Cause
(as defined in the Associate Agreement), Xxxxx Systems will have the
right for 150 days after the Committee discovers the relevant facts
(but in no event later than two years after the date on which
Participant ceased to be an employee of the Company) to:
(i) cancel any remaining vesting that has not yet occurred, but
is scheduled to occur in the future under Section 2(a), (b),
(c) or (d) hereof;
(ii) require Participant to sell to Xxxxx Systems all or any part
of the Restricted Stock (both Vested Stock and Unvested
Stock) then held by Participant, at the price per share paid
by Participant (subject to adjustment in the event of stock
splits, stock dividends, combinations and recapitalizations
affecting such shares) plus simple interest on such amount at
the rate of 8% per annum from the date of payment by
Participant to the date of tender of payment by Xxxxx Systems
as set forth in Section 5 above, minus the amount or value,
as applicable, of any dividends or distributions paid on such
Restricted Stock to and retained by Participant pursuant to
Section 11; and
(iii) if any shares of Restricted Stock have been sold or otherwise
transferred by Participant (including any sale to the
Company), require Participant to pay to Xxxxx Systems an
amount in cash with respect to each share of Restricted Stock
not still so held equal to (i) in the case of a sale or
transfer to a non-affiliate in a bona fide, arms length
transaction, the value of the net proceeds received by
Participant for such share, or (ii) in the case of all other
transfers, the Market Value of such share
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on the first date on which such share is no longer held by
Participant (or transferees under Section 3(e)), less in
either case the price paid by Participant for such share
(subject to adjustment in the event of stock splits, stock
dividends, combinations and recapitalizations affecting such
shares) plus simple interest on such amount at the rate of 8%
per annum from the date of payment by Participant to the date
of tender of payment by Xxxxx Systems as set forth in Section
5 above, minus the amount or value, as applicable, of any
dividends or distributions paid on such Restricted Stock to
and retained by Participant pursuant to Section 11;
provided that (i) the total number of shares of Restricted Stock as
to which future vesting is canceled pursuant to subsection (i), plus
(ii) the total number of shares of Restricted Stock that are
repurchased by PSC pursuant to subsection (ii), plus (iii) the total
number of shares of Restricted Stock with respect to which
Participant is required to make the payment described in subsection
(iii), may not exceed the lesser of fifty percent (50%) of the Vested
Stock or 100,000 shares (as adjusted to reflect any stock split,
stock dividend or similar event affecting the total number of shares
of Common Stock outstanding). Xxxxx Systems will exercise its
remedies under this Section 9 in the order of subsections (i) through
(iii), above, until the foregoing share limit is reached.
(b) If and when Xxxxx Systems is entitled to exercise the rights
specified in this Section 9, as provided in Section 6 above, then,
upon the demand of Xxxxx Systems, Participant shall sell to Xxxxx
Systems all or any part of the Unvested Stock then held by
Participant, other than Unvested Stock that will vest at or following
termination pursuant to Section 2(a), (b), (c) or (d), at the price
per share paid by Participant (subject to adjustment in the event of
stock splits, stock dividends, combinations and recapitalizations
affecting such shares) plus simple interest on such amount at the
rate of 8% per annum from the date of payment by Participant to the
date of tender of payment by Xxxxx Systems as set forth in Section 5
above, minus the amount or value, as applicable, of any dividends or
distributions paid on such Unvested Stock to and retained by
Participant.
10. Compliance with Securities Laws. Participant hereby represents and
warrants that Participant has acquired the Restricted Stock for
Participant's own account and not with a view to any resale or
distribution thereof. Participant agrees that he will not sell or
otherwise transfer any shares of Restricted Stock in any way that may
result in a violation of any federal or state securities laws or
regulations. Participant further acknowledges and agrees that Xxxxx
Systems may require any subsequent purchaser or other transferee from
Participant of shares of Restricted Stock that cannot be publicly traded
to provide Xxxxx Systems, prior to such sale or other transfer, with such
representations, commitments and opinions regarding compliance with
applicable securities laws and regulations as Xxxxx Systems may reasonably
deem necessary or advisable.
11. Stock Certificate. Promptly upon the occurrence of each Vesting Date,
Xxxxx Systems will issue and deliver to Participant certificates
representing any shares of Vested Stock held by Participant. Xxxxx
Systems may require that any certificates or other property representing
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shares of Unvested Stock remain in the possession of the Company or an
escrow agent designated by the Committee. Each certificate representing
Vested Stock or Unvested Stock shall bear such legends as are provided on
Attachment D to this Agreement or as are required under applicable
securities laws. Whether or not certificates representing such shares
have been issued or delivered, Participant shall have all the rights of a
shareholder of Restricted Stock, including voting, dividend and
distribution rights, with respect to all shares of Restricted Stock, both
Vested Stock and Unvested Stock, held by Participant, but any and all
stock and/or cash dividends (other than normal periodic cash dividends),
distributions in property, or other distributions made on or in respect of
the Unvested Stock, whether resulting from a subdivision, combination or
reclassification of the Unvested Stock of any issuer thereof or received
in exchange for Unvested Stock or any part thereof or as a result of any
merger, consolidation, acquisition or other exchange of assets to which
any such issuer may be a party or otherwise, and any and all cash and
other property received in exchange for the Unvested Stock or received in
payment of the principal of or in redemption of the Unvested Stock (either
at maturity, upon call for redemption or otherwise), shall remain in the
possession of Xxxxx Systems.
12. Income Tax Withholding. Participant acknowledges and agrees that
Participant shall, upon request by the Company from time to time,
reimburse the Company for, or the Company may withhold from sums otherwise
payable to Participant, any amounts the Company is required to remit to
applicable taxing authorities as income tax withholding with respect to
the Restricted Stock. If Participant fails to reimburse the Company for
any such amount when requested, the Company shall have the right to
recover that amount by selling sufficient shares of Participant's
Restricted Stock.
13. Compliance with Plan. Participant acknowledges that this Agreement is
entered into, and the Restricted Stock is issued, pursuant to the Plan and
agrees to comply with the provisions of the Plan, as it may be amended
from time to time, to the extent that such provisions are not inconsistent
with the provisions of this Agreement and do not increase Participant's
obligations under this Agreement.
14. Participant's Representations and Warranties. Participant represents and
warrants that he is an "accredited investor" as that term is defined in
Rule 501 of Regulation D under the Securities Act by virtue of the fact
that Participant (i) had individual income in excess of $200,000 in each
of the last two calendar years and reasonably expects to have an
individual income in excess of $200,000 in the current calendar year; (ii)
had joint income with his spouse in excess of $300,000 in each of the last
two calendar years and reasonably expects to have a joint income in excess
of $300,000 in the current calendar year; or (iii) has an individual net
worth, or has joint net worth with his spouse, in excess of $1,000,000.
15. Notices. Any notice to Xxxxx Systems or Company that is required or
permitted by this Agreement shall be addressed to the attention of the CEO
of Xxxxx Systems with a copy to General Counsel at its principal office.
Any notice to Participant that is required or permitted by this Agreement
shall be addressed to Participant at the most recent address for
Participant reflected in the appropriate records of the Company, with a
copy to Xxxxx X.
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Redlick, Esq., Xxxx and Xxxx, 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000. Either
party may at any time change its address for notification purposes by
giving the other prior written notice of the new address and the date upon
which it will become effective. Whenever this Agreement requires or
permits any notice from one party to another, the notice must be in
writing to be effective. If mailed, a notice hereunder shall be deemed to
have been given on the third business day after the same is enclosed in an
envelope, addressed to the party to be notified at the appropriate
address, properly stamped, sealed and deposited in the United States mail,
certified mail, return receipt requested. If given in any other manner,
the notice will be deemed given when actually received by the recipient.
16. REMEDIES AND ARBITRATION. ANY DISPUTE ARISING BETWEEN PARTICIPANT AND
XXXXX SYSTEMS UNDER THIS AGREEMENT OR WITH RESPECT TO THE SUBJECT MATTER
OR INTERPRETATION HEREOF SHALL BE SETTLED BY ARBITRATION. SUCH
ARBITRATION SHALL BE CONDUCTED IN WASHINGTON, D.C., IN ACCORDANCE WITH THE
COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION
(EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT) BEFORE A SINGLE
ARBITRATOR. SUCH ARBITRATOR SHALL BE SELECTED BY AGREEMENT OF PARTICIPANT
AND XXXXX SYSTEMS OR, IF THEY ARE UNABLE TO AGREE UPON SUCH SINGLE
ARBITRATOR, BY THE WASHINGTON, D.C. OFFICE OF THE AMERICAN ARBITRATION
ASSOCIATION. ANY AWARD RENDERED BY THE ARBITRATOR SHALL BE FINAL AND
BINDING UPON THE PARTIES HERETO. JUDGMENT UPON THE AWARD MAY BE ENTERED
IN ANY COURT OF COMPETENT JURISDICTION. THE ARBITRATOR SHALL BE ALLOWED
TO DETERMINE THE COSTS OF ARBITRATION (INCLUDING THE PARTIES' LEGAL AND
OTHER COSTS AND EXPENSES) AND ALLOCATE WHICH PARTY SHOULD BEAR THE COSTS
OF ARBITRATION. THE ARBITRATOR SHALL HAVE NO AUTHORITY TO AWARD DAMAGES
IN EXCESS OR IN CONTRAVENTION OF THIS AGREEMENT. NEITHER PARTY WILL BE
LIABLE TO THE OTHER FOR SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOST
PROFITS FOR ANY CLAIMS ARISING OUT OF A BREACH OR ALLEGED BREACH OF THIS
AGREEMENT, AND PARTICIPANT AND XXXXX SYSTEMS EACH HEREBY WAIVES ANY CLAIMS
AGAINST THE OTHER FOR SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING,
NOTHING IN THIS SECTION 16 SHALL BE CONSTRUED TO LIMIT THE RIGHT OF A
PARTY TO SEEK INJUNCTIVE RELIEF WITH RESPECT TO ANY ACTUAL OR THREATENED
BREACH OF THIS AGREEMENT FROM A COURT OF COMPETENT JURISDICTION.
17. Assignment. This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, personal
representatives, successors, and assigns. However, Participant shall not,
and shall not have the power to, assign this Agreement or any rights
relating to this Agreement without the prior written consent of Xxxxx
Systems.
18. Attorneys' Fees. Subject to Section 16, if any action at law or in equity
is necessary to enforce or interpret the terms of this Agreement, the
prevailing party shall be entitled to reasonable attorneys' fees, costs,
and necessary disbursements in addition to any other relief to which that
party may be entitled.
19. Severability. If any provision of this Agreement is held invalid or
unenforceable for any reason, the validity and enforceability of all other
provisions of this Agreement shall not be affected thereby.
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20. Headings. The section headings used herein are for reference and
convenience only and shall not enter into the interpretation hereof.
21. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to the
choice of law rules in such law.
22. Entire Agreement. This Agreement together with the Plan (as provided in
and limited by Section 13) and the Associate Agreement and indemnification
letter agreement of even date herewith constitute the entire agreement
between the parties hereto with respect to the subject matter hereof.
This Agreement may be waived or modified only in a writing signed by both
parties hereto.
23. Future Favorable Modifications. If after the date of this Agreement and
prior to Participant's termination of employment with Company for any
reason, Xxxxx Systems offers to modify the terms relating to all or
substantially all of the Common Stock issued to Xxxxx Systems' employees
as a group or to the most senior executive officers of the Company as a
group under the Plan prior to the date of this Agreement, then such offer
will also be made to Participant, to accept or reject on the same terms
offered to such employees or executives as a group.
IN WITNESS WHEREOF, and intending to be legally bound hereby, Participant and a
duly-authorized representative of Xxxxx Systems have executed this Agreement as
of the date first above written.
PARTICIPANT XXXXX SYSTEMS CORPORATION
/s/ XXXXX X. XXXXXX By: /s/ XXXXXX X. XXXXXXXX
------------------------------------ ------------------------------
SIGNATURE TITLE: Chief Executive Officer
Xxxxx X. Xxxxxx
------------------------------------
PRINTED NAME
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CONSENT OF SPOUSE
As the spouse of Participant, I consent to be bound by this Restricted Stock
Agreement and agree that this consent shall be binding on my interest under
this Agreement and on my heirs, legatees and assigns.
/s/ XXXX XXXXXX
---------------------------------------------
SIGNATURE
Xxxx Xxxxxx
---------------------------------------------
PRINTED NAME
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ATTACHMENT A
TO
RESTRICTED STOCK AGREEMENT
FOR
XXXXX XXXXXX
1. Number of Shares of Restricted Stock: 500,000
2. Vesting Schedule:
Percentage of Number of
Vesting Date Shares Vesting* Shares Vesting*
------------ --------------- ---------------
August 12, 1997 10% 50,000
August 12, 1998 10% 50,000
August 12, 1999 10% 50,000
August 12, 2000 10% 50,000
August 12, 2001 10% 50,000
August 12, 2002 10% 50,000
August 12, 2003 10% 50,000
August 12, 2004 10% 50,000
August 12, 2005 10% 50,000
August 12, 2006 10% 50,000
TOTAL 100% 500,000
==== =======
*Incremental percentage and number of shares vesting on the designated Vesting
Date. Thus, total Vested Shares equals the number vesting on the particular
Vesting Date and all prior Vesting Dates. Additional vesting is specified in
Section 2.
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ATTACHMENT B
NOTICE OF EXERCISE OF RIGHT TO PURCHASE SHARES
OF RESTRICTED STOCK
XXXXX XXXXXX
I hereby notify Xxxxx Systems Corporation that I am exercising my right under
the Restricted Stock Agreement between me and Xxxxx Systems dated July 8, 1996
and purchasing 500,000 shares of Common Stock of the Corporation at $2.50 per
share, or $1,250,000 in total, which I herewith tender in cash, by check or an
executed note payable to Xxxxx Systems Corporation.
In connection with this purchase, I hereby represent to Xxxxx Systems
Corporation that I am purchasing these shares for investment and not with a
view to any resale or distribution thereof.
-------------------------------
Xxxxx Xxxxxx
-------------------------------
Dated
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ATTACHMENT X
x Xxxxxxxx Consulting
o AT&T and The Solutions Company of AT&T
o Xxxxx Xxxxx
o Cambridge Technology
o Cap Gemini Sogeti
o Computer Sciences Corporation and CSC Index
o Daimler-Benz
o Deloitte & Touche
o Electronic Data Systems Corporation
o Ernst & Young
o IBM and Integrated Systems Solutions Corporation
o KPGM Peat Marwick
o MCI and SHL System House Inc.
o Price Waterhouse
o Siemens
o UNYSIS
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ATTACHMENT D
THE CORPORATION WILL FURNISH THE RECORD HOLDER OF THIS CERTIFICATE, WITHOUT
CHARGE, UPON WRITTEN REQUEST TO THE CORPORATION AT ITS PRINCIPAL PLACE OF
BUSINESS OR REGISTERED OFFICE, (1) A COMPLETE COPY OF THE RESTRICTED STOCK
AGREEMENT (THE "AGREEMENT") AND THE XXXXX SYSTEMS CORPORATION RESTRICTED STOCK
PLAN (THE "PLAN"), PROVISIONS OF WHICH, AMONG OTHER TERMS AFFECTING THE
OWNERSHIP OF THE SHARES, MAY INCLUDE RESTRICTIONS ON TRANSFERABILITY, NOTICE
REQUIREMENTS, AND PURCHASE OPTIONS OF THE CORPORATION (IT BEING UNDERSTOOD AND
AGREED THAT THE PLAN ONLY IS APPLICABLE AS PROVIDED IN AND LIMITED BY SECTION
13 OF THE AGREEMENT); (2) A COMPLETE COPY OF THE BYLAWS OF THE CORPORATION; AND
(3) A COMPLETE COPY OF THE RESTATED ARTICLES OF INCORPORATION OF THE
CORPORATION, AS AMENDED, ON FILE IN THE OFFICE OF THE SECRETARY OF STATE OF THE
STATE OF DELAWARE, WHICH CONTAIN A FULL STATEMENT OF THE DENIAL OF PRE-EMPTIVE
RIGHTS FOR THE CORPORATION'S COMMON STOCK. THE SHARES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS AND THE HOLDER HEREOF CANNOT MAKE ANY
SALE, ASSIGNMENT OR OTHER TRANSFER OF SUCH STOCK WITHOUT REGISTRATION UNDER, OR
EXEMPTION FROM, SUCH ACTS OR LAWS, REASONABLE EVIDENCE OF WHICH REGISTRATION OR
EXEMPTION THE CORPORATION MAY REQUIRE PRIOR TO ANY TRANSFER.
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