Exhibit 10.02
EXECUTIVE RESTRICTED STOCK AGREEMENT
THIS EXECUTIVE RESTRICTED STOCK AGREEMENT (this "Agreement") is entered
into as of this 12/th/ day of September, 2002, by and between WEST CORPORATION,
a Delaware corporation (the "Company"), and Xxxx X. Xxxxxxx (the "Grantee").
WHEREAS, concurrently herewith, the Grantee and the Company have
entered into that certain Employment Agreement, dated September 12, 2002 (the
"Employment Agreement"), wherein the Grantee will be employed by the Company as
its Chief Financial Officer effective as of November 4, 2002 or such earlier
date as Grantee commences employment with the Company (the "Effective Date");
and
WHEREAS, to that end, in order to further compensate and induce the
Grantee regarding such employment, the Company desires and has elected to grant
to the Grantee an award of restricted common stock of the Company.
NOW, THEREFORE, in consideration of the mutual promises and agreements
made herein and such other good and valuable consideration, the receipt and
legal sufficiency of which are acknowledged, the parties do hereby agree as
follows:
1. Grant of Restricted Stock. On the Effective Date, the Company will
grant to Grantee Sixteen Thousand (16,000) shares of the Company's common stock,
par value $0.01 per share (the "Stock"), subject to the terms, conditions and
restrictions set forth herein or in the Employment Agreement (the "Grant").
2. Consideration. The Stock is being granted to the Grantee in
consideration of his agreement to become employed by the Company and his
continued performance of services during the vesting period applicable to the
Stock, as set forth in Section 3. The Grantee shall not be required to pay to
the Company any monies, funds or other type of consideration for the Stock that
Grantee acquires pursuant to this Grant.
3. Restrictions on the Stock. Any Stock acquired by Grantee will be
subject to the following restrictions:
(a) No Transfer. The Stock may not be sold, assigned, transferred,
pledged, hypothecated or otherwise disposed of, alienated or encumbered
("Transferred") until the restrictions set forth in Section 3(b) are
removed or expire as provided in Section 3(c), and any additional
requirements or restrictions contained in this Grant have been
satisfied, terminated or expressly waived by the Company in writing.
The Company shall not be required to transfer on its books any of the
shares of Stock that shall have been sold or transferred in violation
of any of the provisions set forth in this Agreement; or to treat as
owner of those shares Stock or to pay dividends to any transferee to
whom any of those shares of Stock shall have been so sold or
transferred. The Stock may bear appropriate legends to reflect the
transfer restrictions of this Agreement and any applicable securities
laws.
(b) Restrictions. In the event that the Grantee's service as an
employee of the Company is terminated by reason of death or disability,
by the Company for "cause" as defined in Paragraph 6(a)(2) of the
Employment Agreement, or if the Grantee resigns
1
from employment as provided in Paragraph 6(a)(4) of the Employment
Agreement, then the Company shall acquire and the Grantee shall sell,
transfer and assign, for no additional consideration or monies, all
shares of Stock acquired or issued hereunder that are, at the date of
such termination or resignation, still subject to the vesting
restrictions imposed under this Section 3, and the Grantee shall have
no rights to such shares of Stock thereafter. Any consulting services
provided by the Grantee after termination of or resignation from
employment under Paragraph 7 of the Employment Agreement shall not be
considered services as an employee for purposes of this Agreement.
(c) Vesting and Removal of Restrictions. The restrictions imposed
under the foregoing provisions of this Section 3 will lapse, expire and
be removed, and the shares of Stock acquired by Grantee under this
Agreement and the Grant will vest on January 1, 2003.
In addition, upon a termination of Executive's employment by the
Company without "cause," all outstanding shares of Stock acquired by
Grantee under this Agreement will vest.
4. Voting and Other Rights. Notwithstanding anything to the contrary in
the foregoing, during the period prior to the lapse and removal of the
restrictions set forth in Section 3, except as otherwise provided herein,
Grantee will have all of the rights of a stockholder with respect to all of the
Stock Grantee acquired hereunder, including without limitation the right to vote
such Stock and the right to receive all dividends or other distributions with
respect to such Stock. In connection with the payment of any dividends,
distributions or any other type of payment to the Grantee, the Company shall be
entitled to deduct any taxes or other amounts required by any governmental
authority to be withheld and paid over to such authority for Grantee's account.
5. Expiration of Restrictions. As soon as practicable after the lapse
and removal of the restrictions applicable to all or any portion of the Stock as
provided in Section 3, the Company will release the certificate(s) representing
such Stock to Grantee, provided that (a) Grantee has satisfied applicable tax
withholding requirements, as provided in Section 9, and (b) Grantee has, if
requested by the Company, made appropriate representations in a form
satisfactory to the Company that such Stock will not be sold other than: (i)
pursuant to an effective registration statement under the Securities Act of 1933
(the "Act"), as amended, or an applicable exemption from the registration
requirements of the Act; (ii) in compliance with all applicable federal and
state securities laws and regulations; and (iii) in compliance with all terms
and conditions of the Company's trading policies. The Company may require the
Grantee to execute and deliver to the Company a stock power in blank with
respect to the unvested Stock and may, in its sole discretion, determine to
retain possession of the certificates for unvested Shares. The Company shall
have the right, in its sole discretion, to exercise such stock power in the
event that the Company becomes entitled to shares of Stock pursuant to the terms
and conditions of this Agreement.
6. Trading Policies. The Company has implemented policies relating to
the trading of the Company's common stock and related securities. By accepting
this Grant and the Stock,
2
Grantee hereby acknowledges receipt of the then current policies and agrees to
abide by the policies as may be modified from time to time by the Company in its
sole discretion.
7. Investment Representations, The Grantee represents, warrants, and
covenants to the Company as follows:
(a) Investment. The Grantee is acquiring the Stock for his own
account for investment only, and not with a view to, or for sale in
connection with, any distribution of the Stock in violation of the Act,
or any rule or regulation under the Act.
(b) Company Information. The Grantee has had an opportunity he
deems adequate to obtain from representatives of the Company the
information necessary to permit him to evaluate the merits and risks of
his investment in the Company.
(c) Business Experience. The Grantee has sufficient experience
in business, financial, and investment matters to be able to evaluate
the risks involved in the purchase of the Stock and to make an
informed investment decision with respect to that purchase.
(d) Risk of Loss. He can afford a complete loss of the value of
the Stock and is able to bear the economic risk of holding the Stock
for an indefinite period.
8. Section 83(b) Election. Grantee will be entitled to make an
election pursuant to Section 83(b) of the Internal Revenue Code, or comparable
provisions of any state tax law, to include in Grantee's gross income the fair
market value (as of the date of acquisition) of the Stock Grantee acquire
hereunder only if, prior to making any such election, Grantee notifies the
Company of Grantee's intention to make such election, by delivering to the
Company a copy of the fully-executed Section 83(b) Election in the Form attached
hereto as Exhibit "A."
9. Withholding. Grantee shall be required to pay to the Company an
amount sufficient to satisfy any taxes or other amounts required by any
governmental authority to be withheld or paid over to such authority for
Grantee's account with respect to the Stock, or otherwise makes arrangements
satisfactory to the Company for the payment of such amounts. Grantee may pay any
such amounts by directing the Company to withhold a number of shares of Stock
with an aggregate fair market value on the date of such withholding equal to the
amount required to be withheld.
10. Changes in Capital Structure; Change in Control. The provisions of
Sections 15 (Changes in Capital Structure) and 16 (Change in Control) of the
Company's 1996 Stock Incentive Plan (the "Plan") are incorporated by reference
herein, and the Grant shall be treated as an award of Restricted Stock under the
Plan for purposes of such Sections; provided, however, that all shares of Stock
shall vest upon the Company's consummation of a going private transaction
whether or not such transaction constitutes a "Change in Control" as such term
is defined in the Plan.
11. No Right to Continue Employment. The terms and conditions of the
Grantee's employment by the Company shall be governed by the Employment
Agreement and this Grant
3
does not confer upon Grantee any right to continue as an employee of the Company
or an affiliated entity, nor does it limit in any way the right of the Company
or an affiliated entity to terminate Grantee's services to the Company or the
affiliated entity at any time, with or without cause.
12. No Assignment. The Grantee may not assign this Agreement, the
Grant or any rights granted herein.
13. Governing Law. This Agreement and the Grant shall be governed by
and construed in accordance with the laws of the State of Delaware.
14. Binding Effect. This Agreement shall be binding upon the heirs,
executors, administrators and successors of the parties hereto.
15. Notice. Every notice or other communication relating to this
Agreement shall be in writing, and shall be mailed or delivered to the party for
whom it is intended as such address as may from time to time be designated by it
in a notice mailed or delivered to the other party as herein provided, provided
that, unless and until some other address be so designated, all notices or
communications by the Grantee to the Company shall be mailed or delivered to the
Company at its principal executive office, and all notices or communications by
the Company to the Grantee may be given to the Grantee personally or may be
mailed to the Grantee at Grantee's address as recorded in the records of the
Company.
16. Entire Agreement, Counterparts and Conflicts. Except for the terms
and conditions of the Employment Agreement, this Agreement constitutes the
entire agreement between the parties respecting the Grant of the Stock to the
Grantee and supercedes all prior understandings, arrangements and agreements,
whether oral or written, and may not be amended except by a writing signed by
the parties hereto. This Agreement may be signed in one or more counterparts,
all of which shall be considered one and the same agreement. In the event of any
conflict between the terms and conditions of this Agreement and the Employment
Agreement as they relate to the Grant or the Stock, the terms of this Agreement
shall control.
17. Severability. In the event that any of the provisions, or portions
thereof, of this Agreement are held to be unenforceable or invalid by any court
of competent jurisdiction, the validity and enforceability of the remaining
provisions, or portions thereof, will not be affected, and such unenforceable
provisions shall be automatically replaced by a provision as similar in terms as
may be valid and enforceable.
18. Further Assurances. Each party to this Agreement agrees to perform
all further acts and to execute and deliver all further documents as may be
reasonably necessary to carry out the intent of this Agreement.
4
19. Construction. Whenever used in this Agreement, the singular number
will include the plural, and the plural number will include the singular, and
the masculine or neuter gender shall include the masculine, feminine, or neuter
gender. The headings of the Sections of this Agreement have been inserted for
purposes of convenience and shall not be used for interpretive purposes.
20. Specific Performance. Each of the parties hereto acknowledges and
agrees that in the event of any breach of this Agreement, the non-breaching
party would be irreparably harmed and could not be made whole by monetary
damages. Each of the parties hereto accordingly agrees to waive the defense in
any action for injunction or specific performance that a remedy at law would be
adequate and that the parties hereto, in addition to any other remedy to which
they may be entitled at law or in equity, shall be entitled to an injunction or
to compel specific performance of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
West Corporation Grantee
By: /s/ Xxxxxx X. Xxxxxx /s/ Xxxx Xxxxxxx
------------------------------------- -----------------------------
(Signature) (Signature)
Xxxxxx X. Xxxxxx
President and Chief Executive Officer Xxxx Xxxxxxx
------------------------------------- -----------------------------
(Printed Name and Title) (Printed Name)
SPOUSAL CONSENT
The spouse of the Grantee is aware of, understands, and consents to the
provisions of the foregoing Agreement and its binding effect upon any community
property interest or marital settlement awards she may now or hereafter own or
receive, and agrees that the termination of the marital relationship with the
Grantee for any reason shall not have the effect of removing any shares of Stock
subject to this Agreement from the coverage thereof and such spouse's awareness,
understanding, consent, and agreement is evidenced by her signature below.
Grantee's Spouse
/s/ Xxxxx Xxxxxxx
-----------------------------
(Spouse's Signature)
Xxxxx Xxxxxxx
-----------------------------
(Spouse's Printed Name)
5
EXECUTIVE RESTRICTED STOCK AGREEMENT
THIS EXECUTIVE RESTRICTED STOCK AGREEMENT (this "Agreement") is entered
into as of this 12/th/ day of September, 2002, by and between West Corporation,
a Delaware corporation (the "Company"), and Xxxx X. Xxxxxxx (the "Grantee").
WHEREAS, concurrently herewith, the Grantee and the Company have entered
into that certain Employment Agreement, dated September 12, 2002 (the
"Employment Agreement"), wherein the Grantee will be employed by the Company as
its Chief Financial Officer effective as of November 4, 2002 or such earlier
date as Grantee commences employment with the Company (the "Effective Date");
and
WHEREAS, to that end, in order to further compensate and induce the Grantee
regarding such employment, the Company desires and has elected to grant to the
Grantee an award of restricted common stock of the Company.
NOW, THEREFORE, in consideration of the mutual promises and agreements made
herein and such other good and valuable consideration, the receipt and legal
sufficiency of which are acknowledged, the parties do hereby agree as follows:
1. Grant of Restricted Stock. On the Effective Date, the Company will
grant to Grantee Sixteen Thousand (16,000) shares of the Company's common stock,
par value $0.01 per share (the "Stock"), subject to the terms, conditions and
restrictions set forth herein or in the Employment Agreement (the "Grant").
2. Consideration. The Stock is being granted to the Grantee in
consideration of his agreement to become employed by the Company and his
continued performance of services during the vesting period applicable to the
Stock, as set forth in Section 3. The Grantee shall not be required to pay to
the Company any monies, funds or other type of consideration for the Stock that
Grantee acquires pursuant to this Grant.
3. Restrictions on the Stock. Any Stock acquired by Grantee will be
subject to the following restrictions:
(a) No Transfer. The Stock may not be sold, assigned, transferred,
pledged, hypothecated or otherwise disposed of, alienated or encumbered
("Transferred") until the restrictions set forth in Section 3(b) are
removed or expire as provided in Section 3(c), and any additional
requirements or restrictions contained in this Grant have been satisfied,
terminated or expressly waived by the Company in writing. The Company shall
not be required to transfer on its books any of the shares of Stock that
shall have been sold or transferred in violation of any of the provisions
set forth in this Agreement; or to treat as owner of those shares Stock or
to pay dividends to any transferee to whom any of those shares of Stock
shall have been so sold or transferred. The Stock may bear appropriate
legends to reflect the transfer restrictions of this Agreement and any
applicable securities laws.
(b) Restrictions. In the event that the Grantee's service as an
employee of the Company is terminated by reason of death or disability, by
the Company for "cause" as defined in Paragraph 6(a)(2) of the Employment
Agreement, or if the Grantee resigns
1
from employment as provided in Paragraph 6(a)(4) of the Employment
Agreement, then the Company shall acquire and the Grantee shall sell,
transfer and assign, for no additional consideration or monies, all shares
of Stock acquired or issued hereunder that are, at the date of such
termination or resignation, still subject to the vesting restrictions
imposed under this Section 3, and the Grantee shall have no rights to such
shares of Stock thereafter. Any consulting services provided by the Grantee
after termination of or resignation from employment under Paragraph 7 of
the Employment Agreement shall not be considered services as an employee
for purposes of this Agreement.
(c) Vesting and Removal of Restrictions. The restrictions imposed
under the foregoing provisions of this Section 3 will lapse, expire and be
removed, and the shares of Stock acquired by Grantee under this Agreement
and the Grant will vest on the second anniversary of the Effective Date.
In addition, upon a termination of Executive's employment by the
Company without "cause," all outstanding shares of Stock acquired by
Grantee under this Agreement will vest.
4. Voting and Other Rights. Notwithstanding anything to the contrary in
the foregoing, during the period prior to the lapse and removal of the
restrictions set forth in Section 3, except as otherwise provided herein,
Grantee will have all of the rights of a stockholder with respect to all of the
Stock Grantee acquired hereunder, including without limitation the right to vote
such Stock and the right to receive all dividends or other distributions with
respect to such Stock. In connection with the payment of any dividends,
distributions or any other type of payment to the Grantee, the Company shall be
entitled to deduct any taxes or other amounts required by any governmental
authority to be withheld and paid over to such authority for Grantee's account.
5. Expiration of Restrictions. As soon as practicable after the lapse and
removal of the restrictions applicable to all or any portion of the Stock as
provided in Section 3, the Company will release the certificate(s) representing
such Stock to Grantee, provided that (a) Grantee has satisfied applicable tax
withholding requirements, as provided in Section 9, and (b) Grantee has, if
requested by the Company, made appropriate representations in a form
satisfactory to the Company that such Stock will not be sold other than: (i)
pursuant to an effective registration statement under the Securities Act of 1933
(the "Act"), as amended, or an applicable exemption from the registration
requirements of the Act; (ii) in compliance with all applicable federal and
state securities laws and regulations; and (iii) in compliance with all terms
and conditions of the Company's trading policies. The Company may require the
Grantee to execute and deliver to the Company a stock power in blank with
respect to the unvested Stock and may, in its sole discretion, determine to
retain possession of the certificates for unvested Shares. The Company shall
have the right, in its sole discretion, to exercise such stock power in the
event that the Company becomes entitled to shares of Stock pursuant to the terms
and conditions of this Agreement.
6. Trading Policies. The Company has implemented policies relating to the
trading of the Company's common stock and related securities. By accepting this
Grant and the Stock,
2
Grantee hereby acknowledges receipt of the then current policies and agrees to
abide by the policies as may be modified from time to time by the Company in its
sole discretion.
7. Investment Representations, The Grantee represents, warrants, and
covenants to the Company as follows:
(a) Investment. The Grantee is acquiring the Stock for his own
account for investment only, and not with a view to, or for sale in
connection with, any distribution of the Stock in violation of the Act, or
any rule or regulation under the Act.
(b) Company Information. The Grantee has had an opportunity he deems
adequate to obtain from representatives of the Company the information
necessary to permit him to evaluate the merits and risks of his investment
in the Company.
(c) Business Experience. The Grantee has sufficient experience in
business, financial, and investment matters to be able to evaluate the
risks involved in the purchase of the Stock and to make an informed
investment decision with respect to that purchase.
(d) Risk of Loss. He can afford a complete loss of the value of the
Stock and is able to bear the economic risk of holding the Stock for an
indefinite period.
8. Section 83(b) Election. Grantee will be entitled to make an election
pursuant to Section 83(b) of the Internal Revenue Code, or comparable provisions
of any state tax law, to include in Grantee's gross income the fair market value
(as of the date of acquisition) of the Stock Grantee acquire hereunder only if,
prior to making any such election, Grantee notifies the Company of Grantee's
intention to make such election, by delivering to the Company a copy of the
fully-executed Section 83(b) Election in the Form attached hereto as Exhibit
"A."
9. Withholding. Grantee shall be required to pay to the Company an amount
sufficient to satisfy any taxes or other amounts required by any governmental
authority to be withheld or paid over to such authority for Grantee's account
with respect to the Stock, or otherwise makes arrangements satisfactory to the
Company for the payment of such amounts. Grantee may pay any such amounts by
directing the Company to withhold a number of shares of Stock with an aggregate
fair market value on the date of such withholding equal to the amount required
to be withheld.
10. Changes in Capital Structure; Change in Control. The provisions of
Sections 15 (Changes in Capital Structure) and 16 (Change in Control) of the
Company's 1996 Stock Incentive Plan (the "Plan") are incorporated by reference
herein, and the Grant shall be treated as an award of Restricted Stock under the
Plan for purposes of such Sections; provided, however, that all shares of Stock
shall vest upon the Company's consummation of a going private transaction
whether or not such transaction constitutes a "Change in Control" as such term
is defined in the Plan.
11. No Right to Continue Employment. The terms and conditions of the
Grantee's employment by the Company shall be governed by the Employment
Agreement and this Grant
3
does not confer upon Grantee any right to continue as an employee of the Company
or an affiliated entity, nor does it limit in any way the right of the Company
or an affiliated entity to terminate Grantee's services to the Company or the
affiliated entity at any time, with or without cause.
12. No Assignment. The Grantee may not assign this Agreement, the Grant or
any rights granted herein.
13. Governing Law. This Agreement and the Grant shall be governed by and
construed in accordance with the laws of the State of Delaware.
14. Binding Effect. This Agreement shall be binding upon the heirs,
executors, administrators and successors of the parties hereto.
15. Notice. Every notice or other communication relating to this Agreement
shall be in writing, and shall be mailed or delivered to the party for whom it
is intended as such address as may from time to time be designated by it in a
notice mailed or delivered to the other party as herein provided, provided that,
unless and until some other address be so designated, all notices or
communications by the Grantee to the Company shall be mailed or delivered to the
Company at its principal executive office, and all notices or communications by
the Company to the Grantee may be given to the Grantee personally or may be
mailed to the Grantee at Grantee's address as recorded in the records of the
Company.
16. Entire Agreement, Counterparts and Conflicts. Except for the terms and
conditions of the Employment Agreement, this Agreement constitutes the entire
agreement between the parties respecting the Grant of the Stock to the Grantee
and supercedes all prior understandings, arrangements and agreements, whether
oral or written, and may not be amended except by a writing signed by the
parties hereto. This Agreement may be signed in one or more counterparts, all of
which shall be considered one and the same agreement. In the event of any
conflict between the terms and conditions of this Agreement and the Employment
Agreement as they relate to the Grant or the Stock, the terms of this Agreement
shall control.
17. Severability. In the event that any of the provisions, or portions
thereof, of this Agreement are held to be unenforceable or invalid by any court
of competent jurisdiction, the validity and enforceability of the remaining
provisions, or portions thereof, will not be affected, and such unenforceable
provisions shall be automatically replaced by a provision as similar in terms as
may be valid and enforceable.
18. Further Assurances. Each party to this Agreement agrees to perform all
further acts and to execute and deliver all further documents as may be
reasonably necessary to carry out the intent of this Agreement.
4
19. Construction. Whenever used in this Agreement, the singular number
will include the plural, and the plural number will include the singular, and
the masculine or neuter gender shall include the masculine, feminine, or neuter
gender. The headings of the Sections of this Agreement have been inserted for
purposes of convenience and shall not be used for interpretive purposes.
20. Specific Performance. Each of the parties hereto acknowledges and
agrees that in the event of any breach of this Agreement, the non-breaching
party would be irreparably harmed and could not be made whole by monetary
damages. Each of the parties hereto accordingly agrees to waive the defense in
any action for injunction or specific performance that a remedy at law would be
adequate and that the parties hereto, in addition to any other remedy to which
they may be entitled at law or in equity, shall be entitled to an injunction or
to compel specific performance of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
West Corporation Grantee
By: /s/ Xxxxxx X. Xxxxxx /s/ Xxxx Xxxxxxx
------------------------------------- ----------------------
(Signature) (Signature)
Xxxxxx X. Xxxxxx President and CEO Xxxx Xxxxxxx
------------------------------------- ----------------------
(Printed Name and Title) (Printed Name)
SPOUSAL CONSENT
The spouse of the Grantee is aware of, understands, and consents to the
provisions of the foregoing Agreement and its binding effect upon any community
property interest or marital settlement awards she may now or hereafter own or
receive, and agrees that the termination of the marital relationship with the
Grantee for any reason shall not have the effect of removing any shares of Stock
subject to this Agreement from the coverage thereof and such spouse's awareness,
understanding, consent, and agreement is evidenced by her signature below.
Grantee's Spouse
/s/ Xxxxx Xxxxxxx
-----------------------------
(Spouse's Signature)
Xxxxx Xxxxxxx
-----------------------------
(Spouse's Printed Name)
5
EXECUTIVE RESTRICTED STOCK AGREEMENT
THIS EXECUTIVE RESTRICTED STOCK AGREEMENT (this "Agreement") is entered
into as of this 12/th/ day of September, 2002, by and between West Corporation,
a Delaware corporation (the "Company"), and Xxxx X. Xxxxxxx (the "Grantee").
WHEREAS, concurrently herewith, the Grantee and the Company have entered
into that certain Employment Agreement, dated September 12, 2002 (the
"Employment Agreement"), wherein the Grantee will be employed by the Company as
its Chief Financial Officer effective as of November 4, 2002 or such earlier
date as Grantee commences employment with the Company (the "Effective Date");
and
WHEREAS, to that end, in order to further compensate and induce the Grantee
regarding such employment, the Company desires and has elected to grant to the
Grantee an award of restricted common stock of the Company.
NOW, THEREFORE, in consideration of the mutual promises and agreements made
herein and such other good and valuable consideration, the receipt and legal
sufficiency of which are acknowledged, the parties do hereby agree as follows:
1. Grant of Restricted Stock. On the Effective Date, the Company will
grant to Grantee Sixteen Thousand (16,000) shares of the Company's common stock,
par value $0.01 per share (the "Stock"), subject to the terms, conditions and
restrictions set forth herein or in the Employment Agreement (the "Grant").
2. Consideration. The Stock is being granted to the Grantee in
consideration of his agreement to become employed by the Company and his
continued performance of services during the vesting period applicable to the
Stock, as set forth in Section 3. The Grantee shall not be required to pay to
the Company any monies, funds or other type of consideration for the Stock that
Grantee acquires pursuant to this Grant.
3. Restrictions on the Stock. Any Stock acquired by Grantee will be
subject to the following restrictions:
(a) No Transfer. The Stock may not be sold, assigned, transferred,
pledged, hypothecated or otherwise disposed of, alienated or encumbered
("Transferred") until the restrictions set forth in Section 3(b) are
removed or expire as provided in Section 3(c), and any additional
requirements or restrictions contained in this Grant have been satisfied,
terminated or expressly waived by the Company in writing. The Company shall
not be required to transfer on its books any of the shares of Stock that
shall have been sold or transferred in violation of any of the provisions
set forth in this Agreement; or to treat as owner of those shares Stock or
to pay dividends to any transferee to whom any of those shares of Stock
shall have been so sold or transferred. The Stock may bear appropriate
legends to reflect the transfer restrictions of this Agreement and any
applicable securities laws.
(b) Restrictions. In the event that the Grantee's service as an
employee of the Company is terminated by reason of death or disability, by
the Company for "cause" as defined in Paragraph 6(a)(2) of the Employment
Agreement, or if the Grantee resigns
1
from employment as provided in Paragraph 6(a)(4) of the Employment
Agreement, then the Company shall acquire and the Grantee shall sell,
transfer and assign, for no additional consideration or monies, all shares
of Stock acquired or issued hereunder that are, at the date of such
termination or resignation, still subject to the vesting restrictions
imposed under this Section 3, and the Grantee shall have no rights to such
shares of Stock thereafter. Any consulting services provided by the Grantee
after termination of or resignation from employment under Paragraph 7 of
the Employment Agreement shall not be considered services as an employee
for purposes of this Agreement.
(c) Vesting and Removal of Restrictions. The restrictions imposed
under the foregoing provisions of this Section 3 will lapse, expire and be
removed, and the shares of Stock acquired by Grantee under this Agreement
and the Grant will vest on the third anniversary of the Effective Date.
In addition, upon a termination of Executive's employment by the
Company without "cause," all outstanding shares of Stock acquired by
Grantee under this Agreement will vest.
4. Voting and Other Rights. Notwithstanding anything to the contrary in
the foregoing, during the period prior to the lapse and removal of the
restrictions set forth in Section 3, except as otherwise provided herein,
Grantee will have all of the rights of a stockholder with respect to all of the
Stock Grantee acquired hereunder, including without limitation the right to vote
such Stock and the right to receive all dividends or other distributions with
respect to such Stock. In connection with the payment of any dividends,
distributions or any other type of payment to the Grantee, the Company shall be
entitled to deduct any taxes or other amounts required by any governmental
authority to be withheld and paid over to such authority for Grantee's account.
5. Expiration of Restrictions. As soon as practicable after the lapse and
removal of the restrictions applicable to all or any portion of the Stock as
provided in Section 3, the Company will release the certificate(s) representing
such Stock to Grantee, provided that (a) Grantee has satisfied applicable tax
withholding requirements, as provided in Section 9, and (b) Grantee has, if
requested by the Company, made appropriate representations in a form
satisfactory to the Company that such Stock will not be sold other than: (i)
pursuant to an effective registration statement under the Securities Act of 1933
(the "Act"), as amended, or an applicable exemption from the registration
requirements of the Act; (ii) in compliance with all applicable federal and
state securities laws and regulations; and (iii) in compliance with all terms
and conditions of the Company's trading policies. The Company may require the
Grantee to execute and deliver to the Company a stock power in blank with
respect to the unvested Stock and may, in its sole discretion, determine to
retain possession of the certificates for unvested Shares. The Company shall
have the right, in its sole discretion, to exercise such stock power in the
event that the Company becomes entitled to shares of Stock pursuant to the terms
and conditions of this Agreement.
6. Trading Policies. The Company has implemented policies relating to the
trading of the Company's common stock and related securities. By accepting this
Grant and the Stock,
2
Grantee hereby acknowledges receipt of the then current policies and agrees to
abide by the policies as may be modified from time to time by the Company in its
sole discretion.
7. Investment Representations. The Grantee represents, warrants, and
covenants to the Company as follows:
(a) Investment. The Grantee is acquiring the Stock for his own
account for investment only, and not with a view to, or for sale in
connection with, any distribution of the Stock in violation of the Act, or
any rule or regulation under the Act.
(b) Company Information. The Grantee has had an opportunity he deems
adequate to obtain from representatives of the Company the information
necessary to permit him to evaluate the merits and risks of his investment
in the Company.
(c) Business Experience. The Grantee has sufficient experience in
business, financial, and investment matters to be able to evaluate the
risks involved in the purchase of the Stock and to make an informed
investment decision with respect to that purchase.
(d) Risk of Loss. He can afford a complete loss of the value of the
Stock and is able to bear the economic risk of holding the Stock for an
indefinite period.
8. Section 83(b) Election. Grantee will be entitled to make an election
pursuant to Section 83(b) of the Internal Revenue Code, or comparable provisions
of any state tax law, to include in Grantee's gross income the fair market value
(as of the date of acquisition) of the Stock Grantee acquire hereunder only if,
prior to making any such election, Grantee notifies the Company of Grantee's
intention to make such election, by delivering to the Company a copy of the
fully-executed Section 83(b) Election in the Form attached hereto as Exhibit
"A."
9. Withholding. Grantee shall be required to pay to the Company an amount
sufficient to satisfy any taxes or other amounts required by any governmental
authority to be withheld or paid over to such authority for Grantee's account
with respect to the Stock, or otherwise makes arrangements satisfactory to the
Company for the payment of such amounts. Grantee may pay any such amounts by
directing the Company to withhold a number of shares of Stock with an aggregate
fair market value on the date of such withholding equal to the amount required
to be withheld.
10. Changes in Capital Structure; Change in Control. The provisions of
Sections 15 (Changes in Capital Structure) and 16 (Change in Control) of the
Company's 1996 Stock Incentive Plan (the "Plan") are incorporated by reference
herein, and the Grant shall be treated as an award of Restricted Stock under the
Plan for purposes of such sections; provided, however, that all shares of Stock
shall vest upon the Company's consummation of a going private transaction
whether or not such transaction constitutes a "Change in Control" as such term
is defined in the Plan.
11. No Right to Continue Employment. The terms and conditions of the
Grantee's employment by the Company shall be governed by the Employment
Agreement and this Grant
3
does not confer upon Grantee any right to continue as an employee of the Company
or an affiliated entity, nor does it limit in any way the right of the Company
or an affiliated entity to terminate Grantee's services to the Company or the
affiliated entity at any time, with or without cause.
12. No Assignment. The Grantee may not assign this Agreement, the Grant or
any rights granted herein.
13. Governing Law. This Agreement and the Grant shall be governed by and
construed in accordance with the laws of the State of Delaware.
14. Binding Effect. This Agreement shall be binding upon the heirs,
executors, administrators and successors of the parties hereto.
15. Notice. Every notice or other communication relating to this Agreement
shall be in writing, and shall be mailed or delivered to the party for whom it
is intended as such address as may from time to time be designated by it in a
notice mailed or delivered to the other party as herein provided, provided that,
unless and until some other address be so designated, all notices or
communications by the Grantee to the Company shall be mailed or delivered to the
Company at its principal executive office, and all notices or communications by
the Company to the Grantee may be given to the Grantee personally or may be
mailed to the Grantee at Grantee's address as recorded in the records of the
Company.
16. Entire Agreement, Counterparts and Conflicts. Except for the terms and
conditions of the Employment Agreement, this Agreement constitutes the entire
agreement between the parties respecting the Grant of the Stock to the Grantee
and supercedes all prior understandings, arrangements and agreements, whether
oral or written, and may not be amended except by a writing signed by the
parties hereto. This Agreement may be signed in one or more counterparts, all of
which shall be considered one and the same agreement. In the event of any
conflict between the terms and conditions of this Agreement and the Employment
Agreement as they relate to the Grant or the Stock, the terms of this Agreement
shall control.
17. Severability. In the event that any of the provisions, or portions
thereof, of this Agreement are held to be unenforceable or invalid by any court
of competent jurisdiction, the validity and enforceability of the remaining
provisions, or portions thereof, will not be affected, and such unenforceable
provisions shall be automatically replaced by a provision as similar in terms as
may be valid and enforceable.
18. Further Assurances. Each party to this Agreement agrees to perform all
further acts and to execute and deliver all further documents as may be
reasonably necessary to carry out the intent of this Agreement.
4
19. Construction. Whenever used in this Agreement, the singular number
will include the plural, and the plural number will include the singular, and
the masculine or neuter gender shall include the masculine, feminine, or neuter
gender. The headings of the sections of this Agreement have been inserted for
purposes of convenience and shall not be used for interpretive purposes.
20. Specific Performance. Each of the parties hereto acknowledges and
agrees that in the event of any breach of this Agreement, the non-breaching
party would be irreparably harmed and could not be made whole by monetary
damages. Each of the parties hereto accordingly agrees to waive the defense in
any action for injunction or specific performance that a remedy at law would be
adequate and that the parties hereto, in addition to any other remedy to which
they may be entitled at law or in equity, shall be entitled to an injunction or
to compel specific performance of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
West Corporation Grantee
By: /s/ Xxxxxx X. Xxxxxx /s/ Xxxx Xxxxxxx
----------------------------------- ---------------------------------
(Signature) (Signature)
Xxxxxx X. Xxxxxx President and CEO Xxxx Xxxxxxx
----------------------------------- ---------------------------------
(Printed Name and Title) (Printed Name)
SPOUSAL CONSENT
The spouse of the Grantee is aware of, understands, and consents to the
provisions of the foregoing Agreement and its binding effect upon any community
property interest or marital settlement awards she may now or hereafter own or
receive, and agrees that the termination of the marital relationship with the
Grantee for any reason shall not have the effect of removing any shares of Stock
subject to this Agreement from the coverage thereof and such spouse's awareness,
understanding, consent, and agreement is evidenced by her signature below.
Grantee's Spouse
/s/ Xxxxx Xxxxxxx
------------------------------
(Spouse's Signature)
Xxxxx Xxxxxxx
------------------------------
(Spouse's Printed Name)
5
EXECUTIVE RESTRICTED STOCK AGREEMENT
THIS EXECUTIVE RESTRICTED STOCK AGREEMENT (this "Agreement") is entered
into as of this 12/th/ day of September, 2002, by and between West Corporation,
a Delaware corporation (the "Company"), and Xxxx X. Xxxxxxx (the "Grantee").
WHEREAS, concurrently herewith, the Grantee and the Company have entered
into that certain Employment Agreement, dated September 12, 2002 (the
"Employment Agreement"), wherein the Grantee will be employed by the Company as
its Chief Financial Officer effective as of November 4, 2002 or such earlier
date as Grantee commences employment with the Company (the "Effective Date");
and
WHEREAS, to that end, in order to further compensate and induce the Grantee
regarding such employment, the Company desires and has elected to grant to the
Grantee an award of restricted common stock of the Company.
NOW, THEREFORE, in consideration of the mutual promises and agreements made
herein and such other good and valuable consideration, the receipt and legal
sufficiency of which are acknowledged, the parties do hereby agree as follows:
1. Grant of Restricted Stock. On the Effective Date, the Company will
grant to Grantee Sixteen Thousand (16,000) shares of the Company's common stock,
par value $0.01 per share (the "Stock"), subject to the terms, conditions and
restrictions set forth herein or in the Employment Agreement (the "Grant").
2. Consideration. The Stock is being granted to the Grantee in
consideration of his agreement to become employed by the Company and his
continued performance of services during the vesting period applicable to the
Stock, as set forth in Section 3. The Grantee shall not be required to pay to
the Company any monies, funds or other type of consideration for the Stock that
Grantee acquires pursuant to this Grant.
3. Restrictions on the Stock. Any Stock acquired by Grantee will be
subject to the following restrictions:
(a) No Transfer. The Stock may not be sold, assigned, transferred,
pledged, hypothecated or otherwise disposed of, alienated or encumbered
("Transferred") until the restrictions set forth in Section 3(b) are
removed or expire as provided in Section 3(c), and any additional
requirements or restrictions contained in this Grant have been satisfied,
terminated or expressly waived by the Company in writing. The Company shall
not be required to transfer on its books any of the shares of Stock that
shall have been sold or transferred in violation of any of the provisions
set forth in this Agreement; or to treat as owner of those shares Stock or
to pay dividends to any transferee to whom any of those shares of Stock
shall have been so sold or transferred. The Stock may bear appropriate
legends to reflect the transfer restrictions of this Agreement and any
applicable securities laws.
(b) Restrictions. In the event that the Grantee's service as an
employee of the Company is terminated by reason of death or disability, by
the Company for "cause" as defined in Paragraph 6(a)(2) of the Employment
Agreement, or if the Grantee resigns
1
from employment as provided in Paragraph 6(a)(4) of the Employment
Agreement, then the Company shall acquire and the Grantee shall sell,
transfer and assign, for no additional consideration or monies, all shares
of Stock acquired or issued hereunder that are, at the date of such
termination or resignation, still subject to the vesting restrictions
imposed under this Section 3, and the Grantee shall have no rights to such
shares of Stock thereafter. Any consulting services provided by the Grantee
after termination of or resignation from employment under Paragraph 7 of
the Employment Agreement shall not be considered services as an employee
for purposes of this Agreement.
(c) Vesting and Removal of Restrictions. The restrictions imposed
under the foregoing provisions of this Section 3 will lapse, expire and be
removed, and the shares of Stock acquired by Grantee under this Agreement
and the Grant will vest on the fourth anniversary of the Effective Date.
In addition, upon a termination of Executive's employment by the
Company without "cause," all outstanding shares of Stock acquired by
Grantee under this Agreement will vest.
4. Voting and Other Rights. Notwithstanding anything to the contrary in
the foregoing, during the period prior to the lapse and removal of the
restrictions set forth in Section 3, except as otherwise provided herein,
Grantee will have all of the rights of a stockholder with respect to all of the
Stock Grantee acquired hereunder, including without limitation the right to vote
such Stock and the right to receive all dividends or other distributions with
respect to such Stock. In connection with the payment of any dividends,
distributions or any other type of payment to the Grantee, the Company shall be
entitled to deduct any taxes or other amounts required by any governmental
authority to be withheld and paid over to such authority for Grantee's account.
5. Expiration of Restrictions. As soon as practicable after the lapse and
removal of the restrictions applicable to all or any portion of the Stock as
provided in Section 3, the Company will release the certificate(s) representing
such Stock to Grantee, provided that (a) Grantee has satisfied applicable tax
withholding requirements, as provided in Section 9, and (b) Grantee has, if
requested by the Company, made appropriate representations in a form
satisfactory to the Company that such Stock will not be sold other than: (i)
pursuant to an effective registration statement under the Securities Act of 1933
(the "Act"), as amended, or an applicable exemption from the registration
requirements of the Act; (ii) in compliance with all applicable federal and
state securities laws and regulations; and (iii) in compliance with all terms
and conditions of the Company's trading policies. The Company may require the
Grantee to execute and deliver to the Company a stock power in blank with
respect to the unvested Stock and may, in its sole discretion, determine to
retain possession of the certificates for unvested Shares. The Company shall
have the right, in its sole discretion, to exercise such stock power in the
event that the Company becomes entitled to shares of Stock pursuant to the terms
and conditions of this Agreement.
6. Trading Policies. The Company has implemented policies relating to the
trading of the Company's common stock and related securities. By accepting this
Grant and the Stock,
2
Grantee hereby acknowledges receipt of the then current policies and agrees to
abide by the policies as may be modified from time to time by the Company in its
sole discretion.
7. Investment Representations. The Grantee represents, warrants, and
covenants to the Company as follows:
(a) Investment. The Grantee is acquiring the Stock for his own
account for investment only, and not with a view to, or for sale in
connection with, any distribution of the Stock in violation of the Act, or
any rule or regulation under the Act.
(b) Company Information. The Grantee has had an opportunity he deems
adequate to obtain from representatives of the Company the information
necessary to permit him to evaluate the merits and risks of his investment
in the Company.
(c) Business Experience. The Grantee has sufficient experience in
business, financial, and investment matters to be able to evaluate the
risks involved in the purchase of the Stock and to make an informed
investment decision with respect to that purchase.
(d) Risk of Loss. He can afford a complete loss of the value of the
Stock and is able to bear the economic risk of holding the Stock for an
indefinite period.
8. Section 83(b) Election. Grantee will be entitled to make an election
pursuant to Section 83(b) of the Internal Revenue Code, or comparable provisions
of any state tax law, to include in Grantee's gross income the fair market value
(as of the date of acquisition) of the Stock Grantee acquire hereunder only if,
prior to making any such election, Grantee notifies the Company of Grantee's
intention to make such election, by delivering to the Company a copy of the
fully-executed Section 83(b) Election in the Form attached hereto as Exhibit
"A."
9. Withholding. Grantee shall be required to pay to the Company an amount
sufficient to satisfy any taxes or other amounts required by any governmental
authority to be withheld or paid over to such authority for Grantee's account
with respect to the Stock, or otherwise makes arrangements satisfactory to the
Company for the payment of such amounts. Grantee may pay any such amounts by
directing the Company to withhold a number of shares of Stock with an aggregate
fair market value on the date of such withholding equal to the amount required
to be withheld.
10. Changes in Capital Structure; Change in Control. The provisions of
Sections 15 (Changes in Capital Structure) and 16 (Change in Control) of the
Company's 1996 Stock Incentive Plan (the "Plan") are incorporated by reference
herein, and the Grant shall be treated as an award of Restricted Stock under the
Plan for purposes of such Sections; provided, however, that all shares of Stock
shall vest upon the Company's consummation of a going private transaction
whether or not such transaction constitutes a "Change in Control" as such term
is defined in the Plan.
11. No Right to Continue Employment. The terms and conditions of the
Grantee's employment by the Company shall be governed by the Employment
Agreement and this Grant
3
does not confer upon Grantee any right to continue as an employee of the Company
or an affiliated entity, nor does it limit in any way the right of the Company
or an affiliated entity to terminate Grantee's services to the Company or the
affiliated entity at any time, with or without cause.
12. No Assignment. The Grantee may not assign this Agreement, the Grant or
any rights granted herein.
13. Governing Law. This Agreement and the Grant shall be governed by and
construed in accordance with the laws of the State of Delaware.
14. Binding Effect. This Agreement shall be binding upon the heirs,
executors, administrators and successors of the parties hereto.
15. Notice. Every notice or other communication relating to this Agreement
shall be in writing, and shall be mailed or delivered to the party for whom it
is intended as such address as may from time to time be designated by it in a
notice mailed or delivered to the other party as herein provided, provided that,
unless and until some other address be so designated, all notices or
communications by the Grantee to the Company shall be mailed or delivered to the
Company at its principal executive office, and all notices or communications by
the Company to the Grantee may be given to the Grantee personally or may be
mailed to the Grantee at Grantee's address as recorded in the records of the
Company.
16. Entire Agreement, Counterparts and Conflicts. Except for the terms and
conditions of the Employment Agreement, this Agreement constitutes the entire
agreement between the parties respecting the Grant of the Stock to the Grantee
and supercedes all prior understandings, arrangements and agreements, whether
oral or written, and may not be amended except by a writing signed by the
parties hereto. This Agreement may be signed in one or more counterparts, all of
which shall be considered one and the same agreement. In the event of any
conflict between the terms and conditions of this Agreement and the Employment
Agreement as they relate to the Grant or the Stock, the terms of this Agreement
shall control.
17. Severability. In the event that any of the provisions, or portions
thereof, of this Agreement are held to be unenforceable or invalid by any court
of competent jurisdiction, the validity and enforceability of the remaining
provisions, or portions thereof, will not be affected, and such unenforceable
provisions shall be automatically replaced by a provision as similar in terms as
may be valid and enforceable.
18. Further Assurances. Each party to this Agreement agrees to perform all
further acts and to execute and deliver all further documents as may be
reasonably necessary to carry out the intent of this Agreement.
4
19. Construction. Whenever used in this Agreement, the singular number
will include the plural, and the plural number will include the singular, and
the masculine or neuter gender shall include the masculine, feminine, or neuter
gender. The headings of the sections of this Agreement have been inserted for
purposes of convenience and shall not be used for interpretive purposes.
20. Specific Performance. Each of the parties hereto acknowledges and
agrees that in the event of any breach of this Agreement, the non-breaching
party would be irreparably harmed and could not be made whole by monetary
damages. Each of the parties hereto accordingly agrees to waive the defense in
any action for injunction or specific performance that a remedy at law would be
adequate and that the parties hereto, in addition to any other remedy to which
they may be entitled at law or in equity, shall be entitled to an injunction or
to compel specific performance of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
West Corporation Grantee
By: /s/ Xxxxxx X. Xxxxxx /s/ Xxxx Xxxxxxx
------------------------------------ ------------------------------------
(Signature) (Signature)
Xxxxxx X. Xxxxxx President and CEO Xxxx Xxxxxxx
------------------------------------ ------------------------------------
(Printed Name and Title) (Printed Name)
SPOUSAL CONSENT
The spouse of the Grantee is aware of, understands, and consents to the
provisions of the foregoing Agreement and its binding effect upon any community
property interest or marital settlement awards she may now or hereafter own or
receive, and agrees that the termination of the marital relationship with the
Grantee for any reason shall not have the effect of removing any shares of Stock
subject to this Agreement from the coverage thereof and such spouse's awareness,
understanding, consent, and agreement is evidenced by her signature below.
Grantee's Spouse
/s/ Xxxxx Xxxxxxx
-----------------------------
(Spouse's Signature)
Xxxxx Xxxxxxx
-----------------------------
(Spouse's Printed Name)
5
EXECUTIVE RESTRICTED STOCK AGREEMENT
THIS EXECUTIVE RESTRICTED STOCK AGREEMENT (this "Agreement") is entered
into as of this 12/th/ day of September, 2002, by and between West Corporation,
a Delaware corporation (the "Company"), and Xxxx X. Xxxxxxx (the "Grantee").
WHEREAS, concurrently herewith, the Grantee and the Company have entered
into that certain Employment Agreement, dated September 12, 2002 (the
"Employment Agreement"), wherein the Grantee will be employed by the Company as
its Chief Financial Officer effective as of November 4, 2002 or such earlier
date as Grantee commences employment with the Company (the "Effective Date");
and
WHEREAS, to that end, in order to further compensate and induce the Grantee
regarding such employment, the Company desires and has elected to grant to the
Grantee an award of restricted common stock of the Company.
NOW, THEREFORE, in consideration of the mutual promises and agreements made
herein and such other good and valuable consideration, the receipt and legal
sufficiency of which are acknowledged, the parties do hereby agree as follows:
1. Grant of Restricted Stock. On the Effective Date, the Company will
grant to Grantee Sixteen Thousand (16,000) shares of the Company's common stock,
par value $0.01 per share (the "Stock"), subject to the terms, conditions and
restrictions set forth herein or in the Employment Agreement (the "Grant").
2. Consideration. The Stock is being granted to the Grantee in
consideration of his agreement to become employed by the Company and his
continued performance of services during the vesting period applicable to the
Stock, as set forth in Section 3. The Grantee shall not be required to pay to
the Company any monies, funds or other type of consideration for the Stock that
Grantee acquires pursuant to this Grant.
3. Restrictions on the Stock. Any Stock acquired by Grantee will be
subject to the following restrictions:
(a) No Transfer. The Stock may not be sold, assigned, transferred,
pledged, hypothecated or otherwise disposed of, alienated or encumbered
("Transferred") until the restrictions set forth in Section 3(b) are
removed or expire as provided in Section 3(c), and any additional
requirements or restrictions contained in this Grant have been satisfied,
terminated or expressly waived by the Company in writing. The Company shall
not be required to transfer on its books any of the shares of Stock that
shall have been sold or transferred in violation of any of the provisions
set forth in this Agreement; or to treat as owner of those shares Stock or
to pay dividends to any transferee to whom any of those shares of Stock
shall have been so sold or transferred. The Stock may bear appropriate
legends to reflect the transfer restrictions of this Agreement and any
applicable securities laws.
(b) Restrictions. In the event that the Grantee's service as an
employee of the Company is terminated by reason of death or disability, by
the Company for "cause" as defined in Paragraph 6(a)(2) of the Employment
Agreement, or if the Grantee resigns
1
from employment as provided in Paragraph 6(a)(4) of the Employment
Agreement, then the Company shall acquire and the Grantee shall sell,
transfer and assign, for no additional consideration or monies, all shares
of Stock acquired or issued hereunder that are, at the date of such
termination or resignation, still subject to the vesting restrictions
imposed under this Section 3, and the Grantee shall have no rights to such
shares of Stock thereafter. Any consulting services provided by the Grantee
after termination of or resignation from employment under Paragraph 7 of
the Employment Agreement shall not be considered services as an employee
for purposes of this Agreement.
(c) Vesting and Removal of Restrictions. The restrictions imposed
under the foregoing provisions of this Section 3 will lapse, expire and be
removed, and the shares of Stock acquired by Grantee under this Agreement
and the Grant will vest on the fifth anniversary of the Effective Date.
In addition, upon a termination of Executive's employment by the
Company without "cause," all outstanding shares of Stock acquired by
Grantee under this Agreement will vest.
4. Voting and Other Rights. Notwithstanding anything to the contrary in
the foregoing, during the period prior to the lapse and removal of the
restrictions set forth in Section 3, except as otherwise provided herein,
Grantee will have all of the rights of a stockholder with respect to all of the
Stock Grantee acquired hereunder, including without limitation the right to vote
such Stock and the right to receive all dividends or other distributions with
respect to such Stock. In connection with the payment of any dividends,
distributions or any other type of payment to the Grantee, the Company shall be
entitled to deduct any taxes or other amounts required by any governmental
authority to be withheld and paid over to such authority for Grantee's account.
5. Expiration of Restrictions. As soon as practicable after the lapse and
removal of the restrictions applicable to all or any portion of the Stock as
provided in Section 3, the Company will release the certificate(s) representing
such Stock to Grantee, provided that (a) Grantee has satisfied applicable tax
withholding requirements, as provided in Section 9, and (b) Grantee has, if
requested by the Company, made appropriate representations in a form
satisfactory to the Company that such Stock will not be sold other than: (i)
pursuant to an effective registration statement under the Securities Act of 1933
(the "Act"), as amended, or an applicable exemption from the registration
requirements of the Act; (ii) in compliance with all applicable federal and
state securities laws and regulations; and (iii) in compliance with all terms
and conditions of the Company's trading policies. The Company may require the
Grantee to execute and deliver to the Company a stock power in blank with
respect to the unvested Stock and may, in its sole discretion, determine to
retain possession of the certificates for unvested Shares. The Company shall
have the right, in its sole discretion, to exercise such stock power in the
event that the Company becomes entitled to shares of Stock pursuant to the terms
and conditions of this Agreement.
6. Trading Policies. The Company has implemented policies relating to the
trading of the Company's common stock and related securities. By accepting this
Grant and the Stock,
2
Grantee hereby acknowledges receipt of the then current policies and agrees to
abide by the policies as may be modified from time to time by the Company in its
sole discretion.
7. Investment Representations. The Grantee represents, warrants, and
covenants to the Company as follows:
(a) Investment. The Grantee is acquiring the Stock for his own
account for investment only, and not with a view to, or for sale in
connection with, any distribution of the Stock in violation of the Act, or
any rule or regulation under the Act.
(b) Company Information. The Grantee has had an opportunity he deems
adequate to obtain from representatives of the Company the information
necessary to permit him to evaluate the merits and risks of his investment
in the Company.
(c) Business Experience. The Grantee has sufficient experience in
business, financial, and investment matters to be able to evaluate the
risks involved in the purchase of the Stock and to make an informed
investment decision with respect to that purchase.
(d) Risk of Loss. He can afford a complete loss of the value of the
Stock and is able to bear the economic risk of holding the Stock for an
indefinite period.
8. Section 83(b) Election. Grantee will be entitled to make an election
pursuant to Section 83(b) of the Internal Revenue Code, or comparable provisions
of any state tax law, to include in Grantee's gross income the fair market value
(as of the date of acquisition) of the Stock Grantee acquire hereunder only if,
prior to making any such election, Grantee notifies the Company of Grantee's
intention to make such election, by delivering to the Company a copy of the
fully-executed Section 83(b) Election in the Form attached hereto as Exhibit
"A."
9. Withholding. Grantee shall be required to pay to the Company an amount
sufficient to satisfy any taxes or other amounts required by any governmental
authority to be withheld or paid over to such authority for Grantee's account
with respect to the Stock, or otherwise makes arrangements satisfactory to the
Company for the payment of such amounts. Grantee may pay any such amounts by
directing the Company to withhold a number of shares of Stock with an aggregate
fair market value on the date of such withholding equal to the amount required
to be withheld.
10. Changes in Capital Structure; Change in Control. The provisions of
Sections 15 (Changes in Capital Structure) and 16 (Change in Control) of the
Company's 1996 Stock Incentive Plan (the "Plan") are incorporated by reference
herein, and the Grant shall be treated as an award of Restricted Stock under the
Plan for purposes of such Sections; provided, however, that all shares of Stock
shall vest upon the Company's consummation of a going private transaction
whether or not such transaction constitutes a "Change in Control" as such term
is defined in the Plan.
11. No Right to Continue Employment. The terms and conditions of the
Grantee's employment by the Company shall be governed by the Employment
Agreement and this Grant
3
does not confer upon Grantee any right to continue as an employee of the Company
or an affiliated entity, nor does it limit in any way the right of the Company
or an affiliated entity to terminate Grantee's services to the Company or the
affiliated entity at any time, with or without cause.
12. No Assignment. The Grantee may not assign this Agreement, the Grant or
any rights granted herein.
13. Governing Law. This Agreement and the Grant shall be governed by and
construed in accordance with the laws of the State of Delaware.
14. Binding Effect. This Agreement shall be binding upon the heirs,
executors, administrators and successors of the parties hereto.
15. Notice. Every notice or other communication relating to this Agreement
shall be in writing, and shall be mailed or delivered to the party for whom it
is intended as such address as may from time to time be designated by it in a
notice mailed or delivered to the other party as herein provided, provided that,
unless and until some other address be so designated, all notices or
communications by the Grantee to the Company shall be mailed or delivered to the
Company at its principal executive office, and all notices or communications by
the Company to the Grantee may be given to the Grantee personally or may be
mailed to the Grantee at Grantee's address as recorded in the records of the
Company.
16. Entire Agreement, Counterparts and Conflicts. Except for the terms and
conditions of the Employment Agreement, this Agreement constitutes the entire
agreement between the parties respecting the Grant of the Stock to the Grantee
and supercedes all prior understandings, arrangements and agreements, whether
oral or written, and may not be amended except by a writing signed by the
parties hereto. This Agreement may be signed in one or more counterparts, all of
which shall be considered one and the same agreement. In the event of any
conflict between the terms and conditions of this Agreement and the Employment
Agreement as they relate to the Grant or the Stock, the terms of this Agreement
shall control.
17. Severability. In the event that any of the provisions, or portions
thereof, of this Agreement are held to be unenforceable or invalid by any court
of competent jurisdiction, the validity and enforceability of the remaining
provisions, or portions thereof, will not be affected, and such unenforceable
provisions shall be automatically replaced by a provision as similar in terms as
may be valid and enforceable.
18. Further Assurances. Each party to this Agreement agrees to perform all
further acts and to execute and deliver all further documents as may be
reasonably necessary to carry out the intent of this Agreement.
4
19. Construction. Whenever used in this Agreement, the singular number
will include the plural, and the plural number will include the singular, and
the masculine or neuter gender shall include the masculine, feminine, or neuter
gender. The headings of the Sections of this Agreement have been inserted for
purposes of convenience and shall not be used for interpretive purposes.
20. Specific Performance. Each of the parties hereto acknowledges and
agrees that in the event of any breach of this Agreement, the non-breaching
party would be irreparably harmed and could not be made whole by monetary
damages. Each of the parties hereto accordingly agrees to waive the defense in
any action for injunction or specific performance that a remedy at law would be
adequate and that the parties hereto, in addition to any other remedy to which
they may be entitled at law or in equity, shall be entitled to an injunction or
to compel specific performance of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
West Corporation Grantee
By: /s/ Xxxxxx X. Xxxxxx /s/ Xxxx Xxxxxxx
------------------------------------- ----------------------------
(Signature) (Signature)
Xxxxxx X. Xxxxxx, President and CEO Xxxx Xxxxxxx
------------------------------------- ----------------------------
(Printed Name and Title) (Printed Name)
SPOUSAL CONSENT
The spouse of the Grantee is aware of, understands, and consents to the
provisions of the foregoing Agreement and its binding effect upon any community
property interest or marital settlement awards she may now or hereafter own or
receive, and agrees that the termination of the marital relationship with the
Grantee for any reason shall not have the effect of removing any shares of Stock
subject to this Agreement from the coverage thereof and such spouse's awareness,
understanding, consent, and agreement is evidenced by her signature below.
Grantee's Spouse
/s/ Xxxxx Xxxxxxx
----------------------------
(Spouse's Signature)
Xxxxx Xxxxxxx
----------------------------
(Spouse's Printed Name)
5
