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EXHIBIT 10.9
XXXXX SYSTEMS CORPORATION
ADVISOR STOCK OPTION/RESTRICTED STOCK INCENTIVE PLAN
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT, dated as of ________________________, 1996, is by and between
Xxxxx Systems Corporation, a Delaware corporation ( "Xxxxx Systems" or the
"Company" ), and ________________________________________________
("Participant" ).
WITNESSETH
WHEREAS, Xxxxx Systems has adopted the Xxxxx Systems Corporation Advisor Stock
Option/Restricted Stock Incentive Plan ( the "Plan" ) to enable non-employee
directors and advisors of the Company, and consultants under contract with the
Company, to acquire shares of Class A Common Stock, $0.01 par value, of the
Company ("Common Stock") in accordance with the provisions of the Plan; and
WHEREAS, the Committee of the Board of Directors of Xxxxx Systems with
responsibility for administering the Plan has selected Participant to
participate in the Plan and has determined to grant Participant the right to
purchase restricted 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. Award.
(a) Subject to the terms, conditions, and restrictions set forth
in the Plan and in this Agreement, Xxxxx Systems hereby awards and
grants to Participant, and Participant hereby accepts from Xxxxx
Systems, the right to purchase from Xxxxx Systems the number of
restricted shares of Common Stock, at the purchase price, and in
accordance with the schedule for termination of transfer restrictions
specified on Attachment A hereto, unless, prior to the date set forth
for vesting, the Chief Executive Officer of Xxxxx Systems modifies
such attachment by delaying or canceling vesting prior to the
respective vesting date. If the Chief Executive Officer so determines
to delay or cancel the vesting, Participant will be
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notified of the determination in advance of the date provided for
vesting. Xxxxx Systems will thereupon modify Attachment A in
accordance with the determination.
(b) The right to purchase restricted shares of Common Stock
evidenced by this Agreement may be exercised by delivering written
notice of the exercise, in substantially the form of Attachment B, to
Xxxxx Systems within 30 days of the date of this Agreement and paying
in full the purchase price for such shares in cash or check in United
States dollars. Such right is not transferable and may be exercised
only by Participant, and only while Participant is serving as a member
of the Advisory Board or Board of Directors of Xxxxx Systems, or as a
consultant under contract with Xxxxx Systems. "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.
2. Restrictions on Shares.
(a) Restricted Stock purchased under this Agreement may not be
sold, assigned, conveyed, donated, pledged, transferred, or otherwise
disposed of or encumbered until the date set forth in Attachment A as
the date for termination of the transfer restrictions on such
Restricted Stock.
(b) If Participant sells, assigns, conveys, donates, pledges,
transfers, or otherwise disposes of or encumbers any of the Restricted
Stock purchased under this Agreement before the date set forth in
Attachment A for termination of the transfer restrictions on such
Restricted Stock, Xxxxx Systems will have the right, in addition to
such other rights and remedies as may be available to it (including
the right to restrain or set aside the transaction), exercisable by
written notice to the owner thereof at any time within 180 days after
its discovery of such transaction, to repurchase all or any part of
the Restricted Stock as to which the transfer restrictions have not
terminated, for cash in an amount equal to the purchase price paid to
Xxxxx Systems for such Restricted Stock, plus simple interest on such
amount at the rate of 8% per annum from the date of payment by
Participant to the date of offer of tender of payment by Xxxxx Systems
as set forth in Section 2(d) below, minus the amount or value, as
applicable, of any dividends or distributions paid on such Restricted
Stock.
(c) If Participant ceases to serve Xxxxx Systems in at least one
of the following capacities: a member of its Advisory Board, a member
of its Board of Directors, a consultant under contract, or full time
Employee for any reason whatsoever, before the date set forth in
Attachment A for termination of the transfer
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restrictions on any Restricted Stock purchased under this Agreement,
Xxxxx Systems will have the right for 180 days following the cessation
of service to repurchase all or any part of the Restricted Stock as to
which the transfer restrictions have not terminated, for cash in an
amount equal to the purchase price paid to Xxxxx Systems for such
Restricted Stock, plus simple interest on such amount at the rate of
8% per annum from the date of payment by Participant to the date of
offer of tender of payment by Xxxxx Systems as set forth in Section
2(d) below, minus the amount or value, as applicable, of any dividends
or distributions paid on such Restricted Stock.
(d) Whenever Xxxxx Systems has a right to buy back shares of
Restricted Stock, Xxxxx Systems may exercise its right by notifying
Participant or the subsequent holder of the Company's election to
exercise its right within the designated exercise period. 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 10 days, the Restricted Stock and 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 10 days, Xxxxx Systems may cancel
any outstanding certificate representing shares to be bought back.
Xxxxx Systems is required to tender the purchase price within 2
business days of the tender of the Restricted Stock. If the person
from whom the Restricted Stock 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, the Company is not
required to tender the purchase price until 20 days after the
certificate is returned or 20 days after it cancels the certificate,
whichever occurs first.
3. Company's Right of First Refusal.
(a) Unless and until Restricted Stock purchased under this
Agreement are publicly tradable, Xxxxx Systems will have a right of
first refusal to purchase such Restricted Stock if the holder of the
Restricted Stock desires or is obligated to sell or otherwise transfer
the shares after the date set forth in Attachment A for termination of
the transfer restrictions on such Restricted Stock, but this right
will not apply to a transfer upon Participant's death by will or by
the laws of descent and distribution.
(b) Any holder of such Restricted Stock who desires or is
obligated to sell or otherwise transfer them before they are publicly
tradable after the date set forth in Attachment A for termination of
the transfer restrictions on such Restricted Stock, must give Xxxxx
Systems written notice of the proposed sale or other transfer. The
notice must include the name of the proposed purchaser or
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transferee and describe the circumstances of the transfer. Xxxxx
Systems may purchase any or all of the Restricted Stock proposed to be
sold or transferred by notifying the holder within 30 days of its
receipt of the notice of its election to exercise its right of first
refusal and tendering the purchase price of the Restricted Stock as
soon as reasonably practicable thereafter.
(c) The purchase price at which Xxxxx Systems will purchase
Restricted Stock under its right of first refusal will be their fair
market value, as determined in good faith by the Board of Directors of
the Company, as of the most recent June 30 or December 31 on or before
the date of receipt of the notice of the proposed sale or transfer.
(d) For purposes of this Section, the term "publicly tradable"
means shares of Restricted Stock have been listed on a registered
national securities exchange or approved for quotation in the National
Association of Securities Dealers Automated Quotation ("NASDAQ")
system.
4. Compliance with Securities Laws.
(a) Participant acknowledges that the right to purchase shares of
Common Stock evidenced by this Agreement and any shares purchased
under this Agreement have not been registered under the Securities Act
of 1933, that Xxxxx Systems has no present intention to so register
them, that such shares may be deemed "restricted securities" under
Rule 144 of the Act, that the holder of restricted securities may be
required to hold them for an indefinite period of time unless they are
registered for sale under the Act or an exemption from registration is
available, and that routine sales of restricted securities under Rule
144 can only be made if Xxxxx Systems meets certain requirements,
including a requirement to make certain information publicly
available, and then only in limited amounts and in a specified manner
in accordance with the terms and conditions of Rule 144.
(b) Neither Participant nor any successor in interest of
Participant will sell or otherwise transfer any Restricted Stock
purchased under this Agreement in any way that might result in a
violation of any federal or state securities laws or regulations.
(c) Xxxxx Systems may require Participant or any subsequent holder
of Restricted Stock purchased under this Agreement to provide Xxxxx
Systems, before any sale or other transfer of such shares, with such
representations, commitments, and opinions regarding compliance with
applicable securities laws and regulations as Xxxxx Systems may deem
necessary or advisable.
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5. Stock Certificates; Rights as Shareholder.
Xxxxx Systems will retain for safekeeping all certificates or other
property representing Restricted Stock. Each such certificate will
bear such legends as the Board determines are necessary or
appropriate. Whether or not certificates representing such shares have
been issued or delivered, Participant will have all the rights of a
shareholder of Common Stock, including voting, dividend and
distribution rights, with respect to such shares, 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 Restricted Stock, whether resulting from a
subdivision, combination or reclassification of the Restricted Stock
of any issuer thereof or received in exchange for Restricted 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 Restricted Stock or received in payment
of the principal of or in redemption of the Restricted Stock (either
at maturity, upon call for redemption or otherwise), shall remain in
the possession of Xxxxx Systems until the date set forth on Attachment
A for termination of the transfer restriction on such Restricted
Stock.
6. Income Tax Withholding.
Participant (or any person entitled to act on Participant's behalf)
shall, upon request by Xxxxx Systems, pay to Xxxxx Systems, or Xxxxx
Systems may withhold from sums or property otherwise due or payable to
Participant (or such person), such amount as Xxxxx Systems may request
for the purpose of satisfying any liability to withhold federal,
state, local, or foreign income or other taxes.
7. Compliance with Plan.
Participant acknowledges receipt of a copy of the Plan and further
acknowledges that this Agreement is entered into pursuant to the Plan.
If the provisions of the Plan are inconsistent with the provisions of
this Agreement, the provisions of the Plan govern and supersede the
provisions of this Agreement.
8. Notices.
Any notice to Xxxxx Systems or the Company that is required or
permitted by this Agreement shall be addressed to the attention of the
Secretary of Xxxxx Systems at: 00000 Xxxxx Xxxxx, Xxxxx 0000 Xxxxxx,
Xxxxx 00000. 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 Xxxxx
Systems. Either party may at any time change its address for
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notification purposes by giving the other 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, this notice must be in writing to be effective and, if
mailed, 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, and, if mailed to Xxxxx Systems,
by certified mail, return receipt requested.
9. Remedies.
Xxxxx Systems is entitled, in addition to any other remedies it may
have at law or in equity, to temporary and permanent injunctive and
other equitable relief to enforce the provisions of this Agreement.
Any action to enforce the provisions of, or otherwise relating to,
this Agreement may be brought in the state or federal courts having
jurisdiction in Dallas, Dallas County, Texas. By signing this
Agreement, Participant consents to the personal jurisdiction of such
courts in any such action.
10. Assignment.
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective heirs, personal representatives
and permitted successors and assigns. However, Participant does not
have the power or right to assign this Agreement without the prior
written consent of Xxxxx Systems.
11. Attorneys' Fees.
If any action at law or in equity is necessary to enforce or interpret
the terms of this Agreement, the prevailing party will be entitled to
reasonable attorneys' fees, costs, and necessary disbursements in
addition to any other relief to which that party may be entitled.
12. 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 will not be affected.
13. Headings.
The section headings used herein are for reference and convenience
only and do not affect the interpretation of this Agreement.
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14. Governing Law.
This Agreement shall be governed by and construed in accordance with
the law of the State of Texas, without regard to that State's choice
of law rules.
15. Entire Agreement.
This Agreement, together with the Plan and any rules and regulations
adopted by the Board or Committee thereunder, constitutes the entire
agreement between the parties with respect to its subject matter.
16. Amendment.
This Agreement may be amended only in a manner that is consistent with
the Plan and only by a written instrument signed by both Xxxxx Systems
and Participant.
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
By:
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[name] Chairman Of The Board
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 any interest I may
have under this Agreement and on my heirs, legatees, and assigns.
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Signature
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Printed Name
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Date
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ATTACHMENT A
TO
RESTRICTED STOCK AGREEMENT
FOR
[NAME]
1. Purchase Price: $________________________ per Share
2. Schedule for Termination of Transfer Restrictions:
Date on Which Transfer Shares as to Which Transfer
Restrictions Expire Restrictions Expire on Date
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Percentage Number
---------- ------
---------------------- ---- ------
---------------------- ---- ------
---------------------- ---- ------
---------------------- ---- ------
---------------------- ---- ------
Total Shares Offered: 100% ------
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ATTACHMENT B
NOTICE OF EXERCISE OF RIGHT TO PURCHASE SHARES
OF RESTRICTED STOCK
_______________________________________________
I hereby notify Xxxxx Systems Corporation that I am exercising my right under
the Restricted Stock Agreement between me and Xxxxx Systems dated
____________________________________, and purchasing ______________ shares of
Class A Common Stock of the Corporation at $_____ per share, or $_____________
in total, which I herewith tender in cash or by check 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.
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[Name]
Date:
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