EXHIBIT 10.21
No.____________
AWARD AGREEMENT
(RESTRICTED SHARES)
THIS AWARD AGREEMENT (the "Agreement"), entered into as of this ____ day
of , 2004, by and between Xxxxxx Software, Inc., an Ohio corporation (the
"Company"), and ___________________. (the "Restricted Shareholder").
WITNESSETH:
WHEREAS, the Board of Directors of the Company and the Shareholders of the
Company have adopted the Xxxxxx Software, Inc. 2003 Share Incentive Compensation
Plan (the "Plan"); and
WHEREAS, in order to provide incentive to the Restricted Shareholder to
serve as a Director of the Company and to devote time and effort to further the
Company's business, the Board has determined that the Restricted Shareholder
should be granted the number of Restricted Shares (as defined in the Plan) set
forth in this Agreement, upon the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, the Company and the Restricted Shareholder hereby agree as
follows:
1. Definitions. Capitalized terms shall have the meanings set forth
below unless otherwise specifically set forth elsewhere herein:
(a) The word "Agreement" shall mean this instrument, including the
Schedules and Exhibits attached hereto in their latest form.
(b) The word "Board" shall mean the Board of Directors of the Company
or, in the event a Committee has been established to administer the
Plan, such Committee.
(c) The word "Code" shall mean the Internal Revenue Code of 1986, as
amended, and any successor thereto.
2. Grant of Restricted Shares. Upon the terms and conditions set forth
in this Agreement, the Company agrees that it shall grant to the Restricted
Shareholder the Restricted Shares as set forth on Schedule A attached hereto and
incorporated herein by reference. The Company reserves the right to revise and
amend Schedule A at any time and from time to time during the term of this
Agreement to reflect the granting of additional Restricted Shares hereunder, and
the terms thereof; provided, however, that, except as expressly permitted under
the Plan, the Company will not make any amendment to Schedule A which adversely
affects the rights and interests of the Restricted Shareholder in any Restricted
Shares which have been granted and remain outstanding and effective as of the
date of such proposed amendment, without the written consent of the Restricted
Shareholder to such amendment. The number of Restricted Shares granted, any
purchase price due upon such grant, the date of grant of such Restricted Shares,
the vesting provisions related to such Restricted Shares and certain other terms
of such Restricted Shares shall be as set forth on Schedule A attached hereto,
as amended by the Company as described above.
3. Issuance of Restricted Share Certificates. Upon the granting of any
Restricted Shares under this Agreement in accordance with Schedule A, and the
Company (a) obtaining any approval from any governmental agency which the Board
of Directors of the Company shall, in its sole discretion, determine to be
necessary or advisable, (b) the admission of such Restricted Shares to listing
on any national securities exchange on which the Company's common shares may be
listed, and (c) completion of any registration or other qualification of the
Restricted Shares under any state or federal law or ruling or regulations of any
governmental body which the Board of Directors of the Company shall, in its sole
discretion, determine to be necessary or advisable, or the determination by the
Board of Directors, in its sole discretion, that any registration or other
qualification of the Restricted Shares is not necessary or advisable, the
Company shall promptly cause to be issued in the name of the Restricted
Shareholder a certificate for the number of Restricted
Shares so granted. Such certificate shall not be delivered to the Restricted
Shareholder, and shall be held by the Company, unless and until the restrictions
on all of such Restricted Shares under Schedule A have lapsed and such
Restricted Shares have become unrestricted under this Agreement and the Plan.
4. Restrictions on Transfer in Shareholders' Agreement. The Restricted
Shareholder hereby acknowledges the existence of restrictions on the transfer of
the Restricted Shares under the Shareholders' Agreement dated January 31, 2001,
as amended, to which the Restricted Shareholder is a party.
5. Call Option Agreement. As a condition precedent to the issuance by
the Company of certificates evidencing the ownership of the Restricted Shares,
the Restricted Shareholder must have executed a Call Option Agreement
substantially in the form of Exhibit 1 attached hereto and incorporated herein
by reference prior to the date of issuance of such certificate. Notwithstanding
anything to the contrary, if the Restricted Shareholder has not executed such
Call Option Agreement for any reason, any grant of such Restricted Shares will
be null and void and of no force or effect, ab initio. In such event, the
Company will promptly return to the Restricted Shareholder any purchase price
paid by the Restricted Shareholder upon such grant.
6. Other Provisions Relating to Restricted Shares. All certificates for
Restricted Shares shall bear such notation or other statement concerning the
restrictions on such Restricted Shares imposed by this Agreement, the Plan and
the Shareholders' Agreement as may be required by Ohio law in order to make such
restrictions enforceable against the holder thereof, subsequent holders, and any
potential or actual transferees of such Restricted Shares.
7. Successors in Interest, Etc. This Agreement shall be binding upon
and inure to the benefit of any successor of the Company. The Restricted Shares
shall not be transferable unless and until the restrictions set forth on
Schedule A attached hereto have lapsed.
8. No Liability Upon Distribution of Restricted Shares. The liability
of the Company under this Agreement and any distribution of Restricted Shares
made hereunder is limited to the obligations set forth herein with respect to
such distribution and no term or provision of this Agreement shall be construed
to impose any liability on the Company or the Board in favor of any person with
respect to any loss, cost or expense which the person may incur in connection
with or arising out of any transaction in connection with this Agreement.
9. Provisions of Plan Control. This Agreement is subject to all of the
terms, conditions and provisions of the Plan, as amended from time to time, and
to such rules, regulations and interpretations of the Plan as may be adopted by
the Board and in effect from time to time, all of which are incorporated herein
by this reference. A copy of the Plan will be made available to the Restricted
Shareholder upon written request. In the event and to the extent that this
Agreement conflicts or is inconsistent with the terms, conditions and provisions
of the Plan, the Plan shall control and this Agreement shall be deemed to be
modified accordingly.
- 2 -
10. Withholding. The Restricted Shareholder agrees that the Company may
make appropriate provision for tax withholding with respect to any issuance of
Restricted Shares and the lapse of any restrictions on such Restricted Shares
including, without limitation, withholding such amount that the Company deems
appropriate from any compensation or other amounts due the Restricted
Shareholder from the Company and requiring the Restricted Shareholder to provide
the Company with funds in the amount the Company deems appropriate.
11. No Employment by Company. Nothing herein shall be construed as an
offer or commitment by the Company to continue for any period of time the
employment of, or as a limitation on the right of the Company at any time with
or without cause to terminate the employment of, the Restricted Shareholder.
12. Captions. The captions and section numbers appearing in this
Agreement are inserted only as a matter of convenience. They do not define,
limit, construe or describe the scope or intent of the provisions of this
Agreement.
13. Investment Representation. The Restricted Shareholder hereby
represents and warrants that the Restricted Shares are acquired for investment
purposes only and not with a view to distribution or resale.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio, without regard to or for the
conflicts of laws principles thereof.
15. Exhibits and Schedules. The Exhibits and Schedules attached to this
Agreement shall constitute an integral part of this Agreement as if fully
rewritten herein.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
on its behalf by its duly authorized officer, and the Restricted Shareholder has
hereunto set his hand, all as of the date first above written.
XXXXXX SOFTWARE, INC.
By____________________________
Its___________________________
("Company")
______________________________
("Restricted Shareholder")
- 3 -
SCHEDULE A
GRANTS AND RESTRICTIONS ON RESTRICTED SHARES
Restricted Share Grants
1. DATE OF GRANT:
_______________, 2004
NUMBER OF RESTRICTED SHARES GRANTED:
_________ Restricted Shares
PURCHASE PRICE PAYABLE UPON GRANT:
$____ per Share
VESTING SCHEDULE:
Restrictions. In the event that Restricted Shareholder resigns as a
Director or voluntarily opts not to accept a nomination or stand for
re-election as a Director, all Restricted Shares that have not vested under the
vesting schedule below shall be forfeited by Restricted Shareholder.
Vesting Dates.
Number of Cumulative Number of
Restricted Shares Vested Restricted Shares Vested Vesting Date
------------------------ -------------------------------- ------------------------------------
1/3 of Restricted Shares granted 1/3 of Restricted Shares granted First anniversary of the grant date
1/3 of Restricted Shares granted 1/3 of Restricted Shares granted Second anniversary of the grant date
1/3 of Restricted Shares granted 1/3 of Restricted Shares granted Third anniversary of the grant date
- 4 -
