EXHIBIT 10.14
VIEWLOCITY, INC.
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT is made and entered into effective as of the __ day of
_______, ____ (the "Effective Date"), by and between Viewlocity, Inc., a
Delaware corporation (the "Company"), and ____________________ ("Employee").
BACKGROUND
A. The Board of Directors of the Company (the "Board") has authorized
the issuance to Employee of an award of shares of the Company's common stock
(the "Common Stock") pursuant to the Company's Stock Incentive Plan (the
"Plan"), subject to certain restrictions as described herein.
B. The Company and Employee wish to confirm herein the terms,
conditions and restrictions of such award.
For and in consideration of the premises, the mutual covenants
contained herein, and other good and valuable consideration, the parties hereto
agree:
SECTION 1
PURCHASE OF SHARES
1.1 PURCHASE OF SHARES. Subject to the terms, restrictions,
limitations, and conditions stated herein and in the Plan, the Company hereby
awards to Employee ___ shares of Common Stock (the "Shares"), subject to the
terms and conditions set forth herein.
1.2 VESTING OF SHARES. Employee shall become vested in the Shares as
described in the Vesting Schedule set forth on Schedule I hereto, except that
the Company's Board of Directors may, in its sole discretion, waive the
Vesting Schedule, in which case all Shares shall become fully vested. The
Shares which have become vested pursuant to the Vesting Schedule or by virtue
of waiver of the Vesting Schedule by the Board are herein referred to as the
"Vested Shares" and all of the Shares which are not Vested Shares are
sometimes herein referred to as the "Unvested Shares."
1.3 RIGHTS AS STOCKHOLDER. Except as expressly set forth herein,
Employee shall have all rights as a stockholder of the Company with respect
to the Shares, regardless of whether they are Vested Shares or Unvested
Shares.
1.4 INVESTMENT REPRESENTATIONS. Employee hereby represents,
warrants, covenants, and agrees with the Company as follows:
(a) The Shares being acquired by Employee will be acquired for
Employee's own account without the participation of any other
person, with the intent of holding the Shares for investment and
without the intent of participating, directly or indirectly, in a
distribution of the Shares and not with a view to, or for resale in
connection with, any
distribution of the Shares, nor is Employee aware of the existence of
any distribution of the Shares;
(b) Employee is not acquiring the Shares based upon any
representation, oral or written, by any person with respect to the
future value of, or income from, the Shares but rather upon an
independent examination and judgment as to the prospects of the
Company;
(c) The Shares were not offered to Employee by means of publicly
disseminated advertisements or sales literature, nor is Employee
aware of any offers made to other persons by such means;
(d) Employee is able to bear the economic risks of the
investment in the Shares, including the risk of a complete loss of
his investment therein;
(e) Employee understands and agrees that the Shares will be
issued and sold to Employee without registration under any state law
relating to the registration of securities for sale, and will be
issued and sold in reliance on the exemptions from registration
under the Securities Act of 1933 (the "1933 Act"), provided by
Sections 3(b) and/or 4(2) thereof and the rules and regulations
promulgated thereunder;
(f) The Shares cannot be offered for sale, sold or transferred
by Employee other than pursuant to: (A) an effective registration
under the 1933 Act or in a transaction otherwise in compliance with
the 1933 Act; and (B) evidence satisfactory to the Company of
compliance with the applicable securities laws of other
jurisdictions. The Company shall be entitled to rely upon an opinion
of counsel satisfactory to it with respect to compliance with the
above laws;
(g) The Company will be under no obligation to register the
Shares or to comply with any exemption available for sale of the
Shares without registration or filing, and the information or
conditions necessary to permit routine sales of securities of the
Company under Rule 144 of the 1933 Act are not now available and no
assurance has been given that it or they will become available. The
Company is under no obligation to act in any manner so as to make
Rule 144 available with respect to the Shares;
(h) Employee has and has had complete access to and the
opportunity to review and make copies of all material documents
related to the business of the Company, including, but not limited
to, contracts, financial statements, tax returns, leases, deeds, and
other books and records. Employee has examined such of these
documents as Employee has wished and is familiar with the business
and affairs of the Company. Employee realizes that the purchase of
the Shares is a speculative investment and that any possible profit
therefrom is uncertain;
(i) Employee has had the opportunity to ask questions of and
receive answers from the Company and any person acting on its behalf
and to obtain all material information reasonably available with
respect to the Company and its affairs. Employee has received all
information and data with respect to the Company which Employee has
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requested and which Employee has deemed relevant in connection with
the evaluation of the merits and risks of Employee's investment in
the Company;
(j) Employee has such knowledge and experience in financial and business
matters that Employee is capable of evaluating the merits and risks of
the purchase of the Shares hereunder and Employee is able to bear the
economic risk of such purchase; and
(k) The agreements, representations, warranties, and covenants made by
Employee herein extend to and apply to all of the Shares of the Company
issued to Employee pursuant to this Agreement and the award documented
hereby. Acceptance by Employee of a certificate representing such
Shares shall constitute a confirmation by Employee that all such
agreements, representations, warranties, and covenants made herein
shall be true and correct at that time.
SECTION 2
RESTRICTIONS ON SHARES
2.1 RESTRICTIONS ON UNVESTED SHARES.
(a) FORFEITURE UPON TERMINATION OF EMPLOYMENT.
Notwithstanding anything to the contrary herein, upon termination of
Employee's employment with the Company for any reason, including Employee's
death or disability, all Unvested Shares shall be automatically forfeited,
effective as of the effective date of termination of employment, without any
consideration payable to Employee.
(b) RESTRICTIONS ON TRANSFER OF UNVESTED SHARES. Unvested
Shares shall not be transferable by Employee for any reason or in any manner,
including by will or intestacy.
2.2 RESTRICTIONS ON VESTED SHARES. The parties hereto
acknowledge that the transferability of Vested Shares shall be governed by
that certain Shareholders Agreement of the Company dated March 12, 1999 or
such other shareholders agreement as governs the transferability of Common
Stock as of the date of vesting.
2.3 SECURITIES LAWS. Notwithstanding anything herein to the
contrary, no transfer of Vested Shares will be permitted unless the Company
is satisfied that such transfer will not violate any applicable state and
federal securities laws.
SECTION 3
GENERAL PROVISIONS
3.1 CHANGE IN CAPITALIZATION. If the number of outstanding
shares of the Company is increased or decreased by a change in par value,
split-up, stock split, reverse stock split, reclassification, distribution of
a stock dividend, or other similar capital adjustment, an appropriate
adjustment shall be made by the Board in the number and kind of Shares, such
that Employee's proportionate interest shall be maintained as before the
occurrence of the event. No fractional shares shall be issued in making such
adjustment. All adjustments made by the Board under this Section shall be
final, binding, and conclusive.
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3.2 LEGENDS. Each certificate representing the Shares shall be
endorsed with the following legend and Employee shall not make any transfer
of the Shares without first complying with the restrictions on transfer
described in such legend:
TRANSFER IS RESTRICTED
THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO A RIGHT OF
FIRST REFUSAL AND OTHER RESTRICTIONS ON TRANSFER SET FORTH IN A
RESTRICTED STOCK AGREEMENT DATED _____________ _________, 1999, A COPY
OF WHICH IS AVAILABLE FROM THE COMPANY.
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED, OR HYPOTHECATED UNLESS (1) THERE IS AN EFFECTIVE
REGISTRATION UNDER SUCH ACT COVERING SUCH SECURITIES, (2) THE TRANSFER
IS MADE IN COMPLIANCE WITH RULE 144 PROMULGATED UNDER SUCH ACT, OR (3)
THE ISSUER RECEIVES AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO
THE COMPANY, STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR
HYPOTHECATION IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT.
Employee agrees that the Company may also endorse any other legends
required by applicable federal or state securities laws.
The Company need not register a transfer of the Shares, and may also
instruct its transfer agent, if any, not to register the transfer of the
Shares unless the conditions specified in the foregoing legends are satisfied.
3.3 Removal of Legend and Transfer Restrictions.
(a) Any legend endorsed on a certificate pursuant to Section
3.2 and the stop transfer instructions with respect to the Shares
shall be removed and the Company shall issue a certificate without
such legend to the holder thereof if such Shares are registered
under the Securities Act and a prospectus meeting the requirements
of Section 10 of the Securities Act is available.
(b) The restrictions described in the second sentence of
the legend set forth in Section 3.2 may be removed at such time as
permitted by Rule 144(k) promulgated under the Securities Act.
3.4 GOVERNING LAWS. This Agreement shall be construed,
administered and enforced according to the laws of the State of Georgia;
provided, however, no Shares shall be issued except, in the reasonable
judgment of the Board, in compliance with exemptions under applicable state
securities laws of the state in which Employee resides, and/or any other
applicable securities laws.
3.5 SUCCESSORS. This Agreement shall be binding upon and inure
to the benefit of the heirs, legal representatives, successors, and permitted
assigns of the parties.
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3.6 NOTICE. Except as otherwise specified herein, all notices
and other communications under this Agreement shall be in writing and shall
be deemed to have been given if personally delivered or if sent by registered
or certified United States mail, return receipt requested, postage prepaid,
addressed to the proposed recipient at the last known address of the
recipient. Any party may designate any other address to which notices shall
be sent by giving notice of the address to the other parties in the same
manner as provided herein.
3.7 SEVERABILITY. In the event that any one or more of the
provisions or portion thereof contained in this Agreement shall for any
reason be held to be invalid, illegal, or unenforceable in any respect, the
same shall not invalidate or otherwise affect any other provisions of this
Agreement, and this Agreement shall be construed as if the invalid, illegal
or unenforceable provision or portion thereof had never been contained herein.
3.8 ENTIRE AGREEMENT. This Agreement, the Employment Agreement
and the attachments thereto express the entire understanding and agreement of
the parties with respect to the subject matter. This Agreement may be
executed in two or more counterparts, each of which shall be deemed an
original but all of which shall constitute one and the same instrument.
3.9 VIOLATION. Any transfer, pledge, sale, assignment, or
hypothecation of the Shares or any portion thereof shall be a violation of
the terms of this Agreement and shall be void and without effect.
3.10 HEADINGS. Paragraph headings used herein are for
convenience of reference only and shall not be considered in construing this
Agreement.
3.11 SPECIFIC PERFORMANCE. In the event of any actual or
threatened default in, or breach of, any of the terms, conditions and
provisions of this Agreement, the party or parties who are thereby aggrieved
shall have the right to specific performance and injunction in addition to
any and all other rights and remedies at law or in equity, and all such
rights and remedies shall be cumulative.
3.12 NO EMPLOYMENT RIGHTS CREATED. The award of Shares
hereunder shall not be construed as giving Employee the right to continued
employment with the Company.
3.13 TAX CONSEQUENCES. Employee acknowledges that he is not
relying on the Company for tax advice with respect to this award or vesting
of the Shares. Employee agrees to consult his individual tax Employee
regarding the advisability of filing an election under Section 83 of the
Internal Revenue Code of 1986, as amended.
3.14 ADDITIONAL CONDITION TO SHARES. In order to not forfeit
the Shares, Employee must deliver to the Company, within ten (10) days
following notice by the Company, a certified check payable to the Company in
the amount of all withholding tax obligations (whether federal, state or
local), imposed on the Company by reason of the award or the vesting of the
Shares.
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IN WITNESS WHEREOF, the parties have executed and sealed this
Agreement on the day and year first set forth above.
VIEWLOCITY, INC.
By:
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Name:
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Title:
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SCHEDULE I
TO
VIEWLOCITY, INC.
RESTRICTED STOCK AGREEMENT
VESTING SCHEDULE
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