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EXHIBIT 10.02
KEY PERSON STOCKHOLDER'S AGREEMENT
AGREEMENT, dated the ____ of __________, 19___ between ATLANTIC DATA
SERVICES, INC., a Massachusetts corporation (herein called the "Corporation")
and _________ (herein called the "Shareholder"),
WITNESSETH:
WHEREAS, the Corporation has designated Shareholder as a Key Person
under the terms of the Corporation's "Key Person" Stock Plan (the "Plan") and
has granted Shareholder the right and option to purchase ________ shares of
Common Stock Class A, one cent par value of the Corporation (the "Shares") for
$5.00 per share; and
WHEREAS, Shareholder desires to exercise such option for said Shares
of the Corporation; and
WHEREAS, the parties hereto desire to set forth the terms and
conditions of the Share subscriptions by the Shareholder and the respective
rights and obligations of the Corporation and Shareholder with respect to the
Shares.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
provisions herein contained, each of the parties hereto, for himself or itself,
and for his or its heirs, representatives, successors and assigns agrees with
every other party hereto as follows:
ARTICLE 1
EXERCISE OF OPTION BY SHAREHOLDER
1.01 Shareholder hereby exercises its option to purchase the Shares of
the Corporation as granted pursuant to the Plan and delivers
herewith his check payable to the order of the Corporation in the
amount of $________ (the "Purchase Price") representing payment in
full for said Shares so subscribed for. The Corporation hereby
acknowledges receipt of such payment by Shareholder, delivers to
Shareholder a certificate registered in his name for the Shares of
the Corporation and represents and warrants that such Shares have
been duly issued and are fully paid and non-assessable. Shareholder
hereby acknowledges receipt of such Shares.
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ARTICLE 2
RESTRICTIONS DURING LIFE
2.01 Shareholder's Obligations to Offer Shares to Other Shareholders and
to Corporation. Shareholder shall not, during his lifetime, sell,
assign, transfer, pledge or otherwise, directly or indirectly,
dispose of, or encumber (all such dispositions shall hereafter be
referred to by use of the very "dispose") any of his Shares of the
Corporation to, or with, any other person, firm or corporation
(including, without limitation, dispositions to any other
Shareholder and dispositions by gift) unless (a) the Shareholder
shall have first made the offer to sell hereinafter described in
this Article 2 (the "Offer") and such Offer shall not have been
accepted by the Corporation; and (b) thereafter, the Shareholder
shall have compiled with the Right of First Refusal set forth in
Article 3 hereof and the Corporation shall have elected not to
exercise its rights thereunder.
2.02 Offer by Transferor. The Offer shall be given (the date on which
such Offer is given is hereinafter called the "Offer Date") to the
Corporation and shall consist of a written offer to sell all the
Shares of the Corporation which the Shareholder then intends to
dispose of (said shares are hereinafter called the "Offer Shares")
to which written Offer shall be attached a statement of intention to
dispose of the Offered Shares, the number of shares involved and the
price at which it would be willing to sell such shares.
2.03 Rights of Corporation. The Corporation may elect to purchase all,
but not less than, all of the Offered Shares by giving written
notice to the Shareholder within thirty (30) days of the Offer Date
which (a) shall state whether or not the Corporation elects to
exercise its option and (b) shall fix a date and time (herein called
"Closing Date") for the closing of the purchase of such stock which
shall be not less than twenty (20), nor more than sixty (60), days
after giving of such notice by the Corporation.
2.04 Effect of Failure to Give Notice. Failure by the Corporation to give
notice required of it pursuant to the foregoing Sections within the
time limits therein provided shall be deemed an election by said
Corporation not to exercise the subject rights.
2.05 Failure to Subscribe All Offered Shares. If the Corporation shall
fail to exercise the respective right and option provided in this
Article 2 to acquire all of the Offered Shares owned by the
Shareholder, the Shareholder shall (subject to the Corporation's
further Right of First Refusal set forth in Article 3 hereof) be
free to sell all the Offered Shares, only if such sale is bona fide
and is consummated in strict accordance with the terms of the Offer
within ninety (90) days after the expiration of the Corporation's
Right of First Refusal, and if no such third party transfer or
encumbrance is consummated within such period, such Offered Shares
shall, again, become subject to all the restrictions of this
Agreement and the rights of Corporation hereunder and under Article
3 in the same manner as if no notice of Offer had been given; and,
in any event, such Offered Shares shall, again, be subject to these
restrictions and to the terms of this Article 2 and Article 3 in the
hands of the third-party purchaser or lienor if such disposition is
effected.
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2.06 Payment of Purchase Price. If the Corporation shall exercise any
right described in this Article 2, then the Corporation shall pay to
the Shareholder on the Closing Date, an amount equal to the Purchase
Price (as hereinafter defined) for the Shares purchased, either in
cash or by certified or official bank check.
2.07 Purchase Price. The Purchase Price for the Offered Shares shall be
at the option of the Corporation: (a) the price set forth in the
Offer; or, (b) the price determined in accordance with the
provisions of Article 5 of this Agreement; or, (c) if an Offer is
"deemed given" pursuant to Section 2.10 hereof prior to Vesting (as
said term is defined in Section 2.11 hereof) the Purchase Price set
forth in Article 1 hereof (i.e.
the original price for the shares).
2.08 Assumption on Sale. Shareholder shall not sell or otherwise transfer
any of the Shares of the Corporation held by him unless the
transferee thereof shall agree to be bound by the terms of this
Agreement by an instrument in writing directly with the Corporation,
an executed copy of which shall have been furnished to the
Corporation; such transferee, however, by the acceptance of such
Shares shall thereupon become a party to this Agreement, bound by
all the terms hereof, without further action and, specifically,
whether or not such transferee shall have executed such an
instrument. Shareholder is not presently, and shall not at any time,
except as expressly permitted hereby, become a party in any voting
trust or other agreement with respect to Shares owned by him which
would, in any way, impair the rights of the Corporation.
2.09 Assignment of Corporation's Purchase Rights. If, at any time, the
Corporation shall have the right to purchase any Offered Shares
pursuant to the provisions of this Article 2 or Article 3, the
Corporation may, by a two-thirds vote of the Board of Directors,
assign any such right to any officer, director, or employee of the
Corporation, in such proportions as the Board may determine. All
provisions of this Agreement shall remain applicable to any shares
purchased by any such officer, director, or employee pursuant to
such assignments.
2.10 Circumstances Under Which an Offer is Deemed Made. If a Shareholder
shall attempt to assign, transfer, pledge, hypothecate, or otherwise
encumber or dispose any of his Shares without complying with the
terms of this Agreement, or if the Shares, or any part thereof,
shall be executed against, or voluntarily subjected to encumbrance,
or if he shall attempt to sell any of his Shares other than in
compliance with the terms of this Agreement, or if a Shareholder
shall initiate or have initiated against him, a bankruptcy or
insolvency proceeding which is not discharged within ninety (90)
days of the commencement thereof or if Shareholder ceases to be
employed by the Corporation (whether voluntarily or involuntarily)
or if Shareholder dies, such Shareholder shall be deemed to have
given an Offer to the Corporation under Section 2.02 of this
Agreement with respect to all Shares owned by him, with the Offer
Date being the date upon which each member of the Board of Directors
has actual notice thereof.
2.11 Vesting. Vesting shall be deemed to have occurred upon the first to
occur of: (a) completion of five (5) consecutive years of employment
by Shareholder with the Corporation measured from _____________; or
(b) the sale of all of the stock or assets of
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the Corporation to an unrelated unaffiliated third party; or, (c)
sale of at least 66 2/3 percent of the issued and outstanding shares
of Common Stock of the Corporation to an unaffiliated unrelated
third party.
ARTICLE 3
RIGHTS OF FIRST REFUSAL
3.01 Corporation and Shareholder agree that if the Corporation shall not
elect to purchase the Offered Shares pursuant to the Corporation's
rights under Article 2 of this Agreement and if Shareholder,
nevertheless, desires to sell the Offered Shares and shall have
received a bona fide offer from a third party to purchase the same,
Shareholder shall first offer the Offered shares for sale to the
Corporation. Such offer shall be at the price and upon the other
terms and conditions embodied in the Shareholder's offer from the
third party and as provided in this Article 3. Such offer by
Shareholder to the Corporation shall also give the name and address
of each prospective purchaser of the Shares. Corporation shall have
the longer of (i) thirty (30) days, if the value of such offer is
readily ascertainable or (ii) the time required for an accurate
determination of the value of such offer (if such offer shall not be
a cash or equivalent transaction) plus fifteen days, in which to
elect to purchase the offered interest from the Shareholder, upon
the price, terms and conditions set forth in said notice.
3.02 If the Corporation elects to purchase, the Shareholder shall sell
the Offered Shares and the Corporation shall purchase the Offered
Shares (subject to and with the benefit of (i) the continued
application of Article 2 and 3 of this Agreement to any subsequent
sale of Shares if the Shares being sold do not include all of the
Shares included in the original Offer under Article 2. The closing
of the purchase shall occur at the offices of the Corporation upon
the later to occur of: (a) thirty (30) days after the date of
acceptance of such offer by the Corporation; or, (b) the date set
for closing in the Offer, and each party shall deliver such
documents and take such action in connection with the closing as is
required by the Offer.
3.03 If the Corporation shall fail to give notice of election to purchase
the Offered Shares, or after giving notice of election to purchase
the Offered Shares, shall fail to perform its obligation pursuant
thereto, the Shareholder shall be free to sell the Offered Shares
but only for the price and upon the terms and conditions set forth
in the Offer, only to the purchaser named therein and only if such
sale is bona fide and is consummated in strict accordance with the
terms of the Offer within ninety (90) days after expiration of the
Corporation's rights under this Article 3 and if no such third party
transfer is consummated within such period, such Offered Shares
shall, again, become subject to all the restrictions of this
Agreement and all of the rights of the Corporation under Articles 2
and 3, in the same manner as if no notice of Offer had first been
given under Article 2 of this Agreement; and, in any event, such
Offered Shares shall, again, be subject to the terms and provisions
of this Agreement in the hands of the third party purchaser if such
disposition is effected.
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ARTICLE 4
PURCHASE BY CORPORATION HEREUNDER
4.01 Whenever Corporation, pursuant to this Agreement, shall purchase any
Shares, each selling Shareholder shall do all things and execute and
deliver all papers as the Corporation may deem reasonably necessary
to consummate such purchase.
ARTICLE 5
PURCHASE PRICE
5.01 The purchase price for Shares as set forth in Section 2.07(b) in
this Agreement (the "Price") shall be determined by multiplying the
price per share (the "Share Price") by the number of shares of Stock
being acquired. The Share Price shall be the net book value of the
Shares as of the date of the Offer as determined by the
Corporation's accountants.
5.02 The determination by the Corporation's accountants of the Share
Price shall be final, binding and conclusive upon all parties hereto
and their legal representatives.
ARTICLE 6
BAR AGAINST ENCUMBRANCING
6.01 Notwithstanding anything contained in this Agreement to the
contrary, Shares may not be voluntarily mortgaged, pledged,
hypothecated, collaterally assigned or otherwise encumbered as
security for any loan or other obligation without first obtaining
the written consent of all parties bound by the terms of this
Agreement.
ARTICLE 7
ENDORSEMENT ON SHARE CERTIFICATES
7.01 Each certificate representing Shares of the Corporation now or
hereafter held by the Shareholder shall be stamped with a legend in
substantially the following form:
"The transfer of the shares represented by the within
certificate is restricted under the terms of an agreement
between the holder and the Corporation dated __________,
19___, a copy of which is on file at the office of the
Corporation."
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ARTICLE 8
SPECIFIC PERFORMANCE
8.01 Shareholder acknowledges that it will be impossible to measure in
money the damage to the Corporation if there is a failure to comply
with any of the restrictions or obligations herein imposed upon the
disposition of his Shares, or a failure to comply with the
provisions of Article 2, 3 and 6 hereof, and agrees that in the
event of any such failure, the Corporation will not have an adequate
remedy at law.
8.02 It is therefore agreed that the Corporation, in addition to any
other rights or remedies which it has, shall be entitled to
immediate injunctive relief to enforce such restrictions,
obligations or provisions, or any of them, and that in the event any
action or proceeding is brought in equity to enforce the same, no
Shareholder will urge, as a defense, that there is an adequate
remedy at law.
ARTICLE 9
NOTICES
9.01 Any and all notices, designations, consents, offers, acceptances, or
any other communication provided for herein shall be given in
writing by hand delivery or by registered or certified mail which
shall be addressed, in the case of the Corporation, to its principal
office, and in the case of the Shareholder, to his address appearing
on the books of the Corporation or his residence or to such other
address as may be designated by him. Each such notice shall be dated
as of the date of its mailing and shall be deemed given, delivered
and completed on the date of mailing thereof provided it is received
in due course or, in the case of hand delivery, on the date of
delivery.
ARTICLE 10
INVALID PROVISIONS
10.01 The invalidity or unenforceability of any particular provision of
this Agreement shall not affect the other provisions hereof, and the
Agreement shall be construed in all respects as if such invalid or
unenforceable provisions were omitted.
ARTICLE 11
MODIFICATION
11.01 No change or modification of this Agreement shall be valid unless
the same be in writing and signed by all the parties hereto.
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ARTICLE 12
NO SEPARATE ASSIGNMENT
12.01 Except as otherwise expressly permitted by the terms of this
Agreement, the rights granted under this Agreement may not be
severed from the Shares or separately assigned, sold or otherwise
transferred.
ARTICLE 13
MISCELLANEOUS
13.01 No waiver by a party hereto of a breach of any condition, term or
provision of this Agreement shall be deemed a waiver of any
preceding or subsequent breach of the same or any other condition,
term or provision hereto.
13.02 This Agreement is made pursuant to, and shall be governed by and
construed in accordance with the internal laws of the Commonwealth
of Massachusetts, as of the date hereof. It sets forth the entire
agreement among the parties concerning the subject matter thereof,
and any amendment or modification will be effective only if in
writing and signed by the parties affected thereby. Time is of the
essence of this Agreement for all purposes. Any provisions in the
Articles of Incorporation or the Bylaws of the Corporation
purporting to effect restrictions on the transfer of Stock are in
addition to the restrictions contained herein.
13.03 This Agreement shall supersede and replace all prior agreements
between the Corporation and any other party hereto relating to the
same subject matter. It shall continue in full force and effect so
long as the Shares shall remain issued and outstanding. This
Agreement shall bind and benefit the parties hereto and their
respective successors and legal representatives.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
the day and year first above written.
ATLANTIC DATA SERVICES, INC.
By:_____________________________________
Its:____________________________________
SHAREHOLDER:
________________________________________
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AMENDMENT AGREEMENT TO
KEY PERSON STOCKHOLDER'S AGREEMENT
This Amendment Agreement is an amendment to a certain Key Person
Stockholder's Agreement (the "Key Person Stockholders Agreement") by and between
Atlantic Data Services, Inc., a Massachusetts corporation (the "Corporation")
and **NAME** (the "Key Person Stockholder").
WHEREAS the Company and the Key Person Stockholder desire to amend the
Key Person Stockholder's Agreement to the extent set forth herein;
NOW THEREFORE, in consideration of the mutual covenants herein
contained, the parties, in accordance with Article 11 of the Key Person
Stockholder's Agreement, hereby agree as follows:
1. Definitions. The capitalized terms used herein and not otherwise
defined shall have the meaning set forth in the Key Person Stockholder's
Agreement.
2. Amendment. That the Key Person Stockholder's Agreement is hereby
amended by deleting Article 13.03 thereof and replacing, in lieu thereof, the
following:
"This Agreement shall supersede and replace all prior agreements
between the Corporation any other party hereto relating to the same
subject matter. The restrictions on transfer of the Shares contained in
Articles 2, 3 and 6 shall terminate upon a distribution to the public
of shares of common stock of the Corporation for an aggregate public
offering price of at least $10 million pursuant to an effective
registration statement filed under the Act of any successor statute.
This Agreement shall bind and benefit the parties hereto and their
respective successors and legal representatives."
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IN WITNESS WHEREOF, this Amendment Agreement has been executed this __
day of October, 1997.
ATLANTIC DATA SERVICES, INC.
By:
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President
KEY PERSON STOCKHOLDER:
**NAME**
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Signature
