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EXHIBIT 10.10
MASTER
ATLANTIC DATA SERVICES, INC.
STOCK PURCHASE AND RESTRICTION AGREEMENT
ATLANTIC DATA SERVICES, INC., a Massachusetts corporation (the
"Company"), hereby awards as of [DATE] to [NAME] (the "Purchaser"), the right to
purchase a maximum of [NUMBER NOT EXCEEDING AVAILABLE SHARE LIMIT] shares (the
"Shares") of its Class A Common Stock, $.01 par value ("Class A Common Stock"),
at the price of $[PRICE] per share (the "Purchase Price Per Share"). The Shares
shall be governed by the following terms and conditions:
1. AWARD UNDER 1997 STOCK PLAN. The Shares are awarded pursuant
to and are governed by the Company's 1997 Stock Plan (the "Plan") and, unless
the context otherwise requires, terms used herein shall have the same meaning as
in the Plan. Determinations made in connection with this award pursuant to the
Plan shall be governed by the Plan as it exists on this date.
2. PURCHASE AND SALE OF SHARES.
(a) Subject to the terms and conditions of the Plan and
this Stock Purchase and Restriction Agreement, Purchaser hereby
purchases from the Company, and the Company hereby sells to the
Purchaser, the Shares at the Purchase Price Per Share or an aggregate
purchase price of $___________ (the "Aggregate Purchase Price").
(b) The Company hereby acknowledges receipt from the
Purchaser of the Aggregate Purchase Price and the Purchaser hereby
acknowledges receipt of a stock certificate issued in her, his or its
name representing the Shares.
(c) The Purchaser hereby acknowledges receipt from the
Company of a stock certificate issued in her, his or its name
representing the Shares.
3. VESTING OF SHARES IF BUSINESS RELATIONSHIP CONTINUES.
[ONE-THIRD] of the Shares shall vest immediately on the date hereof and, if the
Purchaser has continued to serve the Company or any Related Corporation in the
capacity of an employee, officer, director or consultant (such service is
described herein as maintaining or being involved in a "BUSINESS RELATIONSHIP
WITH THE COMPANY") on the following dates, an additional number of the Shares
shall vest in accordance with the schedule below:
One year but less than two years from - [NUMBER] shares
the date hereof
Two years from the date hereof - an additional [NUMBER] shares
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Any of the Shares that vest in accordance with this schedule shall be
deemed "Vested Shares" and any of the Shares that have not yet vested in
accordance with this schedule shall be deemed "Unvested Shares." Notwithstanding
the foregoing, in accordance with and subject to the provisions of the Plan and
Section 17 herein, the Board of Directors may, in its discretion, accelerate the
date that any installment of the Shares vest, and accordingly, upon such
acceleration, any such shares shall be deemed Vested Shares.
4. TERMINATION OF BUSINESS RELATIONSHIP.
(a) If the Purchaser's Business Relationship with the
Company and all Related Corporations is terminated with or without
Cause (as defined below), including by reason of death or disability if
the Purchaser is a natural person, no further installments of the
Shares shall vest and Vested Shares shall be those Shares that vested
as of the date of termination in accordance with Section 3.
(b) DEFINITION OF CAUSE. "Cause" shall mean conduct
involving one or more of the following: (i) the substantial and
continuing failure of the Purchaser, after notice thereof, to render
services to the Company or Related Corporation in accordance with the
terms or requirements of her, his or its Business Relationship; (ii)
disloyalty, gross negligence, willful misconduct, dishonesty or breach
of fiduciary duty to the Company or Related Corporation; (iii) the
commission of an act of embezzlement or fraud; (iv) deliberate
disregard of the rules or policies of the Company or Related
Corporation which results in direct or indirect loss, damage or injury
to the Company or Related Corporation; (v) the unauthorized disclosure
of any trade secret or confidential information of the Company or
Related Corporation; or (vi) the commission of an act which constitutes
unfair competition with the Company or Related Corporation or which
induces any customer or supplier to breach a contract with the Company
or Related Corporation.
5. RESTRICTIONS ON TRANSFER AND RESALE.
(a) The Shares may not be transferred without the
Company's written consent except by will, by the laws of descent and
distribution and in accordance with the provisions of Section 5(b)
herein and Sections 7 and 8, if applicable.
(b) Notwithstanding the foregoing, upon written notice
from the Purchaser to the Company, the Shares may be transferred by the
Purchaser to a trust, corporation, partnership or other estate planning
vehicle for the benefit of such Purchaser (each an "Estate Planning
Entity"); provided, however, that prior to the transfer of any of the
Shares to an Estate Planning Entity such Estate Planning Entity shall
execute an agreement with the Company pursuant o which such Estate
Planning Entity agrees to be subject to the restrictions set forth in
this Agreement.
(c) The Shares will be of an illiquid nature and will be
deemed to be "restricted securities" for purposes of the Securities Act
of 1933, as amended (the
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"Securities Act"). Accordingly, such Shares must be sold in compliance
with the registration requirements of the Securities Act or an
exemption therefrom. Each certificate evidencing any of the Shares
shall bear a legend substantially as follows:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER AND MAY NOT BE SOLD, EXCHANGED,
TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF
EXCEPT IN ACCORDANCE WITH AND SUBJECT TO ALL THE TERMS AND
CONDITIONS OF A CERTAIN STOCK PURCHASE AND RESTRICTION
AGREEMENT DATED AS OF __________, 199_, A COPY OF WHICH THE
COMPANY WILL FURNISH TO THE HOLDER OF THIS CERTIFICATE UPON
REQUEST AND WITHOUT CHARGE."
6. INVESTMENT INTENT.
(a) Purchaser represents and warrants that she, he or it
has acquired the Shares for her, his or its own account for the purpose
of investment and not with a view to resale or distribution.
(b) The certificates evidencing the Shares shall be
endorsed with a legend, in addition to any other legends required by
this Agreement, substantially as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR
RESALE, AND MAY NOT BE SOLD, MORTGAGED, PLEDGED, HYPOTHECATED
OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS, OR THE
AVAILABILITY OF AN EXEMPTION FROM THE REGISTRATION PROVISIONS
OF THE SECURITIES ACT OF 1933, AS AMENDED, AND APPLICABLE
STATE SECURITIES LAWS."
(c) Purchaser understands and agrees that neither the
Company nor any agent of the Company shall be under any obligation to
recognize any transfer of any of the Shares if, in the opinion of
counsel for the Company, such transfer would result in violation by the
Company of any federal or state law with respect to the offering,
issuance or sale of securities.
7. COMPANY'S RIGHT OF FIRST REFUSAL.
(a) EXERCISE OF RIGHT. If the Purchaser desires to
transfer all or any part of the Vested Shares to any person other than
the Company (an "Offeror"), the Purchaser
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shall: (i) obtain in writing an irrevocable and unconditional bona fide
offer (the "Offer") for the purchase thereof from the Offeror; and (ii)
give written notice (the "Notice") to the Company setting forth the
Purchaser's desire to transfer such shares, which Notice shall be
accompanied by a photocopy of the Offer and shall set forth at least
the name and address of the Offeror and the price and terms of the
Offer. Upon receipt of the Notice, the Company shall have an assignable
option to purchase any or all of such Vested Shares (the "Company
Shares") specified in the Notice, such option to be exercisable by
giving, within 30 days after receipt of the Notice, a written
counter-notice to the Purchaser. If the Company elects to purchase any
or all of such Company Shares, it shall be obligated to purchase, and
the Purchaser shall be obligated to sell to the Company, such Company
Shares at the price and terms indicated in the Offer within 30 days
from the date of delivery by the Company of such counter-notice.
(b) SALE OF SHARES TO OFFEROR. The Purchaser may, for 60
days after the expiration of the 30-day option period as set forth in
Section 7(a), sell to the Offeror, pursuant to the terms of the Offer,
any or all of such Company Shares not purchased or agreed to be
purchased by the Company or its assignee; provided, however, that the
Purchaser shall not sell such Company Shares to such Offeror if such
Offeror is a competitor of the Company and the Company gives written
notice to the Purchaser, within 30 days of its receipt of the Notice,
stating that the Purchaser shall not sell her, his or its Company
Shares to such Offeror; and provided, further, that prior to the sale
of such Shares to an Offeror, such Offeror shall execute an agreement
with the Company pursuant to which such Offeror agrees to be subject to
the restrictions set forth in this Section 7. If any or all of such
Company Shares are not sold pursuant to an Offer within the time
permitted above, the unsold Company Shares shall remain subject to the
terms of this Section 7.
8. COMPANY'S RIGHT OF REPURCHASE.
(a) RIGHT OF REPURCHASE. The Company shall have the right
(the "Repurchase Right") to repurchase any or all of the Shares from
the Purchaser, upon the occurrence of any of the events specified in
Section 8(b) below (the "Repurchase Event"). The Repurchase Right may
be exercised by the Company within 60 days following the date the
Company receives actual knowledge of such event (the "Repurchase
Period"). The Repurchase Right shall be exercised by the Company by
giving the Purchaser written notice on or before the last day of the
Repurchase Period of its intention to exercise the Repurchase Right,
and, together with such notice, tendering to the holder an amount equal
to the following: (i) for Vested Shares, the fair market value, in the
case of an event specified in Section 8(b)(i), (ii) or (iii) below, and
the Purchase Price Per Share in the case of an event specified in
Section 8(b)(iv) below, and (ii) for Unvested Shares, the Purchase
Price Per Share in the in the case of any event specified in Section
8(b) below. The Company may assign the Repurchase Right to one or more
persons. Upon timely exercise of the Repurchase Right in the manner
provided in this Section 8(a), the holder shall deliver to the Company
the stock certificate or certificates representing the shares
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being repurchased, duly endorsed and free and clear of any and all
liens, charges and encumbrances.
If any of the Shares are not purchased under the Repurchase
Right, the Purchaser and her, his or its successor in interest, if any,
will hold any such Shares in her, his or its possession subject to all
of the provisions of this Agreement.
(b) COMPANY'S RIGHT TO EXERCISE REPURCHASE RIGHT. The
Company shall have the Repurchase Right in the event that any of the
following events shall occur:
(i) The termination of the Purchaser's Business
Relationship with the Company and all Related
Corporations, voluntarily or involuntarily, for any
reason whatsoever other than for Cause (as defined in
Section 4(b) hereof), including death or permanent
disability, if the Purchaser is a natural person;
(ii) The receivership, bankruptcy or other creditor's
proceeding regarding the Purchaser or the taking of
any of the Shares by legal process, such as a levy of
execution;
(iii) If the Purchaser is a natural person, the
distribution of shares held by the Purchaser to her
or his spouse as such spouse's joint or community
interest pursuant to a decree of dissolution,
operation of law, divorce, property settlement
agreement or for any other reason, except as may be
otherwise permitted by the Company; or
(iv) The termination of the Purchaser's Business
Relationship for Cause (as defined in Section 4(b)
hereof).
(c) DETERMINATION OF FAIR MARKET VALUE. The fair market
value of the Shares shall be, for purposes of this Section 8,
determined in accordance with paragraph 6D of the Plan as of the date
of the Repurchase Event. The determination by the Board of Directors of
the fair market value shall be conclusive and binding.
9. FAILURE TO TRANSFER SHARES TO THE COMPANY.
(a) If the Purchaser becomes obligated to sell any Shares to
the Company under this Agreement and fails or refuses to deliver on a
timely basis duly endorsed certificates representing any of the Shares
to be sold to the Company, the Company may elect (a) to establish a
segregated account to receive the payments, such account to be turned
over to the Purchaser upon delivery of the certificates representing
such Shares, and (b) immediately to take such action as is appropriate
to transfer record title of such Shares from the Purchaser to the
Company and treat the Purchaser and such Shares in all respects as if
delivery of the certificates representing such Shares had been made as
required by this Agreement and to treat such Shares on the books of the
Company as if
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surrendered and any obligation represented by such shares null and void
and no longer binding. The Purchaser hereby irrevocably grants the
Company a power of attorney for the purpose of effecting the foregoing.
(b) Notwithstanding the foregoing, for good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, upon the triggering of the Company's right to purchase
any or all of the Shares under this Agreement, the Purchaser hereby
makes, constitutes and appoints the Company, or such other designee of
the Company, to act as their proxy and attorney-in-fact for the purpose
of effectuating the transactions contemplated by this Agreement. This
irrevocable proxy and power of attorney are given to the Company in
consideration of, and in order to carry out the terms of this
Agreement. This proxy and power of attorney are coupled with an
interest and shall not be revocable or revoked by the Purchaser for any
reason.
(c) The Purchaser expressly agrees with the Company that
the Company will be irreparably damaged if this Agreement is not
specifically enforced. Upon a breach or threatened breach of the terms,
covenants and/or conditions of this Agreement by the Purchaser, the
Company, in addition to all other remedies, shall be entitled to a
temporary or permanent injunction, without showing any actual damage,
and/or a decree for specific performance, in accordance with the
provisions hereof.
(d) Subject to the terms hereof, Purchaser shall have all
the rights of a shareholder with respect to the Unvested Shares while
they are subject to this Agreement, including without limitation, the
right to vote the Unvested Shares and receive any cash dividends
declared thereon. If, from time to time while the Purchaser is holding
Unvested Shares, there is any stock dividend, stock split or other
change in the Shares, any and all new, substituted or additional
securities to which Purchaser is entitled by reason of her, his or its
ownership of the Unvested Shares shall be immediately subject to this
Agreement and included thereafter as "Shares," or "Unvested Shares," as
the case may be, for purposes of this Agreement and the Company's
purchase rights.
10. ADJUSTMENTS FOR CHANGES IN CAPITAL STRUCTURE. If there shall
be any change in the Class A Common Stock of the Company through merger,
consolidation, reorganization, recapitalization, stock dividend, stock split,
combination or exchange of shares, or the like, the number of Shares shall be
appropriately increased or decreased proportionately to reflect such change and
the restrictions contained in Sections 5, 7 and 8 shall apply with equal force
to additional and/or substitute securities, if any, received by the Purchaser in
exchange for, or by virtue of her, his or its ownership of, the Shares, except
as otherwise determined by the Board of Directors of the Company.
11. TERMINATION OF RESTRICTIONS. The restrictions on transfer
contained in Section 5(a) shall expire as to Shares, and the Company's Right of
First Refusal set forth in Section 7 and the Company's Repurchase Right set
forth in Section 8 shall expire as to the Vested Shares, on the earliest to
occur of (i) the tenth anniversary of the date of this Agreement, (ii) a
distribution to the public of shares of common stock of the Company for an
aggregate
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public offering price of at least $10 million pursuant to an effective
registration statement filed under the Securities Act or any successor statute,
or (iii) the occurrence of an Acquisition (as defined in the Plan).
12. LOCK-UP AGREEMENT. The Purchaser agrees that in connection
with an underwritten public offering of Class A Common Stock, upon the request
of the Company or the principal underwriter managing such public offering, the
Shares may not be sold, offered for sale or otherwise disposed of without the
prior written consent of the Company or such underwriter, as the case may be,
for at least 270 days after the effectiveness of the registration statement
filed in connection with such offering, or such longer period of time as the
Board of Directors may determine if all of the Company's directors and officers
agree to be similarly bound. The obligations under this Section 12 shall remain
effective for all underwritten public offerings with respect to which the
Company has filed a registration statement on or before the date five (5) years
after the closing of the Company's initial public offering, provided, however,
that this Section 12 shall cease to apply to any Share sold to the public
pursuant to an effective registration statement or an exemption from the
registration requirements of the Securities Act in a transaction that complied
with the terms of this Agreement.
13. NO OBLIGATION TO CONTINUE BUSINESS RELATIONSHIP. Neither the
Plan, this Agreement, nor the award of the Shares imposes any obligation on the
Company or any Related Corporation to continue the Business Relationship with
the Purchaser.
14. ARBITRATION. Any dispute, controversy, or claim arising out
of, in connection with, or relating to the performance of this Agreement or its
termination shall be settled by arbitration in the Commonwealth of
Massachusetts, pursuant to the rules then obtaining of the American Arbitration
Association. Any award shall be final, binding and conclusive upon the parties
and a judgment rendered thereon may be entered in any court having jurisdiction
thereof.
15. PROVISION OF DOCUMENTATION TO PURCHASER. By signing this
Agreement the Purchaser acknowledges receipt of a copy of this Agreement and a
copy of the Plan.
16. MISCELLANEOUS.
(a) NOTICES. All notices hereunder shall be in writing
and shall be deemed given when sent by certified or registered mail,
postage prepaid, return receipt requested, to the address set forth
below. The addresses for such notices may be changed from time to time
by written notice given in the manner provided for herein.
(b) ENTIRE AGREEMENT; MODIFICATION. This Agreement
constitutes the entire agreement between the parties relative to the
subject matter hereof, and supersedes all proposals, written or oral,
and all other communications between the parties relating to the
subject matter of this Agreement. This Agreement may be modified,
amended or rescinded only by a written agreement executed by both
parties.
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(c) SEVERABILITY. The invalidity, illegality or
unenforceability of any provision of this Agreement shall in no way
affect the validity, legality or enforceability of any other provision.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
(e) GOVERNING LAW. This Agreement shall be governed by
and interpreted in accordance with the laws of the Commonwealth of
Massachusetts, without giving effect to the principles of the conflicts
of laws thereof.
[17. ACCELERATION OF VESTING OF SHARES FOR BUSINESS COMBINATIONS.
Upon an Acquisition (as defined in the Plan), all of the Shares shall,
immediately prior to the consummation of such Acquisition, become Vested Shares;
provided, however, that the Board of Directors, in its sole discretion, may
require that the Purchaser's rights under this section shall be conditioned on
approval by shareholders of the Company in accordance with Section 280G(b)(5)(B)
of the Code and regulations thereunder.]
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IN WITNESS WHEREOF, the Company and the Purchaser have caused this
instrument to be executed as of the date first above written.
PURCHASER ATLANTIC DATA SERVICES, INC.
Xxx Xxxxxxxxxxxx Xxxx
Xxxxxx, XX 00000
____________________________________
PURCHASER
____________________________________ By:________________________________
Street Address
___________________________________
____________________________________ Title
City State Zip Code
