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EXHIBIT 10.16
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT, made effective as of this ______ day of
_______________________, 19___, by and between Ciprico, Inc., a Delaware
corporation (the "Company"), and _______________________________________
("Participant").
W I T N E S S E T H:
WHEREAS, the Participant on the date hereof is an officer or employee
of the Company; and
WHEREAS, the Company has adopted the Ciprico, Inc. 1996 Restricted
Stock Plan (the "Plan") and wishes to grant the Participant a restricted stock
award pursuant to the Plan; and
WHEREAS, the Company's Board of Directors has authorized the grant of
a restricted stock award for ____________________________ shares
of the Company's Common Stock ("Stock") to the Participant;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
1. GRANT OF RESTRICTED STOCK AWARD. The Company hereby grants to
Participant on the date set forth above a restricted stock award (the "Award")
for ______________________________________________ (________________) shares of
Stock on the terms and conditions set forth herein, and subject to adjustment
pursuant to Section 11 of the Plan. The Company shall cause to be issued a
stock certificate representing such shares of Stock in the Participant's name,
and shall deliver such certificate to the Participant; provided, however, that
the Company shall place a legend on such certificate describing the risks of
forfeiture and other transfer restrictions set forth in this Agreement and
providing for the cancellation and return of such certificate if such shares of
Stock are forfeited as provided in Section 2 below. Until such risks of
forfeiture have lapsed or the shares subject to this Award have been forfeited
pursuant to Section 2 below, the Participant shall be entitled to vote the
shares represented by such stock certificates and shall receive all dividends
attributable to such shares, but the Participant shall not have any other
rights as a shareholder with respect to such shares.
2. VESTING OF RESTRICTED STOCK.
a. The shares of Stock subject to this Award shall
remain forfeitable until the second anniversary of the date of the Award (the
"vesting date"). If the Participant's employment with the Company is
terminated for any reason, including the Participant's voluntary resignation or
retirement but excluding termination by the Company without "cause," at any
time prior to the vesting date for the Award, the Participant shall immediately
forfeit all shares of Stock subject to this Award. If the Participant's
employment is terminated by the Company without "cause" prior to the vesting
date for this Award, all risks of forfeiture on the shares of Stock subject to
this Award shall immediately lapse.
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b. For purposes of Section 2(a), the Participant shall
be terminated for "cause" if the termination results from any of the following
events:
(i) The Participant's conviction of a felony
under federal or state law, any act of
dishonesty or disloyalty (including, but not
limited to, the willful misappropriation of
the Company's funds), or the commission of
any act involving moral turpitude;
(ii) The Participant's willful and material breach
of the Company's policies or the
Participant's willful and material failure,
neglect or refusal to perform any of the
duties that may be assigned to him from time
to time by mutual agreement of the parties;
or
(iii) The Participant's willful misconduct that:
(A) materially and adversely effects the
reputation of the Company's business, (B) is
contrary to the best interests of the
Company, or (C) conflicts with or is
competitive with the business activities of
the Company;
provided, however, that an act or failure to act by the Participant shall not
be "willful" unless it is done, or omitted to be done, in bad faith and without
any reasonable belief that the Participant's action or omission was in the best
interests of the Company. With respect to the events listed in clause (ii) or
(iii) the Participant's employment shall not be deemed to have been terminated
for cause unless and until the Company provides the Participant with a written
notice that describes in detail the conduct supporting such termination for
cause and that grants the Participant a period of at least ten (10) days from
the date of such notice to take whatever steps are necessary to discontinue the
conduct described therein or to correct the effects of the Participant's prior
conduct to the satisfaction of the Company. If the Participant fails to
discontinue such conduct described in such written notice or cannot correct the
effects of such prior conduct within such ten-day period, the Participant's
employment shall immediately terminate upon the expiration of such ten-day
period, and such termination shall be deemed to be for cause.
3. CHANGE OF CONTROL. Notwithstanding anything in this Agreement
to the contrary, all risks of forfeiture applicable to this Award shall
immediately lapse upon a "change of control" as provided in Section 10 of the
Plan.
4. GENERAL PROVISIONS.
a. Employment. This Agreement shall not confer on the
Participant any right with respect to continuance of employment by the Company,
nor will it interfere in any way with the right of the Company to terminate
such employment.
b. Securities Law Compliance. The Participant shall not
transfer or otherwise dispose of the shares of Stock received pursuant to this
Award until such time as counsel to the Company shall have determined that such
transfer or other disposition will not violate any state or federal securities
or other laws. The Participant may be required by the Company, as a condition
of the effectiveness of this Award, to agree in writing that all Stock subject
to this Award shall be held, until such time that such Stock is registered and
freely tradable under
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applicable state and federal securities laws, for the Participant's own account
without a view to any further distribution thereof, that the certificates for
such shares shall bear an appropriate legend to that effect and that such
shares will be not transferred or disposed of except in compliance with
applicable state and federal securities laws.
c. Mergers, Recapitalizations, Stock Splits, Etc.
Pursuant and subject to Section 11 of the Plan, certain changes in the number
or character of the Stock of the Company (through sale, merger, consolidation,
exchange, reorganization, divestiture (including a spin-off), liquidation,
recapitalization, stock split, stock dividend or otherwise) shall result in an
adjustment, reduction or enlargement, as appropriate, in the number of shares
subject to this Award. Additional shares which may be credited pursuant to
such adjustment shall be subject to the same restrictions as are applicable to
the shares with respect to which the adjustment relates.
d. Shares Reserved. The Company shall at all times
during the term of the this Award reserve and keep available such number of
shares as will be sufficient to satisfy the requirements of this Agreement.
e. Withholding Taxes. In order to provide the Company
with the opportunity to claim the benefit of any income tax deduction which may
be available to it as from the grant of this Award and to permit the Company to
comply with all applicable federal or state income tax laws or regulations, the
Company may take such action as it deems appropriate to insure that, if
necessary, all applicable federal or state payroll, income or other taxes are
withheld from any amounts payable by the Company to the Participant. If the
Company is unable to withhold such federal and state taxes, for whatever
reason, the Participant hereby agrees to pay to the Company an amount equal to
the amount the Company would otherwise be required to withhold under federal or
state law prior to the transfer of any certificates for the shares of Stock
subject to this Award.
The Participant may, subject to the discretion of the
Board or the Committee, as the case may be, and such other administrative rules
it may deem advisable, elect to have all or a portion of such tax withholding
obligations satisfied by delivering previously-acquired shares of Stock,
including shares received pursuant to a restricted stock award on which the
risks of forfeiture have lapsed, such shares having a fair market value, as of
the date the amount of tax to be withheld is determined under applicable tax
law, equal to such obligations. Such election shall comply with such rules as
may be adopted by the Board or the Committee to assure compliance with Rule
16b-3, or any successor provision, as then in effect, of the General Rules and
Regulations under the Securities Exchange Act of 1934, if applicable.
For purposes of this Section 4(e), the "fair market
value" of the Stock shall mean the last sale price of such stock as reported by
Nasdaq on the relevant date or, if no sale of such stock shall have occurred on
that date, on the next preceding day on which there was a sale of such stock.
f. Amendment; Waiver. This Agreement may not be
modified, amended or waived in any manner except by an instrument in writing
signed by both parties hereto. The waiver by either party of compliance with
any provision of this Agreement by the other party
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shall not operate or be construed as a waiver of any other provision of this
Agreement, or of any subsequent breach by such party of a provision of this
Agreement.
g. Supersedes Previous Agreements. This Agreement supersedes
all prior or contemporaneous negotiations, commitments, agreements (written or
oral) and writings between the Company and the Participant with respect to the
subject matter hereof. All such other negotiations, commitments, agreements
and writings will have no further force or effect, and the parties to any such
other negotiation, commitment, agreement or writing will have no further rights
or obligations thereunder.
h. Governing Law. All matters affecting this Agreement,
including the validity thereof, are to be governed by, interpreted and
construed in accordance with the laws of the State of Minnesota.
i. Notices. Any notice hereunder by either party to
the other shall be given in writing by personal delivery, by telecopy (with
confirmation of transmission) or by certified mail, return receipt requested.
If addressed to the Participant, the notice shall be delivered or mailed to the
Participant at the address specified under the Participant's signature hereto,
or if addressed to the Company, the notice shall be delivered or mailed to the
Company at its executive offices to the attention of its Vice President. A
notice shall be deemed given, if by personal delivery or by telecopy, on the
date of such delivery or, if by certified mail, on the date shown on the
applicable return receipt.
j. Headings. The headings of Sections and paragraphs
herein are included solely for convenience of reference and shall not control
the meaning or interpretation of any of the provisions of this Agreement.
k. Scope of Agreement. This Agreement shall bind and
inure to the benefit of the Company and its successors and assigns and of the
Participant and his successors.
l. Arbitration. Any dispute arising out of or relating
to this Agreement or the alleged breach of it, or the making of this Agreement,
including claims of fraud in the inducement, shall be discussed between the
disputing parties in a good faith effort to arrive at a mutual settlement of
any such controversy. If, notwithstanding, such dispute cannot be resolved,
such dispute shall be settled by binding arbitration. Judgment upon the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The arbitrator shall be a retired state or federal judge or an
attorney who has practiced securities or business litigation for at least 10
years. If the parties cannot agree on an arbitrator within 20 days, any party
may request that the chief judge of the District Court for Hennepin County,
Minnesota, select an arbitrator. Arbitration will be conducted pursuant to the
provisions of this Agreement, and the commercial arbitration rules of the
American Arbitration Association, unless such rules are inconsistent with the
provisions of this Agreement. Limited civil discovery shall be permitted for
the production of documents and taking of depositions. Unresolved discovery
disputes may be brought to the attention of the arbitrator who may dispose of
such dispute. The arbitrator shall have the authority to award any remedy or
relief that a court of this state could order or grant; provided, however, that
punitive or exemplary damages shall not be awarded. The arbitrator may award
to the prevailing party, if any, as determined by the arbitrator, all of
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its costs and fees, including the arbitrator's fees, administrative fees,
travel expenses, out-of-pocket expenses and reasonable attorneys' fees.
Unless otherwise agreed by the parties, the place of any arbitration
proceedings shall be Hennepin County, Minnesota.
m. 1996 RESTRICTED STOCK PLAN. This Award evidenced by
this Agreement is granted pursuant to the Plan, a copy of which Plan has been
made available to the Participant and is hereby incorporated into this
Agreement. This Agreement is subject to and in all respects limited and
conditioned as provided in the Plan. All defined terms of the Plan shall have
the same meaning when used in this Agreement. The Plan governs this Award and,
in the event of any questions as to the construction of this Agreement or in
the event of a conflict between the Plan and this Agreement, the Plan shall
govern, except as the Plan otherwise provides.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed on the day and year first above written.
CIPRICO, INC.
By:______________________________
Its:__________________________
_________________________________
Participant
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