1
EXHIBIT 10.13
CONVERGENT GROUP CORPORATION
RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT ("Agreement") is made as of the 29th
day of October, 1999 between CONVERGENT GROUP CORPORATION, a Delaware
corporation (the "Company"), and XXXX BLEND ("Blend"), a member of the board of
directors of the Company (the "Board").
RECITAL
WHEREAS, the Company desires to provide Blend with an added incentive
to continue his services to the Company, and through a proprietary interest, to
increase his participation in the success of the Company.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth and for other good and valuable consideration, the parties hereto have
agreed, and do hereby agree, as follows:
1. Issuance of Restricted Stock. Subject to the terms and conditions
set forth below, the Company hereby grants and issues to Blend, as compensation
for services, and Blend accepts from the Company, a total of 755,420 shares of
Common Stock of the Company, par value $0.001 per share (the "Shares").
2. Vesting Period of Restricted Stock. The Shares shall be subject to
the restrictions set forth in Section 3 until such time as the Shares have
become vested as provided herein. The Shares shall become vested at the rate of
94,427.5 Shares per calendar quarter on the last day of each such quarter,
commencing September 30, 1999; provided, however, that with respect to any such
date, Blend has been a member of the Board in continuous service through such
date.
3. Nature of Restrictions. Shares which have not yet vested as set
forth in Section 2 (the "Restricted Shares") shall not be sold, assigned,
pledged, or otherwise transferred or encumbered, whether voluntarily,
involuntarily, or by operation of law, except with the prior written approval of
the Company and subject to the transferee's acceptance of the terms and
conditions of this Agreement. Any attempt to sell, assign, pledge, transfer or
encumber the Restricted Shares contrary to the provisions hereof, and any levy
of any attachment or similar process upon the Restricted Shares, shall be null
and void. The Company shall not recognize or give effect to any such transfers
or encumbrances on its books and records nor recognize the person or persons to
whom such purported transfer has been made as the legal or beneficial owner of
the Restricted Shares.
2
4. Effect of Termination of Service as a Member of the Board. In the
event Blend's service as a member of the Board is terminated either (a) by the
Company for Cause (as defined below), or (b) by Blend voluntarily, the
Restricted Shares shall be immediately forfeited to the Company, without payment
therefor. In the event of a termination of Blend's service as a member of the
Board for any other reason, all of the Restricted Shares shall become fully
vested immediately upon such termination. In the event of Blend's death or
disability prior to the end of the vesting period set forth in Section 2, the
Company may, in its sole discretion, waive in whole or in part any or all
remaining restrictions with respect to Blend's Shares. For purposes of this
Section 4, "Cause" shall mean any one of the following: (i) the commission of a
crime involving fraud, theft or dishonesty by Blend; (ii) Blend's willful
misconduct in carrying out his position and duties; (iii) conduct of a nature
that would materially discredit the Company or any of its subsidiaries or
affiliates were the Company to continue to retain the services of Blend; (iv)
the continued use of alcohol or drugs by Blend to an extent that, in the good
faith determination of the majority of the other members of the Board, such use
materially interferes in any manner with the performance of Blend's duties and
responsibilities; or (v) the violation of any law (including the Foreign Corrupt
Practices Act of 1977, but excluding misdemeanor traffic or other similar
violations).
5. Deposit of Certificates. The stock certificate or certificates
representing the Restricted Shares shall be registered in the name of Blend but
shall remain in the custody of the Company. Blend shall deposit with the Company
stock powers or other instruments of assignment, each endorsed in blank, so as
to permit retransfer to the Company of all or a portion of the Restricted Shares
that shall be forfeited in accordance with this Agreement. As soon as
practicable after September 30 of each year or after the termination of Blend's
service as a member of the Board, and subject to the provisions of Sections 8
and 11, the Company shall issue or transfer to Blend the vested Shares and shall
deliver to Blend a certificate or certificates therefor, registered in Blend's
name.
6. Service as Member of the Board by Blend. Nothing in this Agreement
shall be construed as constituting a commitment, guaranty, agreement, or
understanding of any kind or nature that Blend shall remain a member of the
Board, and this Agreement shall not affect in any way the right of the
shareholders to terminate the service of Blend at any time.
7. Changes in Capital Structure of the Company. If there is any change,
increase or decrease, in the outstanding shares of the Company's Common Stock
which is effected without receipt of additional consideration by the Company, by
reason of a stock dividend, stock split, recapitalization, merger,
consolidation, combination or exchange of stock, or other similar circumstances,
or if there is a spin-off or other distribution of assets to the Company's
stockholders, the Company shall make an appropriate adjustment in the aggregate
number of Shares which then constitute Restricted Shares and the number of
Shares which vest per month as set forth in Section 2. Such adjustment shall be
identical to the adjustment made generally with respect to outstanding shares of
the Company's Common Stock. Any additional securities or other property issued
to Blend as a result of any of the foregoing events shall continue to be subject
to the terms of this Agreement to the same extent as the Shares giving rise to
the right to receive such additional securities or other property.
2
3
8. Withholding. Blend shall reimburse the Company, in cash or by
certified or bank cashier's check, within ten days after (i) the making of an
election under Section 83(b) of the Internal Revenue Code of 1986, as amended,
or (ii) the vesting of any Restricted Shares, for federal, state or local taxes
required by law to be withheld, if any. The Company shall have the right to
deduct from any payments to be made to Blend any federal, state or local taxes
required by law to be so withheld, if any. The Company's obligation to deliver a
certificate representing the Shares following vesting shall be subject to the
payment by Blend of any applicable federal, state and local withholding tax.
9. Rights of Stockholder. Subject to the terms and provisions of this
Agreement, Blend shall have all the rights of a stockholder of the Company with
respect to the Shares, including the right to vote the Shares and to receive all
cash dividends or, subject to the last sentence of Section 8, other
distributions paid or made with respect to the Shares.
10. Legends. Certificates representing shares of Restricted Stock shall
bear the following legend:
NOTICE OF RESTRICTIONS ON TRANSFER
THIS CERTIFICATE AND THE SHARES OF STOCK REPRESENTED HEREBY
ARE SUBJECT TO THE PROVISIONS OF A RESTRICTED STOCK AGREEMENT,
WHEREBY THE TRANSFER IN ANY MANNER OF SUCH SHARES OF STOCK OR
ANY INTEREST THEREIN IS RESTRICTED AND THE SHARES OF STOCK ARE
SUBJECT TO FORFEITURE. A COPY OF SAID AGREEMENT IS ON FILE AT
THE REGISTERED OFFICE OF THE COMPANY WHERE IT MAY BE
INSPECTED.
To the extent that restrictions on the Restricted Shares have lapsed,
certificates bearing the legend provided for herein may be submitted to the
Company, and the Company shall reissue such certificates free of such legend.
Certificates representing Restricted Shares and Common Stock acquired upon
vesting of the Restricted Shares may contain such further legends and transfer
restrictions as the Company shall deem reasonably necessary or desirable,
including, without limitation, legends restricting transfer until there has been
compliance with federal and state securities laws.
11. Stock Restriction Agreement. Concurrent with the execution of this
Agreement, Grantee shall execute and deliver to the Company the Agreement to be
Bound by Stockholders' Agreement in substantially the form attached to this
Agreement as Exhibit A. Execution and delivery of such Agreement shall be a
condition precedent to the right to receive the Restricted Shares.
3
4
12. Lock-Up. In connection with the first two underwritten registered
offerings of any securities of the Company under Securities Act of 1933, as
amended (including any successor statute, the "1933 Act"), Blend will not sell
or otherwise transfer or dispose of any Shares, or any other shares of Common
Stock which are acquired by Blend, during such period following the effective
date of the registration statement of the Company filed under the 1933 Act as
may be requested by the Company or the representative of the underwriters for
the Company, not to exceed 180 days; provided, however, that such restriction
shall apply only if the executive officers and directors of the Company agree
with the representatives of the underwriters not to transfer shares of Common
Stock owned by them for the same or a greater period. The Company may impose
stop-transfer instructions with respect to securities subject to the foregoing
restrictions until the end of such period. Blend shall cause any subsequent
transferee in a private sale of all or any portion of the Shares or any other
shares of Common Stock acquired by Blend to be bound by the restrictions of this
Section.
13. Entire Agreement; Amendments. This Agreement embodies the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and understandings, oral or written, with
respect thereto. This Agreement may not be modified orally, but only by an
agreement in writing signed by the party or parties against whom any waiver,
change, amendment, modification or discharge may be sought to be enforced.
14. Notices. All notices or other communications which are required to
be given or may be given to the parties pursuant to the terms of this Agreement
shall be sufficient in all respects if given in writing and delivered personally
or by registered or certified mail, postage prepaid, addressed: (i) if to the
Company, to the principal executive office of the Company to the attention of
the Secretary, and (ii) if to Blend, to the address of Blend as reflected in the
records of the Company. Notice shall be deemed given on the date of delivery in
the case of personal delivery or on the delivery or refusal date as specified on
the return receipt in the case of registered or certified mail.
15. Binding Effect. This Agreement shall be binding upon the heirs,
executors, administrators and successors of the parties hereto.
16. Governing Law. The parties hereby agree that this Agreement shall
be construed in accordance with the laws of the State of Colorado, without
giving effect to any choice of law or conflict of law provision or rule (whether
of the State of Colorado or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Colorado.
4
5
17. Invalid or Unenforceable Provisions. The invalidity or
unenforceability of any particular provisions of this Agreement shall not affect
the other provisions, and this Agreement shall be construed in all respects as
if that invalid or unenforceable provision were omitted.
18. Investment Intent. Blend, by signing below, hereby acknowledges
that he is acquiring the Shares for investment and not for distribution and that
he has no present intention of selling or transferring the Shares as the
restrictions described herein lapse. Blend agrees that he will not transfer,
sell or offer for sale any of the Shares unless (i) there is an effective
registration or other qualification relating thereto under the Securities Act of
1933 or any applicable state securities laws (the "Acts") or (ii) he delivers to
the Company an opinion of counsel, satisfactory to the Company, that such
registration or other qualification under the Acts is not required in connection
with such transfer, sale or offer.
IN WITNESS WHEREOF, the Company and Blend have executed this Agreement
as of the day and year first above written.
CONVERGENT GROUP CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxxx, Xx.
-------------------------------------
Name:
-----------------------------------
Its:
------------------------------------
BLEND:
/s/ Xxxx Blend
----------------------------------------
Xxxx Blend
5
