EXHIBIT 10.16
RESTRICTED STOCK AGREEMENT
THE RESTRICTED STOCK AGREEMENT (the "RESTRICTED STOCK AGREEMENT") is
made as of July 22, 1997, between AnswerThink Consulting Group, Inc., a Florida
corporation (the "COMPANY"), and Xxxx X. San Xxxxxx ("HOLDER").
1. SALE OF SHARES. The Company agrees to sell Holder 320,000
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shares of the Company's common stock, par value $.01 per share (the "COMMON
STOCK"), at a price of $.0025 per share (the "PURCHASE PRICE"), such shares
being issued pursuant to and subject to the restrictions described in the
Restricted Stock Plan (the "PLAN"). The Holder hereby acknowledges receipt of a
copy of the Plan and agrees to be bound by all of the terms and conditions
herein and therein. All of such shares of Common Stock purchased by Holder under
this Restricted Stock Agreement are subject to such restrictions under the
Restricted Stock Plan and are referred to herein and therein as "RESTRICTED
SHARES."
2. CERTIFICATES. Upon each Holder's purchase of Restricted Shares,
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the Company will deliver to Holder the certificates representing such Restricted
Shares, and Holder will deliver to the Company a check or wire transfer of funds
in the aggregate amount of the Purchase Price.
3. TAX ELECTION. Within 30 days after Holder purchases Restricted
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Shares, Holder will make an effective election with the Internal Revenue Service
under Section 83(b) of the Internal Revenue Code and the regulations promulgated
thereunder in the form attached hereto.
4. REPRESENTATIONS. In connection with the purchase and sale of the
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Restricted Shares hereunder, Holder represents and warrants to the Company that:
(i) The Restricted Shares to be acquired by Holder
pursuant to this Restricted Stock Agreement will be acquired for
Holders own account and not with a view to, or intention of,
distribution thereof in violation of the Securities Act of 1933, as
amended (the "SECURITIES ACT"), or any applicable state securities
laws, and the Restricted Shares will not be disposed of in
contravention of the Securities Act or any applicable state securities
laws.
(ii) Holder is a sophisticated investor for purposes of
applicable foreign and U.S. federal and state securities laws and
regulations and is able to evaluate the risks and benefits of the
investment in the Restricted Shares.
(iii) Holder is able to bear the economic risk of such
Holder's investment in the Restricted Shares for an indefinite period
of time because the Restricted Shares have not been registered under
the Securities Act and, therefore, cannot be sold unless subsequently
registered under the Securities Act or an exemption from such
registration is available.
(iv) Holder has had an opportunity to ask questions and
receive answers concerning the terms and conditions of the offering of
Restricted Shares and has had full access to such other information
concerning the Company as such Holder has requested.
(v) This Restricted Stock Agreement constitutes the legal,
valid and binding obligation of Holder, enforceable in accordance with
its terms, and the execution, delivery and performance of this
Restricted Stock Agreement and such other agreements by Holder does
not and, to the knowledge of Holder, will not conflict with, violate
or cause a breach of any agreement, contract or instrument to which
Holder is a party (including, but not limited to, any agreement
referred to in clause (vi) below) or any judgment, order or decree to
which Holder is subject and Holder further represents and warrants
that Holder believes that Holder is not now in breach of any such
agreement, contract or instrument to which Holder is a party.
(vi) Holder is not a party to or bound by ,any other
employment agreement, noncompete agreement or confidentiality
agreement that would be breached by such Holder's relationship with
the Company.
5. VESTING OF RESTRICTED SHARES.
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(a) Except as otherwise provided in Sections 5(b) and (c) below,
all of the Restricted Shares purchased pursuant to the Plan (the "TIME VESTING
COMMON STOCK") will become vested only in accordance with the following schedule
(the "VESTING SCHEDULE") and as long as such Holder is still employed by the
Company as of each dated indicated:
Cumulative Percentage of
Date Restricted Shares to be Vested
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"TIER I"
2nd Anniversary of the date of purchase 50%
3rd Anniversary of the date of purchase 75%
4th Anniversary of the date of purchase 100%
"TIER II"
3rd Anniversary of the date of purchase 50%
4th Anniversary of the date of purchase 75%
5th Anniversary of the date of purchase 100%
"TIER III"
4th Anniversary of the date of purchase 50%
5th Anniversary of the date of purchase 75%
6th Anniversary of the date of purchase 100%
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FIFTY PERCENT (50%), TWENTY-FIVE PERCENT (25%), AND TWENTY-FIVE
PERCENT (25%) OF THE TOTAL AMOUNT OF RESTRICTED SHARES PURCHASED HEREUNDER SHALL
BE SUBJECT TO TIER I, TIER II, AND TIER III, RESPECTIVELY.
(b) Immediately prior to the occurrence of a Sale of the
Company, if as of such time Holder is still employed by the Company, all
Restricted Shares which have not yet become vested shall be deemed vested at the
time of such event.
(c) If the Holder's employment with the Company is terminated
without Cause, shares which are Unvested Restricted Shares shall become Vested
Restricted Shares as of the date of termination of employment in an amount equal
to the daily pro rata share to be vested in accordance with the above Vesting
Schedule, with a minimum amount equal to 50% of the Restricted Shares to be
Vested on the fourth Anniversary of the date of purchase. "CAUSE" shall mean (i)
the commission of a felony or a crime involving moral turpitude or the
commission of any other act or omission involving dishonesty or fraud with
respect to the Company or any of their customers or suppliers, (ii) conduct
tending to bring the Company into substantial public disgrace or disrepute,
(iii) substantial and repeated failure to perform duties of the office held by
Employee as reasonably directed by the Board and such failure is not cured
within 30 days after Employee received notice thereof from the Board, (iv) gross
negligence or willful misconduct with respect to the Company or (v) any breach
of Sections 10 or 11 of this Plan.
(d) All Restricted Shares, whether vested or unvested, shall be
deemed outstanding shares of Common Stock and the Holder thereof shall have all
rights with respect thereto as set forth in the Articles of Incorporation and
By-laws of the Company and under applicable laws of the State of Florida.
6. EFFECT ON EMPLOYMENT RELATIONSHIP. As an inducement to the
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Company to issue the Restricted Shares to Holder, and as a condition thereto,
Holder acknowledges and agrees that neither the issuance of the Restricted
Shares to Holder nor any provision contained herein shall entitle Holder to
remain in the employment of the Company.
7. DEFINED TERMS. Certain definitions are set forth in Section 2 of
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the Plan and, where applicable, are incorporated by reference herein.
8. CHOICE OF LAW. The corporate law of the State of Florida will
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govern all questions concerning the relative rights of the Company and its
shareholders. All other questions concerning the construction, validity and
interpretation of this Restricted Stock Agreement hereto will be governed by and
construed in accordance with the laws of the State of Florida without giving
effect to any choice of law or conflict of law provision or rule (whether of the
State of Florida or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of Florida
9. AMENDMENT AND WAIVER. The provisions of this Restricted Stock
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Agreement may be amended and waived only with the prior written consent of the
Company and the Holder.
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10. SEVERABILITY. Whenever possible, each provision of this
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Restricted Stock Agreement will be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Restricted Stock
Agreement is held to be invalid, illegal or unenforceable in any respect under
any applicable law or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or any other jurisdiction,
but this Restricted Stock Agreement will be reformed, construed and enforced in
such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained, herein.
11. COMPLETE AGREEMENT. This Restricted Stock Agreement and those
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agreements and documents expressly referred to herein embody the complete
agreement and understanding among the parties and supersede and preempt any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
Holder hereby releases the Company and its affiliates and its and their
predecessors from any obligation or liability the Company or any of its
affiliates or its or their predecessors owes or owed to Holder or any of his
affiliates and related persons prior to the date hereof.
12. INTERPRETATION. The Holder accepts this Restricted Stock
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Agreement subject to all the terms and provisions of the Plan and this
Restricted Stock Agreement. The undersigned Holder hereby accepts as binding,
conclusive and final all decisions or interpretations of the Board of Directors
of the Company upon any questions arising under the Plan and this Restricted
Stock Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Restricted Stock
Agreement on the date first written above.
ANSWER THINK CONSULTING GROUP, INC.
By: /s/ Xxx X. Xxxxxxxxx
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Xxx X. Xxxxxxxxx
Chief Executive Officer and
President
Agreed and Accepted:
By: /s/ Xxxx X. San Xxxxxx
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Xxxx X. San Xxxxxx
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