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12/22/95
EXHIBIT 10.34
XXXXXX X. XXXXXXXX
RESTRICTED STOCK
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT, dated as of December 22, 1995, is by and between Xxxxx Systems
Corporation ("Xxxxx Systems"), a Delaware corporation and Xxxxxx X. Xxxxxxxx
("Participant").
WITNESSETH:
WHEREAS, Xxxxx Systems has adopted the Xxxxx Systems Corporation Restricted
Stock Plan (the "Plan") to enable employees of Xxxxx Systems and its
subsidiaries to acquire shares of Common Stock, $0.01 par value, of Xxxxx
Systems ("Common Stock") in accordance with the provisions of the Plan; and
WHEREAS, the Restricted Stock Committee of Xxxxx Systems (the "Committee") has
selected Participant to participate in the Plan and granted Participant the
right to purchase shares of Common Stock in accordance with the terms and
conditions of this Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the mutual promises
and other terms and conditions set forth in this Agreement, Xxxxx Systems and
Participant agree as follows:
1. Purchase and Sale. Subject to the terms, conditions, and restrictions
set forth in this Agreement, Xxxxx Systems hereby sells to
Participant, and Participant hereby purchases from Xxxxx Systems, for
a purchase price of $1.75 per share payable contemporaneously with the
execution hereof, 200,000 shares of Common Stock (such shares,
together with any successor security, property or cash issued or
distributed by Xxxxx Systems or any successor entity, whether by way
of merger, consolidation, share exchange, reorganization, liquidation,
recapitalization, dividend or otherwise on such shares, the
"Restricted Stock").
2. Stock Repurchase.
(a) Subject to Section 2(e) below, if (A) Participant
voluntarily resigns from his position as a Director of Xxxxx Systems
and if Participant and Xxxxx Systems do not reach a mutually agreeable
arrangement for Participant to remain with Xxxxx Systems or (B) the
SBC Event has not occurred by September 1, 1996 (the first such event
to occur the "Repurchase Event"), Xxxxx Systems shall have the right
to repurchase from the Buyer the Unvested Stock (as defined below) for
the Repurchase Amount (as defined below) (the "Repurchase").
(b) Upon the occurrence of the Repurchase Event, Xxxxx
Systems shall have 30 days to give written notice (the "Repurchase
Notice") to the Buyer of Xxxxx Systems' decision to cause the
Repurchase. The Repurchase Notice shall state the number of the
Unvested Stock (as defined below). Subject to Section 2(c) below, the
Buyer shall then have 30 days to deliver to Xxxxx Systems stock
certificates representing the number of
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shares of the Unvested Stock in exchange for the payment by Xxxxx
Systems to the Buyer of the Repurchase Amount, with payment to be made
by check or wire transfer of same-day funds.
(d) For purposes of this Section 2, the following terms
shall be defined as set forth below:
(i) "SBC Event" means the occurrence of
both (1) the execution by Xxxxx Systems Corporation or its
subsidiary and Swiss Bank Corporation or its subsidiary of the
SBC Warburg EPI Agreement in substantially the form as
provided in the December 21, 1995 draft, with such changes
thereto as the officer executing the same for Xxxxx Systems
may deem appropriate, such appropriateness to be conclusively
evidenced by such officer's signature thereto, and (2) to the
extent that such SBC Warburg EPI Agreement contains a
provision specifically permitting Swiss Bank Corporation to
unwind such agreement before September 1, 1996 if approval of
the Board of Governors of the Federal Reserve System is not
obtained, then the expiration of such period as provided in
the agreement without such an unwind, or earlier if such
consent is obtained.
(ii) "Repurchase Amount" means the
product of (i) number of the Unvested Stock and (ii) the sum
of $1.75 and interest on such $1.75 at an interest rate of 8%
per annum, compounded annually, and computed from the date of
this Agreement to the date of the Repurchase.
(iii) "Unvested Stock" means a number of
shares of Xxxxx Systems' common stock equal to the product of
(a) 200,000 minus the number of shares of Restricted Stock
purchased hereunder that Participant transfers to affiliates
(who may be affiliated by marriage) of employees or
consultants of Xxxxx Systems or its subsidiaries after the SBC
Event and (b) 1 minus the quotient of the number of full
months that Participant remains as a Director of Xxxxx Systems
commencing on the Effective Date, divided by sixty months,
provided that the number of the Unvested Stock shall never be
less than zero (0).
(iv) "Vested Stock" means the Restricted
Stock minus the Unvested Stock.
(e) Notwithstanding anything in this Section 2 to the
contrary, Participant shall not have voluntarily resigned from Xxxxx
Systems if his decision to resign from Xxxxx Systems (or his inability
to continue to serve Xxxxx Systems in such capacity) is caused by one
or more of the following events:
(i) the death or disability of
Participant or the termination of Participant by Xxxxx Systems
from his position as a Director (and disability shall occur
upon the mental or physical disability of Participant that
will permanently prevent Participant from performing his
duties for Xxxxx Systems);
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(ii) a request to provide full-time
services to the U.S. government or an agency thereof or one
working for such government or agency and after consulting
with Participant, Xxxxx Systems' Board of Directors agrees to
permit Participant to leave his position a Director of Xxxxx
Systems;
(iii) Participant is constructively
terminated from his position, such as being assigned tasks to
perform work not suitable for a Director;
(iv) Xxxxx Systems requests Participant
to relocate from the City of Dallas;
(v) Xxxxx Systems demands excessive
travel from Participant;
(vi) Xxxxx Systems, its Board of
Directors, or one of Xxxxx Systems' officers requests
Participant to engage in any conduct that is not moral or
ethical or in violation of law; or
(vii) the Board of Directors of Xxxxx Systems
makes a major change in corporate policy or has decided that
Xxxxx Systems should engage in a significant corporate
development or transaction and Participant has voted against
such decision or Participant is not present at the meeting
where the decision is made; provided that (a) Participant has
delivered written notice to each of the members of the Board
of Directors within 5 days of the date of the Board decision
(or if Participant is not present at the meeting when the
decision is made, within 5 days of notice from the Board to
him of its decision), requesting the Board to reverse its
decision and informing the Board that he intends to resign
because of such decision and (b) the Board has not reversed
its decision and so informed Participant within 30 days of
the receipt of the notice given by Participant. This provision
will not apply to the refusal by the Board of Directors to
approve a policy, development or transaction recommended by
Participant.
3. Compliance with Securities Laws. Participant hereby represents and
warrants that Participant has acquired the Restricted Stock for
Participant's own account and not with a view to any resale or
distribution thereof. Participant agrees that neither he nor any
subsequent holder of the Restricted Stock will sell or otherwise
transfer any shares of Restricted Stock in any way that may result in
a violation of any federal or state securities laws or regulations.
Participant further acknowledges and agrees that Xxxxx Systems may
require any subsequent purchaser or other transferee of shares of
Restricted Stock that cannot be publicly traded to provide Xxxxx
Systems, prior to such sale or other transfer, with such
representations, commitments and opinions regarding compliance with
applicable securities laws and regulations as Xxxxx Systems may deem
necessary or advisable.
4. Stock Certificate. If requested by Participant, Xxxxx Systems will
issue and deliver to Participant certificates representing any shares
of Vested Stock held by Participant. Xxxxx
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Systems may require that any certificates or other property
representing shares of Unvested Stock remain in the possession of
Xxxxx Systems or an escrow agent designated by the Committee. Each
certificate representing Vested Stock or Unvested Stock shall bear
such legends as the Committee may determine to be necessary or
appropriate. Whether or not certificates representing such shares have
been issued or delivered, Participant shall have all the rights of a
shareholder of Restricted Stock, including voting, dividend and
distribution rights, with respect to all shares of Restricted Stock,
both Vested Stock and Unvested Stock, held by Participant, but any and
all stock and/or cash dividends (other than normal periodic cash
dividends), distributions in property, or other distributions made on
or in respect of the Restricted Stock, whether resulting from a
subdivision, combination or reclassification of the Restricted Stock
of any issuer thereof or received in exchange for Restricted Stock or
any part thereof or as a result of any merger, consolidation,
acquisition or other exchange of assets to which any such issuer may
be a party or otherwise, and any and all cash and other property
received in exchange for the Restricted Stock or received in payment
of the principal of or in redemption of the Restricted Stock (either
at maturity, upon call for redemption or otherwise), shall remain in
the possession of Xxxxx Systems for Unvested Stock.
5. Income Tax Withholding. Participant acknowledges and agrees that
Participant shall, upon request by Xxxxx Systems from time to time,
reimburse Xxxxx Systems for, or Xxxxx Systems may withhold from sums
otherwise payable to Participant, any amounts Xxxxx Systems is
required to remit to applicable taxing authorities as income tax
withholding with respect to the Restricted Stock. If Participant fails
to reimburse Xxxxx Systems for any such amount when requested, Xxxxx
Systems shall have the right to recover that amount by selling
sufficient shares of Participant's Unvested Stock.
6. Compliance with Plan. Participant acknowledges that this Agreement is
entered into, and the Restricted Stock is issued, pursuant to the Plan
and agrees to comply with the provisions of the Plan, as it may be
amended from time to time, to the extent that such provisions are not
inconsistent with the provisions of this Agreement.
7. Notices. Any notice to Xxxxx Systems or Company that is required or
permitted by this Agreement shall be addressed to the attention of the
Secretary of Xxxxx Systems at its principal office. Any notice to
Participant that is required or permitted by this Agreement shall be
addressed to Participant at the most recent address for Participant
reflected in the appropriate records of Xxxxx Systems. Either party
may at any time change its address for notification purposes by giving
the other prior written notice of the new address and the date upon
which it will become effective. Whenever this Agreement requires or
permits any notice from one party to another, the notice must be in
writing to be effective and, if mailed, shall be deemed to have been
given on the third business day after the same is enclosed in an
envelope, addressed to the party to be notified at the appropriate
address, properly stamped, sealed and deposited in the United States
mail, and, if mailed to Xxxxx Systems, by certified mail, return
receipt requested.
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8. Remedies. Xxxxx Systems shall be entitled, in addition to any other
remedies it may have at law or in equity, to temporary and permanent
injunctive and other equitable relief to enforce the provisions of
this Agreement. Any action to enforce the provisions of, or otherwise
relating to, this Agreement may be brought in the appropriate courts
in Dallas, Dallas County, Texas.
9. Assignment. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, personal
representatives, successors, and assigns. However, Participant shall
not, and shall not have the power to, assign this Agreement or any
rights relating to this Agreement without the prior written consent of
Xxxxx Systems. By signing this Agreement, Participant consents to the
personal jurisdiction of such courts in any such action.
10. Attorneys' Fees. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party
shall be entitled to reasonable attorneys' fees, costs, and necessary
disbursements in addition to any other relief to which that party may
be entitled.
11. Severability. If any provision of this Agreement is held invalid or
unenforceable for any reason, the validity and enforceability of all
other provisions of this Agreement shall not be affected thereby.
12. Headings. The section headings used herein are for reference and
convenience only and shall not enter into the interpretation hereof.
13. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas, without regard to the
choice of law rules in such law.
14. Entire Agreement. This Agreement, together with the Plan and any
procedures adopted by the Committee thereunder, constitutes the entire
agreement between the parties hereto with respect to its subject
matter and may be waived or modified only in writing.
IN WITNESS WHEREOF, and intending to be legally bound hereby, Participant and a
duly-authorized representative of Xxxxx Systems have executed this Agreement as
of the date first above written.
PARTICIPANT XXXXX SYSTEMS CORPORATION
/s/ XXXXXX X. XXXXXXXX By: /s/ XXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxxx Xxxxx X. Xxxxxxx
TITLE: Vice President and
General Counsel
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CONSENT OF SPOUSE
As the spouse of Participant, I consent to be bound by this Restricted Stock
Agreement and agree that this consent shall be binding on my interest under
this Agreement and on my heirs, legatees and assigns.
/s/ XXXXXXX XXXXXXXX
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SIGNATURE
XXXXXXX XXXXXXXX
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PRINTED NAME
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ATTACHMENT A
NOTICE OF EXERCISE OF RIGHT TO PURCHASE SHARES
OF RESTRICTED STOCK
XXXXXX X. XXXXXXXX
I hereby notify Xxxxx Systems Corporation that I am exercising my right under
the Restricted Stock Agreement between me and Xxxxx Systems dated as of
December 22, 1995, and purchasing 200,000 shares of Common Stock of the
Corporation at $1.75 per share, of $350,000 in total, which I herewith tender
in cash, by check or an executed note payable to Xxxxx Systems Corporation.
In connection with this purchase, I hereby represent to Xxxxx Systems
Corporation that I am purchasing these shares for investment and not with a
view to any resale or distribution thereof.
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Signed
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Dated
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