RESTRICTED STOCK AGREEMENT
Exhibit
10.15
This
Restricted Stock Agreement (this “Agreement”)
is made
as of _____________ by Eclipsys Corporation, a Delaware corporation
("Eclipsys")
and
____________________ ("Recipient")
to
govern awards of restricted stock by Eclipsys to Recipient made from time to
time pursuant to Grant Notices (as defined below) that reference this Agreement
as governing the awards reflected therein.
1. Grants
of Restricted Stock. From
time
to time in its discretion, Eclipsys may grant and issue to Recipient shares
of
Eclipsys's common stock that are subject to the restrictions described in,
and
other provisions of, this Agreement (the "Restricted
Stock").
No
grants of Restricted Stock are promised by this Agreement. Each grant of
Restricted Stock will be documented by a written notice delivered by Eclipsys
to
Recipient (a “Grant
Notice”)
stating: (i) that the Restricted Stock described therein is subject to this
Agreement, (ii) the number of shares of Restricted Stock subject to the grant,
(iii) the schedule and any other conditions for vesting of the Restricted Stock,
and (iv) such other terms and conditions applicable to the Restricted Stock
as
Eclipsys may determine. As a condition to each grant of Restricted Stock,
Recipient is required to pay to Eclipsys $.01 by cash or check for each share
of
Restricted Stock (the "Acquisition
Consideration").
2. Governing
Plan.
The
Restricted Stock shall be granted pursuant to and (except as specifically set
forth herein or in another written agreement between Eclipsys and Recipient)
subject in all respects to the applicable provisions of the Eclipsys Corporation
2005 Stock Incentive Plan or its successor plan (the "Plan"),
which
are incorporated herein by reference. Terms not otherwise defined in this
Agreement have the meanings ascribed to them in the Plan.
3. Restrictions
on the Restricted Stock.
(a) Limitation
on Transfer.
The
Restricted Stock (including any shares received by Recipient with respect to
shares of Restricted Stock as a result of stock dividends, stock splits or
any
other form of recapitalization or a similar transaction affecting Eclipsys's
securities without receipt of consideration) may not be sold, assigned,
transferred, pledged, hypothecated or otherwise disposed of, alienated or
encumbered unless and until the conditions to vesting set forth in the Grant
Notice are met and any additional requirements or restrictions contained in
this
Agreement, the Grant Notice or the Plan have been satisfied, terminated or
expressly waived by Eclipsys in writing. However, this will not prohibit nominal
transfers of Restricted Stock for estate planning purposes that do not effect
a
change in beneficial ownership, if the transferee agrees in writing to the
terms
of this Agreement. Satisfaction of the conditions to vesting set forth in the
Grant Notice and any additional requirements or restrictions contained in this
Agreement, and the resulting removal of the restrictions imposed hereunder
from
particular shares of Restricted Stock, is also referred to as “vesting” of those
shares and shares from which the restrictions have been removed are referred
to
as “vested.”
US1DOCS
5198605v2
(b) Cancellation
of Restricted Stock.
Notwithstanding Section
3(a),
but
subject to the Plan, any applicable Grant Notice, and any other separate written
agreement between Eclipsys and Recipient, if any Cancellation Event occurs,
then
(i) vesting of any shares of Restricted Stock originally scheduled to vest
after
the time that Cancellation Event occurred will cease; (ii) any grant insofar
as
it relates to Restricted Stock that has not yet vested will be cancelled; (iii)
unvested Restricted Stock will be forfeited to Eclipsys and all rights of
Recipient as a stockholder of such shares will cease; (iv) Eclipsys shall be
obligated to pay to Recipient, by cash or equivalent or by cancellation of
amounts owed by Recipient to Eclipsys or any Affiliate, the Acquisition
Consideration per share previously received from Recipient in respect of all
shares of Restricted Stock that are forfeited to Eclipsys; and (v) Recipient
shall have no rights to or in respect of shares of Restricted Stock that are
forfeited to Eclipsys except the right to receive the Acquisition Consideration
in respect thereof. In case of a Cancellation Event, any partially vested share
will be rounded up to the nearest whole share for purposes of determining the
number of shares that are forfeited to Eclipsys. For these purposes, if
Recipient is an employee of Eclipsys or any of its present or future parent
or
subsidiary corporations (each an “Affiliate”)
as
defined in Sections 424(e) or (f) of the Internal Revenue Code of 1986, as
amended, and any regulations promulgated thereunder (the “Code”),
a
“Cancellation
Event”
means,
and shall be deemed to occur upon, the cessation of Recipient’s employment with
Eclipsys or any of its Affiliates or its successor (other than in situations
in
which the Recipient is or is becoming a member of the Board of Directors of
Eclipsys) for any reason, including without limitation resignation by Recipient
with or without good reason, or termination of employment by Eclipsys or any
Affiliate or its successor with or without cause . If Recipient is a member
of
the Board of Directors of Eclipsys, a Cancellation Event means, and shall be
deemed to occur upon, cessation of Recipient’s service as a director of
Eclipsys, unless at the time of such cessation Recipient is then an employee
of
Eclipsys or any of its Affiliates, in which case Recipient shall thereafter
be
treated as an employee for these purposes. 4. Voting
and Other Rights.
During
the period prior to vesting, except as otherwise provided herein, Recipient
will
have all of the rights of a stockholder with respect to all of the Restricted
Stock, including without limitation the right to vote such Restricted Stock
and
the right to receive all dividends or other distributions with respect to such
Restricted Stock. In connection with the payment of such dividends or other
distributions, Eclipsys will be entitled to deduct from any amounts otherwise
payable by Eclipsys to Recipient (including without limitation salary or other
compensation), except to the extent prohibited by applicable law or regulation,
any taxes or other amounts required by any governmental authority to be withheld
and paid over or deposited to such authority for Recipient's
account.
5. Handling
of Shares.
(a) Certificates
or Book Entries.
Eclipsys may in its discretion issue physical certificates representing
Restricted Stock, or cause the Restricted Stock to be recorded in book entry
form and reflected in records maintained by or for Eclipsys. Each certificate
or
data base entry representing any unvested portion of any Restricted Stock may
be
endorsed with a legend substantially as set forth below, as well as such other
legends as Eclipsys may deem appropriate to comply with applicable laws and
regulations:
The
securities evidenced by this certificate are subject to certain limitations
on
transfer and other restrictions as set forth in that certain Restricted Stock
Agreement, dated as of _______________, between Eclipsys and the holder of
such
securities, the Eclipsys Corporation 2005 Stock Incentive Plan (copies of which
are available for inspection at the offices of Eclipsys), and the notice of
grant applicable to the securities.
(b) Escrow.
With
respect to each unvested share of Restricted Stock (including any shares
received by Recipient with respect to shares of Restricted Stock that have
not
yet vested as a result of stock dividends, stock splits or any other form of
recapitalization or a similar transaction affecting Eclipsys's securities
without receipt of consideration), the Secretary of Eclipsys, or such other
escrow holder as the Secretary may appoint, will retain physical custody of
any
certificate representing such share until such share vests.
(c)
Delivery
of Certificates.
As soon
as practicable after the vesting of any Restricted Stock and upon request by
Recipient, but subject to Section
5(d),
Eclipsys will deliver to Recipient or Recipient’s designee a certificate(s) free
of restrictive legends representing such vested Restricted Stock, or cause
appropriate book entry or other electronic changes to be made to reflect
Recipient’s ownership of such vested Restricted Stock free of restrictions, in
any case net of the number of shares withheld by Eclipsys in payment of tax
pursuant to Section
6(a).
(d) Conditions
to Vesting.
At the
time for vesting of any shares of Restricted Stock, and as a condition to
vesting, Recipient must, if requested by Eclipsys, make appropriate
representations in a form satisfactory to Eclipsys that such Restricted Stock
will not be sold other than (A) pursuant to an effective registration
statement under the Securities Act of 1933, as amended, or an applicable
exemption from the registration requirements of such Act; (B) in compliance
with all applicable state securities laws and regulations; and (C) in
compliance with all terms and conditions of the Plan, the applicable Grant
Notice, any applicable policy of Eclipsys or any of its Affiliates, and any
other written agreement between Recipient and Eclipsys or any of its
Affiliates.
6. Tax
Matters.
(a) Recipient’s
Tax Obligations.
The
vesting of Restricted Stock generally results in taxable income for employees
and is subject to appropriate income tax withholding, deposits, or other
deductions required by applicable laws or regulations. Subject to any separate
written agreement between Recipient and Eclipsys, Recipient and Recipient’s
successors will be responsible for all income and other taxes payable as a
result of grant or vesting of Restricted Stock or otherwise in connection with
this Agreement. All obligations of Eclipsys or its Affiliates to pay tax
deposits to any federal, state or other taxing authority as a result of grant
or
vesting of Restricted Stock will result in a commensurate obligation of
Recipient to reimburse Eclipsys or its Affiliate the amount of such tax
deposits. Such obligation of Recipient shall, unless otherwise specified in
the
applicable Grant Notice or in a separate written agreement between Eclipsys
and
Recipient, be satisfied by the Recipient forfeiting and Eclipsys deducting
and
retaining from the shares vesting at any particular time that number of shares
with a value equal to the amount of the required minimum tax withholdings that
Eclipsys or its Affiliate is required to pay as a result of such vesting, with
such value measured by the same value per share used by Eclipsys or its
Affiliate to determine its tax deposit obligation and based on the minimum
statutory withholding rates for federal and state income and payroll tax
purposes that are applicable to supplemental wages. If Eclipsys or its Affiliate
is required to pay additional tax deposits after the initial issuance to
Recipient of the net number of vested shares, Eclipsys or its Affiliate may
require Recipient to make up the difference in cash. If the tax deposits paid
are less than Recipient’s tax obligations, Recipient is solely responsible for
any additional taxes due. If Eclipsys or its Affiliate pays tax deposits in
excess of Recipient’s tax obligations, Recipient’s sole recourse will be against
the relevant taxing authorities, and Eclipsys and its Affiliates will have
no
obligation to issue additional shares or pay cash to Recipient in respect
thereof. Recipient is responsible for determining Recipient’s actual income tax
liabilities and making appropriate payments to the relevant taxing authorities
to fulfill Recipient’s tax obligations and avoid interest and penalties.
(b) Section
83(b) Election.
Recipient understands that Recipient may make an election pursuant to Section
83(b) of the Code (by filing an election with the Internal Revenue Service
within thirty (30) days after the date Recipient acquired the Restricted Stock)
to include in Recipient's gross income the fair market value (as of the date
of
acquisition) of the Restricted Stock. Recipient may make such an election under
Section 83(b), or comparable provisions of any state tax law, only
if,
prior to
making any such election, Recipient (a) notifies Eclipsys of Recipient's
intention to make such election, by delivering to Eclipsys a copy of the
fully-executed Section 83(b) Election Form attached hereto as Exhibit
A,
and
(b) pays to Eclipsys an amount sufficient to satisfy any taxes or other
amounts required by any governmental authority to be withheld or paid over
to
such authority for Recipient's account, or otherwise makes arrangements
satisfactory to Eclipsys for the payment of such amounts through withholding
or
otherwise. Recipient understands that if Recipient has not made a proper and
timely Section 83(b) election, at the time the forfeiture restrictions
applicable to the Restricted Stock lapse, Section 83 will generally provide
that
Recipient will recognize ordinary income and be taxed in an amount equal to
the
fair market value (as of the date the forfeiture restrictions lapse) of the
Restricted Stock less the Acquisition Consideration paid for the Restricted
Stock. For this purpose, the term "forfeiture restrictions" includes the right
of Eclipsys to acquire the Restricted Stock pursuant to its rights under
Section
3
of this
Agreement. Recipient
acknowledges that it is Recipient's sole responsibility, and not the
responsibility of Eclipsys or any of its Affiliates, to file a timely election
under Section 83(b), even if Recipient requests Eclipsys or its representative
to make this filing on Recipient's behalf. Recipient is relying solely on
Recipient's advisors with respect to the decision as to whether or not to file
a
Section 83(b) election.
7. Additional
Agreements
(a) Independent
Advice; No Representations.
Recipient acknowledges that (i) Recipient was and is free to use professional
advisors of Recipient’s choice in connection with this Agreement and any grant
of Restricted Stock, that Recipient understands this Agreement and the meaning
and consequences of receiving grants of Restricted Stock, and is entering into
this Agreement freely and without coercion or duress; and (ii) Recipient has
not
received and is not relying, and will not rely, upon any advice, representations
or assurances made by or on behalf of Eclipsys or any Affiliate or any employee
of or counsel to Eclipsys or any Affiliate regarding any tax or other effects
or
implications of the Restricted Stock or other matters contemplated by this
Agreement or any Grant Notice.
(b) Value
of Restricted Stock.
No
representations or promises are made to Recipient regarding the value of the
Restricted Stock or the business prospects of Eclipsys or any Affiliate.
Recipient acknowledges that information about investment in Eclipsys stock,
including financial information and related risks, is contained in Eclipsys’s
SEC reports on Form 10-Q and Form 10-K, which have been made available from
Eclipsys’s Human Resources department and/or on Eclipsys’s internal web site for
Recipient’s review at any time before Recipient’s acceptance of this Agreement
or at any time during Recipient’s employment or service. Further, Recipient
understands that Eclipsys and its Affiliates and their respective employees,
counsel and other representatives do not provide tax or investment advice and
acknowledges Eclipsys’s recommendation that Recipient consult with independent
specialists regarding such matters. Sale or other transfer of Eclipsys stock
may
be limited by and subject to policies of Eclipsys or its Affiliates as well
as
applicable securities laws and regulations.
(c) Merger,
Consolidation or Reorganization.
In the
event of a Reorganization of Eclipsys in which holders of shares of Common
Stock
of Eclipsys are entitled to receive in respect of such shares any additional
shares or new or different shares or securities, cash or other consideration
(including, without limitation, a different number of shares of Common Stock)
("Exchange
Consideration"),
then
Recipient will be entitled to receive a proportionate share of the Exchange
Consideration in exchange for any Restricted Stock that is then still owned
by
Recipient and not cancelled; provided that, subject to any Grant Notice or
other
separate written agreement between Eclipsys and Recipient, any Exchange
Consideration issued to Recipient in respect of unvested Restricted Stock will
be subject to the same restrictions and vesting provisions that were applicable
to the Restricted Stock in exchange for which the Exchange Consideration was
issued.
(d) No
Right to Continued Employment or Service; No Positive Inference.
Neither
this Agreement nor any grant of Restricted Stock confers upon Recipient any
right to continue as an employee, director or consultant of, or in any other
relationship with, Eclipsys or its Affiliates, or to any particular employment
or service tenure or minimum vesting of Restricted Stock, or limits in any
way
the right of Eclipsys or its Affiliates to terminate Recipient's services to
Eclipsys or any of its Affiliates at any time, with or without cause. Restricted
Stock is to motivate and reward future performance, and no grant of Restricted
Stock will be interpreted as a reward for past performance that dictates vesting
in advance of the vesting schedule specified in the applicable Grant Notice,
or
an indication that the Recipient has performed well or is entitled to any
particular employment or service tenure.
(e) Remedy
for Breach of Legal Obligations.
As a
condition to vesting of any Restricted Stock, Recipient must enter into the
Eclipsys Proprietary Interest Protection Agreement, in the standard form
generally used for all new employees. If Recipient breaches in any material
respect the Proprietary Interest Protection Agreement between Recipient and
the
Company, or any other contract between Recipient and the Company, or Recipient’s
common law duty of confidentiality or trade secret protection, and Recipient
fails to cure that breach in full within ten days of notice and demand for
cure
by the Company, then such breach shall entitle the Company, in its discretion
and in addition to any other legal or equitable remedies available to it, to
do
any or all of the following:
(1)
repurchase from Recipient any shares of Restricted Stock still owned by
Recipient, whether or not vested, at the Acquisition Consideration, whereupon
any rights of Recipient to such repurchased shares of Restricted Stock will
cease;
(2)
require Recipient to disgorge to the Company the gross income Recipient earned
(i.e.
sales
price less Acquisition Consideration) upon transfer by Recipient, at any time
from 12 months before such breach until 12 months after the Company learned
of
such breach, of any shares of Restricted Stock; and/or
(3)
obtain injunctive relief or other similar remedy in any court with appropriate
jurisdiction in order to specifically enforce the provisions hereof.
The
Company may suspend any vesting or transfer of Restricted Stock pending cure
of
any such breach.
8. General.
(a) Successors
and Assigns.
This
Agreement is personal in its nature and Recipient may not assign or transfer
Recipient’s rights under this Agreement, except as specifically provided herein
or permitted by Eclipsys in writing.
(b) Notices.
Any
notices, demands or other communications required or desired to be given by
any
party shall be in writing and shall be validly given to another party if served
personally or if deposited in the United States mail, certified or registered,
postage prepaid, return receipt requested. If such notice, demand or other
communication shall be served personally, service shall be conclusively deemed
made at the time of such personal service. If such notice, demand or other
communication is given by mail, such notice shall be conclusively deemed given
forty-eight (48) hours after the deposit thereof in the United States mail
addressed to the party to whom such notice, demand or other communication is
to
be given as hereinafter set forth:
To
Eclipsys: Eclipsys,
Inc.
0000
Xxxxx Xxxxx Xxxx
Xxxx
Xxxxx, Xxxxxxx 00000
Attention:
General Counsel
To
Recipient: At
Recipient’s address of record as maintained in Eclipsys’s employment
files
Any
party
may change its address for the purpose of receiving notices, demands and other
communications by providing written notice to the other party in the manner
described in this paragraph.
(c) Entire
Agreement.
Except
as this Agreement and/or another written agreement between Eclipsys and
Recipient may expressly provide otherwise, this Agreement, the Plan, and any
Grant Notices constitute the entire agreement and understanding of Eclipsys
(together with its Affiliates) and Recipient with respect to Restricted Stock,
and supersede all prior written or verbal agreements and understandings between
Recipient and Eclipsys (together with its Affiliates) relating to such subject
matter. Recipient has not received and is not relying upon, and will not rely
upon, any representations by any employee of or counsel to or other
representative of Eclipsys or any of its Affiliates in connection with this
Agreement or any grant of Restricted Stock hereunder. This Agreement may only
be
amended by written instrument signed by Recipient and an authorized officer
of
Eclipsys.
(d) Governing
Law; Severability. This
Agreement will be construed and interpreted under the laws of the State of
Delaware applicable to agreements executed and to be wholly performed within
the
State of Delaware. If any provision of this Agreement as applied to any party
or
to any circumstance is adjudged by a court of competent jurisdiction to be
void
or unenforceable for any reason, the invalidity of that provision shall in
no
way affect (to the maximum extent permissible by law) the application of such
provision under circumstances different from those adjudicated by the court,
the
application of any other provision of this Agreement, or the enforceability
or
invalidity of this Agreement as a whole. If any provision of this Agreement
becomes or is deemed invalid, illegal or unenforceable in any jurisdiction
by
reason of the scope, extent or duration of its coverage, then such provision
shall be deemed amended to the extent necessary to conform to applicable law
so
as to be valid and enforceable or, if such provision cannot be so amended
without materially altering the intention of the parties, then such provision
will be stricken and the remainder of this Agreement shall continue in full
force and effect.
(e) Remedies.
All
rights and remedies provided pursuant to this Agreement or by law shall be
cumulative, and no such right or remedy shall be exclusive of any other. A
party
may pursue any one or more rights or remedies hereunder or may seek damages
or
specific performance in the event of another party’s breach hereunder or may
pursue any other remedy by law or equity, whether or not stated in this
Agreement.
(f) Arbitration. Any
and
all disputes and claims between Recipient and Eclipsys that arise out of this
Agreement shall be resolved through final and binding arbitration. Any claim
under this Agreement must be commenced by a claimant within 365 days of the
date
on which the cause of action accrues (unless a contractual limitation on
duration of claims is impermissible or a longer period of time is required
by
law, in which case the end of the minimum required period will be the deadline
for commencing claims), or it will be deemed waived. Binding arbitration will
be
conducted in Atlanta, Georgia in accordance with the rules and regulations
of
the American Arbitration Association. Recipient understands and agrees that
the
arbitration shall be instead of any civil litigation and that this means that
Recipient is waiving
Recipient’s right to a jury trial as to such claims.
The
parties further understand and agree that the arbitrator’s decision shall be
final and binding to the fullest extent permitted by law and enforceable by
any
court having jurisdiction. If and to the extent necessary to make this
arbitration provision enforceable, Eclipsys shall pay the arbitrator’s
compensation and any fees for the arbitration, unless the arbitrator directs
otherwise in the award, or unless the law where the arbitration occurs provides
otherwise.
(g) Interpretation. Headings
herein are for convenience of reference only, do not constitute a part of this
Agreement, and will not affect the meaning or interpretation of this Agreement.
References herein to Sections are references to the referenced Section hereof,
unless otherwise specified.
(h) Waivers;
Amendments.
The
waiver by either party of a breach of any provision of this Agreement shall
not
operate or be construed as a waiver of any later breach of that provision.
This
Agreement may be modified only by written agreement signed by Recipient and
Eclipsys.
(i) Counterparts. This
Agreement may be executed in more than one counterpart, each of which shall
be
deemed an original, but all of which together shall constitute but one and
the
same instrument. Facsimile or photographic copies of originally signed copies
of
this Agreement will be deemed to be originals.
|
ECLIPSYS
CORPORATION
By:
Name:
Title:
|
name
|
EXHIBIT
A
ELECTION
TO INCLUDE VALUE OF RESTRICTED PROPERTY
IN
GROSS INCOME IN YEAR OF TRANSFER
INTERNAL
REVENUE CODE § 83(b)
The
undersigned hereby elects pursuant to Section 83(b) of the Internal Revenue
Code
with respect to the property described below, and supplies the following
information in accordance with the regulations promulgated
thereunder:
1. Name,
address and taxpayer identification number of the
undersigned:
Taxpayer
I.D. No.:
2. Description
of property with respect to which the election is being
made:
____________
shares of Common Stock of Eclipsys Corporation, a Delaware corporation (the
"Company")
3. Date
on which property was transferred: __________
4. Taxable
year to which this election relates: ________
5. Nature
of the restrictions to which the property is subject:
If
the
taxpayer's service to the Company terminates for any reason before the Common
Stock vests, the Company will repurchase the Common Stock from the taxpayer
at
$.01 per share. The Common Stock vests according to the following schedule:
_____________________
The
Common Stock is non-transferable in the taxpayer's hands, by virtue of language
to that effect stamped on the stock certificate.
6. Fair
market value of the property:
The
fair
market value at the time of transfer (determined without regard to any
restrictions other than restrictions that by their terms will never lapse)
of
the property with respect to which this election is being made is $_________
per
share.
7. Amount
paid for the property:
The
amount paid by the taxpayer for said property is $.01 per share.
8. Furnishing
statement to employer:
A
copy of
this statement has been furnished to _______________
Date: ________________________________
Signature
Printed
Name
This
election must be filed with the Internal Revenue Service Center with which
taxpayer files his or her Federal income tax returns and must be made within
thirty (30) days after receipt of the Restricted Stock. This filing should
be
made by registered or certified mail, return receipt requested. The taxpayer
must retain two (2) copies of the completed form, one for filing with his or
her
Federal and state tax returns for the current tax year and an additional copy
for his or her records.
