EXHIBIT 4.10
ASCENTIAL SOFTWARE CORPORATION
RESTRICTED STOCK AGREEMENT
This Restricted Stock Agreement (this "Restricted Stock
Agreement") is made and entered into as of April 3, 2002 (the "Date of
Grant"), by and between Ascential Software Corporation, a Delaware
corporation (the "Company") and Xxxx X. Xxxxxx (the "Recipient").
WHEREAS, as compensation for future services to be
provided to the Company and in consideration of Recipient's execution and
compliance with the terms and conditions of an agreement (the "Letter
Agreement") with Vality Technology Incorporated, a Massachusetts
corporation ("Vality") and the Company, dated March 11, 2002, the Company
has agreed to grant Recipient 300,000 restricted shares of common stock,
par value $.01 per share, of the Company; and
WHEREAS, the Board of Directors of the Company (the
"Board") has approved the grant of Restricted Stock, as hereinafter
defined, to the Recipient as set forth below.
NOW, THEREFORE, in consideration of the covenants and
agreements herein contained, and intending to be legally bound hereby, the
parties agree as follows:
1. Grant of Restricted Stock. The Company hereby grants
to the Recipient 300,000 restricted shares of the common stock of the
Company, par value $.01 per share (the "Restricted Stock"), subject to all
of the terms and conditions of this Restricted Stock Agreement and the
Letter Agreement. As a condition of the effectiveness of this grant, the
Recipient shall pay to the Company within 10 business days of the Date of
Grant, par value in cash for each share of Restricted Stock subject to this
grant. The Recipient's grant and record of share ownership shall be kept on
the books of the Company, until the restrictions on transfer have lapsed
pursuant to Sections 2 or 3 below. Shares that have become vested pursuant
to Sections 2 or 3 below may be evidenced by stock certificates, at the
request of the Recipient, which certificates shall be registered in the
name of the Recipient and delivered to Recipient within five (5) days of
such request.
2. Lapse of Restrictions. Except as otherwise provided in
Section 3 hereof, the restrictions on transfer set forth in Section 4
hereof shall lapse, with respect to all of the Restricted Stock, on January
3, 2003.
3. Termination of Service; Compliance with Letter
Agreement.
(a) If prior to December 31, 2002, the Recipient's
employment or service with the Company is terminated by Recipient for any
reason or by the Company or Vality for Cause (as defined in Section 3(e)
below) (a "Termination Event"), then all shares of Restricted Stock shall
be immediately forfeited at such time, and the Company shall return to the
Recipient an amount equal to the par value of the Restricted Stock which
was paid by the Recipient to the Company as described in Section 1 above.
(b) If prior to December 31, 2002, the Recipient's
employment or service with the Company is terminated (i) due to death or
permanent disability, or (ii) by the Company or Vality other than for
Cause, then the restrictions on transfer set forth in Section 4 below shall
immediately lapse with respect to all shares of Restricted Stock and such
shares shall be deemed vested for all purposes under this Restricted Stock
Agreement.
(c) If at any time the Recipient is not in full
compliance with the terms of the Letter Agreement and such non-compliance
is not cured within 30 days of written notice to the Recipient of such
non-compliance (a "Breach Event"), in addition to being subject to all
remedies in law or equity that the Company or Vality may assert, then at
any time thereafter the Company, in its sole and absolute discretion, may
(i) to the extent that the Restricted Stock is beneficially owned by the
Recipient, reacquire from the Recipient for $.01 any or all of the shares
of Restricted Stock; and (ii) to the extent that the Restricted Stock has
been sold, assigned or otherwise transferred by the Recipient, recover from
the Recipient an amount equal to the proceeds from such sale, assignment or
transfer.
(d) Upon the occurrence of a Breach Event, the Company
may elect to purchase all or any portion of the Restricted Stock pursuant
to this Section 3 by delivery of written notice (the "Repurchase Notice")
to the Recipient within ninety (90) days after the occurrence of such
Breach Event.
(e) For the purposes of determining whether a Termination
Event has occurred, the term "Cause" shall mean the occurrence of one or
more of the following: (i) Recipient 's conviction by, or entry of a plea
of guilty or nolo contendere in, a court of competent jurisdiction for any
crime which constitutes a felony in the jurisdiction in which the conduct
alleged to constitute the felony occurred; (ii) Recipient 's
misappropriation of funds or property or commission of an act of fraud,
whether prior or subsequent to the Date of Grant; (iii) gross negligence or
recklessness by the Recipient in the scope of the Recipient 's services to
the Company; (iv) a breach by the Recipient of a material provision of this
Restricted Stock Agreement or the Letter Agreement which is not cured
within 30 days of notice; (v) a willful failure by the Recipient to
substantially perform his duties and responsibilities as an employee after
notice of such willful failure; or (vi) a material breach by the Recipient
of the Company's policies or procedures.
4. Restrictions on Transfer. Unless earlier vested
pursuant to Section 3(b) above, shares of Restricted Stock may not be
transferred or otherwise disposed of by the Recipient prior to January 3,
2003, including by way of sale, assignment, transfer, pledge or otherwise
except by will or the laws of descent and distribution.
5. Rights as a Stockholder. The Company shall hold in
escrow all dividends, if any, that are paid with respect to the shares of
Restricted Stock until all restrictions on such shares have lapsed.
Recipient agrees that the right to vote any shares for which the
restrictions on transfer set forth in Section 4 hereof have not yet lapsed
(the "Unvested Shares") will be held by the Company and, accordingly, shall
execute an irrevocable proxy in favor of the Company for all shares of
Restricted Stock in the form supplied by the Company.
6. Notices. Any notice or communication given hereunder
shall be in writing and shall be given by fax or first class mail,
certified or registered with return receipt requested, and shall be deemed
to have been duly given three (3) days after mailing or twenty-four (24)
hours after transmission of a fax to the following addresses:
To you at:
Xxxx X. Xxxxxx
0 Xxxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Telephone: 000-000-0000
with a copy to:
Xxxxx, Xxxxxxx & Xxxxxxxxx LLP
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
To the Company at:
Ascential Software Corporation
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx, Esq.
Telephone: 000-000-0000 x 0000
Facsimile: 000-000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
or to such other address as any party may have furnished to the other in
writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
7. Securities Laws Requirements. The Company shall not be
obligated to transfer any shares of Company common stock from the Recipient
to another party, if such transfer, in the opinion of counsel for the
Company, would violate the Securities Act of 1933, as amended from time to
time (the "Securities Act") (or any other federal or state statutes having
similar requirements as may be in effect at that time). Further, the
Company may require as a condition of transfer of any shares to the
Recipient that the Recipient furnish a written representation that he or
she is holding the shares for investment and not with a view to resale or
distribution to the public. The Company shall, promptly after the date of
this Restricted Stock Agreement, file a registration statement on Form S-8
(or other applicable form), and take such actions as necessary to keep the
information therein current from time to time, in order to register the
Restricted Stock under the Securities Act and shall use its commercially
reasonable efforts to cause such registration statement to become effective
and to maintain the effectiveness of such registration.
8. Protections Against Violations of Restricted Stock
Agreement. No purported sale, assignment, mortgage, hypothecation,
transfer, pledge, encumbrance, gift, transfer in trust (voting or other) or
other disposition of, or creation of a security interest in or lien on, any
of the shares of Restricted Stock by any holder thereof in violation of the
provisions of this Restricted Stock Agreement or the Certificate of
Incorporation or the By-Laws of the Company, shall be valid, and the
Company will not transfer any of said shares of Restricted Stock on its
books nor will any of said shares of Restricted Stock be entitled to vote,
nor will any dividends be paid thereon, unless and until there has been
full compliance with said provisions to the satisfaction of the Company.
The foregoing restrictions are in addition to and not in lieu of any other
remedies, legal or equitable, available to enforce said provisions.
9. Taxes. The Recipient understands that he (and not the
Company) shall be responsible for any tax obligation that may arise as a
result of the transactions contemplated by this Restricted Stock Agreement
and shall pay to the Company the amount determined by the Company to be
such tax obligation at the time such tax obligation arises. If the
Recipient fails to make such payment, the number of shares necessary to
satisfy the tax obligations shall be forfeited. The Recipient shall
promptly notify the Company of any election made pursuant to Section 83(b)
of the Code.
THE RECIPIENT ACKNOWLEDGES THAT IT IS THE RECIPIENT'S SOLE
RESPONSIBILITY AND NOT THE COMPANY'S TO FILE TIMELY THE ELECTION
UNDER SECTION 83(b) OF THE CODE, IN THE EVENT THAT THE RECIPIENT
DESIRES TO MAKE THE ELECTION.
10. Failure to Enforce Not a Waiver. The failure of the
Company to enforce at any time any provision of this Restricted Stock
Agreement shall in no way be construed to be a waiver of such provision or
of any other provision hereof.
11. Governing Law. This Restricted Stock Agreement shall
be governed by and construed according to the laws of the Commonwealth of
Massachusetts without regard to its principles of conflict of laws.
12. Amendments. This Restricted Stock Agreement may be
amended or modified at any time only by an instrument in writing signed by
each of the parties hereto.
13. Survival of Terms. This Restricted Stock Agreement
shall apply to and bind the Recipient and the Company and their respective
permitted assignees and transferees, heirs, legatees, executors,
administrators and legal successors.
14. Agreement Not a Contract for Services. Neither the
grant of Restricted Stock, this Restricted Stock Agreement nor any other
action taken pursuant to this Restricted Stock Agreement shall constitute
or be evidence of any agreement or understanding, express or implied, that
the Recipient has a right to continue to provide services as an officer,
director, employee or consultant of the Company for any period of time or
at any specific rate of compensation.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Restricted Stock Agreement on the day and year first above
written.
ASCENTIAL SOFTWARE CORPORATION
/s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx Xxxxx
Title: President
/s/ Xxxx X. Xxxxxx
----------------------------
Xxxx X. Xxxxxx
Recipient
IRREVOCABLE PROXY
I, the undersigned, hereby irrevocably authorize and
empower __________ (the "Proxy") to represent me with respect of any and
all Unvested Shares (as such term is defined in the Restricted Stock
Agreement (the "Restricted Stock Agreement") by and between Ascential
Software (the "Company") and Xxxx X. Xxxxxx, at any and all general
meetings of the shareholders of the Company.
The Proxy is irrevocably authorized and empowered to
receive, in my stead, any and all notices of and invitations to the
Company's general meetings, and to participate in all such general
meetings; and the Proxy is authorized and empowered to vote all such
Unvested Shares in such manner as the Proxy shall, in the Proxy's sole
discretion, deem to be in the best interests of the Company.
This proxy shall remain in full force and effect until
the shares of Restricted Stock granted to me pursuant to the Restricted
Stock Agreement have vested in accordance with the terms of the Restricted
Stock Agreement, unless otherwise determined by the Company.
NAME: ________________________
DATE: ________________________
SIGNATURE: _______________________________
