AMENDED AND RESTATED
RESTRICTED STOCK AGREEMENT
FIRST CONSULTING GROUP, INC.
THIS RESTRICTED STOCK AGREEMENT ("Agreement") by and between FIRST
CONSULTING GROUP, INC., a Delaware corporation (the "Company") and _____________
("Participant") shall be effective immediately upon the effectiveness of the
merger of FCG Enterprises, Inc. with and into the Company.
WHEREAS, the Company sponsors and maintains the 1994 Restricted Stock Plan,
as amended (the "Plan") and the Board has approved a form of restricted stock
agreement pursuant to the Plan;
WHEREAS, the Participant has previously executed a restricted stock
agreement under the Plan; and
WHEREAS, the Board has selected Participant to participate in the Plan and
considers it desirable and in the Company's best interest that Participant
acquire a proprietary interest in the Company.
NOW, THEREFORE, in consideration of the foregoing recitals, the parties
hereto agree to amend and restate this restricted stock agreement to read as
follows:
1. (a) PURPOSE OF PLAN. The purpose of the Plan is to provide
incentives and rewards for Executive Officers of the Company and its
subsidiaries, who by their industry, loyalty, or exceptional service contribute
to the success of the enterprise by making them participants in that success.
Additionally, by virtue of the mandatory nature of the Plan, Participant will
have a direct stake in the Company's performance.
(b) DEFINITIONS. Certain terms used herein shall have the following
meanings:
(i) "ACQUISITION AGREEMENT" means an agreement setting
forth the terms of an Acquisition Transaction.
(ii) "ACQUISITION TRANSACTION" shall mean any transaction
involving:
(1) the purchase or other acquisition of all or any
portion of a consulting business or assets of such a business;
(2) the issuance, purchase or other acquisition by the
Company of (i) any capital stock of a consulting business, (ii) any option,
call, warrant or right (whether or not immediately exercisable) to acquire
any capital stock of a consulting business, or (iii) any security, instrument
or obligation that is or may become convertible into or exchangeable for any
capital stock of a consulting business; or
1.
(3) any merger, consolidation, business combination,
share exchange, reorganization or similar transaction involving the Company
and a consulting business.
(iii) "AGREEMENT" shall mean this Amended and Restated
Restricted Stock Agreement;
(iv) "APPROVED PARTICIPANT" shall mean an employee of the
Company who has signed and is bound by a restricted stock agreement under the
Plan, as may be amended from time to time;
(v) "APPROVED SHAREHOLDER" shall mean the ASOP, a
Transferee Entity and an Approved Participant;
(vi) "APPLICABLE YEAR" shall mean the calendar year in
which the Purchase Event occurs;
(vii) "ASOP" shall mean the Company's Associate Profit
Sharing 401(k) and Stock Ownership Plan (effective December 1, 1995), as may
be amended from time to time;
(viii) "BORROWING RATE" shall mean the average interest rate
the Company pays to a commercial lending institution in a calendar quarter.
In the event the Company has no borrowings for a particular quarter, then the
rate shall be the prime rate on the first day of the quarter, as announced in
the Wall Street Journal or if the Wall Street Journal discontinues such
announcements, then the reference lending rate as announced by Bank of
America;
(ix) "BOARD" shall mean the Board of Directors of the
Company;
(x) "CLIENT" shall mean any then current client of the
Company and any person or entity to which the Company has submitted a
proposal during the 12 months immediately prior to the date that
Participant's employment with the Company is terminated.
(xi) "CODE" shall mean the Internal Revenue Code of 1986,
as amended.
(xii) "COMPANY" shall mean First Consulting Group, Inc., a
Delaware corporation, or its successor in interest;
(xiii) "EXECUTIVE OFFICERS" shall mean the Chairman of the
Board, the President, all Vice Presidents, and the Chief Financial Officer of
the Company;
(xiv) "GROWTH FACTOR" shall have the same meaning as
"Borrowing Rate," compounded on a quarterly basis; PROVIDED THAT, for
quarters prior to October 1, 1994, Attachment I stipulates the rates to be
applied;
2.
(xv) "MARKET VALUE" shall mean the closing sales price for
the Stock (or the closing bid, if no sales were reported) as quoted on the
specific Public Trading Market on which the Stock is traded (or the Public
Trading Market with the highest trading volume in the Stock if the Stock is
traded on more than one exchange or market) on the relevant date, as reported
in The Wall Street Journal or such other source as the Board deems reliable;
(xvi) "MINIMUM SHAREHOLDINGS" shall be as defined in Section
3(a);
(xvii) "PARTICIPANT" shall mean the individual employee of
Company executing this Agreement;
(xviii) "PLAN" shall mean the 1994 Restricted Stock Plan, as
amended;
(xix) "PRINCIPAL AMOUNT" shall mean the principal amount
of any promissory note given in connection with a purchase of Stock, based
upon the Purchase Price;
(xx) "POST-EMPLOYMENT PERIOD" shall mean the two (2) year
period after the date Participant's employment with the Company terminates.
(xxi) "PUBLIC TRADING MARKET" shall mean that shares of
Stock are actively traded on an established stock exchange, including but not
limited to a national securities exchange, the Nasdaq National Market, and/or
The Nasdaq SmallCap Market;
(xxii) "PURCHASE EVENT" shall mean the event causing a
purchase or sale under this Agreement, including the following events: death,
permanent disability, termination of employment, and any other required or
permitted disposition of Stock under this Agreement;
(xxiii) "PURCHASE PRICE" shall mean the Market Value;
(xxiv) "RESTRICTED AREA" shall mean the geographical area
served by the Company at the time of such termination.
(xxv) "STOCK" shall mean the Company's Common Stock, $0.001
par value;
(xxvi) "SERVICE YEAR" shall mean a calendar year of service
(or in the case of the calendar year in which Participant becomes an
Executive Officer, the remaining portion of such year from the time
Participant become an Executive Officer) in which Participant completes at
least 1,000 hours of continuous service (to be interpreted in the same
fashion as the term "hours of service" is determined under the Employee
Retirement Income Security Act of 1974, as amended, and the regulations
promulgated thereunder) as an Executive Officer in the employ of the Company,
including service as an Executive Officer prior to adoption of the Plan,
except that the Board, in its sole discretion, may determine that a Board
approved part-time schedule be deemed a Service Year notwithstanding that
Participant does not provide 1,000 hours of continuous service. In addition,
to the extent Participant maintains a continuing relationship with the
Company (as determined by the Board in the Board's sole discretion), but does
not complete at least 1,000 hours of continuous service during a calendar
year, then such Participant shall be credited with a fractional Service Year,
such fraction having a numerator
3.
equaling the number of hours of continuous service performed by Participant
during the relevant calendar year and a denominator equaling 1,000;
(xxvii) "TRANSFEREE ENTITY" shall be as defined in Section 13;
(xxviii) "VALUATION REPORT" shall mean the report of the
market valuation specialist as to the Market Value of the Stock.
2. PARTICIPANT BONUSES. Annually, the Board, or a Committee of the
Board, shall determine the bonus, if any, to which Participant is entitled
pursuant to the policies of the Company regarding bonuses. As more fully
described below, any bonus which is granted may be entirely in cash, entirely in
stock or a combination of cash and shares of Stock.
3. PARTICIPANT STOCK PURCHASE REQUIREMENTS.
(a) Participant shall purchase shares of Stock (from the Company, an
Approved Shareholder with the prior written consent of the Company, or on a
Public Trading Market) at the time Participant is selected to participate in the
Plan and at the end of each calendar year thereafter so that Participant shall
own a number of shares of Stock that equals or exceeds the Minimum
Shareholdings. Any shares of Stock allocated to Participant's account in the
ASOP and any shares of Stock subject to a stock option granted to Participant
shall not be counted towards satisfaction of Participant's Minimum
Shareholdings. The number of shares of Stock Participant must own (vested and
unvested) initially and thereafter as required by this Agreement, shall be at
least equal to the following, which is referred to hereinafter as the "Minimum
Shareholdings":
Executive Officer Level Minimum Shareholdings
----------------------- ---------------------
Executive Officer Levels I & II One times annual base salary divided by
then current Market Value
Executive Officer Levels III & IV Two times annual base salary divided by
then current Market Value
(b) Until such time as Participant either (i) owns a number of shares
of Stock equal to or exceeding the Minimum Shareholdings or (ii) reaches the end
of the calendar year during which Participant attains age 54, and also has no
Stock-related loans outstanding with the Company or in any way guaranteed by the
Company, the greater of (i) one-half of Participant's net annual bonus and all
other discretionary cash awards (after taxes and mandatory governmental
deductions), if any, or (ii) the amount necessary to amortize any outstanding
Stock-related loans in 10 years from the origination of the loans, shall be used
first to repay any Stock-related loans outstanding and then shall be used to
purchase shares of Stock pursuant to Section 3(a). Participant may elect to
apply more than one-half of his or her bonus to the repayment of loans, or in
the absence of any outstanding Stock-related debt, to purchase
4.
additional shares of Stock. The Board at its sole discretion may increase or
decrease the percentage of annual bonus which must be used to purchase the
Minimum Shareholdings and/or to repay any outstanding Stock-related loans.
(c) Subject to the limitations set forth in Section 3(a), shares of
Stock to which Participant or a Transferee Entity holds legal title shall be
counted towards satisfying Participant's Minimum Shareholdings.
4. DETERMINATION OF STOCK VALUE.
For purposes of determining the number of shares of Stock which Participant
must own in order to achieve his or her Minimum Shareholdings, the Company's
Stock shall be valued once a year at the time of Participant's annual review
using the value of the Company's Stock at the end of each of the three (3)
preceding calendar quarters (based on the closing price for the Stock on the
last trading day of each such quarter on the securities exchange or automated
quotation system on which the Company's Stock had the highest average trading
volume for such quarter, or if the end of such quarter occurred prior to the
time that the Company's Stock is traded on a Public Trading Market, the value
based on the Valuation Report applicable to such date), and the highest such
value shall be used.
5. TRANSFER RESTRICTIONS.
(a) Participant shall be permitted to transfer his or her shares to a
Transferee Entity, in accordance with the provisions of Section 13 below, and as
permitted by this Agreement, to the ASOP or an Approved Participant. In
addition, Participant may sell his or her shares on a Public Trading Market
(subject to the limitations of Section 7). Shares of Stock transferred to the
ASOP in accordance with the terms of this Agreement will not thereafter be
subject to the provisions of this Agreement.
(b) Without the prior written consent of the Company (which may be
given or withheld in its sole discretion), at no time may any of the shares of
Stock owned by Participant or Transferee Entity, or any interest therein, that
comprise Participant's minimum Shareholdings be pledged or encumbered.
(c) None of the shares of Stock of the Company, held as collateral
or required to meet the Minimum Shareholdings, regardless of when or how
obtained or the class thereof, may be transferred, sold, or assigned to any
person, or hypothecated, except as otherwise provided for in this Section 5
and in Section 13.
(d) Any transfer, sale, assignment, hypothecation, encumbrance, or
alienation of any of the shares of Stock of the Company other than expressly
permitted by, and according to the terms of, this Agreement is void and
transfers no right, title, or interest in or to those shares, or any of them,
to the purported transferee, buyer, assignee, pledgee, or encumbrance holder.
(e) Notwithstanding any other provision of this Agreement to the
contrary, Participant agrees that the Company (or a representative of the
underwriters) may, in connection with the first underwritten registration of
the offering of any securities of the Company under the Securities Act of
1933, as amended (the "Securities Act") (hereinafter, the "IPO"), require that
5.
Participant not sell or otherwise transfer or dispose of any shares of Stock
or other securities of the Company, both those securities subject to this
Agreement and otherwise, during such period (not to exceed five hundred forty
(540) days) following the effective date of the S-1 Registration Statement of
the Company filed under the Securities Act as may be requested by the Company
or the representative of the underwriters. Participant further agrees that
the Company may impose stop-transfer instructions with respect to securities
subject to the foregoing restrictions until the end of such period.
6. VESTING.
(a) With respect to shares of Stock purchased by Participant from
the Company, Participant will vest in such shares based the number of Service
Years Participant has completed as an Executive Officer of the Company,
including service prior to adoption of the Plan. If a break in service
occurs, the Board, in its sole discretion, may grant credit for prior Service
Years and/or establish a different vesting schedule. Except as otherwise
modified by the preceding sentence, the vesting schedule is as follows:
(i) For shares of Stock purchased prior to the IPO,
excluding shares of Stock acquired in connection with an Acquisition
Transaction:
Service Shares Shares
Years(1) Vested Unvested
-------- ------ --------
0 through 3 None 100%
4 100% 60%
5 40% 50%
6 50% 40%
7 60% 30%
8 70% 20%
9 80% 10%
10 or more 90% 0%
Such vesting shall be calculated so that the first-purchased shares are the
first to vest. For example, if Participant purchased 10,000 shares on
January 1, 1996, and 15,000 shares on July 1, 1996, and had 5 years of
service, Participant would be vested in all 10,000 shares purchased on
January 1, 1996, and 2,500 shares purchased on June 1, 1996. Shares of Stock
purchased after the IPO shall not be considered in calculating the vested
percentage of share of Stock purchased prior to the IPO.
(ii) For Shares of Stock purchased on or after the IPO,
excluding shares of Stock acquired in connection with an Acquisition
Transaction:
-------------------
(1) Partial Service Years may also result in vesting credit if a Participant
has completed at least three complete Service Years and has a continuing
relationship with the Company, as explained in the definition of "Service
Year" in Section 1(b)(xxiii). Thus, if a Participant owns 10,000 shares and
is credited with 4.6 Service Years, 4,600 of his or her shares would be
vested and 5,400 would be unvested.
6.
All shares of Stock shall be one hundred percent (100%)
vested at all times at and after the time of purchase.
(iii) For shares of Stock acquired in an Acquisition
Transaction:
All shares of Stock shall vest as determined in the
relevant Acquisition Agreement.
(b) Notwithstanding the foregoing vesting schedule, Participant
shall automatically be one hundred percent (100%) vested in those shares of
Stock which, at the end of the calendar year in which Participant attains age
59, have been owned for at least three years, provided that Participant is
serving as an Executive Officer at the end of such calendar year. Any shares
of Stock owned by Participant at the end of the calendar year in which
Participant attains age 59 that have not been held for at least three years
will become one hundred percent (100%) vested when held for three years from
the date of purchase.
(c) In the event of the death or permanent disability of
Participant while an Executive Officer, Participant will automatically become
one hundred percent (100%) vested in his or her shares of Stock regardless of
the number of Service Years. Participant shall be deemed to be permanently
disabled when a medical doctor, reasonably acceptable to the Company,
certifies in writing ("Physician's Certificate") that Participant is
permanently disabled and unable to carry on his or her normal duties at the
Company.
(d) In the event of a Change in Ownership (as defined in Section
6(e)), Participant will automatically become one hundred percent (100%)
vested in his or her shares of Stock if Participant is either (x) terminated
without Cause or (y) suffers a Constructive Termination within the thirty-six
(36) month period following the occurrence of the Change in Ownership.
(i) Termination of Participant's employment with the Company
shall be for "Cause" in the event of the occurrence of any of the following:
(a) any intentional action or intentional failure to act by Participant which
was performed in bad faith and to the material detriment of the Company; (b)
Participant intentionally refuses or intentionally fails to act in accordance
with any lawful and proper direction or order of the Board; (c) Participant
willfully and habitually neglects the duties of employment; or (d)
Participant is convicted of a felony crime involving moral turpitude;
PROVIDED THAT in the event that any of the foregoing events is capable of
being cured, the Company shall provide written notice to Participant
describing the nature of such event and Participant shall thereafter have ten
(10) business days to cure such event. All other terminations of Participant
by the Company shall be treated as not for Cause.
(ii) A Constructive Termination shall be deemed to be a
termination of employment of Participant without Cause. For purposes of this
Agreement, a "Constructive Termination" means that Participant voluntarily
terminates his or her employment after any of the following are undertaken
without Participant's express written consent:
(1) The assignment to Participant of any duties or
responsibilities which result in any diminution or adverse change of
Participant's position, status or circumstances of employment;
7.
(2) a reduction by the Company in Participant's annual
base salary by greater than five percent (5%);
(3) a relocation of Participant, or the Company's
principal executive offices if Participant's principal office is at such
offices, to a location more than forty (40) miles from the location at which
Participant is then performing his or her duties, except for an opportunity
to relocate which is accepted by Participant in writing;
(4) any material breach by the Company of any provision
of this Agreement; or
(5) any failure by the Company to obtain the assumption
of this Agreement by any successor or assign of the Company.
(e) For purposes of this Agreement, a "Change in Ownership" shall
have occurred if at any time during the term of Participant's employment
hereunder, any of the following events shall occur:
(i) The Company is merged, consolidated, or reorganized into
or with another corporation or other legal person, and as a result of such
merger, consolidation or reorganization less than fifty percent (50%) of the
combined voting power of the then-outstanding securities of such corporation
or person immediately after such transaction are held in the aggregate by the
holders of voting securities of the Company immediately prior to such
transaction;
(ii) The Company sells all or substantially all of its assets
or any other corporation or other legal person and, thereafter, less than
fifty percent (50%) of the combined voting power of the then-outstanding
voting securities of the acquiring or consolidated entity are held in the
aggregate by the holders of voting securities of the Company immediately
prior to such sale;
(iii) There is a report filed after the date of this Agreement
on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or
report), each as promulgated pursuant to the Securities Exchange Act of 1934,
as amended, (the "Exchange Act") disclosing that any person (as such term is
used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become
the beneficial owner (as such term is defined under Rule 13d-3 or any
successor rule or regulation promulgated under the Exchange Act) representing
fifty percent (50%) or more of the combined voting power of the
then-outstanding voting securities of the Company;
(iv) The Company shall file a report or proxy statement with
the Securities and Exchange Commission pursuant to the Exchange Act
disclosing in response to Item 1 of Form 8-X thereunder or Item 5(f) of
Schedule 14A thereunder (or any successor schedule, form or report or item
therein) that the change in control of the Company has or may have occurred
or will or may occur in the future pursuant to any then-existing contract or
transaction; or
(v) During any period of two consecutive years, individuals
who at the beginning of any such period constitute the members of the Board
cease for any reason to
8.
constitute at least a majority thereof unless the election to the Board or
nomination for election by the Company's stockholders of each member of the
Board first elected during such period was approved by a vote of at least
two-thirds of the members of the Board then still in office who were members
of the Board at the beginning of such period.
(vi) Notwithstanding anything to the foregoing, any eventual
ownership of more than fifty percent (50%) of the Company by the ASOP shall
not be deemed a Change of Ownership.
(f) In the event that any payment of benefit received or to be
received by Participant under this Agreement would result in all or a portion
of such payment to be subject to the excise tax on "golden parachute
payments" under Section 4999 of the Code, then Participant's payment shall be
either (i) the full payment or (ii) such lesser amount which would result in
no portion of the payment being subject to excise tax under Section 4999 of
the Code, whichever of the foregoing amounts, taking into account the
applicable Federal, state, and local employment taxes, income taxes, and the
excise tax imposed by Section 4999 of the Code, results in the receipt by
Participant on an after-tax basis, of the greatest amount of the payment
notwithstanding that all or some portion of the payment may be taxable under
Section 4999 of the Code.
(g) Vested shares of Stock that are purchased, sold, or otherwise
transferred in accordance with the provisions of this Agreement, will retain
the status of vested shares in the hands of the transferee; provided,
however, that if shares of Stock are transferred to an Approved Participant,
such Shares of Stock shall be governed by the terms of the restricted stock
agreement between the Company and the Approved Participant, unless otherwise
determined by the Company in its sole discretion.
7. REQUIRED HOLDINGS AND SALE OF VESTED SHARES.
Sales of vested shares of Stock shall be completed upon the following
terms and conditions:
(a) Provided that Participant continues, after the time of a sale
of vested shares of Stock, to own sufficient shares of Stock to satisfy both
his or her Minimum Shareholdings requirement plus an additional amount equal
to one times annual base salary, valued in accordance with Section 4,
Participant may sell vested shares of Stock through an investment banking or
brokerage firm designated by the Company.
(b) Notwithstanding the foregoing, Participant may not sell shares
of Stock which have been pledged or are otherwise being held as collateral
for a loan from the Company and/or a loan to purchase such shares of Stock.
Such pledged or collateralized shares of Stock may only be released from such
security interest under the terms of that written instrument setting forth
the terms of such security interest. If the only security interest
encumbering such shares of Stock relates to a loan from the Company, the
proceeds of which loan were used to purchase such shares of Stock, and if the
written instrument setting forth the terms of that security interest does not
include a formula for release of such shares of Stock from the security
interest, then the following formula shall apply: Upon each anniversary date
of the loan, the
9.
Company's Stock shall be valued at the end of each of the three (3) preceding
calendar quarters (based on the closing price for the Stock on the last
trading day of each such quarter on the securities exchange or automated
quotation system on which the Company's Stock had the highest average trading
volume for such quarter, or if the end of such quarter occurred prior to the
time that the Company's Stock is traded on a Public Trading Market, the value
based on the Valuation Report applicable to such date), and the lowest of
such three (3) values shall be deemed the "Secured Share Value." The Secured
Share Value shall be multiplied by the number of shares of Stock held under
the security interest and, if the resulting product (the "Aggregate Secured
Share Value") exceeds one hundred twenty percent (120%) of the amount
remaining due under the loan, then the Company shall cause whole shares of
Stock to be released from the security interest until the Aggregate Secured
Share Value no longer exceeds one hundred twenty percent (120%) of the amount
remaining due under the loan.
(c) Once a Participant has (i) attained age 55 and is one hundred
percent (100%) vested in all shares of Stock acquired pursuant to the Plan or
(ii) ceased providing services to the Company or an affiliate of the Company
as an Executive Officer or an equivalent position with an affiliate for a
continuous period of at least six (6) months, then the restrictions of
Section 7(a) shall no longer apply to such Participant.
8. SALE AND PURCHASE OF UNVESTED SHARES OF STOCK.
(a) Upon the termination of Participant's employment for any
reason (excluding death, permanent disability or Change in Ownership) the
Company may, but is not required to, purchase all of Participant's unvested
shares of Stock at the price Participant paid for the shares of Stock plus
the Growth Factor from the date Participant purchased the shares of Stock.
The decision whether to purchase such unvested shares shall be made by the
Company in its sole discretion, and in all events must be communicated to
Participant within sixty (60) days following Participant's termination.
(b) Unvested shares of Stock may not be sold by Participant to
anyone other than the Company under any circumstances unless and until the
Company waives (in writing) its rights under Section 8(a) above or the sixty
(60)-day period set forth in Section 8(a) lapses without the Company having
properly notified Participant.
9. PAYMENT TERMS IF PARTICIPANT COMPETES WITH THE COMPANY.
(a) If Participant competes with the Company during the
Post-Employment Period, then Participant shall (A) automatically forfeit all
unexercised stock options granted to Participant by the Company or any
affiliate of the Company, regardless of whether the stock options are vested
and exercisable, (B) the Company shall have the right, but not the
obligation, to purchase some or all of the shares of Stock owned by
Participant or a Transferee Entity with respect to such Participant under the
terms set forth in Section 9(c) below and Section 11, and (C) Participant and
any Transferee Entity (with respect to such Participant) shall be required to
pay to the Company an amount equal to any profit which Participant or such
Transferee Entity may have realized from any sale of shares of Stock within
six (6) months of the date as of which the Company determines, in its sole
discretion, that Participant began competing with the Company.
10.
(b) Participant shall be deemed to be in competition with the
Company if:
(i) he or she directly or indirectly (as an owner, employee,
independent contractor, or otherwise) engaged in any business activity that
was engaged in by the Company at any time during the one (1)-year period
immediately preceding the time Participant left the employ of the Company
within the Restricted Area;
(ii) within the one (1) year period following the time
Participant left the employ of the Company, provides consulting services (as
distinguished from internal staff services) to a Client with respect to any
substantive matter in which the Company provided consulting services at any
time to any of the Company's Clients during the one (1)-year period
immediately preceding the time Participant left the employ of the Company; or
(iii) within the two (2)-year period following the time
Participant left the employ of the Company, provides any services to a Client
to which Participant provided services while employed by the Company, other
than providing internal staff services as a full-time employee of a Client
(or as a part-time employee of Client, provided that Participant is not
otherwise engaging in conduct that is deemed to be in competition with the
Company).
Notwithstanding any of the foregoing, Participant shall not be
deemed to be in competition with the Company if he or she makes an investment
defined in Section 15(e).
(c) The purchase price for all shares of Stock purchased by the
Company shall be paid over a ten (10)-year period from the date of the
Closing (see Section 11), in equal quarterly installments, without stated
interest. If at the time Participant leaves, Participant is not competing
with the Company, or, in the alternative, the Company is unaware that
Participant is competing with the Company, but later Participant begins
competing with the Company or Company discovers that Participant is competing
with the Company within the Post-Employment Period respectively, then the
payment period shall be extended to a ten (10)-year payout from the date of
the Closing and the payments shall be recalculated by the Company, with
payments payable quarterly, without interest. In the latter case, if the
payments already made to Participant exceed what would have been paid to
Participant on a ten (10)-year payout, then no further payments will be made
until the amount payable exceeds the amount previously paid.
(d) The Board may elect to relax some or all of the provisions of
this Section 9 in its sole discretion.
10. LIMITATIONS ON PAYMENTS BY THE COMPANY. Notwithstanding anything
in this Agreement to the contrary, at no time shall the Company purchase any
shares of its capital stock if such purchase would violate state or federal
law.
11. CLOSING.
(a) With respect to any shares of Stock being purchased by the
Company pursuant to this Agreement, payment by the Company and delivery and
transfer of the shares of Stock to the Company (the "Closing") shall take
place within thirty (30) days after the
11.
occurrence of the Purchase Event. At the Closing the following provisions
shall be applicable to any and all purchases of shares of Stock by the
Company:
(i) At the Closing, the Company shall deliver the applicable
Note representing all or a portion of the Purchase Price, and any required
down payment. If the Company is the beneficiary of life insurance on the
life of Participant, and the Company has received insurance proceeds under
such insurance due to the death of Participant (for the purpose of redeeming
Participant's shares), said proceeds shall be paid in cash at the Closing,
not in excess of the Purchase Price.
(ii) Participant or his or her estate, conservator, guardian,
or Transferee Entity, as the case may be, shall deliver to the Company the
share certificate or certificates for all of the shares being purchased, duly
endorsed for transfer. Additionally, in the case of permanent disability,
there shall be delivered to the Company the Physician's Certificate referred
to in Section 6(c).
(iii) The Company's duty to close any purchase, including the
duty to pay any portion of the Purchase Price, and deliver the Note, is
expressly subject to full performance or satisfaction of all terms and
conditions that are required to be performed or satisfied by any other person
or entity other than the Company.
(b) Unless otherwise agreed in writing between the parties, the
Closing shall take place at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other place designated by the Company at 10:00 A.M.
on a date mutually satisfactory to the parties within the aforesaid thirty
(30)-day period. If the parties are unable to agree upon a mutually
satisfactory date within said thirty (30)-day period, then the Closing shall
occur on the thirtieth (30th) day following the date of the Purchase Event,
or if the thirtieth (30th) day is a Saturday, Sunday, or legal holiday, then
the Closing shall occur on the next business day.
(c) Notwithstanding any other provision of this Agreement, if a
Purchase Event results due to death or permanent disability (determined
pursuant to Section 6(c)) of Participant, the Closing Date shall be extended
for such period of time as may be reasonably required for the appointment of
a personal representative of the deceased or disabled stockholder, and for
the obtaining of probate court instructions, approvals, or confirmations
required by law, or until such time as full legal and equitable tax-free
title to the shares of Stock can be transferred to the Company.
(d) Further, notwithstanding any other provision of this
Agreement, the Closing of the purchase shall be subject to any approvals as
may be required from federal and/or state regulatory authorities.
12. COST BASIS OF SHARES UNDER CERTAIN CIRCUMSTANCES AND VESTING
EXCEPTIONS.
(a) All shares owned by a Plan Participant for at least three
years as of December 31, 1993, for purposes of all under the Plan, shall be
deemed to have a cost basis of $1.765 per share. With respect to shares, the
Growth Factor shall commence accruing on January 1, 1994. Shares owned by a
Plan Participant which have not been held for at least three years as of
December 31, 1993, shall for purposes of repurchase rights held by the
Company
12.
under the Plan, have a cost basis equal to their actual cost until the shares
have been held for three years, at which time their cost basis for purposes
of repurchase rights held by the Company under the Plan shall be deemed to be
$1.765. With respect to such shares, the Growth Factor shall commence to
accruing on January 1, 1994 or the date the shares were purchased, whichever
is later.
(b) Notwithstanding the vesting schedule set forth in Section
6(a), shares of Stock owned by the following Plan Participants shall be fully
vested in such Participant at such time as the Participant attains age 55
with continuous full time service as an Executive Officer: ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇.
13. TRANSFERS TO A REVOCABLE LIVING TRUST, FAMILY LIMITED LIABILITY
COMPANY, FAMILY LIMITED PARTNERSHIP, PRIVATE FOUNDATION, OR SIMILAR ESTATE
PLANNING ENTITY OR CHARITABLE GIFT PLANNING ENTITY. Notwithstanding anything
in this Agreement to the contrary, Participant may make a gift of his or her
shares of Stock to: (i) a revocable living grantor trust established for the
benefit of the Participant or his or her family, (ii) a family limited
liability company established for the benefit of the Participant or his or
her family, (iii) a family limited partnership established for the benefit of
the Participant or his or her family, or (iv) with respect to which
Participant is a "disqualified person" within the meaning of Section 4946 of
the Code, or similar estate planning entity or charitable gift planning
entity ("Transferee Entity"), subject to the satisfaction, as applicable, of
all of the following:
(a) The trustee, manager, general partner, president, or
comparable authorized person of the Transferee Entity shall, prior to
obtaining possession of shares of such Stock, sign a copy of this Agreement
or other document signifying that the entity and all persons having an
economic ownership interest thereunder are bound by the terms of this
Agreement, and shall make no further distribution, conveyance, or transfer
other than as herein provided.
(b) Concurrent with the transfer or gift, the trustee, manager,
general partner, president, or comparable authorized person of the Transferee
Entity shall execute an irrevocable proxy granting the transferor of the
Stock the right to vote the Stock transferred for the maximum period
permitted under the then applicable law; and which proxy, shall be renewed
for like periods so long as the Transferee Entity is a stockholder of the
Company, and so long as this Agreement is in force, in order to carry out the
purposes of this Agreement.
(c) With respect to transfers to a trust, Participant shall at all
times retain the right, during his or her lifetime, to re-acquire the shares
of Stock transferred to the trust, except to the extent that such
reacquisition would be a violation of federal or state law.
(d) Upon the occurrence of a Purchase Event, the Transferee
Entity, if then the owner of shares of Stock, shall transfer and sell all of
the shares of Stock transferred to the Transferee Entity by Participant, upon
the same terms and conditions that would have applied had the Stock been
owned by Participant at the time of such Purchase Event.
(e) As a condition to the transfer to the Transferee Entity,
Participant may, at the Company's option, be required to provide a copy of
the governing documents for such
13.
Transferee Entity to the Company, and to certify that the Transferee Entity
satisfies all applicable legal and tax requirements for such type of entity.
(f) Any transfer of shares of Stock to a Transferee Entity which
does not satisfy all the applicable requirements set forth in this Section
13, as determined in the sole discretion of the Company, may be declared by
the Company to be void, and the Company shall not be required to reflect the
attempted change of ownership in the books and records of the Company.
14. REPRESENTATIONS AND WARRANTIES OF PARTICIPANT. As an inducement to
the Company to issue and sell the shares of Stock to Participant, Participant
represents, warrants and covenants to Company, which shall be continuing
representations, warranties and covenants applicable at any time Participant
purchases shares of Stock, subject to the provisions of Section 14(f), as
follows:
(a) That any shares of Stock acquired by Participant will be
acquired for Participant's own account, for investment, and not with a view
to or for sale in connection with any distribution of such shares.
(b) (i) That Participant has a preexisting business relationship
with Company and/or one or more of its officers or directors; or
(ii) By reason of Participant's business or financial
experience or the business experience of his professional advisors who are
unaffiliated with and who are not compensated by the Company or any affiliate
or selling agent of the Company, directly or indirectly, Participant has the
capacity to protect his own interests in connection with the acquisition of
such shares of Stock and to evaluate the risks and rewards of investing in
such shares of Stock.
(c) That Participant is an Executive Officer of the Company.
(d) That Participant has reviewed the Company's financial
statements and such other information as Participant deemed important and
that Participant has had the opportunity to and has asked questions of
representatives of the Company pertaining to such financial statements and
other information and has received satisfactory answers to such questions.
(e) That the offer and sale of the shares of Stock was not
accomplished by the publication of any advertising.
(f) The provisions of this Section 14 shall no longer apply at any
time when the Company's Stock is traded on a Public Trading Market to the
extent that the shares of Stock acquired by Participant during such time have
been registered or qualified under applicable securities law or an exemption
from such registration and qualification requirements is available which does
not require Participant to make the representations set forth above.
14.
15. NON-COMPETE/NON-SOLICITATION RESTRICTIONS.
(a) Until such time that Participant is neither an employee nor a
stockholder of the Company, Participant agrees that he or she will not,
directly or indirectly, own an interest in, operate, join, control, or
participate in, or be connected as an officer, employee, agent, independent
contractor, partner, stockholder, or principal of any corporation,
partnership, proprietorship, firm, association, person, or other entity
producing, designing, providing, soliciting orders for, selling,
distributing, or marketing products, goods, equipment, and/or services which
directly or indirectly compete with the Company's business.
(b) Until such time that Participant is neither an employee or
stockholder of the Company, and during the Post-Employment Period,
Participant agrees that he or she will not, directly or indirectly, either
for himself or herself or for any other person, firm, or corporation, divert
or take away or attempt to divert or take away (and during the
Post-Employment Period, call on or solicit or attempt to call on or solicit)
any of the Company's customers or clients, including but not limited to those
upon whom Participant called or whom Participant solicited or to whom
Participant catered or with whom Participant became acquainted while engaged
as an employee in the Company's business (See Section 9).
(c) Until such time that Participant is no longer an employee
and/or stockholder of the Company, Participant agrees that he will not
undertake planning for or organization of any business activity competitive
with the Company's business or combine or conspire with other employees or
representatives of the Company's business for the purpose of organizing any
such competitive business activity.
(d) Until such time that Participant is no longer an employee
and/or stockholder of the Company, and thereafter for five years or the term
of any Note given to Participant as part of the purchase price of his shares
of Stock, whichever is longer, Participant agrees that he will not, directly
or indirectly or by action in concert with others, induce or influence (or
seek to induce or influence) any person who is engaged (as an employee,
agent, independent contractor or otherwise) by the Company to terminate his
or her employment or engagement with the Company.
(e) Ownership as a passive investor of five percent (5%) or less
of the shares of a company (1) whose shares are traded on the New York,
American or Pacific Stock Exchange or (2) whose shares are listed for trading
on the Nasdaq National Market and/or The Nasdaq SmallCap Market or (3) whose
shares are listed on a similar stock exchange, shall be excluded from the
provisions of this Section 15, provided that Participant is not otherwise
associated or providing services directly or indirectly with such company or
any affiliate of such company. The Board, in its sole discretion, may permit
a variance from the provisions of this Section 15.
16. TRADE SECRETS.
(a) Participant acknowledges and agrees that during the term of
his or her employment with the Company and in the course of the discharge of
his or her duties with the Company, Participant has or will have access to
and become acquainted with information
15.
concerning the operation of the Company, including without limitation, its
customers, clients, personnel, sales information, marketing information,
planning information, financial information, software programs, services,
competitor information and method of operation, all of which is owned by the
Company, is regularly used in the operation of the Company's business, was
created or compiled by the Company at great expense, gives the Company a
competitive advantage, and constitute trade secrets of the Company.
(b) Participant agrees that Participant will not disclose any such
trade secrets, directly or indirectly, to any other person or use them in any
way, either during the term of Participant's employment with the Company or
at any other time thereafter, except as is required in the course of
Participant's employment with the Company.
(c) Participant further agrees that all files, records, documents,
equipment, and similar items relating to Company's business, whether prepared
by Participant or others, are and shall remain the exclusive property of the
Company and shall be returned to the Company immediately upon the termination
of Participant's employment with the Company.
17. LEGEND ON STOCK CERTIFICATES; ESCROW AND PLEDGE AGREEMENT.
(a) Participant acknowledges and agrees that certificates for
shares of Stock to be issued to Participant may bear some or all of the
following legends as determined by the Company in its sole discretion, and
such additional or modified legends as the Company shall determine are
appropriate to put potential transferees of one or more certificates
representing shares of Stock subject to this Agreement on notice of the terms
and conditions of this Agreement and applicable law affecting such shares.
"The sale, transfer, assignment or hypothecation of the shares
represented by this certificate are subject to substantial restrictions as
set forth in that certain Amended and Restated Restricted Stock Agreement and
any amendments thereto ("Agreement") dated _____________, 199_, between the
Issuer of these shares and the owner of these shares. All of the provisions
of said Agreement are incorporated herein by this reference."
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and have not been
qualified under the California Corporate Securities Law of 1968, as amended,
or the securities laws of any other state. Such shares may not be sold,
transferred, assigned or hypothecated in the absence of such registration or
qualification, or an exemption from such registration and qualification, the
availability of which shall be established to the satisfaction of counsel for
the Company."
(b) If requested by the Company, Participant agrees to deliver
three (3) stock assignments substantially in the form of Exhibit A, duly
endorsed (with date and number of shares left blank), joint escrow
instructions (the "Joint Escrow Instructions") substantially in the form of
Exhibit B, duly executed by Participant, and if some or all of the total
Purchase Price is to be paid by promissory Note, an executed pledge agreement
substantially in the form of Exhibit C (the "Pledge Agreement") under which
all shares of the Stock acquired by Note shall be pledged as collateral
security for the payment of the indebtedness represented by the Note; and
16.
including, if requested by the Company, endorsed certificates representing
the appropriate number of shares of Stock.
18. ARBITRATION. The parties shall submit any dispute concerning the
interpretation of or the enforcement of rights and duties under this
Agreement to final and binding arbitration pursuant to the Commercial
Arbitration Rules of the American Arbitration Association, in Los Angeles,
California. At the request of any party, the arbitrators, attorneys, parties
to the arbitration, witnesses, experts, court reporters, or other persons
present at the arbitration shall agree in writing to maintain the strict
confidentiality of the arbitration proceedings. Arbitration shall be
conducted by a single, neutral arbitrator, or, at the election of any party,
three neutral arbitrators, appointed in accordance with the Commercial
Arbitration Rules of the American Arbitration Association. The arbitrator(s)
shall be attorneys in practice for at least ten years, and experienced in the
matter(s) being arbitrated. In any such arbitration, California Code of
Civil Procedure Section 1283.05 (Right to Discovery; Procedure and
Enforcement) shall be applicable. The award of the arbitrator(s) shall be
enforceable according to the applicable provisions of the California Code of
Civil Procedure. The arbitrator(s) shall have the same powers as those of a
judge of the Superior Court of the State of California, and shall render a
decision as would a judge of the Superior Court of the State of California;
PROVIDED, HOWEVER, the arbitrator(s) shall not have the authority or power to
award punitive or exemplary damages, and specifically shall have the
authority to grant equitable and injunctive relief. If proper notice of any
hearing has been given, the arbitrator(s) will have full power to proceed to
take evidence or to perform any other acts necessary to arbitrate the matter
in the absence of any party who fails to appear.
19. JURY TRIAL WAIVERS. TO THE FULLEST EXTENT PERMITTED BY LAW, AND AS
SEPARATELY BARGAINED-FOR CONSIDERATION, EACH PARTY HEREBY WAIVES ANY RIGHT TO
TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, OR COUNTERCLAIM OF ANY KIND
ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY HEREBY EXPRESSLY
ACKNOWLEDGES THE INCLUSION OF THIS JURY TRIAL WAIVER BY ITS OR HIS INITIALS
SET FORTH BELOW.
"Company" "Participant"
Initials Initials
----------------- -----------------
Initials Initials
20. PLAN INCORPORATED BY REFERENCE. This Agreement is subject to all
of the terms and conditions of the Plan, all of which are incorporated herein
by reference. Participant acknowledges having received and reviewed a copy of
the Plan.
21. REPORTS TO PARTICIPANTS. The Company shall provide Participant
with audited financial statements concerning the Company on an annual basis
as soon as reasonably practical after the close of a fiscal year and shall
also provide such other materials as shall be required by law to be provided
to stockholders of the Company.
17.
22. BINDING UPON SUCCESSORS. Subject to the restrictions on transfer
set forth in this Agreement, the provisions of this Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, legal representatives, trustees,
successors and assigns.
23. CERTAIN ADJUSTMENTS. If from time to time during the term of this
Agreement there is any stock dividend, stock split or other change in the
Stock subject to this Agreement, then, in such event, any securities to which
Participant is entitled through ownership of Stock subject to this Agreement
will be immediately subject to this Agreement and be included in the word
"Stock" for all purposes of this Agreement with the same force and effect as
the shares of Stock then subject to this Agreement. As provided in the Plan,
if any change is made in the Stock subject to this Agreement (through merger,
consolidation, reorganization, recapitalization, reincorporation, stock
dividend, dividend in property other than cash, stock split, liquidating
dividend, combination of shares, exchange of shares, change in corporate
structure or other transaction not involving the receipt of consideration by
the Company), this Agreement will be appropriately adjusted in the type(s)
and number of securities and price per share of Stock.
24. GOVERNING LAW, INTERPRETATION AND VENUE. This Agreement shall be
interpreted and enforced in accordance with the internal laws of [state of
Participant's residence]. The provisions of this Agreement shall be interpreted
in accordance with their plain meaning. No provision of this Agreement shall be
interpreted against a party as a consequence of that party having drafted said
provision. It is the intent of the parties that all issues concerning this
Agreement be arbitrated in accordance with the provisions of Section 18.
Nevertheless, should any legal action or proceeding be brought arising out of or
related to this Agreement, the parties agree and irrevocably consent to the
exclusive jurisdiction of the courts of the [state of Participant's residence]
and the federal courts located in the same district as [city of Participant's
residence], with respect to any such legal action or proceeding. Participant
waives any objection based on forum non conveniens or improper venue in
connection with any such action or proceeding.
25. SPECIFIC PERFORMANCE. Each party's obligation under this Agreement
is unique. If any party should default in its obligations under this
Agreement, the parties each acknowledge that it would be extremely
impracticable to measure the resulting damages; accordingly, without
prejudice to its rights to seek and recover monetary damages, the
non-defaulting party shall be entitled to ▇▇▇ in equity for specific
performance of this Agreement, and the parties each hereby expressly waive
the defense that a remedy in damages would be adequate.
26. TERMINATION. This Agreement shall terminate upon the earliest of
the following events:
(a) The written agreement of the Company and Participant to
terminate this Agreement.
(b) The termination of the Plan; provided that any such
termination shall not affect shares of Stock which Participant has previously
purchased.
(c) The liquidation or dissolution of the Company.
18.
27. AMENDMENTS AND WAIVERS. No amendment or waiver of any provision of
this Agreement shall be effective unless and until an instrument reflecting
the amendment or waiver has been executed by the party or parties charged
with such amendment or waiver.
28. CAPTIONS. The captions of sections in this Agreement are provided
for ease of reference only and shall not be used to interpret or modify the
provisions of this Agreement.
29. NOTICES. Any notices to be given hereunder shall be deemed given
upon personal delivery or three business days after mailing, if mailed by
certified mail, return receipt requested, postage prepaid. Notices to
Company shall be addressed to First Consulting Group, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate
Secretary or to any subsequent address of the Company's headquarters which
Participant could be reasonably expected to be aware of. Notices to
Participant shall be addressed to Participant at his or her last known
address shown on the books and records of the Company. Either party may
change his or its address for notices by giving notice of change of address
in accordance herewith.
30. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which
together shall be deemed one and the same instrument.
31. TAX IMPLICATIONS. Participant understands, acknowledges and agrees
that (a) the purchase of shares of Stock, particularly by an employee, has
certain tax consequences; and (b) prior to any purchase or transfer of shares
of Stock, Participant will obtain advice from his or her own tax advisor with
respect to such consequences.
32. ENTIRE AGREEMENT; SUPERSEDES PRIOR AGREEMENT. This Agreement
supersedes any prior restricted stock agreement between the undersigned and
the Company. All shares of the Company's Stock owned by Participant (or a
Transferee Entity with respect to such Participant) at the time this
Agreement is signed, as well as all acquisitions of the Company's Stock
subsequent thereto, shall be subject to the provisions of this Agreement and
any relevant Acquisition Agreement. All prior promises, negotiations,
representations or agreements concerning the subject matter of this Agreement
not expressly set forth in this Agreement or the relevant Acquisition
Agreement are of no force or effect. All references in any document or
instrument referring to the restricted stock agreement shall be deemed to
include a reference to this Agreement. This Agreement and any relevant
Acquisition Agreement shall cover all shares of Stock or other securities of
the Company owned by Participant as of the date of this Agreement, regardless
of the manner in which Participant acquired such shares of Stock or other
securities of the Company, excluding (unless otherwise specifically provided
for in this Agreement or relevant Acquisition Agreement): (i) shares of
Stock held by or for Participant's benefit in the ASOP, and (ii) shares of
Stock acquired upon exercise of a stock option granted by the Company
pursuant to a stock option agreement that expressly indicates that such
shares shall not be covered by this Agreement.
33. GENDER. As used herein, whenever the context so requires, the
masculine gender shall include the feminine and the neuter.
19.
34. NOT AN EMPLOYMENT AGREEMENT. This Agreement is not an agreement to
employ Participant for any fixed or indeterminate period of time. Unless
Participant has a separate written employment agreement specifying otherwise,
Participant is an at-will employee and either the Company or Participant may
terminate Participant's employment at any time without advance notice.
35. EQUITABLE REMEDY FOR BREACH OF NON-COMPETITION, NON-SOLICITATION
AND TRADE SECRET PROVISIONS.
(a) The non-competition, non-solicitation and trade secret
provisions contained in Sections 9, 15 and 16, shall be construed as
covenants independent of any other provision in this Agreement, and the
existence of any claim or cause of action by Participant against the Company,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by the Company of the non-competition,
non-solicitation or trade secret provisions. If any non-competition or
non-solicitation provision(s) in this Agreement is held to be unreasonable,
arbitrary or against public policy, the provision(s) shall be considered
divisible as to time, geographical area, and otherwise. In such case, each
month of the specified period shall be deemed a separate period of time, and
each county of each State in the Restricted Area shall be deemed a separate
geographical area. The parties agree that, in the event any arbitrator or
court of competent jurisdiction determines the specified time period or the
specified geographical area to be unreasonable, arbitrary or against public
policy, a lesser time period or geographical area, which is determined by the
arbitrator or court to be reasonable, non-arbitrary and not against public
policy, may be enforced against Participant.
(b) Participant acknowledges that continued employment with the
Company is adequate consideration for the waiver of a jury trial specifically
for the purposes of this Section 35.
(c) Participant acknowledges that the breach of any
non-competition, non-solicitation or trade secret provision contained in this
Agreement will result in immediate and irreparable damage to the Company and
that money damages alone would be inadequate to compensate the Company.
Therefore, Participant agrees that in the event of a breach or threatened
breach of any of such provisions the Company may, in addition to other
remedies, immediately obtain and enforce injunctive relief, including but not
limited to obtaining and enforcing a temporary restraining order, without
bond, prohibiting the breach of such provision(s) and compelling performance
hereunder, consent to which is hereby specifically given by Participant.
36. SEVERABILITY. Should any provision or portion of this Agreement be
held unenforceable or invalid for any reason, the remaining provisions and
portions of this Agreement shall be unaffected by such holding.
20.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
"PARTICIPANT" "COMPANY"
FIRST CONSULTING GROUP, INC.
By:
--------------------------------- ----------------------------------
(Signature) (Authorized Officer)
Title:
--------------------------------- -------------------------------
(Name Printed)
NOTE: Please initial as indicated in Section 19.
21.
CONSENT OF SPOUSE
I, the undersigned, agree and certify that:
1. I am married to _________________________, who signed the foregoing
Amended and Restated Restricted Stock Agreement ("Agreement"), and who has
the right to become a stockholder and/or is a stockholder of First Consulting
Group, Inc. (the "Company").
2. I have read and approve the provisions of said Agreement including
those relating to the purchase and sale of the shares of Stock of the Company
owned by a deceased, disabled, terminated or terminating stockholder. I
understand that the Agreement supersedes and replaces the Restricted Stock
Agreement previously executed by my spouse.
3. I agree to be bound by all of the provisions of said Agreement,
including but not limited to the provisions regarding the purchase and sale
of shares of Stock, regardless of any interest I may have in said shares of
Stock or rights I may have to purchase or sell shares of Stock of the Company
owned by my spouse, be such interest community property or otherwise. In
consenting hereto, I have either been advised by an attorney of my own
choosing, or personally decided not to seek such advice.
4. In consideration of the execution of said Agreement by the parties
thereto, I agree that if my spouse, the Company, other stockholders or the
ASOP elect(s) to purchase any interest of mine in the said shares of Stock in
accordance with the provisions of said Agreement, I shall execute any and all
documents, and do all acts necessary, to effect such purchase and sale in
accordance with the provisions of the Agreement.
5. This Consent shall be interpreted and enforced under the laws of the
state in which Participant's principal work place is located. Capitalized
terms used in this consent shall have the same meaning set forth in the
Agreement.
Dated: , 199
---------------- --
-------------------------------------
(Signature of Spouse)
-------------------------------------
(Typed name of Spouse)
22.
ATTACHMENT I
GROWTH FACTOR FOR QUARTERS
PRIOR TO OCTOBER 1, 1994
Prime Total
Month Rate Qtr Avg FCG Cost Interest
Jan-94 6.00%
Feb-94 6.00%
Mar-94 6.06% 6.02% 0.50% 6.52%
Apr-94 6.45%
May-94 6.99%
Jun-94 7.25% 6.90% 0.50% 7.40%
Jul-94 7.25%
Aug-94 7.51%
Sep-94 7.75% 7.50% 0.50% 8.00%
23.
EXHIBIT A
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, _______________________ hereby sells, assigns and
transfers unto FIRST CONSULTING GROUP, INC., a Delaware corporation (the
"Company"), pursuant to the Stock Pledge Agreement under that certain
Restricted Stock Agreement, dated _____________, ____, by and between the
undersigned and the Company (the "Agreement"), _______________ (________)
shares of Common Stock of the Company standing in the undersigned's name on
the books of the Company represented by Certificate No(s). _______ and does
hereby irrevocably constitute and appoint the Company's Secretary attorney to
transfer said stock on the books of the Company with full power of
substitution in the premises. This Assignment may be used only in accordance
with and subject to the terms and conditions of the Agreement and the Stock
Pledge Agreement and only to the extent that such shares remain subject to
the Stock Pledge Agreement.
Dated:
---------------
--------------------------------------
(Signature)
--------------------------------------
(Print Name)
24.
EXHIBIT B
JOINT ESCROW INSTRUCTIONS
Secretary
FIRST CONSULTING GROUP, INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
As Escrow Agent for both FIRST CONSULTING GROUP, INC., a Delaware corporation
("Corporation") and ___________________ ("Purchaser"), you are hereby
authorized and directed to hold the documents delivered to you pursuant to
the terms of that certain Restated Stock Purchase Agreement ("Agreement")
dated as of ___________________, to which a copy of these Joint Escrow
Instructions is attached in accordance with the following instructions:
1. In the event Corporation or an assignee shall elect to exercise the
purchase option set forth in the Agreement, the Corporation or its assignee
will give to Purchaser and you a written notice specifying the number of
shares of stock to be purchased, the purchase price, and the time for a
closing thereunder at the principal office of the Corporation. Purchaser and
the Corporation hereby irrevocably authorize and direct you to close the
transaction contemplated by such notice in accordance with the terms of said
notice.
2. At the closing, you are directed (a) to date the stock assignments
necessary for the transfer in question, (b) to fill in the number of shares
being transferred, and (c) to deliver the same, together with the certificate
evidencing the shares of stock to be transferred, to the Corporation against
the simultaneous delivery to you of the purchase price (which may include
suitable acknowledgment of cancellation of indebtedness) for the number of
shares of stock being purchased pursuant to the exercise of the Purchase
Option.
3. Purchaser irrevocably authorizes the Corporation to deposit with you
any certificates evidencing shares of stock to be held by you hereunder and
any additions and substitutions to said shares as specified in the Agreement.
Purchaser does hereby irrevocably constitute and appoint you as his
attorney-in-fact and agent for the term of this escrow to execute with
respect to such securities all documents necessary or appropriate to make
such securities negotiable and complete any transaction herein contemplated,
including but not limited to any appropriate filing with state or government
officials or bank officials. Subject to the provisions of this paragraph 3,
Purchaser shall exercise all rights and privileges of a shareholder of the
Corporation while the stock is held by you.
4. This escrow shall terminate upon the exercise in full or expiration
of the Purchase Option, whichever occurs first.
5. If at the time of termination of this escrow you should have in your
possession any documents, securities, or other property belonging to
Purchaser, you shall deliver all of the same
25.
to Purchaser and shall be discharged of all further obligations hereunder;
provided, however, that if at the time of termination of this escrow you are
advised by the Corporation that any property subject to this escrow is the
subject of a pledge or other security agreement, you shall deliver all such
property to the pledgeholder or other person designated by the Corporation.
6. Except as otherwise provided in these Joint Escrow Instructions, your
duties hereunder may be altered, amended, modified or revoked only by a
writing signed by all of the parties hereto.
7. You shall be obligated only for the performance of such duties as are
specifically set forth herein and may rely and shall be protected in relying
or refraining from acting on any instrument reasonably believed by you to be
genuine and to have been signed or presented by the proper party or parties.
You shall not be personally liable for any act you may do or omit to do
hereunder as Escrow Agent or as attorney-in-fact for Purchaser while acting
in good faith and in the exercise of your own good judgment, and any act done
or omitted by you pursuant to the advice of your own attorneys shall be
conclusive evidence of such good faith.
8. You are hereby expressly authorized to disregard any and all warnings
given by any of the parties hereto or by any other person or corporation,
excepting only orders or process of courts of law, and are hereby expressly
authorized to comply with and obey orders, judgments or decrees of any court.
In case you obey or comply with any such order, judgment or decree of any
court, you shall not be liable to any of the parties hereto or to any other
person, firm or corporation by reason of such compliance, notwithstanding any
such order, judgment or decree being subsequently reversed, modified,
annulled, set aside, vacated or found to have been entered without
jurisdiction.
9. You shall not be liable in any respect on account of the identity,
authorities or rights of the parties executing or delivering or purporting to
execute or deliver the Agreement or any documents or papers deposited or
called for hereunder.
10. You shall not be liable for the outlawing of any rights under any
statute of limitations with respect to these Joint Escrow Instructions or any
documents deposited with you.
11. Your responsibilities as Escrow Agent hereunder shall terminate if
you shall cease to be Secretary of the Corporation -or if you shall resign by
written notice to each party. In the event of any such termination, the
Corporation shall appoint any officer or assistant officer of the Corporation
as successor Escrow Agent, and Purchaser hereby confirms the appointment of
such successor as his attorney-in-fact and agent to the full extent of your
appointment.
12. If you reasonably require other or further instruments in connection
with these Joint Escrow Instructions or obligations in respect hereto, the
necessary parties hereto shall join in furnishing such instruments.
13. It is understood and agreed that should any dispute arise with
respect to the delivery and/or ownership or right of possession of the
securities held by you hereunder, you are authorized and directed to retain
in your possession without liability to anyone all or any part of said
securities until such dispute shall have been settled either by mutual
written agreement of the parties concerned or by a final order, decree or
judgment of a court of competent jurisdiction
26.
after the time for appeal has expired and no appeal has been perfected, but
you shall be under no duty whatsoever to institute or defend any such
proceedings.
14. Any notice required or permitted hereunder shall be given in writing
and shall be deemed effectively given upon personal delivery, including
delivery by express courier, or five (5) days after deposit in the United
States Post Office, by registered or certified mail with postage and fees
prepaid, addressed to each of the other parties entitled to such notice at
the following addresses, or at such other addresses as a party may designate
by ten days' advance written notice to each of the other parties hereto.
CORPORATION: FIRST CONSULTING GROUP, INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇. ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
PURCHASER: [PURCHASER NAME]
---------------------------------
---------------------------------
---------------------------------
ESCROW AGENT: SECRETARY
First Consulting Group, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇. ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
15. By signing these Joint Escrow Instructions, you become a party
hereto only for the purpose of said Joint Escrow Instructions; you do not
become a party to the Agreement.
16. You shall be entitled to employ such legal counsel and other experts
(including, without limitation, the firm of ▇▇▇▇▇▇ Godward LLP) as you may
deem necessary properly to advise you in connection with your obligations
hereunder. You may rely upon the advice of such counsel, and you may pay such
counsel reasonable compensation therefor. The Corporation shall be
responsible for all fees generated by such legal counsel in connection with
your obligations hereunder.
17. This instrument shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns. It
is understood and agreed that references to "you" and "your" herein refer to
the original Escrow Agents. It is understood and agreed that the Corporation
may at any time or from time to time assign its rights under the Agreement
and these Joint Escrow Instructions.
27.
18. This Agreement shall be governed by and interpreted and determined
in accordance with the laws of the State of __________, as such laws are
applied by __________ courts to contracts made and to be performed entirely
in __________ by residents of that state.
Very truly yours,
FIRST CONSULTING GROUP, INC.
By
---------------------------------
[Name and Title]
PURCHASER:
---------------------------------
[NAME]
ESCROW AGENT:
[NAME]
28.
EXHIBIT C
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT ("Pledge Agreement") is made by
______________, an individual with a residence at ____________ ("Pledgor"),
in favor of First Consulting Group, Inc., a Delaware corporation with its
principal place of business at Long Beach, California ("Pledgee").
WHEREAS, Pledgor has concurrently herewith executed that certain
Promissory Note (the "Note") in favor of Pledgee in the amount of
____________________ ($_________) in payment of the purchase price of
________________________ (___) shares of the Common Stock of Pledgee; and
WHEREAS, Pledgee is willing to accept the Note from Pledgor, but only
upon the condition, among others, that Pledgor shall have executed and
delivered to Pledgee this Pledge Agreement and the Collateral (as defined
below):
NOW, THEREFORE, in consideration of the foregoing recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, and intending to be legally bound, Pledgor hereby agrees as
follows:
1. As security for the full, prompt and complete payment and performance
when due (whether by stated maturity, by acceleration or otherwise) of all
indebtedness of Pledgor to Pledgee created under the Note (all such
indebtedness being the "Liabilities"), together with, without limitation, the
prompt payment of all expenses, including, without limitation, reasonable
attorneys' fees and legal expenses, incidental to the collection of the
Liabilities and the enforcement or protection of Pledgee's lien in and to the
collateral pledged hereunder, Pledgor hereby pledges to Pledgee, and grants
to Pledgee, a first priority security interest in all of the following
(collectively, the "Pledged Collateral"):
(a) ________________________ (___) shares of Common Stock of Pledgee
represented by Certificates numbered ________________ (the "Pledged Shares"),
and all dividends, cash, instruments, and other property or proceeds from time
to time received, receivable, or otherwise distributed in respect of or in
exchange for any or all of the Pledged Shares;
(b) all voting trust certificates held by Pledgor evidencing the
right to vote any Pledged Shares subject to any voting trust; and
(c) all additional shares and voting trust certificates from time
to time acquired by Pledgor in any manner (which additional shares shall be
deemed to be part of the Pledged Shares), and the certificates representing
such additional shares, and all dividends, cash, instruments, and other
property or proceeds from time to time received, receivable, or otherwise
distributed in respect of or in exchange for any or all of such shares.
29.
The term "indebtedness" is used herein in its most comprehensive sense
and includes any and all advances, debts, obligations and Liabilities
heretofore, now or hereafter made, incurred or created, whether voluntary or
involuntary and whether due or not due, absolute or contingent, liquidated or
unliquidated, determined or undetermined, and whether recovery upon such
indebtedness may be or hereafter becomes unenforceable.
2. At any time, without notice, and at the expense of Pledgor, Pledgee
in its name or in the name of its nominee or of Pledgor may, but shall not be
obligated to: (1) collect by legal proceedings or otherwise all dividends
(except cash dividends other than liquidating dividends), interest, principal
payments and other sums now or hereafter payable upon or on account of said
Pledged Collateral; (2) enter into any extension, reorganization, deposit,
merger or consolidation agreement, or any agreement in any wise relating to
or affecting the Pledged Collateral, and in connection therewith may deposit
or surrender control of such Pledged Collateral thereunder, accept other
property in exchange for such Pledged Collateral and do and perform such acts
and things as it may deem proper, and any money or property received in
exchange for such Pledged Collateral shall be applied to the indebtedness or
thereafter held by it pursuant to the provisions hereof; (3) insure, process
and preserve the Pledged Collateral; (4) cause the Pledged Collateral to be
transferred to its name or to the name of its nominee; (5) exercise as to
such Pledged Collateral all the rights, powers and remedies of an owner,
except that so long as no default exists under the Note or hereunder Pledgor
shall retain all voting rights as to the Pledged Shares.
3. Pledgor agrees to pay prior to delinquency all taxes, charges, liens
and assessments against the Pledged Collateral, and upon the failure of
Pledgor to do so, Pledgee at its option may pay any of them and shall be the
sole judge of the legality or validity thereof and the amount necessary to
discharge the same.
4. At the option of Pledgee and without necessity of demand or notice,
all or any part of the indebtedness of Pledgor shall immediately become due
and payable irrespective of any agreed maturity, upon the happening of any of
the following events: (1) failure to keep or perform any of the terms or
provisions of this Pledge Agreement; (2) failure to pay any installment of
principal or interest on the Note when due; (3) the levy of any attachment,
execution or other process against the Pledged Collateral; or (4) the
insolvency, commission of an act of bankruptcy, general assignment for the
benefit of creditors, filing of any petition in bankruptcy or for relief
under the provisions of Title 11 of the United States Code of, by, or against
Pledgor.
5. In the event of the nonpayment of any indebtedness when due, whether
by acceleration or otherwise, or upon the happening of any of the events
specified in the last preceding paragraph, Pledgee may then, or at any time
thereafter, at its election, apply, set off, collect or sell in one or more
sales, or take such steps as may be necessary to liquidate and reduce to cash
in the hands of Pledgee in whole or in part, with or without any previous
demands or demand of performance or notice or advertisement, the whole or any
part of the Pledged Collateral in such order as Pledgee may elect, and any
such sale may be made either at public or private sale at its place of
business or elsewhere, or at any broker's board or securities exchange,
either for cash or upon credit or for future delivery; provided, however,
that if such disposition is at private sale, then the purchase price of the
Pledged Collateral shall be equal to the public market price then in effect,
or, if at the time of sale no public market for the Pledged Collateral
30.
exists, then, in recognition of the fact that the sale of the Pledged
Collateral would have to be registered under the Securities Act of 1933 and
that the expenses of such registration are commercially unreasonable for the
type and amount of collateral pledged hereunder, Pledgee and Pledgor hereby
agree that such private sale shall be at a purchase price mutually agreed to
by Pledgee and Pledgor or, if the parties cannot agree upon a purchase price,
then at a purchase price established by a majority of three independent
appraisers knowledgeable of the value of such collateral, one named by
Pledgor within 10 days after written request by the Pledgee to do so, one
named by Pledgee within such 10 day period, and the third named by the two
appraisers so selected, with the appraisal to be rendered by such body within
30 days of the appointment of the third appraiser. The cost of such
appraisal, including all appraiser's fees, shall be charged against the
proceeds of sale as an expense of such sale. Pledgee may be the purchaser of
any or all Pledged Collateral so sold and hold the same thereafter in its own
right free from any claim of Pledgor or right of redemption. Demands of
performance, notices of sale, advertisements and presence of property at sale
are hereby waived, and Pledgee is hereby authorized to sell hereunder any
evidence of debt pledged to it. Any sale hereunder may be conducted by any
officer or agent of Pledgee.
6. The proceeds of the sale of any of the Pledged Collateral and all
sums received or collected by Pledgee from or on account of such Pledged
Collateral shall be applied by Pledgee to the payment of expenses incurred or
paid by Pledgee in connection with any sale, transfer or delivery of the
Pledged Collateral, to the payment of any other costs, charges, attorneys'
fees or expenses mentioned herein, and to the payment of the indebtedness or
any part hereof, all in such order and manner as Pledgee in its discretion
may determine. Pledgee shall then pay any balance to Pledgor.
7. Upon the transfer of all or any part of the indebtedness Pledgee may
transfer all or any part of the Pledged Collateral and shall be fully
discharged thereafter from all liability and responsibility with respect to
such Pledged Collateral so transferred, and the transferee shall be vested
with all the rights and powers of Pledgee hereunder with respect to such
Pledged Collateral so transferred; but with respect to any Pledged Collateral
not so transferred Pledgee shall retain all rights and powers hereby given.
8. Until all indebtedness shall have been paid in full the power of sale
and all other rights, powers and remedies granted to Pledgee hereunder shall
continue to exist and may be exercised by Pledgee at any time and from time
to time irrespective of the fact that the indebtedness or any part thereof
may have become barred by any statute of limitations, or that the personal
liability of Pledgor may have ceased.
9. Pledgee agrees that so long as no default exists under the Note or
hereunder, the Pledged Shares shall, upon the request of Pledgor, be released
from pledge as the indebtedness is paid. Such releases shall be at the rate
of one share for each ________________________________ ($_____) of principal
amount of indebtedness paid. Release from pledge, however, shall not result
in release from the provisions of those certain Joint Escrow Instructions, if
any, of even date herewith among the parties to this Pledge Agreement and the
Escrow Agent named therein.
31.
10. Pledgee may at any time deliver the Pledged Collateral or any part
thereof to Pledgor and the receipt of Pledgor shall be a complete and full
acquittance for the Pledged Collateral so delivered, and Pledgee shall
thereafter be discharged from any liability or responsibility therefor.
11. The rights, powers and remedies given to Pledgee by this Pledge
Agreement shall be in addition to all rights, powers and remedies given to
Pledgee by virtue of any statute or rule of law. Any forbearance or failure
or delay by Pledgee in exercising any right, power or remedy hereunder shall
not be deemed to be a waiver of such right, power or remedy, and any single
or partial exercise of any right, power or remedy hereunder shall not
preclude the further exercise thereof; and every right, power and remedy of
Pledgee shall continue in full force and effect until such right, power or
remedy is specifically waived by an instrument in writing executed by Pledgee.
12. If any provision of this Pledge Agreement is held to be
unenforceable for any reason, it shall be adjusted, if possible, rather than
voided in order to achieve the intent of the parties to the extent possible.
In any event, all other provisions of this Pledge Agreement shall be deemed
valid and enforceable to the full extent possible.
13. This Pledge Agreement shall be governed by, and construed in
accordance with, the laws of the State of __________ as applied to contracts
made and performed entirely within the State of __________ by residents of
such State.
Dated: .
---------------
PLEDGOR -------------------------------------
Printed Name:
------------------------
32.