EXHIBIT 10.11
OPEN SOLUTIONS INC.
Restricted Stock Agreement
Granted Under [2000/2003] Stock Incentive Plan
AGREEMENT made on ____________, between Open Solutions Inc., a Delaware
corporation (the "Company"), and _______________ (the "Participant").
For valuable consideration, receipt of which is acknowledged, the
parties hereto agree as follows:
(1) Issuance of Shares.
The Company shall issue to the Participant, subject to the terms and
conditions set forth in this Agreement and in the Company's [2000/2003] Stock
Incentive Plan (the "Plan"), _________ shares (the "Shares") of common stock,
$0.01 par value per share, of the Company ("Common Stock"). The Shares will be
held in book entry by the Company's transfer agent in the name of the
Participant for that number of Shares issued to the Participant. The Participant
agrees that the Shares shall be subject to the forfeiture provisions set forth
in Section 2 of this Agreement and the restrictions on transfer set forth in
Section 3 of this Agreement.
(2) Vesting.
(a) The Shares shall vest and become free from the
forfeiture provisions in Section 2(b) hereof and become free from the transfer
restrictions in Section 3 hereof in five equal annual installments beginning on
the first anniversary of the date of this Agreement.
(b) In the event that the Shares do not vest in
accordance with Section 2(a), then, all of the Shares shall be forfeited
immediately and automatically to the Company and the Participant shall have no
further rights with respect to such Shares.
(c) In the event that the Participant's employment with
the Company is terminated by reason of the Participant's death or disability,
the Shares shall vest in full and become free from the forfeiture provisions in
Section 2(b) hereof and become free from the transfer restrictions in Section 3
hereof.
(d) For purposes of this Agreement, employment with the
Company shall include employment with a parent or subsidiary of the Company, or
any successor to the Company.
(3) Restrictions on Transfer.
(a) The Participant shall not sell, assign, transfer,
pledge, hypothecate or otherwise dispose of, by operation of law or otherwise
(collectively "transfer") any Shares, or any interest therein, until such Shares
have vested, except that the Participant may transfer such Shares (i) to or for
the benefit of any spouse, children, parents, uncles, aunts, siblings,
grandchildren and any other relatives approved by the Board of Directors
(collectively, "Approved Relatives") or to a trust established solely for the
benefit of the Participant and/or
Approved Relatives, provided that such Shares shall remain subject to this
Agreement (including without limitation the restrictions on transfer set forth
in this Section 3 and the forfeiture provisions contained in Section 2) and such
permitted transferee shall, as a condition to such transfer, deliver to the
Company a written instrument confirming that such transferee shall be bound by
all of the terms and conditions of this Agreement or (ii) as part of the sale of
all or substantially all of the shares of capital stock of the Company
(including pursuant to a merger or consolidation), provided that, in accordance
with the Plan and except as otherwise provided herein, the securities or other
property received by the Participant in connection with such transaction shall
remain subject to this Agreement.
(b) The Company shall not be required (i) to transfer on
its books any of the Shares which have been transferred in violation of any of
the provisions set forth in this Agreement or (ii) to treat as owner of such
Shares or to pay dividends to any transferee to whom such Shares have been
transferred in violation of any of the provisions of this Agreement.
(4) Restrictive Legends.
All Shares subject to this Agreement subject to the following
restriction, in addition to any other legends that may be required under federal
or state securities laws:
"The shares of stock represented by this certificate are
subject to forfeiture provisions and restrictions on transfer
set forth in a certain Restricted Stock Agreement between the
corporation and the registered owner of these shares (or his
predecessor in interest), and such Agreement is available for
inspection without charge at the office of the Secretary of
the corporation."
(5) Provisions of the Plan.
This Agreement is subject to the provisions of the Plan, a copy of
which is furnished to the Participant with this Agreement.
(6) Withholding Taxes; Section 83(b) Election.
(a) The Participant acknowledges and agrees that the
Company has the right to deduct from payments of any kind otherwise due to the
Participant any federal, state, local or other taxes of any kind required by law
to be withheld with respect to the issuance of the Shares to the Participant or
the lapse of the forfeiture provisions. For so long as the Common Stock is
registered under the Securities Exchange Act of 1934, as amended, the
Participant may satisfy such tax obligations in whole or in part by delivery of
shares of Common Stock, including vested Shares, valued at their Fair Market
Value (as defined in the Plan); provided, however, that the total tax
withholding where stock is being used to satisfy such tax obligations cannot
exceed the Company's minimum statutory withholding obligations (based on minimum
statutory withholding rates for federal and state tax purposes, including
payroll taxes, that are applicable to such supplemental taxable income). Shares
surrendered to satisfy tax withholding requirements cannot be subject to any
repurchase, forfeiture, unfulfilled vesting or other similar requirements.
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(b) The Participant has reviewed with the Participant's
own tax advisors the federal, state, local and other tax consequences of this
investment and the transactions contemplated by this Agreement. The Participant
is relying solely on such advisors and not on any statements or representations
of the Company or any of its agents. The Participant understands that the
Participant (and not the Company) shall be responsible for the Participant's own
tax liability that may arise as a result of this investment or the transactions
contemplated by this Agreement. The Participant understands that the Participant
may elect to be taxed at the time the Shares are issued rather than when and as
the Shares vest by filing an election under Section 83(b) of the Internal
Revenue Code of 1986 with the I.R.S. within 30 days after the date of purchase.
THE PARTICIPANT ACKNOWLEDGES THAT IT IS SOLELY THE
PARTICIPANT'S RESPONSIBILITY AND NOT THE COMPANY'S TO FILE TIMELY ANY ELECTION
UNDER SECTION 83(b), EVEN IF THE PARTICIPANT REQUESTS THE COMPANY OR ITS
REPRESENTATIVES TO MAKE THIS FILING ON THE PARTICIPANT'S BEHALF.
(7) Miscellaneous.
(a) No Rights to Employment. The Participant acknowledges
and agrees that the vesting of the Shares pursuant to Section 2 hereof is earned
only by satisfaction of the performance conditions and continuing service as an
employee at the will of the Company (not through the act of being hired or being
granted the Shares hereunder). The Participant further acknowledges and agrees
that the transactions contemplated hereunder and the vesting schedule set forth
herein do not constitute an express or implied promise of continued engagement
as an employee for the vesting period, for any period, or at all.
(b) Severability. The invalidity or unenforceability of
any provision of this Agreement shall not affect the validity or enforceability
of any other provision of this Agreement, and each other provision of this
Agreement shall be severable and enforceable to the extent permitted by law.
(c) Waiver. Any provision for the benefit of the Company
contained in this Agreement may be waived, either generally or in any particular
instance, by the Board of Directors of the Company.
(d) Binding Effect. This Agreement shall be binding upon
and inure to the benefit of the Company and the Participant and their respective
heirs, executors, administrators, legal representatives, successors and assigns,
subject to the restrictions on transfer set forth in Section 3 of this
Agreement.
(e) Notice. Each notice relating to this Agreement shall
be in writing and delivered in person or by first class mail, postage prepaid,
to the address as hereinafter provided. Each notice shall be deemed to have been
given on the date it is received. Each notice to the Company shall be addressed
to it at its offices at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Each
notice to the Participant shall be addressed to the Participant at the
Participant's last known address.
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(f) Pronouns. Whenever the context may require, any
pronouns used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns and pronouns shall
include the plural, and vice versa.
(g) Entire Agreement. This Agreement and the Plan
constitute the entire agreement between the parties, and supersede all prior
agreements and understandings, relating to the subject matter of this Agreement.
(h) Amendment. This Agreement may be amended or modified
only by a written instrument executed by both the Company and the Participant.
(i) Governing Law. This Agreement shall be construed,
interpreted and enforced in accordance with the internal laws of the State of
Delaware without regard to any applicable conflicts of laws.
(j) Interpretation. The interpretation and construction
of any terms or conditions of the Plan, or of this Agreement or other matters
related to the Plan by the Compensation Committee of the Board of Directors of
the Company shall be final and conclusive.
(k) Participant's Acknowledgments. The Participant
acknowledges that he or she: (i) has read this Agreement; (ii) has been
represented in the preparation, negotiation, and execution of this Agreement by
legal counsel of the Participant's own choice or has voluntarily declined to
seek such counsel; (iii) understands the terms and consequences of this
Agreement; and (iv) is fully aware of the legal and binding effect of this
Agreement.
(l) Delivery of Certificates. The Participant may request
that the Company deliver the Shares in certificated form with respect to any
Shares that have ceased to be subject to forfeiture pursuant to Section 2.
(m) No Deferral. Notwithstanding anything herein to the
contrary, neither the Company nor the Participant may defer the delivery of the
Shares.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
OPEN SOLUTIONS INC.
By:
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Name:
Title:
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[Name of Participant]
Address:
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