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EXHIBIT 10.16
SERVICESOFT TECHNOLOGIES, INC.
RESTRICTED STOCK AGREEMENT
NAME OF GRANTEE:
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NO. OF SHARES: Shares of Common Stock
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GRANT DATE:
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PER SHARE PURCHASE PRICE: $
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Pursuant to the Servicesoft Technologies, Inc. 1999 Stock Option and Grant
Plan (the "1999 Plan"), Servicesoft Technologies, Inc., a Delaware corporation
(together with all successors thereto, the "Company"), hereby grants, sells and
issues to the person named above (the "Grantee"), who is an officer, employee,
director, consultant or other key person of the Company or any of the
Subsidiaries (as defined below) of the Company, the number of shares of Common
Stock, par value $0.01 per share (together with any successor securities,
including stock of any successor corporation, "Common Stock"), of the Company
indicated above (subject to the provisions below, the "Shares"), for the per
share purchase price specified above, which represents the fair market value per
share on the date of grant, subject to the terms and conditions set forth
herein. The Grantee agrees to the provisions set forth herein and acknowledges
that each such provision is a material condition of the Company's agreement to
issue and sell the Shares to him or her. The Company hereby acknowledges receipt
of $________ in full payment for the Shares. All references to share prices and
amounts herein shall be equitably adjusted to reflect stock splits, stock
dividends, recapitalizations, mergers, reorganizations and similar changes
affecting the capital stock of the Company, and any shares of capital stock of
the Company received on or in respect of Shares in connection with any such
event (including any shares of capital stock or any right, option or warrant to
receive the same or any security convertible into or exchangeable for any such
shares or received upon conversion of any such shares) shall be subject to this
Agreement on the same basis and extent at the relevant time as the Shares in
respect of which they were issued, and shall be deemed Shares as if and to the
same extent they were issued at the date hereof. All capitalized terms used
herein and not otherwise defined shall have the respective meanings set forth in
the 1999 Plan. Unless otherwise provided herein, the Restricted Shares shall be
governed by all of the terms and conditions of the 1999 Plan.
1. DEFINITIONS. For the purposes of this Agreement, the following terms
shall have the following respective meanings.
"ACT" shall mean the Securities Act of 1933, as amended, and the rules and
regulations thereunder.
"CORPORATE TRANSACTION" shall mean any Corporate Transaction as that term
is defined in the 1999 Plan.
"LIQUIDITY EVENT" shall mean (i) a Corporate Transaction or (ii) the
consummation of the first fully underwritten, firm commitment public offering
pursuant to an effective registration statement under the Act, other than on
Form S-4 or S-8 or their then equivalents, covering the
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offer and sale by the Company of its Common Stock which has become effective
under the Act (an "Initial Public Offering").
"PERMITTED TRANSFEREES" shall mean any of the following to whom the Grantee
may transfer Shares hereunder: the Grantee's spouse, children (natural or
adopted), stepchildren or a trust for their sole benefit of which the Grantor is
the settlor; PROVIDED, HOWEVER, that any such trust does not require or permit
distribution of any Shares during the term of this Agreement unless subject to
its terms.
"PERSON" shall mean any individual, corporation, partnership (limited or
general), limited liability company, limited liability partnership, association,
trust, joint venture, unincorporated organization or any similar entity.
"RESTRICTED SHARES" shall initially mean 100% of the Shares being purchased
by the Grantee on the date hereof, provided that 34% shall vest on _________ __,
200_ and 8.25% of the Shares shall become Vested Shares on the seventh day of
each third month thereafter, commencing on _________ __, 200_, such that all of
the Restricted Shares shall become Vested Shares on _________ __, 200_.
Notwithstanding the foregoing, Restricted Shares shall also become Vested Shares
in accordance with SECTION 5 hereof.
"SHARES" shall mean the number of shares of Common Stock being purchased by
the Grantee on the date hereof and any additional shares of Common Stock or
other securities received as a dividend on, or otherwise on account of, the
Shares, as contemplated by the first paragraph of this Agreement.
"SUBSIDIARY" shall mean any corporation or partnership of which stock or
other equity interests possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock or other equity interests is owned
directly or indirectly by the Company.
"TERMINATION EVENT" shall mean the termination of the Grantee's Service
Relationship with the Company and its Subsidiaries for any reason whatsoever,
regardless of the circumstances thereof, and including without limitation upon
death, disability, retirement or discharge or resignation for any reason,
whether voluntary or involuntary. For purposes hereof, the Board of Director's
determination of the reason for termination of the Grantee's Service
Relationship shall be conclusive and binding on the Grantee and the Grantee's
representatives or legatees.
"VESTED SHARES" shall mean all Shares which are not Restricted Shares.
2. PURCHASE AND SALE OF SHARES; INVESTMENT REPRESENTATIONS.
(a) PURCHASE AND SALE. On the date hereof, the Company hereby sells to the
Grantee, and the Grantee hereby purchases from the Company, the number of Shares
set forth above for the purchase price per share set forth above.
(b) INVESTMENT REPRESENTATIONS. In connection with the purchase and sale
of the Shares contemplated by SECTION 2(a) above, the Grantee hereby represents
and warrants to the Company as follows:
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(i) The Grantee is purchasing the Shares for the Grantee's own
account for investment only, and not for resale or with a view to the
distribution thereof.
(ii) The Grantee has had such an opportunity as he or she has deemed
adequate to obtain from the Company such information as is necessary to permit
him or her to evaluate the merits and risks of the Grantee's investment in the
Company and has consulted with the Grantee's own advisers with respect to the
Grantee's investment in the Company.
(iii) The Grantee has sufficient experience in business, financial and
investment matters to be able to evaluate the risks involved in the purchase of
the Shares and to make an informed investment decision with respect to such
purchase.
(iv) The Grantee can afford a complete loss of the value of the Shares
and is able to bear the economic risk of holding such Shares for an indefinite
period.
(v) The Grantee understands that the Shares are not registered under
the Act or any applicable state securities or "blue sky" laws and may not be
sold or otherwise transferred or disposed of in the absence of an effective
registration statement under the Act and under any applicable state securities
or "blue sky" laws (or exemptions from the registration requirements thereof).
The Grantee further acknowledges that certificates representing the Shares will
bear restrictive legends reflecting the foregoing.
3. REPURCHASE OF RESTRICTED SHARES.
(a) REPURCHASE OF RESTRICTED SHARES. Upon the occurrence of a Termination
Event, the Company or its assigns shall have the right and option to repurchase
(the "Repurchase Right") all or any portion of the Restricted Shares held by the
Grantee or any Permitted Transferee as of the date of such Termination Event at
the per share purchase price set forth above, subject to adjustment as provided
herein. The Repurchase right specified herein shall survive and remain in effect
as to Restricted Shares following and notwithstanding any Liquidity Event or
other transaction involving the Company and certificates representing such
Restricted Shares shall bear legends to such effect.
(b) CLOSING PROCEDURE. The Company or its assigns shall effect the
Repurchase Right (if so elected) by delivering or mailing to the Grantee
(and/or, if applicable, any Permitted Transferees) written notice within six (6)
months after the Termination Event, specifying a date within such six-month
period in which the Repurchase shall be effected. Upon such notification, the
Grantee and any Permitted Transferees shall promptly surrender to the Company
any certificates representing the Shares being purchased, together with a duly
executed stock power for the transfer of such Shares to the Company or the
Company's assignee or assignees (if applicable). Upon the Company's or its
assignee's receipt of the certificates from the Grantee or any Permitted
Transferees, the Company or its assignee or assignees shall deliver to him, her
or them a check for the purchase price of the Shares being purchased, PROVIDED,
HOWEVER, that the Company may pay the purchase price for such shares by
offsetting and canceling any indebtedness then owed by the Grantee to the
Company. At such time, the Grantee and/or any holder of the Shares shall deliver
to the Company the certificate or certificates representing the Shares so
repurchased, duly endorsed for transfer, free and clear of any liens or
encumbrances.
(c) REMEDY. Without limitation of any other provision of this Agreement or
other rights, in the event that the Grantee, any Permitted Transferees or any
other person or entity is required
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to sell his or her Shares pursuant to the provisions of this SECTION 3 and in
the further event that he or she refuses or for any reason fails to deliver to
the designated purchaser of such Shares the certificate or certificates
evidencing such Shares together with a related stock power, such designated
purchaser may deposit the purchase price for such Shares with a bank designated
by the Company, or with the Company's independent public accounting firm, as
agent or trustee, or in escrow, for the Grantee, any Permitted Transferees or
other person or entity, to be held by such bank or accounting firm for the
benefit of and for delivery to him, them or it, and/or, in its discretion, pay
such purchase price by offsetting any indebtedness then owed by the Grantee as
provided above. Upon any such deposit and/or offset by the designated purchaser
of such amount and upon notice to the person or entity who was required to sell
the Shares to be sold pursuant to the provisions of this SECTION 3, such Shares
shall at such time be deemed to have been sold, assigned, transferred and
conveyed to such purchaser, the holder thereof shall have no further rights
thereto (other than the right to withdraw the payment thereof held in escrow, if
applicable), and the Company shall record such transfer in its stock transfer
book or in any appropriate manner.
4. RESTRICTIONS ON TRANSFER OF SHARES.
(a) NO TRANSFERS UNLESS AUTHORIZED AND IN COMPLIANCE WITH THIS AGREEMENT.
(i) None of the Shares now owed or hereafter acquired by the Grantee
shall be sold, assigned, transferred, pledged, hypothecated, given away or in
any other manner disposed of or encumbered, whether voluntarily or by operation
of law, unless such transfer is in compliance with all foreign, federal and
state securities laws (including, without limitation, the Act), and such
disposition is in accordance with the terms and conditions of this SECTION 4. In
connection with any transfer of Shares, the Company may require an opinion of
counsel to the transferor, satisfactory to the Company, that such transfer is in
compliance with all foreign, federal and state securities laws (including
without limitation, the Act). No Restricted Shares may be transferred, sold,
assigned or given away, except as set forth in SECTIONS 4(b) OR 4(c) hereof. The
Grantee agrees to give the Company prompt notice of any transfer of Shares to a
Permitted Transferee as contemplated under SECTION 4(b) hereof. Any attempted
disposition of Shares not in accordance with the terms and conditions of this
Agreement shall be null and void, and the Company shall not reflect on its
records any change in record ownership of any Shares pursuant to any such
disposition, shall otherwise refuse to recognize any such disposition and shall
not in any way give effect to any such disposition of any Shares.
(ii) Prior to making any transfer of Vested Shares (other than to a
Permitted Transferee for which notice shall be given as set forth in SECTION
4(a)(i) hereof), the Grantee shall deliver written notice (the "Transfer
Notice") to the Company. The Transfer Notice shall disclose in reasonable detail
the identity of the prospective transferees, the number of shares to be
transferred (the "Offered Shares") and the terms and conditions of such proposed
transfer. By giving the Transfer Notice, the Grantee shall be deemed to have
granted the Company an option to purchase the Offered Shares. The Company may
purchase all or any portion of the Offered Shares upon the same terms and
conditions as those set forth in the Transfer Notice by delivering written
notice of such election to the Grantee within 20 business days after the
Transfer Notice has been given to the Company (the "Election Period"). If the
Company has not elected to purchase or otherwise acquire all of the Offered
Shares prior to the expiration of the Election Period, the Grantee may transfer
such Vested Shares at a price and on terms no more favorable to the transferees
thereof than specified in the Transfer Notice during the 30-day period
immediately following the expiration of the Election Period (the "Transfer
Period"). Any
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Offered Shares not so transferred within the Transfer Period shall be subject to
the provisions of this SECTION 4(a) upon any subsequent transfer. If the Company
has elected to purchase any Offered Shares hereunder, the transfer of such
Offered Shares shall be consummated as soon as practical after the deliver of
the election notice to the Executive, but in any event within 15 days after the
expiration of the Election Period.
(b) TRANSFERS TO PERMITTED TRANSFEREES. Subject to the next sentence of
this SECTION 4(b), the Grantee may sell, assign, transfer or give away any or
all of the Shares without receipt of consideration or for such consideration as
such holder shall determine to Permitted Transferees. No transfer permitted
hereby shall be effective unless the Permitted Transferee to whom the Shares are
proposed to be transferred has delivered to the Company a written acknowledgment
that the Shares to be received by it are subject to the provisions of this
Agreement (including without limitation, the provisions of this SECTION 4) and
that the Permitted Transferee is bound hereby and thereby.
(c) TRANSFERS UPON DEATH. Upon the death of the Grantee, the Vested Shares
held by the Grantee may be transferred and distributed by will or other
instrument taking effect at his death or by the laws of descent and distribution
to the Grantee's estate, executors, administrators and personal representatives,
and then to such holder's heirs, legatees or distributees whether or not such
heirs, legatees or distributees are Permitted Transferees. No transfer permitted
hereby shall be effective unless the transferee to whom the Shares are proposed
to be transferred pursuant to this provision has delivered to the Company a
written acknowledgment that the Shares to be received by it are subject to the
provisions of this Agreement (including without limitation, the provisions of
this SECTION 4) and that such transferee is bound hereby and thereby.
(d) TRANSFERS AFTER LIQUIDITY EVENT. Upon the consummation of a Liquidity
Event, the Grantee may transfer any Vested Shares, with or without consideration
to any Person without restriction other than compliance with the applicable
foreign, federal and state securities laws and payment of any amounts due by
cash or promissory notes issued in consideration for the purchase of such Vested
Shares. In connection with any such transfers, the Company may require an
opinion of counsel to this transferor, notification to the Company, that such
transfer is in compliance with all applicable foreign, federal and state
transition laws (including, without limitation, the Act).
5. EFFECT OF A CORPORATE TRANSACTION. In the event of a Corporate
Transaction, the Restricted Shares shall be subject to termination, assumption,
substitution, adjustment and/or limitation as provided in Section 3 of the 1999
Plan.
6. LEGEND. Any certificate(s) representing the Shares shall carry
substantially the following legend:
"The transferability of this certificate and the shares of stock
represented hereby are subject to the restrictions, terms and
conditions (including repurchase and restrictions against
transfers) contained in a certain Restricted Stock Agreement
between the Company and the holder of this certificate (a copy of
which is available at the offices of the Company for
examination)."
"The shares represented by this certificate have not been
registered under the Securities Act of 1933 or the securities
laws of any state. The shares may not be
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sold or transferred in the absence of such registration or an
exemption from registration.
7. WITHHOLDING TAXES. The Grantee acknowledges and agrees that the
Company or any of its Subsidiaries have the right to deduct from payments of any
kind otherwise due to the Grantee, any federal, state or local taxes of any kind
required by law to be withheld with respect to the purchase of the Shares by the
Grantee. In furtherance of the foregoing the Grantee agrees to elect, in
accordance with Section 83(b) of the Internal Revenue Code of 1986, as amended,
to recognize ordinary income in the year of acquisition of the Shares, and to
pay to the Company all withholding taxes shown as due on his Section 83(b)
election form, or otherwise ultimately determined to be due with respect to such
election, based on the excess, if any, of the fair market value of such Shares
as of the date of the purchase of such Shares by the Grantee over the purchase
price for such Shares.
8. ASSIGNMENT. At the discretion of the Board of Directors of the
Company, the Company shall have the right to assign the right to exercise its
rights with respect to the Repurchase Right or pursuant to SECTION 4(a)(ii) to
any person or persons, in whole or in part in any particular instance, upon the
same terms and conditions applicable to the exercise thereof by the Company, and
such assignee or assignees of the Company shall then take and hold any Shares so
acquired subject to such terms as may be specified by the Company in connection
with any such assignment.
9. MISCELLANEOUS PROVISIONS.
(a) LOCKUP PROVISION. The Grantee and each Permitted Transferee shall
agree, if requested by the Company and any underwriter engaged by the Company,
not to sell or otherwise transfer or dispose of any securities of the Company
(including, without limitation pursuant to Rule 144 under the Act (or any
successor or similar exemptive rule hereafter in effect)) held by them for such
period following the effective date of any registration statement of the Company
filed under the Act as the Company or such underwriter shall specify reasonably
and in good faith, not to exceed 180 days in the case of the Company's Initial
Public Offering or 90 days in the case of any other public offering.
(b) RECORD OWNER: DIVIDENDS. The Grantee and any Permitted Transferees,
during the duration of this Agreement, shall be considered the record owners of
and shall be entitled to vote the Shares. The Grantee and any Permitted
Transferees shall be entitled to receive all dividends and any other
distributions declared on the Shares; PROVIDED, HOWEVER, that the Company is
under no duty to declare any such dividends or to make any such distribution.
(c) EQUITABLE RELIEF. The parties hereto agree and declare that legal
remedies are inadequate to enforce the provisions of this Agreement and that
equitable relief, including specific performance and injunctive relief, may be
used to enforce the provisions of this Agreement.
(d) CHANGE AND MODIFICATIONS. This Agreement may not be orally changed,
modified or terminated, nor shall any oral waiver of any of its terms be
effective. This Agreement may be changed, modified or terminated only by an
agreement in writing signed by the Company and the Grantee.
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(e) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts without regard to
conflict of law principles.
(f) HEADINGS. The headings are intended only for convenience in finding
the subject matter and do not constitute part of the text of this Agreement and
shall not be considered in the interpretation of this Agreement.
(g) SAVING CLAUSE. If any provision(s) of this Agreement shall be
determined to be illegal or unenforceable, such determination shall in no manner
affect the legality or enforceability of any other provision hereof.
(h) NOTICES. All notices, requests, consents and other communications
shall be in writing and be deemed given when delivered personally, by telex or
facsimile transmission or when received if mailed by first class registered or
certified mail, postage prepaid. Notices to the Company or the Grantee shall be
addressed as set forth underneath their signatures below, or to such other
address or addresses as may have been furnished by such party in writing to the
other. Notices to any holder of the Shares other than the Grantee shall be
addressed to the address furnished by such holder to the Company.
(i) BENEFIT AND BINDING EFFECT. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto, their respective successors,
assigns, and legal representatives. The Company has the right to assign this
Agreement, and such assignee shall become entitled to all the rights of the
Company hereunder to the extent of such assignment.
(j) COUNTERPARTS. For the convenience of the parties and to facilitate
execution, this Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the
same document.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company and the Grantee have executed this
Restricted Stock Agreement as of the date first above written.
COMPANY
SERVICESOFT TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇, President & Chief
Executive Officer
GRANTEE:
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Name
Address: