EXHIBIT 10.14
Restricted Stock Agreement Between the Registrant
and Peter J. Smith dated February 29, 1996, as amended.
Amended and Restated
Restricted Stock Agreement
under the ANSYS, Inc.
1994 Stock Option and Grant Plan
By this Amended and Restated Restricted Stock Agreement made and entered
into as of August 11, 1997, ANSYS, Inc. (formerly "SAS Holdings, Inc."), a
Delaware Corporation (the "Company") and Peter J. Smith hereby amend and restate
in its entirety the Restricted Stock Agreement entered into by and between the
Company and Mr. Smith as of February 29, 1996 as follows:
Name of Grantee: Peter J. Smith
Class of Shares: Common Stock
No. of Shares: 130,586/1/ Grant Date: February 29, 1996
Per Share Purchase Price: $2.40
Pursuant to the Company's 1994 Stock Option and Grant Plan (the "Plan"), as
of the Grant Date set forth above, the Company hereby grants, sells and issues
to the person named above (the "Grantee"), who is an officer or full-time
employee 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
("Common Stock"), of the Company indicated above (the "Shares"), for the per
share purchase price specified above, subject to the terms and conditions set
forth herein and in the Plan. 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. All references to
share prices and amounts herein shall be equitably adjusted to reflect stock
splits, stock dividends, recapitalizations 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) 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.
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/1/ Note that all of the numbers expressed herein with respect to the Shares (as
defined herein) reflect the Company's 10 for 1 stock split that occurred on
April 30, 1996.
Section 1. Definitions. For the purposes of this Agreement, the following
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terms shall have the following respective meanings:
"Act" shall mean the Securities Act of 1933, as amended, and the rules
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and regulations thereunder.
"Common Stock" shall mean the Company's Common Stock, par value $.01
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per share.
"Permitted Transferees" shall mean any of the following to whom the
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Grantee may transfer Restricted Shares hereunder: the Grantee's spouse,
parents, brothers, sisters, children (natural or adopted), stepchildren or
grandchildren 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
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distribution of any Shares during the term of this Agreement unless subject to
its terms.
"Restricted Shares" shall mean all the Shares that are not
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Unrestricted Shares.
"Sale Event" shall mean any of the following transactions: (a) the
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dissolution or liquidation of the Company; (b) the sale of all or substantially
all of the assets of the Company and its Subsidiaries to another person or
entity; or (c) the sale of all of the outstanding stock of the Company to an
unrelated person or entity in a merger transaction or otherwise.
"Shares" shall mean the number of shares of Common Stock being
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purchased by the Grantee on the date hereof and any additional shares of Common
Stock received as a dividend on, or otherwise on account of, the Shares, as
contemplated by the first paragraph hereof.
"Subsidiary" shall mean any corporation of which stock possessing
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fifty percent (50%) or more of the total combined voting power of all classes of
stock is owned directly or indirectly by the Company.
"Termination Event" shall mean for purposes of this Agreement the
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termination of the Grantee's employment with the Company and its Subsidiaries,
whether by reason of retirement, discharge or any other reason, voluntary or
involuntary, regardless of the circumstances thereof.
"Unrestricted Shares" shall mean all shares that have vested in
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accordance with the Vesting Schedule attached hereto as Schedule A.
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Section 2. Purchase and Sale of Shares; Investment Representations.
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2.1. Purchase and Sale. On the date hereof, the Company hereby sells to
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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.
2.2. Investment Representations. In connection with the purchase and sale
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of the Shares contemplated by Section 2.1 above, the Grantee hereby represents
and warrants to the Company as follows:
(a) The Grantee is purchasing the Shares for his own account for
investment only, and not for resale or with a view to the distribution thereof.
(b) The Grantee has had such an opportunity as he has deemed adequate
to obtain from representatives of the Company such information as is necessary
to permit him to evaluate the merits and risks of his investment in the Company
and may consult with his own advisers with respect to his investment in the
Company.
(c) 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.
(d) The Grantee is an "accredited investor" as that term is defined in
Rule 501 promulgated under the Act.
(e) 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.
(f) 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. The Company acknowledges
that transfers of Shares to Permitted Transferees or to the Company or any of
its subsidiaries or assigns are likely to be exempt from such registration
requirements.
Section 3. Repurchase of Restricted Shares.
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3.1. Repurchase. Upon the occurrence of a Termination Event, the Company
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or its assigns shall repurchase (subject to approval of the Company's senior
lender if then required, with the Company to use its best efforts to obtain any
such approval), and the Grantee and any Permitted Transferee shall sell to it or
them, all of the Restricted Shares held by the Grantee or any Permitted
Transferee as of the date of such Termination Event, if any, at the per share
purchase price set forth above, subject to adjustment as contemplated in the
first paragraph hereof. The purchase and sale arrangements contemplated by the
preceding sentences of this Section 3.1 are referred to herein as the
"Repurchase."
3.2. Closing Procedure. The Company or its assigns shall effect the
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Repurchase by delivering or mailing to the Grantee (and/or, if applicable, his
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, provided that if approval of such Repurchase is
required as contemplated by Section 3.1, then the Repurchase shall occur
promptly after the same is approved if such approval is required but not
obtained within such six-month period. Upon such notification, the Grantee and
his Permitted Transferees shall promptly surrender to the Company any
certificates representing the Restricted Shares being purchased, together with a
duly executed stock power for the transfer of such Restricted Shares to the
Company or the Company's assignee or assignees (as contemplated by Section 6,
if applicable). Upon the Company's or its assignee's receipt of the
certificates from the Grantee or his Permitted Transferees, the Company or its
assignee or assignees shall deliver to him, her or them a cashier's check for
the purchase price of the Restricted Shares. At such time, the Grantee and/or
any holder of the Restricted Shares shall deliver to the Company the certificate
or certificates representing the Restricted Shares so repurchased, duly endorsed
for transfer, free and clear of any lien or encumbrances. The Repurchase
obligation specified herein shall survive and remain in effect as to Restricted
Shares following and notwithstanding any public offering by the Company and
certificates representing such Restricted Shares shall bear legends to such
effect.
3.3. Remedy. Without limitation of any other provision of this Agreement
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or other rights, in the event that the Grantee, his Permitted Transferees or any
other person or entity is required to sell his or her Restricted 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
Restricted Shares the certificate or certificates evidencing such Restricted
Shares together with a related stock power, such designated purchaser may
deposit the purchase price for such Restricted Shares with any bank doing
business within fifty (50) miles of the Company's principal office, or with the
Company's independent public accounting firm, as agent or trustee, or in escrow,
for the Grantee, his 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. Upon such deposit by the designated purchaser of such amount and upon
notice to the person or entity who was required to sell the Restricted Shares to
be sold pursuant to the provisions of this Section 3, such Restricted 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),
and the Company shall record such transfer in its stock transfer book or in any
appropriate manner.
Section 4. Restrictions on Transfer of Shares. None of the Shares now
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owned or hereafter acquired 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 the transferor to provide at his own expense 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). Any attempted disposition of Shares
not in accordance with the terms and conditions of this Section 4 shall be null
and void, and the Company shall not reflect on its records any change in record
ownership of any Shares as a result of 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. Subject to the foregoing general
provisions, Shares may be transferred pursuant to the following specific terms
and conditions:
(a) Transfers to Permitted Transferees. The Grantee may sell, assign,
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transfer or give away any or all of the Shares to Permitted Transferees;
provided, however,
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that any such Permitted Transferee(s) shall, as a condition to any such
transfer, agree to be subject to the provisions of this Agreement (including
without limitation, the provisions of Section 3 (with respect to Restricted
Shares only) and this Section 4) and shall have delivered a written
acknowledgment to that effect to the Company.
(b) Transfers Upon Death. Upon the death of the Grantee, the Shares
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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 the Grantees' heirs, legatees or distributees whether or not such
heirs, legatees or distributees are Permitted Transferees; provided, however,
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that any such transferees shall be subject to the provisions of Section 3 (with
respect to Restricted Shares only) hereof and this Section 4.
(c) Other Transfers. The Grantee shall not transfer all or any part
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of the Restricted Shares except in connection with a Sale Event and except as
provided in Sections 4(a) and (b) above.
Section 5. Legend. Any certificate(s) representing the Shares shall carry
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substantially the following legends:
"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 dated February 29,
1996 between the Company and the holder of this Certificate (a copy of
which is available at the offices of the Company for examination)."
and
"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 sold or transferred in the absence of
such registration or an exemption from registration."
Section 6. Escrow. In order to carry out the provisions of Sections 3 and
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4 of this Agreement more effectively, the Company shall hold the Shares in
escrow together with separate stock powers executed by the Grantee in blank for
transfer. The Company shall not dispose of the Shares except as otherwise
provided in this Agreement. In the event of any Repurchase, the Company is
hereby authorized by the Grantee, as the Grantee's attorney-in-fact, to date and
complete the stock powers necessary for the transfer of the Shares being
purchased and to transfer such Shares in accordance with the terms hereof. At
such time as any Shares are transferred in accordance with this Agreement, the
Company shall, at the written request of the Grantee, deliver to the Grantee (or
his proposed transferee) a certificate representing such Shares with the balance
of the Shares to be held in escrow pursuant to this Section 6. All Shares which
remain in escrow upon the termination of this Agreement shall
then be delivered to the Grantee and/or the record holders of such Shares. The
right to vote the Shares and to receive cash dividends on the Shares shall
remain in the Grantee unless and until the Shares are purchased by the Company
pursuant to any Repurchase. The Company upon request by the Grantee shall
promptly process and release at its expense certificates representing
Unrestricted Shares to the Grantee.
Section 7. Withholding Taxes. The Grantee acknowledges and agrees that
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the Company or any of its Subsidiaries have the right to deduct from payments of
any kind otherwise due to the Grantee, or from the Shares held pursuant to
Section 6 hereof, 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.
Section 8. Assignment. At the discretion of the Board of Directors of the
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Company, the Company shall have the right to assign the right to exercise its
obligations and rights with respect to the Repurchase 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.
Section 9. Miscellaneous Provisions.
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9.1. Equitable Relief. The parties hereto agree and declare that legal
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remedies may be 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.
9.2. Change and Modifications. This Agreement may not be orally changed,
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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.
9.3. Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Delaware.
9.4. Headings. The headings are intended only for convenience in finding
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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.
9.5. Saving Clause. If any provision(s) of this Agreement shall be
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determined to be illegal or unenforceable, such determination shall in no manner
affect the legality or enforceability of any other provision hereof.
9.6. Notices. All notices, requests, consents and other communications
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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.
9.7. Benefit and Binding Effect. This Agreement shall be binding upon and
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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.
9.8. Counterparts. For the convenience of the parties and to facilitate
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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.
IN WITNESS WHEREOF, the Company and the Grantee have executed this Amended
and Restated Restricted Stock Agreement as of the date first above written.
ANSYS, Inc.
By: /S/ John M. Sherbin II
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Name: John M. Sherbin II
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Title: Chief Financial Officer
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GRANTEE
/S/ Peter J. Smith
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Peter J. Smith
____________________________________
____________________________________
[Address]
Schedule A
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Vesting Schedule
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1. Time-Based Vesting. As of the date hereof, all of the Shares are
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Restricted Shares. On April 1, 1998 and the first day of each month thereafter
until all Shares are Unrestricted Shares or vesting has ceased in accordance
with the terms hereof, an incremental 10,000 of the Shares shall vest and become
Unrestricted Shares such that all of the Shares shall be Unrestricted Shares on
May 1, 1999 unless prior thereto an event which results in termination of
vesting shall occur.
2. Vesting on Sale Event. In the event of a Sale Event, as defined in the
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attached Restricted Stock Agreement, any unvested tranches of Shares will vest
and become Unrestricted Shares as of the closing of such transaction (and will
vest contingent upon the closing thereof).
3. Termination of Vesting. Notwithstanding the foregoing paragraphs of
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this Schedule A or any provision of the Restricted Stock Agreement, no
Restricted Shares shall vest after a Termination Event and all Restricted Shares
as of the date of any Termination Event shall remain subject to the Repurchase.