EXHIBIT 10.12
[LANGUAGE IN BRACKETS MAY VARY BETWEEN AGREEMENTS]
INFINIUM SOFTWARE, INC.
Restricted Stock Agreement
GRANTED UNDER 1995 STOCK PLAN
AGREEMENT made this ___ day of __________, ____, between Infinium
Software, Inc., a Massachusetts corporation (the "Company"), and ________ (the
"Participant") with a residence address of ________________________.
For valuable consideration, receipt of which is acknowledged, the
parties hereto agree as follows:
1. PURCHASE OF SHARES.
The Company hereby grants to the Participant, subject to the terms and
conditions set forth in this Agreement and in the Company's 1995 Stock Plan (the
"Plan"), ________ shares (the "Shares") of common stock, $.01 par value, of the
Company ("Common Stock"). The Participant agrees that the Shares shall be
subject to the purchase option set forth in Section 2 of this Agreement and the
restrictions on transfer set forth in Section 4 of this Agreement. The Shares
shall be issued to the Participant, but no Shares shall be delivered to the
Participant until such Shares cease to be "Unvested Shares" (as defined in
Section 2, below). The Participant agrees that Unvested Shares may be
uncertificated and whether or not certificated shall be held by Boston
Equiserve, the Company's transfer agent (the "Transfer Agent") until they cease
to be Unvested Shares. The Participant hereby waives any right to receive
certificates representing Shares until such Shares cease to be Unvested Shares.
2. PURCHASE OPTION.
(a) [Except as provided in the next sentence,] in the event that
the Participant ceases to be employed by the Company for any reason or no
reason, with or without cause, prior to [January 31, 2003], the Company shall
have the right and option (the "Purchase Option") to purchase from the
Participant, for a sum of $.01 per share (the "Option Price"), some or all of
the Unvested Shares (as defined below). [Upon (i) the termination by the Company
of the Participant's employment, not for "cause" (as defined in the
Participant's Executive Severance Plan with the Company effective July 15,
1999), and subject to the execution by the Participant of a one year
Non-Competition Agreement as required by the Executive Severance Agreement or
(ii) the occurrence of a Change in Control (as defined in the Executive
Severance Agreement), then, all of the Participant's Shares will become
immediately vested. - THIS PROVISION ONLY FOR MONK]
"Unvested Shares" means the total number of Shares multiplied by the
Applicable Percentage at the time the Purchase Option becomes exercisable by the
Company. The "Applicable Percentage" shall be (i) 100% through [July 30, 2001],
(ii) [75%] from [July 31, 2001 through January 30, 2002], (iii) [50%] from
[January 31, 2002 through July 30, 2002], (iii) [25%] from [July 31, 2002,
through January 30, 2003] and (iv) zero on or after [January 31, 2003].
(b) In the event that the Participant's employment with the
Company is terminated by reason of death or disability, the Participant shall be
deemed for purposes of Sections 2 and 3 to have terminated employment on the
first anniversary of the date his employment actually terminated. For this
purpose, "disability" shall mean the inability of the Participant, due to a
medical reason, to carry out his duties as an employee of the Company for a
period of six consecutive months.
(c) For purposes of this Agreement, employment with the Company
shall include employment with a parent or subsidiary of the Company.
3. EXERCISE OF PURCHASE OPTION AND CLOSING.
(a) The Company may exercise the Purchase Option by delivering or
mailing to the Participant (or his estate) and the Transfer Agent, within 90
days after the termination of the employment of the Participant with the
Company, a written notice of exercise of the Purchase Option. Such notice shall
specify the number of Shares to be purchased. If and to the extent the Purchase
Option is not so exercised by the giving of such a notice within such 90-day
period, the Purchase Option shall automatically expire and terminate effective
upon the expiration of such 90-day period.
(b) Within 10 days after delivery to the Participant and the
Transfer Agent of the Company's notice of the exercise of the Purchase Option
pursuant to subsection (a) above, the Transfer Agent shall deliver to the
Company at its principal offices any certificate or certificates representing
the Shares which the Company has elected to purchase in accordance with the
terms of this Agreement, , all in form suitable for the transfer of such Shares
to the Company. Promptly following its receipt of satisfactory transfer
documents, the Company shall pay to the Participant the aggregate Option Price
for such Shares (provided that any delay in making such payment shall not
invalidate the Company's exercise of the Purchase Option with respect to such
Shares).
(c) After the time at which any Shares are required to be
delivered to the Company pursuant to subsection (b) above, the Company shall not
pay any dividend to the Participant on account of such Shares or permit the
Participant to exercise any of the privileges or rights of a stockholder with
respect to such Shares, but shall, in so far as permitted by law, treat the
Company as the owner of such Shares.
(d) The Option Price may be payable, at the option of the Company,
in cancellation of all or a portion of any outstanding indebtedness of the
Participant to the Company or in cash (by check) or both.
(e) The Company shall not purchase any fraction of a Share upon
exercise of the Purchase Option, and any fraction of a Share resulting from a
computation made pursuant to Section 2 of this Agreement shall be rounded to the
nearest whole Share (with any one-half Share being rounded upward).
(f) The Company may assign its Purchase Option to one or more
persons or entities.
4. RESTRICTIONS ON TRANSFER.
The Participant shall not sell, assign, transfer, pledge, hypothecate
or otherwise dispose of, by operation of law or otherwise any Shares, or any
interest therein, that are subject to the Purchase Option.
5. RESTRICTIVE LEGENDS.
All certificates representing Shares shall have affixed thereto legends
in substantially the following form, 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 restrictions on transfer and an option to purchase
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 Clerk of the
corporation."
6. 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.
7. 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 or local taxes of any kind required by law to be withheld
with respect to the purchase of the Shares by the Participant or the lapse of
the Purchase Option.
(b) The Participant acknowledges that the Participant (and not the
Company) shall be responsible for the Participant's own tax liability that may
arise as a result of the transactions contemplated by this Agreement. The
Participant acknowledges that he or she has been informed of the availability of
making an election in accordance with Section 83(b) of the Internal Revenue
Code; that such election must be filed with the Internal Revenue Service within
30 days of the transfer of shares to the Participant; and that the Participant
is solely responsible for making such election.
8. NO RIGHTS TO EMPLOYMENT.
The Participant acknowledges and agrees that the vesting of the Shares
pursuant to Section 2 hereof is earned only by continuing service as an employee
at the will of the Company (not through the act of being hired or being granted
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 or consultant for the vesting period, for any period, or at all.
9. 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.
10. 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.
11. 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 4 of this Agreement.
12. NOTICE.
All notices required or permitted hereunder shall be in writing and
deemed effectively given upon personal delivery or five days after deposit in
the United States Post Office, by registered or certified mail, postage prepaid,
addressed to the other party hereto at the address shown beneath his or its
respective signature to this Agreement, or at such other address or addresses as
either party shall designate to the other in accordance with this Section 12.
13. 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.
14. ENTIRE AGREEMENT.
This Agreement and the Plan constitute the entire agreement between the
parties, and supersedes all prior agreements and understandings, relating to the
subject matter of this Agreement.
15. AMENDMENT.
This Agreement may be amended or modified only by a written instrument
executed by both the Company and the Participant.
16. GOVERNING LAW.
This Agreement shall be construed, interpreted and enforced in
accordance with the internal laws of the Commonwealth of Massachusetts without
regard to any applicable conflicts of laws.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
INFINIUM SOFTWARE, INC.
By:_______________________________ ____________________________________
President