RESTRICTED STOCK AGREEMENT
Exhibit 10.3
THIS AGREEMENT is made effective on June 7, 2011 (the “Grant Date”), between XXXXXX
INTERACTIVE INC., a Delaware Corporation (the “Company”), and XX XXXXXXXXX (“Participant”). This
Agreement is made in connection with the Employment Agreement (defined below).
WHEREAS, the Participant has entered into an Employment Agreement with the Company on June 7,
2011 (the “Employment Agreement”);
WHEREAS, the Company maintains its 2007 Long-Term Incentive Plan (the “Plan”), which is
incorporated into and forms a part of this Agreement; and
WHEREAS, the Participant has been selected by the committee administering the Plan (the
“Committee”) to receive a Restricted Stock Award under the Plan.
NOW, THEREFORE, IT IS AGREED, by and between the Company and the Participant, as follows:
1. Award.
(a) Grant. The Participant is hereby granted 500,000 shares (the “Restricted Stock”)
of the Company’s common stock, par value $.001 per share (“Stock”), which shall be issued as
hereinafter provided in Participant’s name subject to certain restrictions thereon. Participant
hereby accepts the Restricted Stock subject to the terms and conditions of this Agreement.
(b) Plan Incorporated. Participant acknowledges receipt of a copy of the Plan and
agrees that this award of Restricted Stock shall be subject to all of the terms and conditions set
forth in the Plan, including future amendments thereto, if any, pursuant to the terms thereof,
which Plan is incorporated herein by reference as a part of this Agreement.
(c) Statement of Election. In connection with this Agreement, the Participant will
deliver to the Company an executed and completed Statement of Decision Regarding Section 83(b)
Election in the form provided by the Company.
2. Risk of Forfeiture (“Forfeiture Restrictions”).
(a) Forfeiture Due to Termination of Employment. Subject to Section 3(b) and Section
3(c), should either a Date of Termination occur prior to any of the vesting dates provided in
Section 3(a), Participant shall forfeit the right to receive the Restricted Stock that would
otherwise have vested on such respective dates.
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(b) Date of Termination. For purposes of this Section 2, the Participant’s “Date of
Termination” shall be the first day occurring on or after the Grant Date on which the Participant’s
employment with the Company terminates for any reason.
(c) Restrictions on Transfer. Neither the Restricted Stock nor any of it may be
voluntarily or involuntarily sold, assigned, pledged, exchanged, hypothecated or otherwise
transferred, encumbered or disposed of until such time as the restrictions contained in Section 2
lapse as to the applicable Restricted Stock and it is fully vested. Upon any violation of this
restriction, the Restricted Stock not theretofore vested shall be forfeited.
3. Lapse of Forfeiture Restrictions.
(a) Vesting. Subject to Section 2, one-thirteen per month of the Restricted Stock
shall vest on the 30th day of each month commencing on June 30, 2011.
(b) Termination Without Cause or for Good Reason. If the Company terminates
Participant’s employment without Cause (as defined in the Employment Agreement) or Participant
terminates his employment for Good Reason (as defined in the Employment Agreement) (i) on or prior
to December 31, 2011, then one-half of the Restricted Stock shall vest (inclusive of shares of the
Restricted Stock that have vested previously), or (ii) after December 31, 2011, then all non-vested
Restricted Stock shall vest.
(c) Change in Control. Upon the occurrence of a Change in Control (as defined in the
Plan), all non-vested Restricted Stock, not previously forfeited, shall fully vest if the
Participant’s Date of Termination does not occur before such Change in Control.
(d) Delivery of Certificates. Restricted Stock with respect to which the Forfeiture
Restrictions have lapsed shall cease to be subject to any restrictions except as provided in
Section 4(c) and Section 2.8 of the Employment Agreement, and the Company shall promptly deliver to
Participant a certificate representing the shares as to which the Forfeiture Restrictions have
lapsed.
4. Custody of Restricted Stock.
(a) Custody. One or more certificates evidencing the Restricted Stock shall be issued
by the Company in Participant’s name, or at the option of the Company, in the name of a nominee of
the Company. The Company may cause the certificate or certificates to be delivered upon issuance
to the Secretary of the Company or to such other depository as may be designated by the Committee
as a depository for safekeeping until forfeiture occurs or the Forfeiture Restrictions lapse
pursuant to the terms of the Plan and this Agreement. Upon request of the Committee, Participant
shall deliver to the Company a stock power, endorsed in blank, relating to the Restricted Stock
then subject to the Forfeiture Restrictions.
(b) Additional Securities as Restricted Stock. Any securities received as the result
of ownership of Restricted Stock, including without limitation, warrants, options, and securities
received as a stock dividend or stock split, or as a result of a recapitalization or
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reorganization (all such securities to be considered “Restricted Stock” for all purposes under this
Agreement), shall be held in custody in the same manner and subject to the same conditions as the
Restricted Stock with respect to which they were issued. Participant shall be entitled to direct
the Company to exercise any warrant or option received and considered Restricted Stock hereunder
upon supplying the funds necessary to do so, in which event securities so purchased shall
constitute Restricted Stock. In the event any Restricted Stock at any time consists of a security
by its terms or otherwise convertible into or exchangeable for another security at the election of
the holder thereof, Participant may exercise such right of conversion or exchange in the event the
failure to exercise or delay in exercising such right would result in its loss or diminution of
value, and any securities so acquired shall be deemed Restricted Stock. In the event of any change
in certificates evidencing Restricted Stock by reason of any recapitalization, reorganization or
other transaction which results in a creation of Restricted Stock the Company is authorized to
deliver to the issuer the certificate evidencing the Restricted Stock in exchange for a replacement
certificate, which shall be deemed to be Restricted Stock.
(c) Delivery to Participant. Upon the lapse of the Forfeiture Restrictions without
forfeiture, the Company shall cause certificate(s) for the vested Restricted Stock to be issued in
the name of Participant in exchange for the certificate evidencing the previously Restricted Stock.
Notwithstanding any other provisions of this Agreement, the issuance or delivery of any shares of
Stock (whether subject to restrictions or unrestricted) may be postponed for such period as may be
required to comply with applicable requirements of any national securities exchange or any
requirements of any regulation applicable to the issuance or delivery of such shares. The Company
shall not be obligated to issue or deliver any shares of Stock if the issuance or delivery thereof
shall constitute a violation of any provision of any law or of any regulation of any governmental
authority or any securities exchange.
5. Status of Stock.
(a) Rights as Stockholder. Subject to the restrictions contained herein, the
Participant shall have all voting and ownership rights applicable to the Restricted Stock,
including the right to receive dividends, whether or not such Restricted Stock is vested and unless
and until the Restricted Stock is forfeited pursuant to the provisions of this Agreement.
(b) Compliance with Securities Laws. Participant agrees that the Restricted Stock
will not be sold or otherwise disposed of in any manner which would constitute a violation of any
applicable federal or state securities laws. Participant also agrees (i) that the legend or
legends as the Committee deems appropriate in order to assure compliance with applicable securities
laws may be applicable to the Restricted Stock, (ii) that the Company may refuse to register the
transfer of the Restricted Stock on the stock transfer records of the Company if such proposed
transfer would in the opinion of counsel satisfactory to the Company constitute a violation of any
applicable securities law, and (iii) that the Company may give related instructions to its transfer
agent, if any, to stop registration of the transfer of the Restricted Stock.
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6. Relationship to Company.
(a) No Effect on Rights of Company. The existence of this Agreement shall not affect
in any way the right or power of the Company or its stockholders to make or authorize any or all
adjustments, recapitalizations, reorganization or other changes in the Company’s capital structure
or its business, or any merger or consolidation of Company or any issue of bonds, debentures,
preferred or prior preference stock ahead of or affecting the Restricted Stock or the rights
thereof, or the dissolution or liquidation of the Company, or any sale or transfer of all or any
part of its assets or business, or any other corporate act or proceeding, whether of a similar
character or otherwise.
(b) No Guarantee of Service. This Agreement shall not confer upon Participant any
right with respect to continuance of employment by the Company or any of its affiliates, nor shall
it interfere in any way with any right the Company, or its directors or stockholders, would
otherwise have to terminate such Participant’s employment at any time.
7. Committee’s Powers. No provision contained in this Agreement shall in any way
terminate, modify or alter, or be construed or interpreted as terminating, modifying or altering
any of the powers, rights or authority vested in the Committee pursuant to the terms of the Plan,
including, without limitation, the Committee’s rights to make certain determinations and elections
with respect to the Restricted Stock.
8. Binding Effect. This Agreement shall be binding upon and inure to the benefit of
any successors and assigns of the Company and all persons lawfully claiming under Participant.
9. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall constitute one instrument.
10. Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed by an officer
thereunto duly authorized, and Participant has executed this Agreement, all effective as of the
Grant Date.
| Participant | ||||
| /s/ Xx Xxxxxxxxx
|
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| Xx Xxxxxxxxx | ||||
| Xxxxxx Interactive Inc. | ||||
| By: /s/ Xxxx X. Xxxxx
|
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| Its: EVP, General Counsel & Corporate Secretary |
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