EXHIBIT 10.8
GREENFIELD ONLINE, INC.
RESTRICTED STOCK AGREEMENT
This Restricted Stock Agreement (this "Agreement") is made and entered
into as of December 16, 2002 (the "Effective Date") by and between Greenfield
Online, Inc., a Delaware corporation (the "Company"), and Xxxxxx X. Xxxx
("Manager").
WHEREAS, the Company's Board of Directors (the "Board") has selected
the Manager to receive the opportunity to purchase Restricted Stock pursuant to
this Agreement; and
WHEREAS, the Restricted Stock provided for in this Agreement is offered
in consideration for Manager's past service to the Company and his agreement to
continue his employment or other service with the Company, and the Manager is
willing to abide by the obligations imposed under this Agreement;
NOW, THEREFORE, in consideration of the mutual benefits hereinafter
provided, and each intending to be legally bound, the Company and the Manager
hereby agree as follows:
1. PURCHASE OF SHARES.
Subject to the restrictions, terms and conditions of this Agreement,
the Company hereby offers to sell to the Manager Two Million Six Hundred and
Eighty Four Thousand Four Hundred and Eighty (2,684,480) shares (the "Shares")
of the Company's Common Stock ("Common Stock"). As used in this Agreement, the
term "Shares" refers to the Shares purchased under this Agreement and includes
all securities received (i) in replacement of the Shares, (ii) as a result of
stock dividends or stock splits in respect of the Shares, and (iii) in
replacement of the Shares in a recapitalization, merger, reorganization or the
like.
2. DELIVERY.
2.1 DELIVERIES BY MANAGER. Manager hereby delivers to the Company
(i) this Agreement; (ii) two (2) copies of a blank Stock Power and Assignment
Separate from Stock Certificate in the form of Exhibit 1 attached hereto (the
"Stock Powers"), both executed by Manager (and Manager's spouse, if any), (iii)
if Manager is married, a Consent of Spouse in the form of Exhibit 2 attached
hereto (the "Spouse Consent") duly executed by Manager's spouse (iv) an executed
copy of the Company's Restated Shareholders Agreement ("Shareholder's
Agreement") dated December 16, 2002, (v) an executed copy of the Company's
Restated Registration Rights Agreement ("Registration Rights Agreement") dated
as of December 16, 2002, and (vi) and executed copy of the Voting Agreement
("Voting Agreement") in the form of Exhibit 3 attached hereto.
2.2 DELIVERIES BY THE COMPANY. Upon its receipt of all of the
documents to be executed and delivered by Manager to the Company under Section
2.1, the Company will issue a duly executed stock certificate evidencing the
Shares in the name of Manager, with such certificate to be placed in escrow as
provided in Section 11 until expiration of the period during which the Shares
are subject to forfeiture or repurchase as set forth in Section 3.
3. REPURCHASE AND VESTING.
3.1 FORFEITURE. As of the Effective Date, fifty (50) percent of the
Shares are considered "Unvested Shares" which are subject to repurchase by the
Company, for the lesser of fair market value or the original purchase price,
upon termination of the Manager's service with the Company for any reason or no
reason, with or without cause. On each six-month anniversary from the Effective
Date, one-eight (1/8th) of the Shares will become vested and cease to be subject
to repurchase such that the Shares will be 100% vested on the second anniversary
of the Effective Date. All Shares that are not Unvested Shares are referred to
in this Agreement as "Vested Shares". Notwithstanding anything in this Agreement
to the contrary, no Shares will become Vested Shares after the effective date of
termination of the Manager's service with the Company (the "Termination Date").
There shall be no proportionate or partial vesting in the periods prior to the
applicable vesting dates and all vesting shall occur only on the appropriate
vesting date.
3.2 TERMINATION FOR CAUSE. In the event Manager is terminated for
Cause, his Unvested Shares and his Vested Shares may be repurchased by the
Company for the lesser of fair market value or their original purchase price.
3.3 TERMINATION WITHOUT CAUSE OR RESIGNATION. In the event Manager
is terminated without Cause or resigns his position with the Company, his
Unvested Shares shall be repurchased by the Company for the lesser of fair
market value or their original purchase price and the Manager shall retain
ownership of his Vested Shares.
3.4 TERMINATION AND TERMINATION DATE. In case of any dispute as to
whether the Manager is terminated, the Board shall, in the exercise of its
reasonable discretion, determine whether the Manager has been terminated and the
Termination Date.
3.5 ADJUSTMENTS. The number of Shares that are Vested Shares or
Unvested Shares will be equitably adjusted for any stock split, combination,
stock dividend, merger, consolidation, reorganization, recapitalization, or any
other change in corporate structure or other transaction not involving the
receipt of consideration by the Company occurring after the Effective Date.
4. CORPORATE TRANSACTION.
4.1 ACCELERATED VESTING UPON CERTAIN EVENTS. Manager's Unvested
Shares shall immediately vest:
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(i) upon the occurrence of a Corporate Transaction if
(x) Manager's Unvested Shares are not assumed by the
surviving entity or replaced with equivalent awards and
(y) Manager is not employed by the acquiring or
resulting entity in the equivalent position and subject
to the comparable terms of employment as enjoyed by
Manager immediately prior to such merger or acquisition;
and (ii) if Manager resigns with Good Reason or is
terminated without Cause as defined below.
In the foregoing context awards that do not have accelerated vesting provisions
in the event of terminations without Cause or for Good Reason within one year of
a Corporate Transaction shall not be deemed to be equivalent.
4.2 DEFINITIONS:
"CORPORATE TRANSACTION" means, (i) any sale, lease, exchange, or other
transfer, in one transaction or a series of related transactions, of
all or substantially all of the Company's assets, other than a transfer
of the Company's assets to a majority-owned subsidiary corporation of
the Company; or (ii) any merger or consolidation of the Company in one
or more series of related transactions where following such merger or
consolidation the holders of the Company's outstanding voting
securities immediately prior to such merger or consolidation own less
than 50% of the outstanding voting securities of the surviving
corporation.
"CAUSE" unless otherwise defined in an Employment Agreement between
Company and manager, means a determination by the Company that Manager
has committed an act or acts constituting any of the following: (i)
dishonesty, fraud, misconduct or negligence in connection with Company
duties, (ii) unauthorized disclosure or use of the Company's
confidential or proprietary information, (iii) misappropriation of a
business opportunity of the Company, (iv) aiding a competitor of
Company, (v) a felony conviction; or (vi) failure or refusal to attend
to the duties or obligations of the Manager's position, or to comply
with the Company's rules, policies or procedures.
"GOOD REASON" means any one of the following: (i) a material alteration
of manager's title and status in the acquiring or resulting entity or
assignment to duties and responsibilities inconsistent with his
position; (ii) the relocation of manager to any place greater than
twenty five (25) miles from his current principal location (excluding
New York City); or (iii) a substantial reduction of manager's
compensation package, unless such a reduction is made by the Company
ratably with all other employees at similar levels of responsibility.
Common Stock
5. RIGHT OF TERMINATION UNAFFECTED. Nothing in this Agreement shall be
construed to limit or otherwise affect in any manner whatsoever the right or
power of the Company or an affiliate to terminate Manager's Service or other
relationship with the Company or an affiliate at any time for any reason or no
reason, with or without cause.
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6. REPRESENTATIONS AND WARRANTIES OF MANAGER. Manager represents and
warrants to the Company that:
6.1 AGREES TO TERMS OF THIS AGREEMENT. Manager has received a copy
of this Agreement, has read and understands the terms of this Agreement, and
agrees to be bound by its terms and conditions. Manager acknowledges that there
may be adverse tax consequences upon acquisition and disposition of the Shares,
and that Manager should consult a tax adviser prior to such acquisition or
disposition.
6.2 ACQUISITION FOR OWN ACCOUNT FOR INVESTMENT. Manager is acquiring
the Shares for Manager's own account for investment purposes only and not with a
view to, or for sale in connection with, a distribution of the Shares within the
meaning of the Securities Act of 1933, as amended (the "Securities Act").
Manager has no present intention of selling or otherwise disposing of all or any
portion of the Shares and no one other than Manager has any beneficial ownership
of any of the Shares.
6.3 ACCESS TO INFORMATION. Manager has had access to all information
regarding the Company and its present and prospective business, assets,
liabilities and financial condition that Manager reasonably considers important
in making the decision to acquire the Shares, and Manager has had ample
opportunity to ask questions of the Company's representatives concerning such
matters.
6.4 UNDERSTANDING OF RISKS. Manager is fully aware of (i) the highly
speculative nature of an investment in the Shares, (ii) the financial hazards
involved, (iii) the lack of liquidity of the Shares and the restrictions on
transferability of the Shares (e.g., that Manager may not be able to sell or
dispose of the Shares or use them as collateral for loans), (iv) the
qualifications and backgrounds of the management of the Company, and (v) the tax
consequences of acquiring the Shares.
6.5 NO GENERAL SOLICITATION. At no time was Manager presented with
or solicited by any publicly issued or circulated newspaper, mail, radio,
television or other form of general advertising or solicitation in connection
with the acquisition of the Shares.
6.6 MANAGER'S QUALIFICATIONS. Manager has a preexisting personal or
business relationship with the Company and/or certain of its officers and/or
directors of a nature and duration sufficient to make Manager aware of the
character, business acumen and general business and financial circumstances of
the Company and/or such officers and directors. By reason of Manager's business
or financial experience, Manager is capable of evaluating the merits and risks
of acquiring the Shares and has the ability to protect Manager's own interests
in this transaction.
7. RESTRICTED SECURITIES.
7.1 NO TRANSFERS UNLESS REGISTERED OR EXEMPT. Manager understands
that Manager may not transfer any Shares unless such Shares are registered under
the Securities Act and qualified under applicable state securities laws or
unless, in the opinion of counsel to the
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Company, exemptions from such registration and qualification requirements are
available. Manager understands that only the Company may file a registration
statement with the Securities and Exchange Commission (the "SEC") and that the
Company is under no obligation to do so with respect to the Shares. Manager has
also been advised that exemptions from registration and qualification may not be
available or may not permit Manager to transfer all or any of the Shares in the
amounts or at the times proposed by Manager.
7.2 SEC RULE 144. In addition, Manager has been advised that SEC
Rule 144 promulgated under the Securities Act, which permits certain limited
sales of unregistered securities, is not presently available with respect to the
Shares and, in any event, requires that the Shares be held for a minimum of one
year, and in certain cases two years, after they have been purchased and paid
for (within the meaning of Rule 144), before they may be resold under Rule 144.
Manager understands that Rule 144 may indefinitely restrict transfer of the
Shares so long as Manager remains an "affiliate" of the Company and "current
public information" about the Company (as defined in Rule 144) is not publicly
available.
8. RESTRICTIONS ON TRANSFERS.
8.1 DISPOSITION OF SHARES. Manager hereby agrees that Manager shall
make no disposition of the Shares unless and until:
(i) in the event the Company is still private, until Insight, UBS
and MSD have disposed of their shares,
(ii) Manager shall have notified the Company of the proposed
disposition and provided a written summary of the terms and conditions of the
proposed disposition;
(iii) Manager shall have complied with all requirements of this
Agreement applicable to the disposition of the Shares;
(iv) Manager shall have provided the Company with written
assurances, in form and substance satisfactory to counsel for the Company, that
(a) the proposed disposition does not require registration of the Shares under
the Securities Act, or (b) all appropriate action necessary for compliance with
the registration requirements of the Securities Act or of any exemption from
registration available under the Securities Act (including Rule 144) has been
taken; and
(v) Manager shall have provided the Company with written
assurances, in form and substance satisfactory to the Company that the proposed
disposition will not result in the contravention of any transfer restrictions
applicable to the Shares.
8.2 RESTRICTION ON TRANSFER. Manager shall not transfer, assign,
xxxxx x xxxx or security interest in, pledge, hypothecate, encumber, or
otherwise dispose of any of the Shares that are subject to forfeiture pursuant
to Section 3.
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9. MARKET STANDOFF AGREEMENT. Manager agrees in connection with any
registration of the Company's securities that, upon the request of the Company
or the underwriters managing any registered public offering of the Company's
securities, Manager will not sell or otherwise dispose of any Shares without the
prior written consent of the Company or such managing underwriters, as the case
may be, for a period of time (not to exceed 180 days) after the effective date
of such registration and subject to all restrictions as the Company or the
managing underwriters may specify for employee-shareholders generally
(regardless of whether Manager is an employee of the Company). Manager further
agrees to execute and deliver such other agreements as may be reasonably
requested by the Company and/or the underwriter(s) that are consistent with the
foregoing or that are necessary to give further effect thereto. In order to
enforce the foregoing covenant, the Company may impose stop-transfer
instructions with respect to Manager's Shares until the end of such period.
10. RIGHTS AS SHAREHOLDER. Subject to the terms and conditions of this
Agreement, the Shareholders Agreement, Registration Rights Agreement and Voting
Agreement, Manager will have all of the rights of a holder of Common Stock with
respect to the Shares from and after the date that Manager delivers an executed
copy of this Agreement until such time as Manager disposes of the Shares or they
are forfeited to the Company. Upon forfeiture of the Shares, Manager will have
no further rights as a holder of Common Stock, and Manager will promptly
surrender the stock certificate(s) evidencing the Shares to the Company for
transfer or cancellation.
11. ESCROW. As security for Manager's faithful performance of this
Agreement, Manager agrees, immediately upon receipt of the stock certificate(s)
evidencing the Shares, to deliver such certificate(s), together with the Stock
Powers executed by Manager and by Manager's spouse, if any (with the date and
number of Shares left blank), to the Secretary of the Company or other designee
of the Company ("Escrow Holder"), who is hereby appointed to hold such
certificate(s) and Stock Powers in escrow and to take all such actions and to
effectuate all such transfers and/or releases of such Shares as are in
accordance with the terms of this Agreement. Manager and the Company agree that
Escrow Holder will not be liable to any party to this Agreement (or to any other
party) for any actions or omissions unless Escrow Holder is grossly negligent or
intentionally fraudulent in carrying out the duties of Escrow Holder under this
Section. Escrow Holder may rely upon any letter, notice or other document
executed by any signature purported to be genuine and may rely on the advice of
counsel and obey any order of any court with respect to the transactions
contemplated by this Agreement. Shares will be released from escrow upon
termination of the period during which such Shares are subject to forfeiture
pursuant to Section 3.
12. RESTRICTIVE LEGENDS AND STOP-TRANSFER ORDERS.
12.1 LEGENDS. Manager understands and agrees that the Company will
place the legends set forth below or similar legends on any stock certificate(s)
evidencing the Shares, together with any other legends that may be required by
state or federal securities laws, the Company's Certificate of Incorporation or
Bylaws, any other agreement between Manager and the Company or any agreement
between Manager and any third party:
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THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE SALE OR
DISTRIBUTION THEREOF. NO SALE OR DISPOSITION MAY BE MADE WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT COVERING SAID SHARES OR AN OPINION OF
COUNSEL FOR THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER
THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF THE STATE HAVING
JURISDICTION OVER SUCH SALE OR DISTRIBUTION.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON PUBLIC RESALE AND TRANSFER AS SET FORTH IN A RESTRICTED
STOCK AGREEMENT BETWEEN THE ISSUER AND THE ORIGINAL HOLDER OF THESE
SHARES, A COPY OF WHICH MAY BE OBTAINED AT THE PRINCIPAL OFFICE OF THE
ISSUER. SUCH PUBLIC SALE AND TRANSFER RESTRICTIONS ARE BINDING ON
TRANSFEREES OF THESE SHARES.
12.2 STOP-TRANSFER INSTRUCTIONS. Manager agrees that, in order to
ensure compliance with the restrictions imposed by this Agreement, the Company
may issue appropriate "stop-transfer" instructions to its transfer agent, if
any, and if the Company transfers its own securities, it may make appropriate
notations to the same effect in its own records.
12.3 REFUSAL TO TRANSFER. The Company will not be required (i) to
transfer on its books any Shares that have been sold or otherwise transferred in
violation of any of the provisions of this Agreement, or (ii) to treat as owner
of such Shares, or to accord the right to vote or pay dividends to any Manager
or other transferee to whom such Shares have been so transferred.
14. TAX CONSEQUENCES. MANAGER UNDERSTANDS THAT MANAGER MAY SUFFER
ADVERSE TAX CONSEQUENCES AS A RESULT OF MANAGER'S ACQUISITION OR DISPOSITION OF
THE SHARES. MANAGER REPRESENTS THAT MANAGER HAS CONSULTED WITH ANY TAX ADVISER
MANAGER DEEMS ADVISABLE IN CONNECTION WITH THE ACQUISITION OR DISPOSITION OF THE
SHARES AND THAT MANAGER IS NOT RELYING ON THE COMPANY FOR ANY TAX ADVICE.
Manager hereby acknowledges that Manager has been informed that, unless an
election is filed by the Manager with the Internal Revenue Service (and, if
necessary, the proper state taxing authorities), within 30 days of the
acquisition of the Shares, electing pursuant to Section 83(b) of the Internal
Revenue Code (and similar state tax provisions, if applicable) to be taxed
currently on the fair market value on the date of acquisition of the Shares,
there will be a recognition of taxable income to the Manager equal to the fair
market value of the Shares at the time they are considered transferable or no
longer subject to substantial risk of forfeiture. Manager represents that
Manager has consulted any tax adviser(s) Manager deems advisable in connection
with Manager's purchase of the Shares and the filing of the election under
Section 83(b) and similar tax provisions. A form of Election under Section 83(b)
is attached hereto as Exhibit 4 for reference. MANAGER HEREBY ASSUMES ALL
RESPONSIBILITY FOR
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FILING OR NOT FILING SUCH ELECTION AND PAYING ANY TAXES RESULTING FROM FILING OR
FAILING TO FILE SUCH ELECTION.
15. COMPLIANCE WITH LAWS AND REGULATIONS. The issuance and transfer of
the Shares will be subject to and conditioned upon compliance by the Company and
Manager with all applicable state and federal laws and regulations and with all
applicable requirements of any stock exchange or automated quotation system on
which the Company's securities may be listed or quoted at the time of such
issuance or transfer.
16. SUCCESSORS AND ASSIGNS. The Company may assign any of its rights
under this Agreement. This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of the Company. Subject to the
restrictions on transfer herein set forth, this Agreement will be binding upon
Manager and Manager's heirs, executors, administrators, successors and assigns.
17. GOVERNING LAW; SEVERABILITY. This Agreement will be governed by and
construed in accordance with the internal laws of the State of New York as such
laws are applied to agreements between New York residents entered into and to be
performed entirely within New York, excluding that body of laws pertaining to
conflict of laws. If any provision of this Agreement is determined by a court of
law to be illegal or unenforceable, then such provision will be enforced to the
maximum extent possible and the other provisions will remain fully effective and
enforceable.
18. NOTICES. Any notice required to be given or delivered to the
Company shall be in writing and addressed to the Corporate Secretary of the
Company at its principal corporate offices. Any notice required to be given or
delivered to Manager hereunder shall be in writing and addressed to Manager at
the last address Manager provided to the Company. All notices shall be deemed
effectively given upon personal delivery, three (3) days after deposit in the
United States mail by certified or registered mail (return receipt requested),
one (1) business day after its deposit with any return receipt express courier
(prepaid), or on the business day that it is sent by fax to the fax number last
provided by Manager to the Company, but only if (A) the receiving fax device
immediately generates a message, printed by the sending fax device, that
confirms receipt, and (B) receipt of the fax is confirmed by a telephone call
between sender and recipient.
19. FURTHER INSTRUMENTS. The parties agree to execute such further
instruments and to take such further action as may be reasonably necessary to
carry out the purposes and intent of this Agreement.
20. HEADINGS. The captions and headings of this Agreement are included
for ease of reference only and will be disregarded in interpreting or construing
this Agreement. All references herein to Sections will refer to Sections of this
Agreement.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed in duplicate by its duly authorized representative and Manager has
executed this Agreement in duplicate, as of the Effective Date.
GREENFIELD ONLINE, INC. MANAGER
By:
--------------------- ----------------------------
Its: Print Name:
-------------------- ----------------------------
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LIST OF EXHIBITS
Exhibit 1: Stock Power and Assignment Separate from Stock Certificate
Exhibit 2: Consent of Spouse
Exhibit 3: Voting Agreement
Exhibit 4: Election under Section 83(b) of the Internal Revenue Code
EXHIBIT 1
STOCK POWER AND ASSIGNMENT
SEPARATE FROM STOCK CERTIFICATE
FOR VALUE RECEIVED and pursuant to that certain Restricted Stock Agreement
dated as of December 16, 2002 (the "Agreement"), the undersigned hereby sells,
assigns and transfers unto ___________________, _______________ shares of the
Common Stock of Greenfield Online, Inc., a Delaware corporation (the "Company"),
standing in the undersigned's name on the books of the Company represented by
Certificate No(s). _______ delivered herewith, and does hereby irrevocably
constitute and appoint the Secretary of the Company as the undersigned's
attorney-in-fact, with full power of substitution, to transfer said stock on the
books of the Company. THIS ASSIGNMENT MAY ONLY BE USED AS AUTHORIZED BY THE
AGREEMENT AND THE EXHIBITS THERETO.
Dated: _____________________, 2002
MANAGER
____________________________________________
(Signature)
____________________________________________
(Please Print Name)
____________________________________________
(Spouse's Signature)
____________________________________________
(Please Print Spouse's Name)
INSTRUCTION: Please do not fill in any blanks other than the signature line. The
purpose of this Stock Power and Assignment is to enable the Company and/or its
assignee(s) to acquire the shares upon forfeiture to the Company as set forth in
the Agreement without requiring additional signatures on the part of Manager or
Manager's Spouse.
EXHIBIT 2
CONSENT OF SPOUSE
I, the undersigned, am the spouse of _________________ ("Manager"). I have
read and hereby consent to and approve all the terms and conditions of the
Restricted Stock Agreement (the "Agreement") dated December 16, 2002 between
Greenfield Online, Inc., a Delaware corporation (the "Company"), pursuant to
which Manager has been granted ______________________ ( ) shares of the
Company's common stock (the "Shares").
In consideration of the Company granting my spouse the right to acquire
the Shares under the Agreement, I hereby agree to be irrevocably bound by all
the terms and conditions of the Agreement (including but not limited to the
Company's right of forfeiture and the market standoff agreements contained
therein), and further agree that any community property interest I may have in
the Shares will be similarly bound by the Agreement.
I hereby appoint Manager as my attorney-in-fact, to act in my name, place
and xxxxx with respect to any amendment of the Agreement, and with respect to
the making and filing of an election under Internal Revenue Code Section 83(b)
in connection with the acquisition of the Shares.
Dated: ________________, 2002
____________________________________________
(Spouse's Signature)
____________________________________________
(Please Print Spouse's Name)
EXHIBIT 3
VOTING AGREEMENT
VOTING AGREEMENT (this "AGREEMENT"), dated as of December 16, 2002, by and
among Greenfield Online, Inc., a Delaware corporation ("Company"), and
_________________, ("Stockholder").
WHEREAS, the Stockholder is, as of the date hereof, the record and
beneficial owner of the number of shares of the Company's common stock, par
value $0.0001 per share ("Management Common Stock"), set forth on the Signature
Page hereto;
WHEREAS, Stockholder and the Company concurrently herewith are entering
into a Restricted Stock Agreement, dated as of the date hereof (the "Restricted
Stock Agreement"); capitalized terms used but not defined herein have the
meanings ascribed to such terms in the Restricted Stock Agreement;
WHEREAS, pursuant to the Restricted Stock Agreement each share of
Management Common Stock owned by the Stockholder shall be subject to the terms
of this Agreement; and
WHEREAS, as a condition to the willingness of the Company to enter into
the Restricted Stock Agreement and sell the Management Common Stock to the
Stockholder, and in order to induce the Company to enter into the Restricted
Stock Agreement and sell the Management Common Stock to the Stockholder, the
Stockholder has agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the execution and delivery by the
Company of the Restricted Stock Agreement and the foregoing and the mutual
representations, warranties, covenants and agreements set forth herein and
therein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Representations, Warranties and Covenants of the Stockholder.
The Stockholder (i) is the beneficial owner of the shares of Management Common
Stock indicated on the Signature Page hereto, free and clear of any liens,
claims, options, rights of first refusal, co-sale rights, charges or other
encumbrances that, in each case, would deprive Company of the benefits of this
Agreement (other than any rights of repurchase held by the Company); (ii) does
not beneficially own any securities of the Company other than the shares of
Management Common Stock and options to purchase shares of Common Stock indicated
on the Signature Page hereto; and (iii) has full power and authority to make,
enter into and carry out the terms of this Agreement and the proxy contained
herein.
SECTION 3. Agreement to Vote Shares; Grant of Irrevocable Proxy;
Appointment of Proxy.
(a) Subject to Section 5 hereof, for so long as the Stockholder is
employed by the Company, the Stockholder hereby irrevocably grants to, and
appoints, Insight Venture Partners, UBS Capital II LLC, and MSD Capital L.P.,
their successors or assigns and any nominee thereof (each a "Proxy Holder" and
together the "Proxy Holders"), its proxy and attorney-in-fact (with full power
of substitution), for and in the name, place, and stead of the Stockholder, to
vote Stockholder's Unvested Shares of Management Common Stock, or grant a
consent or approval in respect of Stockholder's Unvested Management Common
Stock, in connection with any meeting or action by written consent of the
stockholders of the Company. Each Proxy Holder shall vote that portion of the
Stockholder's Unvested Management Common Stock equal to that Proxy Holder's
ownership percentage (including holdings of controlled affiliates) of all the
shares of the Company's Series C-1 Preferred Stock held by all Proxy Holders
(and their controlled affiliates) at the time of the vote. If at any time a
Proxy Holder owns or controls less than two (2) percent of the outstanding
Series C-1 Preferred Stock, such Proxy Holder's proxy shall revert pro-rata to
the other Proxy Holders that continue to hold or control two percent or more of
the Series C-1 Preferred Stock. As of the date of this Agreement each Proxy
Holder may vote the percentage of Stockholder's Unvested Management Common Stock
listed below:
Proxy Holder Percentage
------------ ----------
Insight Venture 59.5%
Partners
UBS Capital II LLC 32.6%
MSD Capital L.P. 7.9%
(b) Subject to Section 5 hereof, after the Stockholder's employment
with the Company has been terminated for any reason, the Stockholder hereby
irrevocably grants to, and appoints, Proxy Holders, their successors or assigns
and any nominee thereof, its proxy and attorney-in-fact (with full power of
substitution), for and in the name, place, and stead of the Stockholder, to vote
Stockholder's Vested Shares of Management Common Stock, or grant a consent or
approval in respect of Stockholder's Vested Management Common Stock, in
connection with any meeting or action by written consent of the stockholders of
the Company. Each Proxy Holder shall vote that portion of the Stockholder's
Vested Management Common Stock equal to that Proxy Holders ownership percentage
(including holdings of controlled affiliates) of all the shares of the Company's
Series C-1 Preferred Stock held by all Proxy Holders (and their controlled
affiliates) at the time of the vote. If at any time a Proxy Holder owns or
controls less than two (2) percent of the outstanding Series C-1 Preferred
Stock, such Proxy Holder's proxy shall revert pro-rata to the other Proxy
Holders that continue to hold or control two percent or more of the Series C-1
Preferred Stock. As of the date of this Agreement each Proxy Holder may vote the
percentage of Stockholder's Vested Management Common
Stock listed in sub-clause (a) above. The Proxy Holders are intended
beneficiaries of this Voting Agreement.
(c) The Stockholder represents that no other proxies of any kind
have been given with respect to his Management Common Stock.
(d) Subject to Section 5 hereof, the Stockholder hereby affirms that
the proxy set forth in this Section 3 is irrevocable and is given in connection
with the execution of the Restricted Stock Agreement, and that such irrevocable
proxy is given to secure the performances of the duties of the Stockholder under
this Agreement. The Stockholder hereby further affirms that the irrevocable
proxy granted hereby is coupled with an interest in the Management Common Stock
and, except as set forth in Section 5 hereof, is intended to be irrevocable in
accordance with the provisions of Section 212(e) of the Delaware General
Corporation Law.
SECTION 4. Further Assurances. From time to time, upon request of the
other party and without further consideration, each party hereto shall execute
and deliver any additional documents and take such further actions as may be
necessary to carry out the provisions hereof.
SECTION 5. Termination. Except as otherwise provided in this Agreement,
this Agreement, and all rights and obligations of the parties hereunder, shall
terminate immediately upon an initial public offering of the Company's stock.
SECTION 6. Expenses. All fees and expenses incurred by any one
party hereto shall be borne by the party incurring such fees and expenses.
SECTION 7. Waiver of Claims. Stockholder hereby expressly waives all
claims of any nature against any Proxy Holder, its successor, assign, or
nominee, arising out of any exercise by such person of a proxy granted herein,
other than claims alleging gross negligence or intentional misconduct with
respect to such exercise by such person.
SECTION 8. Miscellaneous.
(a) Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated herein are not affected in any manner materially
adverse to any party hereto. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in a mutually acceptable
manner.
(b) Binding Effect and Assignment. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.
(c) Amendments and Modification. Except as may otherwise be provided
herein, any provision of this Agreement may be amended, modified or waived by
the parties hereto if, and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by the parties hereto, and in the case of a
waiver, by the party against whom the waiver is to be effective.
(d) Specific Performance; Injunctive Relief. The parties hereto
acknowledge that Company shall be irreparably harmed and that there shall be no
adequate remedy at law for a violation of any of the covenants or agreements of
the Stockholder set forth herein. Therefore, it is agreed that, in addition to
any other remedies that may be available to Company upon any such violation,
Company shall have the right to enforce such covenants and agreements by
specific performance, injunctive relief or by any other means available to
Company at law or in equity without the necessity of proving the inadequacy of
money damages as a remedy.
(e) Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement to any
party hereunder shall be in writing and deemed given upon (a) personal delivery,
(b) transmitter's confirmation of a receipt of a facsimile transmission, (c)
confirmed delivery by a standard overnight carrier or when delivered by hand or
(d) when mailed in the United States by certified or registered mail, postage
prepaid, addressed at the following addresses (or at such other address for a
party as shall be specified by notice given hereunder):
If to
Company:
With a copy Xxxxxxx Xxxxx & Xxxxx LLP
to: Bank of America Tower
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention:
Facsimile No.:
If to the Stockholder: To the address for notice set forth on the
signature page hereof.
With [Name]
copies to: [Address]
[City, State Zip]
Attention: [________________]
Facsimile No.: (___) ___-____
If to
Proxy
Holder
INSIGHT VENTURE PARTNERS
000 0xx Xxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
O'MELVENY & XXXXX, L.L.P.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attn: Xxxx X. Nissan, Esq.
UBS CAPITAL II LLC
000 xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with copies to:
Xxxx Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
MSD CAPITAL, L.P. (F/K/A MSD
PORTFOLIO L.P. - - INVESTMENTS AND
DBV INVESTMENTS, L.P.)
c/o MSD Capital, L.P.
000 0xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Tel: 000-000-0000
Fax: 000-000-0000
(f) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware (regardless of the laws
that might otherwise govern under applicable principles of conflicts of laws
thereof) as to all matters, including, but not limited to, matters of validity,
construction, effect, performance and remedies.
(g) Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof and
supersedes all other
prior agreements or understandings, both written and oral, between the parties
or any of them with respect to the subject matter hereof.
(h) Effect of Headings. The article and section headings contained
in this Agreement are solely for the purpose of reference, are not part of the
agreement of the parties hereto and shall not in any way affect the meaning or
interpretation of this Agreement.
(i) Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be deemed an original, with the same effect as
if the signatures thereto and hereto were upon the same instrument.
(j) Action in Stockholder Capacity Only. The Stockholder makes no
agreement or understanding herein in any capacity other than Stockholder's
capacity as a record holder and beneficial owner of the Management Common Stock
and nothing herein shall limit or affect any action taken or not taken in any
other capacity as an officer or director of the Company.
(k) Exercise of Options, Warrants or Other Rights. Notwithstanding
any provision of this Agreement to the contrary, nothing in this Agreement shall
require the Stockholder to exercise or convert shares that do not constitute
outstanding shares of Management Common Stock. In addition, nothing in this
Agreement shall prohibit the Stockholder from exercising (in accordance with the
terms of the option or warrant, as applicable) any option or warrant the
Stockholder may hold, and any shares of Common Stock acquired upon any such
exercise shall not be subject to this Agreement.
(Remainder of page intentionally left blank.)
The foregoing Agreement is hereby executed as of the date first above
written.
"COMPANY"
Greenfield Online, Inc.
By: _________________________________________
Name:
Title:
"STOCKHOLDER"
_____________________________________________
By: _________________________________________
Name:
Title:
SHARES BENEFICIALLY OWNED:
[____________] shares of Management Common
Stock
"PROXYHOLDERS"
INSIGHT VENTURE PARTNERS
By: _________________________________________
Name:
Title:
UBS CAPITAL II LLC
By: _________________________________________
Name:
Title:
MSD CAPITAL, L.P.
By: _________________________________________
Name:
Title:
EXHIBIT 4
SECTION 83(B) ELECTION
The undersigned taxpayer hereby elects, pursuant to Section 83(b) of the
Internal Revenue Code, to include in gross income for the taxpayer's current
taxable year the excess, if any, of the fair market value of the property
described below at the time of transfer over the amount paid for such property,
as compensation for services.
(1) The taxpayer who performed the services is:
Name:
Address:
Social Security No.:
(2) The property with respect to which the election is made is
_______________________________ ( ) shares of the Common Stock of
Greenfield Online, Inc. (the "Company").
(3) The property was transferred on ______________, 2002.
(4) The taxable year for which the election is made is the calendar year 2002.
(5) The shares are subject to the following restrictions: at the time of
taxpayer's termination of employment or services without cause any shares
that have not vested may be forfeited to the Company and at the time of
taxpayer's termination of employment or services for cause all vested or
unvested shares may be forfeited to the Company.
(6) The fair market value of the shares at the time of transfer (determined
without regard to any restriction other than a restriction which by its
terms will never lapse) was $____ per share.
(7) The amount paid for such shares was $____ per share.
(8) A copy of this statement was furnished to the Company for whom taxpayer
rendered the services underlying the transfer of such shares.
(9) This statement is executed on ____________, 2002.
_______________________________ _________________________________________
Taxpayer Spouse (if any)
This election must be filed with the Internal Revenue Service Center with which
the Manager files his or her federal income tax returns and must be filed within
30 days after the date of acquisition. This filing should be made by registered
or certified mail, return receipt requested. The Manager must retain two copies
of the completed form for filing with his or her federal and state tax returns
for the current tax year and an additional copy for his or her records.
GREENFIELD ONLINE, INC.
FIRST AMENDMENT
TO RESTRICTED STOCK AGREEMENT
THIS FIRST AMENDMENT ("AMENDMENT") is made effective as of January 14,
2004 to that certain Restricted Stock Agreement (the "AGREEMENT") dated as of
December 16, 2003, by and between Greenfield Online, Inc., a Delaware
corporation (the "COMPANY") and Xxxxxx X. Xxxx (the "MANAGER").
WHEREAS, pursuant to the Agreement, the Company sold Manager shares of
the Company's Common Stock, par value $0.0001, (the "COMMON STOCK"), of which
50% was "unvested" as of the date of the Agreement;
WHEREAS, Manager is a key employee of the Company that the Company
desires to incentivize and treat fairly; and
WHEREAS, Manager and the Company have agreed to amend the Agreement in
order to provide for an acceleration of vesting of the Common Stock and the
removal of certain other restrictions contained in the Agreement;
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the parties agree to amend the Agreement as follows:
1. Section 3.1 of the Agreement is deleted in its entirety and replaced
with the following:
3.1 FORFEITURE. As of the Effective Date, fifty (50) percent of the Shares are
considered "Unvested Shares" which are subject to repurchase by the Company, for
the lesser of fair market value or the original purchase price, upon termination
of the Manager's service with the Company for any reason or no reason, with or
without cause. On January 14, 2004, provided that the Manager is an employee in
good standing with the Company, all Unvested Shares shall be considered Vested
and the restrictions contained in Sections 3.2 - 3.5 shall expire as to all
Shares.
2. The parties hereby acknowledge and reaffirm that all of the terms
and conditions of the Agreement not specifically amended herein shall remain in
full force and effect.
****Signature Pages Follow****
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first mentioned above.
GREENFIELD ONLINE, INC. MANAGER
By:
---------------------
Its:
-------------------- ----------------------------
Xxxxxx X. Xxxx
