RESTRICTED STOCK AGREEMENT UBID.COM HOLDINGS, INC.
Exhibit
(a)(1)(H)
XXXX.XXX
HOLDINGS, INC.
2005
EQUITY INCENTIVE PLAN
THIS
AGREEMENT, made effective as of this ____
day of
____________,
2008,
by and between xXxx.xxx Holdings, Inc., a Delaware corporation (the “Company”),
and _________________________ (“Participant”).
W
I T N E
S S E T H:
WHEREAS,
the Participant on the date hereof is a key employee or officer of the Company;
and
WHEREAS,
the Company wishes to grant a restricted stock award to Participant for shares
of the Company’s Common Stock pursuant to the Company’s 2005 Equity Incentive
Plan (the “Plan”); and
WHEREAS,
the Administrator of the Plan has authorized the grant of a restricted stock
award to the Participant;
NOW,
THEREFORE, in consideration of the premises and of the mutual covenants herein
contained, the parties hereto agree as follows:
1. Grant
of Restricted Stock Award.
The
Company hereby grants to Participant on the date set forth above a restricted
stock award (the “Award”) for _____________________ (___________)
shares
of Common Stock (the “Stock”) on the terms and conditions set forth herein, and
subject to adjustment pursuant to Section 12 of the Plan. The Company shall
cause to be issued a stock certificate representing such shares of Stock in
the
Participant’s name, and shall deliver such certificate to the Participant;
provided, however, that the Company shall place a legend on such certificate
describing the risks of forfeiture and other transfer restrictions set forth
in
this Agreement and providing for the cancellation and return of such certificate
if such shares of Common Stock are forfeited as provided in Section 2 below.
Until such risks of forfeiture have lapsed or the shares subject to this Award
have been forfeited pursuant to Section 2 below, the Participant shall be
entitled to vote the shares represented by such stock certificates and shall
receive all dividends attributable to such shares, but the Participant shall
not
have any other rights as a shareholder with respect to such shares.
2. Vesting
of Restricted Stock.
a.
The
shares of Stock subject to this Award shall remain forfeitable until the vesting
dates set forth below:
Vesting
Date Percentage
of Shares
If
the
Participant’s employment with the Company is terminated for any reason,
including the Participant’s voluntary resignation or retirement but excluding
termination by the Company without “cause,” at any time prior to the vesting
date for the Award, the Participant shall immediately forfeit all shares of
Stock subject to this Award. If the Participant’s employment is terminated by
the Company without “cause” prior to the vesting date for this Award, all risks
of forfeiture on the shares of Stock subject to this Award shall immediately
lapse.
b. Solely
for purposes of this Paragraph 2(b), “cause” shall mean (i) Participant charged
with a felony or convicted of any
criminal misdemeanor or more serious act; (ii) any intentional and/or willful
act of fraud or dishonesty by Participant related to or connected with
Participant’s employment by the Company or any of its Affiliates; (iii) the
willful and/or continued failure, neglect or refusal by Participant to perform
his or her employment duties with the Company or any of its Affiliates, (iv)
a
material violation of the Participant’s or an Affiliate’s policies or codes of
conduct; or (v) the willful and/or material breach by Participant of any
agreement between Participant and the Company or any of its Affiliates,
including but not limited to an employment agreement or a noncompetition
agreement.
3. Miscellaneous.
a. Employment-at-Will.
This
Agreement shall not confer on Participant any right with respect to continuance
of employment by the Company or any of its Affiliates, nor will it interfere
in
any way with the right of the Company to terminate such employment.
Participant’s employment relationship with the Company and its Affiliates shall
be employment-at-will, and nothing in this Agreement shall be construed as
creating an employment contract for any specified term between Participant
and
the Company or any Affiliate.
b. Securities
Law Compliance.
Participant shall not transfer or otherwise dispose of the shares of Stock
received pursuant to this Agreement until such time as counsel to the Company
shall have determined that such transfer or other disposition will not violate
any state or federal securities laws. The Participant may be required by the
Company, as a condition of the effectiveness of this restricted stock award,
to
agree in writing that all Stock subject to this Agreement shall be held, until
such time that such Stock is registered and freely tradable under applicable
state and federal securities laws, for Participant’s own account without a view
to any further distribution thereof, that the certificates for such shares
shall
bear an appropriate legend to that effect and that such shares will be not
transferred or disposed of except in compliance with applicable state and
federal securities laws.
c. Mergers,
Recapitalizations, Stock Splits, Etc. Pursuant
and subject to Section 12 of the Plan, certain changes in the number or
character of the Common Stock of the Company (through merger, consolidation,
exchange, reorganization, divestiture (including a spin-off), liquidation,
recapitalization, stock split, stock dividend or otherwise) shall result in
an
adjustment, reduction or enlargement, as appropriate, in Participant’s rights
with respect to the shares of Stock subject to this Agreement.
d. Shares
Reserved.
The
Company shall at all times during the term of this Agreement reserve and keep
available such number of shares as will be sufficient to satisfy the
requirements of this Agreement.
e. Withholding
Taxes.
In
order to permit the Company to comply with all applicable federal or state
income tax laws or regulations, the Company may take such action as it deems
appropriate to insure that, if necessary, all applicable federal or state
payroll, income or other taxes are withheld from any amounts payable by the
Company to the Participant. If the Company is unable to withhold such federal
and state taxes, for whatever reason, the Participant hereby agrees to pay
to
the Company an amount equal to the amount the Company would otherwise be
required to withhold under federal or state law.
f. 2005
Equity Incentive Plan.
The
Award evidenced by this Agreement is granted pursuant to the Plan, a copy of
which Plan has been made available to Participant and is hereby incorporated
into this Agreement. This Agreement is subject to and in all respects limited
and conditioned as provided in the Plan. The Plan governs this Agreement. Except
with respect to the lockup provisions contained in Section 3.3 of Exhibit A,
in
the event of any questions as to the construction of this Agreement or in the
event of a conflict between the Plan and this Agreement, the Plan shall
govern.
g. Blue
Sky Limitation.
Notwithstanding anything in this Agreement to the contrary, in the event the
Company makes any public offering of its securities and determines, in its
sole
discretion, that it is necessary to reduce the number of issued but unexercised
stock purchase rights so as to comply with any state securities or Blue Sky
law
limitations with respect thereto, the Board of Directors of the Company shall
accelerate the vesting of this restricted stock award, provided that the Company
gives Participant 15 days’ prior written notice of such acceleration. Notice
shall be deemed given when delivered personally or when deposited in the United
States mail, first class postage prepaid and addressed to Participant at the
address of Participant on file with the Company.
h. Accounting
Compliance.
Participant agrees that, if a merger, reorganization, liquidation or other
“transaction” as defined in Section 12 of the Plan occurs, and Participant is an
“affiliate” of the Company or any Affiliate (as defined in applicable legal and
accounting principles) at the time of such transaction, Participant will comply
with all requirements of Rule 145 of the Securities Act of 1933, as amended,
and
the requirements of such other legal or accounting principles, and will execute
any documents necessary to ensure such compliance.
i. Additional
Transfer Restrictions.
Exhibit
A attached hereto sets forth additional transfer restrictions applicable to
the
shares of Stock issued or issuable to Participant under this Agreement. Such
Exhibit may be amended from time-to-time in the manner set forth
therein.
j. Stock
Legend.
The
Administrator may require that the certificates for any shares of Common Stock
purchased by Participant (or, in the case of death, Participant’s successors)
shall bear an appropriate legend to reflect the restrictions of Paragraph 4(b)
and Paragraphs 4(g) through 4(i) of this Agreement; provided,
however, that failure to so endorse any of such certificates shall not render
invalid or inapplicable Paragraph 4(i).
k. Scope
of Agreement; Amendment.
This
Agreement shall bind and inure to the benefit of the Company, its Affiliates
and
its successors and assigns and Participant and any successor or successors
of
Participant permitted by this Agreement. Notwithstanding
anything in this Agreement or the Plan to the contrary, the Company expressly
reserves the right to amend this Agreement without Participant’s consent to the
extent necessary or desirable to comply with Code Section 409A, and the
regulations, notices and other guidance of general applicability issued
thereunder.
l. Arbitration.
Any
dispute arising out of or relating to this Agreement or the alleged breach
of
it, or the making of this Agreement, including claims of fraud in the
inducement, shall be discussed between the disputing parties in a good faith
effort to arrive at a mutual settlement of any such controversy. If,
notwithstanding, such dispute cannot be resolved, such
dispute shall be settled by binding arbitration. Judgment upon the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. The arbitrator shall be a retired state or federal judge or an attorney
who has practiced securities or business litigation for at least 10 years.
If
the parties cannot agree on an arbitrator within 20 days, any party may request
that the chief judge of the District Court for Hennepin County, Minnesota,
select an arbitrator. Arbitration will be conducted pursuant to the provisions
of this Agreement, and the commercial arbitration rules of the American
Arbitration Association, unless such rules are inconsistent with the provisions
of this Agreement. Limited civil discovery shall be permitted for the production
of documents and taking of depositions. Unresolved discovery disputes may be
brought to the attention of the arbitrator who may dispose of such dispute.
The
arbitrator shall have the authority to award any remedy or relief that a court
of this state could order or grant; provided, however, that punitive or
exemplary damages shall not be awarded. The arbitrator may award to the
prevailing party, if any, as determined by the arbitrator, all of its costs
and
fees, including the arbitrator’s fees, administrative fees, travel expenses,
out-of-pocket expenses and reasonable attorneys’ fees. Unless otherwise agreed
by the parties, the place of any arbitration proceedings shall be Hennepin
County, Minnesota.
4. Change
of Control.
Notwithstanding anything in the Plan or this Agreement to the contrary, in
the
event of a “change of control,” all risks of forfeiture on the shares of Stock
subject to this Award shall immediately lapse unless (i) Participant’s
employment continues with the surviving entity, and (ii) the surviving entity
assumes this Award or replaces this Award with a restricted stock award for
an
equivalent number of such entity’s voting securities and substantially similar
terms, including but not limited to the vesting period set forth in Paragraph
2.
If Participant’s employment with the Company or any Affiliate is terminated in
connection with the change of control, or if Participant’s employment with the
surviving entity is terminated without “cause” (as defined in Paragraph 2(b)
above) within eighteen (18) months following the date of the change of control,
all risks of forfeiture on the shares of Stock subject to this Award, or the
replacement award, as the case may be, shall immediately lapse.
For
purposes of this Paragraph 4, a “change of control” means:
a. The
consummation of any merger, consolidation, exchange, or reorganization to which
the Company is a party if the individuals and entities who were shareholders
of
the Company immediately prior to the effective date of such transaction have,
immediately following the effective date of such transaction, beneficial
ownership (as defined in Rule 13d-3 under the Securities Exchange Act of 1934)
of less than twenty percent (20%) of the total combined voting power of all
classes of securities issued by the surviving corporation for the election
of
directors of the surviving corporation;
b. The
shareholders of the Company approve any plan or proposal for the liquidation
of
the Company;
c. A
sale,
lease or other transfer of all or substantially all of the assets of the Company
to any person or entity which is not an Affiliate of the Company;
or
d. The
acquisition, without prior approval by resolution adopted by the Board, of
direct or indirect beneficial ownership (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934) of securities of the Corporation representing,
in the aggregate, eighty percent (80%) or more of the total combined voting
power of all classes of the Company’s then-issued and outstanding securities by
any person or entity or by a group of associated persons or entities acting
in
concert; provided, however, that a change of control will not be deemed to
occur
if such acquisition is initiated by Participant or an entity in which
Participant owns eighty percent (80%) or more of the total combined voting
power
of all classes of such entity’s securities, or if Participant or such entity is
a member of the group of associated persons or entities acting in concert.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
on
the day and year first above written.
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XXXX.XXX
HOLDINGS, INC.
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