HARRIS INTERACTIVE INC. RESTRICTED STOCK AGREEMENT (Employee Participant)
Exhibit 10.8
This Agreement is made effective on , between XXXXXX INTERACTIVE INC., a Delaware
Corporation (the “Company”), and (“Participant”).
WHEREAS, the Company maintains the Xxxxxx Interactive Inc. 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 ___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), should
either a Date of Termination or a violation of Section 7 occur prior to any of the vesting dates
provided in Section 3, Participant shall forfeit the right to receive the Restricted Stock that
would otherwise have vested on such respective dates.
(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 date of this Agreement on which the
Participant’s employment with the Company and all Related Companies (as defined in the Plan)
terminates for any reason; provided that a termination of employment shall not be deemed to occur
by reason of a transfer of the Participant between the Company and a Related Company or between two
Related Companies; and further provided that the Participant’s employment shall not be considered
terminated while the Participant is on a leave of absence from the Company or a Related Company
approved by the Participant’s employer. If, as a result of a sale or other transaction, the
Participant’s employer ceases to be a Related Company (and the Participant’s employer is or becomes
an entity that is separate from the Company), the occurrence of such transaction shall be treated
as the Participant’s Date of Termination caused by the Participant being discharged by the
employer.
(c) Restrictions on Transfer. Neither the Restricted Stock nor any of it may not 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, of the Restricted Stock shall vest on each
of .
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(b) Change in Control. If a Change in Control (as defined in the Plan) shall occur,
then immediately all non-vested Restricted Stock, not previously forfeited, shall fully vest and
all Forfeiture Restrictions with respect to such shares shall lapse.
(c) 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 the Company shall 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 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 older
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.
6. Relationship to Company.
(a) The existence of this Restricted Stock 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
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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 Restricted Stock 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. Non-Competitive Agreement. In consideration of, and as a condition to, the award
and in consideration of the other rights and privileges of Participant with the Company,
Participant agrees that during the term of Participant’s employment or other contractual
relationship giving rise to Participant’s services on behalf of the Company, Participant shall not,
directly or indirectly, as a director, officer, employee, agent, partner or equity owner (except as
owner of less than 1% of the shares of the publicly traded stock of a corporation) of any entity,
compete in any manner with the Company. Furthermore, Participant agrees that, for a period of one
year after voluntary termination of his employment or other contractual relationship giving rise to
Participant’s services on behalf of the Company, Participant shall not, directly or indirectly, as
a director, officer, employee, agent, partner or equity owner (except as owner of less than 1% of
the shares of the publicly traded stock of a corporation) of any entity, solicit or otherwise deal
in any way with any of the clients or customers of the Company of which Participant had knowledge
as of the time of Participant’s voluntary termination (including any client to whom the Company has
sold services or products in the two years prior to termination and any prospective client or
customer for whom a bid has been prepared within the previous six months) with respect to any
services or products competitive with those of the Company. Participant acknowledges that the
Company’s legal remedies for a breach of this provision shall be inadequate, that the Company shall
be entitled to obtain injunctive relief to enforce this provision, and that the Company’s rights to
enforce this agreement shall survive vesting and/or forfeiture of the Restricted Stock. If any
part of this Section 7 shall be deemed illegal or unenforceable, this section shall be deemed
modified and then enforced to the greatest extent legally enforceable.
8. 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.
9. 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.
10. 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.
11. Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Delaware.
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
date of first above written.
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