FORM OF RESTRICTED STOCK AGREEMENT — DIRECTORS
Exhibit 10.3
This Agreement is made effective on , between XXXXXX INTERACTIVE INC., a
Delaware Corporation (the “Company”), and (“Participant”).
WHEREAS, the Company maintains the 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 ___ 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.
2. Risk of Forfeiture (“Forfeiture Restrictions”).
(a) Forfeiture Due to Termination of Service. 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) 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-twelfth of the Restricted Stock shall vest on
the 15th day of each month commencing on December 15, 20___.
(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 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 service on the Board of Directors of the
Company, 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 service at any time.
7. Non-Competitive Agreement.
(a) Restricted Activity.
(i) Participant agrees that during the term of Participant’s service as a director,
Participant shall not, directly or indirectly, as a director, officer, employee, agent, partner or
equity owner (except as owner of less than 4.9% of the shares of the publicly traded stock of a
corporation which Participant does not have in fact the power to control or direct) of any entity,
or in any other manner directly or indirectly engage in any activity or business competitive in any
manner with the activities or business of the Company.
(ii) For a period of one year after the date (the “Termination Date”) on which Participant no
longer serves as a director of the Company (irrespective of the reason for termination of such
service), with respect to any services, products, or business pursuits competitive with those of
the Company, Participant shall not, directly or indirectly, whether as a director, officer,
employee, consultant, agent, partner, equity owner of any entity (except as owner of less than 4.9%
of the shares of the publicly traded stock of a corporation which Participant does not have in fact
the power to control or direct), participant, proprietor, manager, operator, independent
contractor, representative, advisor, trustee, or otherwise, solicit or otherwise deal in any way
with any of the clients or customers of the Company:
(A) with whom Participant in the course of service as a director of the Company acquired a
relationship or had dealings,
(B) with respect to whom Participant in the course of service as a director of the Company was
privy to material or proprietary information, or
(C) with respect to whom Participant was otherwise directly involved in the course of service
as a director of the Company.
Such clients and customers include any client or customer to whom the Company sold services or
products in the two years prior to the Termination Date, any prospective client or customer of the
Company for whom a proposal was prepared or to whom any other marketing presentation was made
within the year prior to the Termination Date, or any prospective client or customer for whom
pursuit was actively planned by the Company within the year prior to Termination and in respect of
whom the Company has not determined to cease such pursuit.
(iii) For a period of one year after the Termination Date, Participant shall not (including
without limitation on behalf of, for the benefit of, or in conjunction with, any other person or
entity) directly or indirectly:
(A) solicit, assist, discuss with or advise, influence, induce or otherwise encourage in any
way, any employee of Company to terminate such employee’s relationship with Company for any reason,
or assist any person or entity in doing so,
(B) employ, assist, engage or otherwise contract or create any relationship with any employee
or former employee of Company in any business or venture of any kind or nature, in the case of a
former employee unless such person shall not have been employed by Company for a period of at least
one year and no solicitation prohibited hereby shall have occurred prior to the end of such one
year period, or
(C) interfere in any manner with the relationship between any employee and Company.
(b) Remedies. Participant acknowledges that the Company’s legal remedies for a breach
of this Section 7 shall be inadequate, and that without limitation of Company’s rights to any other
remedy at law or equity available to it, the Company (i) shall be entitled to obtain injunctive
relief to enforce this provision, and (ii) shall be entitled to cancel any rights under this
Agreement, and (iii) shall be entitled to recover from the Participant any Stock granted hereunder,
whether or not vested, or if such Stock has been transferred or sold, an amount equal to the value
thereof, and such Stock and the proceeds thereof shall be held in a constructive trust for the
purposes of enforcement hereof. The Company’s rights to enforce this Agreement shall survive any
vesting and/or forfeiture of rights hereunder. 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.
THIS AGREEMENT SHALL NOT BE EFFECTIVE UNLESS A COPY SIGNED BY THE PARTICIPANT IS DELIVERED TO
THE COMPANY WITHIN FORTY-FIVE (45) DAYS AFTER THE GRANT DATE.
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.
XXXXXX INTERACTIVE INC.
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Title:
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Dated: | |||||||||
