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:
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Its: Print Name:
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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:
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Its:
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Xxxxxx X. Xxxx
