HARRIS INTERACTIVE INC. RESTRICTED STOCK AGREEMENT (Employee Participant — Effective for Grants Made After May 1, 2008)
Exhibit 10.1.23
XXXXXX INTERACTIVE INC.
RESTRICTED STOCK AGREEMENT
(Employee Participant — Effective for Grants Made After May 1, 2008)
RESTRICTED STOCK AGREEMENT
(Employee Participant — Effective for Grants Made After May 1, 2008)
This Agreement is
made effective on ____________, between XXXXXX INTERACTIVE INC., a
Delaware Corporation (the “Company”),
and ____________ (“Participant”).
WHEREAS, the Company maintains its 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.
(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 (irrespective of the reason for termination and whether such termination is voluntary or
involuntary); 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 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 __________________.
(b) Change in Control.
(i) Section 4.14(c) of the Plan shall be superseded by Section 3(b)(ii) hereof if an
assumption or substitution for the Restricted Stock, in compliance with Section 3(b)(iii) hereof,
occurs at such time as a Change in Control (as defined in the Plan) occurs. If such a complying
assumption or substitution does not so occur, upon the occurrence of a Change in Control all
non-vested Restricted Stock, not previously forfeited, shall fully vest and all Forfeiture
Restrictions with respect to such shares shall lapse.
(ii) All non-vested Restricted Stock, not previously forfeited, shall fully vest and all
Forfeiture Restrictions with respect to such shares shall lapse if the Participant’s Date of
Termination occurs upon or in the one-year period immediately following a Change in Control (as
defined in the Plan) unless such Date of Termination is due to termination of Participant by the
Company for Cause or Participant’s voluntary termination of his or her employment without Good
Reason. For purposes of this subsection:
(A) “Cause” means (1) refusal or substantial failure to perform (other than due to physical or
mental disability), or misconduct in the performance of, the ordinary and customary duties of
Participant as reasonably required by the Company or the successor company, provided that such
refusal, failure, or misconduct has continued after the Company or the surviving or acquiring
entity or successor company (“successor company”) has given Participant five business days written
notice of same, (2) overt and willful disobedience of orders or directives issued by the Company or
successor company that are within the reasonable scope of Participant’s duties to the Company or
successor company, (3) conviction of or commission of any felony by Participant, whether or not
related to performance of duties under this Agreement, (4) commission of any other illegal act if
committed in connection with the
2
performance of duties for the Company or successor company if such act could reasonably tend to
bring the Company or successor company into disrepute, or (5) material violation of the Company’s
or successor company’s written rules, regulations or policies of general application provided that
such violation has continued after the Company or successor company has given Participant five
business days written notice of same.
(B) “Good Reason” means (1) material breach of the Company’s or successor company’s
obligations to Participant, provided that Participant shall have given reasonably specific written
notice thereof to the Company and/or successor company, and the Company and/or successor company
shall have failed to remedy the circumstances within ten business days thereafter, (2) any decrease
in Participant’s base salary as in effect immediately prior to any Change of Control, or any
material decrease in Participant’s benefits if such modification is not of general applicability to
other similarly situated employees, or (4) the relocation of Participant’s principal office to a
location more than thirty (30) miles from the location of his/her office immediately prior to the
Change in Control; provided, however, that Participant’s principal office shall not be deemed to be
relocated by virtue of Participant being required to spend up to ten working days per month on
average in the Company’s or successor company’s, and their respective affiliate’s, other offices.
(iii) A complying assumption or substitution shall occur if in connection with a Change in
Control the successor company, or its respective parent company, assumes or substitutes for the
Restricted Stock an award that confers the right to receive, for each share of Restricted Stock
immediately prior to the Change in Control, the consideration (whether in stock, cash or other
securities or property) received in the transaction constituting the Change in Control by holders
of shares for each share held on the effective date of the transaction (and if holders were offered
a choice of consideration, the type of consideration chosen by the holders of a majority of the
outstanding shares); provided however, that if such consideration received in the transaction
constituting a Change in Control is not solely common stock of the successor company or its parent
or subsidiary, the Committee, may, with the consent of the successor company, or its parent or
subsidiary, provide that the consideration to be received upon the vesting of the Restricted Stock,
for each share thereof, will be solely common stock of the successor company or its parent or
subsidiary substantially equal in fair market value to the per share consideration received by
holders of shares in the transaction constituting a Change in Control. The determination of such
substantial equality of value of consideration shall be made by the Committee in its sole
discretion and its determination shall be conclusive and binding.
(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 promptly 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
3
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
4
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) No Effect on Rights of Company. 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 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—Competition; Non-Solicitation.
(a) Consideration for this Section. Participant acknowledges and agrees that:
(i) the benefits afforded by this Agreement are discretionary and over and above the ordinary
employment compensation provided by the Company to Participant, and in making its decision to offer
Participant the benefits afforded by this Agreement the Company relied upon and was induced by the
covenants made by Participant in this section,
(ii) in accepting the grant evidenced by this Agreement Participant is receiving an asset of
significant value, which is adequate consideration for the restrictions imposed by this Agreement,
(iii) Participant’s position with the Company places Participant in a position of confidence
and trust with the clients and employees of the Company,
(iv) the Company’s business is carried on throughout the world and accordingly, it is
reasonable that the restrictive covenants set forth below are not limited by specific geographic
area,
(v) the course of Participant’s employment with the Company necessarily requires the
disclosure of confidential information and trade secrets related to the Company’s relationships
with clients (such as, without limitation, pricing information, marketing
5
plans, budgets, designs, methodologies, products, client preferences and policies, and
identity of appropriate personnel of clients with sufficient authority to influence a shift in
suppliers) as well as other confidential and proprietary information, (such as databases,
methodologies, and technologies),
(vi) Participant’s employment affords Participant the opportunity to develop a personal
acquaintanceship and relationship with the Company’s employees and clients, which in some cases may
constitute the Company’s primary or only contact with such employees and clients, and to develop a
knowledge of those client’s and employee’s affairs and requirements,
(vii) the Company’s relationships with its established clientele and employees are placed in
Participant’s hands in confidence and trust, and
(viii) it is reasonable and necessary for the protection of the goodwill and business of the
Company that Participant make the covenants contained in this Agreement.
(b) Restricted Activity.
(i) Participant agrees that during the term of Participant’s employment, Participant shall
not, directly or indirectly, as a director, officer, employee, agent, partner or 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), 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 Participant’s Date of Termination, 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 employment by the Company acquired a
relationship or had dealings,
(B) with respect to whom Participant in the course of employment by the Company was
privy to material or proprietary information, or
(C) with respect to whom Participant was otherwise involved in the course of employment
by the Company, whether in a supervisory, managerial, consultative, policy-making, or other
capacity involving other Company employees who had direct dealings with such clients and
customers.
6
Such clients and customers include any client or customer to whom the Company sold services or
products in the two years prior to the Date of Termination, 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 Date of Termination, or any prospective client or customer for whom
pursuit was actively planned by the Company within the year prior to the Date of Termination and in
respect of whom the Company has not determined to cease such pursuit.
(iii) For a period of one year after the Date of Termination, Participant shall not (including
without limitation on behalf of, for the benefit of, or in conjunction with or as part of, 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.
(c) 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.
7
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. |
||||
| By: | ||||
| Title: | ||||
| Accepted: | ||||
| |
||||
| (Participant) | ||||
| Dated: | ||||
8
