WYNDCREST DD HOLDINGS, INC. RESTRICTED STOCK AGREEMENT
EXHIBIT
10.22
WYNDCREST
DD HOLDINGS, INC.
This
Restricted Stock Agreement (this “Agreement”)
is
made as of March 23, 2007 (the “Effective
Date”)
by and
between Wyndcrest DD Holdings, Inc., a Delaware corporation (the “Company”),
and
________________ (the “Holder”).
WHEREAS,
the Company and the Holder are among the parties to the SPA (as defined
infra);
and
WHEREAS,
clause 3.2(c) of the SPA provides for the Company and the Holder to enter into
a
restricted stock agreement pursuant to which the Company is to issue a specified
number of shares of the Common Stock (as defined infra)
to the
Holder in the form of restricted stock; and
WHEREAS,
The Foundry Visionmongers Ltd. (the “Foundry”),
an
affiliate of the Company, employs the Holder (the “Employment”).
NOW,
THEREFORE, for good and valuable consideration (including, without limitation,
the consideration for the Transaction (as defined in the SPA)), the receipt
and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
AGREEMENT
1. Definitions.
For
purposes of this Agreement, the following terms shall have the meanings
respectively set forth below:
“Anniversary
Date”
means
any anniversary of the Effective Date.
“Board”
means
the Board of Directors of the Company.
“Common
Stock”
means
the Company’s Common Stock, $0.0001 par value per share.
“Restricted
Shares”
means
the shares of Common Stock issued to the Holder pursuant to Section 2 of
this Agreement, during the period that they are subject to the Restrictions.
“Restricted Shares” shall also include any additional or different securities
issued with respect to existing Restricted Shares as a result of any adjustment
made pursuant to Section 8 hereof.
“Restrictions”
means
the restrictions set forth in Section 3 hereof which are imposed on the
Restricted Shares prior to the vesting thereof in accordance with the terms
of
this Agreement.
“SPA”
means
that certain Share Purchase Agreement, of even date herewith, by and among
the
Holder and the other parties defined as Sellers therein, the Buyer (as defined
therein) (the “Buyer”) and the Foundry.
“Vested
Shares”
means
the shares of Common Stock issued to the Holder pursuant to Section 2
hereof which have become vested pursuant to Section 4 hereof and are, therefore,
no longer subject to the Restrictions.
2. Issuance
of Restricted Stock.
Pursuant to action of the Board duly taken and in accordance with the terms
of
the SPA, the Company hereby agrees to issue to the Holder [ # ] shares of the
Common Stock as Restricted Shares.
3. Restrictions.
From
the Effective Date until such time, if any, that the Holder obtains a vested
right to the shares of Common Stock subject to this Agreement pursuant to
Section 4 hereof, neither such shares of Common Stock (including any additional
shares resulting from an adjustment of the original shares pursuant to
Section 8 hereof), nor any right or privilege pertaining thereto, may be
sold, assigned, transferred, pledged, hypothecated or otherwise disposed of
or
encumbered in any way, and shall not be subject to execution, attachment or
similar process. Any attempt to sell, transfer, assign, pledge, hypothecate
or
otherwise dispose of or encumber the Restricted Shares, or any right or
privilege pertaining thereto, shall be null and void ab
initio
and of
no force and effect. Upon the lapse of the Restrictions with respect to any
shares of Common Stock, the Holder shall obtain a vested right to such shares
of
Common Stock.
4. Vesting.
Except
as otherwise provided in Section 7 and subject to the last sentence of this
Section 4, on each Anniversary Date through and including the third
Anniversary Date, the Restrictions shall lapse with respect to one-third of
the
original number of Restricted Shares set forth in Section 2 hereof, as
adjusted to account for additional shares of Common Stock resulting from any
adjustment pursuant to Section 8 hereof. For this purpose, fractional
shares shall be rounded down to the nearest whole share of Common Stock (for
which purpose one-half share shall be rounded down to the nearest whole share
of
Common Stock). Notwithstanding the foregoing, upon (i) the Foundry’s termination
of the Employment in any of the circumstances set out in Exhibit B attached
hereto, or (ii) the Holder’s resignation of the Employment, other than in
response to the Holder’s constructive dismissal (in circumstances amounting to a
repudiatory breach of the terms of such Employment on the part of the Foundry)
from such Employment, any remaining Restricted Shares which have not theretofore
become vested in accordance with the forepart of this Section 4 shall
immediately and permanently be forfeited to the Company without the payment
of
any consideration by the Company.
5. Custody,
Voting and Dividends.
Restricted Shares shall be held in certificated form in the name of the Holder
by the Company or its agent for the Holder’s account, with appropriate notation
of the Restrictions made in the Company’s records and on the certificate(s)
evidencing the Restricted Shares. The original, executed irrevocable stock
power
attached to this Agreement as Exhibit A shall be endorsed and delivered to
the
Secretary of the Company along with the original of this Agreement as executed
and delivered to the Company by the Holder. To the extent the Restricted Shares
have not been forfeited, the Holder shall be entitled to all voting and dividend
rights and privileges associated therewith.
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6. Lapse
of Restrictions.
If, and
when, the Restrictions lapse, the Company shall promptly distribute the stock
certificate(s) evidencing the Vested Shares to the Holder, which will not bear
any restrictive legend other than such legends as may be appropriate under
applicable foreign, federal or state securities laws. Additionally, the Company
will deliver to the Holder, no later than thirty (30) days following the lapse
of such Restrictions, the related irrevocable stock power delivered to the
Company pursuant to Section 5 hereof.
7. SPA
Offset Rights.
Notwithstanding any other provision of this Agreement, in the event that any
of
the Restricted Shares are subjected to the Buyer’s right of offset against
indemnification liabilities of the Holder as provided in clause 7.15 of the
SPA,
such Restricted Shares shall eo instante
be
permanently forfeited to the Company.
8. Adjustments.
Notwithstanding anything to the contrary herein, in the event that the Board
shall determine in good faith that any recapitalization, stock dividend, stock
split, reverse stock split, reorganization, merger, consolidation, spin-off,
combination, repurchase, or share exchange, or other similar corporate
transaction or event, affects the Restricted Shares such that an adjustment
is
equitable in order to prevent inequitable dilution or enlargement of the rights
of the Holder under this Agreement, then the Board shall, in such manner as
it
may deem equitable, make any adjustments to the grant of Restricted Shares
provided for in this Agreement that it deems appropriate.
9. Tax
Considerations.
The
Holder acknowledges and understands that the tax consequences to the Holder
as a
result of the transaction contemplated by this Agreement depend on the Holder’s
individual circumstances and the characterization of such transaction. Further,
the Holder will be responsible for any personal tax liability, whether foreign,
federal, state or local, as a result of this transaction and the Holder’s
ownership of the Restricted Shares and/or the Vested Shares. The Holder has
consulted with the Holder’s own financial and tax advisor(s) with respect to
this transaction and has not relied on any advice from the Company or any of
its
officers, directors, agents or representatives with respect to the tax
consequences thereof. Upon the lapse of the Restrictions (or such earlier time,
if any, that the value of the shares issued to the Holder pursuant to this
Agreement are included in taxable income of the Holder), if the Company (or
any
subsidiary or affiliate of the Company) is required to withhold taxes with
respect thereto under any applicable foreign, federal, state or local law,
rule
or regulation, the Company shall have the right to require the Holder to pay
to
it (or such subsidiary or affiliate) immediately the amount of such taxes,
and
may withhold the delivery of the stock certificate(s) evidencing the Vested
Shares and the related stock power delivered to the Company in accordance with
Section 5 hereof until such amount is paid.
10. Investment
Representations.
In
connection with the issuance to the Holder of Restricted Shares pursuant to
the
terms hereof, the Holder represents to the Company the following:
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10.1 Investment.
The
Holder is acquiring the Restricted Shares for investment for the Holder’s own
account and not with the view to, or for resale in connection with, any
distribution, assignment or resale within the meaning of the U.S. Securities
Act
of 1933 (the “Securities Act”), the California Corporate Securities Law of 1968,
as amended (the “California Securities Law”) and any other applicable securities
law, foreign or domestic, and no other person has a direct or indirect
beneficial interest, in whole or in part, in such Restricted Shares. The Holder
understands that the Restricted Shares have not been and will not be registered
under the Securities Act or qualified under the California Securities Law or
under the securities laws of any other jurisdiction in reliance upon specific
exemptions from the securities registration and qualification requirements
thereof which depend upon, among other things, the bona fide nature of the
Holder’s investment intent as expressed herein and in any other representations,
warranties or information provided by the Holder to the Buyer in connection
with
the SPA and/or to the Company in this Agreement.
10.2 Restrictions
on Transfer.
The
Holder acknowledges that the Restricted Shares and the Vested Shares must be
held indefinitely unless subsequently registered and qualified under the
Securities Act and other applicable law or unless an exemption from the
applicable securities registration and qualification requirements is otherwise
available. The Holder further understands that the Company is under no
obligation to register or qualify the Restricted Shares or the Vested
Shares.
10.3 Relationship
to Company; Experience.
The
Holder either has a preexisting business or personal relationship with the
Company or any of its officers, directors or controlling persons or, by reason
of the Holder’s business or financial experience, has the capacity to protect
the Holder’s own interests in connection with the Holder’s acquisition of the
Restricted Shares. The Holder has such knowledge and experience in financial,
tax and general business matters as is sufficient to enable the Holder to
utilize the information made available to the Holder in connection with the
acquisition of the Restricted Shares to evaluate the merits and risks of an
investment therein and to make an informed investment decision with respect
thereto.
10.4 Access
to Data.
The
Holder is aware of the Company’s business affairs and financial condition, and
has acquired sufficient information about the Company to reach an informed
and
knowledgeable decision to acquire the Restricted Shares. The Holder acknowledges
that during the course of the Transaction (as defined in the SPA) and before
deciding to acquire the Restricted Shares, the Holder has been provided with
financial and other written information about the Company. The Holder has been
given the opportunity by the Company to obtain any information and ask questions
concerning the Company, the Restricted Shares, and the Holder’s investment
therein that the Holder deems necessary; and to the extent the Holder availed
himself of that opportunity, the Holder has received satisfactory information
and answers.
10.5 Risks.
The
Holder acknowledges and understands that (i) an investment in the Restricted
Shares is highly speculative, and (ii) there can be no assurance as to what
return, if any, there may be thereon. The Holder is aware that the Company
may
issue additional securities in the future which would result in the dilution
of
the Holder’s ownership interest in the Company.
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10.6 Valid
Agreement.
This
Agreement when executed and delivered by the Holder shall constitute a valid
and
legally binding obligation of the Holder which shall be enforceable against
the
Holder in accordance with its terms.
10.7 Residence.
The
Holder is a permanent resident of the United Kingdom.
11. Miscellaneous.
11.1 Amendment.
This
Agreement may only be amended by written agreement between the Company and
the
Holder.
11.2 Notices.
Notices
required or permitted under this Agreement shall be given pursuant to the
applicable provisions of clause 16 of the SPA, which provisions are hereby
incorporated herein by this reference, provided that the notice address for
the
Holder for purposes of this Agreement shall be as set forth on the signature
page of this Agreement.
11.3 Successors
and Assigns.
The
rights and benefits of this Agreement shall inure to the benefit of, and be
enforceable by, the Company’s successors and assigns. The rights and obligations
of the Holder under this Agreement may only be assigned with the prior written
consent of the Company.
11.4 Further
Actions.
Each
party agrees to execute any additional documents and take such further actions
as the other party may deem reasonably necessary to carry out the purposes
of
this Agreement.
11.5 Shareholder
Rights.
Subject
to the provisions of this Agreement, the Holder shall during the term of this
Agreement exercise all rights and privileges of a shareholder of the Company
with respect to the Restricted Shares, until such time, if any, as they are
forfeited to the Company.
11.6 Injunctive
Relief.
The
Holder agrees that the Company and/or other shareholders of the Company shall
be
entitled to a decree of specific performance of the terms hereof or an
injunction restraining violations of this Agreement, without the necessity
of
posting a bond, such right to be in addition to any of the other remedies of
the
Company hereunder. No remedy provided herein is intended to be exclusive of
any
other remedy, and each and every remedy shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter existing
at
law or in equity.
11.7 Governing
Law; Jurisdiction and Venue.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of California. The parties irrevocably agree that the state and Federal
courts of Los Angeles County, California shall have exclusive jurisdiction
to
settle any dispute or claim that arises out of or in connection with this
Agreement. Each of the parties agrees to waive to the fullest extent permitted
by applicable law any objection that it now has or may hereafter have to the
venue of any litigation, proceeding or action arising out of, or in connection
with, this Agreement being laid in any such court, or that any such litigation,
proceeding or action was brought in an inconvenient forum.
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11.8 Severability.
If any
provision of this Agreement is held by a court of competent jurisdiction to
be
invalid, void or unenforceable, the remaining provisions shall nevertheless
continue in full force and effect without being impaired or invalidated in
any
way and shall be construed in accordance with the purposes, tenor and effect
of
this Agreement.
11.9 No
Right to Continued Employment.
Nothing
contained herein shall confer upon the Holder any right to continue in the
employ of the Foundry, or any of its affiliates or subsidiaries, and the Foundry
and such other persons shall have all otherwise available rights to discharge
the Holder from employment for any reason whatsoever, with or without
cause.
11.10 Entire
Agreement.
This
Agreement embodies the entire agreement and understanding of the parties in
respect of the subject matter hereof and supersedes all prior and
contemporaneous written or oral communications or agreements between the Company
and the Holder regarding the subject matter hereof, and no amendment or addition
hereto shall be deemed effective unless agreed to in writing by the
parties.
11.11 Waivers.
No
waiver of any provision of this Agreement or any rights or obligations of either
party hereunder shall be effective, except pursuant to a written instrument
signed by the party or parties waiving compliance, and any such waiver shall
be
effective only in the specific instance and for the specific purpose stated
in
such writing.
11.12 Counterparts.
This
Agreement may be executed in one or more counterparts each of which shall be
an
original and all of which together shall constitute one and the same
instrument.
11.13 Attorneys’
Fees.
If any
legal action or any arbitration or other proceeding is brought for the
enforcement of this Agreement, or because of an alleged dispute, breach, default
or misrepresentation in connection with any provision of this Agreement, the
successful or prevailing party shall be entitled to recover reasonable
attorneys’ fees and other costs incurred in that action or proceeding, in
addition to any other relief to which such party may be entitled.
[Signature
page follows.]
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IN
WITNESS WHEREOF, the Company and the Holder have executed this Restricted Stock
Agreement as of the day and year first written above.
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“COMPANY”
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WYNDCREST
DD HOLDINGS, INC.
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By:_______________________________
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Its:_______________________________
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“HOLDER”
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| ______________________________ | |
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Address:____________________________
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| _________________________ | |
| _________________________ | |
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EXHIBIT
A
IRREVOCABLE
STOCK POWER
FOR
VALUE
RECEIVED, and pursuant to that certain Restricted Stock Agreement dated as
of
March 23, 2007 (the “Agreement”), the undersigned does hereby sell, assign,
transfer and convey to Wyndcrest DD Holdings, Inc. (the “Company”)
________________ shares of the Company’s Common Stock, $0.0001 par value per
share, represented by Certificate(s) No.______________, and hereby irrevocably
constitutes and appoints _____________________ to transfer said stock on the
books of the Company, with full power of substitution in the premises.
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______________________________________________________
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__________________
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First
Name Middle
Name Last
Name
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Date
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Instructions:
Please do not fill in any blanks other than the signature line. The purpose
of
this irrevocable stock power is to enable the Company to exercise full ownership
and control over the restricted stock subject to the Agreement in the event
of
forfeiture.
EXHIBIT
B
The
Holder:
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1.
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commits
any serious breach of the terms of the Employment or is guilty of
any
gross misconduct or any wilful neglect in the discharge of the Holder’s
duties under the terms of such
Employment;
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2.
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repeats
or continues (after written warning) any material breach of the terms
of
the Employment;
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3.
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is
guilty of any fraud, dishonesty or any conduct that the Foundry reasonably
believes could bring the Holder, the Foundry or the Company into
disrepute
(whether or not constituting gross
misconduct);
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4.
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consistently
and/or persistently fails to carry out the Holder’s duties and obligations
under the terms of the Employment;
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5.
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is
convicted of any criminal offence (other than minor offences under
road
traffic or other legislation for which a fine or non-custodial penalty
is
imposed) which the Foundry reasonably believes could impair the Holder’s
ability to perform the Holder’s obligations under the terms of the
Employment in any material respect;
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6.
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(if
the Holder is a director) is disqualified from holding office in
the
Foundry or in any other company by reason of any order made under
the
Company Directors Disqualification Xxx 0000 or any other United Kingdom
enactment;
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7.
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is
convicted of an offence under the Criminal Justice Act 1993 Pt V32
or
under any other present or future United Kingdom statutory enactment
or
regulations relating to insider dealings;
or
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8.
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(if
the Holder is a director) resigns as or becomes prohibited by law
from
being a director of the Foundry, otherwise than at the Foundry’s request
or with the Foundry’s
agreement.
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