EXHIBIT 10.22
WYNDCREST DD HOLDINGS, INC.
RESTRICTED STOCK AGREEMENT
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.
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) i
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