Exhibit 10.32
Form of Restricted Stock Grant Agreement
WINWIN GAMING, INC.
2003 STOCK PLAN
NOTICE OF GRANT
Capitalized but otherwise undefined terms in this Notice of Grant and the
attached Restricted Share Grant Agreement shall have the same defined meanings
as in the 2003 Stock Plan.
Name: Address:
You have been granted Restricted Shares subject to the terms and conditions of
the Plan and the attached Restricted Share Grant Agreement, as follows:
Date of ▇▇▇▇▇:
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Vesting Commencement Date:
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Purchase Price per
Restricted Share: $ [Must be at least $0.01 per share]
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Total Number of Restricted
Shares Granted:
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Total Purchase Price: $
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Vesting Schedule:
The Restricted Shares shall vest and no longer be subject to forefeiture in
accordance with the following schedule:
WINWIN GAMING, INC.
2003 STOCK PLAN
RESTRICTED SHARE GRANT AGREEMENT
This RESTRICTED SHARE GRANT AGREEMENT ("Agreement"), dated as of the ___
day of ________, 2003 is made by and between WINWIN GAMING, INC., a Delaware
corporation (the "Corporation"), and ___________________ (the "Grantee," which
term as used herein shall be deemed to include any successor to the Grantee by
will or by the laws of descent and distribution, unless the context shall
otherwise require).
BACKGROUND
Pursuant to the Corporation's 2003 Stock Plan (the "Plan"), the
Corporation, acting through the Committee of the Board of Directors (if a
committee has been formed to administer the Plan) or its entire Board of
Directors (if no such committee has been formed) responsible for administering
the Plan (in either case, referred to herein as the "Committee"), approved the
issuance to the Grantee, effective as of the date set forth above, of an award
of the number of Restricted Shares as is set forth in the attached Notice of
Grant (which is expressly incorporated herein and made a part hereof, the
"Notice of Grant") at the purchase price per Restricted Share (the "Purchase
Price") set forth in the attached Notice of Grant, upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual premises and undertakings
hereinafter set forth, the parties hereto agree as follows:
1. Grant of Restricted Shares. The Corporation hereby grants to Grantee, and
Grantee hereby accepts the number of Restricted Shares set forth in the Notice
of Grant, subject to the payment by the Grantee of the total purchase price set
forth in the Notice of Grant. The certificates representing the Restricted
Shares hereunder shall be held in escrow by the Secretary of the Corporation as
provided in Section 7 hereof.
2. Stockholder Rights. Until such time as all or any part of the Restricted
Shares are forfeited to the Corporation under this Agreement, if ever, Grantee
(or any successor in interest) shall have the rights of a stockholder (including
voting rights) with respect to the Restricted Shares, including the Restricted
Shares held in escrow under Section 7, subject, however, to the transfer
restrictions of Section 3.
3. Vesting of Restricted Shares.
(a) The Restricted Shares shall be restricted and subject to forfeiture
pursuant to Section 4 until vested pursuant to this Section 3 or Section 6(b).
The Restricted Shares shall vest, and no longer be subject to forfeiture, (such
Restricted Shares becoming "Vested Shares") in accordance with the vesting
schedule set forth in the Notice of Grant. All Restricted Shares which have not
become Vested Shares are hereinafter sometimes referred to as "Nonvested
Shares."
(b) The Grantee acknowledges that the vesting of the foregoing Restricted
Shares may create significant income tax liability to the Grantee.
(c) Nonvested Shares may not be sold, transferred, assigned, pledged, or
otherwise disposed of, directly or indirectly.
4. Forfeiture of Nonvested Shares. At such time as ▇▇▇▇▇▇▇'s Business
Relationship with the Corporation ceases for any reason, including death, then,
in such event, any Nonvested Shares shall be automatically forfeited to the
Corporation, subject to the re-payment by the Corporation of the total purchase
price specified in the Notice of Grant.
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5. Legend. All stock certificates evidencing the Nonvested Shares shall be
imprinted with a legend substantially as follows:
"THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS AGAINST TRANSFER AND FORFEITURE, AS SET FORTH IN A
RESTRICTED STOCK GRANT AGREEMENT DATED [INSERT DATE]. TRANSFER OF
THESE SHARES MAY BE MADE ONLY IN COMPLIANCE WITH THE PROVISIONS OF
SAID AGREEMENT, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICE
OF THE CORPORATION."
6. Recapitalizations, Exchanges, Mergers, Etc.
(a) The provisions of this Agreement shall apply to the full extent set
forth herein with respect to any and all shares of capital stock of the
Corporation or successor of the Corporation which may be issued in respect of,
in exchange for, or in substitution for the Restricted Shares by reason of any
stock dividend, split, reverse split, combination, recapitalization,
reclassification, merger, consolidation or otherwise which does not terminate
this Agreement. Except as otherwise provided herein, this Agreement is not
intended to confer upon any other person except the parties hereto any rights or
remedies hereunder.
(b) In the event that the Corporation effects a Corporate Transaction, the
Board of Directors may take any one or more of the actions specified in Section
17 of the Plan
7. Escrow for the Restricted Shares.
(a) Upon issuance, the certificates for the Restricted Shares shall be
deposited in escrow with the Corporation to be held in accordance with the
provisions of this Section 7. Each deposited certificate shall be accompanied by
a duly executed stock transfer power executed in blank. The deposited
certificates, together with any other assets or securities from time to time
deposited with the Corporation pursuant to the requirements of this Agreement,
shall remain in escrow until such time or times as the certificates (or other
assets and securities) are to be released or otherwise surrendered for
cancellation in accordance with Section 7(c) below.
(b) Any cash dividends on the Restricted Shares (or other securities at
the time held in escrow) shall be held in escrow. In the event of any stock
dividend, stock split, recapitalization, or other change affecting the
Corporation's outstanding Common Stock as a class effected without receipt of
consideration, any new, substituted, or additional securities or other property
which is by reason of such event distributed with respect to the Restricted
Shares shall be immediately delivered to the Corporation to be held in escrow
under this Section 7, but only to the extent the Restricted Shares are at the
time subject to the escrow requirements of Section 7(a).
(c) The Restricted Shares, together with any other assets or securities
held in escrow hereunder, shall be subject to the following terms and conditions
relating to their release from escrow or their surrender to the Corporation for
cancellation:
(i) Should any Restricted Shares be forfeited to the Corporation,
then the escrowed certificates for such Restricted Shares (together with any
other assets or securities issued with respect thereto) shall be delivered to
the Corporation for cancellation, and Grantee shall cease to have any further
rights or claims with respect to such Restricted Shares (or other assets or
securities).
(ii) Prior to the interest of Grantee in the Restricted Shares (or
any other assets or securities issued with respect thereto) vesting in
accordance with the provisions of Section 3 or 6(b), the certificates for such
Nonvested Shares (as well as all other assets and securities) shall remain in
escrow.
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(iii) Subsequent to such vesting, the certificates for such Vested
Shares (as well as all other vested assets and securities) shall be released
from escrow and delivered to the Grantee upon the request of Grantee.
8. No Employment Contract Created. The issuance of the Restricted Shares shall
not be construed as granting to Grantee any right with respect to continuance of
employment or any other Business Relationship by the Corporation or any of its
subsidiaries. The right of the Corporation or any of its subsidiaries to
terminate at will Grantee's employment or terminate a Business Relationship with
the Grantee at any time (whether by dismissal, discharge or otherwise), with or
without cause, is specifically reserved, subject to any other written employment
or other agreement to which the Corporation and Grantee may be a party.
9. Section 83(b) Election. Grantee understands that under Section 83 of the
Internal Revenue Code of 1986, as amended (the "Code"), the excess of the fair
market value of the Restricted Shares on the date any forfeiture restrictions
applicable to such Restricted Shares lapse over the purchase price paid for such
Restricted Shares will be reportable as ordinary income at that time. ▇▇▇▇▇▇▇
understands, however, that Grantee may elect to be taxed at the time the
Restricted Shares are acquired hereunder, rather than when and as such
Restricted Shares cease to be subject to such forfeiture restrictions, by filing
an election under Section 83(b) of the Code with the Internal Revenue Service
within thirty (30) days after the date of this Agreement. GRANTEE ACKNOWLEDGES
THAT IT IS ▇▇▇▇▇▇▇'S SOLE RESPONSIBILITY, AND NOT THE CORPORATION'S, TO FILE A
TIMELY ELECTION UNDER SECTION 83(b), EVEN IF GRANTEE REQUESTS THE CORPORATION OR
ITS REPRESENTATIVES TO MAKE THIS FILING ON ▇▇▇▇▇▇▇'S BEHALF.
10. Tax Witholding. The Corporation shall be entitled to withhold from ▇▇▇▇▇▇▇'s
compensation any amounts necessary to satisfy applicable tax withholding with
respect to the grant and vesting of the Restricted Shares.
11. Interpretation. The Restricted Shares are being issued pursuant to the terms
of the Plan, and shall in all respects be interpreted in accordance therewith.
The Board of Directors shall interpret and construe this Agreement and the Plan,
and any action, decision, interpretation or determination made in good faith by
the Board of Directors shall be final and binding on the Corporation and
Grantee.
12. Notices. All notices or other communications which are required or permitted
hereunder shall be in writing and sufficient if (i) personally delivered or sent
by telecopy, (ii) sent by nationally-recognized overnight courier or (iii) sent
by registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
if to the Grantee, to the address (or telecopy number) set forth on the
Notice of Grant; and
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if to the Corporation, to:
WinWin Gaming, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: 702-233-4189
Attention: Corporate Secretary
(Or, if different, the address indicated as the principal address of the
Corporation in the most recent report filed by the Corporation with the
Securities and Exchange Commission)
with a copy (which shall not constitute notice) to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
or to such other address as the party to whom notice is to be given may
have furnished to the other party in writing in accordance herewith. Any such
communication shall be deemed to have been given (i) when delivered, if
personally delivered, or when telecopied, if telecopied, (ii) on the first
Business Day (as hereinafter defined) after dispatch, if sent by
nationally-recognized overnight courier and (iii) on the third Business Day
following the date on which the piece of mail containing such communication is
posted, if sent by mail. As used herein, "Business Day" means a day that is not
a Saturday, Sunday or a day on which banking institutions in the city to which
the notice or communication is to be sent are not required to be open.
13. Specific Performance. ▇▇▇▇▇▇▇ expressly agrees that the Corporation will be
irreparably damaged if the provisions of this Agreement and the Plan are not
specifically enforced. Upon a breach or threatened breach of the terms,
covenants and/or conditions of this Agreement or the Plan by the Grantee, the
Corporation shall, in addition to all other remedies, be entitled to a temporary
or permanent injunction, without showing any actual damage, and/or decree for
specific performance, in accordance with the provisions hereof and thereof. The
Board of Directors shall have the power to determine what constitutes a breach
or threatened breach of this Agreement or the Plan. Any such determinations
shall be final and conclusive and binding upon the Grantee.
14. No Waiver. No waiver of any breach or condition of this Agreement shall be
deemed to be a waiver of any other or subsequent breach or condition, whether of
like or different nature.
15. Grantee Undertaking. The Grantee hereby agrees to take whatever additional
actions and execute whatever additional documents the Corporation may in its
reasonable judgment deem necessary or advisable in order to carry out or effect
one or more of the obligations or restrictions imposed on the Grantee pursuant
to the express provisions of this Agreement.
16. Modification of Rights. The rights of the Grantee are subject to
modification and termination in certain events as provided in this Agreement and
the Plan.
17. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware applicable to contracts made
and to be wholly performed therein, without giving effect to its conflicts of
laws principles.
18. Counterparts; Facsimile Execution. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument. Facsimile execution
and delivery of this Agreement is legal, valid and binding execution and
delivery for all purposes.
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19. Entire Agreement. This Agreement (including the Notice of Grant) and the
Plan, constitute the entire agreement between the parties with respect to the
subject matter hereof, and supersede all previously written or oral
negotiations, commitments, representations and agreements with respect thereto.
20. Severability. In the event one or more of the provisions of this Agreement
should, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provisions of this Agreement, and this Agreement shall be construed as if
such invalid, illegal or unenforceable provision had never been contained
herein.
21. WAIVER OF JURY TRIAL. THE GRANTEE HEREBY EXPRESSLY, IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Restricted Share
Grant Agreement as of the date first written above.
WINWIN GAMING, INC.
By:
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Name:
Title:
Grantee:
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Name:
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SPOUSE'S CONSENT TO AGREEMENT
I acknowledge that I have read the Restricted Share Grant Agreement (the
"Agreement") by and between WinWin Gaming, Inc. (the "Corporation") and my
spouse concerning the Common Stock of the Corporation, and that I know its
contents. I am aware that my spouse has agreed therein to the imposition of
certain forfeiture provisions and restrictions on transferability with respect
to the Restricted Shares that are the subject of the Agreement, including with
respect to my community interest therein, if any, on the occurrence of certain
events described in the Agreement. I hereby consent to and approve of the
provisions of the Agreement, and agree that I will abide by the Agreement and
bequeath any interest in the Restricted Shares which represents a community
interest of mine to my spouse or to a trust subject to my spouse's control or
for my spouse's benefit or the benefit of our children if I predecease him.
Dated:
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