EXHIBIT 4.8
DDI CORP.
2005 STOCK INCENTIVE PLAN
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RESTRICTED SHARES AWARD AGREEMENT
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AWARD NO. ___
DATE ___
You are hereby awarded Restricted Shares subject to the terms and
conditions set forth in this Restricted Shares Award Agreement ("Award
Agreement"), and in the DDi Corp. 2005 Stock Incentive Plan (the "Plan"), which
is attached hereto as Exhibit A. A summary of the Plan appears in its
Prospectus, which is attached as Exhibit B. You should carefully review these
documents, and consult with your personal financial advisor, in order to fully
understand the implications of this Award, including your tax alternatives and
their consequences.
By executing this Award Agreement, you agree to be bound by all
of the Plan's terms and conditions as if they had been set out verbatim in this
Award Agreement. In addition, you recognize and agree that all determinations,
interpretations, or other actions respecting the Plan and this Award Agreement
will be made by the Board of Directors (the "Board") of DDi Corp. (the
"Company") or the Committee pursuant to Section 4(c) of the Plan, and that such
determinations, interpretations or other actions are (in the absence of manifest
bad faith or fraud) final, conclusive and binding upon all parties, including
you, your heirs, and representatives. Capitalized terms are defined in the Plan
or in this Award Agreement.
1. SPECIFIC TERMS. Your Restricted Shares have the following terms:
Name of Participant
Number of Shares
Subject to Award
Agreement
Purchase Price per
Share (if applicable) Not applicable.
Award Date
Vesting Your Restricted Shares under this Award Agreement shall
vest at the rate of _____ on _____ __, 20__ , _____ on
______ ___, 20___and the remaining _____ on _____ __,
20__; subject in each case to acceleration as provided
in the Plan, to the shareholder approval condition set
forth in Section 7 below, and to your Continuous
Service with the Company not ending before the vesting
date
Lifetime Transfer Allowed.
Restricted Shares Award Agreement
DDi Corp.
2005 Stock Incentive Plan
Page 2
2. DIVIDENDS. Any cash dividends on your Restricted Shares will be held by the
Company (unsegregated as part of its general assets) until the period of
forfeiture lapses (and forfeited if the underlying Shares are forfeited), and
paid over to you as soon as practicable after such period lapses (if not
forfeited).
3. INVESTMENT PURPOSES. You acknowledge that you are acquiring your Restricted
Shares for investment purposes only and without any present intention of selling
or distributing them.
4. ISSUANCE OF RESTRICTED SHARES. Until all vesting restrictions lapse, any
certificates that you receive for Restricted Shares will include a legend
stating that they are subject to the restrictions set forth in the Plan and this
Award Agreement.
5. LAPSE OF VESTING RESTRICTIONS. As vesting restrictions lapse, the Company
shall cause certificates for Shares to be issued and delivered to you, with such
legends and restrictions that the Committee determines to be appropriate.
Certificates shall not be delivered to you unless you have made arrangements
satisfactory to the Committee to satisfy tax-withholding obligations.
6. LONG-TERM CONSIDERATION FOR AWARD. The Participant recognizes and agrees that
the Company's key consideration in granting this Option is securing the
long-term commitment of the Participant to serve as a trusted executive officer
who will advance and promote the Company's business interests and objectives.
Accordingly, the Participant agrees to the following as material and indivisible
consideration for this Award:
(a) Fiduciary Duty. During his or her employment with the Company the
Participant shall devote his or her full energies, abilities, attention and
business time to the performance of his or her job responsibilities and shall
not engage in any activity which conflicts or interferes with, or in any way
compromises, his or her performance of such responsibilities.
(b) Confidential Information. The Participant recognizes that by virtue
of his or her employment with the Company, he or she will be granted otherwise
prohibited access to confidential information and proprietary data which are not
known to the Company's competitors. This information (the "Confidential
Information") includes, but is not limited to, current and prospective
customers; the identity of key contacts at such customers; customers'
particularized preferences and needs; marketing strategies and plans; financial
data; personnel data; compensation data; proprietary procedures and processes;
and other unique and specialized practices, programs and plans of the Company
and its customers and prospective customers. The Participant recognizes that
this Confidential Information constitutes a valuable property of the Company,
developed over a significant period of time and at substantial expense.
Accordingly, the Participant agrees that he or she shall not, at any time during
or after his or her employment with the Company, divulge such Confidential
Information or make use of it for his or her own purposes or the purposes of any
person or entity other than the Company.
(c) Non-Solicitation of Customers. The Participant recognizes that by
virtue of his or her employment with the Company he or she will be introduced to
and involved in the solicitation and servicing of existing customers of the
Company and new customers obtained by the Company during his or her employment.
The Participant understands and agrees that all efforts expended in
Restricted Shares Award Agreement
DDi Corp.
2005 Stock Incentive Plan
Page 3
soliciting and servicing such customers shall be for the permanent benefit of
the Company. The Participant further agrees that during his or her employment
with the Company the Participant will not engage in any conduct which could in
any way jeopardize or disturb any of the Company's customer relationships. The
Participant also recognizes the Company's legitimate interest in protecting, for
a reasonable period of time after his or her employment with the Company, the
Company's customers. Accordingly, the Participant agrees that, for a period
beginning on the date hereof and ending one (1) year after termination of
Participant's employment with the Company, regardless of the reason for such
termination, the Participant shall not, directly or indirectly, without the
prior written consent of the Chairman of the Company, market, offer, sell or
otherwise furnish any products or services similar to, or otherwise competitive
with, those offered by the Company to any customer of the Company.
(d) Non-Solicitation of Employees. The Participant recognizes the
substantial expenditure of time and effort which the Company devotes to the
recruitment, hiring, orientation, training and retention of its employees.
Accordingly, the Participant agrees that, for a period beginning on the date
hereof and ending two (2) years after termination of Participant's employment
with the Company, regardless of the reason for such termination, the Participant
shall not, directly or indirectly, for himself or herself or on behalf of any
other person or entity, solicit, offer employment to, hire or otherwise retain
the services of any employee of the Company.
(e) Survival of Commitments; Potential Recapture of Award and Proceeds.
The Participant acknowledges and agrees that the terms and conditions of this
Section 6 regarding confidentiality and non-solicitation shall survive both (i)
the termination of Participant's employment with the Company for any reason, and
(ii) the termination of the Plan, for any reason. The Participant acknowledges
and agrees that the grant of Restricted Shares in this Award Agreement is just
and adequate consideration for the survival of the restrictions set forth
herein, and that the Company may pursue any or all of the following remedies if
the Participant either violates the terms of this Section or succeeds for any
reason in invalidating any part of it (it being understood that the invalidity
of any term hereof would result in a failure of consideration for the Award):
(i) declaration that the Award is null and void and of no further
force or effect;
(ii) recapture of any cash paid or Shares issued to the
Participant, or any designee or beneficiary of the
Participant, pursuant to the Award;
(iii) recapture of the proceeds, plus reasonable interest, with
respect to any Shares that are both issued pursuant to this
Award and sold or otherwise disposed of by the Participant, or
any designee or beneficiary of the Participant.
The remedies provided above are not intended to be exclusive, and the Company
may seek such other remedies as are provided by law, including equitable relief.
(f) Acknowledgement. The Participant acknowledges and agrees that his or
her adherence to the foregoing requirements will not prevent him or her from
engaging in his or her
Restricted Shares Award Agreement
DDi Corp.
2005 Stock Incentive Plan
Page 4
chosen occupation and earning a satisfactory livelihood following the
termination of his or her employment with the Company.
7. SECTION 83(B) ELECTION NOTICE. If you make an election under Section 83(b) of
the Internal Revenue Code of 1986, as amended, with respect to the Shares
underlying your Restricted Shares (a "Section 83(b) election"), you agree to
provide a copy of such election to the Company within 10 days after filing that
election with the Internal Revenue Service. Exhibit C contains a suggested form
of Section 83(b) election.
8. SHAREHOLDER APPROVAL CONDITION. Notwithstanding anything to the contrary
contained herein or in the Plan and pursuant to Section 20 of the Plan, this
Award Agreement is expressly conditioned on the Plan being approved by the
shareholders of the Company. Accordingly, no Shares shall be delivered hereunder
until such approval has been obtained, and this Award Agreement shall become
null, void, and of no force or effect if such approval is not received within
the period set forth in Section 20 of the Plan.
9. TRANSFER. This Award Agreement may not be sold, pledged, or otherwise
transferred without the prior written consent of the Committee.
10. DESIGNATION OF BENEFICIARY. Notwithstanding anything to the contrary
contained herein or in the Plan, following the execution of this Award
Agreement, you may expressly designate a beneficiary (the "Beneficiary") to your
interest, if any, in the Restricted Shares awarded hereby. You shall designate
the Beneficiary by completing and executing a designation of beneficiary
agreement substantially in the form attached hereto as Exhibit D (the
"Designation of Beneficiary") and delivering an executed copy of the Designation
of Beneficiary to the Company.
11. NOTICES. Any notice or communication required or permitted by any provision
of this Award Agreement to be given to you shall be in writing and shall be
delivered personally or sent by certified mail, return receipt requested,
addressed to you at the last address that the Company had for you on its
records. Each party may, from time to time, by notice to the other party hereto,
specify a new address for delivery of notices relating to this Award Agreement.
Any such notice shall be deemed to be given as of the date such notice is
personally delivered or properly mailed.
12. BINDING EFFECT. Except as otherwise provided in this Award Agreement or in
the Plan, every covenant, term, and provision of this Award Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, legatees, legal representatives, successors, transferees, and assigns.
13. MODIFICATIONS. This Award Agreement may be modified or amended at any time
by the Committee, provided that your consent must be obtained for any
modification that adversely alters or impairs any rights or obligations under
this Award Agreement, unless there is an express Plan provision permitting the
Committee to act unilaterally to make the modification.
14. HEADINGS. Headings shall be ignored in interpreting this Award Agreement.
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DDi Corp.
2005 Stock Incentive Plan
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15. SEVERABILITY. Every provision of this Award Agreement and the Plan is
intended to be severable, and any illegal or invalid term shall not affect the
validity or legality of the remaining terms.
16. GOVERNING LAW. This Award Agreement shall be interpreted, administered and
otherwise subject to the laws of the State of Montana (disregarding any
choice-of-law provisions).
17. COUNTERPARTS. This Award Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute the same
instrument.
18. RESTRICTIONS ON TRANSFER. This Award Agreement may not be sold, pledged, or
otherwise transferred without the prior written consent of the Committee.
Notwithstanding the foregoing, the Participant may transfer this Award (i) by
instrument to an inter vivos or testamentary trust (or other entity) in which
each beneficiary is a permissible gift recipient, as such is set forth in
subsection (ii) of this Section 16, or (ii) by gift to charitable institutions
or by gift or transfer for consideration to any of the following relatives of
the Participant (or to an inter vivos trust, testamentary trust or other entity
primarily for the benefit of the following relatives of the Participant): any
child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former
spouse, domestic partner, sibling, niece, nephew, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law, or sister-in-law, and shall include
adoptive relationships. Any transferee of the Participant's rights shall succeed
and be subject to all of the terms of this Award Agreement and the Plan.
BY YOUR SIGNATURE BELOW, along with the signature of the Company's
representative, you and the Company agree that the Restricted Shares are awarded
under and governed by the terms and conditions of this Award Agreement and the
Plan.
DDI CORP.
By: ____________________________________
Name:
Title:
PARTICIPANT
The undersigned Participant hereby accepts the
terms of this Award Agreement and the Plan.
By: ____________________________________
Name of Participant: ___________________