RESTRICTED SHARE AGREEMENT UNDER THE GATEHOUSE MEDIA, INC. OMNIBUS STOCK INCENTIVE PLAN
Exhibit
10.2
UNDER
THE
GATEHOUSE MEDIA, INC.
OMNIBUS
STOCK INCENTIVE PLAN
This
Award Agreement (this "Restricted Share Agreement"), dated as of January 3,
2008
(the "Date of Grant"), is made by and between GateHouse Media, Inc., a Delaware
corporation (the "Company"), and xxx (the "Participant"). Capitalized terms
not
defined herein shall have the meaning ascribed to them in the GateHouse Media,
Inc. Omnibus Stock Incentive Plan (the "Plan"). Where the context permits,
references to the Company shall include any successor to the
Company.
1.
Grant
of Restricted Shares. The Company hereby grants to the Participant xxx Shares
(such shares, the "Restricted Shares"), subject to all of the terms and
conditions of this Restricted Share Agreement and the Plan.
Vesting
Date
|
Number
of Restricted Shares
|
|||
January
3, 2009
|
x,xxx
|
|||
January
3, 2010
|
x,xxx
|
|||
January
3, 2011
|
x,xxx
|
subject
in each case to the continued employment of the Participant by the Company
or
one of its Subsidiaries or Affiliates from the date hereof through the relevant
Vesting Date, and provided that the Participant has not given notice of
resignation, as of each such Vesting Date, subject to paragraph (ii) of this
Section 2(a).
(x)
in
the event that the Participant's employment with the Company or a Subsidiary
or
Affiliate is terminated by the Company without Cause, then the Restricted Shares
(if any) which are due to vest at the next Vesting Date shall vest on the date
of such termination of employment, and the restrictions on Transfer of such
Restricted Shares set out in Section 2(b) shall lapse, subject to the
Participant's execution of a separation agreement prepared by the Company (or
any Subsidiary of Affiliate) which includes, inter alia, a general release
of
claims; and
(y)
in
the event that the Participant's employment is terminated by the Company without
Cause within 12 months following a Change of Control, then 100% of the
Restricted Shares that are not vested as of the date of such termination shall
immediately vest.
THE
SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS
UPON
TRANSFER AND RIGHTS OF REPURCHASE (THE "RESTRICTIONS") AS SET FORTH IN THE
GATEHOUSE MEDIA, INC. OMNIBUS STOCK INCENTIVE PLAN AND A RESTRICTED SHARE
AGREEMENT ENTERED INTO BETWEEN THE REGISTERED OWNER AND GATEHOUSE MEDIA, INC.,
COPIES OF WHICH ARE ON FILE WITH THE SECRETARY OF THE COMPANY. ANY ATTEMPT
TO
DISPOSE OF THESE SHARES IN CONTRAVENTION OF THE RESTRICTIONS, INCLUDING BY
WAY
OF SALE, ASSIGNMENT, TRANSFER, PLEDGE, HYPOTHECATION OR OTHERWISE, SHALL BE
NULL
AND VOID AND WITHOUT EFFECT AND SHALL RESULT IN THE FORFEITURE OF SUCH SHARES
AS
PROVIDED BY SUCH PLAN AND AGREEMENT.
6.
Notices. All notices and other communications under this Restricted Share
Agreement shall be in writing and shall be given by facsimile or first class
mail, certified or registered with return receipt requested, and shall be deemed
to have been duly given three days after mailing or 24 hours after transmission
by facsimile to the respective parties, as follows: (a) if to the Company,
GateHouse Media, Inc., 000 XxxxxxXxxxx Xxxxxx Xxxx, Xxxxxxxx, XX 00000 , Attn:
General Counsel and (b) if to the Participant, using the contact information
on
file with the Company. Either party hereto may change such party's address
for
notices by notice duly given pursuant hereto.
9.
Protections Against Violations of Agreement. Until such time as the Restricted
Shares are fully vested in accordance with Section 2(a) hereof, no purported
sale, assignment, mortgage, hypothecation, transfer, charge, pledge,
encumbrance, gift, transfer in trust (voting or other) or other disposition
of,
or creation of a security interest in or lien on, any of the Restricted Shares
or any agreement or commitment to do any of the foregoing (each a "Transfer")
by
any holder thereof in violation of the provisions of this Restricted Share
Agreement will be valid, except with the prior written consent of the Board
of
Directors of the Company (such consent shall be granted or withheld in the
sole
discretion of the Board of Directors).
Any
purported Transfer of Restricted Shares or any economic benefit or interest
therein in violation of this Restricted Share Agreement shall be null and void
ab initio, and shall not create any obligation or liability of the Company,
and
any person purportedly acquiring any Restricted Shares or any economic benefit
or interest therein transferred in violation of this Restricted Share Agreement
shall not be entitled to be recognized as a holder of such Shares.
Without
prejudice to the foregoing, in the event of a Transfer or an attempted Transfer
in violation of this Restricted Share Agreement, the Company shall have the
right (in its sole discretion) to require a repurchase from the Participant
of
such Restricted Shares the subject of the Transfer or attempted Transfer at
a
price per Share equal to the par value per Share.
10.
Taxes. The Participant understands that he or she (and not the Company) shall
be
responsible for any tax liability that may arise as a result of the transactions
contemplated by this Restricted Share Agreement. The Participant shall pay
to
the Company promptly upon request, and in any event at the time the Participant
recognizes taxable income in respect to the Restricted Shares (or, if the
Participant makes an election under Section 83(b) of the Code in connection
with
such grant), an amount equal to the taxes the Company determines it is required
to withhold at the lowest applicable rate determined by the Company under
applicable tax laws with respect to the Restricted Shares. The Participant
may
satisfy the foregoing requirement by making a payment to the Company in cash
or,
with the approval of the Administrator, in its sole discretion, by electing
to
have the Company repurchase Shares which the Participant already owns and in
such event the Company shall repurchase such number of Shares having a value
equal to the minimum amount of tax required to be withheld. Such Shares shall
be
valued at their Fair Market Value on the date as of which the amount of tax
to
be withheld is determined. Any fractional amounts shall be settled in cash.
The
Participant shall promptly notify the Company of any election made pursuant
to
Section 83(b) of the Code. A form of such election is attached hereto as Exhibit
A.
THE
PARTICIPANT ACKNOWLEDGES THAT IT IS THE PARTICIPANT'S SOLE RESPONSIBILITY AND
NOT THE COMPANY'S TO FILE TIMELY THE ELECTION UNDER SECTION 83(b) OF THE CODE,
EVEN IF THE PARTICIPANT REQUESTS THE COMPANY OR ITS REPRESENTATIVE TO MAKE
THIS
FILING ON THE PARTICIPANT'S BEHALF.
The
Participant acknowledges that the tax laws and regulations applicable to the
Restricted Shares and the disposition of the Restricted Shares following vesting
are complex and subject to change, and it is the sole responsibility of the
Participant to obtain his or her own advice as to the tax treatment of the
terms
of this Restricted Share Agreement.
BY
SIGNING THIS AGREEMENT, THE PARTICIPANT REPRESENTS THAT HE OR SHE HAS REVIEWED
WITH HIS OR HER OWN TAX ADVISORS THE FEDERAL, STATE, LOCAL AND FOREIGN TAX
CONSEQUENCES OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND THAT HE
OR
SHE IS RELYING SOLELY ON SUCH ADVISORS AND NOT ON ANY STATEMENTS OR
REPRESENTATIONS OF THE COMPANY OR ANY OF ITS AGENTS. THE PARTICIPANT UNDERSTANDS
AND AGREES THAT HE OR SHE (AND NOT THE COMPANY) SHALL BE RESPONSIBLE FOR ANY
TAX
LIABILITY THAT MAY ARISE AS A RESULT OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.
11.
Failure to Enforce Not a Waiver. The failure of the Company to enforce at any
time any provision of this Restricted Share Agreement shall in no way be
construed to be a waiver of such provision or of any other provision
hereof.
With
respect to any Confidential Information that constitutes a "trade secret"
pursuant to applicable law, the restrictions described above shall remain in
force for so long as the particular information remains a trade secret or for
the two year period immediately following termination of Participant's
employment for any reason, whichever is longer. With respect to any Confidential
Information that does not constitute a "trade secret" pursuant to applicable
law, the restrictions described above shall remain in force during Participant's
employment and for the two year period immediately following termination of
Participant's employment for any reason. The Participant agrees that the
Participant shall promptly disclose to the Company in writing all information
and inventions generated, conceived or first reduced to practice by him alone
or
in conjunction with others, during or after working hours, while in the employ
of the Company (all of which is collectively referred to in this Agreement
as
"Proprietary Information"); provided, however, that such Proprietary Information
shall not include (a) any information that has otherwise been disclosed to
the
public not in violation of this Agreement and (b) general business knowledge
and
work skills of the Participant, even if developed or improved by the Participant
while in the employ of the Company. All such Proprietary Information shall
be
the exclusive property of the Company and is hereby assigned by the Participant
to the Company. The Participant's obligation relative to the disclosure to
the
Company of such Proprietary Information anticipated in this Section shall
continue beyond the Participant's termination of employment and the Participant
shall, at the Company's expense, give the Company all assistance it reasonably
requires to perfect, protect and use its right to the Proprietary
Information.
For
purposes of this Section, the "Company" refers to the Company and any
incorporated or unincorporated affiliates of the Company, including any entity
which becomes the Participant's employer as a result of any reorganization
or
restructuring of the Company for any reason. The Company shall be entitled,
in
connection with its tax planning or other reasons, to terminate the
Participant's employment (which termination shall not be considered a
termination for any purposes of this Restricted Share Agreement, any employment
agreement or otherwise) in connection with an invitation from another affiliate
of the Company to accept employment with such affiliate in which case the terms
and conditions hereof shall apply to the Participant's employment relationship
with such entity mutatis mutandis.
13.
Governing Law. This Restricted Share Agreement shall be governed by and
construed according to the laws of Delaware.
17.
Rights as a Shareholder. During the period until the restrictions on Transfer
of
the Restricted Share lapse as provided in Section 2(a) hereof, the Participant
shall have all the rights of a shareholder with respect to the Restricted Shares
save only the right to Transfer the Restricted Shares. Accordingly, the
Participant shall have the right to vote the Restricted Shares and to receive
any ordinary dividends paid to or made with respect to the Restricted
Shares.
18.
Agreement Not a Contract for Services. Neither the Plan, the granting of the
Restricted Shares, this Restricted Share Agreement nor any other action taken
pursuant to the Plan shall constitute or be evidence of any agreement or
understanding, express or implied, that the Participant has a right to continue
to provide services as an officer, director, employee, consultant or advisor
of
the Company or any Subsidiary or Affiliate for any period of time or at any
specific rate of compensation.
By
______________________________
Name
____________________________
Title
_____________________________
xxx
_________________________________
The
Participant
EXHIBIT
A
ELECTION
UNDER SECTION 83(b)
The
undersigned taxpayer hereby elects, pursuant to Section 83(b) of the Internal
Revenue Code of 1986, as amended, to include in taxpayer's gross income for
the
current taxable year the amount of any compensation taxable to taxpayer in
connection with taxpayer's receipt of the property described below:
1.
The
name address, taxpayer identification number and taxable year of the undersigned
are as follows:
NAME
OF
TAXPAYER: _________________________________________________
NAME
OF
SPOUSE: ____________________________________________________
ADDRESS:
____________________________________________________________
IDENTIFICATION
NO. OF TAXPAYER: ___________________________________
IDENTIFICATION
NUMBER OF SPOUSE: _________________________________
TAXABLE
YEAR: ______________________________________________________
2.
The
property with respect to which the election is made is described as follows:
_______ shares of Common Stock, par value $0.01 per share, of GateHouse Media,
Inc. ("Company").
3.
The
date on which the property was transferred is: ________________,
20__.
4.
The
property is subject to the following restrictions:
The
property may not be transferred and are subject to forfeiture under the terms
of
an agreement between the taxpayer and the Company. These restrictions lapse
upon
the satisfaction of certain conditions in such agreement.
5.
The
fair market value at the time of transfer, determined without regard to any
restriction other than a restriction which by its terms will never lapse, of
such property is: $ ________________.
6.
The
amount (if any) paid for such property is: $ ______________.
The
undersigned has submitted a copy of this statement to the person for whom the
services were performed in connection with the undersigned's receipt of the
above-described property. The transferee of such property is the person
performing the services in connection with the transfer of said
property.
The
undersigned understands that the foregoing election may not be revoked except
with the consent of the Commissioner.
Dated:
_______________, 200_
________________________________________
Taxpayer
The
undersigned spouse of taxpayer joins in this election.
Dated:
_______________, 200_
________________________________________
Spouse
of
Taxpayer