FIND/SVP, INC.
RESTRICTED STOCK AWARD AGREEMENT
THIS RESTRICTED STOCK AWARD AGREEMENT (the "Agreement") is made as of the
1st day of January, 2005, by and between Find/SVP, Inc., a New York corporation,
having its principal office at 000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000
(the "Corporation"), and Xxxxx Xxxxx (the "Employee" or "Restricted
Stockholder"). Capitalized terms not defined herein shall have the meanings
ascribed to them in the Corporation's 2003 Stock Incentive Plan.
WHEREAS, the Corporation has heretofore adopted the Find/SVP, Inc. 2003
Stock Incentive Plan (the "Plan") for the benefit of certain employees,
officers, directors, consultants, independent contractors and advisors of the
Corporation, which Plan has been approved by the Corporation's stockholders; and
WHEREAS, Employee and the Corporation have entered into an Employment
Agreement dated May 13, 2002 and a First Amendment to the Employment Agreement
dated January 1, 2005 (collectively the "Employment Agreement"), which provides
that the Employee shall be awarded the Restricted Shares (defined below); and
WHEREAS, Employee is a key employee of the Corporation and the Corporation
believes it to be in the best interests of the Corporation to incentivize the
Employee through the grant of restricted shares of common stock (the "Common
Stock"), par value $.0001 per share, of the Corporation. WHEREAS, this
Restricted Stock Award Agreement is delivered and entered into pursuant to the
Plan.
NOW THEREFORE, in consideration of the mutual agreements herein contained,
the parties hereto agree as follows:
1. Restricted Stock. Subject to the provisions hereinafter set forth and the
terms and conditions of the Plan, the Corporation hereby grants to the Employee,
as of January 1, 2005 (the "Grant Date"), a restricted stock award, subject to
the vesting schedule set forth below, of Twenty Five Thousand (25,000) shares of
Common Stock (the "Restricted Shares"), such number being subject to adjustment
as provided in the Plan. As more fully described below, the Restricted Shares
granted hereby are subject to forfeiture by the Employee if certain criteria are
not satisfied. The Employee hereby delivers to the Corporation the purchase
price for the Restricted Shares in an amount equal to $250 in cash (or $.01 for
each share granted).
2. Vesting.
(a) The Restricted Shares shall vest and become nonforfeitable as
follows:
(i) 100% on the date the Average Closing Price
exceeds three dollars and twenty five cents ($3.25)
per share in year 1 of the Term of the Employment
Agreement, subject to adjustment pursuant to Section
18.1 of the Plan or as otherwise mutually agreed in
writing between the parties;
(ii) 100% on the date the Average Closing Price
exceeds four dollars ($4.00) per share in year 2 of
the Term of the Employment Agreement, subject to
adjustment pursuant to Section 18.1 of the Plan or as
otherwise mutually agreed in writing between the
parties;
(iii) 100% on the date the Average Closing Price
exceeds five dollars ($5.00) per share in year 3 of
the Term of the Employment Agreement, subject to
adjustment pursuant to Section 18.1 of the Plan or as
otherwise mutually agreed in writing between the
parties;
(iv) the date there is a Change of Control of the
Corporation (as defined in Section 4 of the
Employment Agreement; or
(v) the date that Employee is terminated from the
Corporation without Cause or Executive resigns for
Good Reason (as defined in the Employment Agreement).
For purposes of this Agreement, "Average Closing Price" shall mean the average
closing price of the Corporation's common stock quoted on the NASDAQ System or
such other exchange where the Corporation's common stock may be traded for
fifteen (15) consecutive trading days.
(b) Notwithstanding the vesting schedule set forth herein, such
vesting schedule may be accelerated by the Board of Directors or the
Compensation Committee of the Board of Directors (the "Committee") in their sole
decision.
(c) Upon the vesting dates the Restricted Shares shall be issued to
the Employee in accordance with the Plan and the terms hereof including Section
3 below.
(d) Nothing in the Plan shall confer on Employee any right to
continue in the employ of, or other relationship with, the Corporation or any
subsidiary of the Corporation, or limit in any way the right of the Corporation
or any Affiliate (as defined in the Plan) or subsidiary of the Corporation to
terminate Employee's employment or other relationship at any time, with or
without cause. This Agreement does not constitute an employment contract. This
Agreement does not guarantee employment for the length of time of the above
vesting schedule or for any portion thereof.
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(e) Tax Consequences. Employee understands that Employee may suffer
adverse tax consequences as a result of the grant, vesting or disposition of the
Restricted Shares. Employee represents that Employee has consulted with his or
her own independent tax consultant(s) as Employee deems advisable in connection
with the grant, vesting or disposition of the Restricted Shares and that
Employee is not relying on the Corporation for any tax advice.
3. Issuance and Withholding.
(a) Upon vesting, the Corporation shall issue the Restricted Shares
registered in the name of Employee, Employee's authorized assignee, or
Employee's legal representative, and shall deliver certificates representing the
Restricted Shares.
(b) Prior to the issuance of the Restricted Shares, Employee must
pay or provide for any applicable federal or state withholding obligations in
accordance with Section 16 below.
4. Compliance With Laws and Regulations. The issuance and transfer of Restricted
Shares shall be subject to compliance by the Corporation and Employee with all
applicable requirements of federal and state securities laws and with all
applicable requirements of any stock exchange or quotation system on which the
Corporation's Common Stock may be listed at the time of such issuance or
transfer
5. Nontransferability. Until the Restricted Shares shall be vested and issued
and until the satisfaction of any and all other conditions specified herein, the
Restricted Shares may not be sold, transferred, assigned, pledged or otherwise
encumbered or disposed of by the Employee, other than by will or by the laws of
descent and distribution, except upon the written consent of the Corporation
and, in any case, in compliance with the terms and conditions of this Agreement.
The terms of this Agreement shall be binding upon the executors, administrators,
successors and assigns of Employee.
6. Privileges of Stock Ownership. Employee shall not have any of the rights of a
stockholder with respect to any Restricted Shares until the Restricted Shares
are vested and are issued to Employee.
7. Interpretation. Any dispute regarding the interpretation of this Agreement
shall be submitted by Employee or the Corporation to the Committee for review.
The resolution of such a dispute by the Committee shall be final and binding on
the Corporation and Employee.
8. Entire Agreement. The Plan is incorporated herein by reference. This
Agreement and the Plan constitute the entire agreement and understanding of the
parties hereto with respect to the subject matter hereof and supersede all prior
understandings and agreements with respect to such subject matter.
9. Notices. Any notice required to be given or delivered to the Corporation
under the terms of this Agreement shall be in writing and addressed to the
Corporate Secretary of the Corporation at its principal corporate offices. Any
notice required to be given or delivered to Employee shall be in writing and
addressed to Employee at the address indicated above or to such other address as
such party may designate in writing from time to time to the Corporation. All
notices shall be deemed to have been given or delivered upon: personal delivery;
three (3) days after deposit in the United States mail by certified or
registered mail (return receipt requested); one (1) business day after deposit
with any return receipt express courier (prepaid); or one (1) business day after
transmission by facsimile.
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10. Successors and Assigns. The Corporation may assign any of its rights under
this Agreement. This Agreement shall be binding upon and inure to the benefit of
the successors and assigns of the Corporation. Subject to the restrictions on
transfer set forth herein, this Agreement shall be binding upon Employee and
Employee's heirs, executors, administrators, legal representatives, successors
and assigns.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, applicable to agreements made
and to be performed entirely within such state, other than conflict of laws
principles thereof directing the application of any law other than that of New
York.
12. Acceptance. Employee hereby acknowledges receipt of a copy of the Plan and
this Agreement. Employee has read and understands the terms and provisions
thereof and hereof, and accepts this restricted stock award subject to all the
terms and conditions of the Plan and this Agreement. Employee acknowledges that
there maybe adverse tax consequences upon the grant or the vesting of this
restricted stock award, issuance or disposition of the Restricted Shares and
that the Corporation has advised Employee to consult a tax advisor regarding the
tax consequences of the grant, vesting, issuance or disposition.
13. Covenants of the Employee. The Employee agrees (and for any proper successor
hereby agrees) upon the request of the Committee, to execute and deliver a
certificate, in form reasonably satisfactory to the Committee, regarding
applicable Federal and state securities law matters.
14. Obligations of the Corporation
(a) Notwithstanding anything to the contrary contained herein,
neither the Corporation nor its transfer agent shall be required to issue any
fraction of a share of Common Stock, and the Corporation shall issue the largest
number of whole Restricted Shares of Common Stock to which Employee is entitled
and shall return to the Employee the amount of any unissued fractional share in
cash.
(b) The Corporation may endorse such legend or legends upon the
certificates for Restricted Shares issued to the Employee pursuant to the Plan
and may issue such "stop transfer" instructions to its transfer agent in respect
of such Restricted Shares as, in its discretion, it determines to be necessary
or appropriate to: (i) prevent a violation of, or to perfect an exemption from,
the registration requirements of the Securities Act; (ii) implement the
provisions of the Plan and any agreement between the Corporation and the
Employee or grantee with respect to such Restricted Shares; or (iii) as may be
required pursuant to the Corporation's Amended and Restated Certificate of
Incorporation, as amended.
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(c) The Corporation shall pay all issue or transfer taxes with
respect to the issuance or transfer of Restricted Shares to Employee, as well as
all fees and expenses necessarily incurred by the Corporation in connection with
such issuance or transfer.
(d) All Restricted Shares issued following vesting shall be fully
paid and non-assessable to the extent permitted by law.
15. Section 83(b) Election. If the Employee files an election with the Internal
Revenue Service to include the fair market value of any Restricted Shares in
gross income as of the Grant Date, the Restricted Stockholder agrees to promptly
furnish the Corporation with a copy of such election, together with the amount
of any federal, state, local or other taxes required to be withheld to enable
the Corporation to claim an income tax deduction with respect to such election
16. Withholding Taxes. The Employee acknowledges that the Corporation is not
responsible for the tax consequences to the Employee of the granting, vesting or
issuance of the Restricted Shares, and that it is the responsibility of the
Employee to consult with the Employee's personal tax advisor regarding all
matters with respect to the tax consequences of the granting, vesting and
issuance of the Restricted Shares. The Corporation shall have the right to
deduct from the Restricted Shares or any payment to be made with respect to the
Restricted Shares any amount that federal, state, local or foreign tax law
requires to be withheld with respect to the Restricted Shares or any such
payment. Alternatively, the Corporation may require that the Employee, prior to
or simultaneously with the Corporation incurring any obligation to withhold any
such amount, pay such amount to the Corporation in cash or in shares of the
Corporation's Common Stock (including shares of Common Stock retained from the
Stock Restricted Award creating the tax obligation), which shall be valued at
the Fair Market Value of such shares on the date of such payment. In any case
where it is determined that taxes are required to be withheld in connection with
the issuance, transfer or delivery of the shares, the Corporation may reduce the
number of shares so issued, transferred or delivered by such number of shares as
the Corporation may deem appropriate to comply with such withholding. The
Corporation may also impose such conditions on the payment of any withholding
obligations as may be required to satisfy applicable regulatory requirements
under the Exchange Act, if any.
17. Miscellaneous
(a) If the Employee loses this Agreement representing the Restricted
Shares granted hereunder, or if this Agreement is stolen, damaged or destroyed,
the Corporation shall, subject to such reasonable terms as to indemnity as the
Committee, in its sole discretion shall require, replace the Agreement.
(b) The Corporation may offer to buy the Restricted Shares actually
issued hereunder on such terms and conditions as the Corporation shall establish
and communicate to the Employee at the time that such offer is made.
(c) This Agreement cannot be amended, supplemented or changed, and
no provision hereof can be waived, except by a written instrument making
specific reference to this Agreement and signed by the party against whom
enforcement of any such amendment, supplement, modification or waiver is sought.
A waiver of any right derived hereunder by the Employee shall not be deemed a
waiver of any other right derived hereunder.
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(d) This Agreement may be executed in any number of counterparts,
but all counterparts will together constitute but one agreement.
(e) In the event of a conflict between the terms and conditions of
this Agreement and the Plan, the terms and conditions of the Plan shall govern.
All capitalized terms used herein but not defined shall have the meanings given
to such terms in the Plan.
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IN WITNESS WHEREOF, the Corporation has caused this Agreement to be
executed by its duly authorized officer and the Restricted Stockholder has
executed this Agreement as of January 1, 2005.
FIND/SVP, INC.
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
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Title: Chief Executive Officer
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RESTRICTED STOCKHOLDER
/s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Address:
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