RESTRICTED STOCK GRANT AGREEMENT (2010)
Exhibit
10.12.5
THIS AGREEMENT, made as of the
12th
day of February, 2010 (the “Grant Date”), between MDC
Partners Inc., a Canadian corporation (the “Corporation”), and _________
(the “Grantee”).
WHEREAS, the Corporation has adopted
the 2005 Stock Incentive Plan (the “Plan”) for the purpose of
providing employees and consultants of the Corporation and eligible non-employee
directors of the Corporation’s Board of Directors a proprietary interest in
pursuing the long-term growth, profitability and financial success of the
Corporation (except as otherwise expressly set forth herein, the capitalized
terms used in this Agreement shall have the same definitions set forth in the
Plan).
WHEREAS, the Human Resources &
Compensation Committee (the “Committee”) of the Board of
Directors has determined that it is in the best interests of the Corporation to
make the award set forth herein, which award will vest on the third anniversary
of the dated hereof, subject to accelerated vesting upon achievement by the
Corporation of specified financial growth targets during the calendar years 2010
– 2011.
WHEREAS, pursuant to the Plan, the
Committee has determined to grant an Other Stock-Based Award to the Grantee in
the form of shares of Class A subordinate voting shares, subject to the terms,
conditions and limitations provided herein, including achievement of financial
performance targets, and in the Plan (the “Restricted
Stock”);
NOW, THEREFORE, the parties hereto
agree as follows:
1. Grant of
Restricted Stock.
1.1 The
Corporation hereby grants to the Grantee, on the terms and conditions set forth
in this Agreement, the number of shares of Restricted Stock set forth under the
Grantee's name on the signature page hereto and in accordance with Section 1.2
(the “2010 Restricted Stock
Award”).
1.2 The
Grantee's rights with respect to all the shares of Restricted Stock underlying
the 2010 Restricted Stock Award shall not vest and will remain forfeitable at
all times prior to the Vesting Date (as defined below). At any time,
reference to the 2010 Restricted Stock Award shall be deemed to be a reference
to the Restricted Shares granted under Section 1.1 that have neither vested nor
been forfeited pursuant to the terms of this Agreement.
1.3 This
Agreement shall be construed in accordance with, and subject to, the terms of
the Plan (the provisions of which are incorporated herein by
reference).
2. Rights of
Grantee.
Except as otherwise provided in this
Agreement, the Grantee shall be entitled, at all times on and after the Grant
Date, to exercise all rights of a shareholder with respect to the 2010
Restricted Stock Award, including the right to vote the shares of Restricted
Stock. Prior to the Vesting Date, the Grantee shall not be entitled
to transfer, sell, pledge, hypothecate or assign any portion of the 2010
Restricted Stock Award (collectively, the “Transfer
Restrictions”).
3. Vesting;
Lapse of Restrictions.
3.1 The
Transfer Restrictions with respect to all the shares of Restricted Stock granted
under this Agreement shall lapse on the third (3rd) anniversary of the Grant
Date (the “Vesting
Date”), provided the Grantee continues to be serving as an employee of
the Corporation until such Vesting Date; provided, further, that the
Transfer Restrictions with respect to all the shares of Restricted Stock shall
lapse, if sooner, on the date of any one of the following “Permitted Acceleration
Events”: (i) the occurrence of a Change in Control (as defined
in the Plan); (ii) the Grantee’s employment is terminated by the Corporation
(other than for “cause”), or by the employee for “good reason” (as each such
term may be defined in the Grantee’s underlying employment agreement); (iii) the
Grantee’s death or disability; or (iv) achievement by the Corporation of the
financial performance measure(s) set forth in Section 3.3
herein. In no event shall the Grantee be vested or otherwise
entitled to more than one hundred percent (100%) of the shares of Restricted
Stock granted pursuant to section 1.1 above.
3.2 Notwithstanding
anything in this Agreement to the contrary, upon the resignation or termination
of Grantee as an executive of the Corporation for cause (other than due to a
Permitted Acceleration Event), all shares of Restricted Stock in respect of
which the Transfer Restrictions have not previously lapsed in accordance with
Section 3.1 hereof shall be forfeited and automatically transferred to and
reacquired by the Corporation at no cost to the Corporation, and neither the
Grantee nor any heirs, executors, administrators or successors of such Grantee
shall thereafter have any right or interest in such shares of Restricted
Stock.
3.3 For
purposes of the foregoing, the following terms shall have the following
meanings:
(a) “2010-2011
Performance Measures” means the achievement by the Corporation of EBITDA
in the following amounts during the specified Performance Period (as defined in
the Plan):
(i) 2010
Target. In the event that the Corporation achieves EBITDA for
the twelve-months ended December 31, 2010, in an amount equal to not less than
the product of 2009 EBITDA (as defined below) multiplied by 1.05 (the “2010 Target”), then 50% of the
2010 Restricted Stock Award will vest on March 15, 2011.
(ii) 2010/2011 Cumulative
Target. In the event that the Corporation achieves
EBITDA for the two (2) years ended December 31, 2011, in an amount equal to not
less than the sum of (i) the 2010 Target, plus (ii) the product of the 2010
EBITDA multiplied by 1.10 (such sum, the “2010/2011 Cumulative Target”),
then 100% of the 2010 Restricted Stock Award will vest on March 15, 2010 (but
only to the extent not previously vested). The 2010/2011 Cumulative
Target represents annual growth of 10% in EBITDA in 2011, as compared to 2010
EBITDA.
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(iii) 2010 Restricted Stock Award
Limit. In no event shall the Grantee be vested or otherwise
entitled to more than one hundred percent (100%) of the shares of Restricted
Stock granted as part of the 2010 Restricted Stock Award pursuant to section 1.1
above.
(b) “Cause”
means the Grantee’s termination by reason of (i) his/her continued or willful
failure substantially to perform his/her duties for the Corporation, (ii)
his/her willful and serious misconduct in connection with the performance of
his/her duties for the Corporation, (iii) the Grantee’s conviction of, or
entering a plea of guilty or nolo contendere to, a
crime that constitutes a felony or a crime involving moral turpitude, (iv)
his/her fraudulent or dishonest conduct or (v) his/her material breach of any of
his/her obligations or covenants under any written policies of the Corporation
or any written agreement between such Grantee and the Corporation.
(c) “Change in
Control” shall have the meaning set forth in Section 2(b) of the Plan,
provided that the reference to “twenty-five percent (25%) or more of the
combined voting power of MDC's then outstanding voting securities” in Section
2(b)(i) of the Plan shall, for purposes of this 2010 Restricted Stock Award, be
amended to read “fifty percent (50%) or more of the combined voting power of
MDC's then outstanding voting securities”; and, provided further, that the
reference in Section 2(b)(iii)(A)(III)(3) to “twenty five percent (25%) or more
of the combined voting power of the Surviving Corporation’s voting securities
outstanding immediately following such transaction” shall, for purposes of this
2010 Restricted Stock Award, be amended to read “fifty percent (50%) or more of
the combined voting power of the Surviving Corporation’s voting securities
outstanding immediately following such transaction”.
(d) “Disability” shall mean a mental or
physical condition of the Grantee rendering him unable to perform his/her duties
for the Corporation for a period of six (6) consecutive months or for 180 days
within any consecutive 365-day period and which is reasonably expected to
continue indefinitely; provided that if, as
of the date of determination, the Grantee is a party to an effective employment
agreement with a different definition of “Disability” or any derivation of such
term, the definition of “Disability” (or its derivation) contained in such
employment agreement shall be substituted for the definition set forth above for
all purposes hereunder.
(e) “EBITDA”
shall mean the Corporation’s share of consolidated earnings before interest,
taxes, depreciation and amortization, plus any non-cash charges for stock-based
compensation which were deducted in the calculation of EBITDA.
(f) “2009
EBITDA” shall mean the Corporation’s pro forma EBITDA for the year ended
December 31, 2009, as determined by the Compensation Committee following
completion of Corporation’s audited financial statements for the year ended
December 31, 2009.
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4. Escrow
and Delivery of Shares.
4.1 Certificates
(or an electronic "book entry" on the books of the Corporation's stock transfer
agent) representing the shares of Restricted Stock shall be issued and held by
the Corporation (or its stock transfer agent) in escrow (together with any stock
transfer powers which the Corporation may request of Grantee) and shall remain
in the custody of the Corporation (or its stock transfer agent) until (i) their
delivery to the Grantee as set forth in Section 4.2 hereof, or (ii) their
forfeiture and transfer to the Corporation as set forth in Section 3.2 hereof.
The appointment of an independent escrow agent shall not be
required.
4.2 (a) Certificates
(or an electronic "book entry") representing those shares of Restricted Stock in
respect of which the Transfer Restrictions have lapsed pursuant to Section 3.1
hereof shall be delivered to the Grantee as soon as practicable following the
Vesting Date.
(b) The
Grantee, or the executors or administrators of the Grantee's estate, as the case
may be, may receive, hold, sell or otherwise dispose of those shares of
Restricted Stock delivered to him or her pursuant to this Section 4.2 free and
clear of the Transfer Restrictions, but subject to compliance with all federal
and state securities laws.
4.3 (a) Each
stock certificate issued pursuant to Section 4.1 shall bear a legend in
substantially the following form:
THIS
CERTIFICATE AND THE SHARES OF STOCK REPRESENTED HEREBY ARE SUBJECT TO THE TERMS
AND CONDITIONS APPLICABLE TO RESTRICTED STOCK CONTAINED IN THE 2005 STOCK
INCENTIVE PLAN (THE "PLAN") AND A RESTRICTED STOCK AGREEMENT (THE "AGREEMENT")
BETWEEN THE CORPORATION AND THE REGISTERED OWNER OF THE SHARES REPRESENTED
HEREBY. RELEASE FROM SUCH TERMS AND CONDITIONS SHALL BE MADE ONLY IN ACCORDANCE
WITH THE PROVISIONS OF THE PLAN(S) AND THE AGREEMENT, COPIES OF WHICH ARE ON
FILE IN THE OFFICE OF THE SECRETARY OF THE CORPORATION.
(b) As
soon as practicable following a Vesting Date, the Corporation shall issue a new
certificate (or electronic "book entry") for shares of the Restricted Stock
which have become non-forfeitable in relation to such Vesting Date, which new
certificate (or electronic "book entry") shall not bear the legend set forth in
paragraph (a) of this Section 4.3 and shall be delivered in accordance with
Section 4.2 hereof.
5. Dividends. All
dividends declared and paid by the Corporation on shares underlying the 2010
Restricted Stock Award shall be deferred until the lapsing of the Transfer
Restrictions pursuant to Section 3.1 and shall be distributed only to the extent
the underlying shares of Restricted Stock vest and are distributed in accordance
with Section 3. The deferred dividends shall be held by the
Corporation for the account of the Grantee until the Vesting Date, at which time
the dividends, with no interest thereon, shall be paid to the Grantee or her/his
estate, as the case may be. Upon the forfeiture of the shares of
Restricted Stock pursuant to Section 3, any deferred dividends shall also be
forfeited to the Corporation.
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6. No Right
to Continued Retention. Nothing in this Agreement or the Plan
shall be interpreted or construed to confer upon the Grantee any right with
respect to continuance as an employee, nor shall this Agreement or the Plan
interfere in any way with the right of the Corporation to terminate the
Grantee's service as an employee at any time.
7. Adjustments
Upon Change in Capitalization. If, by operation of Section 10
of the Plan, the Grantee shall be entitled to new, additional or different
shares of stock or securities of the Corporation or any successor corporation or
entity or other property, such new, additional or different shares or other
property shall thereupon be subject to all of the conditions and restrictions
which were applicable to the shares of Restricted Stock immediately prior to the
event and/or transaction that gave rise to the operation of Section 10 of the
Plan.
8. Modification
of Agreement; Adjustment of Performance Measures by the
Committee. Except as set forth in the Plan and herein, this
Agreement may be modified, amended, suspended or terminated, and any terms or
conditions may be waived, but only by a written instrument executed by the
parties hereto. Notwithstanding the foregoing, the Committee
shall adjust the 2010-2011 Performance Measures in the event that the
Corporation acquires or disposes any material assets or business.
9. Severability. Should
any provision of this Agreement be held by a court of competent jurisdiction to
be unenforceable or invalid for any reason, the remaining provisions of this
Agreement shall not be affected by such holding and shall continue in full force
and effect in accordance with their terms.
10. Governing
Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of New
York without regard to its conflict of laws principle, except to the extent that
the application of New York law would result in a violation of the Canadian
Business Corporation Act.
* * *
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11. Successors
in Interest. This Agreement shall inure to the benefit of and
be binding upon any successor to the Corporation. This Agreement
shall inure to the benefit of the Grantee's heirs, executors, administrators and
successors. All obligations imposed upon the Grantee and all rights
granted to the Corporation under this Agreement shall be binding upon the
Grantee's heirs, executors, administrators and successors.
By:
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Title: Chief
Accounting Officer
By:
Name: ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
Title: General
Counsel
GRANTEE:
By:
Name:
Number
of Shares of Restricted
Stock
Hereby Granted: ________
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