Exhibit 10.1
RESTRICTED STOCK AGREEMENT
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RESTRICTED STOCK AGREEMENT (this "Agreement") dated as of March 31,
2006 by and between COACTIVE MARKETING GROUP, INC., a Delaware corporation (the
"Corporation"), and ▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "Employee").
W I T N E S S E T H:
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WHEREAS, the Corporation has adopted the COACTIVE MARKETING,
GROUP, INC. 2002 Long-Term Incentive Plan, as amended (the "Plan"); and
WHEREAS, the Board of Directors of the Corporation (the
"Board") has determined that it is desirable and in the best interest of the
Corporation to grant the Employee shares of restricted stock under the Plan and
this Agreement as an incentive for the Employee to advance the interests of the
Corporation; and
WHEREAS, the Employee desires to accept such shares subject to
the restrictions and other provisions of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto do hereby agree as
follows:
1. Grant. Pursuant to the Plan, and subject to the terms
and conditions set forth herein and therein, the Corporation hereby issues to
Employee 100,000 shares of Common Stock of the Corporation (the "Shares"). A
certificate representing the Shares shall be issued in the name of the Employee
and shall be escrowed with the Secretary of the Corporation subject to removal
of the restrictions placed thereon or forfeiture pursuant to the terms of this
Agreement.
2. Dividend, Voting and Other Rights. Except as
otherwise provided herein, from and after the date hereof, the Employee shall
have all of the rights of a stockholder with respect to the Shares, including
the right to vote the Shares and receive any dividends that may be paid thereon;
provided, however, that any additional shares of Common Stock or other
securities that the Employee may become entitled to receive pursuant to a stock
dividend, stock split, combination of shares, recapitalization, merger,
consolidation, separation or reorganization or any other change in the capital
structure of the Corporation with respect to any unvested Shares shall be
subject to the same restrictions as such unvested Shares under this Agreement.
3. Risk of Forfeiture; Vesting. In the event of a
Termination of Association (as defined below) of the Employee for any reason
prior to March 31, 2011, all unvested Shares granted hereunder shall be
forfeited to the Corporation, and the Employee shall have no further interest
therein of any kind whatsoever. The Shares shall vest as follows:
Date of Percentage of Shares
Termination of Association Subject to Forfeiture
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Prior to March 31, 2007 100%
After March 30, 2007 but prior to March 31, 2008 80%
After March 30, 2008 but prior to March 31, 2009 50%
After March 30, 2009 but prior to March 31, 2010 30%
After March 30, 2010 but prior to March 31, 2011 10%
After March 30, 2011 0%
A "Termination of Association" shall mean the termination of the
relationship between the Corporation (and any subsidiary thereof) and the
Employee, such that the Employee is no longer an employee of the Corporation (or
any subsidiary thereof). In the event of a forfeiture, the certificates
representing the unvested Shares covered by this Agreement shall be canceled.
4. Accelerated Vesting upon Certain Changes in Control.
Notwithstanding Section 3 above, in the event of a Change in Control (as
hereinafter defined) while the Employee is employed with the Corporation (or a
subsidiary thereof), the Shares, to the extent not then vested, shall thereupon
become vested. For purposes of this Section 4, "Change in Control" means:
(i) Any person (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934 (the "Exchange Act")) shall have acquired (by any means)
the right (x) through the Beneficial Ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of
any voting securities of the Corporation or (y) by contract,
agreement or similar understanding or (z) any combination of
(x) and (y), to elect a majority of the Board; or
(ii) The consummation by the Corporation
of a reorganization, merger or consolidation or sale or other
disposition of all or substantially all of its assets
("Corporate Transaction"); excluding, however, such a
Corporate Transaction pursuant to which (1) all or
substantially all of the individuals and entities who are the
Beneficial Owners, respectively, of the then outstanding
common stock ("Outstanding Corporation Common Stock") and of
the then outstanding common stock entitled to vote generally
in the election of Directors ("Outstanding Corporation Voting
Securities") immediately prior to such Corporate Transaction
will beneficially own, directly or indirectly, more than 50%
of, respectively, the outstanding common stock, and the
combined voting power of the then outstanding common stock
entitled to vote generally in the election of Directors, as
the case may be, of the company resulting from such Corporate
Transaction (including, without limitation, a corporation
which as a result of such transaction owns the Corporation or
all or substantially all of the Corporation's assets either
directly or through one or more subsidiaries) in substantially
the same proportions as their ownership, immediately prior to
such Corporate Transaction, of the Outstanding Corporation
Common Stock and Outstanding Corporation Voting Securities, as
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the case may be, and (2) individuals who were immediately
prior to the effective date of the Corporate Transaction
members of the Board will constitute at least a majority of
the board of directors of the corporation resulting from such
Corporate Transaction; or
(iii) The approval by the stockholders of
the Corporation of a complete liquidation or dissolution of
the Corporation.
5. Restrictions on Transfer. The Shares may not be sold,
exchanged, assigned, transferred, pledged, encumbered or otherwise disposed of
by the Employee, except to the Corporation, until the Shares have become
nonforfeitable as provided in Section 3 hereof. Any purported transfer or
encumbrance in violation of the provisions of this Section 5 shall be void, and
the other party to any such purported transaction shall not obtain any rights to
or interest in such Shares.
6. Legend on Shares. Each certificate evidencing Shares
shall be stamped or otherwise imprinted with legends in substantially the
following form:
THE TRANSFER OF THESE SECURITIES IS SUBJECT TO THE TERMS AND CONDITIONS
OF A RESTRICTED STOCK AGREEMENT DATED AS OF MARCH 31, 2006, BETWEEN
COACTIVE MARKETING GROUP, INC. AND THE HOLDER OF RECORD OF THIS
CERTIFICATE, AND NO SALE, ASSIGNMENT, TRANSFER, PLEDGE, HYPOTHECATION
OR OTHER DISPOSITION OF SUCH SECURITIES SHALL BE VALID OR EFFECTIVE
EXCEPT IN ACCORDANCE WITH SUCH AGREEMENT AND UNTIL SUCH TERMS AND
CONDITIONS HAVE BEEN FULFILLED. COPIES OF SUCH AGREEMENT MAY BE
OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF
THIS CERTIFICATE TO THE SECRETARY OF COACTIVE MARKETING GROUP, INC.
As shares vest in accordance with Sections 3 or 4 above, at the
Employee's request, the foregoing legend shall be removed from the certificates
representing such vested Shares and the Secretary of the Corporation shall
deliver to the Employee certificates representing such vested Shares free and
clear of all restrictions.
7. Withholding. If any Federal, state or local taxes of
any kind are required by law to be withheld with respect to the Shares (or any
distributions of other securities or property (including cash) thereon or issued
in replacement thereof), (i) the Corporation and its subsidiaries shall, to the
extent permitted by law, have the right to deduct from any payments of any kind
otherwise due to the Employee any Federal, state or local taxes of any kind
required by law to be withheld with respect to the Shares; and (ii) if payment
of the required tax is not made by the Employee, the Corporation may, at its
option, redeem and cancel a sufficient number of Shares at their Fair Market
Value (as defined in the Plan), to pay any tax required to be withheld.
8. No Right to Retention. This Agreement shall not
entitle the Employee to any right or claim to be employed or retained by the
Corporation or any subsidiary thereof or limit the right of the Corporation or
any subsidiary thereof to terminate the Employee's employment with the
Corporation or any subsidiary thereof or to change the terms of such employment.
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9. Resolution of Disputes. Any disputes arising under or
in connection with this Agreement shall be resolved by binding arbitration
before a single arbitrator, to be held in the State of New York in accordance
with the rules and procedures of the American Arbitration Association. Judgment
upon the award rendered by the arbitrator shall be final and subject to appeal
only to the extent permitted by law. Each party shall bear its or his own
expenses incurred in connection with any arbitration. Anything to the contrary
notwithstanding, each party hereto has the right to proceed with a court action
for injunctive relief or relief from violations of law not within the
jurisdiction of an arbitrator.
10. Successors and Assigns. Except as otherwise expressly
provided herein, this Agreement shall bind and inure to the benefit of the
Corporation, the Employee, the respective successors or heirs and personal
representatives and permitted assigns of the Corporation and the Employee.
11. Entire Agreement. This Agreement contains the entire
agreement among the parties with respect to the subject matter hereof and
supersedes other prior and contemporaneous arrangements or understandings with
respect thereto.
12. Notices. All notices, consents and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given (a) when delivered by hand, (b) one business day after the
business day of transmission if sent by telex or telecopier (with receipt
confirmed), provided that a copy is mailed by registered mail, return receipt
requested, or (c) one business day after the business day of deposit with the
carrier, if sent by Express Mail, Federal Express or other express delivery
service (receipt requested), in each case to the appropriate addresses, telex
numbers and telecopier numbers (or to such other addresses, telex numbers and
telecopier numbers as a party may designate as to itself by notice to the other
parties), if to the Employee at Employee's address on the records of the
Corporation, and if to the Corporation, to CoActive Marketing Group, Inc., ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
13. Changes. This Agreement cannot be changed or
terminated orally. This Agreement and the Plan contain the entire agreement
between the parties relating to the subject matter hereof.
14. Counterparts. This Agreement may be executed in any
number of counterparts, and each such counterpart shall be deemed to be an
original instrument, but all such counterparts together shall constitute but one
agreement.
15. Headings. The headings of the various sections of
this Agreement have been inserted for convenience of reference only and shall
not be deemed to be part of this Agreement.
16. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability. Such
prohibition or unenforceability in any one jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
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17. Governing Law; Jurisdiction. This Agreement shall be
governed by, and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed wholly therein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
this 31st day of March, 2006.
COACTIVE MARKETING GROUP, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇, Employee
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