FORTISSIMO ACQUISITION CORP. Restricted Stock Agreement
Exhibit
10.2
AGREEMENT
made as of ________, 2008, between Fortissimo Acquisition Corp., a
Delaware corporation
(the “Company”), and [________] (the “Stockholder”).
1. The
Shares.
In
connection with the Agreement and Plan of Merger and Interests Purchase
Agreement, dated as of January 15, 2008 among the Company, FAC Acquisition
Sub
Corp., a New York corporation, Psyop, Inc., a New York corporation, Psyop
Services, LLC, a New York limited liability company, the Stockholders named
therein and ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇▇ as Stockholders’ Representative (the “Merger
Agreement”), and for good and valuable consideration, receipt of which is
acknowledged, the Stockholder has agreed that [_________] shares of Parent
Common Stock, which the Stockholder has received as Maximum Revenue Contingent
Stock and Maximum EBITDA Contingent Stock pursuant to the Merger Agreement
(the
“Shares”) shall be subject to the forfeiture provisions set forth in Section 2
of this Agreement and the restrictions on transfer set forth in Section 3
of
this Agreement. Capitalized terms used and not otherwise defined herein shall
have the respective meanings assigned to them in the Merger Agreement.
2. Forfeiture
of Shares.
(a)
To the
extent that Shares have not vested pursuant to Section 2(a) of Exhibit A
to the
Merger Agreement, with respect to an Annual Contingent Consideration Period,
such Shares shall be forfeited automatically and immediately to Parent on
the
Contingent Consideration Payment Date following such applicable Annual
Contingent Consideration Period. In the event that (A) the Company terminates
the Stockholder’s employment for Cause (as defined in the Stockholder’s
Employment Agreement) or (B) the Stockholder terminates his or her employment
with the Company without Good Reason (as defined in the Stockholder’s Employment
Agreement) at any time prior to the last day of the applicable Annual Contingent
Consideration Period, for any reason or no reason, with or without cause,
all
Shares that have not vested pursuant to the Merger Agreement shall be forfeited
automatically and immediately and shall be reallocated among the remaining
Stockholders (as defined in the Merger Agreement), pursuant to the Merger
Agreement, with respect to all Annual Contingent Consideration Periods ending
on
or after the date of termination of employment.
(b) The
Stockholder hereby authorizes the Company to take any actions necessary or
appropriate to cancel any certificate(s) representing forfeited Shares and
transfer ownership of such forfeited Shares to the Company; and if the Company
or its transfer agent requires an executed stock power or similar confirmatory
instrument in connection with such cancellation and transfer, the Stockholder
shall promptly execute and deliver the same to the Company.
3. Restrictions
on Transfer.
The
Stockholder shall not sell, assign, transfer, pledge, hypothecate or otherwise
dispose of, by operation of law or otherwise (collectively “transfer”) any
Shares, or any interest therein, except that the Stockholder may transfer
such
Shares (i) to or for the benefit of any spouse (or former spouse in connection
with any marital separation, asset allocation agreement or qualified domestic
relations order) or parents, siblings or children (by blood, marriage or
adoption) (collectively, “Approved Relatives”) or to a trust established solely
for the benefit of the Stockholder and/or Approved Relatives, provided,
however,
that
such Shares shall remain subject to this Agreement (including without limitation
the forfeiture provisions set forth in Section 2 and the restrictions on
transfer set forth in this Section 3), and such permitted transferee shall,
as a
condition to such transfer, deliver to the Company a written instrument
confirming that such transferee shall be bound by all of the terms and
conditions of this Agreement or (ii) as part of the sale of all or substantially
all of the shares of capital stock of the Company (including pursuant to
a
merger or consolidation). The Company shall not be required to transfer on
its
books any of the Shares which have been transferred in violation of any of
the
provisions of this Agreement.
4. Restrictive
Legends.
All
certificates representing the Shares shall have affixed thereto legends in
substantially the following form, in addition to any other legends that may
be
required under federal or state securities laws:
“THE
SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS
ON
TRANSFER AND FORFEITURE PROVISIONS SET FORTH IN A RESTRICTED STOCK AGREEMENT
BETWEEN THE CORPORATION AND THE REGISTERED OWNER OF THESE SHARES (OR HIS
PREDECESSOR IN INTEREST), AND SUCH AGREEMENT IS AVAILABLE FOR INSPECTION
WITHOUT
CHARGE AT THE OFFICE OF THE SECRETARY OF THE CORPORATION.”
“THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER SUCH ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE
CORPORATION TO THE EFFECT THAT SUCH REGISTRATION IS NOT
REQUIRED.”
5. Withholding
Taxes; Section 83(b) Election.
(a) The
Stockholder acknowledges and agrees that the Company has the right to deduct
from payments of any kind otherwise due to the Stockholder any federal, state
or
local taxes of any kind required by law to be withheld with respect to the
Shares.
(b) The
Stockholder has reviewed with the Stockholder’s own tax advisors the federal,
state, local and foreign tax consequences of this investment and the
transactions contemplated by this Agreement. The Stockholder is relying solely
on such advisors and not on any statements or representations of the Company
or
any of its agents. The Stockholder understands that the Stockholder (and
not the
Company) shall be responsible for the Stockholder’s own tax liability that may
arise as a result of this investment or the transactions contemplated by
this
Agreement. The Stockholder agrees to file an election under Section 83(b)
of the
Code with the United States Internal Revenue Service (the “IRS”) within 30 days
hereof and to provide a duplicate original of such election to the Company
with
proof of filing with the IRS within 45 days hereof.
-2-
THE
STOCKHOLDER ACKNOWLEDGES THAT IT IS THE STOCKHOLDER’S SOLE RESPONSIBILITY AND
NOT THE COMPANY’S TO FILE TIMELY THE ELECTION UNDER SECTION
83(b).
6. Miscellaneous.
(a) Severability.
The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
and each other provision of this Agreement shall be severable and enforceable
to
the extent permitted by law.
(b) Waiver.
Any
provision for the benefit of the Company contained in this Agreement may
be
waived, either generally or in any particular instance, by the Board of
Directors of the Company.
(c) Binding
Effect.
This
Agreement shall be binding upon and inure to the benefit of the Company and
the
Stockholder and their respective heirs, executors, administrators, legal
representatives, successors and assigns, subject to the restrictions on transfer
set forth in Section 3 of this Agreement.
(d) Notice.
All
notices required or permitted hereunder shall be in writing and deemed
effectively given upon personal delivery or five days after deposit in the
United States Post Office, by registered or certified mail, postage prepaid,
addressed to the other party hereto at the address shown beneath his or its
respective signature to this Agreement, or at such other address or addresses
as
either party shall designate to the other in accordance with this
Section 6(d).
(e) Pronouns.
Whenever the context may require, any pronouns used in this Agreement shall
include the corresponding masculine, feminine or neuter forms, and the singular
form of nouns and pronouns shall include the plural, and
vice versa.
(f) Entire
Agreement.
This
Agreement constitutes the entire agreement between the parties, and supersedes
all prior agreements and understandings, relating to the subject matter of
this
Agreement.
(g) Amendment.
This
Agreement may be amended or modified only by a written instrument executed
by
both the Company and the Stockholder.
-3-
(h) Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of New York without giving effect to any conflicts of laws principles
thereof directing the application of any law other than that of the State
of New
York. Courts within the State of New York, County of New York or the United
States District Court for the Southern District of New York will have
jurisdiction over all disputes between the parties hereto arising out of
or
relating to this agreement and the agreements, instruments and documents
contemplated hereby. The parties hereby consent to and agree to submit to
the
jurisdiction of such courts. Each of the parties hereto waives, and agrees
not
to assert in any such dispute, to the fullest extent permitted by applicable
law, any claim that (i) such party is not personally subject to the
jurisdiction of such courts, (ii) such party and such party’s property is
immune from any legal process issued by such courts or (iii) any litigation
commenced in such courts is brought in an inconvenient forum. Each party
hereto
hereby irrevocably waives all right to trial by jury in any proceeding (whether
based on contract, tort or otherwise) arising out of or relating to this
Agreement or any transaction or agreement contemplated hereby or the actions
of
any party hereto in the negotiation, administration, performance or enforcement
hereof.
(i) Stockholder’s
Acknowledgments.
The
Stockholder acknowledges that he or she: (i) has read this Agreement; (ii)
has
been represented in the preparation, negotiation, and execution of this
Agreement by legal counsel of the Stockholder’s own choice or has voluntarily
declined to seek such counsel; (iii) understands the terms and consequences
of
this Agreement; and (iv) is fully aware of the legal and binding effect of
this
Agreement.
[Remainder
of Page Intentionally Left Blank.]
-4-
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first above written.
_____________________________
By:
Title:
_____________________________
Stockholder
Name:
Address:
____________________
____________________
-5-