exv10w2






Exhibit 10.2




MATRIXX INITIATIVES, INC.




AMENDED AND RESTATED

2001 LONG-TERM INCENTIVE PLAN

RESTRICTED STOCK PROGRAM AGREEMENT




     This Amended and Restated Restricted Stock Program Agreement (this “Agreement”) is
entered into between Matrixx Initiatives, Inc., a Delaware corporation (the “Company”), and
Samuel Cowley (the “Grantee”), on November 4, 2008, effective as of May 8, 2008 (the
“Date of Grant”).



RECITALS




     A. The Company has adopted the Matrixx Initiatives, Inc. 2001 Long-Term Incentive Plan, as
amended (the “Plan”) to allow the Company to make grants that will provide an incentive to
attract and retain eligible individuals whose services are considered unusually valuable by
providing them an opportunity to have a proprietary interest in the success of the Company.



     B. Consistent with the above stated purposes, on May 8, 2008, the Compensation Committee of
the Board of Directors of the Company approved the grant of 18,781 shares of the Company’s common
stock to Grantee as an inducement to his employment.



     C. The Company effectuated such grant pursuant to the 2001 Long-Term Incentive Plan Restricted
Stock Program Agreement, dated May 8, 2008, between the Company and Grantee (the “Original
Award Agreement”).



     D. On October 21, 2008, the Compensation Committee confirmed that the terms of the Original
Award Agreement improperly documented and mistakenly reflected that Grantee would forfeit his right
to the shares granted thereby upon the cessation of Grantee’s service to the Company.



     E. The Compensation Committee desires to correct the terms of the Original Award Agreement by
amending and restating the Original Award Agreement as provided herein.



     F. Any capitalized term not otherwise defined will have the meaning ascribed to it in the
Plan.



     NOW, THEREFORE, in consideration of the mutual covenants and conditions in this Agreement and
for other good and valuable consideration, the Company and Grantee agree as follows:



          1. GRANT OF RESTRICTED SHARES.




          Subject to the terms of this Agreement, pursuant to action taken by the Compensation Committee
of the Company’s Board of Directors on May 8, 2008, the Company hereby grants 18,781 shares of the
Company’s common stock (the “Common Stock”) to Grantee.




 









 







In addition, the Company hereby buys back from Grantee 5,860 of the shares granted hereby in
order to assist Grantee in satisfying his corresponding tax liability, such that Grantee will
receive a net grant of 12,921 shares (the “Restricted Shares”) of the Company’s Common
Stock. The delivery of any documents evidencing the Restricted Shares granted pursuant to this
Agreement shall be subject to the provisions of Section 3.D below.




          2. RIGHTS OF GRANTEE.




          Subject to the provisions of this Agreement and the Plan, upon the issuance by the Company to
Grantee of any Restricted Shares pursuant hereto, Grantee will become a shareholder with respect to
all of the Restricted Shares granted to Grantee pursuant to Section 1 and will have all of
the rights of a shareholder in the Company with respect to such Restricted Shares, including,
without limitation, the right to receive notice of, attend and vote at meetings of the Company’s
shareholders and to receive any dividend on such Restricted Shares that the Company may declare and
pay from time to time; provided, however, that such Restricted Shares will be subject to the
restrictions set forth in this Agreement.




          3. RESTRICTIONS ON COMMON STOCK SUBJECT TO THIS AGREEMENT.




               A. Limitations on Transfer.



               Grantee agrees to not sell, transfer, pledge, exchange, hypothecate, grant any security
interest in, or otherwise dispose of, any Restricted Shares before the date on which the
restrictions lapse under Section 3.B, or enter into any agreement or make any commitment to
do so. Any attempted sale, transfer, pledge, exchange, hypothecation or disposition of the
Restricted Shares shall be null and void, and the Company shall not recognize or give effect to
such transaction on its books and records (including the books and records of the Company’s
transfer agent) or recognize the person or persons to whom such sale, transfer, pledge, exchange,
hypothecation or disposition has been made as the legal or beneficial owner of the Restricted
Shares.



               B. Lapse of Restrictions.



               Subject to the other conditions in this Section 3, the restrictions on disposition of
the Restricted Shares will lapse under the following schedule:




	 	•	 	one-third (1/3) of such Restricted Shares (4,307) shall vest on May 8, 2009;
	 
	 	•	 	one-third (1/3) of such Restricted Shares (4,307) shall vest on May 8, 2010;
and
	 
	 	•	 	one-third (1/3) of such Restricted Shares (4,307) shall vest on May 8, 2011.




For the avoidance of doubt, subject to Section 3.C, the Restricted Shares will continue to
vest in accordance with the foregoing vesting schedule despite Executive’s cessation of employment
for any reason.





 









 








               C. Accelerated Vesting.



               Notwithstanding the provisions of Section 3.B hereof, all of the Restricted Shares, to
the extent not already vested, shall fully vest on the first to occur of the following dates: (i)
the effective date of a Change of Control (as that term is defined in the form of Change of Control
Agreement filed with the Securities Exchange Commission on March 13, 2006 as Exhibit 10.12
to the Company’s 2005 Form 10-K), and (ii) the date on which Grantee ceases to be employed by the
Company on account of his death or Disability (as that term is defined in the Plan).



               D. Issuance of Certificates.



               The Company shall only be required to issue stock certificates representing those Restricted
Shares whose restrictions have lapsed in accordance with the provisions of this Agreement. Within
sixty (60) days following the lapse of restrictions on the Restricted Shares, the Company shall
issue to Grantee a stock certificate representing such Restricted Shares. In connection with such
issuance, Grantee may return to the Company for cancellation any previously issued stock
certificate representing other Restricted Shares and request that the Company issue one (1) or more
stock certificates representing the previously issued Restricted Shares and the newly lapsed
Restricted Shares, whereupon the Company shall issue such stock certificate(s) to Grantee in
accordance with Grantee’s instructions.



          4. SECURITIES ACT.




               A. Registration.



               The Company has the right, but not the obligation, to cause any of the Restricted Shares
issued or issuable hereunder to be registered under the appropriate rules and regulations of the
Securities and Exchange Commission.



               B. Condition on Delivery of Stock.



               The Company will not be required to deliver any Restricted Shares issuable hereunder if, in
the opinion of counsel for the Company, the issuance would violate the Securities Act of 1933 or
any other applicable federal or state securities laws or regulations. The Company may require
Grantee, prior to or after the issuance of any Restricted Shares hereunder, to sign and deliver to
the Company a written statement, in form and content acceptable to the Company in its sole
discretion, that Grantee (i) is acquiring the shares for investment and not with a view to the sale
or distribution thereof, (ii) will not sell any of such shares or any other Common Stock of the
Company that Grantee may then own or hereafter acquire except with the prior written approval of
the Company, and (iii) will comply with the Securities Act of 1933, the Securities Exchange Act of
1934 and all other applicable federal and state securities laws and regulations.




 








 





               C. Legend.



               Share certificates representing any Restricted Shares issued hereunder, to the extent issued,
will bear a legend restricting the transferability of such Restricted Shares in substantially the
following form:




“The securities represented by this certificate may not be sold,
pledged, or otherwise disposed of until the restrictions set forth
in the Restricted Stock Agreement, effective May 8, 2008, between
Matrixx Initiatives, Inc. and Samuel Cowley are satisfied.”



          5. REPRESENTATIONS OF GRANTEE.




          In connection with Grantee’s receipt of the Restricted Shares, Grantee hereby represents and
warrants to the Company as follows:




               A. Further Limitations on Disposition.



               Grantee understands and acknowledges that Grantee may not make any disposition, sale, or
transfer (including transfer by gift or operation of law) of all or any portion of the Restricted
Shares except as provided in this Agreement. Moreover, Grantee agrees to make no disposition of
all or any portion of the Restricted Shares unless and until: (i) there is then in effect a
registration statement under the Securities Act of 1933 covering such proposed disposition and such
disposition is made in accordance with said Registration Statement; (ii) the resale provisions of
Rule 701 or Rule 144 are available in the opinion of counsel to the Company; or (iii)(A) Grantee
notifies the Company of the proposed disposition and has furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, (B) Grantee furnishes the
Company with an opinion of Grantee’s counsel to the effect that such disposition will not require
registration of such Restricted Shares under the Securities Act, and (C) such opinion of Grantee’s
counsel shall have been concurred with by counsel for the Company and the Company shall have
advised Grantee of such concurrence.



               B. Determination of Fair Market Value.



               Grantee understands Fair Market Value of the Restricted Shares shall be determined in
accordance with Section 3.1 of the Plan.



               C. Section 83(b) Election.



               Grantee understands that Section 83 of the Internal Revenue Code of 1986 (the “Code”)
taxes as ordinary income the difference between the amount paid for the Restricted Shares and the
Fair Market Value of the Restricted Shares as of the date any restrictions on the Restricted Shares
lapse. In this context, “restriction” means the restrictions set forth in Section 3.
Grantee understands that he may elect to be taxed at the time the Restricted Shares are granted
rather than when and as the restrictions on Restricted Shares lapse by filing an election under
Section 83(b) of the Code with the Internal Revenue Service within 30 days from the Date of Grant.
Grantee understands that failure to make this filing timely will result in the recognition of
ordinary income by Grantee, when the Restricted Shares restrictions lapse, on the Fair Market Value
of the Restricted Shares at the time such restrictions lapse.



 








 






GRANTEE ACKNOWLEDGES THAT IT IS GRANTEE’S SOLE RESPONSIBILITY AND
NOT THE COMPANY’S TO FILE TIMELY THE ELECTION UNDER SECTION 83(b),
EVEN IF GRANTEE REQUESTS THE COMPANY OR ITS REPRESENTATIVES TO MAKE
THIS FILING ON GRANTEE’S BEHALF.



          6. NONTRANSFERABILITY OF AGREEMENT.




          Grantee may not assign or transfer Grantee’s rights under this Agreement, nor may Grantee
subject such rights (or any of them) to execution, attachment, garnishment or similar process. In
the event of any such occurrence, this Agreement, and all of Grantee’s rights hereunder, will
automatically be terminated and will thereafter be null and void.




          7. FEDERAL AND STATE TAXES.




          Grantee may incur certain liabilities for federal, state or local taxes in connection with the
issuance of the Restricted Shares hereunder, and the Company may be required by law to withhold
such taxes. Upon determination of the year in which such taxes are due and the determination by
the Company of the amount of taxes required to be withheld, Grantee shall pay an amount equal to
the amount of federal, state or local taxes required to be withheld to the Company. If Grantee
fails to make such payment in a timely manner, the Company may withhold and set-off against
compensation payable to Grantee the amount of such required payment.




          8. ADJUSTMENT OF SHARES.




          The number of Restricted Shares issued to Grantee pursuant to this Agreement will be adjusted
in accordance with Article 11 of the Plan in the event of a change in the Company’s capital
structure. Such number of shares may also be adjusted based on any withholding of compensation by
the Company as provided in the last sentence of Section 7 hereof.




          9. AMENDMENT OF THIS AGREEMENT; TERMINATION.




          This Agreement may only be amended with the written approval of Grantee and the Company.
Notwithstanding the foregoing sentence, the Company may at any time, upon written notice to
Grantee, (i) amend or terminate the Plan, or (ii) terminate this Agreement; provided, however, that
termination of this Agreement by the Company will be with respect to future issuances of Restricted
Shares only, and will have no effect on Grantee’s or the Company’s rights and obligations
hereunder, including, outstanding restrictions on the sale, transfer, pledge, exchange,
hypothecation or disposition of the Restricted Shares issued to Grantee hereunder before the
effective date of such termination.




 









 








          10. GOVERNING LAW.




          This Agreement shall be governed in all respects, whether as to validity, construction,
capacity, performance, or otherwise, by the laws of the State of Arizona, without giving effect to
choice of law rules.




          11. SEVERABILITY.




          If any provision of this Agreement, or the application of any such provision to any person or
circumstance, is held to be unenforceable or invalid by any court of competent jurisdiction or
under any applicable law, the parties hereto will negotiate an equitable adjustment to the
provisions of this Agreement with the view to effecting, to the greatest extent possible, the
original purpose and intent of this Agreement, and in any event, the validity and enforceability of
the remaining provisions of this Agreement will not be affected thereby.




          12. ENTIRE AGREEMENT.




          This Agreement and the provision of the Plan applicable hereto constitute the entire, final
and complete agreement between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements, promises, understandings, negotiations, representations and
commitments, both written and oral, between the parties hereto with respect to the subject matter
hereof. Neither party hereto will be bound by or liable for any statement, representation,
promise, inducement, commitment or understanding of any kind whatsoever not expressly set forth in
this Agreement or in the Plan.




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     IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly
authorized representative and Grantee has signed this Agreement as of the day and year first
written above.



	 	 	 	 	 
	 	MATRIXX INITIATIVES, INC.

 	 
	 	By:  	 /s/ William J. Hemelt
 	 
	 	 	William J. Hemelt 	 
	 	 	Acting President, Chief Operating Officer
and Chief Financial Officer 	 
	 



	 	 	 	 	 
	 

	 	GRANTEE:	 	 
	 
	 	 	 	 
	 

	 	 

Signature
	 	 
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	Name