exv10w1






Exhibit 10.1




RESTRICTED STOCK AGREEMENT




MAKEMUSIC, INC.

2003 EQUITY INCENTIVE PLAN



     THIS AGREEMENT is made effective as of this                      day of                     , 20___, by and between
MakeMusic, Inc., a Minnesota corporation (the “Company”), and                                          (the “Participant”).



W I T N E S S E T H:




     WHEREAS, the Participant on the date hereof is a key employee, officer, director of or
consultant or advisor to, the Company;



     WHEREAS, the Company wishes to grant a restricted stock award to the Participant for shares of
the Company’s Common Stock pursuant to the Company’s 2003 Equity Incentive Plan (the “Plan”); and



     WHEREAS, the Administrator of the Plan has authorized the grant of a restricted stock award to
the Participant.



     NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein contained,
the parties hereto agree as follows:



     1. Grant of Restricted Stock Award. The Company hereby grants to the Participant a
restricted stock award (the “Award”) for                                          (                    ) shares of Common Stock on the
terms and conditions set forth herein, which shares are subject to adjustment pursuant to Section
14 of the Plan.



     2. Lapse of Risk of Forfeiture of Restricted Stock.



          a. General. Except as provided in Paragraph 3 below, the shares of Common Stock
subject to this Award shall remain forfeitable until the risks of forfeiture lapse as described
herein and according to the following schedule:




	 	 	 

	Date

	 	Number of Shares That Become Freely Tradeable






          b. Termination of Relationship.





          i. Except as provided in Paragraph 3 below, if, prior to the lapse of risk of
forfeiture as to all or any portion of the Award, the Participant ceases to be a key
employee or officer of the Company or any Affiliate due to a resignation without Good Reason
(as defined below) or a termination for Cause (as defined below), the Participant, unless
otherwise determined by the Administrator, shall forfeit all shares of Common Stock subject
to this Award which have not become freely tradeable and this Award may, in the
Administrator’s discretion, terminate as of the date of the act giving rise to such
termination.




          ii. For purposes of this Award, “Good Reason” means: (a) a material reduction or
change in Participant’s authority, duties, or responsibilities; (b) a reduction in
Participant’s base salary, unless, pursuant to direction by the Board, any such reduction is
made in concert with and in an amount no greater than the percentage adjustment mandated as
an “across the board” reduction in base salary for all Company officers; or (c) the Company
commits a material breach of the Participant’s written employment agreement, if any, and
such breach is not cured to the reasonable satisfaction of the Participant within thirty (30) days from written notice to the Board by the Participant.



 









 








          iii. For purposes of this Award, “Cause” means: (a) failure of Participant to (i)
faithfully, diligently or competently perform the material duties, requirements and
responsibilities of his or her employment as assigned by the Company’s Chief Executive
Officer of Board of Directors, or (ii) take reasonable direction consistent with his or her
position from the Company’s Chief Executive Officer or Board of Directors; or (b) Failure
of Participant to comply with the material, reasonable policies, regulations and directives
of the Company as in effect from time to time; or (c) Any act or omission on the part of
Participant which constitutes a failure to comply with material provisions of his or her
written employment agreement, if any; or (d) Any act or omission on the part of Participant
which is clearly and materially harmful to the reputations or businesses of the Company,
including, but not limited to, personal conduct of Participant which is inconsistent with
federal and state laws respecting harassment of, or discrimination against, one or more of
the Company’s employees; or (e) Conviction of Participant of, or a guilty or nolo
contendere plea by Participant with respect to, any crime punishable as a felony.




          iv. Notwithstanding anything herein to the contrary, if any payments to be made to the
Participant hereunder are subject to the requirements of Code Section 409A and the Company
determines that the Participant is a “specified employee” as defined in Code Section 409A as
of the date of the termination, such payments shall not be paid or commence earlier than the
date that is six months after the termination. Any payment not made during the six month
period shall be paid on the first day of the seventh month following termination.



          c. Issuance of Shares; Rights as a Shareholder. As to freely tradeable shares of
Common Stock issuable pursuant to this Award, the Company shall cause such shares to be issued in
either book entry or certificate form, at the Company’s option. As to shares of Common Stock
issuable pursuant to this Award that remain subject to risks of forfeiture, the Company shall cause
to be issued one or more stock certificates representing such shares of Common Stock in the
Participant’s name. The Company shall hold each such certificate until such time as the risk of
forfeiture and other transfer restrictions set forth in this Agreement have lapsed with respect to
the shares represented by the certificate, or, at the Company’s option, it may initially deliver
such certificates to the Participant, provided that the Participant must return such certificates
to the Company if all or a portion of the shares of Common Stock represented by the certificate are
forfeited as provided herein. The Company may also place a legend on such certificates describing
the risks of forfeiture and other transfer restrictions set forth in this Agreement and providing
for the cancellation of such certificates if the shares of Common Stock are forfeited as provided
in Paragraph 2(b). Until such risks of forfeiture have lapsed or the shares subject to this Award
have been forfeited pursuant to Paragraph 2(b), the Participant shall be entitled to vote the
shares represented by such stock certificates and shall receive dividends attributable to such
shares of Common Stock, but the Participant shall not have any other rights as a shareholder with
respect to such shares.




     3. Change of Control.



          a. Acceleration. Notwithstanding anything in the Plan or this Agreement to the
contrary, in the event of the termination of the Participant’s relationship with the Company in
connection with a Change of Control (as defined below), the risks of forfeiture on this Award shall
immediately and fully lapse.





2









 








          b. Change of Control Defined. For purposes of this Paragraph 3, a “Change of Control”
means:





          i. The consummation of any merger, consolidation, exchange, or reorganization to which
the Company is a party if the individuals and entities who were shareholders of the Company
immediately prior to the effective date of such transaction have, immediately following
the effective date of such transaction, beneficial ownership (as defined in Rule 13d-3 under
the Securities Exchange Act of 1934) of less than fifty percent (50%) of the total combined
voting power of all classes of securities issued by the surviving corporation for the
election of directors of the surviving corporation;




          ii. The shareholders of the Company approve any plan or proposal for the liquidation
of the Company;




          iii. A sale, lease or other transfer of all or substantially all of the assets of the
Company to any person or entity which is not an Affiliate of the Company; or




          iv. The acquisition, without prior approval by resolution adopted by the Board, of
direct or indirect beneficial ownership (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934) of securities of the Company representing, in the aggregate, fifty
percent (50%) or more of the total combined voting power of all classes of the Company’s
then-issued and outstanding securities by any person or entity or by a group of associated
persons or entities acting in concert; provided, however, that a Change of Control will not
be deemed to occur if such acquisition is initiated by the Participant or an entity in which
the Participant owns fifty percent (50%) or more of the total combined voting power of all
classes of such entity’s securities, or if the Participant or such entity is a member of the
group of associated persons or entities acting in concert.



          c. Limitation on Change of Control Payments. The Participant shall not be entitled to
receive any Change of Control Payment, as defined below, which would constitute a “parachute
payment” for purposes of Code Section 280G, or any successor provision, and the regulations
thereunder. In the event any Change of Control Payment payable to the Participant would constitute
a “parachute payment,” the Participant shall have the right to designate those Change of Control
Payments which would be reduced or eliminated so that the Participant will not receive a “parachute
payment.” For purposes of this Paragraph 3(c), a “Change of Control Payment” shall mean any
payment, benefit or transfer of property in the nature of compensation paid to or for the benefit
of the Participant under any arrangement which is considered contingent on a Change of Control for
purposes of Code Section 280G, including, without limitation, any and all of the Company’s salary,
bonus, incentive, restricted stock, stock option, equity-based compensation or benefit plans,
programs or other arrangements, and shall include the acceleration of this Award.




     4. Miscellaneous.



          a. Employment. This Agreement shall not confer on the Participant any right with
respect to continuance of employment by the Company, nor will it interfere in any way with the
right of the Company to terminate such employment.




          b. Securities Law Compliance. The Participant may be required by the Company, as a
condition of the effectiveness of this Award, to agree in writing that all Common Stock subject to
this Agreement shall be held, until such time that such Common Stock is registered or otherwise
freely tradable under applicable state and federal securities laws, for the Participant’s own
account without a view to any further distribution thereof, that the certificates for such shares
shall bear an appropriate legend to that effect and that such shares will be not transferred or
disposed of except in compliance with applicable state and federal
securities laws.


3









 










          c. Mergers, Recapitalizations, Stock Splits, Etc. Except as otherwise specifically
provided in any employment, change of control, severance or similar agreement executed by the
Participant and the Company, pursuant and subject to Section 14 of the Plan and Paragraph 3 hereof,
certain changes in the number or character of the Common Stock of the Company (through sale,
merger, consolidation, exchange, reorganization, divestiture (including a spin-off), liquidation,
recapitalization, stock split, stock dividend or otherwise) shall result in an adjustment,
reduction, or enlargement, as appropriate, in the number of shares subject to this Award. Any
additional shares that are credited pursuant to such adjustment shall be subject to the same
restrictions as are applicable to the shares with respect to which the adjustment relates.




          d. Shares Reserved. The Company shall at all times during the term of this Award
reserve and keep available such number of shares as will be sufficient to satisfy the requirements
of this Agreement.




          e. Withholding Taxes. To permit the Company to comply with all applicable federal and
state income tax laws or regulations, the Company may take such action as it deems appropriate to
ensure that, if necessary, all applicable federal and state payroll, income or other taxes
attributable to this Award are withheld from any amounts payable by the Company to the Participant.
If the Company is unable to withhold such federal and state taxes, for whatever reason, the
Participant hereby agrees to pay to the Company an amount equal to the amount the Company would
otherwise be required to withhold under federal or state law prior to the issuance of a certificate
for the shares of Common Stock subject to this Award. Subject to such rules as the Administrator
may adopt, the Administrator may, in its sole discretion, permit the Participant to satisfy such
withholding tax obligations, in whole or in part, by delivering shares of Common Stock, including
shares of Common Stock received pursuant to this Award for which the risks of forfeiture have
lapsed. Such shares shall have a Fair Market Value equal to the minimum required tax withholding,
based on the minimum statutory withholding rates for federal and state tax purposes, including
payroll taxes, that are applicable to the supplemental income attributable to this Award. In no
event may the Participant deliver shares having a Fair Market Value in excess of such statutory
minimum required tax withholding. The Participant’s election to deliver shares or to have shares
withheld for this purpose shall be made on or before the date that the amount of tax to be withheld
is determined under applicable tax law. Such election shall be approved by the Administrator and
otherwise comply with such rules as the Administrator may adopt to assure compliance with Rule
16b-3, or any successor provision, as then in effect, of the General Rules and Regulations under
the Securities Exchange Act of 1934, if applicable.




          f. Nontransferability. During the lifetime of the Participant, this Award shall not
be transferable, in whole or in part, by the Participant, other than by will or by the laws of
descent and distribution. If the Participant shall attempt any transfer of this Award prior to
such date, such transfer shall be void and this Award shall terminate.




          g. 2003 Equity Incentive Plan. The Award evidenced by this Agreement is granted
pursuant to the Plan, a copy of which Plan has been made available to the Participant and is hereby
incorporated into this Agreement. This Agreement is subject to and in all respects limited and
conditioned as provided in the Plan. All defined terms of the Plan shall have the same meaning
when used in this Agreement. The Plan governs this Award and, in the event of any questions as to
the construction of this Agreement or in the event of a conflict between the Plan and this
Agreement, the Plan shall govern, except as the Plan otherwise provides.




          h. Lockup Period Limitation. The Participant agrees that in the event the Company
advises the Participant that it plans an underwritten public offering of its Common Stock in
compliance with




4









 







the Securities Act of 1933, as amended, and that the underwriter(s) seek(s) to
impose restrictions under which certain shareholders may not sell or contract to sell or grant any
option to buy or otherwise dispose of part or all of their stock purchase rights of the underlying
Common Stock, the Participant hereby agrees that for a period not to exceed 180 days from the
prospectus, the Participant will not sell or contract to sell or grant an option to buy or
otherwise dispose of this Award or any of the underlying shares of Common Stock without the prior
written consent of the underwriter(s) or its representative(s).




          i. Blue Sky Limitation. Notwithstanding anything in this Agreement to the contrary,
in the event the Company makes any public offering of its securities and determines, in its sole
discretion, that it is necessary to reduce the number of issued but unexercised stock purchase
rights so as to comply with any state securities or Blue Sky law limitations with respect thereto,
the Board of Directors of the Company shall have the right to (i) accelerate the lapse of the risks
of forfeiture for this Award, provided that the Company gives the Participant 15 days’ prior
written notice of such acceleration, or (ii) cancel any portion of this Award or any other award
granted to the Participant pursuant to the Plan which remains subject to risk of forfeiture prior
to or contemporaneously with such public offering. Notice shall be deemed given when delivered
personally or when deposited in the United States mail, first class postage prepaid and addressed
to the Participant at the address of the Participant on file with the Company.




          j. Stock Legend. The Administrator may require that the certificates for any shares
of Common Stock issued to the Participant (or, in the case of death, the Participant’s successors)
under this Agreement shall bear an appropriate legend to reflect the restrictions of this
Agreement; provided, however, that failure to so endorse any of such certificates shall not render
invalid or inapplicable any such restrictions.




          k. Scope of Agreement. This Agreement shall be for and inure to the benefit of the
Company and its successors and assigns and the Participant and any successor or successors of the
Participant permitted by Paragraph 4(f) above.




          l. Arbitration. Any dispute arising out of or relating to this Agreement or the
alleged breach of it, or the making of this Agreement, including claims of fraud in the inducement,
shall be discussed between the disputing parties in a good faith effort to arrive at a mutual
settlement of any such controversy. If, notwithstanding, such dispute cannot be resolved, such
dispute shall be settled by binding arbitration. Judgment upon the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. The arbitrator shall be a
retired state or federal judge or an attorney who has practiced securities or business litigation
for at least ten (10) years. If the parties cannot agree on an arbitrator within twenty (20) days,
any party may request that the chief judge of the District Court for Hennepin County, Minnesota
select an arbitrator. Arbitration will be conducted pursuant to the provisions of this Agreement
and the commercial arbitration rules of the American Arbitration Association, unless such rules are
inconsistent with the provisions of this Agreement. Limited civil discovery shall be permitted for
the production of documents and taking of depositions. Unresolved discovery disputes may be
brought to the attention of the arbitrator who may dispose of such dispute. The arbitrator shall
have the authority to award any remedy or relief that a court of this state could order or grant;
provided, however, that punitive or exemplary damages shall not be awarded. The arbitrator may
award to the prevailing party, if any, as determined by the arbitrator, all of its costs and fees,
including the arbitrator’s fees, administrative fees, travel expenses, out-of-pocket expenses and
reasonable attorneys’ fees. Unless otherwise agreed by the parties, the place of any arbitration
proceedings shall be Hennepin County, Minnesota.




          m. Accounting Compliance. The Participant agrees that, if a “transaction” (as defined
in Section 14 of the Plan) occurs, and the Participant is an “affiliate” of the Company or any
Affiliate (as defined in applicable legal and accounting principles) at the time of such
transaction, the Participant will





5









 







comply with all requirements of Rule 145 of the Securities Act of
1933, as amended, and the requirements of such other legal or accounting principles, and will
execute any documents necessary to ensure such compliance.




          n. Governing Law. This Agreement and all rights and obligations hereunder shall be
construed in accordance with the Plan and governed by the laws of the State of Minnesota.




[Signature page follows]



6









 





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day
and year first above written.



	 	 	 	 	 

	 

	 	MAKEMUSIC, INC.	 	 
	 
	 
	 	 	 	 
	 

	 	 

By:
	 	 
	 

	 	Its:	 	 
	 
	 	 	 	 
	 

	 	PARTICIPANT	 	 
	By execution hereof, the
	 	 	 	 
	Participant acknowledges having
	 	 	 	 
	received a copy of the Plan.

	 	 

	 	 







7