Exhibit 10.37
RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT (the "Agreement") effective as of the
15th day of August, 1995, by and between Applied Bioscience International Inc.,
a Delaware corporation having its principal executive offices at 0000 Xxxxx
Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000 (the "Company"), and Xx.
Xxxxxxx X. Xxxxxx, an individual residing at Brookside, Xxxxx Xxxx, Xxxxxxxxxxx,
Xxxxx XX0 0XX, Xxxxxxx (the "Executive").
WITNESSETH:
WHEREAS, the Executive is employed by the Company or one of its
subsidiaries; and
WHEREAS, the Company has adopted, through appropriate action of its
Board of Directors, the Applied Bioscience International Inc. Stock Incentive
Program (1990) (the "Program"); and
WHEREAS, the Company has agreed to grant a Restricted Stock Award
to the Executive under the Program on the terms and conditions hereinafter set
forth; and
WHEREAS, subject to the terms and conditions of this Agreement, the
Executive agrees to accept a Restricted Stock Award of the Company.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants hereafter contained, and other good and valuable consideration,
receipt of which is hereby acknowledged, the Company and the Executive do
mutually covenant and agree as follows:
1. Subject to the terms and conditions hereinafter set forth, the
Executive is hereby granted a Restricted Stock Award of Fifty Thousand (50,000)
shares of Common Stock, par value $.01 per share, of the Company (the
"Restricted Stock"). The Executive shall not be required to pay any
consideration in exchange for the Restricted Stock.
2. (a) A certificate representing the shares of Restricted Stock
granted under paragraph 1 hereof shall be registered in the name of the
Executive and deposited by him, together with stock powers endorsed in blank,
with the Company. Subject to subparagraphs (b), (c) and (d) below, the
Executive's right to receive such shares, and the Company's obligation to
deliver such shares to the Executive or his legal representative, shall vest at
such time as the average closing price for the Company's Common Stock for a
period of ten (10) consecutive trading days equals or exceeds $10.00 per share
(based on the quoted closing price of the Company's Common Stock as reported on
the NASDAQ National Market System). (The foregoing is referred to as the
"Vesting Condition.") Such calculation shall be appropriately adjusted for any
stock splits, dividends and similar events. In the event that during the period
commencing on the date hereof and ending on December 31, 1997 (the "Restricted
Period"), the Executive's rights to the Restricted Stock have not vested, then
effective as of December 31, 1997 all of the shares of the Restricted Stock
granted hereunder, shall be automatically forfeited to the Company.
(b) Subject to the terms and conditions hereof, the
Executive shall have all the rights of a stockholder with respect to the shares
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of the Restricted Stock granted hereunder, including, without limitation, the
right during the Restricted Period to vote and to receive any dividends declared
with respect to such shares.
(c) In the event that during the Restricted Period,
there shall have been a change in control of the Company, as set forth below,
then the Executive's right to receive such shares of Restricted Stock shall
automatically vest. For purposes of this Agreement, a "change in control of the
Company" shall mean a change in control of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated
under the Securities Exchange Act of 1934, as amended ("Exchange Act"); provided
that, without limitation, such a change in control shall be deemed to have
occurred if (i) any "person" (as such term is used in Sections 13(d) and
14(d)(2) of the Exchange Act) is or becomes the beneficial owner, directly or
indirectly, of securities of the Company representing 50% or more of the
combined voting power of the Company's then outstanding securities; or (ii)
during any period of two consecutive years, individuals who at the beginning of
such period constitute the Board of Directors of the Company cease for any
reason to constitute at least a majority thereof unless the election, or the
nomination for election by the Company's shareholders, of each new director was
approved by a vote of at least two-thirds of the directors then still in office
who were directors at the beginning of the period.
(d) Notwithstanding the foregoing, in the event that
during the Restricted Period the Executive's employment with the Company or any
subsidiary or affiliate of the Company is terminated (i) voluntarily at the
election or the Executive or (ii) by the Company or any subsidiary or affiliate
of the Company for "cause" (as hereinafter defined), then all of the shares of
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the Restricted Stock shall be automatically forfeited to the Company. Subject
to satisfaction of the Vesting Condition, the rights of the Executive, or his
legal representative to receive the Restricted Stock shall not be affected by
the Executive's the death or disability, or the Company's termination of the
Executive's employment (other than for "cause").
(e) For the purposes of this Agreement, "cause" shall
mean (i) the Executive's conviction for any act or acts constituting a felony
under the laws of the United States, any state thereof or any foreign
jurisdiction; (ii) any material breach by the Executive of the policies of the
Company or any subsidiary of affiliate of the Company, including, without
limitation, the willful and persistent (after written notice to the Executive)
failure of the Executive to comply with any lawful directives of the Board of
Directors of the Company, any chronic and unexcused, absenteeism, habitual
insobriety or use of controlled substance; (iii) a course of conduct by the
Executive amounting to gross neglect, willful misconduct or dishonesty
materially affecting the Company's or any subsidiary or affiliate of the
Company's business or reputation; or (iv) any misappropriation of property of
the Company or any subsidiary or affiliate of the Company by the Executive or
any misappropriation by the Executive of a corporate or business opportunity of
the Company or any subsidiary or affiliate of the Company that is within the
scope of the business operations of the Company or any subsidiary or affiliate
of the Company, as then conducted, or as then proposed to be conducted pursuant
to business plans of the Company which are known to the Executive.
3. During the Restricted Period and until the Vesting Condition has
been satisfied, the shares of Restricted Stock granted hereunder may not be
transferred, assigned, pledged, hypothecated or encumbered, and shall not be
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subject to execution, attachment, garnishment or other similar legal processes.
Upon any attempt to transfer, assign, pledge, hypothecate or otherwise encumber
or dispose of such shares of Restricted Stock, such shares shall immediately be
forfeited to the Company.
4. (a) No purported sale, assignment, mortgage, hypothecation,
transfer, pledge, encumbrance, gift, transfer in trust (voting or other) or
other disposition of, or creation of a security interest in or lien on, any of
the shares of Restricted Stock by any holder thereof in violation of any
provision of this Agreement will be valid, and the Company will not transfer any
of said shares on its books nor will any of said shares be entitled to vote, nor
will any dividends be paid thereon, unless and until there has been compliance
with the provisions of the Program and this Agreement. The foregoing
restrictions are in addition to and not in lieu of any other remedies, legal or
equitable, available to enforce said provisions.
(b) Any waiver by any party of any rights hereunder as
to any transfer, will not, as to any future transfer of said shares (whether
voluntary or by operation of law), discharge such shares from any restrictions
contained in this Agreement.
5. Nothing contained in this Agreement, nor the granting of the
Restricted Stock Award hereunder, shall be construed as giving the Executive or
any other person any legal or equitable rights against the Company or any
subsidiary or any director, officer, employee or agent thereof, except for those
rights as are herein provided. Under no circumstances shall this Agreement be
construed as an express or implied contract of continuing employment for the
Executive, nor shall the Restricted Stock Award granted hereunder in any manner
obligate the Company, or any subsidiary or affiliate of the Company, to continue
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the employment of the Executive.
6. This Agreement incorporates the terms of the Program and any
modifications or amendments thereto. The Executive acknowledges receipt of a
copy of the Program and agrees to be bound by all the terms and provisions
thereof. Any inconsistency between this Agreement and the Program shall be
resolved in favor of the Program.
APPLIED BIOSCIENCE INTERNATIONAL INC.
By:/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
Senior Vice President
EXECUTIVE
/s/ Xx. Xxxxxxx X. Xxxxxx
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Xx. Xxxxxxx X. Xxxxxx
