COVANCE INC.
RESTRICTED STOCK AGREEMENT
2002 EMPLOYEE EQUITY PARTICIPATION PLAN
(200_ [GRANT YEAR]AWARD)
RESTRICTED STOCK AGREEMENT dated as of _________________ [GRANT YEAR]
(the "Agreement") between COVANCE INC., a Delaware corporation ("Company"),
located at 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000, and ____________
(the "Employee").
W I T N E S S E T H:
- - - - - - - - - -
A. WHEREAS, the Employee is currently employed by the Company, or a
corporation which is a "subsidiary corporation" within the meaning of Section
424(f) of the Internal Revenue Code of 1986, as amended, modified or
supplemented from time to time ("Code") or which is an entity in which the
Company holds beneficially at least fifty percent (50%) of the ownership
interest (each, a "Subsidiary Company"), in an important executive, managerial
or technical capacity.
B. WHEREAS, the Company desires to have the Employee remain in the
employment of the Company or a Subsidiary Company and to afford the Employee the
opportunity to acquire, or enlarge the Employee's, stock ownership in the
Company so that the Employee may have a direct proprietary interest in the
Company's success.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
and agreements set forth below, and for other good and valuable consideration,
receipt of which is hereby acknowledged, the parties hereby agree as follows:
1. GRANT OF SHARES. Subject to the terms and conditions of the Employee
Equity Participation Plan (as amended, modified or supplemented from time to
time the "Plan") and this Agreement, the Company hereby grants ("Grant") to the
Employee, as of the date of this Agreement ("Grant Date") _________ shares (the
"Initial Shares") of Common Stock, par value $.01 per share (the "Common
Stock"), of the Company; PROVIDED, HOWEVER, that the number of the Initial
Shares may be increased or decreased depending on the Company's return on
average assets ("ROA") in 200_ [GRANT YEAR] and percentage increase in year-end
backlog ("Year-End Backlog") calculated as of December __, 200_ [GRANT YEAR]
compared to Year-End Backlog calculated as of December __, 200_ [YEAR PRIOR TO
GRANT YEAR], all as more fully specified on Exhibit A hereto (such Initial
Shares, after giving effect to any such decrease or increase, being the
"Adjusted Shares" and together with any Additional Shares (as defined below),
being the "Shares"); and PROVIDED, FURTHER, HOWEVER, that additional shares of
Common Stock may be earned and issued to Employee in respect of the years 200_
[ONE YEAR AFTER GRANT YEAR] and 200_ [TWO YEARS AFTER GRANT YEAR] as specified
in Exhibit B hereto (such additional shares, if any, earned for the years 200_
[ONE YEAR AFTER GRANT YEAR] and 200_ [TWO YEARS AFTER GRANT YEAR] being,
respectively, the "200_ [ONE YEAR AFTER GRANT YEAR] Additional Shares" and the
"200_ [TWO YEARS AFTER GRANT YEAR] Additional Shares" and collectively being the
"Additional Shares"). No Adjusted Shares or Additional Shares shall be forfeited
solely as a result of the Company's performance in any year subsequent to the
year that such Adjusted Shares or Additional Shares were earned. Nothing in this
Paragraph 1 shall be relied on or used to interrupt the vesting or termination
requirements of Paragraphs 2 and 3. The ROA and Year-End Backlog for 200_,
[GRANT YEAR] 200_ [ONE YEAR AFTER GRANT YEAR] and 200_ [TWO YEARS AFTER GRANT
YEAR] shall be certified by the Company's Compensation and Organization
Committee; PROVIDED, that in determining ROA and Year-End Backlog for any such
years such Committee may include or exclude, on a basis consistent with
circumstances existing when such goals were established, as applicable, the
financial effect on ROA and Year-End Backlog for any such year arising from any
acquisition of the stock or assets of any other person or entity, the
divestiture of all or any of the Company's businesses, operations or facilities,
strategic expenditures by the Company identified to the Board of Directors as
such, FORCE MAJEURE events, material litigation or any other unexpected or
unforeseen extraordinary event or occurrence during the year in question. In
calculating the number of Additional Shares to grant Employee, if any, any of
the foregoing adjustments may be considered by the Compensation and Organization
Committee in determining ROA and Year-End Backlog for the years subsequent to
the year that the event giving rise to such adjustment occurred, as determined
by the Compensation and Organization Committee.
2. VESTING OF RESTRICTED SHARES; RIGHTS. (a) The Shares shall vest on
December __, 200_ [THREE YEARS AFTER GRANT YEAR]; PROVIDED, HOWEVER, that 200_
[TWO YEARS AFTER GRANT YEAR] Additional Shares, if any, shall vest on the fourth
business day after the date in 200_ [THREE YEARS AFTER GRANT YEAR] that the
Compensation and Organization Committee has certified the 200_ [TWO YEARS AFTER
GRANT YEAR] ROA and Year-End Backlog.
(b) Subject to the terms and conditions of this Agreement, Employee
shall have all rights relating to the Initial Shares and, when issued, the
Additional Shares, including the right to vote and collect dividends as declared
and paid by the Company, subject to appropriate withholding to satisfy
applicable tax requirements.
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3. TERMINATION. (a) The Grant with respect to any unvested Shares shall
be forfeited and be of no further force or effect upon the termination of the
Employee's employment, for any reason, with the Company, except in the case of
his death, disability (as defined 22(e)(3) of the Code) or his retirement with
the consent of the Company, in which case all unvested Shares shall thereupon
immediately vest.
(b) If the Employee shall be transferred from the Company to a
Subsidiary Company, or from a Subsidiary Company to the Company, or from a
Subsidiary Company to a Subsidiary Company, his employment shall not be deemed
to be terminated by reason of such transfer. The unvested portion of the Shares
shall terminate immediately if, while the Employee is employed by a Subsidiary
Company, such Subsidiary Company shall cease to be a Subsidiary Company and the
Employee is not thereupon transferred to and employed by the Company or another
Subsidiary Company.
4. CONSTRUCTION. Whenever the word "Employee" is used in any provision
of this Agreement in circumstances where the provision should logically be
construed to apply to the estate, personal representative, or beneficiary to
whom this Grant may be transferred by Will, by the laws of descent and
distribution, or by a qualified domestic relations order pursuant to the Code or
Title I of the Employment Retirement Income Security Act of 1974, as amended,
modified or supplemented from time to time ("ERISA"), it shall be deemed to
include such person.
5. PHYSICAL POSSESSION OF SHARES; RESTRICTIONS ON TRANSFER. (a) Each
certificate of Shares shall be registered in the name of the Employee but shall
be held by the Company until the Employee is entitled to physical possession of
the Shares pursuant to the terms of this Agreement. Until the Employee has
received physical possession of the Shares, the Employee may not give, grant,
sell, exchange, transfer legal title, pledge, assign or otherwise encumber or
dispose of any unvested Shares granted pursuant to the Plan or any interest
therein or this Agreement, otherwise than by Will, the laws of descent and
distribution, or by a qualified domestic relations order pursuant to the Code or
Title I of ERISA.
(b) No assignment or transfer of any unvested Shares, or of the rights
represented thereby or this Agreement, whether voluntary or involuntary, by
operation of law or otherwise (except by Xxxx, the laws of descent and
distribution, or a qualified domestic relations order pursuant to the Code or
Title I of ERISA), shall vest in the assignee or transferee any interest or
right herein whatsoever. Further, immediately upon any attempt to assign or
transfer any unvested Shares granted pursuant to this Agreement, the Grant shall
immediately terminate and be of no further force or effect (except by Xxxx, the
laws of descent and distribution, or a qualified domestic relations order
pursuant to the Code or Title I or ERISA).
6. POWERS. The existence of this Grant shall not affect in any way the
right or power of the Company or its stockholders to make or authorize any or
all adjustments, recapitalization, reorganizations or other changes in the
Company's capital structure or its business, or any merger or consolidation of
the Company, or any issue of bonds, debentures, preferred or prior preference
stocks ahead of or affecting the Common Stock or the rights thereof, or the
dissolution or liquidation of the Company, or any sale or transfer of all or any
part of its assets or business, or any other corporate act or proceeding,
whether of a similar character or otherwise.
7. CHANGE OF CONTROL. Except as set forth in Paragraph 3 hereof,
notwithstanding anything in this Agreement to the contrary, all Shares which
have not vested as of the date of a Change of Control (as defined below) occurs,
shall immediately vest upon a Change of Control and be delivered to the Employee
pursuant to the delivery provisions of this Agreement. For purposes of this
Agreement, a Change of Control shall be defined as:
(1) any person (including as such term is used in Section 13(d)
and 14(d)(2) of the Securities Exchange Act of 1934, as
amended) who becomes the beneficial owner, directly or
indirectly, of securities representing 20% or more of the
combined voting power of the Company's then outstanding
securities; or
(2) as a result of a proxy contest or contests or other forms of
contested shareholder votes (in each case either individually
or in the aggregate), a majority of the individuals elected to
serve on the Company's Board of Directors are different than
the individuals who served on the Company's Board of Directors
at any time within the two years prior to such proxy contest
or contests or other forms of contested shareholder votes (in
each case either individually or in the aggregate); or
(3) when the Company's shareholders approve a merger, or
consolidation (where in each case the Company is not the
survivor thereof), or sale or disposition of all or
substantially all of the Company's assets or a plan or partial
or complete liquidation; or
(4) when an offerer (other than the Company) purchases shares of
the Company's Common Stock pursuant to a tender or exchange
offer for securities representing 20% or more of the combined
voting power of the Company's then outstanding securities.
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8. ISSUANCE OF SHARES; POWER OF ATTORNEY. (a) Within sixty (60) days of
the date of this Agreement, the Company shall cause its transfer agent to issue
in the Employee's name a certificate evidencing the Shares granted pursuant to
this Agreement. Furthermore, in the event that the actual number of shares of
Common Stock earned by Employee, as provided in paragraph 1 of this Agreement,
are less than the number of Initial Shares, the Company shall be authorized to
and shall instruct the transfer agent to cancel such share certificate
evidencing the Initial Shares and reissue to the Company on behalf of and in the
name of the Employee a certificate representing the number of shares of Common
Stock earned in accordance with paragraph 1 of the Agreement. In the event that
the actual number of shares of Common Stock earned by the Employee pursuant to
paragraph 1 of this Agreement is greater than the Initial Shares, then the
Company shall instruct the Transfer Agent by May __, 200_ [ONE YEAR AFTER GRANT
YEAR] to issue on behalf of and in the Employee's name a certificate evidencing
such additional shares of Common Stock. The certificate representing unvested
Shares shall be retained by the Company and shall bear a legend stating that
such Shares are subject to the provisions of this Agreement. The Company may
place a "stop transfer" order with respect to all unvested Shares with its
transfer agent.
(b) In the event that 200_ [ONE YEAR AFTER GRANT YEAR] Additional
Shares are earned by the Employee pursuant to Paragraph 1 of this Agreement,
then the Company shall instruct the Transfer Agent by May _, 200_ [TWO YEARS
AFTER GRANT YEAR] to issue on behalf of and in the Employee's name a certificate
evidencing such additional shares of Common Stock. The certificate representing
unvested Shares shall be retained by the Company and shall bear a legend stating
that such Shares are subject to the provisions of this Agreement.
(c) In the event that 200_ [TWO YEARS AFTER GRANT YEAR] Additional
Shares are earned by the Employee pursuant to Paragraph 1 of this Agreement,
then the Company shall instruct the Transfer Agent by May _, 200_ [THREE YEARS
AFTER GRANT YEAR] to issue on behalf of and in the Employee's name a certificate
evidencing such additional shares of Common Stock.
(d) Within thirty (30) days of each vesting date as set forth in
Section 2 hereof, after giving effect to any adjustments to the Initial Shares
required as provided in paragraphs 1 and 8(a) of this Agreement, the Company
shall cause its transfer agent to issue to the Employee, upon the Company's
surrender of the appropriate certificate representing unvested Shares, a new
certificate representing the Shares vested during the plan year. The transfer
agent shall thereupon re-issue on behalf of and in the Employee's name a
certificate representing the remaining unvested Shares still subject to the
terms of this Agreement, which certificate shall be retained by the Company.
(e) The Company shall have the right to deduct from any vested shares a
number of shares sufficient to cover the withholding of any federal, state or
local or other governmental taxes or charges required by law or such greater
amount of withholding as permitted by applicable law, rules or regulations, or
to take such other action as may be necessary to satisfy any such withholding
obligations.
(f) The Employee hereby constitutes and appoints the Company as his
true and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution for him in his name, place and xxxxx, in any and all capacities
to take all actions and to execute all instruments necessary and proper to carry
out the issuance and cancellation of the Shares hereunder.
(g) The Employee represents and warrants that he will take all actions
necessary, as directed by the Company, to cancel the certificate representing
any or all unvested Shares upon termination of his employment.
9. CHANGES IN LAW. Notwithstanding anything in this Agreement to the
contrary, if at any time any law or regulations of any governmental authority
having jurisdiction in the premises shall require either the Company or the
Employee to take any action in connection with the Shares then to be issued, the
issue of such Shares shall be deferred until such action shall have been taken.
10. DISPUTE. Any dispute or disagreement which shall arise under, as a
result of, or pursuant to, this Agreement shall be finally determined by the
Company's Compensation and Organization Committee of the Board of Directors in
its absolute and uncontrolled discretion, and any such determination or any
other determination by the Company's Compensation and Organization Committee of
the Board of Directors under or pursuant to this Agreement, and any
interpretation by the Company's Compensation and Organization Committee of the
Board of Directors of the terms of this Agreement, shall be final, binding and
conclusive on all persons affected thereby.
11. SECURITIES LAW RESTRICTIONS. The Employee represents and warrants
that he or she is acquiring the Shares for investment, for his or her own
account and not with a view to the distribution thereof, and that the Employee
has no present intention of disposing of the Shares or any interest therein or
sharing ownership thereof with any other person or entity. The Employee shall
not sell, hypothecate or transfer the Shares except pursuant to an effective
registration statement under the Securities Act of 1933, as amended or an
applicable exemption thereto evidenced by an opinion of counsel in form and
substance satisfactory to the Company.
12. NO EFFECT UPON EMPLOYMENT. This Agreement does not give, nor shall
it be construed as giving, the Employee any right to employment by the Company
or any of its subsidiaries or affiliates.
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13. GOVERNING LAW; BINDING EFFECT. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW JERSEY (WITHOUT
REGARD TO THE CONFLICT OF LAW PROVISIONS THEREOF) AND ALL QUESTIONS CONCERNING
THE VALIDITY AND CONSTRUCTION THEREOF SHALL BE GOVERNED IN ACCORDANCE WITH THE
LAWS OF SAID STATE; PROVIDED, HOWEVER, THAT ALL MATTERS OF CORPORATE GOVERNANCE
AND OTHER CORPORATE MATTERS CONCERNING DELAWARE CORPORATIONS SHALL BE GOVERNED
BY THE DELAWARE GENERAL CORPORATION LAW. Except as otherwise expressly provided
herein, this Agreement shall be binding upon and inure to the benefit of the
parties hereto, their legal representatives, successors and assigns.
14. EFFECT ON COMPENSATION AND DISCRETIONARY NATURE OF GRANT.
Notwithstanding anything in this Agreement to the contrary, none of the Shares,
if any, granted or paid to Employee shall be considered compensation for the
purpose of determining Employee's compensation under any other benefit or
compensation plan of the Company, including, without limitation, any bonus plan,
variable compensation plan, long-term incentive plan, pension plan or other
retirement plans. The Employee acknowledges and agrees that the Plan is
discretionary in nature and may be amended, cancelled, or terminated by the
Company, in its sole discretion, at any time. The grant of restricted stock
under the Plan is a one-time benefit and does not create any contractual or
other right to receive a restricted grant of stock or benefits in lieu of
restricted stock in the future. Future grants of restricted stock, if any, will
be at the sole discretion of the Company, including, but not limited to, the
timing of any grant, the number of shares of restricted stock and the vesting
provisions.
15. SECTION 83(B) ELECTION. If Employee makes an election with respect
to the receipt of the Shares pursuant to Section 83(b) of the Code (the
"Election"), such Election shall contain all information required by Treasury
Regulation Section 1.83-2 and shall, in accordance with that regulation, be
filed no later than 30 days after the transfer of the Shares to the Employee.
The Election shall be filed with the Internal Revenue Service Center at which
the Employee files his or her income tax return. Contemporaneously with such
filing, the Employee shall furnish a copy of the Election to the Company, in
accordance with Treasury Regulation Section 1.83-2(d).
16. PLAN DOCUMENT. This Agreement is subject in all respects to the
plan, a copy of which may be obtained from the Company's Corporate Senior Vice
President, Human Resources, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000. To
the extent that there is any inconsistency or conflict between this Agreement
and the Plan, the Plan shall control.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
COVANCE INC.
------------------------------
Attest:
---------------------------
EMPLOYEE
-----------------------------------
S.S. Number:
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EXHIBIT A
200_ [GRANT YEAR] PERFORMANCE SHARE MATRIX
BACKLOG GROWTH (1)
-----------------------------------------------------------------------------------------
< _% _% TO _% _% TO _% _% TO _% _% TO _% _% TO _% > _%
-----------------------------------------------------------------------------------------
$_________ $_________ $_________ $_________ $_________ $_________
--------------------------------------------------------------------------------------------------------
__% OR LESS 0% 20% 40% 50% 60% 70% 80%
RETURN --------------------------------------------------------------------------------------------------------
ON __% 30% 50% 60% 70% 80% 90% 100%
AVERAGE --------------------------------------------------------------------------------------------------------
ASSETS __% 50% 70% 80% 90% 100% 110% 120%
(2) --------------------------------------------------------------------------------------------------------
__% 60% 80% 90% 100% 110% 120% 140%
--------------------------------------------------------------------------------------------------------
__% 70% 90% 100% 110% 120% 150% 170%
--------------------------------------------------------------------------------------------------------
__% 90% 100% 120% 130% 150% 170% 190%
--------------------------------------------------------------------------------------------------------
__% OR MORE 100% 120% 140% 150% 170% 190% 220%
--------------------------------------------------------------------------------------------------------
(1) BACKLOG: Growth to be calculated off publicly reported 200_ [GRANT
YEAR] ending backlog. Results to be rounded to the nearest integer with
no pro-ration between columns. The year-end figure for 200_ [GRANT
YEAR] will be stated in constant dollars using the year-end 200_ [PRIOR
YEAR] exchange rates.
(2) ROA: Rounded to the nearest point on the grid with no pro ration
between rows. The calculation mechanics will include: (a) The numerator
will be net operating profit after tax (NOPAT). This will be calculated
as operating income minus taxes, which will be calculated assuming a
35% tax rate. (b) Average total assets will be calculated based on a
12-month rolling basis. (c) Returns exclude the P&L benefit and cost
associated with any Board approved one-time charges.
>> Backlog, NOPAT, and Average Assets will be adjusted to exclude any
divested or acquired businesses.
5
EXHIBIT B
Additional 200_ [ONE YEAR AFTER GRANT YEAR] Shares shall be earned in the
following amounts:
(a) 10% of the Adjusted Shares if 200_ [ONE YEAR AFTER GRANT YEAR] ROA
exceeds 200_ [GRANT YEAR] ROA by __ basis points or more; and/or
(b) 10% of the Adjusted Shares if 200_ [ONE YEAR AFTER GRANT YEAR] Year-End
Backlog exceeds 200_ [GRANT YEAR] Year-End Backlog by __% or more;
PROVIDED, HOWEVER, no Additional 200_ [ONE YEAR AFTER GRANT YEAR]
Shares shall be earned if 200_ [ONE YEAR AFTER GRANT YEAR] ROA is less
than 200_ [GRANT YEAR] ROA OR 200_ [ONE YEAR AFTER GRANT YEAR] Year-End
Backlog is less than 200_ [GRANT YEAR] Year-End Backlog.
Additional 200_ [TWO YEARS AFTER GRANT YEAR] Shares shall be earned in the
following amounts:
(a) 10% of the Adjusted Shares if 200_ [TWO YEARS AFTER GRANT YEAR] ROA
exceeds 200_ [ONE YEAR AFTER GRANT YEAR] ROA by __ basis points or
more; and/or
(b) 10% of the Adjusted Shares if 200_ [TWO YEARS AFTER GRANT YEAR]
Year-End Backlog exceeds 200_ [ONE YEAR AFTER GRANT YEAR] Year-End
Backlog by __% or more;
PROVIDED, HOWEVER, no Additional 200_ [TWO YEARS AFTER GRANT YEAR]
Shares shall be earned if 200_ [GRANT YEAR] ROA is less than 200_ [ONE
YEAR AFTER GRANT YEAR] ROA OR 200_ [TWO YEARS AFTER GRANT YEAR]
Year-End Backlog is less than 200_ [ONE YEAR AFTER GRANT YEAR] Year-End
Backlog.
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