MATRITECH, INC. PERFORMANCE-BASED RESTRICTED STOCK AWARD AGREEMENT
EXHIBIT
10.5
MATRITECH,
INC.
Matritech,
Inc. (the “Company”)
hereby
grants to the undersigned employee (“Employee”) all right, title and interest in
the record and beneficial ownership of the stated number of shares of the
Company’s Common Stock, par value $0.01, subject to the vesting provisions and
other terms and conditions contained in this Restricted Stock Award Agreement
(the “Agreement”)
and in
the Company’s 2002 Stock Option and Incentive Plan (the “Plan”) pursuant to
which this award of restricted stock is made. The terms and conditions attached
hereto are also a part hereof.
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Name
of Employee:
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Date
of this restricted stock award:
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Number
of shares of the Company’s Common Stock subject to this restricted stock
award agreement (“Shares”):
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Performance
triggers for vesting:
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See
Appendix A, attached hereto and incorporated herein by
reference.
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All
vesting is dependent on the continuation of a Business Relationship
with
the Company, as provided herein.
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This
award of restricted stock satisfies in full all commitments that the Company
has
to the Employee with respect to the issuance of stock, stock options or other
equity securities.
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Matritech,
Inc.
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____________________________________
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Signature
of Employee
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By:____________________________
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____________________________________
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Name
of
Officer:
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Street
Address
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Title:
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____________________________________
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City/State/Zip
Code
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Matritech,
Inc.
1. Award
Under Plan.
This
award of restricted stock is made pursuant to and is governed by the Company’s
2002 Stock Option and Incentive Plan (the “Plan”)
and,
unless the context otherwise requires, terms used herein shall have the same
meaning as in the Plan.
2. Payment
of Par Value of Shares.
The
Employee, as a condition to this award of restricted stock, agrees to pay to
the
Company in cash, contemporaneously with the execution of this Agreement, the
par
value of the Shares of restricted stock. The Employee further agrees that the
Company may, in the absence of receipt of cash from the Employee equal to the
par value of the Shares, withhold from the Employee’s wages or other
remuneration the par value amount.
3. Custody
of Restricted Stock.
Certificates representing the Shares of restricted stock awarded to the Employee
shall bear appropriate legends noting the restrictions applicable to the Shares.
The original certificates shall be held by the Company until such time as the
underlying Shares are no longer subject to the risk of forfeiture, retention
obligation and securities law restrictions contained in Sections 4, 5, 6 and
8
hereof. The Employee will also provide the Company with a stock power endorsed
in blank. At such time as the shares are no longer subject to the risk of
forfeiture, retention obligation and securities law restrictions contained
in
Sections 5, 6 and 8 hereof, the Company will deliver to the Employee original
certificates without restrictive legends thereon.
4. Vesting
of Restricted Stock.
All
Shares subject to this Agreement are subject to a substantial risk of forfeiture
until such Shares have vested in the Employee in accordance with the terms
of
this Agreement. The vesting criteria, measurement mechanisms and dates and
other
vesting standards are set forth on Appendix A, which is incorporated herein
by
reference. If any one of the vesting criteria is fully met, and the Employee
has
continuously maintained a Business Relationship (as defined below) with the
Company through the measurement date of the criterion, the portion of the
awarded Shares listed on Appendix A relative to that satisfied criterion shall
vest in the Employee and no longer be subject to forfeiture. “Business
Relationship”
means
service to the Company or its successor in the capacity of an employee, officer,
director or consultant. Notwithstanding the foregoing, the Board may, in its
discretion, determine to accelerate the vesting of all or any portion of the
award.
5. Retention
Obligation; Restrictions after Vesting.
If the
Employee is an executive officer of the Company at the time of vesting of any
portion of the restricted stock award, the Employee is obligated to retain
in
his/her ownership a minimum of fifty (50%) percent of the Shares of Common
Stock
of the Company acquired through this restricted stock award to the extent that
the Employee does not then hold by himself/herself or through members of his/her
immediate family a minimum of [100,000/150,000] shares of Common Stock of the
Company or shares of Common Stock of the Company with a value of [2.5/4.0]
times
the Employee’s base salary, whichever is the lower standard; provided, however,
that there shall be excluded from the retention obligation any Shares the
Employee sells (or, in the discretion of the Company, tenders
back
to
the Company) to pay withholding taxes due on account of the lapse of
restrictions on the Shares of restricted stock. Certificates representing the
shares which remain subject to the retention obligation shall continue to be
held by the Company until they are no longer subject to the retention
obligation.
6. Termination
of Business Relationship.
Except
as set forth in Section 7 hereof, if the Employee’s Business Relationship with
the Company ceases, voluntarily or involuntarily, with or without cause, prior
to the vesting of any portion of this award, no further portions of this award
will vest and the Employee shall forfeit all Shares subject to this restricted
stock award not vested at the date of such termination of the Employee’s
Business Relationship with the Company. Any determination under this Agreement
as to the status of a Business Relationship or other matters referred to above
shall be made in good faith by the Board of Directors of the Company.
7. Death;
Disability.
(a) Death
or Disability.
If the
Employee ceases to maintain a Business Relationship with the Company by reason
of his/her disability or death, the Shares of restricted stock subject to this
Agreement shall vest in the Employee (or in his/her estate in the event of
his/her death) and the restrictions (except those contained in Section 8 hereof)
and substantial risk of forfeiture shall lapse, according to the following
schedule:
(i) if
the
death or disability occurs during the first year after the date of this
Agreement, 30% of the Shares will vest; and
(ii) if
the
death or disability occurs during the second year after the date of this
Agreement, 100% of the Shares will vest.
For
purposes hereof, “disability”
means
“permanent
and total disability”
as
defined in Section 22(e)(3) of the Internal Revenue Code.
(b) Retirement
with Consent of the Company.
If the
Employee retires from his/her Business Relationship with the Company with the
consent of the Company after the Employee has reached age 62, the shares of
restricted stock subject to this Agreement shall vest in the Employee and the
restrictions (except those contained in Section 8 hereof) and substantial risk
of forfeiture shall lapse, according to the following schedule:
(i) if
the
retirement occurs during the first year after the date of this Agreement, 30%
of
the Shares will vest; and
(ii) if
the
retirement occurs during the second year after the date of this Agreement,
100%
of the Shares will vest.
(c) Change
of Control. In
the
event of an Acquisition (as defined herein) prior to the full vesting of this
award, the vesting of the award shall be accelerated and the Shares of the
restricted stock subject to this Agreement shall vest in the Employee, and
the
restrictions (except those contained in Section 8 hereof) and substantial risk
of forfeiture shall lapse, at the moment immediately preceding the consummation
of the Acquisition, according to the following schedule:
(i) if
the
Acquisition occurs during the first year after the date of this Agreement,
30%
of the Shares will vest; and
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(ii) if
the
Acquisition occurs during the second year after the date of this Agreement,
100%
of the Shares will vest.
Notwithstanding
the foregoing, the Board of Directors of the Company may, in its discretion,
fully vest all the Shares in the event of an Acquisition regardless of the
date
of the Acquisition. For purposes of this Plan, an “Acquisition”
shall
mean: (x) the sale of the Company by merger in which the shareholders of the
Company in their capacity as such no longer own a majority of the outstanding
equity securities of the Company (or its successor); or (y) any sale of all
or
substantially all of the assets or capital stock of the Company (other than
in a
spin-off or similar transaction) or (z) any other acquisition of the business
of
the Company, as determined by the Board.
8.
Securities
Laws Restrictions on Resale.
Until
registered under the Securities Act of 1933, as amended, or any successor
statute (the “Securities
Act”),
the
Shares will be illiquid and will be deemed to be “restricted securities” for
purposes of the Securities Act. Accordingly, such shares must be sold in
compliance with the registration requirements of the Securities Act or an
exemption therefrom and may need to be held indefinitely. Unless the Shares
have
been registered under the Securities Act, each certificate evidencing any of
the
Shares shall bear a restrictive legend specified by the Company.
9.
Ownership
Rights.
Subject
to the restrictions set forth herein, the Employee is entitled to all voting
and
ownership rights applicable to the Shares, including the right to receive any
dividends that may be paid on the shares, whether or not vested. Each dividend
payment will be made no later than the end of the calendar year in which the
dividends are paid to shareholders of that class of stock or, if later, the
15th
day of
the third month following the date of the dividends are paid to shareholders
of
that class of stock.
10. Award
Not Transferable.
This
award is not transferable or assignable except by will or by the laws of descent
and distribution.
11. No
Obligation to Continue Business Relationship.
Neither
the Plan, this Agreement, nor the restricted stock award imposes any obligation
on the Company to continue the Employee in employment or other Business
Relationship.
12. No
Severance or Termination Rights.
Awards
do not form part of an Employee’s contract of employment and do not entitle an
Employee to any benefit other than that granted under this Agreement. Any
benefits granted under this Agreement are not part of an Employee’s ordinary
salary, and shall not be considered as part of such salary for pension purposes
or in the event of severance, redundancy or resignation. If Employee’s
employment is terminated for whatever reason the Employee agrees that he/she
shall not be entitled by way of damages for breach of contract, dismissal or
compensation for loss of office or otherwise to any sum, shares or other
benefits to compensate for the loss or diminution in value of any actual or
prospective right, benefits or expectation under or in relation to this
Agreement.
13. Adjustments.
This
award is subject to adjustment, as is expressly provided in the Plan, with
respect to certain changes in the capitalization of the Company.
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14. Withholding
Taxes.
If the
Company in its discretion determines that it is obligated to withhold any tax
in
connection with the vesting of any portion of the Shares or the release of
any
restrictions applicable to the Shares, the Employee hereby agrees that the
Company may withhold from the Employee’s wages or other remuneration the
appropriate amount of tax. At the discretion of the Company, the amount required
to be withheld may be withheld in cash from such wages or other remuneration
or
in kind from the Common Stock or other property otherwise deliverable to the
Employee on vesting or lapse of restrictions on the Shares. The Employee further
agrees that, if the Company does not withhold an amount from the Employee’s
wages or other remuneration sufficient to satisfy the withholding obligation
of
the Company, the Employee will make reimbursement on demand, in cash, for the
amount underwithheld. The Employee further agrees to indemnify the Company
for
the Employee’s portion of any social insurance obligations or taxes arising
under any foreign law with respect to the grant of this restricted stock award,
the vesting of the restricted stock or the sale or other disposition of the
restricted stock.
15. Provision
of Documentation to Employee.
By
signing this Agreement the Employee acknowledges receipt of a copy of this
Agreement and a copy of the Plan.
16. Transfer
of Data Waiver.
By
signing this Agreement the Employee acknowledges that in order to perform its
requirements under this Award, the Company may process personal data and/or
sensitive personal data about the Employee. Such data include, but are not
limited to, the information provided in this award package and any changes
thereto, other appropriate personal and financial data about the Employee,
and
information about the Employee’s participation in the Plan and shares acquired
under the Plan from time to time. The Employee hereby gives explicit consent
to
the Company to process any such personal data and/or sensitive personal data.
The Employee also gives explicit consent to the Company to transfer any such
personal data and/or sensitive personal data outside the country in which the
Employee works and to the United States. The legal persons for whom the personal
data are intended include the Company and any of its subsidiaries, the outside
plan administrator as selected by the Company from time to time, and any other
person that the Company may find in its administration of the Plan appropriate.
By signing this Agreement, the Employee acknowledges that s/he has been informed
of his/her right of access and correction to personal data by contacting the
local Human Resources Representative. The Employee further acknowledges that
the
transfer of the information outlined here is important to the administration
of
the Plan and failure to consent to the transmission of such information may
limit or prohibit participation under the Plan.
17. Miscellaneous.
(a) Notices.
All
notices hereunder shall be in writing and shall be deemed given when sent by
mail, if to the Employee, to the address set forth above or at the address
shown
on the records of the Company, and if to the Company, to the Company’s principal
executive offices, attention of the Corporate Secretary.
(b) Entire
Agreement; Modification.
This
Agreement constitutes the entire agreement between the parties relative to
the
subject matter hereof, and supersedes all proposals, written or oral, and all
other communications between the parties relating to the subject matter of
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this
Agreement. This Agreement may be modified, amended or rescinded only by a
written agreement executed by both parties.
(c) Fractional
Shares.
If,
because of the adjustment provisions contained in the Plan, the number of shares
subject to this award includes a fraction of a share, such fraction shall be
rounded down.
(d) Issuances
of Securities; Changes in Capital Structure.
Except
as expressly provided herein or in the Plan, no issuance by the Company of
shares of stock of any class, or securities convertible into shares of stock
of
any class, shall affect, and no adjustment by reason thereof shall be made
with
respect to, the number of Shares subject to this award. If there shall be any
change in the Common Stock of the Company through merger, consolidation,
reorganization, recapitalization, stock dividend, stock split, combination
or
exchange of shares, spin-off, split-up or other similar change in capitalization
or event, the restrictions contained in this Agreement shall apply with equal
force to additional and/or substitute securities, if any, received by the
Employee in exchange for, or by virtue of his/her ownership of, Shares, except
as otherwise determined by the Board.
(e) Severability.
The
invalidity, illegality or unenforceability of any provision of this Agreement
shall in no way affect the validity, legality or enforceability of any other
provision.
(f) Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, subject to the limitations set
forth in Section 10 hereof.
(g) Governing
Law.
This
Agreement shall be governed by and interpreted in accordance with the laws
of
the State of Delaware, without giving effect to the principles of the conflicts
of laws thereof.
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Appendix
A
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