The Hain Celestial Group, Inc. Restricted Stock Agreement
Exhibit 10.5
The Hain Celestial Group, Inc.
Restricted Stock Agreement
Restricted Stock Agreement
The Hain Celestial Group, Inc. has granted to the Participant named in the Notice of Grant of
Restricted Stock (the “Notice”) to which this Restricted Stock Agreement (this “Agreement”) is
attached an Award of Shares subject to the terms and conditions set forth in the Notice and this
Agreement. This Award shall constitute a Restricted Share award under the Plan. The Company
granted the Award pursuant to the Company’s Amended and Restated 2002 Long Term Incentive and Stock
Award Plan (the “Plan”), as amended to the Date of Grant, the provisions of which are incorporated
herein by reference. By signing the Notice, the Participant: (a) acknowledges receipt of and
represents that the Participant has read and is familiar with the Notice, this Agreement, and the
Plan, (b) accepts the Award subject to all of the terms and conditions of the Notice, this
Agreement and the Plan and (c) agrees to accept as binding, conclusive and final all decisions or
interpretations of the Committee upon any questions arising under the Notice, this Agreement or the
Plan.
1. Definitions and Construction. |
1.1 Definitions. Unless otherwise defined herein, capitalized terms shall have the meanings
assigned to such terms in the Notice or the Plan.
1.2 Construction. Captions and titles contained herein are for convenience only and shall not
affect the meaning or interpretation of any provision of this Agreement. Except when otherwise
indicated by the context, the singular shall include the plural and the plural shall include the
singular. Use of the term “or” is not intended to be exclusive, unless the context clearly
requires otherwise.
2. Administration. |
All questions of interpretation concerning the Notice and this Agreement shall be determined
by the Committee. All determinations by the Committee shall be final and binding upon all persons
having an interest in the Award. The Chief Executive Officer or Chief Financial Officer shall have
the authority to act on behalf of the Company with respect to any matter, right, obligation, or
election which is the responsibility of or which is allocated to the Company herein.
3. The Award. |
3.1 Grant and Issuance of Shares. Upon the later of (a) the Date of Grant and (b) the date
the Notice shall have been fully executed, the Participant shall acquire and the Company shall
issue, subject to the provisions of this Agreement, a number of Shares equal to the Total Number of
Shares set forth in the Notice. As a condition to the issuance of the Shares, the Participant
shall execute and deliver to the Company along with the Notice the Assignment Separate from
Certificate duly endorsed (with date and number of shares blank) in the form attached to the
Notice.
3.2 No Monetary Payment Required. The Participant is not required to make any monetary
payment (other than to satisfy applicable tax withholding, if any, with respect to the issuance or
vesting of the Shares) as a condition to receiving the Shares, the consideration for which shall be
past services actually rendered or future services to be rendered to the Company or for its
benefit. Notwithstanding the foregoing, if required by applicable law, the Participant shall
furnish consideration in the form of cash or past services rendered to a the Company or for its
benefit having a value not less than the par value of the Shares issued pursuant to the Award.
3.3 Beneficial Ownership of Shares; Certificate Registration. The Participant hereby
authorizes the Company, in its sole discretion, to deposit the Shares with the Company’s transfer
agent, including any successor transfer agent, to be held in book entry form during the term of the
Escrow pursuant to Section 5. Furthermore, the Participant hereby authorizes the Company, in its
sole discretion, to deposit, following the term of such Escrow, for the benefit of the Participant
with any broker with which the Participant has an account relationship of which the Company has
notice any or all Shares which are no longer subject to such Escrow. Except as provided by the
foregoing, a certificate for the Shares shall be registered in the name of the Participant, or, if
applicable, in the names of the heirs of the Participant.
3.4 Issuance of Shares in Compliance with Law. The issuance of the Shares shall be subject to
compliance with all applicable requirements of federal, state or foreign law with respect to such
securities. No Shares shall be issued hereunder if their issuance would constitute a violation of
any applicable federal, state or foreign securities laws or other law or regulations or the
requirements of any stock exchange or market system upon which the Shares may then be listed. The
inability of the Company to obtain from any regulatory body having jurisdiction the authority, if
any, deemed by the Company’s legal counsel to be necessary to the lawful issuance of any Shares
shall relieve the Company of any liability in respect of the failure to issue such Shares as to
which such requisite authority shall not have been obtained. As a condition to the issuance of the
Shares, the Company may require the Participant to satisfy any qualifications that may be necessary
or appropriate, to evidence compliance with any applicable law or regulation and to make any
representation or warranty with respect thereto as may be requested by the Company.
4. Vesting of Shares. |
The Shares shall become Vested Shares as provided in the Notice. In addition, in the event
that: one or more of the following events occurs (a) any merger, consolidation, recapitalization,
reorganization, acquisition or other business combination involving the Company, other than (i) any
transaction in which the Company is the surviving entity and the holders of the outstanding voting
securities of the Company immediately prior to the transaction receive or retain securities
representing more than 50% of the voting power of all of the securities of the Company outstanding
immediately after the transaction (with each holder’s voting power relative to other holders
remaining substantially unchanged) or (ii) any transaction the purpose of which is to change the
jurisdiction of organization of the Company and in which outstanding Awards under the Plan are
assumed by the surviving entity, as determined by the Committee; (b) any person, group or entity is
or becomes the beneficial owner, directly or indirectly, of 50% or more of the voting power of all
of the then-outstanding securities of the
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Company; or (c) the sale, transfer or other disposition of all or substantially all of the assets
of the Company, or the approval by the stockholders of the Company of a plan of complete
liquidation, then any portion of the Award which has not yet vested shall, immediately prior to the
record date for distribution with respect to such event, or if there is no such record date, then
immediately prior to such event, become immediately vested.
5. Escrow. |
5.1 Appointment of Agent. To ensure that Shares subject to this Award are not transferred to
the Participant until they become Vested Shares, the Participant and the Company hereby appoint the
Secretary of the Company, or any other person designated by the Company, as their agent and as
attorney-in-fact for the Participant (the “Agent”) to hold any and all Shares and to take all
appropriate actions to enforce the Company’s rights under section 10 of this Agreement. The
Participant understands that appointment of the Agent is a material inducement to make this
Agreement and that such appointment is coupled with an interest and is irrevocable. The Agent
shall not be personally liable for any act the Agent may do or omit to do hereunder as escrow
agent, agent for the Company, or attorney in fact for the Participant while acting in good faith
and in the exercise of the Agent’s own good judgment, and any act done or omitted by the Agent
pursuant to the advice of the Agent’s own attorneys shall be conclusive evidence of such good
faith. The Agent may rely upon any letter, notice or other document executed by any signature
purporting to be genuine and may resign at any time.
5.2 Establishment of Escrow. The Participant authorizes the Company to deposit the Shares
with the Company’s transfer agent to be held in book entry form, as provided in Section 3.3, and
the Participant agrees to deliver to and deposit with the Agent each certificate, if any,
evidencing the Shares and an Assignment Separate from Certificate with respect to such book entry
shares and each such certificate duly endorsed (with date and number of Shares blank) in the form
attached to the Notice, to be held by the Agent under the terms and conditions of this Section 5
(the “Escrow”). Upon the occurrence of a change in the capital structure of the Company, as
described in Section 7, in the character or amount of any outstanding stock of the corporation the
stock of which is subject to the provisions of this Agreement, any and all new, substituted or
additional securities or other property to which the Participant is entitled by reason of his or
her ownership of the Shares that remain subject to the Company Reacquisition Right shall be
immediately subject to the Escrow to the same extent as the Shares immediately before such event.
The Company shall bear the expenses of the Escrow.
5.3 Delivery of Shares to Participant. The Escrow shall continue with respect to any Shares
for so long as such Shares remain subject to the Company Reacquisition Right. Upon termination of
the Company Reacquisition Right with respect to Shares, the Company shall so notify the Agent and
direct the Agent to deliver such number of Shares to the Participant. As soon as practicable after
receipt of such notice, the Agent shall cause to be delivered to the Participant the Shares
specified by such notice, and the Escrow shall terminate with respect to such Shares.
6. Tax Matters. |
6.1 Tax Withholding.
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(a) In General. The Company shall have no obligation to deliver the Shares or to release any
Shares from the Escrow established pursuant to Section 5 until the federal, state, local and
foreign tax withholding obligations of the Company, if any, which arise in connection with the
Award, including, without limitation, obligations arising upon (a) the transfer of Shares to the
Participant, (b) the lapsing of any restriction with respect to any Shares, (c) the filing of an
election to recognize tax liability, or (d) the transfer by the Participant of any Shares have been
satisfied by the Participant. In general, withholding obligations will apply to any Eligible
Person who is an Employee of the Company or a Subsidiary on the Date of Grant.
(b) Withholding in Shares. The Participant shall satisfy all such withholding obligations by
the Company withholding a sufficient number of whole Vested Shares otherwise deliverable to the
Participant with a fair market value in an amount of such tax withholding obligations determined
utilizing the applicable minimum statutory withholding rates.
6.2 Election Under Section 83(b) of the Code.
(a) The Participant understands that Section 83 of the Code taxes as ordinary income the
difference between the amount paid for the Shares, if anything, and the fair market value of the
Shares as of the date on which the Shares are “substantially vested,” within the meaning of Section
83. In this context, “substantially vested” means that the right of the Company to reacquire the
Shares pursuant to the Company Reacquisition Right has lapsed. The Participant understands that he
or she may elect to have his or her taxable income determined at the time he or she acquires the
Shares rather than when and as the Company Reacquisition Right lapses by filing an election under
Section 83(b) of the Code with the Internal Revenue Service no later than thirty (30) days after
the date of acquisition of the Shares. The Participant understands that failure to make a timely
filing under Section 83(b) will result in his or her recognition of ordinary income, as the Company
Reacquisition Right lapses, on the difference between the purchase price, if anything, and the fair
market value of the Shares at the time such restrictions lapse. The Participant further
understands, however, that if Shares with respect to which an election under Section 83(b) has been
made are forfeited to the Company pursuant to its Company Reacquisition Right, such forfeiture will
be treated as a sale on which there is realized a loss equal to the excess (if any) of the amount
paid (if any) by the Participant for the forfeited Shares over the amount realized (if any) upon
their forfeiture. If the Participant has paid nothing for the forfeited Shares and has received no
payment upon their forfeiture, the Participant understands that he or she will be unable to
recognize any loss on the forfeiture of the Shares even though the Participant incurred a tax
liability by making an election under Section 83(b).
(b) The Participant understands that he or she should consult with his or her tax advisor
regarding the advisability of filing with the Internal Revenue Service an election under Section
83(b) of the Code, which must be filed no later than thirty (30) days after the date of the
acquisition of the Shares pursuant to this Agreement. Failure to file an election under Section
83(b), if appropriate, may result in adverse tax consequences to the Participant. The Participant
acknowledges that he or she has been advised to consult with a tax advisor regarding the tax
consequences to the Participant of the acquisition of Shares hereunder. ANY ELECTION UNDER SECTION
83(b) THE PARTICIPANT WISHES TO MAKE MUST BE FILED NO LATER THAN 30 DAYS AFTER THE DATE ON WHICH
THE PARTICIPANT
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ACQUIRES THE SHARES. THIS TIME PERIOD CANNOT BE EXTENDED. THE PARTICIPANT ACKNOWLEDGES THAT
TIMELY FILING OF A SECTION 83(b) ELECTION IS THE PARTICIPANT’S SOLE RESPONSIBILITY, EVEN IF THE
PARTICIPANT REQUESTS THE COMPANY OR ITS REPRESENTATIVE TO FILE SUCH ELECTION ON HIS OR HER BEHALF.
(c) The Participant will notify the Company in writing if the Participant files an election
pursuant to Section 83(b) of the Code. The Company intends, in the event it does not receive from
the Participant evidence of such filing, to claim a tax deduction for any amount which would
otherwise be taxable to the Participant in the absence of such an election.
7. Adjustments for Changes in Capital Structure. |
Subject to any required action by the stockholders of the Company, in the event of any change
in the Shares effected without receipt of consideration by the Company, whether through merger,
consolidation, reorganization, reincorporation, recapitalization, reclassification, stock dividend,
stock split, reverse stock split, split-up, split-off, spin-off, combination of shares, exchange of
shares, or similar change in the capital structure of the Company, or in the event of payment of a
dividend or distribution to the stockholders of the Company in a form other than Shares (excepting
normal cash dividends) that has a material effect on the fair market value of Shares, appropriate
adjustments shall be made in the number and kind of shares subject to the Award, in order to
prevent dilution or enlargement of the Participant’s rights under the Award. For purposes of the
foregoing, conversion of any convertible securities of the Company shall not be treated as
“effected without receipt of consideration by the Company.” Any fractional share resulting from an
adjustment pursuant to this Section shall be rounded down to the nearest whole number. Such
adjustments shall be determined by the Committee, and its determination shall be final, binding and
conclusive.
8. Rights as a Stockholder, Director, Employee or Consultant. |
The Participant shall have no rights as a stockholder with respect to any Shares subject to
the Award until the date of the issuance the Shares (as evidenced by the appropriate entry on the
books of the Company or of a duly authorized transfer agent of the Company). No adjustment shall
be made for dividends, distributions or other rights for which the record date is prior to the date
the Shares are issued, except as provided in Section 7. Subject the provisions of this Agreement,
the Participant shall exercise all rights and privileges of a stockholder of the Company with
respect to Shares deposited in the Escrow pursuant to Section 5. If the Participant is an
Employee, the Participant understands and acknowledges that, except as otherwise provided in a
separate, written employment agreement between the Company and the Participant, the Participant’s
employment is “at will” and is for no specified term. Nothing in this Agreement shall confer upon
the Participant any right to continue in the service of the Company or any Subsidiary or interfere
in any way with any right of such entities to terminate the Participant’s service at any time.
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9. Legends. |
The Company may at any time place legends referencing the Company Reacquisition Right and any
applicable federal, state or foreign securities law restrictions on all certificates representing
the Shares. The Participant shall, at the request of the Company, promptly present to the Company
any and all certificates representing the Shares in the possession of the Participant in order to
carry out the provisions of this Section. Unless otherwise specified by the Company, legends
placed on such certificates may include, but shall not be limited to, the following:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS SET FORTH IN AN
AGREEMENT BETWEEN THIS CORPORATION AND THE REGISTERED HOLDER, OR HIS PREDECESSOR IN
INTEREST, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF THIS CORPORATION.”
10. Transfers in Violation of Agreement. |
No Shares may be sold, exchanged, transferred, assigned, pledged, hypothecated or otherwise
disposed of, including by operation of law, in any manner which violates any of the provisions of
this Agreement until the date on which such shares become Vested Shares, and any such attempted
disposition shall be void. The Company shall not be required (a) to transfer on its books any
Shares which will have been transferred in violation of any of the provisions set forth in this
Agreement or (b) to treat as owner of such Shares or to accord the right to vote as such owner or
to pay dividends to any transferee to whom such Shares will have been so transferred. In order to
enforce its rights under this Section, the Company shall be authorized to give a stop transfer
instruction with respect to the Shares to the Company’s transfer agent.
11. Miscellaneous Provisions. |
11.1 Termination or Amendment. The Committee may terminate or amend the Plan or this
Agreement at any time; provided, however, that no such termination or amendment may adversely
affect the Participant’s rights under this Agreement without the consent of the Participant unless
such termination or amendment is necessary to comply with applicable law or government regulation.
No amendment or addition to this Agreement shall be effective unless in writing.
11.2 Nontransferability of the Award. The right to acquire Shares pursuant to the Award shall
not be subject in any manner to anticipation, alienation, sale, exchange, transfer, assignment,
pledge, encumbrance, or garnishment by creditors of the Participant or the Participant’s
beneficiary, except transfer by will or by the laws of descent and distribution. All rights with
respect to the Award shall be exercisable during the Participant’s lifetime only by the Participant
or the Participant’s guardian or legal representative.
11.3 Further Instruments. The parties hereto agree to execute such further instruments and to
take such further action as may reasonably be necessary to carry out the intent of this Agreement.
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11.4 Binding Effect. This Agreement shall inure to the benefit of the successors and assigns
of the Company and, subject to the restrictions on transfer set forth herein, be binding upon the
Participant and the Participant’s heirs, executors, administrators, successors and assigns.
11.5 Delivery of Documents and Notices. Any document relating to participation in the Plan or
any notice required or permitted hereunder shall be given in writing and shall be deemed
effectively given (except to the extent that this Agreement provides for effectiveness only upon
actual receipt of such notice) upon personal delivery, electronic delivery at the e-mail address,
if any, provided for the Participant by the Company, or upon deposit in the U.S. Post Office or
foreign postal service, by registered or certified mail, or with a nationally recognized overnight
courier service, with postage and fees prepaid, addressed to the other party at the address shown
below that party’s signature to the Notice or at such other address as such party may designate in
writing from time to time to the other party.
(a) Description of Electronic Delivery. The Plan documents, which may include but do not
necessarily include: the Plan, the Notice, this Agreement, the Plan’s prospectus, and any reports
of the Company provided generally to the Company’s stockholders, may be delivered to the
Participant electronically. In addition, the parties may deliver electronically any notices called
for in connection with the Escrow and the Participant may deliver electronically the Notice to the
Company or to such third party involved in administering the Plan as the Company may designate from
time to time. Such means of electronic delivery may include but do not necessarily include the
delivery of a link to a Company intranet or the internet site of a third party involved in
administering the Plan, the delivery of the document via e-mail or such other means of electronic
delivery specified by the Company.
(b) Consent to Electronic Delivery. The Participant acknowledges that the Participant has
read Section 11.5(a) of this Agreement and consents to the electronic delivery of the Plan
documents, the Notice and notices in connection with the Escrow, as described in Section 11.5(a).
The Participant acknowledges that he or she may receive from the Company a paper copy of any
documents delivered electronically at no cost to the Participant by contacting the Company by
telephone or in writing. The Participant further acknowledges that the Participant will be
provided with a paper copy of any documents if the attempted electronic delivery of such documents
fails. Similarly, the Participant understands that the Participant must provide the Company or any
designated third party administrator with a paper copy of any documents if the attempted electronic
delivery of such documents fails. The Participant may revoke his or her consent to the electronic
delivery of documents described in Section 11.5(a) or may change the electronic mail address to
which such documents are to be delivered (if Participant has provided an electronic mail address)
at any time by notifying the Company of such revoked consent or revised e-mail address by
telephone, postal service or electronic mail. Finally, the Participant understands that he or she
is not required to consent to electronic delivery of documents described in Section 11.5(a).
11.6 Integrated Agreement. The Notice, this Agreement and the Plan shall constitute the
entire understanding and agreement of the Participant and the Company with respect to the subject
matter contained herein or therein and supersedes any prior agreements, understandings,
restrictions, representations, or warranties between the Participant and the
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Company with respect to such subject matter other than those as set forth or provided for
herein or therein. To the extent contemplated herein or therein, the provisions of the Notice and
the Agreement shall survive any settlement of the Award and shall remain in full force and effect.
11.7 Applicable Law. This Agreement shall be governed by the laws of the State of New York as
such laws are applied to agreements between New York residents entered into and to be performed
entirely within the State of New York.
11.8 Counterparts. The Notice may be executed in counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same instrument.
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