RESTRICTED STOCK AWARD PURSUANT TO THE THERAGENICS CORPORATION [1997] [2000] STOCK INCENTIVE PLAN
Exhibit
10.1
PURSUANT
TO THE THERAGENICS CORPORATION
[1997]
[2000] STOCK INCENTIVE PLAN
THIS
AGREEMENT (sometimes referred to as this “Award”) is made as of the Grant Date,
by Theragenics Corporation (the “Company”) to _____________________________ (the
“Recipient”) subject to acceptance by the Recipient.
Upon
and
subject to the Terms and Conditions attached hereto and incorporated herein
by
reference as part of this Agreement, the Company hereby awards as of the Grant
Date to the Recipient the Restricted Shares (the “Restricted Stock Grant”).
Underlined and capitalized terms in items A through D below shall have the
meanings there ascribed to them.
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X.
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Xxxxx
Date:
__________.
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B.
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Plan
(under which Restricted Stock Grant is granted):
Theragenics Corporation [1997]
[2000]
Stock Incentive Plan.
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C.
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Restricted
Shares:
______________ shares of the Company’s common stock (“Common Stock”),
subject to adjustment as provided in the attached Terms and
Conditions.
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D.
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Vesting
Schedule:
The Restricted Shares shall vest in accordance with Exhibit
1
hereto. The Restricted Shares which have become vested pursuant to
the
Vesting Schedule are herein referred to as the “Vested Restricted
Shares.”
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IN
WITNESS WHEREOF, the Company and the Recipient have executed this Agreement
as
of the Grant Date set forth above.
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RECIPIENT
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THERAGENICS
CORPORATION
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By:____________________________
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| ________________________________ | |
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[Signature]
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Title:___________________________
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TERMS
AND CONDITIONS TO THE
RESTRICTED
STOCK AGREEMENT
PURSUANT
TO THE THERAGENICS CORPORATION
[1997]
[2000] STOCK INCENTIVE PLAN
1.
Restricted
Shares Held by the Share Custodian.
The
Recipient hereby authorizes and directs the Company to deliver any share
certificate issued by the Company to evidence Restricted Shares to the Secretary
of the Company or such other officer of the Company as may be designated by
the
Committee (the “Share Custodian”) to be held by the Share Custodian until the
Restricted Shares become Vested Restricted Shares in accordance with the Vesting
Schedule. When the Restricted Shares become Vested Restricted Shares, the Share
Custodian shall deliver the Restricted Shares to the Recipient. In the event
that the Recipient forfeits any of the Restricted Shares, and the number of
Vested Restricted Shares includes a fraction of a share, the Share Custodian
shall not be required to deliver the fractional share, and the Company may
pay
the Recipient the amount determined by the Company to be the estimated fair
market value therefor. The Recipient hereby irrevocably appoints the Share
Custodian and any successor thereto, as the true and lawful attorney-in-fact
of
the Recipient with full power and authority to execute any stock transfer power
or other instrument necessary to transfer the Restricted Shares to the Company
in accordance with this Award, in the name, place, and stead of the Recipient.
The term of such appointment shall commence on the date of the Restricted Stock
Grant and shall continue until the Restricted Shares are delivered to the
Recipient as provided above. In the event the number of shares of Common Stock
is increased or reduced by a change in the par value, split-up, stock split,
reverse stock split, reclassification, merger, reorganization, consolidation,
or
otherwise, the Recipient agrees that any certificate representing shares of
Common Stock or other securities of the Company issued as a result of any of
the
foregoing shall be delivered to the Share Custodian and shall be subject to
all
of the provisions of this Award as if initially granted thereunder. To effect
the provisions of this Section, the Recipient shall complete an irrevocable
stock power in favor of the Share Custodian in the form attached hereto as
Exhibit
2.
2.
Rights
of a Shareholder.
During
the period that the Share Custodian holds the shares of Common Stock subject
to
Section 1, the Recipient shall be entitled to all rights applicable to shares
of
Common Stock not so held, except as otherwise provided in this award, including
the right to receive dividends paid on Common Stock notwithstanding that all
or
some of the Restricted Shares may not be Vested Restricted Shares.
3.
Withholding.
To the
extent required by law, the Company shall have the right to require the
Recipient to remit to the Company an amount sufficient to satisfy any federal,
state and local withholding tax requirement, if any, upon the earlier of the
vesting of the Restricted Shares or the effective date of an election pursuant
to Section 83(b) of the Internal Revenue Code with respect to such Restricted
Shares. The Recipient must pay the withholding tax (i) in cash; (ii) by
certified check; or (iii) by tendering shares of Common Stock which have been
owned by the Recipient for at least six (6) months prior to the date of exercise
having a Fair Market Value equal to the withholding obligation.
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4. Restrictions
on Transfer of Restricted Shares.
Except
for the transfer of any Restricted Shares by bequest or inheritance, the
Recipient shall not have the right to make or permit to exist any transfer
or
hypothecation, whether outright or as security, with or without consideration,
voluntary or involuntary, of all or any part of any right, title or interest
in
or to any unvested Restricted Shares. Any such disposition not made in
accordance with this Award shall be deemed null and void. Any permitted
transferee under this Section shall be bound by the terms of this
Award.
5.
Additional
Restrictions on Transfer.
Certificates evidencing the Restricted Shares shall have noted conspicuously
on
the certificate a legend required under applicable securities laws or otherwise
determined by the Company to be appropriate, such as:
Transfer
is restricted
The
securities evidenced by this certificate are subject to restrictions on transfer
and forfeiture provisions which also apply to the transferee as set forth in
a
restricted stock agreement dated ________, a copy of which is available from
the
Company.
6.
Change
in Capitalization.
(a)
The
number and kind of unvested Restricted Shares shall be proportionately adjusted
for any increase or decrease in the number of issued shares of Common Stock
resulting from a subdivision or combination of shares or the payment of a stock
dividend in shares of Common Stock to holders of outstanding shares of Common
Stock or any other increase or decrease in the number of shares of Common Stock
outstanding is effected without receipt of consideration by the Company. No
fractional shares shall be issued in making such adjustment.
(b)
In
the
event of a merger, consolidation, extraordinary dividend, spin-off, sale of
substantially all of the Company’s assets or other material change in the
capital structure of the Company, or a tender offer for shares of Common Stock,
or other reorganization of the Company, the Committee shall take such action
to
make such adjustments with respect to the unvested Restricted Shares, in its
sole discretion, determines in good faith is necessary or appropriate,
including, without limitation, adjusting the number and class of securities
subject to the unvested portion of the Award, substituting cash, other
securities, or other property to replace the unvested portion of the Award,
or
removing of restrictions on unvested Restricted Shares.
(c)
All
determinations and adjustments made by the Committee pursuant to this Section
will be final and binding on the Recipient. Any action taken by the Committee
need not treat all recipients of awards under the Plan equally.
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(d) The
existence of the Plan and the Restricted Stock Grant shall not affect the right
or power of the Company to make or authorize any adjustment, reclassification,
reorganization or other change in its capital or business structure, any merger
or consolidation of the Company, any issue of debt or equity securities having
preferences or priorities as to the Common Stock or the rights thereof, the
dissolution or liquidation of the Company, any sale or transfer of all or part
of its business or assets, or any other corporate act or
proceeding.
7.
Governing
Laws.
This
Award shall be construed, administered and enforced according to the laws of
the
State of Georgia; provided, however, no Restricted Shares shall be issued
except, in the reasonable judgment of the Committee, in compliance with
exemptions under applicable state securities laws of the state in which
Recipient resides, and/or any other applicable securities laws.
8.
Successors.
This
Award shall be binding upon and inure to the benefit of the heirs, legal
representatives, successors, and permitted assigns of the parties.
9.
Notice.
Except
as otherwise specified herein, all notices and other communications under this
Award shall be in writing and shall be deemed to have been given if personally
delivered or if sent by registered or certified United States mail, return
receipt requested, postage prepaid, addressed to the proposed recipient at
the
last known address of the recipient. Any party may designate any other address
to which notices shall be sent by giving notice of the address to the other
parties in the same manner as provided herein.
10.
Severability.
In the
event that any one or more of the provisions or portion thereof contained in
this Award shall for any reason be held to be invalid, illegal, or unenforceable
in any respect, the same shall not invalidate or otherwise affect any other
provisions of this Award, and this Award shall be construed as if the invalid,
illegal or unenforceable provision or portion thereof had never been contained
herein.
11.
Entire
Agreement.
Subject
to the terms and conditions of the Plan, this Award expresses the entire
understanding and agreement of the parties with respect to the subject matter.
12.
Specific
Performance.
In the
event of any actual or threatened default in, or breach of, any of the terms,
conditions and provisions of this Award, the party or parties who are thereby
aggrieved shall have the right to specific performance and injunction in
addition to any and all other rights and remedies at law or in equity, and
all
such rights and remedies shall be cumulative.
13.
No
Right to Continued Retention.
Neither
the establishment of the Plan nor the award of Restricted Shares hereunder
shall
be construed as giving Recipient the right to continued employment with the
Company or an Affiliate.
14.
Headings
and Capitalized Terms.
Paragraph headings used herein are for convenience of reference only and shall
not be considered in construing this Award. Capitalized
terms used, but not defined, in this Award shall be given the meaning ascribed
to them in the Plan.
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15.
Definitions.
As used
in these Terms and Conditions and this Award:
“Change
in Control”
means
any one of the following events which occurs following the Grant
Date:
(1)
the
acquisition by any individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)) (a “Person”) of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of voting securities of the
corporation where such acquisition causes such person to own thirty-five percent
(35%) or more of the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of
directors (the “Outstanding Company Voting Securities”); provided, however, that
for purposes of this Subsection (1), the following acquisitions shall not be
deemed to result in a Change in Control: (i) any acquisition directly from
the
Company, (ii) any acquisition by the Company, (iii) any acquisition
by
any employee benefit plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company or (iv) any
acquisition by any corporation pursuant to a transaction that complies with
clauses (i), (ii) and (iii) of Subsection (3) below; and provided, further,
that
if any Person’s beneficial ownership of the Outstanding Company Voting
Securities reaches or exceeds thirty-five percent (35%) as a result of a
transaction described in clause (i) or (ii) above, and such Person subsequently
acquires beneficial ownership of additional voting securities of the Company,
such subsequent acquisition shall be treated as an acquisition that causes
such
Person to own thirty-five percent (35%) or more of the Outstanding Company
Voting Securities; or
(2)
individuals
who as of the date hereof, constitute the Board of Directors (the “Incumbent
Board”) cease for any reason to constitute at least a majority of the Board of
Directors; provided, however, that any individual becoming a director subsequent
to the date hereof whose election, or nomination for election by the Company’s
shareholders, was approved by a vote of at least two-thirds of the directors
then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election
or removal of directors or other actual or threatened solicitation of proxies
or
consents by or on behalf of a Person other than the Board of Directors;
or
(3)
the
approval by the shareholders of the Company of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all of the
assets of the Company (“Business Combination”) or, if consummation of such
Business Combination is subject, at the time of such approval by shareholders,
to the consent of any government or governmental agency, the obtaining of such
consent (either explicitly or implicitly by consummation); excluding, however,
such a Business Combination pursuant to which (i) all or substantially all
of
the individuals and entities who were the
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beneficial
owners
of the Outstanding Company Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more than 60% of,
respectively, the then outstanding shares of common stock and the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such Business Combination (including, without limitation, a
corporation that as a result of such transaction owns the Company or all or
substantially all of the Company’s assets either directly or through one or more
subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Business Combination of the Outstanding Company Voting
Securities, (ii) no Person (excluding any employee benefit plan (or
related
trust) of the Company or such corporation resulting from such Business
Combination) beneficially owns, directly or indirectly, thirty-five percent
(35%) or more of, respectively, the then outstanding shares of common stock
of
the corporation resulting from such Business Combination or the combined voting
power of the then outstanding voting securities of such corporation except
to
the extent that such ownership existed prior to the Business Combination and
(iii) at least a majority of the members of the board of directors of
the
corporation resulting from such Business Combination were members of the
Incumbent Board at the time of the execution of the initial agreement, or of
the
action of the Board, providing for such Business Combination; or
(4)
approval
by the shareholders of the Company of a complete liquidation or dissolution
of
the Company.
Notwithstanding
the foregoing, no Change in Control shall be deemed to have occurred for
purposes of this Agreement by reason of any actions or events in which the
Recipient participates in a capacity other than in his capacity as a
director.
“Disability”
means
the inability of the Recipient to perform any of his duties for the Company
and
its Affiliates due to a physical, mental, or emotional impairment, as determined
by an independent qualified physician (who may be engaged by the Company),
for a
ninety (90) consecutive day period or for an aggregate of one hundred eighty
(180) days during any three hundred sixty-five (365) day period.
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EXHIBIT
1
VESTING
SCHEDULE
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A.
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One-third
of the Restricted Shares shall become Vested Restricted Shares on
each
anniversary of the Grant Date; provided the Recipient is continuously
a
director or an employee of the Company or an Affiliate from the Grant
Date
through the applicable
vesting date.
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B.
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Notwithstanding
Section A above, Restricted Shares shall become Vested Restricted
Shares
upon the earliest of the following events:
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| 1. |
the
date of the occurrence of a Change in
Control;
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| 2. |
the
date of the Director’s Disability;
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| 3. |
the
date of the Director’s death; and
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4.
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subject
to the sole discretion of the Board of Directors to vest or not vest
the
Restricted Shares at the time of such event, the date the Director
resigns
with the consent of the Board of
Directors.
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C.
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Notwithstanding
any other provision of this Vesting Schedule, Restricted Shares which
have
not become Vested Restricted Shares pursuant to Section A or B above
as of
the Recipient’s cessation of services as a director or an employee of the
Company or an Affiliate shall be
forfeited.
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EXHIBIT
2
IRREVOCABLE
STOCK POWER
The
undersigned hereby assigns and transfers to Theragenics Corporation (the
“Company”), ________ shares of the Common Stock of the Company registered in the
name of the undersigned on the stock transfer records of the Company and
represented by Stock Certificate No. ____________________ of the Company; and
the undersigned does hereby irrevocably constitute and appoint
________________________________, his attorney-in-fact, to transfer the
aforesaid shares on the books of the Company, with full power of substitution;
and the undersigned does hereby ratify and confirm all that said
attorney-in-fact lawfully shall do by virtue hereof.
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Date:____________________________
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Signed:____________________________
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Print
Name:_________________________
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IN
THE
PRESENCE OF:
__________________________
(Print
Name)
__________________________
(Signature)
