Omni Bio Pharmaceutical, Inc. Restricted Stock Unit Agreement
Exhibit 10.5
Omni Bio Pharmaceutical, Inc. (the “Company”), pursuant to approval by the Company’s board of
directors (the “Board”) and as set forth in your letter of employment dated July 15, 2011, hereby
grants an award of restricted stock units (“Units”) to you, the Participant named below. The terms
and conditions of this grant are set forth in this Restricted Stock Unit Agreement (the
“Agreement”), consisting of this cover page and the Terms and Conditions on the following pages.
Name of Participant: Xxxxx X. Xxxxx
Number of Units:
|
300,000 | Date of Grant: | March 1, 2011 |
Vesting Schedule:
| Vesting Dates | Number of Units that Vest | |||
March 1, 2012 |
100,000 | |||
March 1, 2013 |
100,000 | |||
March 1, 2014 |
100,000 | |||
By signing below, you agree to all of the terms and conditions contained in this Agreement
which is attached. You acknowledge that you have reviewed this document and that it sets forth the
entire agreement between you and the Company regarding the grant to you of the number of Units
specified in the table above.
| PARTICIPANT: | OMNI BIO PHARMACEUTICAL, INC. | |||||||
| By: | ||||||||
Name:
|
Name: | |||||||
| Title: | ||||||||
Terms and Conditions
| 1. | Grant of Restricted Stock Units. The Company hereby grants to you, subject to the
terms and conditions in this Agreement, a grant of the number of Units specified on the cover
page of this Agreement (the “Grant”), each Unit representing the right to receive one share of
the Company’s common stock (“Common Stock”)). The Units granted to you will be credited to an
account in your name maintained by the Company. This account shall be unfunded and maintained
for book-keeping purposes only. |
| 2. | Restrictions on Units. Neither this Grant nor the Units subject to this Grant may be
sold, assigned, transferred, exchanged or encumbered other than by will or the laws of descent
and distribution. Any attempted transfer in violation of this Section 2 shall be of
no effect and shall result in the forfeiture of all Units. The Units and your rights to the
Units under this Agreement shall be subject to forfeiture as provided in Section 4
until satisfaction of the vesting conditions set forth in Section 3. |
| 3. | Vesting of Units. |
(a) If you remain an employee with the Company and its subsidiaries (an “Employee”)
continuously from the Date of Grant specified on the cover page of this Agreement, then the
Units will vest in the numbers and on the dates specified in the Vesting Schedule on the
cover page of this Agreement.
(b) Vesting of the Units subject to this Grant shall be accelerated under the circumstances
and to the extent described in Sections 4 and 5 of this Agreement.
| 4. | Effect of Termination of Employment. If you cease to be an Employee other than as a
result of your “Disability” or death prior to the Vesting Date(s) specified on the cover page
of this Agreement, you will forfeit all unvested Units. If you cease to be an Employee due to
your Disability or death, then a pro rata portion of the unvested Units scheduled to vest on
the next scheduled Vesting Date shall immediately vest and the balance of the unvested Units
shall be forfeited. The pro rata portion that vests shall be determined by utilizing a
fraction, the numerator of which is the number of days between the date your employment ended
and the later of the Date of Grant or the most recent scheduled Vesting Date prior to the date
your employment ended, and the denominator of which is the number of days between the next
scheduled Vesting Date after your employment ended and the later of the Date of Grant or the
most recent Vesting Date prior to the date your employment ended. |
For purposes of this Agreement, “Disability” shall mean a Participant’s becoming disabled
within the meaning of Section 22(e)(3) of the Internal Revenue Code of 1986, as amended
(the “Code”).
| 5. | Change of Control. |
(a) All unvested Units subject to this Grant shall vest in full upon a “Change of Control”
as defined in Section 5(b)(i) or 5(b)(ii)(C) below, or upon the
consummation of a transaction described in clause (A) or clause (B) of Section
5(b)(ii) below.
(b) For purposes of this Agreement, a “Change of Control” shall be deemed to have occurred
if:
(i) Any “person” (as such term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)) (other than persons who are
stockholders of the Company on that date of this Agreement) becomes a “beneficial owner”
(as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of
the Company representing more than 50% of the voting power of the then outstanding
securities of the Company; provided that a Change of Control shall not be deemed to occur
as a result of a change of ownership resulting from the death of a stockholder of the
Company and a Change of Control shall not be deemed to occur as a result of a transaction
in which the Company becomes a subsidiary of another corporation and in which the
stockholders of the Company immediately prior to the transaction will beneficially own,
immediately after the transaction, shares entitling such stockholders to more than 50% of
all votes to which all stockholders of the parent corporation would be entitled in the
election of directors (without consideration of the rights of any class of stock to elect
directors by a separate class vote); or
(ii) The stockholders of the Company approve (or, if stockholder approval is not
required, the Board approves) an agreement providing for (A) the merger or consolidation of
the Company with another corporation where the stockholders of the Company immediately
prior to the merger or consolidation will not beneficially own, immediately after the
merger or consolidation, shares entitling such stockholders to more than 50% of all votes
to which all stockholders of the surviving corporation would be entitled in the election of
directors (without consideration of the rights of any class of stock to elect directors by
a separate class vote), (B) the sale or other disposition of all or substantially all of
the assets of the Company, or (C) a liquidation or dissolution of the Company.
Notwithstanding the foregoing, for purposes of any Grant that is subject to the
provisions of Section 409A of the Code and the regulations promulgated thereunder, no
Change of Control shall be deemed to have occurred upon an event described in clauses (i)
or (ii) above that would have the effect of changing the time or form of payment of such
Grant unless such event would also constitute a change in the ownership or effective
control of, or a change in the ownership of a substantial portion of the assets of, the
Company for purposes of Section 409A of the Code.
| 6. | Settlement of Units. After any Units vest pursuant to Sections 3, 4 or 5,
the Company shall, no later than March 15 of the year following the calendar year in which
such Units vest, cause to be issued to you, or to your designated beneficiary or estate in the
event of your death, one share of Common Stock in payment and settlement of each vested Unit.
Such issuance shall be evidenced by a stock certificate or an appropriate entry in the stock
register maintained by the Company or
its duly authorized transfer agent, shall be subject to the tax withholding provisions of
Section 7, and shall be in complete satisfaction and settlement of such vested
Units. |
| 7. | Tax Consequences and Withholding. |
(a) As a condition precedent to settlement of the Units, you are required to pay to the
Company (or the subsidiary or affiliate of the Company employing you), in accordance with
Section 7(b) below, the amount of any required domestic or foreign tax withholding
obligation, including any social security or social insurance obligation.
(b) Withholding of Taxes.
(i) Required Withholding. Any Grant under this Agreement shall be subject to
applicable federal (including FICA), state and local tax withholding requirements. The
Company may require that you or any other person receiving or exercising any Grant pay to
the Company the amount of any federal, state or local taxes that the Company is required to
withhold with respect to such Grant, or the Company may deduct from other wages paid by the
Company the amount of any withholding taxes due with respect to such Grant.
(ii) Election to Withhold Shares. If the Board permits, you may elect to satisfy the
Company’s income tax withholding obligation with respect to a Grant by having shares
withheld up to an amount that does not exceed your minimum applicable withholding tax rate
for federal (including FICA), state and local tax liabilities. The election must be in a
form and manner prescribed by the Board and may be subject to the prior approval of the
Board.
| 8. | No Shareholder Rights. The Units subject to this Grant do not entitle you to any
rights of a stockholder of the Common Stock. You will not have any of the rights of a
shareholder of the Company in connection with the award of Units subject to this Agreement
unless and until Shares are issued to you upon settlement of the Units as provided in
Section 6. |
|
| 9. | Adjustments for Changes in Capitalization. |
(a) The Units subject to this Agreement shall be subject to adjustments for changes in the
Company’s capitalization as provided in Section 9(b) below.
(b) If there is any change in the number or kind of shares of Common Stock of the Company
outstanding (i) by reason of a stock dividend, spin-off, recapitalization, stock split, or
combination or exchange of shares, (ii) by reason of a merger, reorganization or
consolidation in which the Company is the surviving corporation, (iii) by reason of a
reclassification or change in par value, or (iv) by reason of any other extraordinary or
unusual event affecting the outstanding Common Stock as a class without the Company’s
receipt of consideration, or if the value of outstanding shares of Common Stock is
substantially reduced as a result of a spin-off or the Company’s payment of an
extraordinary dividend or distribution, the number of
shares of Common Stock covered this Grant, the kind of shares covered this Grant, and the
price per share of the Grant shall be appropriately adjusted by the Board to reflect any
increase or decrease in the number of, or change in the kind or value of, issued shares of
Common Stock to preclude, to the extent practicable, the enlargement or dilution of rights
and benefits under this Grant; provided, however, that any fractional shares resulting from
such adjustment shall be eliminated. Any adjustments determined by the Board shall be
final, binding and conclusive.
| 10. | Choice of Law. This Agreement will be interpreted and enforced under the laws of the
state of Colorado (without regard to its conflicts or choice of law principles). |
| 11. | Binding Effect. This Agreement will be binding in all respects on your heirs,
representatives, successors and assigns, and on the successors and assigns of the Company. |
| 12. | Other Agreements. You agree that you will execute such documents as may be necessary
to become a party to any stockholder, voting or similar agreements as the Company may require.
No shares of Common Stock shall be issued or transferred in connection with this Grant unless
and until all legal requirements applicable to the issuance or transfer of such shares have
been complied with to the satisfaction of the Board. Certificates representing shares of
Common Stock issued or transferred under this Grant will be subject to such stop-transfer
orders and other restrictions as may be required by applicable laws, regulations and
interpretations, including any requirement that a legend be placed thereon. |
| 13. | Section 409A of the Code. The award of Units as provided in this Agreement and any
issuance of shares of Common Stock or payment pursuant to this Agreement are intended to be
excepted from Section 409A of the Code under the short-term deferral exception specified in
Treas. Reg. § 1.409A-l(b)(4). |
By signing the cover page of this Agreement, you agree to all the terms and conditions described
above.
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