Savient Pharmaceuticals, Inc. Restricted Stock Agreement Granted Under 2004 Incentive Plan
Exhibit
10.21
Savient Pharmaceuticals, Inc.
Restricted Stock Agreement
Granted Under 2004 Incentive Plan
Granted Under 2004 Incentive Plan
AGREEMENT made [DATE], between Savient Pharmaceuticals, Inc., a Delaware corporation (the
“Company”), and [NAME] (the “Participant”).
For valuable consideration, including employment services rendered and to be rendered by the
Participant to the Company, the parties hereto agree as follows:
1. Purchase of Shares.
The Company shall issue to the Participant, subject to the terms and conditions set forth in
this Agreement and in the Company’s 2004 Incentive Plan (the “Plan”), [#] shares (the
“Shares”) of common stock, $0.01 par value, of the Company (“Common Stock”). The
Shares will be held in book entry by the Company’s transfer agent in the name of the Participant
for that number of Shares issued to the Participant. The Participant agrees that the Shares shall
be subject to the forfeiture provisions set forth in Section 2 of this Agreement and the
restrictions on transfer set forth in Section 4 of this Agreement.
2. Vesting.
(a) In the event that the Participant ceases to be employed by the Company for any reason or
no reason, with or without cause, prior to three years from the date hereof, any Unvested Shares
shall be forfeited immediately and automatically to the Company in exchange for $.01 per Share.
Notwithstanding anything herein to the contrary, if the Shares do not vest on or before the
occurrence of one or more of the events set forth in this Section 2, the Shares shall automatically
be forfeited to the Company in exchange for $0.01 per Share. The aggregate amount to be paid for by
the Company to the Participant upon forfeiture of the Shares shall be referred to herein as the
“Forfeiture Amount”.
(b) “Unvested Shares” means the total number of Shares multiplied by the Applicable
Percentage at the time the Shares are forfeited. Except as provided in paragraphs (c) through (e)
of this Section 2 and in Section 7(b) below, the “Applicable Percentage” shall be (i) 100%
during the one-year period ending on the day before the first anniversary of the date hereof, (ii)
66.7% during the one-year period beginning on the second anniversary of the date hereof and ending
on the day before the third anniversary of the date hereof and (iii) 0% beginning on the third
anniversary of the date hereof.
(c) Notwithstanding the foregoing, in the event that the Participant’s employment with the
Company is terminated by reason of the Participant’s death or disability, the “Applicable
Percentage” shall immediately and thereafter be 0%. For this purpose, “disability” shall mean the
inability of the Participant, due to a medical reason, to carry out his duties as an employee of
the Company for a period of six consecutive months.
(d) Notwithstanding the foregoing, if the Participant’s employment with the Company is
terminated by the Company without Cause, then effective immediately prior to such termination of
employment, the “Applicable Percentage” shall immediately and thereafter be 100% less the product
of 0.0685% times the number of days that have elapsed after the date hereof and through and
including the effective date of the termination of the Participant’s employment with the Company
without Cause. As used herein, “Cause” means any (i) willful failure by the Participant,
which failure is not cured within 30 days of written notice to the Participant from the Company, to
perform his or her material responsibilities to the Company or (ii) willful misconduct by the
Participant which affects the business reputation of the Company.
(e) Notwithstanding the foregoing, if a Change in Control (as defined in the Plan) of the
Company occurs, the “Applicable Percentage” shall immediately and thereafter be 0%.
(f) The Forfeiture Amount may be payable, at the option of the Company, in cancellation of all
or a portion of any outstanding indebtedness of the Participant to the Company or in cash (by
check) or both.
(g) For purposes of this Agreement, employment with the Company shall include employment with
a parent or subsidiary of the Company.
3. Automatic Sale Upon Vesting.
(a) Upon any reduction in the Applicable Percentage, the Company shall sell, or arrange for
the sale of, such number of the Shares no longer subject to forfeiture under Section 2 as a result
of such reduction in the Applicable Percentage as is sufficient to generate net proceeds sufficient
to satisfy the Company’s minimum statutory withholding obligations with respect to the income
recognized by the Participant upon the lapse of the forfeiture provisions (based on minimum
statutory withholding rates for federal and state tax purposes, including payroll taxes, that are
applicable to such income), and the Company shall retain such net proceeds in satisfaction of such
tax withholding obligations.
(b) The Participant hereby appoints the President and the Secretary of the Company, and each
of them acting singly, his or her attorney in fact, to sell the Participant’s Shares in accordance
with this Section 3. The Participant agrees to execute and deliver such documents, instruments and
certificates as may reasonably be required in connection with the sale of the Shares pursuant to
this Section 3.
(c) The Participant represents to the Company that, as of the date hereof, he or she is not
aware of any material nonpublic information about the Company or the Common Stock. The Participant
and the Company have structured this Agreement to constitute a “binding contract” relating to the
sale of Common Stock pursuant to this Section 3, consistent with the affirmative defense to
liability under Section 10(b) of the Securities Exchange Act of 1934 under Rule 10b5-1(c)
promulgated under such Act.
4. Restrictions on Transfer.
-2-
(a) The Participant shall not sell, assign, transfer, pledge, hypothecate or otherwise dispose
of, by operation of law or otherwise (collectively “transfer”) any Shares, or any interest
therein, until such Shares have vested, except that the Participant may transfer such Shares (i) to
or for the benefit of any spouse, children, parents, uncles, aunts, siblings, grandchildren and any
other relatives approved by the Board of Directors (collectively, “Approved Relatives”) or
to a trust established solely for the benefit of the Participant and/or Approved Relatives,
provided that such Shares shall remain subject to this Agreement (including without
limitation the restrictions on transfer set forth in this Section 4 and the forfeiture provisions
contained in Section 2) and such permitted transferee shall, as a condition to such transfer,
deliver to the Company a written instrument confirming that such transferee shall be bound by all
of the terms and conditions of this Agreement or (ii) as part of the sale of all or substantially
all of the shares of capital stock of the Company (including pursuant to a merger or
consolidation), provided that, in accordance with the Plan and except as otherwise provided
herein, the securities or other property received by the Participant in connection with such
transaction shall remain subject to this Agreement.
(b) The Company shall not be required (i) to transfer on its books any of the Shares which
have been transferred in violation of any of the provisions set forth in this Agreement or (ii) to
treat as owner of such Shares or to pay dividends to any transferee to whom such Shares have been
transferred in violation of any of the provisions of this Agreement.
5. Restrictive Legends.
All Shares subject to this Agreement shall be subject to the following restriction, in
addition to any other legends that may be required under federal or state securities laws:
“The shares of stock represented by this certificate are subject to
forfeiture provisions and restrictions on transfer set forth in a
certain Restricted Stock Agreement between the corporation and the
registered owner of these shares (or his predecessor in interest),
and such Agreement is available for inspection without charge at the
office of the Secretary of the corporation.”
6. Provisions of the Plan.
This Agreement is subject to the provisions of the Plan, a copy of which is furnished to the
Participant with this Agreement.
7. Reorganizations.
(a) As used in this Agreement, a “Reorganization Event” means: (i) any merger or
consolidation of the Company with or into another entity as a result of which all of the Common
Stock of the Company is converted into or exchanged for the right to receive cash, securities or
other property, or is cancelled; (ii) any exchange of all of the Common Stock of the Company for
cash, securities or other property pursuant to a share exchange transaction; or (iii) any
liquidation or dissolution of the Company.
-3-
(b) Upon the occurrence of a Reorganization Event other than a liquidation or dissolution of
the Company, the forfeiture provisions contained in Section 2 and the other rights of the Company
hereunder shall inure to the benefit of the Company’s successor and shall apply to the cash,
securities or other property into which the Shares were converted, or for which the Shares were
exchanged pursuant to such Reorganization Event, in the same manner and to the same extent as they
applied to the Shares. Upon the occurrence of a Reorganization Event involving the liquidation or
dissolution of the Company, all restrictions and conditions on all Restricted Stock Awards then
outstanding shall automatically be deemed terminated or satisfied.
(c) If, in connection with a Reorganization Event, a portion of the cash, securities and/or
other property received upon the conversion or exchange of the Shares is to be placed into escrow
to secure indemnification or similar obligations, the mix between the vested and unvested portion
of such cash, securities and/or other property that is placed into escrow shall be the same as the
mix between the vested and unvested portion of such cash, securities and/or other property that is
not subject to escrow.
8. Withholding Taxes; Section 83(b) Election.
(a) The Participant acknowledges and agrees that the Company has the right to deduct from
payments of any kind otherwise due to the Participant any federal, state or local taxes of any kind
required by law to be withheld with respect to the issuance of the Shares to the Participant or the
lapse of the forfeiture provisions.
(b) The Participant has reviewed with the Participant’s own tax advisors the federal, state,
local and foreign tax consequences of this investment and the transactions contemplated by this
Agreement. The Participant is relying solely on such advisors and not on any statements or
representations of the Company or any of its agents. The Participant understands that the
Participant (and not the Company) shall be responsible for the Participant’s own tax liability that
may arise as a result of this investment or the transactions contemplated by this Agreement.
THE PARTICIPANT AGREES NOT TO FILE AN ELECTION UNDER SECTION 83(B) OF THE CODE WITH RESPECT TO
THE PURCHASE OF THE SHARES.
9. Miscellaneous.
(a) No Rights to Employment. The Participant acknowledges and agrees that the vesting
of the Shares pursuant to Section 2 hereof is earned only by continuing service as an employee at
the will of the Company (not through the act of being hired or being granted the Shares hereunder).
The Participant further acknowledges and agrees that the transactions contemplated hereunder and
the vesting schedule set forth herein do not constitute an express or implied promise of continued
engagement as an employee or consultant for the vesting period, for any period, or at all.
(b) Severability. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision of this
-4-
Agreement, and each other provision of this Agreement shall be severable and enforceable to
the extent permitted by law.
(c) Waiver. Any provision for the benefit of the Company contained in this Agreement
may be waived, either generally or in any particular instance, by the Board of Directors of the
Company.
(d) Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the Company and the Participant and their respective heirs, executors, administrators, legal
representatives, successors and assigns, subject to the restrictions on transfer set forth in
Section 4 of this Agreement.
(e) Notice. Each notice relating to this Agreement shall be in writing and delivered
in person or by first class mail, postage prepaid, to the address as hereinafter provided. Each
notice shall be deemed to have been given on the date it is received. Each notice to the Company
shall be addressed to it at its offices at Xxx Xxxxx Xxxxxx, 00xx xxxxx, Xxxx Xxxxxxxxx, Xxx Xxxxxx
00000 (Attention: President). Each notice to the Participant shall be addressed to the
Participant at the Participant’s last known address.
(f) Pronouns. Whenever the context may require, any pronouns used in this Agreement
shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns
and pronouns shall include the plural, and vice versa.
(g) Entire Agreement. This Agreement and the Plan constitute the entire agreement
between the parties, and supersede all prior agreements and understandings, relating to the subject
matter of this Agreement.
(h) Amendment. This Agreement may be amended or modified only by a written instrument
executed by both the Company and the Participant.
(i) Governing Law. This Agreement shall be construed, interpreted and enforced in
accordance with the internal laws of the State of Delaware without regard to any applicable
conflicts of laws.
(j) Continuance of Employment. The issuance of the Shares hereunder is in
consideration of the Participant’s continuing employment by the Company or any subsidiary;
provided, however, nothing in this Agreement shall confer upon the Participant the
right to continue in the employ of the Company or any subsidiary or affect the right of the Company
or any subsidiary to terminate the Participant’s employment at any time in the sole discretion of
the Company or any subsidiary, with or without cause.
(k) Interpretation. The interpretation and construction of any terms or conditions of
the Plan, or of this Agreement or other matters related to the Plan by the Compensation Committee
of the Board of Directors of the Company shall be final and conclusive.
-5-
(l) Participant’s Acknowledgments. The Participant acknowledges that he or she: (i)
has read this Agreement; (ii) has been represented in the preparation, negotiation, and execution
of this Agreement by legal counsel of the Participant’s own choice or has voluntarily declined to
seek such counsel; (iii) understands the terms and consequences of this Agreement; and (iv) is
fully aware of the legal and binding effect of this Agreement.
(m) Delivery of Certificates. Subject to Section 3, the Participant may request that
the Company deliver the Shares in certificated form with respect to any Shares that have ceased to
be subject to forfeiture pursuant to Section 2.
-6-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
| SAVIENT PHARMACEUTICALS, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Address: [ ] [ ] |
||||
-7-
