FORM OF DIRECTOR RESTRICTED STOCK AWARD AGREEMENT] VENTIV HEALTH, INC. RESTRICTED STOCK AWARD AGREEMENT
[FORM OF
DIRECTOR RESTRICTED STOCK AWARD AGREEMENT]
VENTIV
HEALTH, INC.
THIS
AGREEMENT, dated ________________, is made
between Ventiv Health, Inc., a Delaware corporation (the "Company"), and
___________________________ (the
"Director").
1.
Restricted
Stock Award. Subject
to the terms and conditions set forth in this Agreement, the Company hereby
grants to the Director, as of the date hereof (the "Grant Date"), an award of
X,XXX shares
of common stock, par value $.001 per share, of the Company (the "Restricted
Stock"). Subject to the terms of this Agreement, the Director shall be entitled
to exercise and enjoy all rights and entitlements, and will be subject to all
obligations and restrictions, of ownership of the Restricted Stock as set forth
in the Company's Certificate of Incorporation, as amended. The Restricted Shares
are granted under the Ventiv Health, Inc. 1999 Stock Incentive Plan (the "Plan")
and shall be governed by terms of the Plan, the terms of which are incorporated
by reference into this Restricted Stock Award Agreement.
2.
Restrictions.
The
following restrictions shall apply to each share of Restricted Stock: (i) until
such Restricted Stock vests in accordance with Section 3 hereof, one or more
stock certificates representing the Restricted Stock will be issued in the
Director's name, but will be held in custody by the Company or an escrow agent
(which may be a brokerage firm) appointed by the Company, and the Director will
not sell, transfer, assign, give, place in trust, or otherwise dispose of or
pledge, grant a security interest in, or otherwise encumber such unvested
Restricted Stock until the Director’s interest therein is fully vested, and any
such attempted disposition or encumbrance shall be void and unenforceable
against the Company; (ii) the stock certificate or certificates representing the
Restricted Stock shall initially bear the legends provided for in Sections 7(a)
and 7(b) below; (iii) except as provided in Section 3(b), upon termination of
the Director's service with the Company for any reason whatsoever, with or
without cause, whether voluntarily or involuntarily, all shares of Restricted
Stock which had not vested as of the date of such termination will be forfeited
and returned to the Company, and all rights of the Director or the Director's
heirs in and to such shares will terminate, unless the Board of Directors of the
Company (the "Board") determines otherwise in its sole and absolute
discretion.
| · |
XX %
of such shares of Restricted Stock shall vest on (1st
anniversary of grant date); |
| · |
XX %
of such shares of Restricted Stock shall vest on (2nd
anniversary of grant date); |
| · |
XX %
of such shares of Restricted Stock shall vest on (3rd
anniversary of grant date);
and |
| · |
XX %
of such shares of Restricted Stock shall vest on
--------------(4th
anniversary of grant date).
|
(b) All
unvested shares of Restricted Stock will immediately become vested in the event
that (i) (A) the Director is not nominated for reelection to the Board of
Directors in connection with any stockholder meeting or consent pursuant to
which directors are elected, unless the Director’s term in office would not be
affected by the election of the directors who are so nominated, (B)
notwithstanding any such nomination, the Director is not reelected to the Board
of Directors upon the expiration of his term or (C) the Director is removed from
the Board of Directors (in each case other than for Cause), (ii) there is a
Change of Control with respect to the Company while the Director is a member of
the Board of Directors or (iii) the Director dies or becomes disabled while the
Director is a member of the Board of Directors.
For
purposes hereof:
“Cause”
means gross negligence, willful misconduct, breach of fiduciary duty or other
matters determined by the Board to constitute cause upon notice to
Consultant.
“Change
of Control” means shall mean a transaction or a series of related transactions
involving (i) a sale, transfer or other disposition of all or substantially all
of the Company’s assets, (ii) the consummation of a merger or consolidation of
the Company or (iii) a sale or exchange of capital stock of the Company, in any
case as a result of which the stockholders of the Company immediately prior to
such transaction or series of related transactions own, in the aggregate, less
than a majority of the outstanding voting capital stock or equity interests of
the surviving, resulting or transferee entity.
4.
Effect
of Vesting. Subject
to the provisions of this Agreement, upon the vesting of any shares of
Restricted Stock, the Company will deliver to the Director a certificate or
certificates for the number of shares of Restricted Stock which had so vested,
endorsed with the legend provided for in Section 7(b). Alternatively, the
Company may elect to deliver vested shares of Restricted Stock electronically,
and if it does so, the Director agrees to establish an account with a brokerage
firm selected by the Company for the purpose of receiving such shares. Subject
to applicable law, the Director may sell, transfer, assign, give, place in
trust, or otherwise dispose of or pledge, grant a security interest in, or
otherwise encumber vested shares of Restricted Stock.
5.
Regulatory
Compliance. The
issuance and delivery of any stock certificates representing vested shares of
Restricted Stock may be postponed by the Company for such period as may be
required to comply with any applicable requirements under the federal securities
laws or under any other law or regulation applicable to the issuance or delivery
of such shares. The Company shall not be obligated to deliver any vested shares
of Restricted Stock to the Director if the Company believes that such delivery
would constitute a violation of any applicable law or regulation.
6.
Representations
and Warranties. The
Director hereby represents and warrants that the Restricted Stock awarded
pursuant to this Agreement is being acquired for the Director's own account, for
investment purposes and not with a view to distribution thereof. The Director
acknowledges and agrees that any sale or distribution of shares of Restricted
Stock that have become vested may be made only pursuant to either (i) a
registration statement on an appropriate form under the Securities Act of 1933,
as amended (the "Securities Act"), which registration statement has become
effective and is current with regard to the shares being sold, or (ii) a
specific exemption from the registration requirements of the Securities Act that
is confirmed in a favorable written opinion of counsel, in form and substance
satisfactory to counsel for the Company, prior to any such sale or distribution.
The Director hereby consents to such action as the Board or the Company deems
necessary or appropriate from time to time to prevent a violation of, or to
perfect an exemption from, the registration requirements of the Securities Act
or to implement the provisions of this Agreement, including but not limited to
placing restrictive legends on certificates evidencing shares of Restricted
Stock (whether or not vested) and delivering stop transfer instructions to the
Company's stock transfer agent.
7.
Legends.
(a) Each
certificate representing any unvested shares of Restricted Stock shall be
endorsed with a legend in substantially the following form:
"THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A CERTAIN RESTRICTED
STOCK AWARD AGREEMENT, DATED AS OF (GRANT
DATE), WHICH
PROVIDES, AMONG OTHER THINGS, FOR CERTAIN RESTRICTIONS ON THE TRANSFER AND
ENCUMBRANCE OF SUCH SHARES. A COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL
OFFICES OF THE COMPANY"
(b) In
addition to the legend set forth in paragraph (a) and above, until registered
under the Securities Act, each certificate representing shares of Restricted
Stock shall be endorsed with a legend in substantially the following
form:
"THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE. SUCH
SECURITIES MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED
WITHOUT SUCH REGISTRATION, EXCEPT UPON DELIVERY TO THE COMPANY OF SUCH EVIDENCE
AS MAYBE SATISFACTORY TO COUNSEL FOR THE COMPANY TO THE EFFECT THAT ANY SUCH
TRANSFER SHALL NOT BE IN VIOLATION OF THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS OR ANY RULE OR REGULATION PROMULGATED
THEREUNDER";
(a)
Construction. This
Agreement will be construed by and administered under the supervision of the
Board, and all determinations of the Board will be final and binding on the
Director.
(b)
Dilution. Nothing
in this Agreement will restrict or limit in any way the right of the Board to
issue or sell stock of the Company (or securities convertible into stock of the
Company) on such terms and conditions as it deems to be in the best interests of
the Company, including, without limitation, stock and securities issued or sold
in connection with mergers and acquisitions, stock and securities issued or sold
in connection with investments in the Company, stock issued or sold in
connection with any stock option or similar plan, and stock issued or
contributed to any qualified stock bonus or employee stock ownership
plan.
(c)
Notices. Any
notice hereunder shall be in writing and personally delivered or sent by
registered or certified mail, return receipt requested, and addressed to the
Company at Ventiv Health, Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Financial Officer, or to the
Director at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, subject to the right of any party hereto to designate at any time
hereafter in writing some other address.
(d)
Counterparts. This
Agreement may be executed in counterparts each of which taken together shall
constitute one and the same instrument.
(e)
Governing
Law. This
Agreement, which constitutes the entire agreement of the parties with respect to
the grant to the Director of the Restricted Stock, shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York,
without regard to principles thereof regarding conflict of laws.
(f)
Severability.
Whenever possible, each provision of this Agreement shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be prohibited by or invalid under applicable law,
such provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of this Agreement.
(g)
Amendment
and Waiver. The
provisions of this Agreement may be amended and waived only with the prior
written consent of the Company and the Director.
VENTIV
HEALTH, INC.
By:
___________________________________
Name:
Title:
____________________________________
Director