RESTRICTED STOCK AWARD PURSUANT TO THE THERAGENICS CORPORATION
Exhibit
10.2
PURSUANT
TO THE THERAGENICS CORPORATION
2006
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 a Stock Award consisting 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:
February
13, 2007.
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B.
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Plan
(under which Restricted Stock Grant is granted):
Theragenics Corporation 2006 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.
RECIPIENT
THERAGENICS
CORPORATION
By:
_______________________________________
__________________________________________
[Signature]
Title:
______________________________________
TERMS
AND CONDITIONS TO THE
RESTRICTED
STOCK AGREEMENT
PURSUANT
TO THE THERAGENICS CORPORATION
2006
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 February 13, 2007, a copy of which is
available
from the Company.
6. Change
in Capitalization.
(a) The
number and kind of Restricted Shares shall be proportionately adjusted
for
nonreciprocal transactions between the Company and the holders of capital
stock
of the Company that causes the per share value of the shares of Common
Stock to
change, such as a stock dividend, stock split, spinoff, rights offering,
or
recapitalization through a large, nonrecurring cash dividend (each, an
“Equity
Restructuring”).
(b) In
the
event of a merger, consolidation, extraordinary dividend, 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 a Change
in
Control, that in each case is not an “Equity Restructuring,” the Committee shall
take such action to make such adjustments with respect to the unvested
Restricted Shares or the terms of this Award as the Committee, 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 or other securities, or
other
property to replace the unvested portion of the Award, or removing of
restrictions on unvested Restricted Shares. All determinations and adjustments
made by the Committee pursuant to this Section 6(b) 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.
(c) The
existence of the Plan and this Award shall not affect in any way 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 any
part of its business or assets, or any other corporate act or
proceeding.
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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:
“Cause”
shall
have the meaning set forth in the employment agreement then in effect between
the Recipient and the Company or, if there is none, then Cause shall mean
the
occurrence of any of the following events: (i) willful and continued
failure (other than such failure resulting from his incapacity during physical
or mental illness) by the Recipient to substantially perform his duties
with the
Company or an Affiliate; (ii) conduct by the Recipient that amounts to
willful
misconduct or gross negligence; (iii) any act by the Recipient of fraud,
misappropriation, dishonesty, embezzlement or similar conduct against the
Company or an Affiliate; (iv) commission by the Recipient of a felony or
any other crime involving dishonesty; or (v) illegal use by the Recipient
of alcohol or drugs.
“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
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(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 beneficial owners of the Outstanding
Company Voting Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than sixty percent (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 an employee
or director of the Company or an Affiliate.
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EXHIBIT
1
VESTING
SCHEDULE
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A.
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One-fourth
of the Restricted Shares shall become Vested Restricted Shares
on each
anniversary of the Grant Date; provided the Recipient is continuously
an
employee
or director 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, all of the Restricted Shares shall become Vested
Restricted Shares upon the earlier of the following events:
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the
date of the occurrence of a Change in Control;
or
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2.
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the
date of the Recipient’s retirement (i.e., voluntary resignation) upon or
after reaching age 65.
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C.
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Notwithstanding
Sections A and B above, upon the earliest of the following
events:
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1.
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the
date of the Recipient’s death;
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2.
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the
date of the Recipient’s Disability;
or
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3.
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the
date the Company terminates the Recipient’s employment or service without
Cause;
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the
Restricted Shares shall become Vested Restricted Shares in the same proportion
that the number of full days elapsed between the Grant Date and the date
the Recipient ceases to be an employee or director of the Company or an
Affiliate bears to the total number of days in the vesting period.
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D.
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Notwithstanding
any other provision of this Vesting Schedule, Restricted Shares
which have
not become Vested Restricted Shares as of the date the Recipient
ceases to
be an employee or director 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.
Date:
_______________________________________
Signed:
___________________________________
Print
Name: ________________________________
IN
THE
PRESENCE OF:
____________________________________________
(Print
Name)
____________________________________________
(Signature)
