RESTRICTED STOCK AWARD AGREEMENT ADGERO BIOPHARMACEUTICALS HOLDINGS, INC.
Exhibit 10.7
This
Restricted Stock Award Agreement (the “Agreement”), dated as of
the “Award Date” set forth in the attached Exhibit A (the
“Award
Date”), is entered into between Adgero
Biopharmaceuticals Holdings, Inc., a Delaware corporation (the
“Company”), and the
individual named in Exhibit A hereto (the
“Awardee”).
WHEREAS, the
Company desires to provide the Awardee an incentive to participate
in the success and growth of the Company through the opportunity to
earn a proprietary interest in the Company; and
WHEREAS, to give
effect to the foregoing intention, the Company desires to grant the
Awardee a Restricted Stock Award, pursuant to the Adgero
Biopharmaceuticals Holdings, Inc. 2016 Equity Incentive Plan (the
“Plan”);
NOW,
THEREFORE, in consideration of the mutual covenants hereinafter set
forth and for good and valuable consideration, the parties hereto
agree as follows:
1. Award. The Company hereby
awards the Awardee a Restricted Stock Award for the number of
restricted shares of Common Stock (each a “Restricted Share” and
collectively the “Restricted Shares”) set
forth in Exhibit A
hereto, subject to the terms and conditions set forth herein and
the provisions of the Plan, the terms of which are incorporated
herein by reference. Capitalized terms used but not otherwise
defined in this Agreement shall have the meanings as set forth in
the Plan.
2. Restrictions on Sale or Other
Transfer. Each Restricted Share awarded to the Awardee
pursuant to this Agreement shall be subject to acquisition by the
Company and may not be sold, transferred, assigned or pledged or
otherwise be the subject of any disposition during the
“Restriction Period” as defined below. Each Restricted
Share shall be held physically or in book entry form with the
Company’s transfer agent until the restrictions set forth
above with respect to such Restricted Share lapse in accordance
with the provisions of Section 3 or until such Restricted Share is
forfeited pursuant to Section 3. Restricted Shares shall be
delivered to the Awardee only when and to the extent that the
restrictions set forth in Section 3 with respect to such Restricted
Shares lapse.
3. Restriction Period. The
Restricted Shares shall become vested, and the restrictions
applicable to the Restricted Shares shall lapse (such period, the
“Restriction
Period”) as set forth in Exhibit A. Subject to the terms
of this Agreement, the Awardee shall forfeit the Restricted Shares
to the extent that the Awardee does not satisfy the applicable
vesting requirements set forth in Exhibit A.
4. Rights as Shareholder. Except
with respect to the restrictions set forth in Section 2 above, upon
the issuance to the Awardee of Restricted Shares hereunder, the
Awardee shall have all the rights of a shareholder of Common Stock
with respect to such Restricted Shares, including the right to vote
the shares and receive all dividends and other distributions paid
or made with respect thereto; provided, however, that such
dividends and other distributions shall be retained by the Company
for the Awardee’s account and for delivery to the Awardee,
together with the Restricted Shares as and when said restrictions
and conditions shall have been satisfied, expired or
lapsed.
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5. Forfeiture. Except to the
extent otherwise provided in Section 3, upon termination of the
Awardee’s employment or other Service with the Company and
its Subsidiaries, any Restricted Shares as to which the Restriction
Period has not then lapsed shall (together with any dividends or
distributions paid or declared thereon) be forfeited by Awardee and
such Restricted Shares (together with any dividends or
distributions paid or declared thereon) shall thereupon be
transferred to the Company at no cost to the Company.
6. Government Regulations.
Notwithstanding anything contained herein to the contrary, the
Company’s obligation hereunder to issue or deliver shares of
Common Stock shall be subject to the terms of the Plan, all
applicable laws, rules and regulations and to such approvals by any
governmental agencies or national securities exchanges as may be
required.
7. Investment Purpose. The Awardee
represents and warrants that unless
the Restricted Shares are registered under the Securities
Act of 1933, as amended (the “Securities Act”), any and
all shares of Common Stock acquired by the Awardee under this
Agreement will be acquired for investment for the Awardee’s
own account and not with a view to, for resale in connection with,
or with an intent of participating directly or indirectly in, any
distribution of such shares of Common Stock within the meaning of
the Securities Act. The Awardee agrees not to sell, transfer or
otherwise dispose of such shares unless they are either (1)
registered under the Securties Act and all applicable state
securities laws, or (2) exempt from such registration in the
opinion of Company counsel.
8. Securities Law Restrictions.
Regardless of whether the offering and sale of shares of Restricted
Shares pursuant to this Agreement and the Plan have been registered
under the Securities Act, or have been registered or qualified
under the securities laws of any state, the Company at its
discretion may impose restrictions upon the sale, pledge or other
transfer of such shares of Common Stock (including the placement of
appropriate legends on stock certificates or the imposition of
stop-transfer instructions) if, in the judgment of the Company,
such restrictions are necessary in order to achieve compliance with
the Securities Act or the securities laws of any state or any other
law.
9. Lock-Up Agreement. The Awardee
hereby agrees that in the event that the Restriction Period lapses
with respect to any of the Restricted Shares at a time during which
any directors or officers of the Company have agreed with one or
more underwriters not to sell securities of the Company, then
Awardee shall enter into an agreement, in form and substance
satisfactory to the Company, pursuant to which the Awardee shall
agree to restrictions on transferability of such Restricted Shares,
and any Restricted Shares for which the Restriction Period may
lapse during such time, comparable to the restrictions agreed upon
by such directors or officers of the Company.
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10. Withholding Taxes. The Company
shall have the right to require the Awardee to remit to the
Company, or to withhold from amounts payable to the Awardee, as
compensation or otherwise, the minimum statutory amount
required to satisfy all
federal, state and local income tax withholding requirements and
the Awardee’s share of applicable employment withholding
taxes (including, without limitation, any such income or employment
taxes resulting from (i) the expiration of restrictions set forth
hereunder that are applicable to any Restricted Shares or (ii) an
election made by the Awardee under Section 83(b) of the Internal
Revenue Code of 1986, as amended, (the “Code”)).
11. Awardee Representations. The
Awardee has reviewed with the Awardee’s own tax advisors the
federal, state, local and foreign tax consequences of the
transactions contemplated by this Agreement. The Awardee is relying
solely on such advisors, and not on any statements or
representations of the Company or any of its agents, if any, made
to the Awardee. The Awardee understands that the Awardee (and not
the Company) shall be responsible for the Awardee’s own
liability arising as a result of the transactions contemplated by
this Agreement.
12. Section 83(b) Election. The
Awardee hereby acknowledges that the Awardee has been informed
that, with respect to the Restricted Shares, the Awardee may file
an election with the Internal Revenue Service, within 30 days of
the execution of this Agreement, electing pursuant to Section 83(b)
of the Code to be taxed currently on any difference between the
purchase price of the Restricted Shares and their fair market value
on the date of purchase. Absent such an election, taxable income
will be measured and recognized by the Awardee at the time or times
at which the forfeiture restrictions on the Restricted Shares
lapse. The Awardee is strongly encouraged to seek the advice of his
or her own tax consultant in connection with the issuance of the
Restricted Shares and the advisability of filing of the election
under Section 83(b) of the Code. THE AWARDEE ACKNOWLEDGES THAT IT IS NOT THE
COMPANY’S RESPONSIBILTY, BUT RATHER IS THE AWARDEE’S
SOLE RESPONSIBILITY, TO FILE THE ELECTION UNDER SECTION 83(b)
TIMELY. If the Awardee files an election under Section 83(b)
of the Code, the Awardee shall promptly furnish the Company with a
copy of the election. A form of election under Section 83(b) of the
Code is attached hereto as Exhibit B for
reference.
13. Employment. The Awardee
acknowledges and agrees that (i) nothing in this Agreement or
the Plan confers on the Awardee any right to continue an
employment, service or consulting relationship with the Company,
nor shall it affect in any way the Awardee’s right or the
Company’s right to terminate the Awardee’s employment,
service, or consulting relationship at any time, with or without
cause, subject to any employment agreement that may have been
entered into by the Commpany and the Awardee; and (ii) the
Company would not have granted this Award to the Awardee but for
these acknowledgements and agreements.
14. Notices. Notices or
communications to be made hereunder shall be in writing and shall
be delivered in person, by registered mail, by confirmed facsimile
or by a reputable overnight courier service to the Company at its
principal office or to the Awardee at his or her address contained
in the records of the Company. Alternatively, notices and other
communications may be provided in the form and manner of such
electronic means as the Company may permit.
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15. Entire Agreement; Governing
Law. The Plan is incorporated herein by reference. The Plan
and this Award Agreement constitute the entire agreement of the
parties with respect to the subject matter hereof and supersede in
their entirety all prior undertakings and agreements of the Company
and the Awardee with respect to the subject matter hereof, and may
not be modified adversely to the Awardee’s interest except by
means of a writing signed by the Company and the Awardee. In the
event of any conflict between this Agreement and the Plan, the Plan
shall be controlling. This Agreement shall be construed under the
laws of the State of Delaware, without regard to conflict of laws
principles.
16. Opportunity for Review. Awardee
and the Company agree that this Award is granted under and governed
by the terms and conditions of the Plan and this Award Agreement.
The Awardee has reviewed the Plan and this Award Agreement in their
entirety, has had an opportunity to obtain the advice of counsel
prior to accepting this Award Agreement and fully understands all
provisions of the Plan and this Award Agreement. The Awardee hereby
agrees to accept as binding, conclusive and final all decisions or
interpretations of the Committee upon any questions relating to the
Plan and this Award Agreement. The Awardee further agrees to notify
the Company upon any change in Awardee’s residence
address.
17. Binding Effect. This Agreement
shall be binding upon and inure to the benefit of the Company and
the Awardee and their respective permitted successors, assigns,
heirs, beneficiaries and representatives.
18. Section 409A Compliance. To the
extent that this Agreement and the award of Restricted Shares
hereunder are or become subject to the provisions of Section 409A
of the Code, the Company and the Awardee agree that this Agreement
may be amended or modified by the Company, in its sole discretion
and without the Awardee’s consent, as appropriate to maintain
compliance with the provisions of Section 409A of the
Code.
[Signature Page Follows]
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth in Exhibit A.
By:________________________________
Name:
Title:
AWARDEE
___________________________________
Name:
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EXHIBIT A
(a). Awardee’s
Name:
(b). Award
Date:
(c). Number
of Restricted Shares
Granted:
(d). Restriction
Period:
_______
(Initials)
Awardee
_______
(Initials)
Company
Signatory
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EXHIBIT B
OF THE INTERNAL REVENUE CODE OF 1986
1. The
name, address and taxpayer identification number of the undersigned
are:
[Address]
Social
Security Number: ___-__-____
2. The
election is being made with respect to [________] shares of [common
stock] (the “Stock”) of Adgero Biopharmaceuticals
Holdings, Inc., a Delaware corporation (the
"Company").
3. The
date on which the Stock was transferred to the undersigned was
[_______________]. The taxable year for which this election is
being made is calendar year [____].
4. The
property is subject to the following restrictions:
The
above-mentioned shares may not be transferred and are subject to
forfeiture under the terms of an agreement between the taxpayer and
the Company. These restrictions lapse upon the satisfaction of
certain conditions contained in such agreement.
Disposition of the
Stock also may be subject to restrictions imposed under applicable
federal and state securities laws.
5. The
fair market value of the Stock at the time of transfer (determined
without regard to any lapse restriction, as defined in
§1.83-3(i) of the Regulations) was
$[___________].
6. [The
undersigned did not pay any amount for the Stock. Therefore,
$[______] (the full fair market value of the Stock stated above) is
includible in the undersigned's gross income as compensation for
services.]
7. A
copy of this election has been furnished to the Company [and to the
transferee of the Stock, if different from the taxpayer] as
required by §1.83-2(d) of the Regulations.
Dated:
________________ ___________________________
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INSTRUCTIONS FOR FILING SECTION 83(B) ELECTION
1.
Execute three counterparts of your completed election (plus one
extra counterpart for each person other than you, if any who
receives property that is the subject of your election), retaining
at least one photocopy for your records.
2. Send
one counterpart to the Internal Revenue Service Center with which
you will file your Federal income tax return for the current via
certified mail, return receipt requested. THE ELECTION SHOULD BE
SENT IMMEDIATELY, AS YOU ONLY HAVE 30 DAYS FROM THE
ISSUANCE/PURCHASE/GRANT DATE WITHIN WHICH TO MAKE THE ELECTION
– NO WAIVERS, LATE FILINGS OR EXTENSIONS ARE
PERMITTED.
3.
Deliver one counterpart of the completed election to the Company
for its files.
4. If
anyone other than you (e.g., one of your family members) will
receive property that is the subject of your election, deliver one
counterpart of the completed election to each such
person.
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