EXHIBIT 10.67
OSTEOTECH, INC.
2000 STOCK PLAN
INDEPENDENT DIRECTOR
RESTRICTED STOCK UNIT AGREEMENT
THIS RESTRICTED STOCK UNIT AGREEMENT (the "Agreement"), is dated as of
[___________, ____] (the "Grant Date") by and between Osteotech, Inc., a
Delaware corporation (the "Company"), and [_____________] (the "Director")
located at _______________________________________, pursuant to the Company's
Amended and Restated 2000 Stock Plan (the "Plan").
For good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Company and Director hereby agree as follows:
1. Grant of Stock Units.
Subject to the terms and conditions of this Agreement and of the Plan, the
Company hereby grants to the Director restricted stock units ("Stock Units")
covering [_________] shares (the "Shares") of the Company's common stock (the
"Common Stock"). Each Stock Unit represents one share of Common Stock.
2. Vesting Schedule.
(a) Subject to the Director's not ceasing to be a member of the Board of
Directors of the Company (the "Board") during the vesting period, the interest
of the Director in the Stock Units shall fully vest, and all Shares subject to
the Stock Units shall be issued in accordance with Section 3 below, on the one
year anniversary of the Grant Date.
(b) Except as otherwise provided for in this Agreement, if the Director
ceases to be a member of the Board for any reason including as a result of the
Director's death or disability (within the meaning of Section 22(e)(3) of the
Code) prior to the one year anniversary of the Grant Date, all Stock Units
granted hereunder shall be forfeited by, and no further rights to the Stock
Units shall accrue to, the Director.
3. Benefit Upon Vesting.
Upon the vesting of the Stock Units, the Director shall be entitled to
receive, and the Company shall issue to the Director, a number of Shares equal
to the number of Stock Units that have vested on the vesting date.
4. Adjustment of Shares.
(a) The number of shares issuable upon vesting of the Stock Units shall be
adjusted proportionately in order to prevent dilution or enlargement of the
benefits or potential benefits intended to be provided under the Stock Units
upon the occurrence of a stock split or reverse stock split of the Common Stock
or a dividend payable to all holders of Common Stock in shares
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of Common Stock. The provisions of this Section 4(a) reflect the determination
of the Compensation Committee as authorized in Section 4(c) of the Plan.
(b) In the event of a dissolution or liquidation of the Company all
unvested Stock Units shall terminate.
(c) In the event that the Company is a party to a merger or consolidation,
the Stock Units shall be subject to the agreement of merger or consolidation.
Such agreement, without the Director's consent, may provide for:
(i) The continuation of the Stock Units by the Company (if the Company
is the surviving corporation);
(ii) The assumption of the Plan and the Stock Units by the surviving
corporation or its parent;
(iii) The substitution by the surviving corporation or its parent of
stock units with substantially the same terms as the Stock Units; or
(iv) The cancellation of the Stock Units, provided that the Company
shall have the right prior to such merger or consolidation to issue the Shares
subject to the Stock Units in whole or in part, whether or not the Director's
right to the issuance of the Shares subject to the Stock Units has otherwise
accrued pursuant to Section 2 of this Agreement.
5. Restrictions.
Except as otherwise provided for in this Agreement or applicable law, the
Stock Units or rights granted hereunder may not be sold, pledged or otherwise
transferred until the Stock Units become vested in accordance with Section 2 and
the Shares are issued under Section 3.
6. No Stockholder Rights.
Stock Units represent hypothetical shares of Common Stock. During the
Restriction Period, the Director shall not be entitled to any of the rights or
benefits generally accorded to stockholders with respect to the Stock Units.
7. Taxes.
(a) The Director shall be liable for any and all taxes of any nature and
whether arising under U.S., state, local or foreign laws, including withholding
taxes, interest or penalties, if any, arising out of this grant, the vesting of
Stock Units hereunder, the transfer of Shares or other property in settlement of
the Stock Units or any subsequent transfer or disposition of the Shares or such
property.
(b) Regardless of any action the Company takes with respect to any or all
income tax, social insurance, payroll tax, payment on account or other
tax-related withholding ("Tax-Related Items"), the Director acknowledges and
agrees that the ultimate liability for all Tax-Related
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Items legally due by the Director is and remains the Director's responsibility
and that the Company (i) makes no representations nor undertakings regarding the
treatment of any Tax-Related Items in connection with any aspect of this grant
of Stock Units, including the vesting of Stock Units, subsequent payment of
Common Stock and/or cash related to such Stock Units or the subsequent sale or
other disposition of any Common Stock acquired pursuant to such Stock Units; and
(ii) does not commit to structure the terms or any aspect of this grant of Stock
Units to reduce or eliminate the Director's liability for Tax-Related Items. The
Director shall pay the Company any amount of Tax-Related Items that the Company
may be required to withhold as a result of the Director's participation in the
Plan or the Director's receipt of Stock Units; provided that the Company can
also satisfy any withholding obligations by any means set forth in Section 8 of
the Plan, and if the Director does not otherwise so pay the Company, then the
Company has the right to withhold amounts from the Director's cash compensation
to satisfy such withholding obligation. The Company may refuse to deliver the
benefit described in Section 3 if the Director fails to comply with the
Director's obligations in connection with the Tax-Related Items (including if
the Director's cash compensation is not sufficient to satisfy such obligations).
8. Data Privacy Consent.
The Director hereby explicitly and unambiguously consents to the
collection, use and transfer, in electronic or other form, of the Director's
personal data as described in this document by and among, as applicable, the
Company and its subsidiaries and affiliates for the exclusive purpose of
implementing, administering and managing the Director's participation in the
Plan. The Director understands that the Company, its affiliates and its
subsidiaries hold certain personal information about the Director, including,
but not limited to, name, home address and telephone number, date of birth,
social security or insurance number or other identification number, salary,
nationality, job title, any shares of stock or directorships held in the
Company, details of all options or any other entitlement to shares of stock
awarded, canceled, purchased, exercised, vested, unvested or outstanding in the
Director's favor for the purpose of implementing, managing and administering the
Plan ("Data"). The Director understands that the Data may be transferred to any
third parties assisting in the implementation, administration and management of
the Plan, that these recipients may be located in the Director's country or
elsewhere and that the recipient country may have different data privacy laws
and protections than the Director's country. The Director understands that the
Director may request a list with the names and addresses of any potential
recipients of the Data by contacting the administrator of the Plan as may be
designated from time to time by the Company (the "Plan Administrator"). The
Director authorizes the recipients to receive, possess, use, retain and transfer
the Data, in electronic or other form, for the purposes of implementing,
administering and managing the Director's participation in the Plan, including
any requisite transfer of such Data, as may be required to a broker or other
third party with whom the Director may elect to deposit any Common Stock
acquired under the Plan. If the Director is a citizen or resident of a country
which is a member of the European Union, the Data will only be shared with third
parties that are subject to the EU Privacy directive as locally implemented, the
Safe Harbor framework or other adequate certification. The Director understands
that Data will be held only as long as is necessary to implement, administer and
manage participation in the Plan. The Director understands that he or she may,
at any time, review Data in order to correct, change or delete inaccurate
information, request additional information about the storage and processing of
the
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Data, require any necessary amendments to the Data or refuse or withdraw the
consents herein, in any case without cost, by contacting the Plan Administrator
in writing. The Director understands that refusing or withdrawing consent may
affect the Director's ability to participate in the Plan. For more information
on the consequences of refusing to consent or withdrawing consent, the Director
understands that he or she may contact the Plan Administrator at the Company.
9. Plan Information.
The Director acknowledges that the Director has access to and is deemed to
have received a copy of the Plan and the Plan prospectus from the Company and
agrees to receive stockholder information, including copies of any annual
report, proxy statement and periodic report, from the Company's website at
xxxx://xxx.xxxxxxxxx.xxx/xxxxxx.xxx. The Director acknowledges that copies of
the Plan, Plan prospectus, Plan information and stockholder information are also
available upon written or telephonic request to the Plan Administrator.
10. Director Acknowledgments.
By accepting this grant of Stock Units, the Director acknowledges and
agrees that the Plan is established voluntarily by the Company, it is
discretionary in nature and may be modified, amended, suspended or terminated by
the Company at any time unless otherwise provided in the Plan or this Agreement.
The Director acknowledges that all decisions with respect to future grants, if
any, will be at the sole discretion of the Company. The Director's participation
in the Plan shall not create a right to further participation on the Board and
shall not interfere with the ability of the stockholders to remove the Director.
The Director agrees that Stock Units, stock unit grants and resulting benefits
are an extraordinary item that do not constitute compensation of any kind for
services of any kind rendered to the Company. Stock Units, stock unit grants and
resulting benefits are not part of normal or expected compensation or salary for
any purposes, including, but not limited to calculating any severance,
resignation, termination, redundancy, end of service payments, bonuses,
long-service awards, pension or retirement benefits or similar payments insofar
as permitted by law. This grant of Stock Units will not be interpreted to form a
service contract or relationship with the Company or any subsidiary or affiliate
of the Company. The Director acknowledges that the future value of the Shares is
unknown, may increase or decrease from the date of grant or vesting of the Stock
Units and cannot be predicted with certainty. In consideration of this grant of
Stock Units, no claim or entitlement to compensation or damages shall arise from
termination of this grant of Stock Units or diminution in value of this grant of
Stock Units resulting from the Director's resignation or removal from the Board
of Directors by the Company for any reason whatsoever and whether or not in
breach of any applicable laws. Upon the Director's ceasing to be a member of the
Board, the Director's right to receive benefits shall be only as set forth in
this Agreement and his or her ceasing to be a member of the Board will not be
extended by any notice period mandated under local law, and the Board or
Compensation Committee shall have the exclusive discretion to determine when the
Director is no longer a member of the Board for purposes of this grant of Stock
Units.
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11. Notices.
All notices or other communications which are required or permitted
hereunder shall be deemed to be sufficient if contained in a written instrument
given by personal delivery, air courier or registered or certified mail, postage
prepaid, return receipt requested, addressed to such party at the address set
forth below or such other address as may thereafter be designated in a written
notice from such party to the other party:
If to the Company, to:
Attention: Chief Financial Officer
Osteotech, Inc.
00 Xxxxx Xxx
Xxxxxxxxx, Xxx Xxxxxx 00000
If to the Director, to:
Address provided above
All such notices, advances, and communications shall be deemed to have been
delivered and received (a) in the case of personal delivery, on the date of such
delivery, (b) in the case of air courier, on the business day after the date
when sent and (c) in the case of mailing, on the third business day following
such mailing.
12. Miscellaneous.
(a) The Company shall not be required to treat as the owner of Stock Units,
and associated benefits hereunder, any transferee to whom such Stock Units or
benefits shall have been so transferred in violation of this Agreement.
(b) The Director shall take whatever additional actions and execute
whatever additional documents the Company may deem necessary or advisable in
order to carry out or effect one or more of the obligations or restrictions
imposed on the Director pursuant to the express provisions of this Agreement.
(c) The Plan is incorporated herein by reference. The Stock Units are
issued pursuant to the Plan and are subject to its terms. No waiver or breach of
any condition of this Agreement shall be deemed to be a waiver of any other or
subsequent breach of condition, whether of like or different nature. This
Agreement is governed by the laws of the state of Delaware. In the event of any
conflict between the terms and provisions of the Plan and this Agreement, the
Plan terms and provisions shall govern. Capitalized terms used but not defined
in this Agreement have the meanings assigned to them in the Plan. Certain other
important terms governing this Agreement are contained in the Plan. This
Agreement may be executed in counterparts, each of which shall be deemed to be
an original, but all of which together shall constitute one and the same
instrument.
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(d) The provisions of this Agreement are severable and if any one or more
provisions are determined to be illegal or otherwise unenforceable, in whole or
in part, the remaining provisions shall nevertheless be binding and enforceable.
(e) This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and thereof, merging any and all prior
agreements.
(f) To the extent the Company determines that this Agreement is subject to
Code Section 409A, but does not conform with the requirements thereof, the
Company may at its sole discretion amend or replace the Agreement to cause the
Agreement to comply with Code Section 409A.
(g) To the extent that the Company in good faith determines that any
payment provided for hereunder (meaning, the vesting and obligation to issue any
Shares hereunder) constitutes a "deferral of compensation" and that the Director
is a "key employee" (in each case as such terms are defined under Code Section
409A), no amounts shall be payable to the Director pursuant hereto prior to the
earliest of (a) the Director's death following the date of Director's
termination of services to the Board, or (b) the date that is six months
following the date of the Director's "separation from service" with the Company
(within the meaning of Code Section 409A).
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the date set forth above.
OSTEOTECH, INC.
By:
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Name: Xxx Xxxxx-Akyaw
Title: President and Chief Executive
Officer
By:
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[Name of Director]
DIRECTOR SHOULD RETAIN THIS AGREEMENT FOR HIS OR HER RECORDS
SV 2216875 v5
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