EXHIBIT 10.3
FORM OF RSA
EYETECH PHARMACEUTICALS, INC.
Restricted Stock Agreement
Granted Under 2003 Stock Incentive Plan
AGREEMENT is effective as of [Date_of_Issuance], between Eyetech
Pharmaceuticals, Inc., a Delaware corporation (the "Company"), and [Participant]
(the "Participant").
For valuable consideration, receipt of which is acknowledged, the parties
hereto agree as follows:
1. Purchase of Shares.
The Company shall issue and sell to the Participant, and the Participant
shall purchase from the Company, subject to the terms and conditions set forth
in this Agreement and in the Company's 2003 Stock Incentive Plan (the "Plan"),
[Shares] shares (the "Shares") of common stock, par value $0.01 per share, of
the Company ("Common Stock"), at a purchase price of $0.01 per share, the
receipt by the Company of which is hereby acknowledged. The Participant hereby
authorizes the Company to withhold from the Participant's paycheck from the
Company, after applicable withholdings, the aggregate purchase price for the
Shares. The Company shall, at the Participant's option, (a) issue one or more
certificates in the name of the Participant for that number of Shares purchased
by the Participant with such certificates to be held in escrow pursuant to
Section 5 of this Agreement or (b) issue certificates in electronic format
through a stock incentive plan administration system sponsored by the Company.
The Participant agrees that the Shares shall be subject to the automatic
repurchase right set forth in Sections 2 and 3 of this Agreement and the
restrictions on transfer set forth in Section 4 of this Agreement.
2. Automatic Repurchase Right.
(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 [Date],
[Final_Vest], all of the Unvested Shares (as defined below) shall automatically
be repurchased from the Participant by the Company (the "Repurchase Right") for
a sum of $0.01 per share (the "Repurchase Price").
"Unvested Shares" means the total number of Shares which have not vested
in accordance with the following vesting schedule 1:
- On [Date], [M_1st_Vest], 25% of the Shares shall vest.
- On [Date],[M_2nd_Vest], an additional 25% of the Shares shall vest such
that a total of 50% of the Shares shall have vested.
- On [Date], [M_3rd_Vest], an additional 25% of the Shares shall vest such
that a total of 75% of the Shares shall have vested.
- On [Date], [Final_Vest], an additional 25% of the Shares shall vest such
that 100% of the Shares shall have vested.
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(1) Shares will be rounded to the nearest whole number accordingly. No
fractional shares shall be issued.
(b) To the extent the vesting of any Shares occurs during a
"blackout period" of the Company wherein the Participant is precluded from
selling Shares and unless the Company notifies the Participant of its intention
to withhold from those Shares issuable to the Participant the whole number of
Shares sufficient to satisfy the minimum applicable Tax Withholding Obligation
in accordance with Section 8(b)(3), the vesting of such Shares shall be delayed,
provided, however, that the vesting of such Shares shall not be delayed if such
Shares are specifically covered by a Rule 10b5-1 trading plan of the Participant
which causes such Shares to be exempt from any applicable blackout period then
in effect. In the event the vesting of any Shares is delayed due to the
existence of a regularly scheduled blackout period, such Shares shall vest on
the earlier to occur of (i) the first day following the termination of such
regularly scheduled blackout period and (ii) the date the Participant ceases to
be subject to the blackout period. In the event the vesting of any Shares is
delayed due to the existence of a special blackout period, such Shares shall
vest on the earlier to occur of (i) the first day following the termination of
such special blackout period as determined by the General Counsel of the Company
and (ii) the date the Participant ceases to be subject to the blackout period.
(c) Notwithstanding the foregoing, in the event that the
Participant's employment with the Company is terminated after [Date],
[M_1st_Vest] and before [Date], [Final_Vest] by the Company without Cause, by
The Participant for "Good Reason," or by reason of death or disability, the
number of the Shares for which the Repurchase Right is exercisable shall be the
product of (i) the total number of Shares subject to this Agreement multiplied
by (ii) the quotient determined by dividing the number of partial and full
months remaining between the termination date and [Date], [Final_Vest] by
[months]. In the event the Participant's employment with tHe Company is
terminated as described in the preceding sentence during a blackout period, the
vesting of any Shares pursuant to Sections 2(a) and 2(c) of this Agreement shall
not be delayed pursuant to Section 2(b) of this Agreement and such Shares shall
be deemed to have vested immediately prior to the termination of the
Participant's employment. For purposes of this Agreement, "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.
"Good Reason" means the occurrence of any of the following events or
conditions unless consented to by the Participant (and the Participant shall be
deemed to have consented to any such event or condition unless the Participant
provides written notice of the Participant's non-acquiescence within 30 days of
the effective time of such event or condition):
(i) a reduction in the Participant's base salary to a level below
that in effect at any time within the preceding six (6) months; provided that a
reduction in the salary level of a majority of all other individuals in
positions similar to the Participant's by a similar percentage amount shall not
constitute such a salary reduction; or
(ii) requiring the Participant to be based at any place outside a
30-mile radius from the Grantee's job location except for reasonably required
travel on business.
(d) For purposes of this Agreement, employment with the Company
shall include employment with a parent or subsidiary of the Company.
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3. Exercise of Repurchase Right.
(a) Upon the termination of the employment of the Participant with
the Company, the Repurchase Right shall automatically be exercised with respect
to all Unvested Shares held by the Participant and the Company and/or its
assigns shall automatically become the legal and beneficial owner of the
Unvested Shares being purchased and all rights and interest thereon or related
thereto, and the Company shall have the right to transfer to its own name or its
assigns the number of Unvested Shares being purchased, without further action by
the Participant (or his estate). Within 10 business days after termination of
the employment of the Participant with the Company, the Company shall pay to the
Participant the aggregate Repurchase Price for such repurchased Shares (provided
that any delay in making such payment shall not invalidate the Company's
repurchase of such Shares).
(b) After the automatic repurchase of the Unvested Shares pursuant
to subsection (b) above, the Company shall not pay any dividends to the
Participant on account of such Shares or permit the Participant to exercise any
of the privileges or rights of a stockholder with respect to such Shares, but
shall, in so far as permitted by law, treat the Company as the owner of such
Shares.
(c) The Repurchase Price 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.
(d) The Company shall not purchase any fraction of a Share upon
exercise of the Repurchase Right, and any fraction of a Share resulting from a
computation made pursuant to Section 2 of this Agreement shall be rounded to the
nearest whole Share (with any one-half Share being rounded upward).
(e) The Company may assign its Repurchase Right to one or more
persons or entities.
4. Restrictions on Transfer.
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, that are subject to the Repurchase Right,
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 Repurchase Right) 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, the securities or other property received by the Participant in connection
with such transaction shall remain subject to this Agreement.
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5. Escrow.
The Participant shall, upon the execution of this Agreement, execute Joint
Escrow Instructions in the form attached to this Agreement as Exhibit A. The
Joint Escrow Instructions shall be delivered to the Secretary of the Company, as
escrow agent thereunder. The Participant shall deliver to such escrow agent a
stock assignment duly endorsed in blank, in the form attached to this Agreement
as Exhibit B, and hereby instructs the Company to deliver to such escrow agent,
on behalf of the Participant, the certificate(s) evidencing the Shares issued
hereunder. Such materials shall be held by such escrow agent pursuant to the
terms of such Joint Escrow Instructions.
6. Restrictive Legends.
All certificates representing Shares that have not vested shall have
affixed thereto legends in substantially the following form, 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
restrictions on transfer and a repurchase right 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."
7. Provisions of the Plan.
(a) This Agreement is subject to the provisions of the Plan, a copy
of which is furnished to the Participant with this Agreement.
(b) As provided in the Plan, upon the occurrence of a Reorganization
Event (as defined in the Plan), the repurchase and 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 which the Shares were converted into
or exchanged for pursuant to such Reorganization Event in the same manner and to
the same extent as they applied to the Shares under this Agreement. 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.
(c) As provided in the Plan, upon the occurrence of a Change in
Control Event (as defined in the Plan and regardless of whether such event also
constitutes a Reorganization Event), the Shares shall continue to become free
from the Repurchase Right in accordance with the original schedule set forth in
Section 2 of this Agreement; provided, however, that if, on or prior to the date
that is six months after the date of the consummation of the Change in Control
Event, the Participant's employment with the Company or the acquiring or
succeeding corporation is terminated without Cause by the Company or the
acquiring or
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succeeding corporation, the Shares then subject to the Repurchase Right shall
immediately become free from the Repurchase Right.
8. Withholding Taxes; Section 83(b) Election.
(a) General. The Participant is ultimately liable and responsible
for all taxes owed by the Participant in connection with the issuance of Shares
pursuant to this Agreement, regardless of any action the Company takes with
respect to any tax withholding obligations that arise in connection with the
issuance of Shares pursuant to this Agreement.
(b) Payment of Withholding Taxes. Prior to any event in connection
with the Shares issued pursuant to this Agreement (e.g., vesting) that the
Company determines may result in any tax withholding obligation, whether United
States federal, state, local or non-U.S., including any employment tax
obligation (the "Tax Withholding Obligation"), the Participant must arrange for
the satisfaction of the minimum amount of such Tax Withholding Obligation in a
manner acceptable to the Company.
(1) By Sale of Shares. Unless the Participant determines to
satisfy the Tax Withholding Obligation by some other means in accordance with
clause (ii) below, the Participant's execution of this Agreement constitutes the
Participant's instruction and authorization to the Company and any brokerage
firm determined acceptable to the Company for such purpose to sell on the
Participant's behalf a whole number of Shares from those Shares issuable to the
Participant as the Company determines to be appropriate to generate cash
proceeds sufficient to satisfy the minimum applicable Tax Withholding
Obligation. Such Shares will be sold on the day such Tax Withholding Obligation
arises (e.g., a vesting date) or as soon thereafter as practicable. The
Participant will be responsible for all broker's fees and other costs of sale,
and the Participant agrees to indemnify and hold the Company harmless from any
losses, costs, damages, or expenses relating to any such sale. To the extent the
proceeds of such sale exceed the Participant's minimum Tax Withholding
Obligation, the Company agrees to pay such excess in cash to the Participant.
The Participant acknowledges that the Company or its designee is under no
obligation to arrange for such sale at any particular price, and that the
proceeds of any such sale may not be sufficient to satisfy the Participant's
minimum Tax Withholding Obligation. Accordingly, the Participant agrees to pay
to the Company as soon as practicable, including through additional payroll
withholding, any amount of the Tax Withholding Obligation that is not satisfied
by the sale of Shares described above.
(2) By Check, Wire Transfer or Other Means. At any time not
less than five (5) business days before any Tax Withholding Obligation arises
(e.g., a vesting date), the Participant may elect to satisfy the Participant's
Tax Withholding Obligation by delivering to the Company an amount that the
Company determines is sufficient to satisfy the Tax Withholding Obligation by
(x) wire transfer to such account as the Company may direct, (y) delivery of a
certified check payable to the Company, or (z) such other means as specified
from time to time by the Chief Financial Officer of the Company.
(3) By Share Withholding. The Participant's execution of this
Agreement constitutes the Participant's authorization to the Company to, in its
discretion, withhold from those Shares issuable to the Participant the whole
number of Shares sufficient to
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satisfy the minimum applicable Tax Withholding Obligation. The Participant
acknowledges that the withheld Shares may not be sufficient to satisfy the
Participant's minimum Tax Withholding Obligation. Accordingly, the Participant
agrees to pay to the Company as soon as practicable, including through
additional payroll withholding, any amount of the Tax Withholding Obligation
that is not satisfied by the withholding of Shares described above.
(c) Section 83(b) Election. 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 understands that it may be beneficial in many circumstances to elect
to be taxed at the time the Shares are purchased rather than when and as the
Company's Repurchase Right expires by filing an election under Section 83(b) of
the Code with the I.R.S. within 30 days from the date of purchase.
THE PARTICIPANT ACKNOWLEDGES THAT IT IS THE PARTICIPANT'S SOLE RESPONSIBILITY
AND NOT THE COMPANY'S TO FILE TIMELY THE ELECTION UNDER SECTION 83(B), EVEN IF
THE PARTICIPANT REQUESTS THE COMPANY OR ITS REPRESENTATIVES TO MAKE THIS FILING
ON THE PARTICIPANT'S BEHALF.
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 purchasing 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 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.
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(e) Notice. All notices required or permitted hereunder shall be in
writing and deemed effectively given upon personal delivery or five days after
deposit in the United States Post Office, by registered or certified mail,
postage prepaid, addressed to the other party hereto at the address shown
beneath his or its respective signature to this Agreement, or at such other
address or addresses as either party shall designate to the other in accordance
with this Section 9(e).
(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 supersedes 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) 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
EYETECH PHARMACEUTICALS, INC.
By: _____________________________________
Name: Xxxxx Xxxxxxxxxx
Title: Senior VP, Finance and CFO
PARTICIPANT
By: _____________________________________
Name: [Participant]
Address: _______________________________
_______________________________
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Exhibit A
EYETECH PHARMACEUTICALS, INC.
Joint Escrow Instructions
[Date_of_Issuance]
Xxxxxxx X. Xxxxxxxxxx
Secretary
Eyetech Pharmaceuticals, Inc.
0 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sir:
As Escrow Agent for Eyetech Pharmaceuticals, Inc., a Delaware corporation,
and its successors in interest under the Restricted Stock Agreement (the
"Agreement") of even date herewith, to which a copy of these Joint Escrow
Instructions is attached (the "Company"), and the undersigned person ("Holder"),
you are hereby authorized and directed to hold the documents delivered to you
pursuant to the terms of the Agreement in accordance with the following
instructions:
1. Appointment. Holder irrevocably authorizes the Company to deposit with
you any certificates evidencing Shares (as defined in the Agreement) to be held
by you hereunder and any additions and substitutions to said Shares. For
purposes of these Joint Escrow Instructions, "Shares" shall be deemed to include
any additional or substitute property. Holder does hereby irrevocably constitute
and appoint you as his attorney-in-fact and agent for the term of this escrow to
execute with respect to such Shares all documents necessary or appropriate to
make such Shares negotiable and to complete any transaction herein contemplated.
You shall be permitted to provide for the escrow set forth herein through any
electronic stock incentive plan administration system sponsored by the Company,
unless otherwise requested by Holder in writing. Subject to the provisions of
this paragraph 1 and the terms of the Agreement, Holder shall exercise all
rights and privileges of a stockholder of the Company while the Shares are held
by you.
2. Closing of Repurchase.
(a) Upon any repurchase by the Company of the Shares pursuant to the
Agreement, the Company shall notify you regarding the number of Shares being
repurchased and the aggregate repurchase price for the Shares being repurchased,
as determined pursuant to the Agreement, and the time for a closing hereunder
(the "Closing") at the principal office of the Company. Holder and the Company
hereby irrevocably authorize and direct you to close the transaction
contemplated by such notice in accordance with the terms of said notice.
(b) At the Closing, you are directed (i) to date the stock
assignment form or forms necessary for the transfer of the Shares, (ii) to fill
in on such form or forms the number of
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Shares being transferred, and (iii) to deliver same, together with the
certificate or certificates evidencing the Shares to be transferred, to the
Company against the simultaneous delivery to you of the repurchase price for the
Shares being repurchased pursuant to the Agreement.
3. Withdrawal. The Holder shall have the right to withdraw from this
escrow any Shares as to which the Repurchase Right (as defined in the Agreement)
has terminated or expired.
4. Duties of Escrow Agent.
(a) Your duties hereunder may be altered, amended, modified or
revoked only by a writing signed by all of the parties hereto.
(b) You shall be obligated only for the performance of such duties
as are specifically set forth herein and may rely and shall be protected in
relying or refraining from acting on any instrument reasonably believed by you
to be genuine and to have been signed or presented by the proper party or
parties. You shall not be personally liable for any act you may do or omit to do
hereunder as Escrow Agent or as attorney-in-fact of Holder while acting in good
faith and in the exercise of your own good judgment, and any act done or omitted
by you pursuant to the advice of your own attorneys shall be conclusive evidence
of such good faith.
(c) You are hereby expressly authorized to disregard any and all
warnings given by any of the parties hereto or by any other person or Company,
excepting only orders or process of courts of law, and are hereby expressly
authorized to comply with and obey orders, judgments or decrees of any court. In
case you obey or comply with any such order, judgment or decree of any court,
you shall not be liable to any of the parties hereto or to any other person,
firm or Company by reason of such compliance, notwithstanding any such order,
judgment or decree being subsequently reversed, modified, annulled, set aside,
vacated or found to have been entered without jurisdiction.
(d) You shall not be liable in any respect on account of the
identity, authority or rights of the parties executing or delivering or
purporting to execute or deliver the Agreement or any documents or papers
deposited or called for hereunder.
(e) You shall be entitled to employ such legal counsel and other
experts as you may deem necessary properly to advise you in connection with your
obligations hereunder and may rely upon the advice of such counsel.
(f) Your rights and responsibilities as Escrow Agent hereunder shall
terminate if (i) you cease to be Secretary of the Company or (ii) you resign by
written notice to each party. In the event of a termination under clause (i),
your successor as Secretary shall become Escrow Agent hereunder; in the event of
a termination under clause (ii), the Company shall appoint a successor Escrow
Agent hereunder.
(g) If you reasonably require other or further instruments in
connection with these Joint Escrow Instructions or obligations in respect
hereto, the necessary parties hereto shall join in furnishing such instruments.
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(h) It is understood and agreed that should any dispute arise with
respect to the delivery and/or ownership or right of possession of the
securities held by you hereunder, you are authorized and directed to retain in
your possession without liability to anyone all or any part of said securities
until such dispute shall have been settled either by mutual written agreement of
the parties concerned or by a final order, decree or judgment of a court of
competent jurisdiction after the time for appeal has expired and no appeal has
been perfected, but you shall be under no duty whatsoever to institute or defend
any such proceedings.
(i) These Joint Escrow Instructions set forth your sole duties with
respect to any and all matters pertinent hereto and no implied duties or
obligations shall be read into these Joint Escrow Instructions against you.
(j) The Company shall indemnify you and hold you harmless against
any and all damages, losses, liabilities, costs, and expenses, including
attorneys' fees and disbursements, for anything done or omitted to be done by
you as Escrow Agent in connection with this Agreement or the performance of your
duties hereunder, except such as shall result from your gross negligence or
willful misconduct.
5. Notice. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery or upon
deposit in the United States Post Office, by registered or certified mail with
postage and fees prepaid, addressed to each of the other parties thereunto
entitled at the following addresses, or at such other addresses as a party may
designate by ten days' advance written notice to each of the other parties
hereto.
COMPANY: Notices to the Company shall be sent to
the address set forth in the salutation
hereto, Attn: CFO
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HOLDER: Notices to Holder shall be sent to the
address set forth below Holder's signature
below.
ESCROW AGENT: Notices to the Escrow Agent shall
be sent to the address set forth in the
salutation hereto.
6. Miscellaneous.
(a) By signing these Joint Escrow Instructions, you become a party
hereto only for the purpose of said Joint Escrow Instructions, and you do not
become a party to the Agreement.
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(b) This instrument shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted assigns.
Very truly yours,
EYETECH PHARMACEUTICALS, INC.
By:_____________________________________
Name: Xxxxx Xxxxxxxxxx
Title: Senior VP, Finance and CFO
HOLDER:
By:_____________________________________
Name: [Participant]
Address: ______________________________
______________________________
Date Signed: ____________________
ESCROW AGENT:
_________________________________
Xxxxxxx X. Xxxxxxxxxx
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Exhibit B
(STOCK ASSIGNMENT SEPARATE FROM CERTIFICATE)
FOR VALUE RECEIVED, I hereby sell, assign and transfer unto
__________________ (_________) shares of Common Stock, par value $0.01 per
share, of Eyetech Pharmaceuticals, Inc. (the "Corporation") standing in my name
on the books of the Corporation represented by Certificate(s) Number __________
herewith, and do hereby irrevocably constitute and appoint
______________________ attorney to transfer the said stock on the books of the
Corporation with full power of substitution in the premises as contemplated
under the terms of the Restricted Stock Agreement and Joint Escrow Instructions
of even date herewith.
Dated: ____________________
By: _______________________________
IN PRESENCE OF
___________________________________
