Gen-Probe Incorporated 2003 Incentive Award Plan Restricted Stock Award Agreement
Exhibit 10.79
Pursuant to the Restricted Stock Grant Notice (“Grant Notice”) and this Restricted Stock Award
Agreement (“Agreement”), Gen-Probe Incorporated (the “Company”) has awarded you (“Holder”) the
right to acquire shares of Common Stock from the Company pursuant to Article VII of The 2003
Incentive Award Plan of Gen-Probe Incorporated (the “Plan”) for the number of shares indicated in
the Grant Notice (collectively, the “Award”). The Award is granted in exchange for past or future
services to be rendered by you to the Company or an Affiliate. In the event additional
consideration is required by law so that the Common Stock acquired under this Agreement is deemed
fully paid and nonassessable, the Board shall determine the amount and character of such additional
consideration to be paid. Capitalized terms not otherwise defined in this Agreement shall have the
meanings set forth in the Plan.
The details of your Award, in addition to those set forth in the Grant Notice, are as follows.
1. Acquisition
of Shares. By signing the Grant Notice, you hereby agree to acquire
from the Company, and the Company hereby agrees to issue to you, the aggregate number of shares of
Common Stock specified in your Grant Notice for the consideration set forth in Section 3 and
subject to all of the terms and conditions of the Award and the Plan. You may not acquire less
than the aggregate number of shares specified in the Grant Notice.
2. Closing. Your acquisition of the shares shall be consummated as follows:
(a) You will acquire the shares by delivering your Grant Notice, executed by you in the manner
required by the Company, to the Corporate Secretary of the Company, or to such other person as the
Company may designate, during regular business hours, on the date that you have executed the Grant
Notice (or at such other time and place as you and the Company may mutually agree upon in writing)
(the “Closing Date”) along with any consideration, other than your past or future services,
required to be delivered by you by law on the Closing Date and such additional documents as the
Company may then require.
(b) The Company will direct the transfer agent for the Company to deliver to the Escrow Agent
pursuant to the terms of Section 9 below, the certificate or certificates evidencing the shares of
Common Stock being acquired by you. You acknowledge and agree that any such shares may be held in
book entry form directly registered with the transfer agent or in such other form as the Company
may determine.
3. Consideration. Unless otherwise required by law, the shares of Common Stock to be
delivered to you on the Closing Date shall be deemed paid, in whole or in part, in exchange for
past and future services to be rendered to the Company or an Affiliate in the amounts and to the
extent required by law.
4. Vesting.
(a) The shares will vest as provided in the Vesting Schedule set forth in your Grant Notice,
provided that vesting shall cease upon your Termination of Employment. Notwithstanding the
foregoing, in the event that (i) you are a member of the Company’s Restricted Group under the
Company’s Securities Trading Policy (or any successor policy) and any shares covered by your Award
would, but for this sentence, vest on a day (the “Original Vest Date”) that does not occur during a
period when you would be permitted to sell shares as determined by the Company in accordance with
such policy, or (ii) the Original Vest Date would, but for this sentence, occur at a time when you
are in possession of material non-public information about the Company, and, in either case, you do
not have in place as of the Original Vest Date a valid, Company-approved 10b5-1 sales plan
sufficient to generate proceeds adequate to pay income and other taxes due as a result of such
vesting, then such shares shall not vest on such Original Vest Date and shall instead vest on the
earliest to occur of the following: (i) the first day that you are no longer in possession of
material non-public information about the Company or the first day the Company’s “trading window”
applicable to you pursuant to such policy permits you to sell such shares, as applicable; (ii) your
Termination of Employment; or (iii) the day that is sixty (60) days after the Original Vest Date.
Shares acquired by you that have vested in accordance with the Vesting Schedule set forth in the
Grant Notice and this Section 4(a) or any other provision of the Plan
are “ Vested Shares.” Shares
acquired by you pursuant to this Agreement that are not Vested Shares
are “Unvested Shares.”
5. Right
of Reacquisition. The Company shall simultaneously with your Termination of
Employment automatically reacquire (the “Reacquisition Right”) for no consideration all of the
Unvested Shares, unless the Company agrees to waive its Reacquisition Right as to some or all of
the Unvested Shares. Any such waiver shall be exercised by the Company by written notice to you or
your representative (with a copy to the Escrow Agent, as defined below) within ninety (90) days
after your Termination of Employment, and the Escrow Agent may then release to you the number of
Unvested Shares not being reacquired by the Company. If the Company does not waive its
Reacquisition Right as to all of the Unvested Shares, then upon such Termination of Employment, the
Escrow Agent shall transfer to the Company the number of Unvested Shares the Company is
reacquiring. The Reacquisition Right shall expire when all of the shares have become Vested
Shares.
6. Capitalization
Changes. The number of shares of Common Stock subject to your
Award and referenced in your Grant Notice may be adjusted from time to time for changes in
capitalization pursuant to Section 10.3 of the Plan.
7. Certain
Corporate Transactions. In the event of a transaction described in
Section 10.3 of the Plan, the Reacquisition Right may be assigned by the Company to the successor
of the Company (or such successor’s parent corporation), if any, in connection with such
transaction. To the extent the Reacquisition Right remains in effect following such transaction,
it shall apply to the new capital stock or other property received in exchange for the Common Stock
in consummation of the transaction, but only to the extent the Common Stock was at the time covered
by such right.
2.
8. Securities
Law Compliance. You may not be issued any Common Stock under your
Award unless the shares of Common Stock are either (i) then registered under the Securities Act of
1933, as amended (the “Securities Act”), or (ii) the Company has determined that such issuance
would be exempt from the registration requirements of the Securities Act. Your Award must also
comply with other applicable laws and regulations governing the Award, and you shall not receive
such Common Stock if the Company determines that such receipt would not be in compliance with such
laws and regulations.
9. Escrow
of Unvested Common Stock. As security for your faithful performance of the
terms of this Agreement and to insure the availability for delivery of your Common Stock upon
execution of the Reacquisition Right provided in Section 5, above, you agree to the following
“Joint Escrow” and “Joint Escrow Instructions,” and you and the Company hereby authorize and direct
the Corporate Secretary of the Company or the Corporate
Secretary’s designee (“Escrow Agent”) to
hold the documents delivered to Escrow Agent pursuant to the terms of this Agreement and of your
Grant Notice, in accordance with the following Joint Escrow Instructions:
(a) In the event you cease your Continuous Service, the Company shall pursuant to the
Reacquisition Right, automatically reacquire for no consideration all Unvested Shares, as of the
date of such termination, unless the Company elects to waive such right as to some or all of the
Unvested Shares. If the Company (or its assignee) elects to waive the Reacquisition Right, the
Company or its assignee will give you and Escrow Agent a written notice specifying the number of
shares of stock not to be reacquired. You and the Company hereby irrevocably authorize and direct
Escrow Agent to close the transaction contemplated by such notice as soon as practicable following
the date of termination of service in accordance with the terms of this Agreement and the notice of
waiver, if any.
(b) Vested Shares shall be delivered to you upon your request given in the manner provided in
Section 20 for providing notice.
(c) At any closing involving the transfer or delivery of some or all of the property subject
to the Grant Notice and this Agreement, Escrow Agent is directed (i) to date any stock assignments
necessary for the transfer in question, (ii) to fill in the number of shares being transferred, and
(iii) to deliver same, together with the certificate, if any, evidencing the shares of Common Stock
to be transferred, to you or the Company, as applicable.
(d) You irrevocably authorize the Company to deposit with Escrow Agent the certificates, if
any, evidencing shares of Common Stock to be held by Escrow Agent hereunder and any additions and
substitutions to said shares as specified in this Agreement. You do hereby irrevocably constitute
and appoint Escrow Agent as your attorney-in-fact and agent for the term of this escrow to execute
with respect to such securities and other property all documents of assignment and/or transfer and
all stock certificates necessary or appropriate to make all securities negotiable and complete any
transaction herein contemplated.
(e) This escrow shall terminate upon the expiration or application in full of the
Reacquisition Right, whichever occurs first, and the completion of the tasks contemplated by these
Joint Escrow Instructions.
3.
(f) If at the time of termination of this escrow, Escrow Agent should have in its possession
any documents, securities, or other property belonging to you, Escrow Agent shall deliver all of
same to you and shall be discharged of all further obligations hereunder.
(g) Except as otherwise provided in these Joint Escrow Instructions, Escrow Agent’s duties
hereunder may be altered, amended, modified, or revoked only by a writing signed by all of the
parties hereto.
(h) Escrow Agent 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 Escrow Agent to be genuine and to have been signed
or presented by the proper party or parties or their assignees. Escrow Agent shall not be
personally liable for any act Escrow Agent may do or omit to do hereunder as Escrow Agent or as
attorney-in-fact for you while acting in good faith and any act done or omitted by Escrow Agent
pursuant to the advice of Xxxxxx Agent’s own attorneys shall be conclusive evidence of such good
faith.
(i) Escrow Agent is hereby expressly authorized to disregard any and all warnings given by any
of the parties hereto or by any other person or corporation, excepting only orders or process of
courts of law, and is hereby expressly authorized to comply with and obey orders, judgments, or
decrees of any court. In case Escrow Agent obeys or complies with any such order, judgment, or
decree of any court, Escrow Agent shall not be liable to any of the parties hereto or to any other
person, firm, or corporation 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.
(j) Escrow Agent 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 this Agreement or
any documents or papers deposited or called for hereunder.
(k) Escrow Agent shall not be liable for the outlawing of any rights under any statute of
limitations with respect to these Joint Escrow Instructions or any documents deposited with Escrow
Agent.
(l) Escrow Agent’s responsibilities as Escrow Agent hereunder shall terminate if Escrow Agent
shall cease to be the Secretary of the Company or if Xxxxxx Agent shall resign by written notice to
each party. In the event of any such termination, the Company may appoint any officer or assistant
officer of the Company or other person who in the future assumes the position of Secretary for the
Company as successor Xxxxxx Agent and you hereby confirm the appointment of such successor or
successors as your attorney-in-fact and agent to the full extent of such successor Xxxxxx Agent’s
appointment.
(m) If Escrow Agent reasonably requires 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.
(n) 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, Escrow Agent is authorized
4.
and directed to retain in its 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 Xxxxxx Agent shall be
under no duty whatsoever to institute or defend any such proceedings.
(o) By signing this Agreement below Escrow Agent becomes a party hereto only for the purpose
of said Joint Escrow Instructions in this Section 9; Escrow Agent does not become a party to any
other rights and obligations of this Agreement apart from those in this Section 9.
(p) Escrow Agent shall be entitled to employ such legal counsel and other experts as Escrow
Agent may deem necessary properly to advise Escrow Agent in connection with Escrow Agent’s
obligations hereunder. Escrow Agent may rely upon the advice of such counsel, and may pay such
counsel reasonable compensation therefor. The Company shall be responsible for all fees generated
by such legal counsel in connection with Xxxxxx Agent’s obligations hereunder.
(q) These Joint Escrow Instructions set forth in this Section 9 shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and permitted assigns.
It is understood and agreed that references to “Escrow Agent” or “Escrow Agent’s” herein refer to
the original Escrow Agent and to any and all successor Escrow Agents. It is understood and agreed
that the Company may at any time or from time to time assign its rights under the Agreement and
these Joint Escrow Instructions in whole or in part.
10. Execution
of Documents. You hereby acknowledge and agree that the manner
selected by the Company by which you indicate your consent to your Grant Notice is also deemed to
be your execution of your Grant Notice and of this Agreement. You further agree that such manner
of indicating consent may be relied upon as your signature for establishing your execution of any
documents to be executed in the future in connection with your Award.
11. Irrevocable
Power of Attorney. You constitute and appoint the Company’s
Secretary as attorney-in-fact and agent to transfer said Common Stock on the books of the Company
with full power of substitution in the premises, and to execute with respect to such securities and
other property all documents of assignment and/or transfer and all stock certificates necessary or
appropriate to make all securities negotiable and complete any transaction herein contemplated.
This is a special power of attorney coupled with an interest (specifically, the Company’s
underlying security interest in retaining the shares of Common Stock in the event you do not
perform the requisite services for the Company), and is irrevocable and shall survive your death or
legal incapacity. This power of attorney is limited to the matters specified in this Agreement.
12. Rights
as Stockholder. Subject to the provisions of this Agreement, you shall
have the right to exercise all rights and privileges of a stockholder of the Company with respect
to the shares deposited in the Joint Escrow. You shall be deemed to be the holder of the
shares for purposes of receiving any dividends that may be paid with respect to such shares and
for purposes of exercising any voting rights relating to such shares, even if some or all of
the shares are Unvested Shares.
5.
13. Transfer
Restrictions. In addition to any other limitation on transfer created
by applicable securities laws, you shall not sell, assign, hypothecate, donate, encumber, or
otherwise dispose of any interest in the Common Stock while such shares of Common Stock are
Unvested Shares or continue to be held in the Joint Escrow; provided, however, that an interest in
such shares may be transferred pursuant to a domestic relations order as defined in the Internal
Revenue Code of 1986, as amended (the “Code”) or Title I of the Employee Retirement Income Security
Act of 1974, as amended. After any Common Stock has been released from the Joint Escrow, you shall
not sell, assign, hypothecate, donate, encumber, or otherwise dispose of any interest in the Common
Stock except in compliance with the provisions herein and applicable securities laws.
Notwithstanding the foregoing, by delivering written notice to the Company, in a form satisfactory
to the Company, you may designate a third party who, in the event of your death, shall thereafter
be entitled to receive any distribution of Common Stock pursuant to this Agreement.
14. Non-transferability
of the Award. Your Award (except for Vested Shares issued
pursuant thereto) is not transferable except by will or by the laws of descent and distribution.
In the event of your Termination of Employment prior to the Closing Date, the closing contemplated
in this Agreement shall not occur.
15. Lock-Up
Period. You hereby agree that, if so requested by the Company or any
representative of the underwriters (the “Managing
Underwriter”) in connection with any registration
of the offering of any securities of the Company under the Securities Act, you shall not sell or
otherwise transfer any shares of Common Stock or other securities of the Company during such period
as may be requested in writing by the Managing Underwriter and agreed to in writing by the Company,
which period shall not be longer than 90 days, following the effective date of the applicable
registration statement of the Company filed under the Securities Act.
16. Restrictive
Legends. The Common Stock issued under your Award shall be endorsed
with appropriate legends, if any, as determined by the Company.
17. Award
not a Service Contract. Your Award is not an employment or service
contract, and nothing in your Award shall be deemed to create in any way whatsoever any obligation
on your part to continue in the service of the Company or any Affiliate, or on the part of the
Company or any Affiliate to continue such service. In addition, nothing in your Award shall
obligate the Company or any Affiliate, their respective stockholders, boards of directors, or
employees to continue any relationship that you might have as an Employee or Consultant of the
Company or any Affiliate.
18. Withholding
Obligations. At the time your Award is granted, or at any time
thereafter as requested by the Company, you hereby authorize withholding from any amounts payable
to you, or otherwise agree to make adequate provision in cash for, any sums required to satisfy the
federal, state, local and foreign tax withholding obligations of the Company or any Affiliate, if
any, which arise in connection with your Award. In the Company’s sole discretion, the Company may
elect, and you hereby authorize the Company, to satisfy the Company’s
6.
withholding obligation by redeeming Vested Shares in such amounts as the Company determines
are necessary, at fair market value on the date of redemption. Unless the tax withholding
obligations of the Company and/or any Affiliate are satisfied, the Company shall have no obligation
to deliver to you any Common Stock.
19. Tax
Consequences. You agree to review with your own tax advisors the federal,
state, local and foreign tax consequences of this Award and the transactions contemplated by this
Agreement. You shall rely solely on such advisors and not on any statements or representations of
the Company or any of its agents. You understand that you (and not the Company) shall be
responsible for your own tax liability that may arise as a result of the this Award and the
transactions contemplated by this Agreement. You understand that Section 83 of the Code taxes as
ordinary income to you the fair market value of the shares of Common Stock as of the date any
restrictions on the shares lapse (that is, as of the date on which part or all of the shares vest).
In this context, “restriction” includes the right of the Company to reacquire the shares pursuant
to its Reacquisition Right. You understand that you may elect to be taxed on the fair market value
of the shares at the time the shares are acquired rather than when and as the Company’s
Reacquisition Right expires by filing an election under Section 83(b) of the Code with the Internal
Revenue Service within thirty (30) days after the date you acquire the shares pursuant to your
Award. YOU ACKNOWLEDGE THAT IT IS YOUR SOLE RESPONSIBILITY, AND NOT THE COMPANY’S, TO FILE A
TIMELY ELECTION UNDER CODE SECTION 83(b), EVEN IF YOU REQUEST THE COMPANY OR ITS REPRESENTATIVES TO
MAKE THE FILING ON YOUR BEHALF. You further acknowledge that you are aware that should you file an
election under Section 83(b) of the Code and then subsequently forfeit the shares, you will not be
able to report as a loss the value of any shares forfeited and will not get a refund of any of the
tax paid.
20. Notices. Any notice or request required or permitted hereunder shall be given in
writing to each of the other parties hereto and shall be deemed effectively given on the earlier of
(i) the date of personal delivery, including delivery by express courier, or (ii) the date that is
five (5) days after deposit in the United States Post Office (whether or not actually received by
the addressee), by registered or certified mail with postage and fees prepaid, addressed at the
following addresses, or at such other address(es) as a party may designate by ten (10) days’
advance written notice to each of the other parties hereto:
Company:
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Gen-Probe Incorporated Attn: General Counsel 00000 Xxxxxxx Xxxxxx Xxxxx Xxx Xxxxx, XX 00000 |
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Holder:
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Your address as on file with the Company at the time notice is given | |
Escrow Agent:
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Gen-Probe Incorporated Attn: Corporate Secretary 00000 Xxxxxxx Xxxxxx Xxxxx Xxx Xxxxx, XX 00000 |
7.
21. Headings. The headings of the Sections in this Agreement are inserted for
convenience only and shall not be deemed to constitute a part of this Agreement or to affect the
meaning of this Agreement.
22. Miscellaneous.
(a) The rights and obligations of the Company under your Award shall be transferable by the
Company to any one or more persons or entities, and all covenants and agreements hereunder shall
inure to the benefit of, and be enforceable by, the Company’s successors and assigns.
(b) You agree upon request to execute any further documents or instruments necessary or
desirable in the sole determination of the Company to carry out the purposes or intent of your
Award.
(c) You acknowledge and agree that you have reviewed your Award in its entirety, have had an
opportunity to obtain the advice of counsel prior to executing and accepting your Award and fully
understand all provisions of your Award.
(d) This Agreement shall be subject to all applicable laws, rules, and regulations, and to
such approvals by any governmental agencies or national securities exchanges as may be required.
(e) All obligations of the Company under the Plan and this Agreement shall be binding on any
successor to the Company, whether the existence of such successor is the result of a direct or
indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business
and/or assets of the Company.
23. Governing Plan Document. Your Award is subject to all the provisions of the
Plan, the provisions of which are hereby made a part of your Award, and is further subject to all
interpretations, amendments, rules and regulations which may from time to time be promulgated and
adopted pursuant to the Plan. In the event of any conflict between the provisions of your Award
and those of the Plan, the provisions of the Plan shall control.
24. Effect on Other Employee Benefit Plans. The value of the Award subject to this
Agreement shall not be included as compensation, earnings, salaries, or other similar terms used
when calculating benefits under any employee benefit plan (other than the Plan) sponsored by the
Company or any Affiliate except as such plan otherwise expressly provides. The Company expressly
reserves its rights to amend, modify, or terminate any or all of the employee benefit plans of the
Company or any Affiliate.
25. Choice of Law. The interpretation, performance and enforcement of this Agreement
shall be governed by the law of the state of California without regard to such state’s conflicts of
laws rules.
8.
26. Severability. If all or any part of this Agreement or the Plan is declared by any
court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity shall
not invalidate any portion of this Agreement or the Plan not declared to be unlawful or invalid.
Any Section of this Agreement (or part of such a Section) so declared to be unlawful or invalid
shall, if possible, be construed in a manner which will give effect to the terms of such Section or
part of a Section to the fullest extent possible while remaining lawful and valid.
27. Other
Documents. You hereby acknowledge receipt or the right to receive a
document providing the information required by Rule 428(b)(1) promulgated under the Securities Act.
In addition, you acknowledge receipt of the Company’s Securities Trading Policy.
* * * * *
This Restricted Stock Award Agreement shall be deemed to be signed by the Company and the
Holder upon the signing by the Holder of the Restricted Stock Grant Notice to which it is attached.
The Escrow Agent hereby acknowledges and accepts its rights and responsibilities pursuant to
Section 9, above.
X. Xxxxxxx Xxxxx
Vice President, General Counsel & Secretary
Solely in the capacity of Escrow Agent
Vice President, General Counsel & Secretary
Solely in the capacity of Escrow Agent
9.
Gen-Probe Incorporated
Restricted Stock Grant Notice
(2003 Incentive Award Plan)
Restricted Stock Grant Notice
(2003 Incentive Award Plan)
Gen-Probe Incorporated (the “Company”), pursuant to Article VII of The 2003 Incentive Award Plan of
Gen-Probe Incorporated (the “Plan”), hereby awards to Holder the right to acquire that number of
shares of the Company’s Common Stock set forth below (the “Award”). This Award shall be evidenced
by a Restricted Stock Award Agreement (the “Award Agreement”). This Award is subject to all of the
terms and conditions as set forth herein and in the applicable Award Agreement and the Plan, each
of which are attached hereto and incorporated herein in their entirety. Capitalized terms not
otherwise defined herein shall have the meanings set forth in the Plan or the Award Agreement. In
the event of any conflict between the terms in the Award and the Plan, the terms of the Plan shall
control.
Holder: |
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Date of Grant:
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October 17, 2005 | |
Vesting Commencement Date:
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October 17, 2005 | |
Number of Shares Subject to Award: |
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Payment for Common Stock:
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Holder’s services to the Company |
Vesting
Schedule: The shares subject to the Award shall vest with respect to one-fourth of the
shares on each of the first four anniversaries of the Vesting Commencement Date; provided, however,
that the Holder has not had a Termination of Employment prior to such vesting date. If the shares
subject to the Award would vest during a period when you would be prohibited by securities laws or
the Company’s Securities Trading Policy from selling such shares, then vesting may be delayed as
provided in Section 4 of the Award Agreement.
Additional
Terms/Acknowledgements: Holder acknowledges receipt of, and understands and agrees to,
this Restricted Stock Grant Notice, the Award Agreement, and the Plan. Xxxxxx further acknowledges
that as of the Date of Grant, this Restricted Stock Grant Notice, the Award Agreement and the Plan
set forth the entire understanding between Holder and the Company regarding the acquisition of the
Common Stock pursuant to the Award specified above and supersede all prior oral and written
agreements on that subject with the exception of Awards, if any, previously granted and delivered
to Holder under the Plan.
| Gen-Probe Incorporated | Holder | |||||||
By: |
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| Signature | Signature | |||||||
Title:
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Date: | |||||||
Date: |
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Attachments: Award Agreement, and 2003 Incentive Award Plan
