EXHIBIT 10.2(c)
FORM OF RESTRICTED STOCK AGREEMENT FOR EXECUTIVES
RESTRICTED STOCK AGREEMENT
SYNTA PHARMACEUTICALS CORP.
AGREEMENT made as of the _______ day of ___________________, 200__ (the
"Grant Date"), between Synta Pharmaceuticals Corp. (the "Company"), a Delaware
corporation having its principal place of business in Lexington, Massachusetts
and ________________________ (the "Participant").
WHEREAS, the Company has adopted the 2006 Stock Plan (the "Plan") to
promote the interests of the Company by providing an incentive for employees,
directors and consultants of the Company or its Affiliates;
WHEREAS, pursuant to the provisions of the Plan, the Company desires to
offer to the Participant shares of the Company's common stock, $.0001 par value
per share ("Common Stock"), in accordance with the provisions of the Plan, all
on the terms and conditions hereinafter set forth;
WHEREAS, the Participant wishes to accept said offer; and
WHEREAS, the parties hereto understand and agree that any terms used and
not defined herein have the meanings ascribed to such terms in the Plan.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. TERMS OF GRANT. The Participant hereby accepts the offer of the
Company to issue to the Participant, in accordance with the terms of the Plan
and this Agreement, ______________________ (_________) Shares of the Company's
Common Stock (such shares, subject to adjustment pursuant to Section 24 of the
Plan and Subsection 2.1(h) hereof, the "Granted Shares") at a purchase price per
share of $.0001 (the "Purchase Price"), receipt of which is hereby acknowledged
by the Participant's prior service to the Company and which amount will be
reported as income on the Participant's W-2 for this calendar year.
2.1. FORFEITURE PROVISIONS.
(a) LAPSING FORFEITURE RIGHT. In the event that for any reason the
Participant is no longer an employee or consultant of the Company or an
Affiliate prior to __________________ (the "Termination"), the Participant (or
the Participant's Survivor) shall, on the date of Termination, immediately
forfeit to the Company (or its designee) all of the Granted Shares which have
not yet lapsed in accordance with the schedule set forth below (the "Lapsing
Forfeiture Right") except as otherwise set forth in Section 2.1(b) or (c).
The Company's Lapsing Forfeiture Right is as follows:
(i) If the Participant's Termination is prior to [THE FIRST
ANNIVERSARY OF THE GRANT DATE], all of the Granted Shares shall be
forfeited to the Company.
(ii) If the Participant's Termination is on or after [THE
FIRST ANNIVERSARY OF THE GRANT DATE] but prior to _______________, __% of
the Granted Shares shall be forfeited to the Company.
(b) EFFECT OF TERMINATION FOR DISABILITY OR UPON DEATH. The following
rules apply if the Participant's Termination is by reason of Disability or
death: to the extent the Company's Lapsing Forfeiture Right has not lapsed as of
the date of Disability or death, as case may be, the Participant shall forfeit
to the Company any or all of the Granted Shares subject to such Lapsing
Forfeiture Right; provided, however, that the Company's Lapsing Forfeiture Right
shall be deemed to have lapsed to the extent of a pro rata portion of the
Granted Shares through the date of Disability or death, as would have lapsed had
the Participant not become Disabled or died, as the case may be. The proration
shall be based upon the number of days accrued in such current vesting period
prior to the Participant's date of Disability or death, as the case may be.
(c) EFFECT OF A FOR CAUSE TERMINATION. Notwithstanding anything to the
contrary contained in this Agreement, in the event the Company or an Affiliate
terminates the Participant's employment or service for "cause" (as defined in
the Plan) or in the event the Board of Directors determines, within one year
after the Participant's termination, that either prior or subsequent to the
Participant's termination the Participant engaged in conduct that would
constitute "cause," all of the Granted Shares then held by the Participant shall
be forfeited to the Company immediately as of the time the Participant is
notified that he or she has been terminated for "cause" or that he or she
engaged in conduct which would constitute "cause".
(d) EFFECT OF CHANGE OF CONTROL. Except as otherwise provided in
Subsection 2.1(c) above, the Company's Lapsing Forfeiture Right shall terminate,
and the Participant's ownership of all Granted Shares then owned by the
Participant shall become vested in accordance with the terms and conditions set
forth in Sections 24B and F of the Plan.
(e) ESCROW. The certificates representing all Granted Shares acquired by
the Participant hereunder which from time to time are subject to the Lapsing
Forfeiture Right shall be delivered to the Company and the Company shall hold
such Granted Shares in escrow as provided in this Subsection 2.1(e). Upon the
request of the Participant, the Company shall promptly release from escrow and
deliver to the Participant the whole number of Granted Shares, if any, as to
which the Company's Lapsing Forfeiture Right has lapsed and without the legend
set forth in Section 5. In the event of forfeiture to the Company of Granted
Shares subject to the Lapsing Forfeiture Right, the Company shall release from
escrow and cancel a certificate for the number of Granted Shares so forfeited.
Any securities distributed in respect of the Granted Shares held in escrow,
including, without limitation, shares issued as a result of stock splits, stock
dividends or other recapitalizations, shall also be held in escrow in the same
manner as the Granted Shares.
(f) PROHIBITION ON TRANSFER. The Participant recognizes and agrees that
all Granted Shares which are subject to the Lapsing Forfeiture Right may not be
sold, transferred, assigned, hypothecated, pledged, encumbered or otherwise
disposed of, whether voluntarily or by operation of law, other than to the
Company (or its designee). However, the Participant, with the approval of the
Administrator, may transfer the Granted Shares for no consideration to or for
the benefit of the Participant's Immediate Family (including, without
limitation, to a trust for the benefit of the Participant's Immediate Family or
to a partnership or limited liability company for one or more members of the
Participant's Immediate Family), subject to such limits as the Administrator may
establish, and the transferee shall remain subject to all the terms and
conditions applicable to this Agreement prior to such transfer and each such
transferee shall so acknowledge in writing as a condition precedent to the
effectiveness of such transfer. The term "Immediate Family" shall mean the
Participant's spouse, former spouse, parents, children, stepchildren, adoptive
relationships, sisters, brothers, nieces and nephews and grandchildren and, for
this purpose, shall also include the Participant. The Company shall not be
required to transfer any Granted Shares on its books which shall have been sold,
assigned or otherwise transferred in violation of this Subsection 2.1(f), or to
treat as the owner of such Granted Shares, or to accord the right to vote as
such owner or to pay
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dividends to, any person or organization to which any such Granted Shares shall
have been so sold, assigned or otherwise transferred, in violation of this
Subsection 2.1(f).
(g) FAILURE TO DELIVER GRANTED SHARES TO BE FORFEITED. In the event that
the Granted Shares to be forfeited to the Company under this Agreement are not
in the Company's possession pursuant to Subsection 2.1(e) above or otherwise and
the Participant or the Participant's Survivor fails to deliver such Granted
Shares to the Company (or its designee), the Company may immediately take such
action as is appropriate to transfer record title of such Granted Shares from
the Participant to the Company (or its designee) and treat the Participant and
such Granted Shares in all respects as if delivery of such Granted Shares had
been made as required by this Agreement. The Participant hereby irrevocably
grants the Company a power of attorney which shall be coupled with an interest
for the purpose of effectuating the preceding sentence.
(h) ADJUSTMENTS. The Plan contains provisions covering the treatment of
Shares in a number of contingencies such as stock splits, mergers and Change of
Control transactions. Provisions in the Plan for adjustment with respect to the
Granted Shares and the related provisions with respect to successors to the
business of the Company are hereby made applicable hereunder and are
incorporated herein by reference.
2.2 GENERAL RESTRICTIONS ON TRANSFER OF GRANTED SHARES.
(a) If in connection with a registration statement filed by the Company
pursuant to the Securities Act of 1933, as amended (the "1933 Act"), the Company
or its underwriter so requests, the Participant will agree not to sell any of
his or her Granted Shares whether or not the Lapsing Forfeiture Right has lapsed
for a period not to exceed the lesser of: (i) 210 days following the
effectiveness of such registration statement or (ii) such period as the officers
and directors of the Company agree not to sell their Common Stock of the
Company.
(b) The Participant acknowledges and agrees that neither the Company nor,
its shareholders nor its directors and officers, has any duty or obligation to
disclose to the Participant any material information regarding the business of
the Company or affecting the value of the Shares before, at the time of, or
following a Termination, including, without limitation, any information
concerning plans for the Company to make a public offering of its securities or
to be acquired by or merged with or into another firm or entity.
3. SECURITIES LAW COMPLIANCE. The Participant specifically acknowledges
and agrees that any sales of Granted Shares shall be made in accordance with the
requirements of the 1933 Act.
4. RIGHTS AS A STOCKHOLDER. The Participant shall have all the rights of
a stockholder with respect to the Granted Shares, including voting and dividend
rights, subject to the transfer and other restrictions set forth herein and in
the Plan.
5. LEGEND. In addition to any legend required pursuant to the Plan, all
certificates representing the Granted Shares to be issued to the Participant
pursuant to this Agreement shall have endorsed thereon a legend substantially as
follows:
"The shares represented by this certificate are subject to
restrictions set forth in a Restricted Stock Agreement dated as of
______________, 200_ with this Company, a copy of which Agreement is
available for inspection at the offices of the Company or will be
made available upon request."
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6. INCORPORATION OF THE PLAN. The Participant specifically understands
and agrees that the Granted Shares issued under the Plan are being sold to the
Participant pursuant to the Plan, a copy of which Plan the Participant
acknowledges he or she has read and understands and by which Plan he or she
agrees to be bound. The provisions of the Plan are incorporated herein by
reference.
7. TAX LIABILITY OF THE PARTICIPANT AND PAYMENT OF TAXES. The Participant
acknowledges and agrees that any income or other taxes due from the Participant
with respect to the Granted Shares issued pursuant to this Agreement, including,
without limitation, the Lapsing Forfeiture Right, shall be the Participant's
responsibility. Without limiting the foregoing, the Participant agrees that, to
the extent that the lapsing of restrictions on disposition of any of the Granted
Shares or the declaration of dividends on any such shares before the lapse of
such restrictions on disposition results in the Participant's being deemed to be
in receipt of earned income under the provisions of the Code, the Company shall
be entitled to immediate payment from the Participant of the amount of any tax
required to be withheld by the Company.
Upon execution of this Agreement, the Participant may file an election
under Section 83 of the Code. The Participant acknowledges that if he does not
file such an election, as the Granted Shares are released from the Lapsing
Forfeiture Right in accordance with Section 2.1, the Participant will have
income for tax purposes equal to the fair market value of the Granted Shares at
such date, less the price paid for the Granted Shares by the Participant.
[The Participant shall be required to deposit with the Company an amount
of cash equal to the amount determined by the Company to be required with
respect to the statutory minimum of the Participant's estimated total federal,
state and local tax obligations associated with the termination of the Lapsing
Forfeiture Right with respect to the Granted Shares. In connection with the
foregoing, the Participant agrees that the Company shall authorize a registered
broker(s) (the "Broker") to sell on the date that the Granted Shares shall be
released from the Lapsing Forfeiture Right such number of Granted Shares as the
Company instructs the Broker to sell to satisfy the Company's withholding
obligations, after deduction of the Broker's commission, and the Broker shall
remit to the Company the cash necessary in order for the Company to satisfy its
withholding obligation. The Company shall not deliver any of the Granted Shares
until the deposit required herein for withholding has been made. In connection
with such sale of Granted Shares, the Participant shall execute any such
documents requested by Broker in order to effectuate the sale of the Granted
Shares and payment of the withholding obligation to the Company.]
8. EQUITABLE RELIEF. The Participant specifically acknowledges and agrees
that in the event of a breach or threatened breach of the provisions of this
Agreement or the Plan, including the attempted transfer of the Granted Shares by
the Participant in violation of this Agreement, monetary damages may not be
adequate to compensate the Company, and, therefore, in the event of such a
breach or threatened breach, in addition to any right to damages, the Company
shall be entitled to equitable relief in any court having competent
jurisdiction. Nothing herein shall be construed as prohibiting the Company from
pursuing any other remedies available to it for any such breach or threatened
breach.
9. NO OBLIGATION TO MAINTAIN RELATIONSHIP. The Company is not by the Plan
or this Agreement obligated to continue the Participant as an employee or
consultant of the Company or an Affiliate. The Participant acknowledges: (i)
that the Plan is discretionary in nature and may be suspended or terminated by
the Company at any time; (ii) that the grant of the Shares is a one-time benefit
which does not create any contractual or other right to receive future grants of
shares, or benefits in lieu of shares; (iii) that all determinations with
respect to any such future grants, including, but not limited to, the times when
shares shall be granted, the number of shares to be granted, the purchase price,
and the time or times when each share shall be free from a lapsing forfeiture
right, will be at the sole discretion of the Company; (iv) that the
Participant's participation in the Plan is voluntary; (v) that the value of the
Shares is an extraordinary item of compensation which is outside the scope of
the Participant's employment
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contract, if any; and (vi) that the Shares are not part of normal or expected
compensation for purposes of calculating any severance, resignation, redundancy,
end of service payments, bonuses, long-service awards, pension or retirement
benefits or similar payments.
10. NOTICES. Any notices required or permitted by the terms of this
Agreement or the Plan shall be given by recognized courier service, facsimile,
registered or certified mail, return receipt requested, addressed as follows:
If to the Company:
Synta Pharmaceuticals Corp.
00 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Stock Plan Administrator
If to the Participant:
PARTICIPANT ADDRESS
or to such other address or addresses of which notice in the same manner has
previously been given. Any such notice shall be deemed to have been given on the
earliest of receipt, one business day following delivery by the sender to a
recognized courier service, or three business days following mailing by
registered or certified mail.
11. BENEFIT OF AGREEMENT. Subject to the provisions of the Plan and the
other provisions hereof, this Agreement shall be for the benefit of and shall be
binding upon the heirs, executors, administrators, successors and assigns of the
parties hereto.
12. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of Delaware, without giving effect to the
conflict of law principles thereof. For the purpose of litigating any dispute
that arises under this Agreement, whether at law or in equity, the parties
hereby consent to exclusive jurisdiction in Massachusetts and agree that such
litigation shall be conducted in the courts of the Commonwealth of Massachusetts
or the federal courts of the United States for the District of Massachusetts.
13. SEVERABILITY. If any provision of this Agreement is held to be
invalid or unenforceable by a court of competent jurisdiction, then such
provision or provisions shall be modified to the extent necessary to make such
provision valid and enforceable, and to the extent that this is impossible, then
such provision shall be deemed to be excised from this Agreement, and the
validity, legality and enforceability of the rest of this Agreement shall not be
affected thereby.
14. ENTIRE AGREEMENT. This Agreement, together with the Plan, constitutes
the entire agreement and understanding between the parties hereto with respect
to the subject matter hereof and supersedes all prior oral or written agreements
and understandings relating to the subject matter hereof. No statement,
representation, warranty, covenant or agreement not expressly set forth in this
Agreement shall affect or be used to interpret, change or restrict the express
terms and provisions of this Agreement provided, however, in any event, this
Agreement shall be subject to and governed by the Plan.
15. MODIFICATIONS AND AMENDMENTS; WAIVERS AND CONSENTS. The terms and
provisions of this Agreement may be modified or amended as provided in the Plan.
Except as provided in the Plan, the
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terms and provisions of this Agreement may be waived, or consent for the
departure therefrom granted, only by written document executed by the party
entitled to the benefits of such terms or provisions. No such waiver or consent
shall be deemed to be or shall constitute a waiver or consent with respect to
any other terms or provisions of this Agreement, whether or not similar. Each
such waiver or consent shall be effective only in the specific instance and for
the purpose for which it was given, and shall not constitute a continuing waiver
or consent.
16. CONSENT OF SPOUSE/DOMESTIC PARTNER. If the Participant has a spouse
or domestic partner as of the date of this Agreement, the Participant's spouse
or domestic partner shall execute a Consent of Spouse/Domestic Partner in the
form of EXHIBIT A hereto, effective as of the date hereof. Such consent shall
not be deemed to confer or convey to the spouse or domestic partner any rights
in the Granted Shares that do not otherwise exist by operation of law or the
agreement of the parties. If the Participant subsequent to the date hereof,
marries, remarries or applies to the Company for domestic partner benefits, the
Participant shall, not later than 60 days thereafter, obtain his or her new
spouse/domestic partner's acknowledgement of and consent to the existence and
binding effect of all restrictions contained in this Agreement by having such
spouse/domestic partner execute and deliver a Consent of Spouse/Domestic Partner
in the form of EXHIBIT A.
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by different parties hereto on separate counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
18. DATA PRIVACY. By entering into this Agreement, the Participant: (i)
authorizes the Company and each Affiliate, and any agent of the Company or any
Affiliate administering the Plan or providing Plan record keeping services, to
disclose to the Company or any of its Affiliates such information and data as
the Company or any such Affiliate shall request in order to facilitate the grant
of Shares and the administration of the Plan; (ii) waives any data privacy
rights he or she may have with respect to such information; and (iii) authorizes
the Company and each Affiliate to store and transmit such information in
electronic form.
[THE NEXT PAGE IS THE SIGNATURE PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
SYNTA PHARMACEUTICALS CORP.
By:
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Name: Xxxx Xxxxxxx, Ph.D.
Title: President and Chief Executive Officer
Participant:
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Print Name:
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EXHIBIT A
CONSENT OF SPOUSE/DOMESTIC PARTNER
I, ____________________________, spouse or domestic partner of
_________________________, acknowledge that I have read the RESTRICTED STOCK
AGREEMENT dated as of _______________ (the "Agreement") to which this Consent is
attached as Exhibit A and that I know its contents. Capitalized terms used and
not defined herein shall have the meanings assigned to such terms in the
Agreement. I am aware that by its provisions the Granted Shares granted to my
spouse/domestic partner pursuant to the Agreement are subject to a Lapsing
Forfeiture Right in favor of Synta Pharmaceuticals Corp. (the "Company") and
that, accordingly, I may be required to forfeit to the Company any or all of the
Granted Shares of which I may become possessed as a result of a gift from my
spouse/domestic partner or a court decree and/or any property settlement in any
domestic litigation.
I hereby agree that my interest, if any, in the Granted Shares subject to
the Agreement shall be irrevocably bound by the Agreement and further understand
and agree that any community property interest I may have in the Granted Shares
shall be similarly bound by the Agreement.
I agree to the Lapsing Forfeiture Right described in the Agreement and I
hereby consent to the forfeiture of the Granted Shares to the Company by my
spouse/domestic partner or my spouse/domestic partner's legal representative in
accordance with the provisions of the Agreement. Further, as part of the
consideration for the Agreement, I agree that at my death, if I have not
disposed of any interest of mine in the Granted Shares by an outright bequest of
the Granted Shares to my spouse or domestic partner, then the Company shall have
the same rights against my legal representative to exercise its rights to the
Granted Shares with respect to any interest of mine in the Granted Shares as it
would have had pursuant to the Agreement if I had acquired the Granted Shares
pursuant to a court decree in domestic litigation.
I AM AWARE THAT THE LEGAL, FINANCIAL AND RELATED MATTERS CONTAINED IN THE
AGREEMENT ARE COMPLEX AND THAT I AM FREE TO SEEK INDEPENDENT PROFESSIONAL
GUIDANCE OR COUNSEL WITH RESPECT TO THIS CONSENT. I HAVE EITHER SOUGHT SUCH
GUIDANCE OR COUNSEL OR DETERMINED AFTER REVIEWING THE AGREEMENT CAREFULLY THAT I
WILL WAIVE SUCH RIGHT.
Dated as of the _______ day of ________________, 200_.
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Print name:
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