EXHIBIT 10.2(e)
FORM OF RESTRICTED STOCK AGREEMENT FOR NON-EMPLOYEE DIRECTORS
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 "Non-Employee Director").
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 Non-Employee Director 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 Non-Employee Director 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 Non-Employee Director hereby accepts the offer of
the Company to issue to the Non-Employee Director, 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(f) hereof, the "Granted Shares") at a purchase
price per share of $.0001 (the "Purchase Price"), receipt of which is hereby
acknowledged by the Non-Employee Director's prior service to the Company and
which amount will be reported as income on the Non-Employee Director's 1099 for
this calendar year.
2.1. FORFEITURE PROVISIONS.
(a) LAPSING FORFEITURE RIGHT. In the event that for any reason the
Non-Employee Director is no longer a director of the Company or of an Affiliate
prior to ____________ (the "Termination"), the Non-Employee Director (or the
Non-Employee Director'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).
The Company's Lapsing Forfeiture Right is as follows:
(i) If the Non-Employee Director's Termination is prior to September
30, 200_, all of the Granted Shares shall be forfeited to the Company. On
September 30, 200_, if the Non-Employee Director remains a director of
the Company or of an Affiliate, the Lapsing Forfeiture Right as to [25%]
of the Granted Shares shall terminate and the Non-Employee Director's
ownership of [25%] of the Granted Shares shall be vested as of such date.
(ii) If the Non-Employee Director's Termination is on or after
September 30 200_ but prior to December 31, 200_, [75%] of the Granted
Shares shall be forfeited to the Company. On December 31, 200_, if the
Non-Employee Director remains a director of the Company or of an
Affiliate, the Lapsing Forfeiture Right as to an additional [25%] of the
Granted Shares shall terminate and the Non-Employee Director's ownership
of [50%] of the Granted Shares shall be vested as of such date.
(iii) If the Non-Employee Director's Termination is on or after
December 31, 200_ but prior to March 31, 200_, [50%] of the Granted
Shares shall be forfeited to the Company. On March 31, 200_, if the
Non-Employee Director remains a director of the Company or of an
Affiliate, the Lapsing Forfeiture Right as to an additional [25%] of the
Granted Shares shall terminate and the Non-Employee Director's ownership
of [75%] of the Granted Shares shall be vested as of such date.
(iv) If the Non-Employee Director's Termination is on or after March
31, 200_ but prior to June 30, 200_, [25%] of the Granted Shares shall be
forfeited to the Company. On June 30, 200_, if the Non-Employee Director
remains a director of the Company or of an Affiliate, the Lapsing
Forfeiture Right as to the remaining [25%] of the Granted Shares shall
terminate and the Non-Employee Director's ownership of all of the Granted
Shares shall be vested as of such date.
Notwithstanding the foregoing, in the event of termination of service of
the Non-Employee Director, the Company's Lapsing Forfeiture Right set forth
above shall be deemed to have lapsed to the extent of a pro rata portion of the
Granted Shares through the Non-Employee Director's last day of service based on
the number of days accrued in the applicable quarterly period prior to his or
her termination of service.
(b) 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 Non-Employee Director's service for "cause" (as defined in the
Plan) or in the event the Board of Directors determines, within one year after
the Non-Employee Director's termination, that either prior or subsequent to the
Non-Employee Director's termination the Non-Employee Director engaged in conduct
that would constitute "cause," all of the Granted Shares then held by the
Non-Employee Director shall be forfeited to the Company immediately as of the
time the Non-Employee Director is notified that he or she has been terminated
for "cause" or that he or she engaged in conduct which would constitute "cause".
(c) ESCROW. The certificates representing all Granted Shares acquired by
the Non-Employee Director 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(c). Upon
the request of the Non-Employee Director, the Company shall promptly release
from escrow and deliver to the Non-Employee Director 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.
(d) PROHIBITION ON TRANSFER. The Non-Employee Director 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 Non-Employee Director, with the
approval of the Administrator, may transfer the Granted Shares for no
consideration to or for the benefit of the Non-
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Employee Director's Immediate Family (including, without limitation, to a trust
for the benefit of the Non-Employee Director's Immediate Family or to a
partnership or limited liability company for one or more members of the
Non-Employee Director'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
Non-Employee Director's spouse, former spouse, parents, children, stepchildren,
adoptive relationships, sisters, brothers, nieces and nephews and grandchildren
and, for this purpose, shall also include the Non-Employee Director. 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(d), or to treat as the owner of such Granted Shares, or to accord
the right to vote as such owner or to pay 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(d).
(e) 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(c) above or otherwise and
the Non-Employee Director or the Non-Employee Director'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 Non-Employee Director to the Company (or its designee)
and treat the Non-Employee Director and such Granted Shares in all respects as
if delivery of such Granted Shares had been made as required by this Agreement.
The Non-Employee Director hereby irrevocably grants the Company a power of
attorney which shall be coupled with an interest for the purpose of effectuating
the preceding sentence.
(f) ADJUSTMENTS. The Plan contains provisions covering the treatment of
Shares in a number of contingencies such as stock splits and mergers. 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 Non-Employee Director 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 Non-Employee Director acknowledges and agrees that neither the
Company nor, its shareholders nor its directors and officers, has any duty or
obligation to disclose to the Non-Employee Director 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 Non-Employee Director 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 Non-Employee Director 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.
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5. LEGEND. In addition to any legend required pursuant to the Plan, all
certificates representing the Granted Shares to be issued to the Non-Employee
Director 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."
6. INCORPORATION OF THE PLAN. The Non-Employee Director specifically
understands and agrees that the Granted Shares issued under the Plan are being
sold to the Non-Employee Director pursuant to the Plan, a copy of which Plan the
Non-Employee Director 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 NON-EMPLOYEE DIRECTOR AND PAYMENT OF TAXES. The
Non-Employee Director acknowledges and agrees that any income or other taxes due
from the Non-Employee Director with respect to the Granted Shares issued
pursuant to this Agreement, including, without limitation, the Lapsing
Forfeiture Right, shall be the Non-Employee Director's responsibility. Without
limiting the foregoing, the Non-Employee Director 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 Non-Employee Director'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 Non-Employee Director of the
amount of any tax required to be withheld by the Company.
Upon execution of this Agreement, the Non-Employee Director may file an
election under Section 83 of the Code. The Non-Employee Director 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
Non-Employee Director 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 Non-Employee Director.
8. EQUITABLE RELIEF. The Non-Employee Director 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 Non-Employee Director 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 Non-Employee Director as a director
of the Company or of an Affiliate. The Non-Employee Director 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 Non-Employee
Director's participation in the Plan is voluntary; (v) that the value of the
Shares is an extraordinary item of compensation; and (vi) that the Shares are
not part of normal or expected compensation
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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 Non-Employee Director:
NON-EMPLOYEE DIRECTOR 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 terms
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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 Non-Employee Director has
a spouse or domestic partner as of the date of this Agreement, the Non-Employee
Director'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 Non-Employee Director
subsequent to the date hereof, marries, remarries or applies to the Company for
domestic partner benefits, the Non-Employee Director 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 Non-Employee
Director: (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
Non-Employee Director:
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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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