PERFORMANCE RESTRICTED STOCK RIGHTS AGREEMENT PURSUANT TO THE THERAGENICS CORPORATION [1997] [2000] STOCK INCENTIVE PLAN
Exhibit
10.2
PURSUANT
TO THE THERAGENICS CORPORATION
[1997]
[2000] STOCK INCENTIVE PLAN
THIS
AWARD is made as of the Grant Date, by Theragenics Corporation (the “Company”)
to ____________________________________ (the “Recipient”) subject to acceptance
by the Recipient.
Upon
and
subject to the Terms and Conditions attached hereto and incorporated herein
by
reference as part of this Agreement, the Company hereby awards as of the Grant
Date to the Recipient, the Performance Restricted Stock Rights (the “Performance
Restricted Stock Rights Grant”).
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X.
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Xxxxx
Date:
_________.
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B.
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Plan
(under which Performance Restricted Stock Rights Grant is
granted):
Theragenics Corporation [1997]
[2000]
Stock Incentive Plan.
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C.
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Performance
Restricted Stock Rights:
________________ Performance Restricted Stock Rights. Each Performance
Restricted Stock Right represents the Company’s unsecured obligation to
issue a minimum of 0.30 of one share of the Company’s common stock
(“Common Stock”) and a maximum of two shares of the Company’s Common Stock
as provided in Exhibit
1
hereto, subject to adjustment as provided in the attached Terms and
Conditions.
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IN
WITNESS WHEREOF, the Company and the Recipient have executed this Agreement
as
of the Grant Date set forth above.
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RECIPIENT
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THERAGENICS
CORPORATION
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By:________________________
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| __________________________________ | |
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[Signature]
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Title:_______________________
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TERMS
AND CONDITIONS TO THE
PURSUANT
TO THE THERAGENICS CORPORATION
[1997]
[2000] STOCK INCENTIVE PLAN
1.
Adjustment
to Number of Performance Restricted Stock Rights for Dividends.
If the
Company declares a dividend (other than a stock dividend) payable to
shareholders of Common Stock and if the dividend is payable to shareholders
of
record before a share certificate for Common Stock has been issued hereunder,
the number of Performance Restricted Stock Rights shall be increased by a number
equal to the amount of the dividend per share, multiplied by the number of
Performance Restricted Stock Rights (before adjustment), divided by the Fair
Market Value per share of Common Stock as of the dividend declaration
date.
2.
Tax
Withholding.
(a)
The
Recipient must deliver to the Company, within ten (10) days after written
notification from the Company as to the amount of the tax withholding that
is
due, either (i) cash, or (ii) a certified check payable to the Company, in
the
amount of all tax withholding obligations imposed on the Company by reason
of
the earning of the shares of Common Stock issuable hereunder, except as provided
in Section 2(b), or (iii) by tendering a number of whole shares of Common Stock
which, when multiplied by the Fair Market Value of the Common Stock on the
date
the Common Stock is issuable to the Recipient, is sufficient to satisfy the
minimum amount of the required tax withholding obligations imposed on the
Company (the “Stock Tendering Election”); provided, however, the Committee may
in its sole discretion, disapprove and give no effect to the Stock Tendering
Election by giving written notice to the Recipient within ten (10) days after
receipt of the Stock Tendering Election, in which event the Recipient must
deliver, within ten (10) days after receiving such notice, the tax withholding
in the manner provided in clause (i) or (ii). If the Recipient does not timely
satisfy payment of the tax withholding obligation, the Recipient will forfeit
the Performance Restricted Stock Rights and shares of Common Stock issuable
hereunder.
(b)
In
lieu
of paying the tax withholding obligation as described in Section 2(a), Recipient
may elect to have the actual number of shares of Common Stock issuable hereunder
reduced by the number of whole shares of Common Stock which, when multiplied
by
the Fair Market Value of the Common Stock on the date the Common Stock is
issuable to the Recipient, is sufficient to satisfy the minimum amount of the
required tax obligations imposed on the Company by reason of the earning of
the
shares (the “Withholding Election”). Recipient may make a Withholding Election
only if all of the following conditions are met:
(i)
the
Withholding Election must be made within ten (10) days after the Recipient
receives written notification from the Company as to the amount of the tax
withholding that is due (the “Tax Notice Date”), by executing and delivering to
the Company a properly completed Notice of Withholding Election, in
substantially the form of Exhibit
2
attached
hereto; and
2
(ii)
any
Withholding Election made will be irrevocable; however, the Committee may,
in
its sole discretion, disapprove and give no effect to any Withholding Election,
by giving written notice to the Recipient no later than ten (10) days after
the
Company’s receipt of the Notice of Withholding Election, in which event the
Recipient must deliver to the Company, within ten (10) days after receiving
such
notice, the amount of the tax withholding pursuant to Section 2(a).
3.
Restrictions
on Transfer of Performance Restricted Stock Rights.
Except
for the transfer by bequest
or
inheritance, the Recipient shall not have the right to make or permit to exist
any transfer or hypothecation, whether outright or as security, with or without
consideration, voluntary or involuntary, of all or any part of any right, title
or interest in or to any Performance Restricted Stock Rights. Any such
disposition not made in accordance with this Agreement shall be deemed null
and
void. Any permitted transferee under this Section shall be bound by the terms
of
this Agreement.
4.
Change
in Capitalization.
(a)
The
number and kind of Performance Restricted Stock Rights and the shares of Common
Stock issuable pursuant thereto shall be proportionately adjusted for any
increase or decrease in the number of issued shares of Common Stock resulting
from a subdivision or combination of shares or the payment of a stock dividend
in shares of Common Stock to holders of outstanding shares of Common Stock
or if
any other increase or decrease in the number of shares of Common Stock
outstanding is effected without receipt of consideration by the Company. No
fractional shares shall be issued in making such adjustment.
(b)
In
the
event of a merger, consolidation, extraordinary dividend, spin-off, sale of
substantially all of the Company’s assets or other material change in the
capital structure of the Company, or a tender offer for shares of Common Stock,
or other reorganization of the Company, the Committee shall take such action
to
make such adjustments with respect to the Performance Restricted Stock Rights
as
it, in its sole discretion, determines in good faith is necessary or
appropriate, including, without limitation, adjusting the number and class
of
securities subject to the Agreement, substituting cash, other securities, or
other property to replace the Performance Restricted Stock Rights, or removing
of restrictions on the issuance of Common Stock pursuant to the Performance
Restricted Stock Rights.
(c)
All
determinations and adjustments made by the Committee pursuant to this Section
will be final and binding on the Recipient. Any action taken by the Committee
need not treat all recipients of awards under the Plan equally.
(d)
The
existence of the Plan and the Performance Restricted Stock Rights Grant shall
not affect the right or power of the Company to make or authorize any
adjustment, reclassification, reorganization or other change in its capital
or
business structure, any merger or consolidation of the Company, any issue of
debt or equity securities having preferences or priorities as to the Common
Stock or the rights thereof,
3
the
dissolution or liquidation of the Company, any sale or transfer of all or part
of its business or assets, or any other corporate act or
proceeding.
5.
Governing
Laws.
This
Agreement shall be construed, administered and enforced according to the laws
of
the State of Georgia; provided, however, no shares of Common Stock shall be
issued except, in the reasonable judgment of the Committee, in compliance with
exemptions under applicable state securities laws of the state in which
Recipient resides, and/or any other applicable securities laws.
6.
Successors.
This
Agreement shall be binding upon and inure to the benefit of the heirs, legal
representatives, successors, and permitted assigns of the parties.
7.
Notice.
Except
as otherwise specified herein, all notices and other communications under this
Agreement shall be in writing and shall be deemed to have been given if
personally delivered or if sent by registered or certified United States mail,
return receipt requested, postage prepaid, addressed to the proposed recipient
at the last known address of the recipient. Any party may designate any other
address to which notices shall be sent by giving notice of the address to the
other parties in the same manner as provided herein.
8.
Severability.
In the
event that any one or more of the provisions or portion thereof contained in
this Agreement shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, the same shall not invalidate or otherwise affect
any other provisions of this Agreement, and this Agreement shall be construed
as
if the invalid, illegal or unenforceable provision or portion thereof had never
been contained herein.
9.
Entire
Agreement.
Subject
to the terms and conditions of the Plan, this Agreement expresses the entire
understanding and agreement of the parties with respect to the subject matter.
10.
Specific
Performance.
In the
event of any actual or threatened default in, or breach of, any of the terms,
conditions and provisions of this Agreement, the party or parties who are
thereby aggrieved shall have the right to specific performance and injunction
in
addition to any and all other rights and remedies at law or in equity, and
all
such rights and remedies shall be cumulative.
11.
No
Right to Continued Retention.
Neither
the establishment of the Plan nor the award of Performance Restricted Stock
Rights hereunder shall be construed as giving Recipient the right to continued
service with the Company or an Affiliate.
12.
Headings
and Capitalized Terms.
Paragraph headings used herein are for convenience of reference only and shall
not be considered in construing this Agreement. Capitalized
terms used, but not defined, in this Agreement shall be given the meaning
ascribed to them in the Plan.
13
Definitions.
As used
in these Terms and Conditions and this Agreement:
4
“Cause”
shall
have the meaning set forth in the employment agreement then in effect between
the Recipient and the Company, or, if there is none, then Cause shall mean
the
occurrence of any of the following events: (i) willful and continued
failure (other than such failure resulting from his incapacity during physical
or mental illness) by the Recipient to substantially perform his duties with
the
Company or an Affiliate; (ii) conduct by the Recipient that amounts to willful
misconduct or gross negligence; (iii) any act by the Recipient of fraud,
misappropriation, dishonesty, embezzlement or similar conduct against the
Company or an Affiliate; (iv) commission by the Recipient of a felony
or
any other crime involving dishonesty; or (v) illegal use by the Recipient
of alcohol or drugs.
“Change
in Control”
means
any one of the following events which occurs following the Grant
Date:
(1)
the
acquisition by any individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)) (a “Person”) of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of voting securities of the
corporation where such acquisition causes such person to own thirty-five percent
(35%) or more of the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of
directors (the “Outstanding Company Voting Securities”); provided, however, that
for purposes of this Subsection (1), the following acquisitions shall not be
deemed to result in a Change in Control: (i) any acquisition directly from
the
Company, (ii) any acquisition by the Company, (iii) any acquisition
by
any employee benefit plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company or (iv) any
acquisition by any corporation pursuant to a transaction that complies with
clauses (i), (ii) and (iii) of Subsection (3) below; and provided, further,
that
if any Person’s beneficial ownership of the Outstanding Company Voting
Securities reaches or exceeds thirty-five percent (35%) as a result of a
transaction described in clause (i) or (ii) above, and such Person subsequently
acquires beneficial ownership of additional voting securities of the Company,
such subsequent acquisition shall be treated as an acquisition that causes
such
Person to own thirty-five percent (35%) or more of the Outstanding Company
Voting Securities; or
(2)
individuals
who as of the date hereof, constitute the Board of Directors (the “Incumbent
Board”) cease for any reason to constitute at least a majority of the Board of
Directors; provided, however, that any individual becoming a director subsequent
to the date hereof whose election, or nomination for election by the Company’s
shareholders, was approved by a vote of at least two-thirds of the directors
then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election
or removal of directors or other actual or threatened solicitation of proxies
or
consents by or on behalf of a Person other than the Board of Directors;
or
5
(3)
the
approval by the shareholders of the Company of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all of the
assets of the Company (“Business Combination”) or, if consummation of such
Business Combination is subject, at the time of such approval by shareholders,
to the consent of any government or governmental agency, the obtaining of such
consent (either explicitly or implicitly by consummation); excluding, however,
such a Business Combination pursuant to which (i) all or substantially all
of
the individuals and entities who were the beneficial owners of the Outstanding
Company Voting Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 60% of, respectively, the
then outstanding shares of common stock and the combined voting power of the
then outstanding voting securities entitled to vote generally in the election
of
directors, as the case may be, of the corporation resulting from such Business
Combination (including, without limitation, a corporation that as a result
of
such transaction owns the Company or all or substantially all of the Company’s
assets either directly or through one or more subsidiaries) in substantially
the
same proportions as their ownership, immediately prior to such Business
Combination of the Outstanding Company Voting Securities, (ii) no Person
(excluding any employee benefit plan (or related trust) of the Company or such
corporation resulting from such Business Combination) beneficially owns,
directly or indirectly, thirty-five percent (35%) or more of, respectively,
the
then outstanding shares of common stock of the corporation resulting from such
Business Combination or the combined voting power of the then outstanding voting
securities of such corporation except to the extent that such ownership existed
prior to the Business Combination and (iii) at least a majority of the
members of the board of directors of the corporation resulting from such
Business Combination were members of the Incumbent Board at the time of the
execution of the initial agreement, or of the action of the Board, providing
for
such Business Combination; or
(4)
approval
by the shareholders of the Company of a complete liquidation or dissolution
of
the Company.
Notwithstanding
the foregoing, no Change in Control shall be deemed to have occurred for
purposes of this Agreement by reason of any actions or events in which the
Recipient participates in a capacity other than in his capacity as an employee
or director of the Company or an Affiliate.
“Disability”
shall
have the meaning set forth in the employment agreement between the Recipient
and
the Company, or if there is none, then Disability means the inability of the
Recipient to perform any of his duties for the Company and its Affiliates due
to
a physical, mental, or emotional impairment, as determined by an independent
qualified physician (who may be engaged by the Company), for a ninety (90)
consecutive day period or for an aggregate of one hundred eighty (180) days
during any three hundred sixty-five (365) day period.
6
EXHIBIT
1
SCHEDULE
OF SHARES OF COMMON STOCK TO BE ISSUED
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A.
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The
number of Shares of Common Stock to be issued to the Recipient for
each
Performance Restricted Stock Right will be determined as follows:
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Company
Total
Shareholder
Return Peer
Percentile
Raking
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Number
of Shares of Common Stock to be
issued
for each Performance Restricted
Stock
Right
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> 85th
> 75th
to < 85
th
> 50th
to < 75
th
< 30th
to < 50th
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2
*
1.5
*
1
*
0.30
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*
Plus a number of shares of Common Stock for each Performance Restricted
Stock Right determined by interpolation for Company Total Shareholder
Return Peer Percentile Ranking that falls between 30th
and 50th,
50th
and 75th,
or 75th
and 85th.
(For example, a Company Total Shareholder Return Peer Percentile
Ranking
of 40th
would result in 0.65 of one share of Common Stock to be issued for
each
Performance Restricted Stock
Right.)
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B.
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“Company
Total Shareholder Return Peer Percentile” shall mean the percentile
ranking of the Company’s total shareholder return for the period beginning
January
1, 200__,
and ending December
31, 200__,
as compared to the total shareholder return (where publicly available)
for
each of the following peer companies: ArQule, Inc., Cell Genesys,
Inc.,
Corixa Corporation, Digene Corporation, Oscient Pharmaceuticals
Corporation, Hybridon, Inc., Ilex Oncology, Inc., Medarex, Inc.,
Mentor
Corporation, Myriad Genetics, Inc., Neogen Corporation, North American
Scientific, Inc., Novoste Corporation, Nuvelo, Inc., OSI Pharmaceuticals,
Inc., Protein Design Labs, Inc., Quidel Corporation, Synovis Life
Technologies, Inc., Third Wave Technologies, Inc., Transkaryotic
Therapies, Inc., Xoma Ltd., Zymogenetics, Inc. In the event that
any of
the above companies ceases to exist, shall cease to be a peer company
(as
determined by the Committee in its sole discretion), or shall be
merged
into another company, the Committee may make such adjustment to the
list
of peer companies as it determines in its sole discretion to be
appropriate. Total shareholder return will be determined using a
consistent methodology determined in the sole discretion of the
Committee.
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C.
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A
portion of the shares of Common Stock determined pursuant to the
preceding
schedule determined based on Company Total Shareholder Return for
the
period beginning January
1, 200__,
and ending December
31, 200__,
will be issued to the Recipient if the
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Recipient
ceases to perform services before December
31, 200__
as an
employee of the Company or an Affiliate due to the Recipient’s death,
Disability, retirement upon or after reaching age 65, or termination of
employment by the Company or an Affiliate without Cause. Such portion shall
be
equal to the number of shares of Common Stock determined pursuant to the
preceding schedule or pursuant to Item D, as applicable, multiplied by a
fraction, the numerator of which is the number of days of the Recipient’s
employment by the Company and its Affiliates from and including January
1, 200__,
through
the date of death, disability, retirement upon or after reaching age 65 or
termination of employment by the Company or an Affiliate without Cause, and
the
denominator of which is the number of days from and including January
1, 200__
through
December
31, 200__ (provided
that in any such event, the Committee of the Board of Directors may, in its
sole
discretion provide by written resolution that a greater portion of the shares
shall be issued). Fractional shares will be disregarded and will not be
issued.
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D.
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Notwithstanding
any other provision of this Schedule, if a Change in Control occurs
before
December
31, 200_
and (1) the Recipient remains an employee of the Company or
an
Affiliate until the occurrence of the Change in Control, then one
share of
Common Stock will be issuable as of the date of the Change in Control
for
each Performance Restricted Stock Right and the Performance Restricted
Stock Rights will terminate as of such date, and (2) in the
case of a
Recipient who as of the date of the Change in Control is described
in
Subsection C above, then a fraction (determined in accordance with
Subsection C above) of one share of Common Stock will be issuable
as of
the date of the Change in Control for each Performance Restricted
Stock
Right and the Performance Restricted Stock Rights will terminate
as of
such date.
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E.
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All
Performance Restricted Stock Rights as to which the events have not
occurred requiring shares of Common Stock to be issued as of the
Recipient’s cessation of services as an employee of the Company or an
Affiliate shall be forfeited. If the events have occurred requiring
shares
of Common Stock to be issued to a Recipient prior to the Recipient’s
cessation of services as an employee of the Company or an Affiliate,
the
shares of Common Stock shall be issued to the Recipient even if the
Recipient’s employment terminates for any reason before the number of
shares of Common Stock to be issued has been determined.
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F.
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If
a Recipient is entitled to shares of Common Stock pursuant to this
schedule, a share certificate shall be issued as soon as reasonably
practicable after the Company determines the number of shares to
be
issued.
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EXHIBIT
2
NOTICE
OF WITHHOLDING ELECTION
PURSUANT
TO THERAGENICS CORPORATION
2000
STOCK INCENTIVE PLAN
| TO: |
Theragenics
Corporation
Attention: Chief Financial
Officer
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| FROM: | _________________________ |
| RE: |
Withholding
Election
|
This
election relates to the Performance Restricted Stock Rights Grant identified
in
Paragraph 3 below. I hereby certify that:
(1)
My
correct name and social security number and my current address are set forth
at
the end of this document.
(2)
I
am
(check one, whichever is applicable).
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[
]
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the
original recipient of the Performance Restricted Stock Rights
Grant.
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[
]
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the
legal representative of the estate of the original recipient of the
Performance Restricted Stock Rights
Grant.
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[
]
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a
legatee of the original recipient of the Performance Restricted Stock
Rights Grant.
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[
]
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the
legal guardian of the original recipient of the Performance Restricted
Stock Rights Grant.
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(3)
The
Performance Restricted Stock Rights Grant pursuant to which this election
relates was issued with a Grant Date of __________________ under the Theragenics
Corporation [1997]
[2000]
Stock
Incentive Plan (the “Plan”) in the name of _________________ for a total of
______________ shares of Common Stock. This election relates to ______ shares
of
Common Stock issuable with respect to the Performance Restricted Stock Rights,
provided that the numbers set forth above shall be deemed changed as appropriate
to reflect stock splits and other adjustments contemplated by the applicable
Plan provisions.
(4)
I
hereby
elect to have certain of the shares withheld by the Company for the purpose
of
having the value of the shares applied to pay federal, state and local, if
any,
taxes arising from the exercise.
The
fair
market value of the shares to be withheld in addition to $_________ in cash
to
be tendered to the Company by the recipient of the Performance Restricted Stock
Rights Grant shall be equal to the minimum statutory tax withholding requirement
under federal, state and local law in connection with the exercise.
(5)
This
Withholding Election is made no later than ten (10) days after the Tax Notice
Date and is otherwise timely made pursuant to the Plan.
(6)
I
further
understand that, if this Withholding Election is not disapproved by the
Committee, the Company shall withhold from the Common Stock a whole number
of
shares of Common Stock having the value specified in Paragraph 4
above.
(7)
The
Plan
has been made available to me by the Company, I have read and understand the
Plan and I have no reason to believe that any of the conditions therein to
the
making of this Withholding Election have not been met. Capitalized terms used
in
this Notice of Withholding Election without definition shall have the meanings
given to them in the Plan.
Dated:___________________________________
Signature:________________________________
__________________________________
Name (Printed)
Name (Printed)
______________________________
Street
Address
______________________________
City,
State, Zip Code
