EXHIBIT 10.66
OSTEOTECH, INC.
2000 STOCK PLAN
RESTRICTED STOCK UNIT AGREEMENT
(FOR EMPLOYEES)
THIS RESTRICTED STOCK UNIT AGREEMENT (the "Agreement"), is dated as of
[____________, _____] (the "Grant Date") by and between Osteotech, Inc., a
Delaware corporation (the "Company"), and [_________________], an employee of
the Company or an employee of a subsidiary of the Company (the "Employee")
located at _______________________________, pursuant to the Company's Amended
and Restated 2000 Stock Plan (the "Plan").
For good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Company and Employee hereby agree as follows:
1. Grant of Stock Units.
Subject to the terms and conditions of this Agreement and of the Plan, the
Company hereby grants to the Employee restricted stock units ("Stock Units")
covering [__________] shares (the "Shares") of the Company's common stock (the
"Common Stock"). Each Stock Unit represents one share of Common Stock.
2. Vesting Schedule.
(a) Subject to the Employee's not experiencing a termination of employment
from the Company or its subsidiaries for any reason during the following vesting
period, the interest of the Employee in the Stock Units shall vest, and Shares
shall be issued in accordance with Section 3 below, as follows: 25% of the
Shares shall vest on each anniversary of the Grant Date for four years.
Therefore, provided the Employee has not ceased being an employee of the Company
or its subsidiaries prior to the close of business on the fourth anniversary of
the Grant Date, the interest of the Employee in the Stock Units shall become
fully vested on that date, and all Shares will have been issued in accordance
with Section 3 below on or prior to that date.
(b) Except as otherwise provided for in this Agreement, if the Employee
ceases to be employed by the Company or its subsidiaries for any reason
including as a result of the Employee's death or disability (within the meaning
of Section 22(e)(3) of the Code) prior to the end of the Restriction Period (as
defined below), all Stock Units granted hereunder that have not vested by the
Employee's termination date and that are held by the Employee as of such date
shall be forfeited by, and no further rights shall accrue to, the Employee.
3. Benefit Upon Vesting.
Upon the vesting of the Stock Units, the Employee shall be entitled to
receive, and the Company shall issue to the Employee, a number of Shares equal
to the number of Stock Units that have vested on the applicable vesting date
subject to Section 7 below.
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4. Adjustment of Shares.
(a) The number of shares issuable upon vesting of the Stock Units shall be
adjusted proportionately in order to prevent dilution or enlargement of the
benefits or potential benefits intended to be provided under the Stock Units
upon the occurrence of a stock split or reverse stock split of the Common Stock
or a dividend payable to all holders of the Common Stock in shares of Common
Stock. The provisions of this Section 4(a) reflect the determination of the
Compensation Committee as authorized in Section 4(c) of the Plan.
(b) In the event of a dissolution or liquidation of the Company all
unvested Stock Units shall terminate.
(c) In the event that the Company is a party to a merger or consolidation,
the Stock Units shall be subject to the agreement of merger or consolidation.
Such agreement, without the Employee's consent, may provide for:
(i) The continuation of the Stock Units by the Company (if the Company
is the surviving corporation);
(ii) The assumption of the Plan and the Stock Units by the surviving
corporation or its parent;
(iii) The substitution by the surviving corporation or its parent of
stock units with substantially the same terms as the Stock Units; or
(iv) The cancellation of the Stock Units, provided that the Company
shall have the right prior to such merger or consolidation to issue the Shares
subject to the Stock Units in whole or in part, whether or not the Employee's
right to issuance of the Shares subject to the Stock Units has otherwise accrued
pursuant to Section 2 of this Agreement.
5. Restrictions.
Except as otherwise provided for in this Agreement or applicable law, the
Stock Units or rights granted hereunder may not be sold, pledged or otherwise
transferred until the Stock Units become vested in accordance with Section 2 and
the Shares are issued under Section 3. The period of time between the Grant Date
and the final date all of the Stock Units become fully vested is referred to
herein as the "Restriction Period."
6. No Stockholder Rights.
Stock Units represent hypothetical shares of Common Stock. During the
Restriction Period, the Employee shall not be entitled to any of the rights or
benefits generally accorded to stockholders with respect to the Stock Units.
7. Taxes.
(a) The Employee shall be liable for any and all taxes of any nature and
whether
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arising under U.S., state, local or foreign laws, including withholding taxes,
interest or penalties arising out of this grant, the vesting of Stock Units
hereunder, the transfer of Shares or other property in settlement of the Stock
Units, or any subsequent transfer or disposition of the Shares or such property.
In the event that the Company or the Employee's employer, including any
affiliate or subsidiary qualified to deduct tax at source (the "Employer"), is
required to withhold any amount (including in connection with income tax,
employment or payroll taxes, social security contributions or other similar
amounts, with such obligation in aggregate referred to herein as the
"Withholding Obligation") as a result of any event occurring in connection with
the Stock Unit, the Employee shall make a cash payment to the Company as
necessary to cover all applicable Withholding Obligations at or prior to the
time the event giving rise to the Withholding Obligation occurs; provided that
(i) the Company has the right to withhold a portion of the Shares otherwise to
be delivered upon vesting of the Stock Units having a Fair Market Value equal to
the amount of Withholding Obligation in accordance with such rules as the
Company may from time to time establish, (ii) the Company or the Employer has
the right, and the Employee in accepting this grant explicitly authorizes the
Company, to deduct an amount equal to the Withholding Obligation from the
Employee's compensation or (iii) the Company may establish alternative
procedures to ensure satisfaction of all applicable Withholding Obligations
arising in connection with the Stock Units, including any means described in
Section 8 of the Plan. The Employee will receive a cash refund for any payment
of cash or fraction of a surrendered share not necessary to satisfy the
Withholding Obligations.
(b) The Employee acknowledges and agrees that the ultimate liability for
any tax-related item legally due by Employee is and remains the Employee's
responsibility and that the Company and or the Employer (i) make no
representations nor undertakings regarding the treatment of any such tax items
in connection with any aspect of this grant of Stock Units, including the
vesting of Stock Units, subsequent payment of Common Stock and/or cash related
to such Stock Units or the subsequent sale or other disposition of any Common
Stock acquired pursuant to such Stock Units; and (ii) do not commit to structure
the terms or any aspect of this grant of Stock Units to reduce or eliminate the
Employee's liability for such tax items. The Company may refuse to deliver the
benefit described in Section 3 if the Employee fails to comply with the
Employee's obligations as set forth in this Section 7 (including if the
Employee's cash compensation is not sufficient to satisfy such obligations).
8. Data Privacy Consent.
The Employee hereby explicitly and unambiguously consents to the
collection, use and transfer, in electronic or other form, of the Employee's
personal data as described in this document by and among, as applicable, the
Employer, and the Company and its subsidiaries and affiliates for the exclusive
purpose of implementing, administering and managing the Employee's participation
in the Plan. The Employee understands that the Company, its affiliates, its
subsidiaries and the Employer hold certain personal information about the
Employee, including, but not limited to, name, home address and telephone
number, date of birth, social security or insurance number or other
identification number, salary, nationality, job title, any shares of stock or
directorships held in the Company, details of all options or any other
entitlement to shares of stock awarded, canceled, purchased, exercised, vested,
unvested or outstanding in the Employee's favor for the purpose of implementing,
managing and
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administering the Plan ("Data"). The Employee understands that the Data may be
transferred to any third parties assisting in the implementation, administration
and management of the Plan, that these recipients may be located in the
Employee's country or elsewhere and that the recipient country may have
different data privacy laws and protections than the Employee's country. The
Employee understands that the Employee may request a list with the names and
addresses of any potential recipients of the Data by contacting the
administrator of the Plan as may be designated from time to time by the Company
(the "Plan Administrator"). The Employee authorizes the recipients to receive,
possess, use, retain and transfer the Data, in electronic or other form, for the
purposes of implementing, administering and managing the Employee's
participation in the Plan, including any requisite transfer of such Data, as may
be required to a broker or other third party with whom the Employee may elect to
deposit any Common Stock acquired under the Plan. If the Employee is a citizen
or resident of a country which is a member of the European Union, the Data will
only be shared with third parties that are subject to the EU Privacy directive
as locally implemented, the Safe Harbor framework or other adequate
certification. The Employee understands that Data will be held only as long as
is necessary to implement, administer and manage participation in the Plan. The
Employee understands that he or she may, at any time, review Data in order to
correct, change or delete inaccurate information, request additional information
about the storage and processing of the Data, require any necessary amendments
to the Data or refuse or withdraw the consents herein, in any case without cost,
by contacting the Plan Administrator in writing. The Employee understands that
refusing or withdrawing consent may affect the Employee's ability to participate
in the Plan. For more information on the consequences of refusing to consent or
withdrawing consent, the Employee understands that he or she may contact the
Plan Administrator at the Company.
9. Plan Information.
The Employee acknowledges that the Employee has access to and is deemed to
have received a copy of the Plan from the Company and agrees to receive
stockholder information, including copies of any annual report, proxy statement
and periodic report, from the Company's website at
xxxx://xxx.xxxxxxxxx.xxx/xxxxxx.xxx. The Employee acknowledges that copies of
the Plan, Plan prospectus, Plan information and stockholder information are also
available upon written or telephonic request to the Plan Administrator.
10. Employee Acknowledgments.
By accepting this grant of Stock Units, the Employee acknowledges and
agrees that the Plan is established voluntarily by the Company, it is
discretionary in nature and may be modified, amended, suspended or terminated by
the Company at any time unless otherwise provided in the Plan or this Agreement.
The Employee acknowledges that all decisions with respect to future grants, if
any, will be at the sole discretion of the Company. The Employee's participation
in the Plan shall not create a right to further employment with Employer and
shall not interfere with the ability of Employer to terminate the Employee's
employment relationship at any time with or without cause and it is expressly
agreed and understood that employment is terminable at the will of either party,
insofar as permitted by law. The Employee agrees that Stock Units, stock unit
grants and resulting benefits are an extraordinary item that do not
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constitute compensation of any kind for services of any kind rendered to the
Company or the Employer and are outside the scope of the Employee's employment
contract, if any, unless otherwise specifically provided in such employment
contract. Stock Units, stock unit grants and resulting benefits are not part of
normal or expected compensation or salary for any purposes, including, but not
limited to calculating any severance, resignation, termination, redundancy, end
of service payments, bonuses, long-service awards, pension or retirement
benefits or similar payments insofar as permitted by law. This grant of Stock
Units will not be interpreted to form an employment contract or relationship
with the Company, the Employer or any subsidiary or affiliate of the Company.
The Employee acknowledges that the future value of the Shares is unknown, may
increase or decrease from the date of grant or vesting of the Stock Units and
cannot be predicted with certainty. In consideration of this grant of Stock
Units, no claim or entitlement to compensation or damages shall arise from
termination of this grant of Stock Units or diminution in value of this grant of
Stock Units resulting from the Employee's termination of employment by the
Company or the Employer for any reason whatsoever and whether or not in breach
of any applicable laws. Upon the Employee's termination of employment (whether
or not such termination constitutes a breach of local labor laws), the
Employee's right to receive benefits shall be only as set forth in this
Agreement and his or her termination of employment shall be effective as of the
date that the Employee is no longer actively employed and will not be extended
by any notice period mandated under local law (e.g., active employment would not
include a period of "garden leave" or similar period pursuant to local law); and
the Board or Compensation Committee shall have the exclusive discretion to
determine when the Employee is no longer actively employed for purposes of this
grant of Stock Units. This entire Section 10 is subject to any provision to the
contrary set forth in an employment contract, if any, between the Employee and
the Company.
11. Notices.
All notices or other communications which are required or permitted
hereunder shall be deemed to be sufficient if contained in a written instrument
given by personal delivery, air courier or registered or certified mail, postage
prepaid, return receipt requested, addressed to such party at the address set
forth below or such other address as may thereafter be designated in a written
notice from such party to the other party:
If to the Company, to:
Attention: Chief Financial Officer
Osteotech, Inc.
00 Xxxxx Xxx
Xxxxxxxxx, Xxx Xxxxxx 00000
If to the Employee, to:
Address provided above
All such notices, advances and communications shall be deemed to have been
delivered and received (a) in the case of personal delivery, on the date of such
delivery, (b) in the case of
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air courier, on the business day after the date when sent and (c) in the case of
mailing, on the third business day following such mailing.
12. Miscellaneous.
(a) The Company shall not be required to treat as the owner of Stock Units,
and associated benefits hereunder, any transferee to whom such Stock Units or
benefits shall have been so transferred in violation of this Agreement.
(b) The Employee shall take whatever additional actions and execute
whatever additional documents the Company may deem necessary or advisable in
order to carry out or effect one or more of the obligations or restrictions
imposed on the Employee pursuant to the express provisions of this Agreement.
(c) The Plan is incorporated herein by reference. The Stock Units are
issued pursuant to the Plan and are subject to its terms. No waiver or breach of
any condition of this Agreement shall be deemed to be a waiver of any other or
subsequent breach of condition, whether of like or different nature. This
Agreement is governed by the laws of the state of Delaware. In the event of any
conflict between the terms and provisions of the Plan and this Agreement, the
Plan terms and provisions shall govern. Capitalized terms used but not defined
in this Agreement have the meanings assigned to them in the Plan. Certain other
important terms governing this Agreement are contained in the Plan. This
Agreement may be executed in counterparts, each of which shall be deemed to be
an original, but all of which together shall constitute one and the same
instrument.
(d) The provisions of this Agreement are severable and if any one or more
provisions are determined to be illegal or otherwise unenforceable, in whole or
in part, the remaining provisions shall nevertheless be binding and enforceable.
(e) This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and thereof, merging any and all prior
agreements.
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(f) To the extent the Company determines that this Agreement is subject to
Code Section 409A, but does not conform with the requirements thereof, the
Company may at its sole discretion amend or replace the Agreement to cause the
Agreement to comply with Code Section 409A.
(g) To the extent that the Company in good faith determines that any
payment provided for hereunder (meaning, the vesting and obligation to issue any
Shares hereunder) constitutes a "deferral of compensation" and that the Employee
is a "key employee" (in each case as such terms are defined under Code Section
409A), no amounts shall be payable to the Employee pursuant hereto prior to the
earliest of (a) the Employee's death following the date of Employee's
termination of employment, or (b) the date that is six months following the date
of the Employee's "separation from service" with the Company (within the meaning
of Code Section 409A).
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the date set forth above.
OSTEOTECH, INC.
By:
------------------------------------
Name: Xxx Xxxxx-Akyaw
Title: President and Chief
Executive Officer
By:
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[Name of Employee]
EMPLOYEE SHOULD RETAIN THIS AGREEMENT FOR HIS OR HER RECORDS
NY 646351 v1
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