Exhibit 10.37
COVANCE INC.
RESTRICTED STOCK AGREEMENT
2002 EMPLOYEE EQUITY PARTICIPATION PLAN
(2004 AWARD)
RESTRICTED STOCK AGREEMENT dated as of December 31, 2004 (the "Agreement")
between COVANCE INC., a Delaware corporation ("Company"), located at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, and ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the
"Employee").
W I T N E S S E T H:
A. WHEREAS, the Employee is currently employed by the Company, or a
corporation which is a "subsidiary corporation" within the meaning of Section
424(f) of the Internal Revenue Code of 1986, as amended, modified or
supplemented from time to time ("Code") or which is an entity in which the
Company holds beneficially at least fifty percent (50%) of the ownership
interest (each, a "Subsidiary Company"), in an important executive, managerial
or technical capacity.
B. WHEREAS, the Company desires to have the Employee remain in the
employment of the Company or a Subsidiary Company and to afford the Employee the
opportunity to acquire, or enlarge the Employee's, stock ownership in the
Company so that the Employee may have a direct proprietary interest in the
Company's success.
NOW, THEREFORE, in consideration of the premises, the mutual covenants and
agreements set forth below, and for other good and valuable consideration,
receipt of which is hereby acknowledged, the parties hereby agree as follows:
1. GRANT OF SHARES. Subject to the terms and conditions of the Employee
Equity Participation Plan (as amended, modified or supplemented from time to
time the "Plan") and this Agreement, the Company hereby grants ("Grant") to the
Employee, as of the date of this Agreement ("Grant Date") 25,893 shares of
Common Stock, par value $.01 per share (the "Common Stock"), of the Company.
2. VESTING OF RESTRICTED SHARES; RIGHTS. (a) The Shares shall vest on
December 31, 2005.
(b) Subject to the terms and conditions of this Agreement, Employee shall
have all rights relating to the Shares, including the right to vote and collect
dividends as declared and paid by the Company, subject to appropriate
withholding to satisfy applicable tax requirements.
Exhibit 10.37
3. TERMINATION. (a) The Grant with respect to any unvested Shares shall be
forfeited and be of no further force or effect upon the termination of the
Employee's employment, for any reason, with the Company, except in the case of
his death, disability (as defined 22(e)(3) of the Code) or his retirement with
the consent of the Company, in which case all unvested Shares shall thereupon
immediately vest.
(b) If the Employee shall be transferred from the Company to a Subsidiary
Company, or from a Subsidiary Company to the Company, or from a Subsidiary
Company to a Subsidiary Company, his employment shall not be deemed to be
terminated by reason of such transfer. The unvested portion of the Shares shall
terminate immediately if, while the Employee is employed by a Subsidiary
Company, such Subsidiary Company shall cease to be a Subsidiary Company and the
Employee is not thereupon transferred to and employed by the Company or another
Subsidiary Company.
4. CONSTRUCTION. Whenever the word "Employee" is used in any provision of
this Agreement in circumstances where the provision should logically be
construed to apply to the estate, personal representative, or beneficiary to
whom this Grant may be transferred by Will, by the laws of descent and
distribution, or by a qualified domestic relations order pursuant to the Code or
Title I of the Employment Retirement Income Security Act of 1974, as amended,
modified or supplemented from time to time ("ERISA"), it shall be deemed to
include such person.
5. PHYSICAL POSSESSION OF SHARES; RESTRICTIONS ON TRANSFER. (a) Each
certificate of Shares shall be registered in the name of the Employee but shall
be held by the Company until the Employee is entitled to physical possession of
the Shares pursuant to the terms of this Agreement. Until the Employee has
received physical possession of the Shares, the Employee may not give, grant,
sell, exchange, transfer legal title, pledge, assign or otherwise encumber or
dispose of any unvested Shares granted pursuant to the Plan or any interest
therein or this Agreement, otherwise than by Will, the laws of descent and
distribution, or by a qualified domestic relations order pursuant to the Code or
Title I of ERISA.
(b) No assignment or transfer of any unvested Shares, or of the rights
represented thereby or this Agreement, whether voluntary or involuntary, by
operation of law or otherwise (except by Will, the laws of descent and
distribution, or a qualified domestic relations order pursuant to the Code or
Title I of ERISA), shall vest in the assignee or transferee any interest or
right herein whatsoever. Further, immediately upon any attempt to assign or
transfer any unvested Shares granted pursuant to this Agreement, the Grant shall
immediately terminate and be of no further force or effect (except by Will, the
laws of descent and distribution, or a qualified domestic relations order
pursuant to the Code or Title I or ERISA).
6. POWERS. The existence of this Grant shall not affect in any way the
right or power of the Company or its stockholders to make or authorize any or
all adjustments, recapitalization, reorganizations or other changes in the
Company's capital structure or its business, or any merger or consolidation of
the Company, or any issue of bonds,
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Exhibit 10.37
debentures, preferred or prior preference stocks ahead of or affecting the
Common Stock or the rights thereof, or the dissolution or liquidation of the
Company, or any sale or transfer of all or any part of its assets or business,
or any other corporate act or proceeding, whether of a similar character or
otherwise.
7. CHANGE OF CONTROL. Except as set forth in Paragraph 3 hereof,
notwithstanding anything in this Agreement to the contrary, all Shares which
have not vested as of the date of a Change of Control (as defined below) occurs,
shall immediately vest upon a Change of Control and be delivered to the Employee
pursuant to the delivery provisions of this Agreement. For purposes of this
Agreement, a Change of Control shall be defined as:
(1) any person (including as such term is used in Section 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended) who
becomes the beneficial owner, directly or indirectly, of securities
representing 20% or more of the combined voting power of the Company's
then outstanding securities; or
(2) as a result of a proxy contest or contests or other forms of contested
shareholder votes (in each case either individually or in the
aggregate), a majority of the individuals elected to serve on the
Company's Board of Directors are different than the individuals who
served on the Company's Board of Directors at any time within the two
years prior to such proxy contest or contests or other forms of
contested shareholder votes (in each case either individually or in
the aggregate); or
(3) when the Company's shareholders approve a merger, or consolidation
(where in each case the Company is not the survivor thereof), or sale
or disposition of all or substantially all of the Company's assets or
a plan or partial or complete liquidation; or
(4) when an offerer (other than the Company) purchases shares of the
Company's Common Stock pursuant to a tender or exchange offer for
securities representing 20% or more of the combined voting power of
the Company's then outstanding securities.
8. ISSUANCE OF SHARES; POWER OF ATTORNEY. (a) Within sixty (60) days of the
date of this Agreement, the Company shall cause its transfer agent to issue in
the Employee's name a certificate evidencing the Shares granted pursuant to this
Agreement. The certificate representing unvested Shares shall be retained by the
Company and shall bear a legend stating that such Shares are subject to the
provisions of this Agreement. The Company may place a "stop transfer" order with
respect to all unvested Shares with its transfer agent.
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Exhibit 10.37
(b) Within thirty (30) days of the vesting date as set forth in Section 2
hereof, the Company shall cause its transfer agent to issue to the Employee,
upon the Company's surrender of the appropriate certificate representing
unvested Shares, a new certificate representing the Shares vested during the
plan year. The transfer agent shall thereupon re-issue on behalf of and in the
Employee's name a certificate representing the remaining unvested Shares still
subject to the terms of this Agreement, which certificate shall be retained by
the Company.
(c) The Company shall have the right to deduct from any vested shares a
number of shares sufficient to cover the withholding of any federal, state or
local or other governmental taxes or charges required by law or such greater
amount of withholding as permitted by applicable law, rules or regulations, or
to take such other action as may be necessary to satisfy any such withholding
obligations.
(d) The Employee hereby constitutes and appoints the Company as his true
and lawful attorney-in-fact and agent, with full power of substitution and
resubstitution for him in his name, place and ▇▇▇▇▇, in any and all capacities
to take all actions and to execute all instruments necessary and proper to carry
out the issuance and cancellation of the Shares hereunder.
(e) The Employee represents and warrants that he will take all actions
necessary, as directed by the Company, to cancel the certificate representing
any or all unvested Shares upon termination of his employment.
9. CHANGES IN LAW. Notwithstanding anything in this Agreement to the
contrary, if at any time any law or regulations of any governmental authority
having jurisdiction in the premises shall require either the Company or the
Employee to take any action in connection with the Shares then to be issued, the
issue of such Shares shall be deferred until such action shall have been taken.
10. DISPUTE. Any dispute or disagreement which shall arise under, as a
result of, or pursuant to, this Agreement shall be finally determined by the
Company's Compensation and Organization Committee of the Board of Directors in
its absolute and uncontrolled discretion, and any such determination or any
other determination by the Company's Compensation and Organization Committee of
the Board of Directors under or pursuant to this Agreement, and any
interpretation by the Company's Compensation and Organization Committee of the
Board of Directors of the terms of this Agreement, shall be final, binding and
conclusive on all persons affected thereby.
11. SECURITIES LAW RESTRICTIONS. The Employee represents and warrants that
he or she is acquiring the Shares for investment, for his or her own account and
not with a view to the distribution thereof, and that the Employee has no
present intention of disposing of the Shares or any interest therein or sharing
ownership thereof with any other person or entity. The Employee shall not sell,
hypothecate or transfer the Shares except pursuant to an effective registration
statement under the Securities Act of 1933, as amended or an
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Exhibit 10.37
applicable exemption thereto evidenced by an opinion of counsel in form and
substance satisfactory to the Company.
12. NO EFFECT UPON EMPLOYMENT. This Agreement does not give, nor shall it
be construed as giving, the Employee any right to employment by the Company or
any of its subsidiaries or affiliates.
13. GOVERNING LAW; BINDING EFFECT. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW JERSEY (WITHOUT REGARD
TO THE CONFLICT OF LAW PROVISIONS THEREOF) AND ALL QUESTIONS CONCERNING THE
VALIDITY AND CONSTRUCTION THEREOF SHALL BE GOVERNED IN ACCORDANCE WITH THE LAWS
OF SAID STATE; PROVIDED, HOWEVER, THAT ALL MATTERS OF CORPORATE GOVERNANCE AND
OTHER CORPORATE MATTERS CONCERNING DELAWARE CORPORATIONS SHALL BE GOVERNED BY
THE DELAWARE GENERAL CORPORATION LAW. Except as otherwise expressly provided
herein, this Agreement shall be binding upon and inure to the benefit of the
parties hereto, their legal representatives, successors and assigns.
14. EFFECT ON COMPENSATION AND DISCRETIONARY NATURE OF GRANT.
Notwithstanding anything in this Agreement to the contrary, none of the Shares,
if any, granted or paid to Employee shall be considered compensation for the
purpose of determining Employee's compensation under any other benefit or
compensation plan of the Company, including, without limitation, any bonus plan,
variable compensation plan, long-term incentive plan, pension plan or other
retirement plans. The Employee acknowledges and agrees that the Plan is
discretionary in nature and may be amended, cancelled, or terminated by the
Company, in its sole discretion, at any time. The grant of restricted stock
under the Plan is a one-time benefit and does not create any contractual or
other right to receive a restricted grant of stock or benefits in lieu of
restricted stock in the future. Future grants of restricted stock, if any, will
be at the sole discretion of the Company, including, but not limited to, the
timing of any grant, the number of shares of restricted stock and the vesting
provisions.
15. SECTION 83(b) ELECTION. If Employee makes an election with respect to
the receipt of the Shares pursuant to Section 83(b) of the Code (the
"Election"), such Election shall contain all information required by Treasury
Regulation Section 1.83-2 and shall, in accordance with that regulation, be
filed no later than 30 days after the transfer of the Shares to the Employee.
The Election shall be filed with the Internal Revenue Service Center at which
the Employee files his or her income tax return. Contemporaneously with such
filing, the Employee shall furnish a copy of the Election to the Company, in
accordance with Treasury Regulation Section 1.83-2(d).
16. PLAN DOCUMENT. This Agreement is subject in all respects to the Plan, a
copy of which may be obtained from the Company's Corporate Senior Vice
President, Human Resources, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇. To
the extent
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Exhibit 10.37
that there is any inconsistency or conflict between this Agreement and the Plan,
the Plan shall control.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
COVANCE INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and Cheif Executive Officer
Attest:
/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Corporate Senior Vice President,
General Counsel and Secretary
EMPLOYEE
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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