Exhibit 10.2(c)
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 2005 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 for sale 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, 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 PURCHASE. 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. COMPANY'S LAPSING REPURCHASE RIGHT.
(a) LAPSING REPURCHASE RIGHT. In the event that for any reason the
Participant is no longer an employee, director 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
Repurchase Right").
The Company's Lapsing Repurchase 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 Repurchase 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
Repurchase Right; provided, however, that the Company's Lapsing Repurchase 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 Administrator 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 Repurchase 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
Repurchase 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). The Company
shall promptly release from escrow and deliver to the Participant a certificate
for the whole number of Granted Shares, if any, as to which the Company's
Lapsing Repurchase Right has lapsed. In the event of forfeiture to the Company
of Granted Shares subject to the Lapsing Repurchase 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 Repurchase 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,
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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 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 REPURCHASED. 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 Repurchase Right has lapsed
for a period not to exceed the lesser of: (i) 180 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
____________________ with this Company, a copy of which
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Agreement is available for inspection at the offices of the Company or
will be made available upon request."
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 Repurchase 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 in substantially the form attached as EXHIBIT B.
The Participant acknowledges that if she does not file such an election, as the
Granted Shares are released from the Lapsing Repurchase 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.(1)
[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 Repurchase
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 Repurchase 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
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(1) If the Shares are purchased at fair market value then the 83(b) election
would be protective in nature and would not result in any additional tax on
purchase of the Shares. If the Shares are being purchased at a discount from
fair market value, the 83(b) election accelerates the timing of the taxation to
the time of the grant, and later dispositions are taxed at capital gain rates.
If the 83(b) election is not made then the tax is paid at the time the
restrictions lapse (which could result in a higher possible taxable spread at
that time). An 83(b) election must be made within 30 days of the grant.
If the Company pays cash dividends and an 83(b) election is filed,
dividends receive dividend tax treatment. However, if no 83(b) election is made
(as is the case with most public companies) the Employee will pay ordinary
income tax rates on the cash dividend payments until the restrictions on the
shares underlying those dividends lapse.
If no 83(b) election is filed consider adding the following to the
Agreement: The Participant has agreed not to file an election with respect to
the Granted Shares under Section 83 of the Code and has obtained the advice or
has been given the opportunity to obtain the advice of his or her tax advisors
with respect to the tax consequences of the purchase of the Granted Shares and
the provisions of this Agreement.
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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,
director 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 repurchase 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 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.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Vice President of Legal Affairs
If to the Participant:
EMPLOYEE NAME
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
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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 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.
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[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:
Title:
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
Repurchase 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 Repurchase 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:
A-1
EXHIBIT B
ELECTION TO INCLUDE GROSS INCOME IN YEAR
OF TRANSFER PURSUANT TO SECTION 83(b)
OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED
In accordance with Section 83(b) of the Internal Revenue Code of 1986, as
amended (the "Code"), the undersigned hereby elects to include in his gross
income as compensation for services the excess, if any, of the fair market value
of the property (described below) at the time of transfer over the amount paid
for such property.
The following sets for the information required in accordance with the Code and
the regulations promulgated hereunder:
1. The name, address and social security number of the undersigned are:
Name:
Address:
Social Security No.:
2. The description of the property with respect to which the election is being
made is as follows:
____________ (___) shares (the "Shares") of Common Stock, $.0001 par value
per share, of Synta Pharmaceuticals Corp., a Delaware corporation (the
"Company").
3. This election is made for the calendar year ____, with respect to the
transfer of the property to the Taxpayer on _________________.
4. Description of restrictions: The property is subject to the following
restrictions:
In the event taxpayer's employment with the Company or an Affiliate is
terminated, the Company may repurchase all or any portion of the Shares
determined as set forth below at the acquisition price paid by the
taxpayer:
A. If the termination takes place on or prior to ____________, the
Purchase Option will apply to all of the Shares.
B. If the termination takes place after __________, 200_, the number of
Shares to which the Purchase Option applies shall be ______________
(___) Shares less ____________________ (___) Shares for each full
twelve (12) month period elapsed after _____________, 200_ if the
taxpayer is employed by the Company or an Affiliate.
5. The fair market value at time of transfer (determined without regard to any
restrictions other than restrictions which by their terms will never lapse)
of the property with respect to which this election is being made was not
more than $____ per Share.
6. The amount paid by taxpayer for said property was $___ per Share.
7. A copy of this statement has been furnished to the Company.
Signed this ____ day of ______, 200_.
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Print Name:
B-1