HALOZYME THERAPEUTICS, INC.
RESTRICTED STOCK AGREEMENT
Halozyme
Therapeutics, Inc. has granted to the Participant named in the
Notice of Grant of Restricted Stock (the “ Grant
Notice ”) to which this Restricted Stock Agreement
(the “ Agreement ”) is attached an Award
consisting of Shares subject to the terms and conditions set forth
in the Grant Notice and this Agreement. The Award has been granted
pursuant to and shall in all respects be subject to the terms and
conditions of the Halozyme Therapeutics, Inc. 2008 Outside
Directors’ Stock Plan (the “ Plan
”), as amended to the Date of Grant, the provisions of which
are incorporated herein by reference. By signing the Grant Notice,
the Participant: (a) acknowledges receipt of and represents
that the Participant has read and is familiar with the Grant
Notice, this Agreement, the Plan and a prospectus for the Plan in
the form most recently registered with the Securities and Exchange
Commission (the “ Plan Prospectus ”),
(b) accepts the Award subject to all of the terms and
conditions of the Grant Notice, this Agreement and the Plan and
(c) agrees to accept as binding, conclusive and final all
decisions or interpretations of the Board upon any questions
arising under the Grant Notice, this Agreement or the
Plan.
1. Definitions and Construction
.
1.1
Definitions . Unless otherwise defined herein, capitalized
terms shall have the meanings assigned to such terms in the Grant
Notice or the Plan.
1.2
Construction. Captions and titles contained herein are for
convenience only and shall not affect the meaning or interpretation
of any provision of this Agreement. Except when otherwise indicated
by the context, the singular shall include the plural and the
plural shall include the singular. Use of the term “or”
is not intended to be exclusive, unless the context clearly
requires otherwise.
All
questions of interpretation concerning the Grant Notice and this
Agreement shall be determined by the Board. All determinations by
the Board shall be final and binding upon all persons having an
interest in the Award. Any Officer shall have the authority to act
on behalf of the Company with respect to any matter, right,
obligation, or election which is the responsibility of or which is
allocated to the Company herein, provided the Officer has been
delegated such authority by the Board with respect to such matter,
right, obligation, or election.
3.1
Grant and Issuance of Shares. On the Date of Grant, the
Participant shall acquire and the Company shall issue, subject to
the provisions of this Agreement, a number of Shares equal to the
Total Number of Shares set forth in the Grant Notice. As a
condition to the issuance of the Shares, the Participant shall
execute and deliver to the Company along with the Grant Notice
(a) if requested by the Company, Joint Escrow Instructions in
a form provided by the Company and (b) if requested by the
Company, the Assignment Separate from Certificate duly endorsed
(with date and number of Shares blank) in the form attached to the
Grant Notice.
3.2
No Monetary Payment Required. The Participant is not
required to make any monetary payment as a condition to receiving
the Shares, the consideration for which shall be past services
actually rendered and/or future services to be rendered to a
Participating Company or for its benefit. Notwithstanding the
foregoing, if required by applicable state corporate law, the
Participant shall furnish consideration in the form of cash or past
services rendered to a Participating Company or for its benefit
having a value not less than the par value of the Shares issued
pursuant to the Award.
3.3
Beneficial Ownership of Shares; Certificate Registration.
The Participant hereby authorizes the Company, in its sole
discretion, to deposit the Shares with the Company’s transfer
agent, including any successor transfer agent, to be held in book
entry form during the term of the Escrow pursuant to
Section 6. Furthermore, the Participant hereby authorizes the
Company, in its sole discretion, to deposit, following the term of
such Escrow, for the benefit of the Participant with any broker
with which the Participant has an account relationship of which the
Company has notice any or all Shares which are no longer subject to
such Escrow. Except as provided by the foregoing, a certificate for
the Shares shall be registered in the name of the Participant, or,
if applicable, in the names of the heirs of the
Participant.
3.4
Issuance of Shares in Compliance with Law. The issuance of
the Shares shall be subject to compliance with all applicable
requirements of federal, state or foreign law with respect to such
securities. No Shares shall be issued hereunder if their issuance
would constitute a violation of any applicable federal, state or
foreign securities laws or other law or regulations or the
requirements of any stock exchange or market system upon which the
Stock may then be listed. The inability of the Company to obtain
from any regulatory body having jurisdiction the authority, if any,
deemed by the Company’s legal counsel to be necessary to the
lawful issuance of any Shares shall relieve the Company of any
liability in respect of the failure to issue such Shares as to
which such requisite authority shall not have been obtained. As a
condition to the issuance of the Shares, the Company may require
the Participant to satisfy any qualifications that may be necessary
or appropriate, to evidence compliance with any applicable law or
regulation and to make any representation or warranty with respect
thereto as may be requested by the Company.
4.1
Normal Vesting. Except as provided in Section 4.2, the
Shares shall vest and become Vested Shares as provided in the Grant
Notice.
4.2
Acceleration of Vesting Upon a Change in Control . In the
event of a Change in Control, the vesting of the Shares shall be
accelerated in full and the Total Number of Shares shall be deemed
Vested Shares effective as of the date of the Change in Control,
provided that the Participant’s Service has not terminated
prior to such date.
2
4.3
Federal Excise Tax Under Section 4999 of the
Code.
(a)
Excess Parachute Payment. In the event that any acceleration
of vesting pursuant to this Agreement and any other payment or
benefit received or to be received by the Participant would subject
the Participant to any excise tax pursuant to Section 4999 of
the Code due to the characterization of such acceleration of
vesting, payment or benefit as an excess parachute payment under
Section 280G of the Code, the Participant may elect, in his or
her sole discretion, to reduce the amount of any acceleration of
vesting called for under this Agreement in order to avoid such
characterization.
(b)
Determination by Independent Accountants. To aid the
Participant in making any election called for under
Section 4.3(a), upon the occurrence of any event that might
reasonably be anticipated to give rise to the acceleration of
vesting under Section 4.2 (an “ Event
”), the Company shall promptly request a determination in
writing by independent public accountants selected by the Company
(the “ Accountants ”). Unless the Company
and the Participant otherwise agree in writing, the Accountants
shall determine and report to the Company and the Participant
within twenty (20) days of the date of the Event the amount of such
acceleration of vesting, payments and benefits which would produce
the greatest after-tax benefit to the Participant. For the purposes
of such determination, the Accountants may rely on reasonable, good
faith interpretations concerning the application of
Sections 280G and 4999 of the Code. The Company and the
Participant shall furnish to the Accountants such information and
documents as the Accountants may reasonably request in order to
make their required determination. The Company shall bear all fees
and expenses the Accountants may reasonably charge in connection
with their services contemplated by this Section.
5. Company Reacquisition Right
.
5.1
Grant of Company Reacquisition Right. Except to the extent
otherwise provided in an agreement between a Participating Company
and the Participant which refers to this Award, in the event that
(a) the Participant’s Service terminates for any reason
or no reason, with or without cause, or (b) the Participant,
the Participant’s legal representative, or other holder of
the Shares, attempts to sell, exchange, transfer, pledge, or
otherwise dispose of (other than pursuant to an Ownership Change
Event), including, without limitation, any transfer to a nominee or
agent of the Participant, any Shares which are not Vested Shares
(“ Unvested Shares ”), the Company shall
automatically reacquire the Unvested Shares, and the Participant
shall not be entitled to any payment therefor (the “
Company Reacquisition Right ”).
5.2
Ownership Change Event. Upon the occurrence of an Ownership
Change Event, any and all new, substituted or additional securities
or other property to which the Participant is entitled by reason of
the Participant’s ownership of Unvested Shares shall be
immediately subject to the Company Reacquisition Right and included
in the terms “Shares,” “Stock” and
“Unvested Shares” for all purposes of the Company
Reacquisition Right with the same force and effect as the Unvested
Shares immediately prior to the Ownership Change Event. For
purposes of determining the number of Vested Shares following an
Ownership Change Event, credited Service shall include all Service
with any corporation which is a Participating Company at the time
the Service is rendered, whether or not such corporation is a
Participating Company both before and after the Ownership Change
Event.
3
6.1
Establishment of Escrow. To ensure that Shares subject to
the Company Reacquisition Right will be available for
reacquisition, the Participant agrees, if requested by the Company,
to deliver to and deposit with an escrow agent designated by the
Company: (i) the certificate evidencing the Shares and
(ii) an Assignment Separate from Certificate with respect to
such certificate duly endorsed (with date and number of Shares
blank) in the form attach
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