Savient
Pharmaceuticals, Inc.
Performance Share Agreement
Granted Under 2004 Incentive Plan
AGREEMENT made
[DATE], between Savient Pharmaceuticals, Inc., a Delaware
corporation (the “ Company ”), and [NAME] (the
“ Participant ”).
For valuable
consideration, including employment services rendered and to be
rendered by the Participant to the Company, the parties hereto
agree as follows:
The Company shall
issue to the Participant, subject to the terms and conditions set
forth in this Agreement and in the Company’s 2004 Incentive
Plan (the “ Plan ”), a maximum of
[#] shares (the “ Shares ”) of common
stock, $0.01 par value, of the Company (“ Common Stock
”). The Participant agrees that the Shares shall be subject
to the forfeiture provisions set forth in Section 2 of this
Agreement and the restrictions on transfer set forth in
Section 4 of this Agreement.
(a) The
Shares shall vest on two separate occasions as set forth in
Exhibit A in accordance with the achievement of the
performance objectives (the “ Performance Objectives
”) set forth in Exhibit B and
Exhibit C hereto (each, a “ Vesting Event
”).
(b) In
the event that the Participant ceases to be employed by the Company
for any reason or no reason, with or without cause, prior to a
Vesting Event, such maximum number of Shares as would have vested
upon such Vesting Event shall be forfeited immediately and
automatically to the Company in exchange for $.01 per Share.
Notwithstanding anything herein to the contrary, if the Shares do
not vest on or before the occurrence of one or more of the events
set forth in this Section 2, the Shares shall automatically be
forfeited to the Company in exchange for $0.01 per Share. The
aggregate amount to be paid for by the Company to the Participant
upon forfeiture of the Shares shall be referred to herein as the
“ Forfeiture Amount ”.
(c) Notwithstanding
the foregoing, if a Change in Control (as defined in the Plan) of
the Company occurs prior to a Vesting Event, such number of shares
as indicated in Paragraph 1 hereto shall immediately vest and
become exercisable, to the extent not already vested.
(d) The
Forfeiture Amount may be payable, at the option of the Company, in
cancellation of all or a portion of any outstanding indebtedness of
the Participant to the Company or in cash (by check) or
both.
(e) For
purposes of this Agreement, employment with the Company shall
include employment with a parent or subsidiary of the
Company.
3.
Automatic Sale Upon Vesting .
(a) Upon
a Vesting Event, the Company shall sell, or arrange for the sale
of, such number of the Shares as have vested as is sufficient to
generate net proceeds sufficient to satisfy no less than the
Company’s minimum statutory withholding obligations with
respect to the income recognized by the Participant upon the
vesting of the Shares (based on minimum statutory withholding rates
for federal and state tax purposes, including payroll taxes, that
are applicable to such income), and the Company shall retain such
net proceeds in satisfaction of such tax withholding
obligations.
(b) The
Participant hereby appoints the President and the Secretary of the
Company, and each of them acting singly, his or her attorney in
fact, to sell the Participant’s Shares in accordance with
this Section 3. The Participant agrees to execute and deliver
such documents, instruments and certificates as may reasonably be
required in connection with the sale of the Shares pursuant to this
Section 3.
(c) The
Participant represents to the Company that, as of the date hereof,
he or she is not aware of any material nonpublic information about
the Company or the Common Stock. The Participant and the Company
have structured this Agreement to constitute a “binding
contract” relating to the sale of Common Stock pursuant to
this Section 3, consistent with the affirmative defense to
liability under Section 10(b) of the Securities Exchange Act of
1934 under Rule 10b5-1(c) promulgated under such
Act.
4.
Restrictions on Transfer .
(a) The
Participant shall not sell, assign, transfer, pledge, hypothecate
or otherwise dispose of, by operation of law or otherwise
(collectively “ transfer ”) any Shares, or any
interest therein, until such Shares have vested, except that the
Participant may transfer such Shares (i) to or for the benefit
of any spouse, children, parents, uncles, aunts, siblings,
grandchildren and any other relatives approved by the Board of
Directors (collectively, “ Approved Relatives ”)
or to a trust established solely for the benefit of the Participant
and/or Approved Relatives, provided that such Shares shall
remain subject to this Agreement (including without limitation the
restrictions on transfer set forth in this Section 4 and the
forfeiture provisions contained in Section 2) and such
permitted transferee shall, as a condition to such transfer,
deliver to the Company a written instrument confirming that such
transferee shall be bound by all of the terms and conditions of
this Agreement or (ii) as part of the sale of all or
substantially all of the shares of capital stock of the Company
(including pursuant to a merger or consolidation), provided
that, in accordance with the Plan and except as otherwise provided
herein, the securities or other property received by the
Participant in connection with such transaction shall remain
subject to this Agreement.
(b) The
Company shall not be required (i) to transfer on its books any
of the Shares which have been transferred in violation of any of
the provisions set forth in this Agreement or (ii) to treat as
owner of such Shares or to pay dividends to any transferee to whom
such Shares have been transferred in violation of any of the
provisions of this Agreement.
All Shares subject
to this Agreement shall be subject to the following restriction, in
addition to any other legends that may be required under federal or
state securities laws, until vested:
“The
shares of stock represented by this certificate are
|
