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Exhibit 10.5
NxStage Medical, Inc.
Restricted Stock Agreement
Granted Under 2005 Stock Incentive Plan
AGREEMENT made this ____ day of _____________, 200[ ], between
NxStage
Medical, Inc., a Delaware corporation (the "Company"), and
____________________
(the "Participant").
For valuable consideration, receipt of which is acknowledged,
the
parties hereto agree as follows:
1. Purchase of Shares.
The Company shall issue and sell to the Participant, and the
Participant shall purchase from the Company, subject to the terms
and conditions
set forth in this Agreement and in the Company's 2005 Stock
Incentive Plan (the
"Plan"), ______ shares (the "Shares") of common stock, $0.001 par
value, of the
Company ("Common Stock"), at a purchase price of $[ ] per share.
The aggregate
purchase price for the Shares shall be paid by the Participant by
check payable
to the order of the Company or such other method as may be
acceptable to the
Company. Upon receipt by the Company of payment for the Shares, the
Company
shall issue to the Participant one or more certificates in the name
of the
Participant for that number of Shares purchased by the Participant.
The
Participant agrees that the Shares shall be subject to the purchase
options set
forth in Section 2 of this Agreement and the restrictions on
transfer set forth
in Section 4 of this Agreement.
2. Purchase Option.
(a) 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
_______, [ ]_, the Company shall have the right and option (the
"Purchase
Option") to purchase from the Participant, for a sum of $[ ] per
share (the
"Option Price"), some or all of the Unvested Shares (as defined
below).
"Unvested Shares" means the total number of Shares multiplied by
the
Applicable Percentage at the time the Purchase Option becomes
exercisable by the
Company. The "Applicable Percentage" shall be (i) 100% during the
12-month
period ending ____________, 200_, (ii) [75%] less [6.25%] for each
three months
of employment completed by the Participant with the Company from
and after
_________, 200_, and (iii) zero on or after ________, 200__.
(b) If the Participant is employed by a parent or subsidiary
of the Company, any references in this Agreement to employment with
the Company
or termination of employment by or with the Company shall instead
be deemed to
refer to such parent or subsidiary.
3. Exercise of Purchase Option and Closing.
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(a) The Company may exercise the Purchase Option by delivering
or mailing to the Participant (or his estate), within 90 days after
the
termination of the employment of the Participant with the Company,
a written
notice of exercise of the Purchase Option. Such notice shall
specify the number
of Shares to be purchased. If and to the extent the Purchase Option
is not so
exercised by the giving of such a notice within such 90-day period,
the Purchase
Option shall automatically expire and terminate effective upon the
expiration of
such 90-day period.
(b) Within 10 days after delivery to the Participant of the
Company's notice of the exercise of the Purchase Option pursuant to
subsection
(a) above, the Participant (or his estate) shall, pursuant to the
provisions of
the Joint Escrow Instructions referred to in Section 7 below,
tender to the
Company at its principal offices the certificate or certificates
representing
the Shares which the Company has elected to purchase in accordance
with the
terms of this Agreement, duly endorsed in blank or with duly
endorsed stock
powers attached thereto, all in form suitable for the transfer of
such Shares to
the Company. Promptly following its receipt of such certificate or
certificates,
the Company shall pay to the Participant the aggregate Option Price
for such
Shares (provided that any delay in making such payment shall not
invalidate the
Company's exercise of the Purchase Option with respect to such
Shares).
(c) After the time at which any Shares are required to be
delivered to the Company for transfer to the Company pursuant to
subsection (b)
above, the Company shall not pay any dividend to the Participant on
account of
such Shares or permit the Participant to exercise any of the
privileges or
rights of a stockholder with respect to such Shares, but shall, in
so far as
permitted by law, treat the Company as the owner of such
Shares.
(d) The Option Price 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) The Company shall not purchase any fraction of a Share
upon exercise of the Purchase Option, and any fraction of a Share
resulting from
a computation made pursuant to Section 2 of this Agreement shall be
rounded to
the nearest whole Share (with any one-half Share being rounded
upward).
(f) The Company may assign its Purchase Option to one or more
persons or entities.
4. Restrictions on Transfer.
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, that are subject
to the
Purchase Option, 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
Purchase Option)
and such permitted transferee shall, as a condition to such
transfer, deliver to
the Company a written instrument confirming
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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, the
securities or
other property received by the Participant in connection with such
transaction
shall remain subject to this Agreement.
5. Escrow.
The Participant shall, upon the execution of this Agreement,
execute
Joint Escrow Instructions in the form attached to this Agreement as
Exhibit A.
The Joint Escrow Instructions shall be delivered to the Secretary
of the
Company, as escrow agent thereunder. The Participant shall deliver
to such
escrow agent a stock assignment duly endorsed in blank, in the form
attached to
this Agreement as Exhibit B, and hereby instructs the Company to
deliver to such
escrow agent, on behalf of the Participant, the certificate(s)
evidencing the
Shares issued hereunder. Such materials shall be held by such
escrow agent
pursuant to the terms of such Joint Escrow Instructions.
6. Restrictive Legends.
All certificates representing Shares shall have affixed thereto
legends
in substantially the following form, in addition to any other
legends that may
be required under federal or state securities laws:
"The shares of stock represented by this certificate are
subject to restrictions on transfer and an option to purchase
set forth in a certain Restricted Stock Agreement between the
corporation and the registered owner of these shares (or his
predecessor in interest), and such Agreement is available for
inspection without charge at the office of the Secretary of
the corporation."
7. Provisions of the Plan.
(a) This Agreement is subject to the provisions of the Plan, a
copy of which is furnished to the Participant with this
Agreement.
(b) As provided in the Plan, upon the occurrence of a
Reorganization Event (as defined in the Plan), the repurchase and
other rights
of the Company hereunder shall inure to the benefit of the
Company's successor
and shall apply to the cash, securities or other property which the
Shares were
converted into or exchanged for pursuant to such Reorganization
Event in the
same manner and to the same extent as they applied to the Shares
under this
Agreement. If, in connection with a Reorganization Event, a portion
of the cash,
securities and/or other property received upon the conversion or
exchange of the
Shares is to be placed into escrow to secure indemnification or
similar
obligations, the mix between the vested and unvested portion of
such cash,
securities and/or other property that is placed into escrow shall
be the same as
the mix between the vested and unvested portion of such cash,
securities and/or
other property that is not subject to escrow.
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8. Withholding Taxes; Section 83(b) Election.
(a) The Participant acknowledges and agrees that the Company
has the right to deduct from payments of any kind otherwise due to
the
Participant any federal, state or local taxes of any kind required
by law to be
withheld with respect to the purchase of the Shares by the
Participant or the
lapse of the Purchase Option.
(b) The Participant has reviewed with the Participant's own
tax advisors the federal, state, local and foreign tax consequences
of this
investment and the transactions cont
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