Exhibit 10.25
AGIOS PHARMACEUTICALS, INC.
Performance Share Unit Agreement
2013 Stock Incentive Plan
NOTICE OF GRANT
This Performance Share Unit Agreement (this “Agreement”) is made as of the Agreement Date between Agios Pharmaceuticals, Inc. (the “Company”), a Delaware corporation, and the Participant.
I. | Agreement Date | |||
| Date: |
II. | Participant Information | |||
| Participant: | ||||
| Participant Address: |
III. | Grant Information | |||
| Grant Date: | ||||
| Performance Period: | From Grant Date through | |||
Number of Performance Share Units: |
IV. | Vesting Table | |||
| Vesting Date | Performance Share Units that Vest | |||
| The date that is months after the date of achievement of Performance Goal |
This Agreement includes this Notice of Grant and the following Exhibit, which is expressly incorporated by reference in its entirety herein:
Exhibit A – General Terms and Conditions
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Agreement Date.
| AGIOS PHARMACEUTICALS, INC. | PARTICIPANT | |||||
|
| |||||
| Name: | Name: | |||||
| Title: | ||||||
Performance Share Unit Agreement
2013 Stock Incentive Plan
EXHIBIT A
GENERAL TERMS AND CONDITIONS
For valuable consideration, receipt of which is acknowledged, the parties hereto agree as follows:
1. Award of Performance Share Units.
In consideration of services rendered and to be rendered to the Company by the Participant, the Company has granted to the Participant, subject to the terms and conditions set forth in this Agreement and in the Company’s 2013 Stock Incentive Plan (the “Plan”), an award with respect to the number of performance share units (the “PSUs”) set forth in the Notice of Grant that forms part of this Agreement (the “Notice of Grant”). Each PSU represents the right to receive one share of common stock, $0.001 par value per share, of the Company (the “Common Stock”), subject to achievement of the Performance Goal (defined below) and the vesting conditions specified herein.
2. Earning and Vesting of PSUs.
(a) 100% of the PSUs shall be eligible to be earned by the Participant if the Performance Goal (as defined below) has been achieved on or before the last day of the Performance Period set forth in the Notice of Grant. If the Performance Goal is not achieved on or before the last day of the Performance Period, the PSUs shall automatically terminate and the Participant shall not be entitled to any shares of Common Stock with respect to the PSUs.
The “Performance Goal” shall mean [ .]
(b) Notwithstanding that the PSUs may be eligible to be earned pursuant to Section 2(a), the Participant shall not be entitled to any shares of Common Stock with respect to the PSUs until the PSUs have vested in accordance with the Vesting Table set forth in the Notice of Grant.
(c) Upon the vesting of the PSUs, the Company will deliver to the Participant, for each PSU that becomes vested, one share of Common Stock, subject to the payment of any withholding taxes pursuant to Section 7. The Common Stock will be delivered to the Participant as soon as practicable following the vesting date, but in any event within three (3) business days of such date.
3. Forfeiture of Unvested PSUs Upon Cessation of Service.
In the event that the Participant ceases to perform services to the Company for any reason or no reason, with or without cause, all of the PSUs that are unvested as of the time of such cessation shall be forfeited immediately and automatically to the Company, without the payment
of any consideration to the Participant, effective as of such cessation. The Participant shall have no further rights with respect to the unvested PSUs or any Common Stock that may have been issuable with respect thereto. For the avoidance of doubt, even if the Performance Goal is achieved, if the Participant ceases to perform services to the Company for any reason or no reason, with or without cause, prior to the [six-month anniversary of the] achievement of the Performance Goal, all of the PSUs shall be forfeited without the payment of any consideration to the Participant. If the Participant provides services to a subsidiary of the Company, any references in this Agreement to provision of services to the Company shall instead be deemed to refer to service with such subsidiary.
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 PSUs, or any interest therein. The Company shall not be required to treat as the owner of any PSUs or issue any Common Stock to any transferee to whom such PSUs have been transferred in violation of any of the provisions of this Agreement.
5. Rights as a Shareholder.
The Participant shall have no rights as a stockholder of the Company with respect to any shares of Common Stock that may be issuable with respect to the PSUs until the issuance of the shares of Common Stock to the Participant following the vesting of the PSUs.
6. Provisions of the Plan.
This Agreement is subject to the provisions of the Plan, a copy of which is furnished to the Participant with this Agreement.
7. Tax Matters.
(a) Acknowledgments; No Section 83(b) Election. The Participant acknowledges that he or she is responsible for obtaining the advice of the Participant’s own tax advisors with respect to the award of PSUs and the Participant is relying solely on such advisors and not on any statements or representations of the Company or any of its agents with respect to the tax consequences relating to the PSUs. The Participant understands that the Participant (and not the Company) shall be responsible for the Participant’s tax liability that may arise in connection with the acquisition, vesting and/or disposition of the PSUs. The Participant acknowledges that no election under Section 83(b) of the Internal Revenue Code, as amended, is available with respect to PSUs.
(b) Withholding. 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, local or other taxes of any kind required by law to be withheld with respect to the vesting of the PSUs. At such time as the Participant is not aware of any material nonpublic information about the Company or the Common Stock, the Participant shall execute the instructions set forth inExhibit A attached hereto (the “Automatic Sale Instructions”) as the means of satisfying such tax obligation. If the Participant does not execute the Automatic Sale Instructions prior to an
applicable vesting date, then the Participant agrees that if under applicable law the Participant will owe taxes at such vesting date on the portion of the Award then vested the Company shall be entitled to immediate payment from the Participant of the amount of any tax required to be withheld by the Company. The Company shall not deliver any shares of Common Stock to the Participant until it is satisfied that all required withholdings have been made.
8. Miscellaneous.
(a) Authority of Compensation Committee. In making any decisions or taking any actions with respect to the matters covered by this Agreement, the Compensation Committee shall have all of the authority and discretion, and shall be subject to all of the protections, provided for in the Plan. All decisions and actions by the Compensation Committee with respect to this Agreement shall be made in the Compensation Committee’s discretion and shall be final and binding on the Participant.
(b) No Right to Continued Service. The Participant acknowledges and agrees that, notwithstanding the fact that the vesting of the PSUs is contingent upon his or her continued service to the Company, this Agreement does not constitute an express or implied promise of continued service relationship with the Participant or confer upon the Participant any rights with respect to a continued service relationship with the Company.
(c) Section 409A. The PSUs awarded pursuant to this Agreement are intended to be exempt from or comply with the requirements of Section 409A of the Internal Revenue Code and the Treasury Regulations issued thereunder (“Section 409A”). The delivery of shares of Common Stock on the vesting of the PSUs may not be accelerated or deferred unless permitted or required by Section 409A.
(d) Participant’s Acknowledgements. The Participant acknowledges that he or she: (i) has read this Agreement; (ii) has been represented in the preparation, negotiation and execution of this Agreement by legal counsel of the Participant’s own choice or has voluntarily declined to seek such counsel; (iii) understands the terms and consequences of this Agreement; and (iv) is fully aware of the legal and binding effect of this Agreement.
(e) Governing Law. This Agreement shall be construed, interpreted and enforced in accordance with the internal laws of the State of Delaware without regard to any applicable conflicts of laws provisions.
I hereby acknowledge that I have read this Agreement, have received and read the Plan, and understand and agree to comply with the terms and conditions of this Agreement and the Plan.
PARTICIPANT ACCEPTANCE |
Exhibit A
Automatic Sale Instructions
The undersigned hereby consents and agrees that any taxes due on a vesting date as a result of the vesting of PSUs on such date shall be paid through an automatic sale of shares as follows:
(a) Upon any vesting of PSUs pursuant to Section 2 hereof, the Company shall sell, or arrange for the sale of, such number of shares of Common Stock issuable with respect to the PSUs that vest pursuant to Section 2 as is sufficient to generate net proceeds sufficient to satisfy the Company’s minimum statutory withholding obligations with respect to the income recognized by the Participant upon the vesting of the PSUs (based on minimum statutory withholding rates for all tax purposes, including payroll and social security 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 Chief Executive Officer and/ or the Chief Operating Officer of the Company his attorney in fact to sell the Participant’s Common Stock in accordance with this Exhibit A. 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 Exhibit A.
(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, including this Exhibit A, to constitute a “binding contract” relating to the sale of Common Stock, 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.]
The Company shall not deliver any shares of Common Stock to the Participant until it is satisfied that all required withholdings have been made.
|
| Participant Name: |
| Date: |