EXHIBIT(a)(12)
NEIGHBORCARE, INC.
2004 PERFORMANCE INCENTIVE PLAN
RESTRICTED STOCK AGREEMENT
RS No. 2004D-
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Grantee: Date: June 15, 2004
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An Award of Restricted Stock is hereby awarded on the date set forth
above (the "Award Date") by NeighborCare, Inc. (the "Corporation"), to the
Grantee, in accordance with the following terms and conditions, and the
conditions contained in the Corporation's 2004 Performance Incentive Plan (the
"Plan"):
1. SHARE AWARD. The Corporation hereby awards the Grantee 3,033
shares (the "Shares") of common stock, par value $0.02 per share
("Common Stock"), of the Corporation pursuant to the Plan, as the same may from
time to time be amended, and upon the terms and conditions and subject to the
restrictions therein and hereinafter set forth. A copy of the Plan as currently
in effect is available from the Corporation upon request and is incorporated
herein by reference.
2. RESTRICTIONS ON TRANSFER AND RESTRICTED PERIOD. Except as set
forth below, during the period (the "Restricted Period") commencing on the Award
Date and terminating on the date the Grantee no longer serves as a member of the
Corporation's Board of Directors, the Shares may not be sold, assigned,
exchanged, gifted, transferred, pledged, or otherwise encumbered by the Grantee,
except as hereinafter provided.
Except as set forth below, the Shares will vest pursuant to the
following schedule:
AMOUNT OF NUMBER OF
DATE OF VESTING AWARD VESTING SHARES VESTING
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Award Date 100% 3,033
Notwithstanding the foregoing, if, during the Restricted Period, the
fair market value of the Shares is greater than $285,000 (based on the closing
price of the Corporation's common stock on the Nasdaq Stock Market (or any
successor listing or exchange) on the preceding trading day), the restrictions
set forth in this Section 2 shall be lifted with respect to that number of the
Shares which represents the amount of the fair market value of the Shares in
excess of $285,000, but the restrictions set forth in this Section 2 shall
continue to apply during the Restricted Period to that portion of the Shares
with a fair market value of $285,000.
Subject to the restrictions set forth in the Plan, the Committee (as
defined in the Plan) shall have the authority, in its discretion, to accelerate
the time at which any or all of the restrictions shall lapse with respect to any
Shares thereto, or to remove any or all of such restriction, whenever the
Committee may determine that such action is appropriate by reason of
changes in applicable tax or other laws, or other changes in circumstances
occurring after the commencement of the Restricted Period.
3. CERTIFICATES FOR THE SHARES. The Corporation shall issue a
certificate (or certificates) in the name of the Grantee with respect to the
Shares. Such certificate (or certificates) shall bear the following restricted
legend (the "Restricted Legend"):
The transferability of this certificate and the Shares of
stock represented hereby are subject to the terms and
conditions (including forfeiture) contained in the 2004
Performance Incentive Plan of NeighborCare, Inc. Copies of
such Plan are on file in the office of the Secretary of
NeighborCare, Inc.
The Grantee further agrees that simultaneously with the execution of
the Agreement, the Grantee shall execute stock powers in favor of the
Corporation with respect to the Shares and that the Grantee shall promptly
deliver such stock powers to the Corporation.
The following two paragraphs shall be applicable if, on the Award Date,
the Common Stock subject to such Award has not been registered under the
Securities Act of 1933, as amended, and under applicable state securities laws,
and shall continue to be applicable for so long as such registration has not
occurred:
The Grantee hereby agrees, warrants and represents that Grantee is
acquiring the Common Stock to be issued pursuant to this Agreement for Grantee's
own account for investment purposes only, and not with a view to, or in
connection with, any resale or other distribution of any of such shares, except
as hereafter permitted. The Grantee further agrees that Grantee will not at any
time make any offer, sale, transfer, pledge or other disposition of such Common
Stock to be issued hereunder without an effective registration statement under
the Securities Act of 1933, as amended, and under any applicable state
securities laws or an opinion of counsel acceptable to the Corporation to the
effect that the proposed transaction will be exempt from such registration. The
Grantee shall execute such instruments, representations, acknowledgments and
agreements as the Corporation may, in its sole discretion, deem advisable to
avoid any violation of federal, state, local or securities exchange rule,
regulation or law.
The certificates for Common Stock to be issued pursuant to this
Agreement shall bear the following securities legend (the "Securities Legend"):
The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or
under applicable state securities laws. The shares have been
acquired for investment and may not be offered, sold,
transferred, pledged or otherwise disposed of without an
effective registration statement under the Securities Act of
1933, as amended, and under any applicable state securities
laws or an opinion of counsel acceptable to the Corporation
that the proposed transaction will be exempt from such
registration.
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The Securities Legend shall be removed upon registration of the legended shares
under the Securities Act of 1933, as amended, and under any applicable state
laws or upon receipt of any opinion of counsel acceptable to the Corporation
that said registration is no longer required.
The sole purpose of the agreements, warranties, representations and
legend set forth in the two immediately preceding paragraphs is to prevent
violations of the Securities Act of 1933, as amended, and any applicable state
securities laws.
4. GRANTEE'S RIGHTS. Except as otherwise provided herein, the
Grantee, as owner of the Shares, shall have all rights of a stockholder. During
any Restricted Period, the Grantee shall be entitled to vote such Shares in
Grantee's sole discretion, at any annual or special meetings of the stockholders
of the Corporation and at any continuations or adjournments of such meetings,
upon any matters coming before such meetings or adjournments.
5. CASH DIVIDENDS. Cash dividends, if any, paid on the Shares
shall be to paid to Grantee on the date of payment for any such cash dividend to
the Corporation's shareholders, as determined by the Corporation's Board of
Directors.
6. EXPIRATION OF RESTRICTED PERIOD. Upon the lapse or expiration
of the Restricted Period, the Corporation shall deliver to the Grantee (or in
the case of a deceased Grantee, to Grantee's legal representative) the
certificate in respect of such Shares and the related stock powers held by the
Corporation pursuant to Section 3 above. The Shares as to which the Restricted
Period shall have lapsed or expired shall be free of the restrictions referred
to in Section 2 above and such certificate shall not bear the Restricted Legend
provided for in Section 3 above. Notwithstanding the foregoing, the Securities
Legend described in Section 3 shall continue to be included on the certificates
as long as registration has not occurred.
7. ADJUSTMENTS FOR CHANGES IN CAPITALIZATION OF THE CORPORATION.
In the event of any change in the outstanding shares of Common Stock by reason
of any reorganization, recapitalization, stock split, stock dividend,
combination or exchange of shares, merger, consolidation, or any change in the
corporate structure of the Corporation or in the shares of Common Stock, the
number and class of Shares covered by this Agreement shall be appropriately
adjusted by the Committee in the same manner as other outstanding shares are
adjusted. Any shares of Common Stock or other securities received, as a result
of the foregoing, by the Grantee with respect to Shares subject to the
restrictions contained in Section 2 above also shall be subject to such
restrictions and the certificate or other instruments representing or evidencing
such shares or securities shall be legended and deposited with the Corporation
in the manner provided in Section 3 above.
8. CHANGE IN CONTROL. Upon a "Change in Control" (as defined in
the Plan) (and regardless of whether or not Grantee undergoes a "Qualified
Status Change" (as defined in the Plan")), the Shares shall be free of the
restrictions contained in Section 2 above.
9. PLAN AND PLAN INTERPRETATIONS AS CONTROLLING. The Shares
hereby awarded and the terms and conditions herein set forth are subject in all
respects to the terms and conditions of the Plan, which are controlling. All
determinations and interpretations by the Committee shall be
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binding and conclusive upon the Grantee or Grantee's legal representatives with
regard to any question arising hereunder or under the Plan.
10. WITHHOLDING AND SOCIAL SECURITY TAXES. Upon the termination of
any Restricted Period with respect to any Shares (or any such earlier time, if
any, that an election is made under Section 83(b) of the Code, or any successor
provision thereto, to include the value of such Shares in taxable income), the
Corporation shall have the right to withhold from the Grantee's compensation an
amount sufficient to fulfill its or its Affiliate's obligations for any
applicable withholding and employment taxes. Alternatively, the Corporation may
require the Grantee to pay the Corporation the amount of any taxes which the
Corporation is required to withhold with respect to the Shares, or, in lieu
thereof, to retain or sell without notice a sufficient number of Shares to cover
the amount required to be withheld. The Corporation shall withhold from any cash
dividends paid on the Restricted Stock an amount sufficient to cover taxes owed
as a result of the dividend payment. The Corporation's method of satisfying its
withholding obligations shall be solely in the discretion of the Corporation,
subject to applicable federal, state and local laws.
11. TAX CONSEQUENCES. Grantee has reviewed with Grantee's own tax
advisors the Federal, state, local and foreign tax consequences of this
investment and the transactions contemplated by this Agreement. Grantee is
relying solely on such advisors and not on any statements or representations of
Corporation or any of its agents. Grantee understands that Grantee (and not
Corporation) shall be responsible for Grantee's own tax liability that may
arise as a result of this investment or the transactions contemplated by this
Agreement. Grantee understands that Section 83 of the Internal Revenue Code of
1986, as amended (the "Code"), taxes (as ordinary income) the fair market value
of the Shares as of the date any "restrictions" on the Shares lapse. To the
extent that a grant hereunder is not otherwise an exempt transaction for
purposes of Section 16(b) of the Securities and Exchange Act of 1934 (the
"1934 Act"), with respect to officers, directors and 10% shareholders, a
"restriction" on the Shares includes for these purposes the period after the
grant of the Shares during which such officers, directors and 10% shareholders
could be subject to suit under Section 16(b) of the 1934 Act. Alternatively,
Grantee understands that Grantee may elect to be taxed at the time the Shares
are granted rather than when the restrictions on the Shares lapse, or the
Section 16(b) period expires, by filing an election under Section 83(b) of the
Code with the I.R.S. within 30 days from the date of grant.
GRANTEE ACKNOWLEDGES THAT IT IS GRANTEE'S SOLE RESPONSIBILITY AND NOT
THE CORPORATION'S TO FILE TIMELY THE ELECTION AVAILABLE TO GRANTEE UNDER SECTION
83(b) OF THE CODE, EVEN IF GRANTEE REQUESTS THAT THE CORPORATION OR ITS
REPRESENTATIVES MAKE THIS FILING ON GRANTEE'S BEHALF.
12. AMENDMENT/CHOICE OF LAW. This Agreement constitutes the entire
understanding between the Corporation and the Grantee with respect to the
subject matter hereof and no amendment, supplement or waiver of this Agreement,
in whole or in part, shall be binding upon the Corporation unless in writing and
signed by the appropriate officer of the Corporation, as designated by the
Committee. This Agreement and the performances of the parties hereunder shall be
construed in accordance with and governed by the laws of the Commonwealth of
Pennsylvania.
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13. GRANTEE ACCEPTANCE. The Grantee shall signify Grantee's
acceptance of the terms and conditions of this Agreement by signing in the space
provided below and returning a signed copy of this Agreement to the Corporation.
IF A FULLY EXECUTED COPY HEREOF HAVE NOT BEEN RECEIVED BY THE CORPORATION, THIS
AWARD SHALL BE NULL AND VOID IN ITS ENTIRETY AND THE CORPORATION SHALL HAVE NO
OBLIGATIONS UNDER THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have caused this RESTRICTED
STOCK AGREEMENT to be executed as of the date first above written.
NEIGHBORCARE, INC.
By:
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Name: Kathleen F. Ayres
Title: Senior Vice President-
Human Resources
ACCEPTED:
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Name:
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(Street Address)
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(City, State & Zip Code)
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