EXHIBIT 10.5
AVANIR PHARMACEUTICALS
RESTRICTED STOCK GRANT NOTICE
(2003 EQUITY INCENTIVE PLAN)
Avanir Pharmaceuticals (the "Company"), pursuant to its 2003 Equity Incentive
Plan (the "Plan"), hereby grants to the participant under the Plan (the
"Participant") the number of shares (the "Shares") of the Company's Class A
Common Stock, no par value (the "Common Stock"), set forth below (the "Award").
This Award is subject to all of the terms and conditions as set forth in this
Restricted Stock Grant Notice (the "Grant Notice"), and in the Restricted Stock
Agreement, the Plan, the form of Assignment Separate from Certificate and the
form of Joint Escrow Instructions, all of which are attached hereto and
incorporated herein in their entirety.
Participant:
Date of Grant:
Vesting
Commencement
Date:
Number of Shares
Subject to Award:
Vesting Schedule:
Additional Terms/Acknowledgements: The undersigned Participant acknowledges
receipt of, and understands and agrees to, this Grant Notice, the Restricted
Stock Agreement, the Plan, the form of Assignment Separate from Certificate and
the form of Joint Escrow Instructions. Participant further acknowledges that as
of the Date of Grant, this Grant Notice, the Restricted Stock Agreement, the
Joint Escrow Instructions and the Plan, set forth the entire understanding
between Participant and the Company regarding the acquisition of stock in the
Company and supersede all prior oral and written agreements relating thereto,
with the exception of other awards previously granted and delivered to
Participant under the Plan.
AVANIR PHARMACEUTICALS PARTICIPANT:
By: _____________________________ By: __________________________
Signature Signature
Name: ___________________________
Title: __________________________
Attachment I: Restricted Stock Agreement
Attachment II: 2003 Equity Incentive Plan
Attachment III: Form of Assignment Separate from Certificate
Attachment IV: Form of Joint Escrow Instructions
Attachment V: Consent of Spouse
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ATTACHMENT I
AVANIR PHARMACEUTICALS
2003 EQUITY INCENTIVE PLAN
RESTRICTED STOCK AGREEMENT
RESTRICTED STOCK AGREEMENT (the "Agreement"), dated ____________, 200_,
by and between [__________] ("Participant") and Avanir Pharmaceuticals, a
California corporation (the "Company").
RECITALS
WHEREAS, the Company has adopted the Avanir Pharmaceuticals 2003 Equity
Incentive Plan (the "Plan"), which provides for awards of restricted stock to
the Company's Directors, Officers, Employees and Consultants; and
WHEREAS, Participant is currently serving as a [employee / officer /
director] of the Company; and
WHEREAS, the Company desires to issue to Participant, and Participant
desires to acquire from the Company, shares of Class A Common Stock, no par
value, of the Company ("Common Stock"), pursuant to the provisions of the Plan.
NOW THEREFORE, in consideration of the foregoing, and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
1. DEFINITIONS.
Capitalized terms not explicitly defined in this Agreement but defined
in the Plan shall have the same meanings ascribed to them in the Plan.
2. GRANT OF AWARD.
Pursuant to the terms of the Restricted Stock Grant Notice ("Grant
Notice") and this Agreement (collectively, the "Award"), the Company hereby
grants to Participant that number of shares of Common Stock set forth in the
Grant Notice (the "Shares").
3. DELIVERY OF DOCUMENTS.
The delivery of the Shares shall be effected as follows: Participant
agrees to execute three copies of a blank Assignment Separate from Certificate
substantially in the form attached to the Grant Notice as Attachment III and
Joint Escrow Instructions substantially in the form attached to the Grant Notice
as Attachment IV and to deliver the same in accordance with Section 7 below.
Participant shall also deliver to the Company a signed spousal consent
substantially in the form attached hereto as Attachment V, if he or she is
married on the Date of the Grant set forth in the Grant Notice.
4. VESTING.
Subject to the provisions of the Plan, the Shares shall vest in
accordance with the Grant Notice.
5. SECURITIES LAW COMPLIANCE.
Notwithstanding anything to the contrary contained herein, Participant
may not receive any Shares unless they are registered under the Securities Act
and approved for listing on the principal stock exchange on which the Common
Stock trades.
6. RIGHT OF REACQUISITION.
In the event Participant's service as a [_______] of the Company is
terminated [specify conditions], the Company shall have a right to reacquire
(the "Reacquisition Rights") the Shares received pursuant to the Award that have
not yet vested in accordance with the Vesting Schedule on the Grant Notice (the
"Unvested Shares"). [The Company shall, simultaneously with Participant's
Termination as a [___________] in such event, automatically reacquire all of the
Unvested Shares for the original purchase price thereof, if any, paid by the
Participant, unless the Company agrees to waive its Reacquisition Rights to any
or all of the Unvested Shares.] Any such waiver shall be exercised by the
Company by written notice to Participant or his or her representative (with a
copy to the Escrow Agent) within 30 days after Participant's Termination. If the
Company does not waive its Reacquisition Rights to any or all of the Unvested
Shares, the Escrow Agent shall be notified accordingly and instructed to return
the Unvested Shares to the Company for cancellation.
7. ESCROW OF UNVESTED COMMON STOCK.
As security for the faithful performance of the terms of this Agreement
and to insure the availability for delivery of Participant's Common Stock upon
execution of the Reacquisition Rights herein provided for, Participant agrees,
concurrently herewith, to deliver to and deposit with the Secretary of the
Company or the Secretary's designee (the "Escrow Agent"), as Escrow Agent in
this transaction, the certificate or certificates evidencing the Shares and
three executed blank forms of Assignment Separate from Certificate in the form
attached to the Grant Notice as Attachment III. Such documents will be held by
the Escrow Agent and delivered by the Escrow Agent pursuant to the Joint Escrow
Instructions delivered to the Escrow Agent concurrently herewith.
8. RIGHTS AS SHAREHOLDER.
Subject to the provisions of this Agreement, Participant shall be
entitled to exercise all rights and privileges of a shareholder of the Company
with respect to the Shares deposited in escrow. Participant shall be deemed to
be the holder of the Shares for purposes of receiving any dividends that may be
paid with respect to such Shares and for purposes of exercising any voting
rights relating to such Shares, even if some or all of the Shares have not yet
vested and been released from the Company's Reacquisition Rights.
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9. LIMITATIONS ON TRANSFER.
In addition to any other limitation on transfer created by applicable
securities laws, Participant agrees not to sell, assign, hypothecate, donate,
encumber or otherwise dispose of any interest in the Shares except by will or by
the laws of descent and distribution while the Shares are subject to the
Reacquisition Rights.
10. RESTRICTIVE LEGENDS.
The stock certificates evidencing the Shares issued under the Award
shall bear appropriate legends determined by the Company.
11. AWARD NOT A SERVICE CONTRACT.
The Award is not a service contract, and nothing in the Award shall be
deemed to create in any way whatsoever any obligation on the Company, its
shareholders, Board of Directors, officers or employees to continue
Participant's position as a [_______] of the Company.
12. WITHHOLDING OBLIGATIONS.
12.1 At the time the Award is granted, or at any time thereafter as
requested by the Company, Participant authorizes withholding from payroll and
any other amounts payable to him/her, and otherwise agrees to make adequate
provision for, any sums required to satisfy federal, state, local and foreign
tax withholding obligations of the Company or an affiliate, if any, which arise
in connection with the Award.
12.2 Unless the tax withholding obligations of the Company or any
affiliate are satisfied, the Company shall have no obligation to issue a
certificate for any of the Shares or release any of the Shares from any escrow
provided for herein.
13. NOTICES.
Any notices provided for in the Award or the Plan shall be given in
writing and shall be deemed effectively given upon receipt or, in the case of
notices delivered by mail by the Company to Participant, five days after deposit
in the United States mail, postage prepaid, addressed to Participant at the last
address provided by Participant to the Company.
14. MISCELLANEOUS.
14.1 The rights and obligations of the Company under the Award
shall be transferable to any one or more persons or entities, and all covenants
and agreements hereunder shall inure to the benefit of, and be enforceable by
the Company's successors and assigns.
14.2 Participant agrees upon request to execute any further
documents or instruments necessary or desirable in the sole determination of the
Company to carry out the purposes or intent of the Award.
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14.3 Participant acknowledges and agrees that he/she has reviewed
the Award in its entirety, has had an opportunity to obtain the advice of
counsel prior to executing and accepting the Award and fully understands all
provisions of the Award.
15. GOVERNING PLAN DOCUMENT.
The Award is subject to all the provisions of the Plan, the provisions
of which are hereby made a part of the Award, and is further subject to all
interpretations, amendments, rules and regulations which may from time to time
be promulgated and adopted pursuant to the Plan. In the event of any conflict
between the provisions of the Award and those of the Plan, the provisions of the
Plan shall control.
Participant represents that he or she has read this Agreement, the
Grant Notice and the Plan and is familiar with their terms and provisions.
Participant hereby agrees to accept as binding, conclusive and final all
decisions or interpretations of the Committee upon any questions arising under
this Agreement.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
AVANIR PHARMACEUTICALS [NAME]
By: _____________________________ By: ___________________________
Signature Signature
Name: __________________________
Title: _________________________
[SIGNATURE PAGE TO RESTRICTED STOCK AGREEMENT]
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ATTACHMENT II
2003 EQUITY INCENTIVE PLAN
ATTACHMENT III
ASSIGNMENT SEPARATE FROM CERTIFICATE
For Value Received and pursuant to that certain Restricted Stock Grant
Notice and Restricted Stock Agreement (the "Award"), _____________ hereby sells,
assigns and transfers unto Avanir Pharmaceuticals, a California corporation
("Assignee") ________________________ (__________) shares of the Common Stock of
the Assignee, standing in the undersigned's name on the books of said
corporation represented by Certificate No. _____ herewith and do hereby
irrevocably constitute and appoint the Company's Secretary as attorney-in-fact
to transfer the said stock on the books of the within named Company with full
power of substitution in the premises. This Assignment may be used only in
accordance with and subject to the terms and conditions of the Award, in
connection with the reacquisition of shares of Common Stock of the Corporation
issued to the undersigned pursuant to the Award, and only to the extent that
such shares remain subject to the Corporation's Reacquisition Rights under the
Award.
Dated:__________________________
Signature:________________
_______________, Recipient
[Instruction: Please do not fill in any blanks other than the signature line.
The purpose of this Assignment is to enable execution of the Company's
Reacquisition Rights set forth in the Award without requiring additional
signatures on your part.]
ATTACHMENT IV
JOINT ESCROW INSTRUCTIONS
Date:_________________
Secretary
Avanir Pharmaceuticals
11388 Sorrento Valley Rd
Suite 200
San Diego, CA 92121
Dear Sir/Madam:
As Escrow Agent for both Avanir Pharmaceuticals, a California
corporation (the "Company"), and the undersigned recipient of stock of the
Company ("Recipient"), you are hereby authorized and directed to hold the
certificate or certificates evidencing the shares (the "Shares") of the
Company's Class A Common Stock, no par value ("Common Stock"), granted under an
Award issued pursuant to the Company's 2003 Equity Inventive Plan (the "Plan")
and the documents delivered to you pursuant to that certain Restricted Stock
Grant Notice (the "Grant Notice"), dated _______________, 20___, and Restricted
Stock Agreement (the "Agreement") of the same date, in accordance with the
following instructions:
1. In the event Recipient's service as a [_________]of the Company is
terminated, under circumstances set forth in Section 6 of the Agreement, the
Company or its assignee will deliver to Recipient and you a written notice
specifying that the certificate or certificates evidencing the Shares shall be
transferred to the Company for cancellation or further transfer pursuant to any
waiver of Reacquisition Rights pursuant to Section 6 of the Agreement. Recipient
and the Company hereby irrevocably authorize and direct you to complete such
transfer in accordance with the terms of such notice.
2. In order to complete the share transfer, you are specifically directed (a) to
date any forms of Assignments Separate from Certificate in your possession
necessary for the transfer, (b) to insert the number of Shares being transferred
in such forms, and (c) to deliver same, together with the certificate or
certificates evidencing the Shares to the Company.
3. Recipient irrevocably authorizes the Company to deposit with you any
certificates registered in his or her name evidencing the Shares and any
additions to and substitutions for the Shares as specified in the Grant Notice.
Recipient hereby irrevocably constitutes and appoints you as Recipient's
attorney-in-fact and agent for the term of this escrow to execute with respect
to such securities and other property all documents of assignment and/or
transfer and all stock certificates necessary or appropriate to make all
securities negotiable and complete any transaction herein contemplated.
4. This escrow shall terminate upon vesting of the Shares or upon the earlier
return of the Shares to the Company.
5. If at the time of termination of this escrow you have in your possession any
documents, securities, or other property belonging to Recipient, you shall
deliver all of same to Recipient or his/her permitted assigns or representatives
and shall be discharged of all further obligations hereunder.
6. Your duties hereunder may be altered, amended, modified or revoked only by a
writing signed by all of the parties hereto.
7. You shall be obligated only for the performance of such duties as are
specifically set forth herein and may rely, and shall be protected in relying or
refraining from acting, on any instrument reasonably believed by you to be
genuine and to have been signed or presented by the proper party or parties or
their assignees. You shall not be personally liable for any act you may do or
omit to do hereunder as Escrow Agent or as attorney-in-fact for Recipient while
acting in good faith and any act done or omitted by you pursuant to the advice
of your own attorneys shall be conclusive evidence of such good faith.
8. You are hereby expressly authorized to disregard any and all warnings given
by any of the parties hereto or by any other person or corporation, excepting
only orders or process of courts of law, and are hereby expressly authorized to
comply with and obey orders, judgments or decrees of any court. In case you obey
or comply with any such order, judgment or decree of any court, you shall not be
liable to any of the parties hereto or to any other person, firm or corporation
by reason of such compliance, notwithstanding any such order, judgment or decree
being subsequently reversed, modified, annulled, set aside, vacated or found to
have been entered without jurisdiction.
9. You shall not be liable in any respect on account of the identity, authority
or rights of the parties executing or delivering or purporting to execute or
deliver the Grant Notice or any documents or papers deposited or called for
hereunder.
10. You shall not be liable for the loss of any rights under any statute of
limitations with respect to these Joint Escrow Instructions or any documents
deposited with you.
11. You shall be entitled to employ such legal counsel, including, but not
limited to the Company's counsel, and other experts as you may deem necessary to
advise you in connection with your obligations hereunder, may rely upon the
advice of such counsel, and may pay such counsel reasonable compensation
therefor.
12. Your responsibilities as Escrow Agent hereunder shall terminate if you shall
cease to be an employee of the Company or if you shall resign by written notice
to each party. In the event of any such termination, the Company may appoint any
officer or assistant officer of the Company as successor Escrow Agent and
Recipient hereby confirms the appointment of such successor or successors as his
attorney-in-fact and agent to the full extent of your appointment.
13. If you reasonably require other or further instruments in connection with
these Joint Escrow Instructions or obligations in respect hereto, the necessary
parties hereto shall join in furnishing such instruments.
14. It is understood and agreed that should any dispute arise with respect to
the delivery and/or ownership or right of possession of the Shares, you may (but
are not obligated to) retain in your
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possession without liability to anyone all or any part of such securities until
such dispute shall have been settled either by mutual written agreement of the
parties concerned or by a final order, decree or judgment of a court of
competent jurisdiction after the time for appeal has expired and no appeal has
been perfected, but you shall be under no duty whatsoever to institute or defend
any such proceedings.
15. All of your costs and expenses, including without limitation attorneys fees
and disbursements and the fees and expenses of other advisors, incurred in
performing your duties as Escrow Agent hereunder shall be promptly paid by the
Company upon submission of appropriate documentation.
16. Any notice required or permitted hereunder shall be given in writing and
shall be deemed effectively given upon personal delivery or upon deposit in any
United States Post Box, by registered or certified mail with postage and fees
prepaid, addressed to each of the other parties hereunto entitled at the
following addresses, or at such other addresses as a party may designate by ten
days' written notice to each of the other parties hereto:
Company: Avanir Pharmaceuticals
11388 Sorrento Valley Road , Suite 200
San Diego, CA 92121
Attn: Chief Financial Officer
Recipient: Insert Recipient's Name
Insert Address
Insert Address
Escrow Agent: Avanir Pharmaceuticals
11388 Sorrento Valley Rd, Suite 200
San Diego, CA 92121
Attn: Secretary
17. By signing these Joint Escrow Instructions you become a party hereto only
for the purpose of said Joint Escrow Instructions; you do not become a party to
the Grant Notice.
18. This instrument shall be binding upon and inure to the benefit of the
parties hereto, and their respective successors and permitted assigns. It is
understood and agreed that references to "you" or "your" herein refer to the
original Escrow Agent and to any and all successor Escrow Agents. It is
understood and agreed that the Company may at any time or from time to time
assign its rights under the Grant Notice and these Joint Escrow Instructions in
whole or in part.
* * *
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Very truly yours,
AVANIR PHARMACEUTICALS RECIPIENT
By: _________________________ _______________________________
Name: (Signature)
Title:
_______________________________
(Print Name)
ESCROW AGENT:________________
By:__________________________
Gregory P. Hanson
Secretary
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ATTACHMENT V
SPOUSAL CONSENT
CONSENT OF SPOUSE
I, _____________________, spouse of ____________________, have read and
hereby approve the AVANIR Pharmaceuticals (the "Company") Restricted Stock Grant
Notice, dated _____________, and all attachments thereto (the "Agreement"). In
consideration of the granting of securities to my spouse as set forth in the
Agreement, I hereby appoint my spouse as my attorney-in-fact with respect to the
exercise of any rights under the Agreement and agree to be bound by the
provisions of the Agreement insofar as I may have any rights in said Agreement,
or any securities issued thereunder, under the community property laws or
similar laws relating to marital property in effect in our state of residence as
of the date of execution of the Agreement.
Dated:______________________ Signature:_____________________