EXHIBIT 10.7
RESTRICTED STOCK UNIT AGREEMENT
-------------------------------
THIS RESTRICTED STOCK UNIT AGREEMENT (this "Agreement"), effective as
---------
of September 1, 2000, by and between Dade Behring Holdings, Inc., a Delaware
corporation (the "Company"), and James Reid-Anderson ("Executive").
------- ---------
The Company and Executive desire to enter into this Agreement pursuant
to which the Company will grant to Executive 100,000 restricted stock units (the
"Units") convertible into shares of the Company's class of capital stock
-----
designated as Common Stock, par value $0.01 per share (the "Common Stock"), in
------------
accordance with the terms and conditions set forth in this Agreement. All shares
of Common Stock issued to Executive (whether or not distributed to Executive)
upon conversion of the Units pursuant to this Agreement are referred to herein
as the "Executive Stock."
---------------
The parties hereto agree as follows:
1. Grant of Units.
--------------
(a) Grant of Units. As of the date hereof, the Company will grant to
--------------
Executive the Units, subject to the terms and conditions of this Agreement.
(b) Representations and Warranties. In connection with the grant of the
------------------------------
Units, Executive represents and warrants to the Company that:
(i) The Units and Executive Stock to be acquired by Executive upon
conversion of the Units will be acquired for Executive's own account and
not with a view to, or intention of, distribution thereof in violation of
the Securities Act of 1933, as amended (the "1933 Act"), or any applicable
--------
state securities laws, and the Executive Stock will not be disposed of in
contravention of the 1933 Act or any applicable state securities laws.
(ii) Executive is an executive officer of the Company or its
Subsidiaries, is sophisticated in financial matters and is able to evaluate
the risks and benefits of the Units and Executive Stock to be acquired by
Executive upon conversion of the Units. For the purposes of this
Agreement, "Subsidiary" means any corporation (other than the Company) in
----------
an unbroken chain of corporations beginning with the Company if, at the
time the option is granted, each of the corporations other than the last
corporation in the chain owns stock possessing 50% or more of the total
combined voting power of all classes of stock in one of the other
corporations in such chain.
(iii) Executive is able to bear the economic risk of the acquisition
of the Executive Stock for an indefinite period of time because the
Executive Stock has not been registered under the 1933 Act and, therefore,
cannot be sold unless subsequently registered under the 1933 Act or an
exemption from such registration is available.
(iv) Executive has had an opportunity to ask questions and receive
answers concerning the terms and conditions of the offering of the Units
and Executive Stock to be
acquired by Executive upon conversion of the Units and has had full access
to such other information concerning the Company and its Subsidiaries as he
has requested.
(v) This Agreement constitutes the legal, valid and binding
obligation of Executive, enforceable in accordance with its terms, and the
execution, delivery and performance of this Agreement by Executive does not
and will not conflict with, violate or cause a breach of any agreement,
contract or instrument to which Executive is a party or any judgment, order
or decree to which Executive is subject.
(vi) Executive further understands that the certificates for any
Executive Stock will bear the legend set forth in Section 6 hereof or such
---------
other legends as the Company deems necessary or desirable in connection
with the 1933 Act or other rules, regulations or laws.
(c) Acknowledgments. As an inducement to the Company to grant the Units
---------------
to Executive, and as a condition thereto, Executive acknowledges and agrees
that:
(i) Neither the grant of the Units nor the issuance of Executive
Stock to Executive nor any provision contained herein shall entitle
Executive to remain in the employment of the Company and its Subsidiaries
or affect the right of the Company to terminate Executive's employment at
any time for any reason.
(ii) The Company shall have no duty or obligation to disclose to
Executive, and Executive shall have no right to be advised of, any material
information regarding the Company and its Subsidiaries at any time prior
to, upon or in connection with the forfeiture of the Units or the potential
repurchase of Executive Stock upon the termination of Executive's
employment with the Company and its Subsidiaries or as otherwise provided
hereunder.
(ii) This Agreement has been executed and delivered, and the Units
have been granted hereunder and the Executive Stock will be issued, if at
all, hereunder, in connection with and as a part of the compensation and
incentive arrangements between the Company, Dade Behring Inc. and
Executive.
(iv) Executive has consulted with independent legal counsel (including
tax counsel) regarding his rights and obligations under this Agreement and
the tax consequences to Executive of the terms and conditions of this
Agreement.
2. Vesting.
-------
(a) Vesting Schedule. Except as otherwise provided in this Section 2, 100%
---------------- ---------
of the Units shall become vested on September 1, 2003 so long as Executive is,
and has been, continuously employed by the Company or any of its Subsidiaries
through such date (such date, the "Vesting Date").
------------
-2-
(b) Acceleration of Vesting. Upon the consummation of an Approved Sale of
-----------------------
the Company (as defined pursuant to Section 10 below), so long as Executive is,
----------
and has been, continuously employed by the Company or any of its Subsidiaries
through the day immediately prior to such consummation of the Approved Sale,
100% of the Units shall become vested.
(c) Acceleration of Vesting Upon Certain Termination Events. If Executive
-------------------------------------------------------
is no longer employed by the Company or any of its Subsidiaries as a result of
Executive's termination without Cause, Executive's resignation for Good Reason,
Disability (each as defined in Executive's Employment Agreement dated as of the
date hereof) or death, then the Units shall become vested in accordance with the
following schedule (it being understood that if such termination occurs on any
date other than a date given below, the percentage of Units that shall have
vested as of such termination date shall equal the percentage of Units which
became vested as of the immediately preceding date given below):
Cumulative
Percentage of Number of
Date Units Vested Initial Units
---- ------------ -------------
Prior to September 1, 2001 0% 0
September 1, 2001 33-1/3% 33,333
September 1, 2002 66-2/3% 66,666
September 1, 2003 and thereafter 100% 100,000
3. Conversion; Forfeiture; Deferral of Distribution.
-------------------------------------------------
(a) Conversion; Forfeiture. The Units which vest either (i) on the Vesting
----------------------
Date, (ii) pursuant to Section 2(b) hereof or (iii) pursuant to Section 2(c)
------------ ------------
hereof shall immediately and automatically convert into shares of Common Stock
on a one-for-one basis upon which Executive shall deliver to the Company a check
in the amount of (x) $0.01 times (y) the applicable number of Units being
converted. Any Units which are not vested upon the Termination Date (as defined
below) after taking into account Section 2(c) hereof shall immediately and
------------
automatically expire and be forfeited. Upon conversion of Units, the Company
will distribute to Executive a certificate representing Executive Stock.
(b) Deferral of Distribution. At any time prior to the date which is six
------------------------
months prior to the Vesting Date, Executive may deliver written notice to the
Company (in the form attached as Exhibit A hereto) setting forth his election to
---------
defer the distribution of all or any portion of the Executive Stock that may
vest on the Vesting Date (if any), in which case no certificates representing
shares of Executive Stock will be delivered to Executive that are issued on the
Vesting Date until the date specified in such written notice. Executive hereby
elects to defer the distribution of all Executive Stock that may be issuable
pursuant to Section 2(c) hereof until the six month anniversary of the event
------------
giving rise to the vesting and conversion of the Units pursuant to Section 2(c)
------------
hereof. Notwithstanding a deferral of the distribution of Executive Stock, all
Executive Stock will be distributed upon a Sale of the Company.
-3-
4. Repurchase Option.
-----------------
(a) Repurchase Option. In the event that Executive is no longer employed
-----------------
by the Company or any of its Subsidiaries for any reason (the date of such
termination being referred to herein as the "Termination Date"), the Executive
----------------
Stock (including any shares of Executive Stock with respect to which
distribution has been deferred by Executive in accordance with this Agreement),
whether held by Executive, or one or more Permitted Transferees (as defined
herein), will be subject to repurchase by the Company pursuant to the terms and
conditions set forth in this Section 4 (the "Repurchase Option").
--------- -----------------
(b) Repurchase Price. In the event that Executive is no longer employed by
----------------
the Company or any of its Subsidiaries for any reason (other than termination of
Executive with Cause), the Company may elect to purchase the Executive Stock at
a price per share equal to the Fair Market Value thereof. In the event that
Executive is no longer employed by the Company or any of its Subsidiaries as a
result of termination of Executive with Cause, the Company may elect to purchase
the Executive Stock at a price per share equal to $0.01.
(c) Repurchase Procedures. The Company may elect to exercise the right to
---------------------
purchase Executive Stock pursuant to the Repurchase Option by delivering written
notice (the "Repurchase Notice") to the holder or holders of the such Executive
-----------------
Stock. The Repurchase Notice will set forth the number of shares of Executive
Stock to be acquired from such holder(s), the price for such shares (which will
be either (i) Fair Market Value or (ii) $0.01, as indicated in this Section 4),
----------
the aggregate consideration to be paid for such shares and the time and place
for the closing of the transaction. In the event that the Company elects to
purchase less than all of such Executive Stock pursuant to the terms of this
Section 4, if any shares of such Executive Stock are held by Permitted
- ---------
Transferees of Executive, the Company shall purchase the shares elected to be
purchased from such holder(s) of Executive Stock, pro rata according to the
number of shares of Executive Stock held by such holder(s) at the time of
delivery of such Repurchase Notice (determined as nearly as practicable to the
nearest share). If Executive Stock of different classes is to be purchased by
the Company and Executive Stock is held by Permitted Transferees of Executive,
the number of shares of each class of Executive Stock to be purchased will be
allocated among such holders, pro rata according to the total number of shares
of Executive Stock to be purchased from such persons.
(d) Closing. The closing of the transactions contemplated by this Section
------- -------
4 will take place on the date designated by the Company in the Repurchase
- -
Notice, which date will not be more than 90 days after the delivery of such
notice. The Company will pay for the Executive Stock to be purchased pursuant to
the Repurchase Option by delivery of, (i) a check payable to the holder of
Executive Stock in the full amount payable hereunder for such Executive Stock
(the "Repurchase Price") or (ii) if the Repurchase Price is greater than
----------------
$100,000 and either (A) the payment of the Repurchase Price by the Company (or
---
the payment by a Subsidiary of the Company to the Company of funds for the
purpose of paying the Repurchase Price) in cash would result in (1) a breach by
the Company or any of its Subsidiaries of one or more covenants contained in the
Company's or its Subsidiaries' debt or equity financing agreements or any other
agreement or (2) a violation of the Delaware General Corporation Law or (B) the
--
Company's board of directors determines in its good faith judgement that the
Company does not have funds available to permit payment of the
-4-
Repurchase Price by the Company (or the payment by a Subsidiary of the Company
to the Company of funds for the purpose of paying the Repurchase Price) in cash,
the Company may deliver a check payable to the holder of such Executive Stock in
an amount equal to the greater of $100,000 or one-third (1/3) of the Repurchase
Price, and a note or notes in the amount of the balance of the Repurchase Price
payable in three equal annual installments beginning on the first anniversary of
the closing of such purchase and bearing interest (payable quarterly) at a rate
per annum equal to 8%. Any notes issued by the Company pursuant to this Section
-------
4(d) shall be subject to any restrictive covenants to which the Company is
- ----
subject at the time of such purchase. The Company will receive customary
representations and warranties from each seller regarding the sale of Executive
Stock, including but not limited to the representation that such seller has good
and marketable title to the Executive Stock to be transferred free and clear of
all liens, claims and other encumbrances.
(e) Restrictions on Repurchase. All repurchases of Executive Stock by the
--------------------------
Company shall be subject to applicable restrictions contained in the Delaware
General Corporation Law and in the Company's and its Subsidiaries' debt and
equity financing agreements. If any such restrictions prohibit the repurchase of
Executive Stock hereunder which the Company is otherwise entitled to make, the
Company may make such repurchases as soon as it is permitted to do so under such
restrictions.
5. Restrictions on Transfer.
------------------------
(a) Non-Transferability of Units. The Units are personal to Executive and
----------------------------
are not transferable by Executive by means of sale, assignment, exchange, pledge
or otherwise.
(b) Non-Transferability of Executive Stock. Executive will not sell,
--------------------------------------
pledge or otherwise transfer any interest in any shares of Executive Stock,
except pursuant to the provisions of Sections 4, 5(c) or 10 hereof.
---------------- --
(c) Certain Permitted Transfers. The restrictions contained in this Section
--------------------------- -------
5 will not apply with respect to transfers of Executive Stock (i) pursuant to
- -
applicable laws of descent and distribution or (ii) among Executive's Family
Group (as defined below), provided that, the restrictions contained in this
--------
Section 5 will continue to be applicable to the Executive Stock after any such
- ---------
transfer and the transferees of such Executive Stock shall agree in writing to
be bound by the provisions of this Agreement. "Family Group" means Executive's
------------
spouse and descendants (whether natural or adopted), any trust solely for the
benefit of Executive and/or Executive's spouse and/or descendants and any family
limited partnership in which Executive and/or Executive's spouse and/or
descendants and/or a trust solely for the benefit of Executive or Executive's
spouse or descendants own all of the equity interests and which such persons
will manage and control. Any transferee of Executive Stock pursuant to a
transfer in accordance with the provisions of this Section 5(c) is herein
------------
referred to as a "Permitted Transferee." Upon the transfer of Executive Stock
--------------------
pursuant to this Section 5(c), Executive will deliver a written notice thereof
------------
(the "Transfer Notice") to the Company. The Transfer Notice will disclose in
---------------
reasonable detail the identity of the Permitted Transferee(s).
6. Additional Restrictions on Transfer.
-----------------------------------
(a) The certificates representing the Executive Stock will bear the
following legend:
-5-
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT BE
SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT OR AN EXEMPTION FROM REGISTRATION THEREUNDER. THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS
ON TRANSFER, CERTAIN REPURCHASE OPTIONS AND CERTAIN OTHER AGREEMENTS SET
FORTH IN A RESTRICTED STOCK UNIT AGREEMENT BETWEEN THE ISSUER (THE
"COMPANY") AND A CERTAIN EMPLOYEE OF THE COMPANY DATED AS OF SEPTEMBER 1,
2000, A COPY OF WHICH MAY BE OBTAINED BY THE HOLDER HEREOF AT THE COMPANY'S
PRINCIPAL PLACE OF BUSINESS WITHOUT CHARGE."
(b) No holder of Executive Stock may sell, transfer or dispose of any
Executive Stock (except pursuant to an effective registration statement under
the 1933 Act) without first delivering to the Company an opinion of counsel
reasonably acceptable in form and substance to the Company (which counsel shall
be reasonably acceptable to the Company) that registration under the 1933 Act is
not required in connection with such transfer.
7. Definition of Executive Stock. For all purposes of this Agreement,
-----------------------------
Executive Stock will continue to be Executive Stock in the hands of any holder
other than Executive, and each such other holder of Executive Stock will succeed
to all rights and obligations attributable to Executive as a holder of Executive
Stock hereunder. Executive Stock will also include shares of the Company's
capital stock issued with respect to shares of Executive Stock by way of a stock
split, stock dividend or other recapitalization.
8. Adjustments to Units. The Units will be equitably adjusted for any
--------------------
stock split, stock dividend, reclassification or recapitalization of the Company
which occurs subsequent to the date hereof.
9. Rights as Stockholder. Except as specifically set forth herein, until
---------------------
the Units vest and are converted in accordance with this Agreement, with respect
to the Units, Executive shall not be entitled to any rights as a stockholder of
the Company or as a holder of Common Stock. For clarification, the Units do not
constitute capital stock of the Company, but rather represent the right (under
the circumstances set forth in this Agreement) to acquire Common Stock.
10. Incorporation of Certain Provisions of the 1999 Plan. Reference is made
-----------------------------------
to that certain Dade Behring Holdings, Inc. 1999 Management Stock Option Plan,
as the same may be amended from time to time (the "Plan"). The parties hereto
----
agree that Sections 6 [Participation Rights], 9 [Sale of the Company] and 10
[Public Offering] of the Plan, together with the definitions of "Approved Sale"
and "Fair Market Value" contained in the Plan are hereby incorporated into this
Agreement by reference (all such incorporated provisions being referred to
herein collectively as the "Incorporated Plan Provisions"). It is the intent of
----------------------------
the parties hereto that the Executive and the Company have the benefits and the
burdens of the Incorporated Plan Provisions as if the
-6-
Incorporated Plan Provisions were fully set forth herein, and for such purposes,
as if the Executive Stock had been issued pursuant to the Plan. The Incorporated
Plan Provisions shall be deemed modified herein as and to the extent such
provisions set forth in the Plan are modified in accordance with the terms and
conditions of the Plan.
11. Dividends. Beginning as of the date hereof, any cash dividends paid
---------
with respect to Common Stock issuable upon conversion of the Units prior to the
Units becoming vested and converted into Common Stock shall not be paid to
Executive and shall be retained by the Company and shall be paid to Executive
only to the extent and only if such Units become vested and converted into
Common Stock pursuant to Section 3(a) hereof. If Executive has elected to defer
------------
delivery of such Units pursuant to Section 3(b) hereof, Executive may elect to
------------
defer payment of such dividends until the date of delivery of the Executive
Stock. After conversion of the Units, all shares of Executive Stock will be
entitled to dividends paid with respect to Common Stock. Executive shall have
no right to dividends with respect to any Units which do not vest and expire
pursuant to Section 3(a) hereof.
------------
12. Taxes. The Company shall be entitled, if necessary or desirable, to
-----
withhold (or secure payment from Executive in lieu of withholding) the amount of
any withholding or other tax due from the Company with respect to any amount
payable and/or Common Stock issuable upon conversion of the Units under this
Agreement or any other agreement (including any employment agreement), and the
Company may defer such payment unless indemnified to its satisfaction.
13. Notices. Any notice provided for in this Agreement must be in writing
-------
and must be personally delivered, received by certified mail, return receipt
requested, or sent by guaranteed overnight delivery service, to the recipients
at the address indicated below:
To the Company:
Dade Behring Holdings, Inc.
1717 Deerfield Road
Deerfield, Illinois 60016
Attn: Board of Directors
With a copy to:
Bain Capital, Inc.
Two Copley Place
Boston, Massachusetts 02116
Attn: John P. Connaughton
and:
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
Attn: Matthew E. Steinmetz
-7-
To Executive:
James Reid-Anderson
1160 North Sheridan Road
Lake Forest, Illinois 60045
or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement will be deemed to have been given when so delivered
or mailed.
14. Severability. Whenever possible, each provision of this Agreement
------------
will be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or the effectiveness or validity of any provision in any
other jurisdiction, and this Agreement will be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
15. Complete Agreement. This Agreement embodies the complete agreement and
------------------
understanding among the parties and supersedes and preempts any prior
understandings, agreements or representations by or among the parties, written
or oral, which may have related to the subject matter hereof in any way,
including, without limitation, any bonus arrangements upon a consummation of a
sale of the Company or any of its Subsidiaries.
16. Counterparts. This Agreement may be executed in separate counterparts
------------
(any one of which may be by facsimile), each of which will be deemed to be an
original and all of which taken together will constitute one and the same
agreement.
17. Successors and Assigns. This Agreement is intended to bind and inure
----------------------
to the benefit of and be enforceable by Executive and the Company and their
respective successors and assigns; provided that, Executive may not assign any
--------
of his rights or obligations, except as expressly provided by the terms of this
Agreement.
18. Governing Law. The corporate law of Delaware will govern all issues
-------------
concerning the relative rights of the Company and its stockholders. All other
issues concerning the enforceability, validity and binding effect of this
Agreement will be governed by and construed in accordance with the laws of the
State of Illinois, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of Illinois or any other jurisdiction)
that would cause the application of the law of any jurisdiction other than the
State of Illinois.
19. Remedies. The parties hereto agree and acknowledge that money damages
--------
may not be an adequate remedy for any breach of the provisions of this Agreement
and that any party hereto will have the right to injunctive relief, in addition
to all of its other rights and remedies at law or in equity, to enforce the
provisions of this Agreement.
-8-
20. Effect of Transfers in Violation of Agreement. The Company will not
---------------------------------------------
be required (a) to transfer on its books any shares of Executive Stock or Units
which have been sold or transferred in violation of any of the provisions set
forth in this Agreement or (b) to treat as owner of such shares or Units, to
accord the right to vote as such owner or to pay dividends to any transferee to
whom such shares or Units have been transferred in violation of this Agreement.
21. Amendments and Waivers. Any provision of this Agreement may be amended
----------------------
or waived only with the prior written consent of the Company and Executive.
* * * * *
-9-
IN WITNESS WHEREOF, the parties have executed this Restricted Stock Unit
Agreement on the day and year first above written.
DADE BEHRING HOLDINGS, INC.
/s/ Stephen Pagliuca
By: -----------------------------------
Title: _________________________________
/s/ JAMES REID-ANDERSON
-----------------------------------------
JAMES REID-ANDERSON
EXHIBIT A
---------
[Dated 6 months prior to Vesting Date or before]
Dade Behring Holdings, Inc.
1717 Deerfield Road
Deerfield, Illinois 60016
Attention: Board of Directors
Pursuant to Section 3(b) of that certain Restricted Stock Unit
Agreement dated as of September 1, 2000, I hereby elect to defer the
distribution of _________ shares of Executive Stock which may vest on the
Vesting Date until __________, 20__. In other words, no certificates
representing ________ shares of Executive Stock shall be delivered to me until
__________, 20__.
Sincerely,
James Reid-Anderson