UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT
TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): August 5, 2014
CATALENT, INC.
(Exact
name of registrant as specified in its charter)
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Delaware |
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001-36587 |
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20-8737688 |
(State or other jurisdiction
of Incorporation) |
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(Commission
File Number) |
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(IRS Employer
Identification Number) |
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14 Schoolhouse Road
Somerset, New Jersey |
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08873 |
(Address of registrants principal executive office) |
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(Zip code) |
(732) 537-6200
(Registrants telephone number, including area code)
Not Applicable
(Former
name or former address, if changed since last report)
Check the appropriate box below
if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 203.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
ITEM 1.01 Entry into a Material Definitive Agreement.
In connection with the completion of the initial public offering (the Offering) of the common stock, par value $0.01 per share (the
Common Stock) of Catalent, Inc. (Catalent), described in Catalents prospectus (the Prospectus), dated July 30, 2014, filed with the Securities and Exchange Commission pursuant to Rule 424(b) of the
Securities Act of 1933, as amended, which is deemed to be part of Catalents Registration Statement on Form S-1 (File No. 333-193542), as amended (the Registration Statement), on August 5, 2014, Catalent entered into a
Stockholders Agreement, dated as of August 5, 2014, between Catalent and Blackstone Healthcare Partners L.L.C. (the Stockholders Agreement), and a Registration Rights Agreement, dated as of August 5, 2014, by and among Catalent
and the stockholders named therein (the Registration Rights Agreement).
Affiliates of Blackstone Healthcare Partners L.L.C.
have various relationships with Catalent. For further information concerning the other material relationships between Catalent and Blackstone Healthcare Partners L.L.C. and its affiliates, see the section entitled Certain Relationships and
Related Party Transactions in the Prospectus.
The Stockholders Agreement and the Registration Rights Agreement are filed herewith
as Exhibits 10.1 and 10.2, respectively, and are incorporated herein by reference. The terms of these agreements are substantially the same as the terms set forth in the forms of such agreements filed as exhibits to the Registration Statement and as
described therein.
In addition, certain members of Catalents management may in the future become parties to the Registration Rights
Agreement.
ITEM 1.02 Termination of a Material Definitive Agreement.
Termination of the Transaction and Advisory Fee Agreement
Catalent was a party to a Transaction and Advisory Fee Agreement, dated as of April 10, 2007, among Catalent, Blackstone Management
Partners V L.L.C. (BMP), Genstar Capital LLC and Aisling Capital, LLC (the Advisory Agreement).
On August 5,
2014, and in connection with the Offering, the Advisory Agreement was terminated. In connection with such termination, Catalent paid a termination fee equal to approximately $29.8 million to the other parties to the Advisory Agreement, including
approximately $26.2 million to BMP, using a portion of the net proceeds of the Offering.
Affiliates of BMP are controlling stockholders
of Catalent and an affiliate of BMP acted as underwriter in connection with the Offering.
ITEM 3.03 Material Modification to Rights of Security
Holders.
The information set forth under Item 5.03 below is incorporated by reference in this Item 3.03.
ITEM 5.02 |
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
Appointment of Directors; Committee Composition
Effective July 30, 2014, Melvin D. Booth, Jack Stahl and Rolf Classon were appointed to the Board of Directors of Catalent, thereby
joining John R. Chiminski, Chinh E. Chu, Bruce McEvoy and James Quella. In addition, Mr. Chu was
named chairman of the Board of Directors. Furthermore, effective July 30, 2014, Messrs. Stahl, Classon and Booth serve as members of the audit committee of the Board of Directors, Messrs.
Quella, Booth and McEvoy serve as members of the compensation committee of the Board of Directors and Messrs. Quella, McEvoy and Booth serve as members of the nominating and corporate governance committee of the Board of Directors. Biographical
information regarding these directors and a description of the material terms of their compensation have previously been reported by Catalent in the Prospectus. The compensation paid to these directors includes grants of restricted stock units to
each of Messrs. Booth, Stahl and Classon on July 30, 2014 with a market value of $140,000 based on the initial public offering price in the Offering.
Catalent, Inc. 2014 Omnibus Incentive Plan
Effective July 30, 2014, Catalents Board of Directors and its stockholders adopted the Catalent, Inc. 2014 Omnibus Incentive Plan
(the Omnibus Incentive Plan). The Omnibus Incentive Plan provides for the granting of stock options, stock appreciation rights, restricted stock, restricted stock units, other stock-based awards and performance compensation awards to
directors, officers, employees, consultants and advisors (and prospective directors, officers, employees, consultants and advisors). For further information regarding the Omnibus Incentive Plan, see Management2014 Omnibus Incentive
Plan in the Prospectus. The Omnibus Incentive Plan is filed herewith as Exhibit 10.3. Furthermore, attached hereto as Exhibit 10.4, Exhibit 10.5, Exhibit 10.6, Exhibit 10.7 and Exhibit 10.8 are forms of the stock option agreement for U.S.
employees, restricted stock unit agreement for U.S. employees, restricted stock unit agreement for non-employee directors, stock option agreement for non-U.S. employees and restricted stock unit agreement for non-U.S. employees, respectively,
pursuant to which grants may be made under the Omnibus Incentive Plan.
ITEM 5.03 Amendments to Articles of Incorporation or Bylaws; Change in
Fiscal Year.
Effective August 5, 2014, Catalents Amended and Restated Certificate of Incorporation (the
Charter) became effective and Catalents bylaws were also amended and restated (the Bylaws), each as contemplated by the Prospectus. The Charter and the Bylaws are filed herewith as Exhibits 3.1 and 3.2, respectively,
and are incorporated herein by reference. The terms of Charter and Bylaws are substantially the same as the terms set forth in the forms previously filed as Exhibits 3.1 and 3.2, respectively, to the Registration Statement.
ITEM 8.01 Other Events.
On
August 5, 2014, Catalent completed its Offering of 42,500,000 shares of common stock for cash consideration of $20.50 per share ($19.475 per share net of underwriting discounts) to a syndicate of underwriters led by joint-book running managers
Morgan Stanley, J.P. Morgan, BofA Merrill Lynch, Goldman, Sachs & Co., Jefferies and Deutsche Bank Securities. Blackstone Capital Markets, Piper Jaffray, Raymond James, Wells Fargo Securities, William Blair and Evercore acted as co-managers
for the Offering.
Catalent estimates that the net proceeds to it from its sale of shares of common stock in the Offering, after deducting
underwriting discounts and estimated offering expenses, were approximately $822.7 million. Catalent used a portion of the net proceeds from the Offering to pay the termination fee in connection with the termination of the Advisory Fee as described
in Item 1.02. The remaining net proceeds will be used to repay a portion of Catalents indebtedness as described in the Prospectus.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
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Exhibit No. |
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Description |
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3.1 |
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Amended and Restated Certificate of Incorporation of Catalent, Inc., effective as of August 5, 2014 |
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3.2 |
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Amended and Restated By-Laws of Catalent, Inc. |
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10.1 |
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Stockholders Agreement, dated as of August 5, 2014, between Catalent, Inc. and Blackstone Healthcare Partners L.L.C. |
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10.2 |
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Registration Rights Agreement, dated as of August 5, 2014, by and among Catalent, Inc. and certain of its stockholders |
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10.3 |
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Catalent, Inc. 2014 Omnibus Incentive Plan |
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10.4 |
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Form of Stock Option Agreement for U.S. Employees |
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10.5 |
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Form of Restricted Stock Unit Agreement for U.S. Employees |
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10.6 |
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Form of Restricted Stock Unit Agreement for Non-Employee Directors |
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10.7 |
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Form of Stock Option Agreement for Non-U.S. Employees |
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10.8 |
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Form of Restricted Stock Unit Agreement for Non-U.S. Employees |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
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Catalent, Inc.
(Registrant) |
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Dated: August 5, 2014 |
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By: |
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/s/ Matthew M. Walsh |
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Name: |
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Matthew M. Walsh |
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Title: |
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Executive Vice President & Chief Financial Officer |
EXHIBIT INDEX
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Exhibit No. |
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Description |
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3.1 |
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Amended and Restated Certificate of Incorporation of Catalent, Inc., effective as of August 5, 2014 |
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3.2 |
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Amended and Restated By-Laws of Catalent, Inc. |
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10.1 |
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Stockholders Agreement, dated as of August 5, 2014, between Catalent, Inc. and Blackstone Healthcare Partners L.L.C. |
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10.2 |
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Registration Rights Agreement, dated as of August 5, 2014, by and among Catalent, Inc. and certain of its stockholders |
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10.3 |
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Catalent, Inc. 2014 Omnibus Incentive Plan |
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10.4 |
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Form of Stock Option Agreement for U.S. Employees |
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10.5 |
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Form of Restricted Stock Unit Agreement for U.S. Employees |
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10.6 |
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Form of Restricted Stock Unit Agreement for Non-Employee Directors |
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10.7 |
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Form of Stock Option Agreement for Non-U.S. Employees |
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10.8 |
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Form of Restricted Stock Unit Agreement for Non-U.S. Employees |
Exhibit 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
CATALENT, INC.
* * * * *
The present name of the corporation is Catalent, Inc. (the Corporation). The Corporation was incorporated under the name PTS
Holdings, Corp. by the filing of its original Certificate of Incorporation with the Secretary of State of the State of Delaware on March 14, 2007. This Amended and Restated Certificate of Incorporation of the Corporation, which restates
and integrates and also further amends the provisions of the Corporations Certificate of Incorporation, as amended and restated, was duly adopted in accordance with the provisions of Sections 242 and 245 of the General Corporation Law of the
State of Delaware and by the written consent of its stockholders in accordance with Section 228 of the General Corporation Law of the State of Delaware. The Certificate of Incorporation of the Corporation, as amended and restated, is hereby
amended, integrated and restated to read in its entirety as follows:
ARTICLE I
NAME
The name of
the Corporation is Catalent, Inc.
ARTICLE II
REGISTERED OFFICE AND AGENT
The name and address of the registered agent and registered office is Corporation Service Company, 2711 Centerville Road, Suite 400,
Wilmington, DE 19808, County of New Castle.
ARTICLE III
PURPOSE
The
purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the DGCL).
ARTICLE IV
CAPITAL STOCK
The
total number of shares of all classes of stock that the Corporation shall have authority to issue is 1,100,000,000, which shall be divided into two classes as follows:
1,000,000,000 shares of common stock, par value $0.01 per share (Common Stock); and
100,000,000 shares of preferred stock, par value $0.01 per share (Preferred Stock).
A. Common Stock and Preferred Stock may be
issued from time to time by the Corporation for such consideration as may be fixed by the Board of Directors of the Corporation. The Board of Directors is hereby expressly authorized, by resolution or resolutions, to provide, out of the unissued
shares of Preferred Stock, for one or more series of Preferred Stock and, with respect to each such series, to fix, without further stockholder approval, the designation of such series, the powers (including voting powers), preferences and relative,
participating, optional and other special rights, and the qualifications, limitations or restrictions thereof, of such series of Preferred Stock and the number of shares of such series. The powers, preferences and relative, participating, optional
and other special rights of, and the qualifications, limitations or restrictions thereof, of each series of Preferred Stock, if any, may differ from those of any and all other series at any time outstanding.
B. Each holder of record of Common Stock, as such, shall have one vote for each share of Common Stock which is outstanding in his, her or its
name on the books of the Corporation on all matters on which stockholders are entitled to vote generally. Except as otherwise required by law, holders of Common Stock shall not be entitled to vote on any amendment to this Amended and Restated
Certificate of Incorporation (including any certificate of designation relating to any series of Preferred Stock) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are
entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to this Amended and Restated Certificate of Incorporation (including any certificate of designation relating to any series of
Preferred Stock) or pursuant to the DGCL.
C. Except as otherwise required by law, holders of any series of Preferred Stock shall be
entitled to only such voting rights, if any, as shall expressly be granted thereto by this Amended and Restated Certificate of Incorporation (including any certificate of designation relating to such series of Preferred Stock).
D. Subject to applicable law and the rights, if any, of the holders of any outstanding series of Preferred Stock or any class or series of
stock having a preference over or the right to participate with the Common Stock with respect to the payment of dividends, dividends may be declared and paid ratably on the Common Stock out of the assets of the Corporation which are legally
available for this purpose at such times and in such amounts as the Board of Directors in its discretion shall determine.
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E. Upon the dissolution, liquidation or winding up of the Corporation, after payment or provision
for payment of the debts and other liabilities of the Corporation and subject to the rights, if any, of the holders of any outstanding series of Preferred Stock or any class or series of stock having a preference over or the right to participate
with the Common Stock with respect to the distribution of assets of the Corporation upon such dissolution, liquidation or winding up of the Corporation, the holders of Common Stock shall be entitled to receive the remaining assets of the Corporation
available for distribution to its stockholders ratably in proportion to the number of shares held by them.
F. The number of authorized
shares of Preferred Stock or Common Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority in voting power of the stock of the Corporation entitled to
vote thereon irrespective of the provisions of Section 242(b)(2) of the DGCL (or any successor provision thereto), and no vote of the holders of any of the Common Stock or the Preferred Stock voting separately as a class shall be required
therefor, unless a vote of any such holder is required pursuant to this Amended and Restated Certificate of Incorporation (including any certificate of designation relating to any series of Preferred Stock).
ARTICLE V
AMENDMENT
OF THE CERTIFICATE OF INCORPORATION AND BYLAWS
A. Notwithstanding anything contained in this Amended and Restated Certificate of
Incorporation to the contrary, at any time when Blackstone (as defined below) beneficially owns, in the aggregate, less than 40% in voting power of the stock of the Corporation entitled to vote generally in the election of directors, in addition to
any vote required by applicable law, the following provisions in this Amended and Restated Certificate of Incorporation may be amended, altered, repealed or rescinded, in whole or in part, or any provision inconsistent therewith or herewith may be
adopted, only by the affirmative vote of the holders of at least 66 2/3% in voting power of all the then-outstanding shares of stock of the Corporation entitled to vote thereon, voting together as a single class: this Article V, Article VI,
Article VII, Article VIII, Article IX and Article X. For the purposes of this Amended and Restated Certificate of Incorporation, beneficial ownership of shares shall be determined in accordance with Rule 13d-3 promulgated under the Securities
Exchange Act of 1934, as amended (the Exchange Act).
B. The Board of Directors is expressly authorized to make,
repeal, alter, amend and rescind, in whole or in part, the bylaws of the Corporation (as in effect from time to time, the Bylaws) without the assent or vote of the stockholders in any manner not inconsistent with the laws of the State of
Delaware or this Amended and Restated Certificate of Incorporation. Notwithstanding anything to the contrary contained in this Amended and Restated Certificate of Incorporation or any provision of law which might otherwise permit a lesser vote of
the stockholders, at any time when Blackstone (as defined below) beneficially owns, in the aggregate, less than 40% in voting power of the stock of the Corporation entitled to vote generally in the election of directors, in addition to any vote of
the holders of any class or series
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of capital stock of the Corporation required herein (including any certificate of designation relating to any series of Preferred Stock), the Bylaws or applicable law, the affirmative vote of the
holders of at least 66 2/3% in voting power of all the then-outstanding shares of stock of the Corporation entitled to vote thereon, voting together as a single class, shall be required in order for the stockholders of the Corporation to alter,
amend, repeal or rescind, in whole or in part, any provision of the Bylaws or to adopt any provision inconsistent therewith.
ARTICLE VI
BOARD OF DIRECTORS
A. The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. Except as otherwise
provided for or fixed pursuant to the provisions of Article IV (including any certificate of designation with respect to any series of Preferred Stock) and this Article VI relating to the rights of the holders of any series of Preferred Stock to
elect additional directors, the total number of directors shall be determined from time to time exclusively by resolution adopted by the Board of Directors. The directors (other than those directors elected by the holders of any series of Preferred
Stock, voting separately as a series or together with one or more other such series, as the case may be) shall be divided into three classes designated Class I, Class II and Class III. Each class shall consist, as nearly as possible,
of one-third of the total number of such directors. Class I directors shall initially serve for a term expiring at the first annual meeting of stockholders following the date the Common Stock is first publicly traded (the IPO
Date), Class II directors shall initially serve for a term expiring at the second annual meeting of stockholders following the IPO Date and Class III directors shall initially serve for a term expiring at the third annual meeting of
stockholders following the IPO Date. At each succeeding annual meeting, successors to the class of directors whose term expires at that annual meeting shall be elected for a term expiring at the third succeeding annual meeting of stockholders. If
the number of such directors is changed, any increase or decrease shall be apportioned among the classes so as to maintain the number of directors in each class as nearly equal as possible, and any such additional director of any class elected to
fill a newly created directorship resulting from an increase in such class shall hold office for a term that shall coincide with the remaining term of that class, but in no case shall a decrease in the number of directors remove or shorten the term
of any incumbent director. Any such director shall hold office until the annual meeting at which his or her term expires and until his or her successor shall be elected and qualified, or his or her death, resignation, retirement, disqualification or
removal from office. The Board of Directors is authorized to assign members of the Board of Directors already in office to their respective class.
B. Subject to the rights granted to the holders of any one or more series of Preferred Stock then outstanding or the rights granted pursuant
to the Stockholders Agreement, expected to be dated as of August 5, 2014, by and among the Corporation and certain affiliates of The Blackstone Group L.P. (together with its affiliates other than the Corporation and its subsidiaries (including,
without limitation, Blackstone Group Management L.L.C.) other than the Corporation and its subsidiaries, subsidiaries, successors and assigns (including, without limitation, any Blackstone Entity as defined in the Stockholders Agreement),
collectively, Blackstone) (as the same may be amended, supplemented, restated or otherwise modified from
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time to time, the Stockholders Agreement), any newly-created directorship on the Board of Directors that results from an increase in the number of directors and any vacancy
occurring in the Board of Directors (whether by death, resignation, retirement, disqualification, removal or other cause) shall be filled by a majority of the directors then in office, although less than a quorum, by a sole remaining director or by
the stockholders; provided, however, that at any time when Blackstone beneficially owns, in the aggregate, less than 40% in voting power of the stock of the Corporation entitled to vote generally in the election of directors, any newly-created
directorship on the Board of Directors that results from an increase in the number of directors and any vacancy occurring in the Board of Directors shall be filled only by a majority of the directors then in office, although less than a quorum, or
by a sole remaining director (and not by stockholders). Any director elected to fill a vacancy or newly created directorship shall hold office until the next election of the class for which such director shall have been chosen and until his or her
successor shall be elected and qualified, or until his or her earlier death, resignation, retirement, disqualification or removal.
C. Any
or all of the directors (other than the directors elected by the holders of any series of Preferred Stock of the Corporation, voting separately as a series or together with one or more other such series, as the case may be) may be removed at any
time either with or without cause by the affirmative vote of a majority in voting power of all outstanding shares of stock of the Corporation entitled to vote thereon, voting as a single class; provided, however, that at any time when Blackstone
beneficially owns, in the aggregate, less than 40% in voting power of the stock of the Corporation entitled to vote generally in the election of directors, any such director or all such directors may be removed only for cause and only by the
affirmative vote of the holders of at least 66 2/3% in voting power of all the then-outstanding shares of stock of the Corporation entitled to vote thereon, voting together as a single class.
D. Elections of directors need not be by written ballot unless the Bylaws shall so provide.
E. During any period when the holders of any series of Preferred Stock have the right to elect additional directors, then upon commencement
and for the duration of the period during which such right continues: (i) the then otherwise total authorized number of directors of the Corporation shall automatically be increased by such specified number of directors, and the holders of such
Preferred Stock shall be entitled to elect the additional directors so provided for or fixed pursuant to said provisions, and (ii) each such additional director shall serve until such directors successor shall have been duly elected and
qualified, or until such directors right to hold such office terminates pursuant to said provisions, whichever occurs earlier, subject to his or her earlier death, resignation, retirement, disqualification or removal. Except as otherwise
provided by the Board of Directors in the resolution or resolutions establishing such series, whenever the holders of any series of Preferred Stock having such right to elect additional directors are divested of such right pursuant to the provisions
of such stock, the terms of office of all such additional directors elected by the holders of such stock, or elected to fill any vacancies resulting from the death, resignation, disqualification or removal of such additional directors, shall
forthwith terminate and the total authorized number of directors of the Corporation shall be reduced accordingly.
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ARTICLE VII
LIMITATION OF DIRECTOR LIABILITY
A. To the fullest extent permitted by the DGCL as it now exists or may hereafter be amended, a director of the Corporation shall not be
personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty owed to the Corporation or its stockholders.
B. Neither the amendment nor repeal of this Article VII, nor the adoption of any provision of this Amended and Restated Certificate of
Incorporation, nor, to the fullest extent permitted by the DGCL, any modification of law shall eliminate, reduce or otherwise adversely affect any right or protection of a current or former director of the Corporation existing at the time of such
amendment, repeal, adoption or modification.
ARTICLE VIII
CONSENT OF STOCKHOLDERS IN LIEU OF MEETING, ANNUAL AND SPECIAL
MEETINGS OF STOCKHOLDERS
A. At any time when Blackstone beneficially owns, in the aggregate, at least 40% in voting power of the stock of the Corporation
entitled to vote generally in the election of directors, any action required or permitted to be taken at any annual or special meeting of stockholders of the Corporation may be taken without a meeting, without prior notice and without a vote, if a
consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having
custody of the books in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporations registered office shall be made by hand, overnight courier or by certified or registered mail, return receipt requested. At
any time when Blackstone beneficially owns, in the aggregate, less than 40% in voting power of the stock of the Corporation entitled to vote generally in the election of directors, any action required or permitted to be taken by the stockholders of
the Corporation must be effected at a duly called annual or special meeting of such holders and may not be effected by any consent in writing by such holders; provided, however, that any action required or permitted to be taken by the
holders of Preferred Stock, voting separately as a series or separately as a class with one or more other such series, may be taken without a meeting, without prior notice and without a vote, to the extent expressly so provided by the applicable
certificate of designation relating to such series of Preferred Stock.
B. Except as otherwise required by law and subject to the
rights of the holders of any series of Preferred Stock, special meetings of the stockholders of the Corporation for any purpose or purposes may be called at any time only by or at the direction of the Board of Directors or the Chairman of the Board
of Directors; provided, however, that at any time when Blackstone beneficially owns, in the aggregate, at least 40% in voting power of the stock of the
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Corporation entitled to vote generally in the election of directors, special meetings of the stockholders of the Corporation for any purpose or purposes shall also be called by or at the
direction of the Board of Directors or the Chairman of the Board of Directors at the request of Blackstone.
C. An annual meeting of
stockholders for the election of directors to succeed those whose terms expire and for the transaction of such other business as may properly come before the meeting, shall be held at such place, if any, on such date, and at such time as shall be
fixed exclusively by resolution of the Board of Directors or a duly authorized committee thereof.
ARTICLE IX
COMPETITION AND CORPORATE OPPORTUNITIES
A. In recognition and anticipation that (i) certain directors, principals, officers, employees and/or other representatives of The
Blackstone Group L.P. (the Original Stockholder) and its Affiliates (as defined below) may serve as directors, officers or agents of the Corporation, (ii) the Original Stockholder and its Affiliates may now engage and may
continue to engage in the same or similar activities or related lines of business as those in which the Corporation, directly or indirectly, may engage and/or other business activities that overlap with or compete with those in which the
Corporation, directly or indirectly, may engage, and (iii) members of the Board of Directors who are not employees of the Corporation (Non-Employee Directors) and their respective Affiliates may now engage and may continue to
engage in the same or similar activities or related lines of business as those in which the Corporation, directly or indirectly, may engage and/or other business activities that overlap with or compete with those in which the Corporation, directly
or indirectly, may engage, the provisions of this Article IX are set forth to regulate and define the conduct of certain affairs of the Corporation with respect to certain classes or categories of business opportunities as they may involve any of
the Original Stockholder, the Non-Employee Directors or their respective Affiliates and the powers, rights, duties and liabilities of the Corporation and its directors, officers and stockholders in connection therewith.
B. None of (i) the Original Stockholder or any of its Affiliates or (ii) any Non-Employee Director (including any Non-Employee
Director who serves as an officer of the Corporation in both his or her director and officer capacities) or his or her Affiliates (the Persons (as defined below) identified in (i) and (ii) above being referred to, collectively, as
Identified Persons and, individually, as an Identified Person) shall, to the fullest extent permitted by law, have any duty to refrain from directly or indirectly (1) engaging in the same or similar
business activities or lines of business in which the Corporation or any of its Affiliates now engages or proposes to engage or (2) otherwise competing with the Corporation or any of its Affiliates, and, to the fullest extent permitted by law,
no Identified Person shall be liable to the Corporation or its stockholders or to any Affiliate of the Corporation for breach of any fiduciary duty solely by reason of the fact that such Identified Person engages in any such activities. To the
fullest extent permitted by law, the Corporation hereby renounces any interest or expectancy in, or right to be offered an opportunity to participate in, any business opportunity which may be a corporate opportunity for an Identified Person and the
Corporation or any of its Affiliates, except as provided in Section (C) of this Article IX. Subject to said Section (C) of this Article IX, in the event that any Identified Person acquires knowledge of a potential transaction or other
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business opportunity which may be a corporate opportunity for itself, herself or himself and the Corporation or any of its Affiliates, such Identified Person shall, to the fullest extent
permitted by law, have no duty to communicate or offer such transaction or other business opportunity to the Corporation or any of its Affiliates and, to the fullest extent permitted by law, shall not be liable to the Corporation or its stockholders
or to any Affiliate of the Corporation for breach of any fiduciary duty as a stockholder, director or officer of the Corporation solely by reason of the fact that such Identified Person pursues or acquires such corporate opportunity for itself,
herself or himself, or offers or directs such corporate opportunity to another Person.
C. The Corporation does not renounce its interest
in any corporate opportunity offered to any Non-Employee Director (including any Non-Employee Director who serves as an officer of this Corporation) if such opportunity is expressly offered to such person solely in his or her capacity as a director
or officer of the Corporation, and the provisions of Section (B) of this Article IX shall not apply to any such corporate opportunity.
D. In addition to and notwithstanding the foregoing provisions of this Article IX, a corporate opportunity shall not be deemed to be a
potential corporate opportunity for the Corporation if it is a business opportunity that (i) the Corporation is neither financially or legally able, nor contractually permitted to undertake, (ii) from its nature, is not in the line of the
Corporations business or is of no practical advantage to the Corporation or (iii) is one in which the Corporation has no interest or reasonable expectancy.
E. For purposes of this Article IX, (i) Affiliate shall mean (a) in respect of the Original Stockholder, any
Person that, directly or indirectly, is controlled by the Original Stockholder, controls the Original Stockholder or is under common control with the Original Stockholder and shall include any principal, member, director, partner, stockholder,
officer, employee or other representative of any of the foregoing (other than the Corporation and any entity that is controlled by the Corporation), (b) in respect of a Non-Employee Director, any Person that, directly or indirectly, is
controlled by such Non-Employee Director (other than the Corporation and any entity that is controlled by the Corporation) and (c) in respect of the Corporation, any Person that, directly or indirectly, is controlled by the Corporation; and
(ii) Person shall mean any individual, corporation, general or limited partnership, limited liability company, joint venture, trust, association or any other entity.
F. To the fullest extent permitted by law, any Person purchasing or otherwise acquiring any interest in any shares of capital stock of the
Corporation shall be deemed to have notice of and to have consented to the provisions of this Article IX.
ARTICLE X
DGCL SECTION 203 AND BUSINESS COMBINATIONS
A. The Corporation hereby expressly elects not to be governed by Section 203 of the DGCL.
B. Notwithstanding the foregoing, the Corporation shall not engage in any business combination (as defined below), at any point in time at
which the Corporations Common Stock
8
is registered under Section 12(b) or 12(g) of the Exchange Act, with any interested stockholder (as defined below) for a period of three (3) years following the time that such
stockholder became an interested stockholder, unless:
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1. |
prior to such time, the Board of Directors approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder, or |
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2. |
upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock (as defined below) of the Corporation
outstanding at the time the transaction commenced, excluding for purposes of determining the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder) those shares owned (i) by persons who are directors
and also officers and (ii) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer, or |
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3. |
at or subsequent to such time, the business combination is approved by the Board of Directors and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at
least 66 2/3% of the outstanding voting stock of the Corporation which is not owned by the interested stockholder. |
C. For
purposes of this Article X, references to:
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1. |
affiliate means a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, another person. |
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2. |
associate, when used to indicate a relationship with any person, means: (i) any corporation, partnership, unincorporated association or other entity of which such person is a director, officer or
partner or is, directly or indirectly, the owner of 20% or more of any class of voting stock; (ii) any trust or other estate in which such person has at least a 20% beneficial interest or as to which such person serves as trustee or in a
similar fiduciary capacity; and (iii) any relative or spouse of such person, or any relative of such spouse, who has the same residence as such person. |
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3. |
Blackstone Direct Transferee means any person that acquires (other than in a registered public offering) directly from Blackstone or any of its affiliates or successors or any group, or
any member of any such group, of which such persons are a party under Rule 13d-5 of the Exchange Act beneficial ownership of 15% or more of the then outstanding voting stock of the Corporation. |
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4. |
Blackstone Indirect Transferee means any person that acquires (other than in a registered public offering) directly from any
Blackstone Direct |
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Transferee or any other Blackstone Indirect Transferee beneficial ownership of 15% or more of the then outstanding voting stock of the Corporation. |
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5. |
business combination, when used in reference to the Corporation and any interested stockholder of the Corporation, means: |
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(i) |
any merger or consolidation of the Corporation or any direct or indirect majority-owned subsidiary of the Corporation (a) with the interested stockholder, or (b) with any other corporation, partnership,
unincorporated association or other entity if the merger or consolidation is caused by the interested stockholder and as a result of such merger or consolidation Section (B) of this Article X is not applicable to the surviving entity;
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(ii) |
any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions), except proportionately as a stockholder of the Corporation, to or with the interested
stockholder, whether as part of a dissolution or otherwise, of assets of the Corporation or of any direct or indirect majority-owned subsidiary of the Corporation which assets have an aggregate market value equal to 10% or more of either the
aggregate market value of all the assets of the Corporation determined on a consolidated basis or the aggregate market value of all the outstanding stock of the Corporation; |
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(iii) |
any transaction which results in the issuance or transfer by the Corporation or by any direct or indirect majority-owned subsidiary of the Corporation of any stock of the Corporation or of such subsidiary to the
interested stockholder, except: (a) pursuant to the exercise, exchange or conversion of securities exercisable for, exchangeable for or convertible into stock of the Corporation or any such subsidiary which securities were outstanding prior to
the time that the interested stockholder became such; (b) pursuant to a merger under Section 251(g) of the DGCL; (c) pursuant to a dividend or distribution paid or made, or the exercise, exchange or conversion of securities
exercisable for, exchangeable for or convertible into stock of the Corporation or any such subsidiary which security is distributed, pro rata to all holders of a class or series of stock of the Corporation subsequent to the time the interested
stockholder became such; (d) pursuant to an exchange offer by the Corporation to purchase stock made on the same terms to all holders of said stock; or (e) any issuance or transfer of stock by the Corporation; provided,
however, that in no case under items (c)-(e) of this subsection (iii) shall there be an increase in the interested stockholders proportionate share of the stock of any class or series of the Corporation or of the voting stock
of the Corporation (except as a result of immaterial changes due to fractional share adjustments); |
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(iv) |
any transaction involving the Corporation or any direct or indirect majority-owned subsidiary of the Corporation which has the effect, directly or indirectly, of increasing the proportionate share of the stock of any
class or series, or securities convertible into the stock of any class or series, of the Corporation or of any such subsidiary which is owned by the interested stockholder, except as a result of immaterial changes due to fractional share adjustments
or as a result of any purchase or redemption of any shares of stock not caused, directly or indirectly, by the interested stockholder; or |
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(v) |
any receipt by the interested stockholder of the benefit, directly or indirectly (except proportionately as a stockholder of the Corporation), of any loans, advances, guarantees, pledges, or other financial benefits
(other than those expressly permitted in subsections (i)-(iv) above) provided by or through the Corporation or any direct or indirect majority-owned subsidiary. |
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6. |
control, including the terms controlling, controlled by and under common control with, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting stock, by contract, or otherwise. A person who is the owner of 20% or more of the outstanding voting stock of the Corporation,
partnership, unincorporated association or other entity shall be presumed to have control of such entity, in the absence of proof by a preponderance of the evidence to the contrary. Notwithstanding the foregoing, a presumption of control shall not
apply where such person holds voting stock, in good faith and not for the purpose of circumventing this Section, as an agent, bank, broker, nominee, custodian or trustee for one or more owners who do not individually or as a group have control of
such entity. |
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7. |
interested stockholder means any person (other than the Corporation or any direct or indirect majority-owned subsidiary of the
Corporation) that (i) is the owner of 15% or more of the outstanding voting stock of the Corporation, or (ii) is an affiliate or associate of the Corporation and was the owner of 15% or more of the outstanding voting stock of the
Corporation at any time within the three (3) year period immediately prior to the date on which it is sought to be determined whether such person is an interested stockholder; and the affiliates and associates of such person; but
interested stockholder shall not include (a) Blackstone, any Blackstone Direct Transferee, any Blackstone Indirect Transferee or any of their respective affiliates or successors or any group, or any member of any such
group, to which such persons are a party under Rule 13d-5 of the Exchange Act, or (b) any person whose ownership of shares in excess of the 15% limitation set forth herein is the result of any action taken solely by the Corporation,
provided that such person shall be an interested stockholder if thereafter such person acquires additional shares of voting stock of the Corporation, except as a result of further corporate action not
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caused, directly or indirectly, by such person. For the purpose of determining whether a person is an interested stockholder, the voting stock of the Corporation deemed to be outstanding shall
include stock deemed to be owned by the person through application of the definition of owner below but shall not include any other unissued stock of the Corporation which may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or options, or otherwise. |
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8. |
owner, including the terms own and owned, when used with respect to any stock, means a person that individually or with or through any of its affiliates or
associates: |
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(i) |
beneficially owns such stock, directly or indirectly; or |
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(ii) |
has (a) the right to acquire such stock (whether such right is exercisable immediately or only after the passage of time) pursuant to any agreement, arrangement or understanding, or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise; provided, however, that a person shall not be deemed the owner of stock tendered pursuant to a tender or exchange offer made by such person or any of such persons
affiliates or associates until such tendered stock is accepted for purchase or exchange; or (b) the right to vote such stock pursuant to any agreement, arrangement or understanding; provided, however, that a person shall not be
deemed the owner of any stock because of such persons right to vote such stock if the agreement, arrangement or understanding to vote such stock arises solely from a revocable proxy or consent given in response to a proxy or consent
solicitation made to ten (10) or more persons; or |
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(iii) |
has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting (except voting pursuant to a revocable proxy or consent as described in item (b) of subsection (ii) above), or
disposing of such stock with any other person that beneficially owns, or whose affiliates or associates beneficially own, directly or indirectly, such stock. |
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9. |
person means any individual, corporation, partnership, unincorporated association or other entity. |
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10. |
stock means, with respect to any corporation, capital stock and, with respect to any other entity, any equity interest. |
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11. |
voting stock means stock of any class or series entitled to vote generally in the election of directors. |
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ARTICLE XI
MISCELLANEOUS
A.
If any provision or provisions of this Amended and Restated Certificate of Incorporation shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever: (i) the validity, legality and
enforceability of such provisions in any other circumstance and of the remaining provisions of this Amended and Restated Certificate of Incorporation (including, without limitation, each portion of any paragraph of this Amended and Restated
Certificate of Incorporation containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and (ii) to the
fullest extent possible, the provisions of this Amended and Restated Certificate of Incorporation (including, without limitation, each such portion of any paragraph of this Amended and Restated Certificate of Incorporation containing any such
provision held to be invalid, illegal or unenforceable) shall be construed so as to permit the Corporation to protect its directors, officers, employees and agents from personal liability in respect of their good faith service or for the benefit of
the Corporation to the fullest extent permitted by law.
B. Unless the Corporation consents in writing to the selection of an alternative
forum, the Court of Chancery of the State of Delaware shall, to the fullest extent permitted by law, be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action
asserting a claim of breach of a fiduciary duty owed by any director or officer of the Corporation to the Corporation or the Corporations stockholders, creditors or other constituents, (iii) any action asserting a claim against the
Corporation or any director or officer of the Corporation arising pursuant to any provision of the DGCL or this Amended and Restated Certificate of Incorporation or the Bylaws (as either may be amended and/or restated from time to time), or
(iv) any action asserting a claim against the Corporation or any director or officer of the Corporation governed by the internal affairs doctrine, in each such case subject to said court having personal jurisdiction over the indispensable
parties named as defendants therein; provided, that, if and only if the Court of Chancery of the State of Delaware dismisses any such action for lack of subject matter jurisdiction, such action may be brought in another state court sitting in the
State of Delaware. To the fullest extent permitted by law, any person purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consents to the provisions of this Article
XI(B).
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, Catalent, Inc. has caused this Amended and Restated Certificate of
Incorporation to be executed by its duly authorized officer on this 5th day of August, 2014.
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CATALENT, INC. |
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By: |
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/s/ Matthew Walsh |
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Name: |
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Matthew Walsh |
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Title: |
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Executive Vice President and Chief Financial
Officer |
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Exhibit 3.2
AMENDED AND RESTATED
BYLAWS
OF
CATALENT, INC.
ARTICLE
I
Offices
SECTION 1.01 Registered Office. The registered office and registered agent of Catalent, Inc. (the Corporation) in
the State of Delaware shall be as set forth in the Amended and Restated Certificate of Incorporation (as defined below). The Corporation may also have offices in such other places in the United States or elsewhere (and may change the
Corporations registered agent) as the Board of Directors may, from time to time, determine or as the business of the Corporation may require as determined by any officer of the Corporation.
ARTICLE II
Meetings of
Stockholders
SECTION 2.01 Annual Meetings. Annual meetings of stockholders may be held at such place, if any, either within or
without the State of Delaware, and at such time and date as the Board of Directors shall determine and state in the notice of meeting. The Board of Directors may, in its sole discretion, determine that meetings of stockholders shall not be held at
any place, but may instead be held solely by means of remote communication as described in Section 2.11 of these Bylaws in accordance with Section 211(a)(2) of the General Corporation Law of the State of Delaware (the
DGCL). The Board of Directors may postpone, reschedule or cancel any annual meeting of stockholders previously scheduled by the Board of Directors.
SECTION 2.02 Special Meetings. Special meetings of the stockholders may only be called in the manner provided in the Corporations
certificate of incorporation as then in effect (as the same may be amended and/or restated from time to time, the Amended and Restated Certificate of Incorporation) and may be held at such place, if any, either within or without
the State of Delaware, and at such time and date as the Board of directors or the Chairman of the Board of Directors shall determine and state in the notice of meeting. The Board of Directors may postpone, reschedule or cancel any special meeting of
stockholders previously scheduled by the Board of Directors or the Chairman of the Board of Directors; provided, however, that with respect to any special meeting of stockholders previously scheduled by the Board of Directors or the Chairman of the
Board of Directors at the request of Blackstone (as defined in the Amended and Restated Certificate of Incorporation), the Board of Directors shall not postpone, reschedule or cancel such special meeting without the prior written consent of
Blackstone.
SECTION 2.03 Notice of Stockholder Business and Nominations.
(A) Annual Meetings of Stockholders.
(1) Nominations of persons for election to the Board of Directors and the proposal of other business to be considered by the stockholders may
be made at an annual meeting of stockholders only (a) as provided in the Stockholders Agreement (as defined in the Amended and Restated Certificate of Incorporation) (with respect to nominations of persons for election to the Board of Directors
only), (b) pursuant to the Corporations notice of meeting (or any supplement thereto) delivered pursuant to Section 2.04 of Article II of these Bylaws, (c) by or at the direction of the Board of Directors or any authorized
committee thereof or (d) by any stockholder of the Corporation who is entitled to vote at the meeting, who, subject to paragraph (C)(4) of this Section 2.03, complied with the notice procedures set forth in paragraphs (A)(2) and (A)(3) of
this Section 2.03 and who was a stockholder of record at the time such notice is delivered to the Secretary of the Corporation.
(2)
For nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to clause (d) of paragraph (A)(1) of this Section 2.03, the stockholder must have given timely notice thereof in writing to the
Secretary of the Corporation, and, in the case of business other than nominations of persons for election to the Board of Directors, such other business must constitute a proper matter for stockholder action. To be timely, a stockholders
notice shall be delivered to the Secretary of the Corporation at the principal executive offices of the Corporation not less than ninety (90) days nor more than one hundred and twenty (120) days prior to the first anniversary of the
preceding years annual meeting (which date shall, for purposes of the Corporations first annual meeting of stockholders after its shares of Common Stock are first publicly traded, be deemed to have occurred on August 1, 2014);
provided, however, that in the event that the date of the annual meeting is advanced by more than thirty (30) days, or delayed by more than seventy (70) days, from the anniversary date of the previous years meeting, or if no
annual meeting was held in the preceding year, notice by the stockholder to be timely must be so delivered not earlier than one hundred and twenty (120) days prior to such annual meeting and not later than the close of business on the later of
the ninetieth (90th) day prior to such annual meeting or the tenth (10th) day following the day on which public announcement of the date of such meeting is first made. Public announcement of an adjournment or postponement of an annual
meeting shall not commence a new time period (or extend any time period) for the giving of a stockholders notice. Notwithstanding anything in this Section 2.03(A)(2) to the contrary, if the number of directors to be elected to the Board
of Directors at an annual meeting is increased and there is no public announcement by the Corporation naming all of the nominees for director or specifying the size of the increased Board of Directors at least one hundred (100) calendar days
prior to the first anniversary of the prior years annual meeting of stockholders, then a stockholders notice required by this Section shall be considered timely, but only with respect to nominees for any new positions created by such
increase, if it is received by the Secretary of the Corporation not later than the close of business on the tenth (10th) calendar day following the day on which such public announcement is first made by the Corporation.
2
(3) Such stockholders notice shall set forth (a) as to each person whom the
stockholder proposes to nominate for election or re-election as a director, all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise
required, in each case pursuant to Section 14(a) of the Securities Exchange Act of 1934, as amended (the Exchange Act), and the rules and regulations promulgated thereunder, including such persons written consent to
being named in the proxy statement as a nominee and to serving as a director if elected; (b) as to any other business that the stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before
the meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration and, in the event that such business includes a proposal to amend these Bylaws, the language of the proposed amendment), the reasons
for conducting such business at the meeting and any material interest in such business of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made; (c) as to the stockholder giving the notice and the beneficial
owner, if any, on whose behalf the nomination or proposal is made (i) the name and address of such stockholder, as they appear on the Corporations books and records, and of such beneficial owner, (ii) the class or series and number
of shares of capital stock of the Corporation which are owned, directly or indirectly, beneficially and of record by such stockholder and such beneficial owner, (iii) a representation that the stockholder is a holder of record of the stock of
the Corporation at the time of the giving of the notice, will be entitled to vote at such meeting and will appear in person or by proxy at the meeting to propose such business or nomination, (iv) a representation whether the stockholder or the
beneficial owner, if any, will be or is part of a group which will (x) deliver a proxy statement and/or form of proxy to holders of at least the percentage of the voting power of the Corporations outstanding capital stock required to
approve or adopt the proposal or elect the nominee and/or (y) otherwise to solicit proxies or votes from stockholders in support of such proposal or nomination, (v) a certification regarding whether such stockholder and beneficial owner,
if any, have complied with all applicable federal, state and other legal requirements in connection with the stockholders and/or beneficial owners acquisition of shares of capital stock or other securities of the Corporation and/or the
stockholders and/or beneficial owners acts or omissions as a stockholder of the Corporation and (vi) any other information relating to such stockholder and beneficial owner, if any, required to be disclosed in a proxy statement or
other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in an election contest pursuant to and in accordance with Section 14(a) of the Exchange Act and
the rules and regulations promulgated thereunder; (d) a description of any agreement, arrangement or understanding with respect to the nomination or proposal and/or the voting of shares of any class or series of stock of the Corporation between
or among the stockholder giving the notice, the beneficial owner, if any, on whose behalf the nomination or proposal is made, any of their respective affiliates or associates and/or any others acting in concert with any of the foregoing
(collectively, proponent persons); and (e) a description of any agreement, arrangement or understanding (including without limitation any contract to purchase or sell, acquisition or grant of any option, right or warrant to
purchase or sell, swap or other instrument) to which any proponent person is a party, the intent or effect of which may be (i) to transfer to or from any proponent person, in whole or in part, any of the economic consequences of ownership of
any security of the Corporation, (ii) to increase or decrease the voting power of any proponent person with respect to shares of any class or series
3
of stock of the Corporation and/or (iii) to provide any proponent person, directly or indirectly, with the opportunity to profit or share in any profit derived from, or to otherwise benefit
economically from, any increase or decrease in the value of any security of the Corporation. A stockholder providing notice of a proposed nomination for election to the Board of Directors or other business proposed to be brought before a meeting
(whether given pursuant to this paragraph (A)(3) or paragraph (B) of this Section 2.03 of these Bylaws) shall update and supplement such notice from time to time to the extent necessary so that the information provided or required to be
provided in such notice shall be true and correct (x) as of the record date for determining the stockholders entitled to notice of the meeting and (y) as of the date that is fifteen (15) days prior to the meeting or any adjournment or
postponement thereof, provided that if the record date for determining the stockholders entitled to vote at the meeting is less than fifteen (15) days prior to the meeting or any adjournment or postponement thereof, the information shall be
supplemented and updated as of such later date. Any such update and supplement shall be delivered in writing to the Secretary of the Corporation at the principal executive offices of the Corporation not later than five (5) days after the record
date for determining the stockholders entitled to notice of the meeting (in the case of any update and supplement required to be made as of the record date for determining the stockholders entitled to notice of the meeting), not later than ten
(10) days prior to the date for the meeting or any adjournment or postponement thereof (in the case of any update or supplement required to be made as of fifteen (15) days prior to the meeting or adjournment or postponement thereof) and
not later than five (5) days after the record date for determining the stockholders entitled to vote at the meeting, but no later than the date prior to the meeting or any adjournment or postponement thereof (in the case of any update and
supplement required to be made as of a date less than fifteen (15) days prior the date of the meeting or any adjournment or postponement thereof). The Corporation may require any proposed nominee to furnish such other information as it may
reasonably require to determine the eligibility of such proposed nominee to serve as a director of the Corporation and to determine the independence of such director under the Exchange Act and rules and regulations thereunder and applicable stock
exchange rules.
(B) Special Meetings of Stockholders. Only such business shall be conducted at a special meeting of stockholders
as shall have been brought before the meeting pursuant to the Corporations notice of meeting. Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at which directors are to be elected
pursuant to the Corporations notice of meeting (1) as provided in the Stockholders Agreement, (2) by or at the direction of the Board of Directors or any committee thereof or (3) provided that the Board of Directors (or
Blackstone pursuant to Section B of Article VIII of the Amended and Restated Certificate of Incorporation) has determined that directors shall be elected at such meeting, by any stockholder of the Corporation who is entitled to vote at the meeting,
who (subject to paragraph (C)(4) of this Section 2.03) complies with the notice procedures set forth in this Section 2.03 and who is a stockholder of record at the time such notice is delivered to the Secretary of the Corporation. In the
event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board of Directors, any such stockholder entitled to vote in such election of directors may nominate a person or persons (as the
case may be) for election to such position(s) as specified in the Corporations notice of meeting if the stockholders notice as required by paragraph (A)(2) of this Section 2.03 shall be delivered to the Secretary at the principal
executive offices of the Corporation not earlier than the close of
4
business on the 120th day prior to such special meeting and not later than the close of business on the later of the 90th day prior to such special meeting or the 10th day following the day on
which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting. In no event shall the public announcement of an adjournment or postponement of a special
meeting commence a new time period (or extend any time period) for the giving of a stockholders notice as described above.
(C)
General. (1) Except as provided in paragraph (C)(4) of this Section 2.03, only such persons who are nominated in accordance with the procedures set forth in this Section 2.03 or the Stockholders Agreement shall be eligible to
serve as directors and only such business shall be conducted at an annual or special meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section. Except as otherwise provided by
law, the Amended and Restated Certificate of Incorporation or these Bylaws, the chairman of the meeting shall, in addition to making any other determination that may be appropriate for the conduct of the meeting, have the power and duty to determine
whether a nomination or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in these Bylaws and, if any proposed nomination or business is not in compliance
with these Bylaws, to declare that such defective proposal or nomination shall be disregarded. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the
meeting by the chairman of the meeting. The Board of Directors may adopt by resolution such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and
regulations as adopted by the Board of Directors, the chairman of the meeting shall have the right and authority to convene and (for any or no reason) to recess and/or adjourn the meeting, to prescribe such rules, regulations and procedures and to
do all such acts as, in the judgment of such chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board of Directors or prescribed by the chairman of the meeting, may include,
without limitation, the following: (i) the establishment of an agenda or order of business for the meeting, (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on
attendance at or participation in the meeting to stockholders entitled to vote at the meeting, their duly authorized and constituted proxies or such other persons as the chairman of the meeting shall determine; (iv) restrictions on entry to the
meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants and on shareholder approvals. Notwithstanding the foregoing provisions of this Section 2.03,
unless otherwise required by law, if the stockholder (or a qualified representative of the stockholder) does not appear at the annual or special meeting of stockholders of the Corporation to present a nomination or business, such nomination shall be
disregarded and such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 2.03, to be considered a qualified representative of
the stockholder, a person must be a duly authorized officer, manager or partner of such stockholder or must be authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such
stockholder as proxy at the meeting of stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders. Unless and to the extent
determined by the Board of Directors or the chairman of the meeting, meeting of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.
5
(2) Whenever used in these Bylaws, public announcement shall mean disclosure
(a) in a press release released by the Corporation, provided such press release is released by the Corporation following its customary procedures, is reported by the Dow Jones News Service, Associated Press or comparable national news service,
or is generally available on internet news sites, or (b) in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act and the rules and regulations
promulgated thereunder.
(3) Notwithstanding the foregoing provisions of this Section 2.03, a stockholder shall also comply with all
applicable requirements of the Exchange Act and the rules and regulations promulgated thereunder with respect to the matters set forth in this Section 2.03; provided, however, that, to the fullest extent permitted by law, any references
in these Bylaws to the Exchange Act or the rules and regulations promulgated thereunder are not intended to and shall not limit any requirements applicable to nominations or proposals as to any other business to be considered pursuant to these
Bylaws (including paragraphs (A)(1)(d) and (B) hereof), and compliance with paragraphs (A)(1)(d) and (B) of this Section 2.03 of these Bylaws shall be the exclusive means for a stockholder to make nominations or submit other business.
Nothing in these Bylaws shall be deemed to affect any rights of the holders of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation to elect directors under specified circumstances.
(4) Notwithstanding anything to the contrary contained in this Section 2.03, for as long as the Stockholders Agreement remains in effect
with respect to Blackstone, Blackstone (to the extent then subject to the Stockholders Agreement) shall not be subject to the notice procedures set forth in paragraphs (A)(2), (A)(3) or (B) of this Section 2.03 with respect to any annual
or special meeting of stockholders.
SECTION 2.04 Notice of Meetings. Whenever stockholders are required or permitted to take any
action at a meeting, a timely notice in writing or by electronic transmission, in the manner provided in Section 232 of the DGCL, of the meeting, which shall state the place, if any, date and time of the meeting, the means of remote
communications, if any, by which stockholders and proxyholders may be deemed to be present in person and vote at such meeting, the record date for determining the stockholders entitled to vote at the meeting, if such date is different from the
record date for determining stockholders entitled to notice of the meeting, and, in the case of a special meeting, the purposes for which the meeting is called, shall be mailed to or transmitted electronically by the Secretary of the Corporation to
each stockholder of record entitled to vote thereat as of the record date for determining the stockholders entitled to notice of the meeting. Unless otherwise provided by law, the Amended and Restated Certificate of Incorporation or these Bylaws,
the notice of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting as of the record date for determining the stockholders
entitled to notice of the meeting.
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SECTION 2.05 Quorum. Unless otherwise required by law, the Amended and Restated
Certificate of Incorporation or the rules of any stock exchange upon which the Corporations securities are listed, the holders of record of a majority of the voting power of the issued and outstanding shares of capital stock of the Corporation
entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum for the transaction of business at all meetings of stockholders. Notwithstanding the foregoing, where a separate vote by a class or series or classes
or series is required, a majority in voting power of the outstanding shares of such class or series or classes or series, present in person or represented by proxy, shall constitute a quorum entitled to take action with respect to the vote on that
matter. Once a quorum is present to organize a meeting, it shall not be broken by the subsequent withdrawal of any stockholders.
SECTION
2.06 Voting. Except as otherwise provided by or pursuant to the provisions of the Amended and Restated Certificate of Incorporation, each stockholder entitled to vote at any meeting of stockholders shall be entitled to one vote for each share
of stock held by such stockholder which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting of stockholders or to express consent to corporate action in writing without a meeting may authorize another person
or persons to act for such stockholder by proxy in any manner provided by applicable law, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if
it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person
or by delivering to the Secretary of the Corporation a revocation of the proxy or a new proxy bearing a later date. Unless required by the Amended and Restated Certificate of Incorporation or applicable law, or determined by the chairman of the
meeting to be advisable, the vote on any question need not be by ballot. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by such stockholders proxy, if there be such proxy. When a quorum is present or represented
at any meeting, the vote of the holders of a majority of the voting power of the shares of stock present in person or represented by proxy and entitled to vote on the subject matter shall decide any question brought before such meeting, unless the
question is one upon which, by express provision of applicable law, of the rules or regulations of any stock exchange applicable to the Corporation, of any regulation applicable to the Corporation or its securities, of the Amended and Restated
Certificate of Incorporation or of these Bylaws, a different vote is required, in which case such express provision shall govern and control the decision of such question. Notwithstanding the foregoing sentence and subject to the Amended and
Restated Certificate of Incorporation, all elections of directors shall be determined by a plurality of the votes cast in respect of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of
directors.
SECTION 2.07 Chairman of Meetings. The Chairman of the Board of Directors, if one is elected, or, in his or her absence
or disability, the Chief Executive Officer of the Corporation, or in the absence of the Chairman of the Board of Directors and the Chief Executive Officer, a person designated by the Board of Directors shall be the chairman of the meeting and, as
such, preside at all meetings of the stockholders.
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SECTION 2.08 Secretary of Meetings. The Secretary of the Corporation shall act as
secretary at all meetings of the stockholders. In the absence or disability of the secretary, the Chairman of the Board of Directors or the Chief Executive Officer shall appoint a person to act as Secretary at such meetings.
SECTION 2.09 Consent of Stockholders in Lieu of Meeting. Any action required or permitted to be taken at any annual or special meeting
of stockholders of the Corporation may be taken without a meeting, without prior notice and without a vote only to the extent permitted by and in the manner provided in the Amended and Restated Certificate of Incorporation and in accordance with
applicable law.
SECTION 2.10 Adjournment. At any meeting of stockholders of the Corporation, if less than a quorum be present, the
chairman of the meeting or stockholders holding a majority in voting power of the shares of stock of the Corporation, present in person or by proxy and entitled to vote thereat, shall have the power to adjourn the meeting from time to time without
notice other than announcement at the meeting until a quorum shall be present. Any business may be transacted at the adjourned meeting that might have been transacted at the meeting originally noticed. If the adjournment is for more than thirty
(30) days, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. If after the adjournment a new record date for determination of stockholders entitled to vote is fixed for the adjourned
meeting, the Board of Directors shall fix as the record date for determining stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote at the adjourned
meeting, and shall give notice of the adjourned meeting to each stockholder of record entitled to vote at such adjourned meeting as of the record date so fixed for notice of such adjourned meeting.
SECTION 2.11 Remote Communication. If authorized by the Board of Directors in its sole discretion, and subject to such guidelines and
procedures as the Board of Directors may adopt, stockholders and proxy holders not physically present at a meeting of stockholders may, by means of remote communication:
(a) participate in a meeting of stockholders; and
(b) be deemed present in person and vote at a meeting of stockholders whether such meeting is to be held at a designated place or solely by
means of remote communication, provided, that
(i) the Corporation shall implement reasonable measures to verify that each person
deemed present and permitted to vote at the meeting by means of remote communication is a stockholder or proxyholder;
(ii) the
Corporation shall implement reasonable measures to provide such stockholders and proxyholders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the stockholders, including an opportunity to read or hear the
proceedings of the meeting substantially concurrently with such proceedings; and
(iii) if any stockholder or proxyholder votes or takes
other action at the meeting by means of remote communication, a record of such vote or other action shall be maintained by the Corporation.
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SECTION 2.12 Inspectors of Election. The Corporation may, and shall if required by law, in
advance of any meeting of stockholders, appoint one or more inspectors of election, who may be employees of the Corporation, to act at the meeting or any adjournment thereof and to make a written report thereof. The Corporation may designate one or
more persons as alternate inspectors to replace any inspector who fails to act. In the event that no inspector so appointed or designated is able to act at a meeting of stockholders, the chairman of the meeting shall appoint one or more inspectors
to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of inspector with strict impartiality and according to the best of his or her ability. The
inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the Corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the
corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by
the inspectors, and (v) certify their determination of the number of shares of capital stock of the Corporation represented at the meeting and such inspectors count of all votes and ballots. Such certification and report shall specify
such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the Corporation, the inspectors may consider such information as is permitted by applicable law.
No person who is a candidate for an office at an election may serve as an inspector at such election.
ARTICLE III
Board of Directors
SECTION 3.01 Powers. Except as otherwise provided by the Amended and Restated Certificate of Incorporation or the DGCL, the business
and affairs of the Corporation shall be managed by or under the direction of its Board of Directors. The Board of Directors may exercise all such authority and powers of the Corporation and do all such lawful acts and things as are not by the DGCL
or the Amended and Restated Certificate of Incorporation directed or required to be exercised or done by the stockholders.
SECTION 3.02
Number and Term; Chairman. Subject to the Amended and Restated Certificate of Incorporation, the number of directors shall be fixed exclusively by resolution of the Board of Directors. Directors shall be elected by the stockholders at their
annual meeting, and the term of each director so elected shall be as set forth in the Amended and Restated Certificate of Incorporation. Directors need not be stockholders. The Board of Directors shall elect a Chairman of the Board, who shall have
the powers and perform such duties as provided in these Bylaws and as the Board of Directors may from time to time prescribe. The Chairman of the Board shall preside at all meetings of the Board of Directors at which he or she is present. If the
Chairman of the Board is not present at a meeting of the Board
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of Directors, the Chief Executive Officer (if the Chief Executive Officer is a director and is not also the Chairman of the Board) shall preside at such meeting, and, if the Chief Executive
Officer is not present at such meeting or is not a director, a majority of the directors present at such meeting shall elect one (1) of their members to preside.
SECTION 3.03 Resignations. Any director may resign at any time upon notice given in writing or by electronic transmission to the Board
of Directors, the Chairman of the Board of Directors, the Chief Executive Officer or the Secretary of the Corporation. The resignation shall take effect at the time specified therein, and if no time is specified, at the time of its receipt. The
acceptance of a resignation shall not be necessary to make it effective unless otherwise expressly provided in the resignation.
SECTION
3.04 Removal. Directors of the Corporation may be removed in the manner provided in the Amended and Restated Certificate of Incorporation and applicable law.
SECTION 3.05 Vacancies and Newly Created Directorships. Except as otherwise provided by law and subject to the Stockholders Agreement,
vacancies occurring in any directorship (whether by death, resignation, retirement, disqualification, removal or other cause) and newly created directorships resulting from any increase in the number of directors shall be filled in accordance with
the Amended and Restated Certificate of Incorporation. Any director elected to fill a vacancy or newly created directorship shall hold office until the next election of the class for which such director shall have been chosen and until his or her
successor shall be elected and qualified, or until his or her earlier death, resignation, retirement, disqualification or removal.
SECTION 3.06 Meetings. Regular meetings of the Board of Directors may be held at such places and times as shall be determined from time
to time by the Board of Directors. Special meetings of the Board of Directors may be called by the Chief Executive Officer of the Corporation or the Chairman of the Board of Directors, and shall be called by the Chief Executive Officer or the
Secretary of the Corporation if directed by the Board of Directors and shall be at such places and times as they or he or she shall fix. Notice need not be given of regular meetings of the Board of Directors. At least twenty four (24) hours
before each special meeting of the Board of Directors, either written notice, notice by electronic transmission or oral notice (either in person or by telephone) notice of the time, date and place of the meeting shall be given to each director.
Unless otherwise indicated in the notice thereof, any and all business may be transacted at a special meeting.
SECTION 3.07 Quorum,
Voting and Adjournment. A majority of the total number of directors shall constitute a quorum for the transaction of business. Except as otherwise provided by law, the Amended and Restated Certificate of Incorporation or these Bylaws, the act of
a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. In the absence of a quorum, a majority of the directors present thereat may adjourn such meeting to another time and place.
Notice of such adjourned meeting need not be given if the time and place of such adjourned meeting are announced at the meeting so adjourned.
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SECTION 3.08 Committees; Committee Rules. The Board of Directors may designate one or more
committees, including but not limited to an Audit Committee, a Compensation Committee and a Nominating and Corporate Governance Committee, each such committee to consist of one or more of the directors of the Corporation. The Board of Directors may
designate one or more directors as alternate members of any committee to replace any absent or disqualified member at any meeting of the committee. Any such committee, to the extent provided in the resolution of the Board of Directors establishing
such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may
require it; but no such committee shall have the power or authority in reference to the following matters: (a) approving or adopting, or recommending to the stockholders, any action or matter (other than the election or removal of directors)
expressly required by the DGCL to be submitted to stockholders for approval or (b) adopting, amending or repealing any Bylaw of the Corporation. All committees of the Board of Directors shall keep minutes of their meetings and shall report
their proceedings to the Board of Directors when requested or required by the Board of Directors. Each committee of the Board of Directors may fix its own rules of procedure and shall hold its meetings as provided by such rules, except as may
otherwise be provided by a resolution of the Board of Directors designating such committee. Unless otherwise provided in such a resolution, the presence of at least a majority of the members of the committee shall be necessary to constitute a quorum
unless the committee shall consist of one or two members, in which event one member shall constitute a quorum; and all matters shall be determined by a majority vote of the members present at a meeting of the committee at which a quorum is present.
Unless otherwise provided in such a resolution, in the event that a member and that members alternate, if alternates are designated by the Board of Directors, of such committee is or are absent or disqualified, the member or members thereof
present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of any such absent or disqualified
member.
SECTION 3.09 Action Without a Meeting. Unless otherwise restricted by the Amended and Restated Certificate of
Incorporation, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting if all members of the Board of Directors or any committee thereof, as the case may be,
consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed in the minutes of proceedings of the Board of Directors. Such filing shall be in paper form if the minutes
are maintained in paper form or shall be in electronic form if the minutes are maintained in electronic form.
SECTION 3.10 Remote
Meeting. Unless otherwise restricted by the Amended and Restated Certificate of Incorporation, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting by means of conference
telephone or other communications equipment in which all persons participating in the meeting can hear each other. Participation in a meeting by means of conference telephone or other communications equipment shall constitute presence in person at
such meeting.
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SECTION 3.11 Compensation. The Board of Directors shall have the authority to fix the
compensation, including fees and reimbursement of expenses, of directors for services to the Corporation in any capacity.
SECTION 3.12
Reliance on Books and Records. A member of the Board of Directors, or a member of any committee designated by the Board of Directors shall, in the performance of such persons duties, be fully protected in relying in good faith upon
records of the Corporation and upon such information, opinions, reports or statements presented to the Corporation by any of the Corporations officers or employees, or committees of the Board of Directors, or by any other person as to matters
the member reasonably believes are within such other persons professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation.
ARTICLE IV
Officers
SECTION 4.01 Number. The officers of the Corporation shall include a Chief Executive Officer, a President and a Secretary,
each of whom shall be elected by the Board of Directors and who shall hold office for such terms as shall be determined by the Board of Directors and until their successors are elected and qualify or until their earlier resignation or removal. In
addition, the Board of Directors may elect one or more Vice Presidents, including one or more Executive Vice Presidents, Senior Vice Presidents, a Treasurer and one or more Assistant Treasurers and one or more Assistant Secretaries, who shall hold
their office for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors. Any number of offices may be held by the same person.
SECTION 4.02 Other Officers and Agents. The Board of Directors may appoint such other officers and agents as it deems advisable, who
shall hold their office for such terms and shall exercise and perform such powers and duties as shall be determined from time to time by the Board of Directors. The Board of Directors may appoint one or more officers called a Vice Chairman, each of
whom does not need to be a member of the Board of Directors.
SECTION 4.03 Chief Executive Officer/President. The Chief Executive
Officer, who shall also be the President, subject to the determination of the Board of Directors, shall have general executive charge, management, and control of the properties and operations of the Corporation in the ordinary course of its
business, with all such powers with respect to such properties and operations as may be reasonably incident to such responsibilities. If the Board of Directors has not elected a Chairman of the Board or in the absence or inability to act as the
Chairman of the Board, the Chief Executive Officer shall exercise all of the powers and discharge all of the duties of the Chairman of the Board, but only if the Chief Executive Officer is a director of the Corporation.
SECTION 4.04 Vice Presidents. Each Vice President, if any are elected, of whom one or more may be designated an Executive Vice
President or Senior Vice President, shall have such powers and shall perform such duties as shall be assigned to him or her by the Chief Executive Officer or the Board of Directors.
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SECTION 4.05 Treasurer. The Treasurer shall have custody of the corporate funds,
securities, evidences of indebtedness and other valuables of the Corporation and shall keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation. The Treasurer shall deposit all moneys and other valuables in
the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors or its designees selected for such purposes. The Treasurer shall disburse the funds of the Corporation, taking proper vouchers
therefor. The Treasurer shall render to the Chief Executive Officer and the Board of Directors, upon their request, a report of the financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall give the
Corporation a bond for the faithful discharge of his or her duties in such amount and with such surety as the Board of Directors shall prescribe.
In addition, the Treasurer shall have such further powers and perform such other duties incident to the office of Treasurer as from time to
time are assigned to him or her by the Chief Executive Officer or the Board of Directors.
SECTION 4.06 Secretary. The Secretary
shall: (a) cause minutes of all meetings of the stockholders and directors to be recorded and kept properly; (b) cause all notices required by these Bylaws or otherwise to be given properly; (c) see that the minute books, stock books,
and other nonfinancial books, records and papers of the Corporation are kept properly; and (d) cause all reports, statements, returns, certificates and other documents to be prepared and filed when and as required. The Secretary shall have such
further powers and perform such other duties as prescribed from time to time by the Chief Executive Officer or the Board of Directors.
SECTION 4.07 Assistant Treasurers and Assistant Secretaries. Each Assistant Treasurer and each Assistant Secretary, if any are elected,
shall be vested with all the powers and shall perform all the duties of the Treasurer and Secretary, respectively, in the absence or disability of such officer, unless or until the Chief Executive Officer or the Board of Directors shall otherwise
determine. In addition, Assistant Treasurers and Assistant Secretaries shall have such powers and shall perform such duties as shall be assigned to them by the Chief Executive Officer or the Board of Directors.
SECTION 4.08 Corporate Funds and Checks. The funds of the Corporation shall be kept in such depositories as shall from time to time be
prescribed by the Board of Directors or its designees selected for such purposes. All checks or other orders for the payment of money shall be signed by the Chief Executive Officer, a Vice President, the Treasurer or the Secretary or such other
person or agent as may from time to time be authorized and with such countersignature, if any, as may be required by the Board of Directors.
SECTION 4.09 Contracts and Other Documents. The Chief Executive Officer and the Secretary, or such other officer or officers as may
from time to time be authorized by the Board of Directors or any other committee given specific authority in the premises by the Board of Directors during the intervals between the meetings of the Board of Directors, shall have power to sign and
execute on behalf of the Corporation deeds, conveyances and contracts, and any and all other documents requiring execution by the Corporation.
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SECTION 4.10 Ownership of Stock of Another Corporation. Unless otherwise directed by the
Board of Directors, the Chief Executive Officer, a Vice President, the Treasurer or the Secretary, or such other officer or agent as shall be authorized by the Board of Directors, shall have the power and authority, on behalf of the Corporation, to
attend and to vote at any meeting of securityholders of any entity in which the Corporation holds securities or equity interests and may exercise, on behalf of the Corporation, any and all of the rights and powers incident to the ownership of such
securities or equity interests at any such meeting, including the authority to execute and deliver proxies and consents on behalf of the Corporation.
SECTION 4.11 Delegation of Duties. In the absence, disability or refusal of any officer to exercise and perform his or her duties,
the Board of Directors may delegate to another officer such powers or duties.
SECTION 4.12 Resignation and Removal. Any
officer of the Corporation may be removed from office for or without cause at any time by the Board of Directors. Any officer may resign at any time in the same manner prescribed under Section 3.03 of these Bylaws.
SECTION 4.13 Vacancies. The Board of Directors shall have the power to fill vacancies occurring in any office.
ARTICLE V
Stock
SECTION 5.01 Shares With Certificates. The shares of stock of the Corporation shall be represented by certificates, provided
that the Board of Directors may provide by resolution or resolutions that some or all of any or all classes or series of the Corporations stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a
certificate until such certificate is surrendered to the Corporation. Every holder of stock in the Corporation represented by certificates shall be entitled to have a certificate signed by, or in the name of the Corporation by, the Chairman of the
Board of Directors or the Vice Chairman of the Board of Directors, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Corporation, certifying the number and class of
shares of stock of the Corporation owned by such holder. Any or all of the signatures on the certificate may be a facsimile. The Board of Directors shall have the power to appoint one or more transfer agents and/or registrars for the transfer or
registration of certificates of stock of any class, and may require stock certificates to be countersigned or registered by one or more of such transfer agents and/or registrars.
SECTION 5.02 Shares Without Certificates. If the Board of Directors chooses to issue shares of stock without certificates, the
Corporation, if required by the DGCL, shall, within a reasonable time after the issue or transfer of shares without certificates, send the stockholder a written statement of the information required by the DGCL. The Corporation may
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adopt a system of issuance, recordation and transfer of its shares of stock by electronic or other means not involving the issuance of certificates, provided the use of such system by the
Corporation is permitted in accordance with applicable law.
SECTION 5.03 Transfer of Shares. Shares of stock of the Corporation
shall be transferable upon its books by the holders thereof, in person or by their duly authorized attorneys or legal representatives, upon surrender to the Corporation by delivery thereof (to the extent evidenced by a physical stock certificate) to
the person in charge of the stock and transfer books and ledgers. Certificates representing such shares, if any, shall be cancelled and new certificates, if the shares are to be certificated, shall thereupon be issued. Shares of capital stock of the
Corporation that are not represented by a certificate shall be transferred in accordance with applicable law. A record shall be made of each transfer. Whenever any transfer of shares shall be made for collateral security, and not absolutely, it
shall be so expressed in the entry of the transfer if, when the certificates are presented, both the transferor and transferee request the Corporation to do so. The Board of Directors shall have power and authority to make such rules and regulations
as it may deem necessary or proper concerning the issue, transfer and registration of certificates for shares of stock of the Corporation.
SECTION 5.04 Lost, Stolen, Destroyed or Mutilated Certificates. A new certificate of stock or uncertificated shares may be issued in
the place of any certificate previously issued by the Corporation alleged to have been lost, stolen or destroyed, and the Corporation may, in its discretion, require the owner of such lost, stolen or destroyed certificate, or his or her legal
representative, to give the Corporation a bond, in such sum as the Corporation may direct, in order to indemnify the Corporation against any claims that may be made against it in connection therewith. A new certificate or uncertificated shares of
stock may be issued in the place of any certificate previously issued by the Corporation that has become mutilated upon the surrender by such owner of such mutilated certificate and, if required by the Corporation, the posting of a bond by such
owner in an amount sufficient to indemnify the Corporation against any claim that may be made against it in connection therewith.
SECTION
5.05 List of Stockholders Entitled To Vote. The officer who has charge of the stock ledger shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the
meeting (provided, however, if the record date for determining the stockholders entitled to vote is less than ten (10) days before the date of the meeting, the list shall reflect the stockholders entitled to vote as of the tenth day
before the meeting date), arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting at least ten (10) days prior to the meeting (a) on a reasonably accessible electronic network; provided that the information required to gain access to such list is provided with the notice of meeting or
(b) during ordinary business hours at the principal place of business of the Corporation. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that
such information is available only to stockholders of the Corporation. If the meeting is to be held at a place, then a list of stockholders entitled to vote at the meeting shall be produced and kept at the time and place of the meeting during the
whole time thereof and may be examined by any stockholder
15
who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting
on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting. Except as otherwise provided by law, the stock ledger shall be the only evidence as to who are the
stockholders entitled to examine the list of stockholders required by this Section 5.05 or to vote in person or by proxy at any meeting of stockholders.
SECTION 5.06 Fixing Date for Determination of Stockholders of Record.
(A) In order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof,
the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall, unless otherwise required by law, not be
more than sixty (60) nor less than ten (10) days before the date of such meeting. If the Board of Directors so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless
the Board of Directors determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the Board of Directors, the record date
for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day
next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier
date as that fixed for determination of stockholders entitled to vote in accordance herewith at the adjourned meeting.
(B) In order that
the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the
purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall not be more than sixty
(60) days prior to such action. If no such record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating
thereto.
(C) Unless otherwise restricted by the Amended and Restated Certificate of Incorporation, in order that the Corporation may
determine the stockholders entitled to express consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is
adopted by the Board of Directors, and which record date shall not be more than ten (10) days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. If no record date for determining stockholders
entitled to express consent to corporate
16
action in writing without a meeting is fixed by the Board of Directors, (i) when no prior action of the Board of Directors is required by law, the record date for such purpose shall be the
first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation in accordance with applicable law, and (ii) if prior action by the Board of Directors is required by law, the
record date for such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.
SECTION 5.07 Registered Stockholders. Prior to the surrender to the Corporation of the certificate or certificates for a share or
shares of stock or notification to the Corporation of the transfer of uncertificated shares with a request to record the transfer of such share or shares, the Corporation may treat the registered owner of such share or shares as the person entitled
to receive dividends, to vote, to receive notifications and otherwise to exercise all the rights and powers of an owner of such share or shares. To the fullest extent permitted by law, the Corporation shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof.
ARTICLE VI
Notice and
Waiver of Notice
SECTION 6.01 Notice. If mailed, notice to stockholders shall be deemed given when deposited in the United
States mail, postage prepaid, directed to the stockholder at such stockholders address as it appears on the records of the Corporation. Without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice
to stockholders may be given by electronic transmission in the manner provided in Section 232 of the DGCL.
SECTION 6.02 Waiver of
Notice. A written waiver of any notice, signed by a stockholder or director, or waiver by electronic transmission by such person, whether given before or after the time of the event for which notice is to be given, shall be deemed equivalent to
the notice required to be given to such person. Neither the business nor the purpose of any meeting need be specified in such a waiver. Attendance at any meeting (in person or by remote communication) shall constitute waiver of notice except
attendance for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened.
ARTICLE VII
Indemnification
SECTION
7.01 Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a
proceeding), by reason of the fact that he or she is or was a director or an officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a
17
director, officer, employee, agent or trustee of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan
(hereinafter an indemnitee), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee, agent or trustee or in any other capacity while serving as a director, officer,
employee, agent or trustee, shall be indemnified and held harmless by the Corporation to the fullest extent permitted by Delaware law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that
such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys fees, judgments, fines,
ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such indemnitee in connection therewith; provided, however, that, except as provided in Section 7.03 with respect to proceedings to enforce
rights to indemnification or advancement of expenses or with respect to any compulsory counterclaim brought by such indemnitee, the Corporation shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such
indemnitee only if such proceeding (or part thereof) was authorized by the Board of Directors.
SECTION 7.02 Right to Advancement of
Expenses. In addition to the right to indemnification conferred in Section 7.01, an indemnitee shall also have the right to be paid by the Corporation the expenses (including attorneys fees) incurred in appearing at, participating in
or defending any such proceeding in advance of its final disposition or in connection with a proceeding brought to establish or enforce a right to indemnification or advancement of expenses under this Article VII (which shall be governed by
Section 7.03 (hereinafter an advancement of expenses); provided, however, that, if the DGCL requires or in the case of an advance made in a proceeding brought to establish or enforce a right to indemnification or advancement,
an advancement of expenses incurred by an indemnitee in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit
plan) shall be made solely upon delivery to the Corporation of an undertaking (hereinafter an undertaking), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final
judicial decision from which there is no further right to appeal (hereinafter a final adjudication) that such indemnitee is not entitled to be indemnified or entitled to advancement of expenses under Sections 7.01 and 7.02 or
otherwise.
SECTION 7.03 Right of Indemnitee to Bring Suit. If a claim under Section 7.01 or 7.02 is not paid in full by the
Corporation within (i) 60 days after a written claim for indemnification has been received by the Corporation or (ii) 20 days after a claim for an advancement of expenses has been received by the Corporation, the indemnitee may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of the claim or to obtain advancement of expenses, as applicable. To the fullest extent permitted by law, if successful in whole or in part in any such suit, or in a suit
brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the indemnitee shall be entitled to be paid also the expense of prosecuting or defending such suit. In (i) any suit brought by the
indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right to an advancement of expenses) it shall be a defense that, and (ii) any suit brought by the Corporation to recover an
advancement of expenses pursuant to the
18
terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final adjudication that, the indemnitee has not met any applicable standard for indemnification set
forth in the DGCL. Neither the failure of the Corporation (including its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) to have made a determination prior to the
commencement of such suit that indemnification of the indemnitee is proper in the circumstances because the indemnitee has met the applicable standard of conduct set forth in the DGCL, nor an actual determination by the Corporation (including its
directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) that the indemnitee has not met such applicable standard of conduct, shall create a presumption that the indemnitee has not
met the applicable standard of conduct or, in the case of such a suit brought by the indemnitee, be a defense to such suit. In any suit brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or
brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Article VII or
otherwise shall be on the Corporation.
SECTION 7.04 Indemnification Not Exclusive.
(A) The provision of indemnification to or the advancement of expenses and costs to any indemnitee under this Article VII, or the entitlement
of any indemnitee to indemnification or advancement of expenses and costs under this Article VII, shall not limit or restrict in any way the power of the Corporation to indemnify or advance expenses and costs to such indemnitee in any other way
permitted by law or be deemed exclusive of, or invalidate, any right to which any indemnitee seeking indemnification or advancement of expenses and costs may be entitled under any law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in such indemnitees capacity as an officer, director, employee or agent of the Corporation and as to action in any other capacity.
(B) Given that certain jointly indemnifiable claims (as defined below) may arise due to the service of the indemnitee as a director and/or
officer of the Corporation at the request of the indemnitee-related entities (as defined below), the Corporation shall be fully and primarily responsible for the payment to the indemnitee in respect of indemnification or advancement of expenses in
connection with any such jointly indemnifiable claims, pursuant to and in accordance with the terms of this Article VII, irrespective of any right of recovery the indemnitee may have from the indemnitee-related entities. Under no circumstance shall
the Corporation be entitled to any right of subrogation or contribution by the indemnitee-related entities and no right of advancement or recovery the indemnitee may have from the indemnitee-related entities shall reduce or otherwise alter the
rights of the indemnitee or the obligations of the Corporation hereunder. In the event that any of the indemnitee-related entities shall make any payment to the indemnitee in respect of indemnification or advancement of expenses with respect to any
jointly indemnifiable claim, the indemnitee-related entity making such payment shall be subrogated to the extent of such payment to all of the rights of recovery of the indemnitee against the Corporation, and the indemnitee shall execute all papers
reasonably required and shall do all things that may be reasonably necessary to secure such rights, including the execution of such documents as may be necessary to enable the indemnitee-related entities
19
effectively to bring suit to enforce such rights. Each of the indemnitee-related entities shall be third-party beneficiaries with respect to this Section 7.04(B) of Article VII, entitled to
enforce this Section 7.04(B) of Article VII.
For purposes of this Section 7.04(B) of Article VII, the following terms shall
have the following meanings:
(1) The term indemnitee-related entities means any corporation, limited liability
company, partnership, joint venture, trust, employee benefit plan or other enterprise (other than the Corporation or any other corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise for
which the indemnitee has agreed, on behalf of the Corporation or at the Corporations request, to serve as a director, officer, employee or agent and which service is covered by the indemnity described herein) from whom an indemnitee may be
entitled to indemnification or advancement of expenses with respect to which, in whole or in part, the Corporation may also have an indemnification or advancement obligation.
(2) The term jointly indemnifiable claims shall be broadly construed and shall include, without limitation, any action,
suit or proceeding for which the indemnitee shall be entitled to indemnification or advancement of expenses from both the indemnitee-related entities and the Corporation pursuant to Delaware law, any agreement or certificate of incorporation,
bylaws, partnership agreement, operating agreement, certificate of formation, certificate of limited partnership or comparable organizational documents of the Corporation or the indemnitee-related entities, as applicable.
SECTION 7.05 Nature of Rights. The rights conferred upon indemnitees in this Article VII shall be contract rights and such rights shall
continue as to an indemnitee who has ceased to be a director or officer and shall inure to the benefit of the indemnitees heirs, executors and administrators. Any amendment, alteration or repeal of this Article VII that adversely affects any
right of an indemnitee or its successors shall be prospective only and shall not limit, eliminate, or impair any such right with respect to any proceeding involving any occurrence or alleged occurrence of any action or omission to act that took
place prior to such amendment or repeal.
SECTION 7.06 Insurance. The Corporation may maintain insurance, at its expense, to
protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power
to indemnify such person against such expense, liability or loss under the DGCL.
SECTION 7.07 Indemnification of Employees and Agents
of the Corporation. The Corporation may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification and to the advancement of expenses to any employee or agent of the Corporation to the fullest extent
of the provisions of this Article VII with respect to the indemnification and advancement of expenses of directors and officers of the Corporation.
20
ARTICLE VIII
Miscellaneous
SECTION
8.01 Electronic Transmission. For purposes of these Bylaws, electronic transmission means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved,
and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.
SECTION 8.02 Corporate Seal. The Board of Directors may provide a suitable seal, containing the name of the Corporation, which seal
shall be in the charge of the Secretary. If and when so directed by the Board of Directors or a committee thereof, duplicates of the seal may be kept and used by the Treasurer or by an Assistant Secretary or Assistant Treasurer.
SECTION 8.03 Fiscal Year. The fiscal year of the Corporation shall end on June 30, or such other day as the Board of Directors may
designate.
SECTION 8.04 Section Headings. Section headings in these Bylaws are for convenience of reference only and shall not be
given any substantive effect in limiting or otherwise construing any provision herein.
SECTION 8.05 Inconsistent Provisions. In
the event that any provision of these Bylaws is or becomes inconsistent with any provision of the Amended and Restated Certificate of Incorporation, the DGCL or any other applicable law, such provision of these Bylaws shall not be given any effect
to the extent of such inconsistency but shall otherwise be given full force and effect.
ARTICLE IX
Amendments
SECTION 9.01
Amendments. The Board of Directors is authorized to make, repeal, alter, amend and rescind, in whole or in part, these Bylaws without the assent or vote of the stockholders in any manner not inconsistent with the laws of the State of Delaware
or the Amended and Restated Certificate of Incorporation. Notwithstanding any other provisions of these Bylaws or any provision of law which might otherwise permit a lesser vote of the stockholders, at any time when Blackstone beneficially owns, in
the aggregate, of less than 40% in voting power of the stock of the Corporation entitled to vote generally in the election of directors, in addition to any vote of the holders of any class or series of capital stock of the Corporation required by
the Amended and Restated Certificate of Incorporation (including any certificate of designation relating to any series of Preferred Stock (as defined in the Amended and Restated Certificate of Incorporation), these Bylaws or applicable law, the
affirmative vote of the holders of at least 66 2/3% in voting power of all the then-outstanding shares of stock of the Corporation entitled to vote thereon, voting together as a single class, shall be required in order for the stockholders of
the Corporation to alter, amend, repeal or rescind, in whole or in part, any provision of these Bylaws (including, without limitation, this Section 9.01) or to adopt any provision inconsistent herewith.
[Remainder of Page Intentionally Left Blank]
21
Exhibit 10.1
STOCKHOLDERS AGREEMENT
DATED AS OF AUGUST 5, 2014
AMONG
CATALENT, INC.
AND
BLACKSTONE HEALTHCARE PARTNERS L.L.C.
Table of Contents
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Page |
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ARTICLE I. INTRODUCTORY MATTERS |
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1 |
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1.1 |
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Defined Terms |
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1.2 |
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Construction |
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3 |
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ARTICLE II. CORPORATE GOVERNANCE MATTERS |
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2.1 |
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Election of Directors |
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3 |
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ARTICLE III. INFORMATION |
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5 |
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3.1 |
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Books and Records; Access |
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5 |
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3.2 |
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Sharing of Information |
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6 |
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ARTICLE IV. GENERAL PROVISIONS |
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4.1 |
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Termination |
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4.2 |
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Notices |
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4.3 |
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Amendment; Waiver |
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4.4 |
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Further Assurances |
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4.5 |
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Assignment |
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4.6 |
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Third Parties |
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4.7 |
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Governing Law |
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4.8 |
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Jurisdiction; Waiver of Jury Trial |
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4.9 |
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Specific Performance |
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4.10 |
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Entire Agreement |
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4.11 |
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Severability |
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4.12 |
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Table of Contents, Headings and Captions |
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4.13 |
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Grant of Consent |
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4.14 |
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Counterparts |
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4.15 |
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Effectiveness |
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4.16 |
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No Recourse |
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i
STOCKHOLDERS AGREEMENT
This Stockholders Agreement is entered into as of August 5, 2014 by and among Catalent, Inc., a Delaware corporation (the
Company), and each of the other parties identified on the signature pages hereto (the Investor Parties).
BACKGROUND:
WHEREAS, the
Company is currently contemplating an underwritten initial public offering (IPO) of shares of its Common Stock (as defined below); and
WHEREAS, in connection with, and effective upon, the date of completion of the IPO (the Closing Date), the Company and the
Investor Parties wish to set forth certain understandings between such parties, including with respect to certain governance matters.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I.
INTRODUCTORY MATTERS
1.1 Defined Terms. In addition to the terms defined elsewhere herein, the following terms have the following meanings when used
herein with initial capital letters:
Affiliate has the meaning set forth in Rule 12b-2 promulgated under the Exchange
Act, as in effect on the date hereof.
Agreement means this Stockholders Agreement, as the same may be amended,
supplemented, restated or otherwise modified from time to time in accordance with the terms hereof.
beneficially own
has the meaning set forth in Rule 13d-3 promulgated under the Exchange Act.
Blackstone Designee has the meaning set
forth in Section 2.1(b).
Blackstone Group means the entities listed on the signature pages hereto under the
heading Blackstone Group.
Blackstone Entities means the entities comprising the Blackstone Group from time
to time, their Affiliates and their respective successors and Permitted Assigns.
Board means the board of directors of
the Company.
Business Day means a day other than a Saturday, Sunday, federal or New York State holiday or other day on
which commercial banks in New York City are authorized or required by law to close.
Closing Date has the meaning set
forth in the Background.
Company has the meaning set forth in the Preamble.
Common Stock means the shares of common stock, par value $0.01 per share, of the Company, and any other capital stock of
the Company into which such stock is reclassified or reconstituted and any other common stock of the Company.
Control
(including its correlative meanings, Controlled by and under common Control with) means possession, directly or indirectly, of the power to direct or cause the direction of management or policies (whether
through ownership of securities or partnership or other ownership interests, by contract or otherwise) of a Person.
Director means any member of the Board.
Exchange Act means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder,
as the same may be amended from time to time.
Governmental Authority means any nation or government, any state or
other political subdivision thereof, and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
Investor Parties has the meaning set forth in the Preamble.
IPO has the meaning set forth in the Background.
Law means any statute, law, regulation, ordinance, rule, injunction, order, decree, governmental approval, directive,
requirement, or other governmental restriction or any similar form of decision of, or determination by, or any interpretation or administration of any of the foregoing by, any Governmental Authority.
Permitted Assigns means with respect to a Blackstone Entity, a Transferee of shares of Common Stock that agrees to become
party to, and to be bound to the same extent as its Transferor by the terms of, this Agreement.
Person means an
individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or other form of business organization, whether or not regarded as a legal entity
under applicable Law, or any Governmental Authority or any department, agency or political subdivision thereof.
Subsidiary means, with respect to any Person, any corporation, limited liability company, partnership, association or other
business entity of which: (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, representatives or trustees thereof is
at the time owned or Controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof; or (ii) if a limited liability company, partnership, association or other business entity,
a majority of the total voting power of stock (or equivalent
2
ownership interest) of the limited liability company, partnership, association or other business entity is at the time owned or Controlled, directly or indirectly, by any Person or one or more
Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity if such Person or
Persons shall be allocated a majority of limited liability company, partnership, association or other business entity gains or losses or shall be or Control the managing member, managing director or other governing body or general partner of such
limited liability company, partnership, association or other business entity.
Total Number of Directors means the
total number of directors comprising the Board.
Transfer (including its correlative meanings,
Transferor, Transferee and Transferred) shall mean, with respect to any security, directly or indirectly, to sell, contract to sell, give, assign, hypothecate, pledge, encumber, grant a
security interest in, offer, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of any economic, voting or other rights in or to
such security. When used as a noun, Transfer shall have such correlative meaning as the context may require.
1.2
Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party. Unless the context otherwise
requires: (a) or is disjunctive but not exclusive, (b) words in the singular include the plural, and in the plural include the singular, and (c) the words hereof, herein, and
hereunder and words of similar import when used in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section references are to this Agreement unless otherwise specified.
ARTICLE II.
CORPORATE
GOVERNANCE MATTERS
2.1 Election of Directors.
(a) Following the Closing Date, the Blackstone Entities shall have the right, but not the obligation, to nominate to the Board a number of
designees equal to at least: (i) a majority of the Total Number of Directors, so long as the Blackstone Entities collectively beneficially own 50% or more of the outstanding shares of Common Stock; (ii) 40% of the Total Number of
Directors, in the event that the Blackstone Entities collectively beneficially own 40% or more, but less than 50%, of the outstanding shares of Common Stock; (iii) 30% of the Total Number of Directors, in the event that the Blackstone Entities
collectively beneficially own 30% or more, but less than 40%, of the outstanding shares of Common Stock; (iv) 20% of the Total Number of Directors, in the event that the Blackstone Entities collectively beneficially own 20% or more, but less
than 30%, of the outstanding shares of Common Stock; and (v) 10% of the Total Number of Directors, in the event that the Blackstone Entities collectively beneficially own 5% or
3
more, but less than 20%, of the outstanding shares of Common Stock. For purposes of calculating the number of directors that the Blackstone Entities are entitled to designate pursuant to the
immediately preceding sentence, any fractional amounts shall automatically be rounded up to the nearest whole number (e.g., one and one quarter (1
1/4) Directors shall equate to two (2) Directors) and any such calculations shall be made after taking into account any increase in the
Total Number of Directors. At the request of the Blackstone Entities for so long as the Board is classified, the number of Directors nominated by the Blackstone Entities in each class shall be as nearly equal as possible.
(b) In the event that the Blackstone Entities have nominated less than the total number of designees the Blackstone Entities shall be entitled
to nominate pursuant to Section 2.1(a), the Blackstone Entities shall have the right, at any time, to nominate such additional designees to which it is entitled, in which case the Company and the Directors shall take all necessary corporate
action, to the fullest extent permitted by applicable law (including with respect to any fiduciary duties under Delaware law), to (x) enable the Blackstone Entities to nominate and effect the election or appointment of such additional
individuals, whether by increasing the size of the Board, or otherwise and (y) to designate such additional individuals nominated by the Blackstone Entities to fill such newly-created vacancies or to fill any other existing vacancies. Each such
person whom the Blackstone Entities shall actually nominate pursuant to this Section 2.1 and who is thereafter elected to the Board to serve as a Director shall be referred to herein as a Blackstone Designee.
(c) In the event that a vacancy is created at any time by the death, retirement or resignation of any Director designated by the Blackstone
Entities pursuant to this Section 2.1, the remaining Directors and the Company shall, to the fullest extent permitted by applicable law (including with respect to any fiduciary duties under Delaware law), cause the vacancy created thereby to be
filled by a new designee of the Blackstone Entities, if such Director was designated by the Blackstone Entities, as soon as possible, and the Company hereby agrees to take, to the fullest extent permitted by applicable law (including with respect to
any fiduciary duties under Delaware law), at any time and from time to time, all actions necessary to accomplish the same.
(d) The
Company agrees, to the fullest extent permitted by applicable law (including with respect to any fiduciary duties under Delaware law), to include in the slate of nominees recommended by the Board for election at any meeting of stockholders called
for the purpose of electing Directors the persons designated pursuant to this Section 2.1 (to the extent that Directors of such nominees class are to be elected at such meeting for so long as the Board is classified) and to nominate and
recommend each such individual to be elected as a Director as provided herein, and to solicit proxies or consents in favor thereof. The Company is entitled to identify such individual as a Blackstone Designee pursuant to this Stockholders Agreement.
4
ARTICLE III.
INFORMATION
3.1 Books and
Records; Access. The Company shall, and shall cause its Subsidiaries to, keep proper books, records and accounts, in which full and correct entries shall be made of all financial transactions and the assets and business of the Company and each
of its Subsidiaries in accordance with generally accepted accounting principles. For so long as the Blackstone Entities beneficially own 5% or more of the outstanding shares of Common Stock, the Company shall, and shall cause its Subsidiaries to,
permit the Blackstone Entities and their respective designated representatives, at reasonable times and upon reasonable prior notice to the Company, to review the books and records of the Company or any of such Subsidiaries and to discuss the
affairs, finances and condition of the Company or any of such Subsidiaries with the officers of the Company or any such Subsidiary. For so long as the Blackstone Entities beneficially own 5% or more of the outstanding shares of Common Stock, the
Company shall, and shall cause its Subsidiaries to, provide the Blackstone Entities, in addition to other information that might be reasonably requested by the Blackstone Entities from time to time, (i) direct access to the Companys
auditors and officers, (ii) the ability to into the Companys general ledger and other systems in order to enable the Blackstone Entities to retrieve data on a real-time basis, (iii) quarter-end reports, in a format to be
prescribed by the Blackstone Entities, to be provided within 30 days after the end of each quarter, (iv) copies of all materials provided to the Companys board of directors (or equivalent governing body) at the same time as provided to
the directors (or their equivalent) of the Company, (v) access to appropriate officers and directors of the Company at such times as may be requested by the Blackstone Entities, as the case may be, for consultation with each of the Blackstone
Entities with respect to matters relating to the business and affairs of the Company and its subsidiaries, (vi) information in advance with respect to any significant corporate actions, including, without limitation, extraordinary dividends,
mergers, acquisitions or dispositions of assets, issuances of significant amounts of debt or equity and material amendments to the certificate of incorporation or bylaws of the Company or any of its respective subsidiaries, and to provide the
Blackstone Entities, with the right to consult with the Company and its subsidiaries with respect to such actions, (vii) flash data, in a format to be prescribed by the Blackstone Entities, to be provided within ten days after the end of each
quarter and (viii) to the extent otherwise prepared by the Company, operating and capital expenditure budgets and periodic information packages relating to the operations and cash flows of the Company and its Subsidiaries (all such information
so furnished pursuant to this Section 3.1, the Information). The Company agrees to consider, in good faith, the recommendations of the Blackstone Entities in connection with the matters on which the Company is consulted as
described above. Subject to Section 3.2, any Blackstone Entity (and any party receiving Information from a Blackstone Entity) who shall receive Information shall maintain the confidentiality of such Information, and the Company shall not be
required to disclose any privileged Information of the Company so long as the Company has used its commercially reasonable efforts to enter into an arrangement pursuant to which it may provide such information to the Blackstone Entities without the
loss of any such privilege.
5
3.2 Sharing of Information. Individuals associated with the Blackstone Entities may from
time to time serve on the boards of directors or similar governing bodies of the Company and its Subsidiaries. The Company, on its behalf and on behalf of its Subsidiaries, recognize that such individuals (i) will from time to time receive
non-public information concerning the Company and its Subsidiaries, and (ii) may (subject to the obligation to maintain the confidentiality of such information in accordance with Section 3.1) share such information with other individuals
associated with the Blackstone Entities. Such sharing will be for the dual purpose of facilitating support to such individuals in their capacity as directors and enabling the Blackstone Entities, as equityholders, to better evaluate the
Companys performance and prospects. The Company, on behalf of itself and its Subsidiaries, hereby irrevocably consents to such sharing.
ARTICLE IV.
GENERAL PROVISIONS
4.1 Termination. This Agreement shall terminate on the earlier to occur of (i) such time as the Blackstone Entities are no
longer entitled to nominate a Director pursuant to Section 2.1(a) and (ii) upon the delivery of a written notice by the Blackstone Entities to the Company requesting that this Agreement terminate.
4.2 Notices. Any notice provided for in this Agreement shall be in writing and shall be either personally delivered, or mailed first
class mail (postage prepaid) or sent by reputable overnight courier service (charges prepaid) to the Company at the address set forth below and to any other recipient at the address indicated on the Companys records, or at such address or to
the attention of such other Person as the recipient party has specified by prior written notice to the sending party. Notices will be deemed to have been given hereunder when sent by facsimile (receipt confirmed) delivered personally, five
(5) days after deposit in the U.S. mail and one (1) day after deposit with a reputable overnight courier service.
The
Companys address is:
Catalent, Inc.
14 Schoolhouse Road
Somerset,
New Jersey 08873
Attention: General Counsel
The Blackstone Entities address is:
The Blackstone Group L.P.
345
Park Avenue
New York, NY 10154
Attention: Chinh Chu
Fax:
(212) 583-5722
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with a copy (not constituting notice) to:
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York,
New York 10017
Attention: Peter Martelli, Esq.
Fax: (212) 455-2502
4.3
Amendment; Waiver. This Agreement may be amended, supplemented or otherwise modified only by a written instrument executed by the Company and the other parties hereto. Neither the failure nor delay on the part of any party hereto to exercise
any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any other right,
remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence. No waiver shall be
effective unless it is in writing and is signed by the party asserted to have granted such waiver.
4.4 Further Assurances. The
parties hereto will sign such further documents, cause such meetings to be held, resolutions passed, exercise their votes and do and perform and cause to be done such further acts and things necessary, proper or advisable in order to give full
effect to this Agreement and every provision hereof. To the fullest extent permitted by law, the Company shall not directly or indirectly take any action that is intended to, or would reasonably be expected to result in, any Blackstone Entity being
deprived of the rights contemplated by this Agreement.
4.5 Assignment. This Agreement will inure to the benefit of and be binding
on the parties hereto and their respective successors and permitted assigns. This Agreement may not be assigned without the express prior written consent of the other parties hereto, and any attempted assignment, without such consents, will be null
and void; provided, however, that each Blackstone Entity shall be entitled to assign, in whole or in part, to any of its Permitted Assigns without such prior written consent any of its rights hereunder.
4.6 Third Parties. Except as provided for in Section 3.2 with respect to any Blackstone Entity, this Agreement does not create any
rights, claims or benefits inuring to any person that is not a party hereto nor create or establish any third party beneficiary hereto.
4.7 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without
regard to principles of conflicts of laws thereof.
4.8 Jurisdiction; Waiver of Jury Trial. In any judicial proceeding involving
any dispute, controversy or claim arising out of or relating to this Agreement, each of the parties unconditionally accepts the jurisdiction and venue of or, if the Court of Chancery
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does not have subject matter jurisdiction over this matter, the Superior Court of the State of Delaware (Complex Commercial Division), or if jurisdiction over the matter is vested exclusively in
federal courts, the United States District Court for the District of Delaware, and the appellate courts to which orders and judgments thereof may be appealed. In any such judicial proceeding, the parties agree that in addition to any method for the
service of process permitted or required by such courts, to the fullest extent permitted by law, service of process may be made by delivery provided pursuant to the directions in Section 4.2. EACH OF THE PARTIES HEREBY WAIVES TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
4.9 Specific Performance. Each party hereto acknowledges and agrees that in the event of any breach of this Agreement by any of them,
the other parties hereto would be irreparably harmed and could not be made whole by monetary damages. Each party accordingly agrees to waive the defense in any action for specific performance that a remedy at law would be adequate and that the
parties, in addition to any other remedy to which they may be entitled at law or in equity, shall be entitled to specific performance of this Agreement without the posting of bond.
4.10 Entire Agreement. This Agreement sets forth the entire understanding of the parties hereto with respect to the subject matter
hereof. There are no agreements, representations, warranties, covenants or understandings with respect to the subject matter hereof or thereof other than those expressly set forth herein and therein. This Agreement supersedes all other prior
agreements and understandings between the parties with respect to such subject matter.
4.11 Severability. If any provision of this
Agreement, or the application of such provision to any Person or circumstance or in any jurisdiction, shall be held to be invalid or unenforceable to any extent, (i) the remainder of this Agreement shall not be affected thereby, and each other
provision hereof shall be valid and enforceable to the fullest extent permitted by law, (ii) as to such Person or circumstance or in such jurisdiction such provision shall be reformed to be valid and enforceable to the fullest extent permitted
by law and (iii) the application of such provision to other Persons or circumstances or in other jurisdictions shall not be affected thereby.
4.12 Table of Contents, Headings and Captions. The table of contents, headings, subheadings and captions contained in this Agreement
are included for convenience of reference only, and in no way define, limit or describe the scope of this Agreement or the intent of any provision hereof.
4.13 Grant of Consent. Any vote, consent or approval of the Blackstone Group or a Blackstone Entity hereunder shall be deemed to be
given with respect to such entities or entity if such vote, consent or approval is given by members of such entities or entity having a pecuniary interest in a majority of the shares of Common Stock over which all members of such entities or entity
then have a pecuniary interest.
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4.14 Counterparts. This Agreement and any amendment hereto may be signed in any number of
separate counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one Agreement (or amendment, as applicable).
4.15 Effectiveness. This Agreement shall become effective upon the Closing Date.
4.16 No Recourse. This Agreement may only be enforced against, and any claims or cause of action that may be based upon, arise out of
or relate to this Agreement, or the negotiation, execution or performance of this Agreement may only be made against the entities that are expressly identified as parties hereto and no past, present or future Affiliate, director, officer, employee,
incorporator, member, manager, partner, stockholder, agent, attorney or representative of any party hereto shall have any liability for any obligations or liabilities of the parties to this Agreement or for any claim based on, in respect of, or by
reason of, the transactions contemplated hereby.
[Remainder Of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Stockholders Agreement on the day and
year first above written.
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COMPANY: |
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CATALENT, INC. |
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By: |
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/s/ Matthew Walsh |
Name: |
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Matthew Walsh |
Title: |
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Executive Vice President and Chief Financial Officer |
[Signature Page to Stockholders Agreement]
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BLACKSTONE GROUP: |
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BLACKSTONE HEALTHCARE PARTNERS L.L.C. |
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By: |
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BLACKSTONE CAPITAL PARTNERS V, L.P., managing member |
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By: |
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BLACKSTONE MANAGEMENT ASSOCIATES V L.L.C., its general partner |
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By: |
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/s/ Chinh E. Chu |
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Name: |
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Chinh E. Chu |
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Title: |
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Senior Managing Director |
[Signature Page to Stockholders Agreement]
Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
by and among
CATALENT, INC.
and
the other parties hereto
Dated as of August 5, 2014
TABLE OF CONTENTS
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Page |
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ARTICLE I DEFINITIONS |
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1 |
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SECTION 1.1 |
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Certain Definitions |
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1 |
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SECTION 1.2 |
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Other Definitional Provisions; Interpretation |
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5 |
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ARTICLE II REGISTRATION RIGHTS |
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5 |
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SECTION 2.1 |
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Right to Demand a Non-Shelf Registered Offering |
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5 |
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SECTION 2.2 |
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Right to Piggyback on a Non-Shelf Registered Offering |
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5 |
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SECTION 2.3 |
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Right to Demand and be Included in a Shelf Registration |
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5 |
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SECTION 2.4 |
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Demand and Piggyback Rights for Shelf Takedowns |
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6 |
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SECTION 2.5 |
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Right to Reload a Shelf |
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SECTION 2.6 |
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Limitations on Demand and Piggyback Rights |
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SECTION 2.7 |
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Notifications Regarding Registration Statements |
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SECTION 2.8 |
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Notifications Regarding Registration Piggyback Rights |
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7 |
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SECTION 2.9 |
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Notifications Regarding Demanded Underwritten Takedowns |
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SECTION 2.10 |
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Plan of Distribution, Underwriters and Counsel |
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SECTION 2.11 |
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Cutbacks |
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SECTION 2.12 |
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Lockups |
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SECTION 2.13 |
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Expenses |
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SECTION 2.14 |
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Facilitating Registrations and Offerings |
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ARTICLE III INDEMNIFICATION |
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13 |
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SECTION 3.1 |
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Indemnification by the Company |
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13 |
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SECTION 3.2 |
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Indemnification by the Holders and Underwriters |
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SECTION 3.3 |
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Notices of Claims, Etc. |
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SECTION 3.4 |
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Contribution |
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SECTION 3.5 |
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Non-Exclusivity |
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ARTICLE IV OTHER |
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SECTION 4.1 |
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Notices |
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15 |
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SECTION 4.2 |
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Assignment |
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17 |
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SECTION 4.3 |
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Transfer Restrictions |
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SECTION 4.4 |
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Amendments; Waiver |
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SECTION 4.5 |
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Third Parties |
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SECTION 4.6 |
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Governing Law |
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SECTION 4.7 |
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CONSENT TO JURISDICTION |
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SECTION 4.8 |
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MUTUAL WAIVER OF JURY TRIAL |
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SECTION 4.9 |
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Specific Performance |
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SECTION 4.10 |
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Entire Agreement |
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SECTION 4.11 |
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Severability |
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SECTION 4.12 |
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Counterparts |
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SECTION 4.13 |
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Effectiveness |
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the Agreement) is dated as of August 5, 2014 and is by and among Catalent, Inc.
(the Company), Blackstone (as defined below), Genstar Phoenix Holdings, LLC, Aisling Capital II, L.P. and the Management Stockholders (as defined below).
BACKGROUND
WHEREAS, the Company
is currently contemplating an underwritten initial public offering (IPO) of shares of its Common Stock (as defined below); and
WHEREAS, the Company desires to grant registration rights to Blackstone, Genstar, Aisling and the Management Stockholders on the terms and
conditions set out in this Agreement.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Definitions. As used in this Agreement:
Affiliate has the meaning ascribed thereto in Rule 12b-2 promulgated under the Exchange Act, as in effect on the date
hereof.
Agreement has the meaning set forth in the preamble.
Aisling means Aisling Capital II, L.P. or any assignee of Aislings rights and obligations under this Agreement
pursuant to Section 4.2 or any Affiliate of Aisling to which Aisling Transfers any Registrable Securities pursuant to Section 4.3.
Allocable Shares has the meaning set forth in Section 4.3(b)(ii).
Blackstone means the entities listed on the signature pages hereto under the heading Blackstone.
Blackstone Entities means the entities comprising Blackstone, their respective Affiliates and the successors and permitted
assigns of the entities and their respective Affiliates.
Board means the board of directors of the Company.
Business Day means a day other than a Saturday, Sunday, federal or New York State holiday or other day on which commercial
banks in New York City are authorized or required by law to close.
Change of Control means (i) the sale or
disposition, in one or a series of related transactions, of all or substantially all of the assets of the Company to any person or group
(as such terms are defined in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) or (ii) any person or group, other than Blackstone or its affiliates, is or becomes the beneficial
owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the total voting power of the Company, including by way of merger, consolidation or otherwise.
Closing Date means the date of completion of the IPO.
Company has the meaning set forth in the preamble.
Common Stock means the shares of common stock, par value $0.01 per share, of the Company, and any other capital stock of
the Company into which such common stock is reclassified or reconstituted.
Control (including its correlative
meanings, Controlled by and under common Control with) means possession, directly or indirectly, of the power to direct or cause the direction of management or policies (whether through ownership of securities
or partnership or other ownership interests, by contract or otherwise) of a Person.
Demand Party has the meaning set
forth in Section 2.2(a).
Exchange Act means the U.S. Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder, as the same may be amended from time to time.
FINRA means the Financial
Industry Regulatory Authority, Inc.
Genstar means Genstar Phoenix Holdings, LLC or any assignee of Genstars
rights and obligations under this Agreement pursuant to Section 4.2 or any Affiliate of Genstar to which Genstar Transfers any Registrable Securities pursuant to Section 4.3.
Governmental Authority means any nation or government, any state or other political subdivision thereof, and any entity
exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
Holder means each member of Blackstone, Genstar, Aisling and each Management Stockholder that is a holder of Registrable
Securities or securities exercisable, exchangeable or convertible into Registrable Securities or any Transferee of such Person to whom registration rights are assigned pursuant to Section 4.2.
Indemnified Party and Indemnified Parties have the meanings set forth in Section 3.1.
IPO has the meaning set forth in the recitals.
Law means any statute, law, regulation, ordinance, rule, injunction, order, decree, governmental approval, directive,
requirement, or other governmental restriction or any similar form of decision of, or determination by, or any interpretation or administration of any of the foregoing by, any Governmental Authority.
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Lockup Period has the meaning set forth in Section 2.4(d)(i).
Management Stockholder means those stockholders of the Company who are identified as Management Stockholders on Schedule A
hereto, and shall include their respective Transferees who have become stockholders of the Company.
Offered Securities
has the meaning set forth in Section 4.3(b)(i).
Other Holder has the meaning set forth in Section 4.3(b)(i).
Person means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock
company, a trust, a joint venture, a cooperative, an unincorporated organization, or other form of business organization, whether or not regarded as a legal entity under applicable Law, or any Governmental Authority or any department, agency or
political subdivision thereof.
Registrable Securities means all shares of Common Stock and any Securities into which
the Common Stock may be converted or exchanged pursuant to any merger, consolidation, sale of all or any part of its assets, corporate conversion or other extraordinary transaction of the Company held by a Holder (whether now held or hereafter
acquired, and including any such Securities received by a Holder upon the conversion or exchange of, or pursuant to such a transaction with respect to, other Securities held by such Holder). As to any Registrable Securities, such Securities will
cease to be Registrable Securities when:
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a registration statement covering such Registrable Securities has been declared effective and such Registrable Securities have been disposed of pursuant to such effective registration statement; |
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(b) |
such Registrable Securities shall have been sold pursuant to Rule 144 or 145 (or any similar provision then in effect) under the Securities Act; |
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other than with respect to Registrable Securities held by Genstar or Aisling, such Registrable Securities may be freely sold pursuant to Section 4(a)(1), Rule 144 or 145 (or any similar provision then in effect)
under the Securities Act, without reporting obligations or restriction; or |
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such Registrable Securities cease to be outstanding. |
Registration Expenses
means any and all expenses incurred in connection with the performance of or compliance with this Agreement, including:
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all SEC, stock exchange, or FINRA registration and filing fees (including, if applicable, the fees and expenses of any qualified independent underwriter, as such term is defined in Rule 5121 of FINRA, and of
its counsel); |
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(b) |
all fees and expenses of complying with securities or blue sky Laws (including fees and disbursements of counsel for the underwriters in connection with blue sky qualifications of the Registrable Securities);
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(c) |
all printing, messenger and delivery expenses; |
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(d) |
all fees and expenses incurred in connection with the listing of the Registrable Securities on any securities exchange or FINRA and all rating agency fees; |
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(e) |
the fees and disbursements of counsel for the Company and of its independent public accountants, including the expenses of any special audits and/or cold comfort letters required by or incident to such
performance and compliance; |
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(f) |
any fees and disbursements of underwriters customarily paid by the issuers or sellers of Securities, including liability insurance if the Company so desires or if the underwriters so require, and the reasonable fees and
expenses of any special experts retained in connection with the requested registration, but excluding underwriting discounts and commissions and transfer taxes, if any; |
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(g) |
any fees and disbursements of counsel (including the fees and disbursements of outside counsel for Holders) incurred in connection with any registration statement or registered offering covering Registrable Securities
held by the Holders; |
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(h) |
the costs and expenses of the Company relating to analyst and investor presentations or any road show undertaken in connection with the registration and/or marketing of the Registrable Securities (including
the reasonable out-of-pocket expenses of the Holders); and |
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(i) |
any other fees and disbursements customarily paid by the issuers of securities. |
Sale
Notice has the meaning set forth in Section 4.3(b)(i).
SEC means the U.S. Securities and Exchange
Commission or any successor agency.
Securities Act means the U.S. Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder, as the same may be amended from time to time.
Tag-Along Notice has the meaning
set forth in Section 4.3(b)(i).
Transfer (including its correlative meanings, Transferor,
Transferee and Transferred) shall mean, with respect to any security, directly or indirectly, to sell, contract to sell, give, assign, hypothecate, pledge, encumber, grant a security interest in, offer, sell any
-4-
option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of any economic, voting or other
rights in or to such security. When used as a noun, Transfer shall have such correlative meaning as the context may require.
WKSI means a well-known seasoned issuer, as defined in the SECs Rule 405.
SECTION 1.2 Other Definitional Provisions; Interpretation.
(a) The words hereof, herein, and hereunder and words of similar import when used in this Agreement refer
to this Agreement as a whole and not to any particular provision of this Agreement, and references in this Agreement to a designated Article or Section refer to an Article or Section of this Agreement unless otherwise
specified.
(b) The headings in this Agreement are included for convenience of reference only and do not limit or otherwise affect the
meaning or interpretation of this Agreement.
(c) The meanings given to terms defined herein are equally applicable to both the singular
and plural forms of such terms.
ARTICLE II
REGISTRATION RIGHTS
SECTION 2.1 Right to Demand a Non-Shelf Registered Offering. Upon the demand of Blackstone made at any time and from time to time, the
Company will facilitate in the manner described in this Agreement a non-shelf registered offering of the Registrable Securities requested by Blackstone to be included in such offering. Any demanded non-shelf registered offering may, at the
Companys option, include shares to be sold by the Company for its own account and will also include shares to be sold by Holders that exercise their related piggyback rights on a timely basis.
SECTION 2.2 Right to Piggyback on a Non-Shelf Registered Offering. In connection with any registered offering of Common Stock covered
by a non-shelf registration statement (whether pursuant to the exercise of demand rights or at the initiative of the Company), any non-demanding Holders may exercise piggyback rights to have included in such offering shares held by them. The Company
will facilitate in the manner described in this Agreement any such non-shelf registered offering. For the avoidance of doubt, if Blackstone exercises the demand set forth in Section 2.1, each Holder (including Blackstone) shall have the right
to sell shares in the offering on a pro rata basis with pro rata being determined by dividing the number of Registrable Securities held by a Holder (including Blackstone) by the number of Registrable Securities held by all
Holders.
SECTION 2.3 Right to Demand and be Included in a Shelf Registration. Upon the demand of Blackstone, made at any time and
from time to time when the Company is eligible to utilize Form S-3 or a successor form to sell shares in a secondary offering on a delayed or continuous basis in accordance with Rule 415 of the Securities Act, the Company will facilitate in the
manner described in this Agreement a shelf registration of shares held by the Holders. Any shelf registration filed by the Company covering shares (whether pursuant to Blackstones
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demand or the initiative of the Company) will cover Registrable Securities held by each of the Holders up to the highest common percentage of their original respective holdings, which highest
common percentage will be agreed upon by the demanding Holder. If at the time of such request the Company is a WKSI, such shelf registration would, at the request of such majority Holders, cover an unspecified number of shares to be sold by the
Company and the Holders.
SECTION 2.4 Demand and Piggyback Rights for Shelf Takedowns. Upon the demand of one or more of Blackstone
or, if Genstar and Aisling are no longer subject to the transfer restrictions set forth in Section 4.3, Genstar or Aisling made at any time and from time to time, the Company will facilitate in the manner described in this Agreement a
takedown of shares off of an effective shelf registration statement. In connection with any underwritten shelf takedown (whether pursuant to the exercise of such demand rights or at the initiative of the Company), the Holders may
exercise piggyback rights to have included in such takedown shares held by them that are registered on such shelf. Notwithstanding the foregoing, Holders may not demand a shelf takedown for an offering that will result in the imposition of a lockup
on the Company and the Holders unless the Registrable Securities requested to be sold by the demanding Holders in such takedown have an aggregate market value (based on the most recent closing price of the Common Stock at the time of the demand) of
at least $50 million.
SECTION 2.5 Right to Reload a Shelf. Upon the written request of a Holder, the Company will file and seek
the effectiveness of a post-effective amendment to an existing shelf in order to register up to the number of Registrable Securities previously taken down off of such shelf by such Holder and not yet reloaded onto such shelf. The Holders
and the Company will consult and coordinate with each other in order to accomplish such replenishments from time to time in a sensible manner.
SECTION 2.6 Limitations on Demand and Piggyback Rights.
(a) Any demand for the filing of a registration statement or for a registered offering or takedown will be subject to the constraints of any
applicable lockup arrangements, and such demand must be deferred until such lockup arrangements no longer apply. If a demand has been made for a non-shelf registered offering or for an underwritten takedown, no further demands may be made so long as
the related offering is still being pursued. After an underwritten offering demanded by a Holder, such Holder may not make another demand for an underwritten offering prior to 60 days after the expiration of the lockup applicable to its prior
demanded offering unless another Holder joins in the demand. Notwithstanding anything in this Agreement to the contrary, the Holders will not have piggyback or other registration rights with respect to registered primary offerings by the Company
(i) covered by a Form S-8 registration statement or a successor form applicable to employee benefit-related offers and sales, (ii) where the shares are not being sold for cash or (iii) where the offering is a bona fide offering of
securities other than shares, even if such securities are convertible into or exchangeable or exercisable for shares.
(b) The Company may
postpone the filing of a demanded registration statement or suspend the effectiveness of any shelf registration statement for a reasonable blackout period not in excess of 90 days if the board of directors of the Company determines that
such registration or offering could materially interfere with a bona fide business or financing
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transaction of the Company or is reasonably likely to require premature disclosure of information, the premature disclosure of which could materially and adversely affect the Company. The
blackout period will end upon the earlier to occur of, (i) in the case of a bona fide business or financing transaction, a date not later than 90 days from the date such deferral commenced, and (ii) in the case of disclosure of non-public
information, the earlier to occur of (x) the filing by the Company of its next succeeding Form 10-K or Form 10-Q, or (y) the date upon which such information is otherwise disclosed.
SECTION 2.7 Notifications Regarding Registration Statements. Prior to exercising demand rights for a registration statement, the
Holders will consult with each other in this regard. In order for one or more Holders to exercise their right to demand that a registration statement be filed, they must so notify the Company in writing indicating the number of Registrable
Securities sought to be registered and the proposed plan of distribution. The Company will keep the Holders contemporaneously apprised of any registration of Common Stock, whether pursuant to a Holder demand or otherwise, with respect to which a
piggyback opportunity is available. Pending any required public disclosure and subject to applicable legal requirements, the parties will maintain the confidentiality of these discussions.
SECTION 2.8 Notifications Regarding Registration Piggyback Rights. Any Holder wishing to exercise its piggyback rights with respect to
a non-shelf registration statement must notify the Company and the other Holders of the number of shares it seeks to have included in such registration statement. Such notice must be given as soon as practicable, but in no event later than 5:00 pm,
New York City time, on the second trading day prior to (i) if applicable, the date on which the preliminary prospectus intended to be used in connection with pre-effective marketing efforts for the relevant offering is expected to be finalized,
and (ii) in any case, the date on which the pricing of the relevant offering is expected to occur. No such notice is required in connection with a shelf registration statement, as Registrable Securities held by all Holders will be included
subject to the limitations described in Section 2.3.
SECTION 2.9 Notifications Regarding Demanded Underwritten Takedowns.
(a) Prior to exercising their demand rights for an underwritten takedown of shares off of a shelf registration statement, the Holders
will consult with each other in this regard. The Company will keep the Holders contemporaneously apprised of all pertinent aspects of any underwritten shelf takedown in order that they may have a reasonable opportunity to exercise their related
piggyback rights. Without limiting the Companys obligation as described in the preceding sentence, having a reasonable opportunity requires that the Holders be notified by the Company of an anticipated underwritten takedown (whether pursuant
to a demand made by other Holders or made at the Companys own initiative) no later than 5:00 pm, New York City time, on (i) if applicable, the second trading day prior to the date on which the preliminary prospectus or prospectus
supplement intended to be used in connection with pre-pricing marketing efforts for such takedown is finalized, and (ii) in all cases, the second trading day prior to the date on which the pricing of the relevant takedown occurs.
(b) Any Holder wishing to exercise its piggyback rights with respect to an underwritten shelf takedown must notify the Company and the other
Holders of the number of shares it seeks to have included in such takedown. Such notice must be given as soon as
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practicable, but in no event later than 5:00 pm, New York City time, on (i) if applicable, the trading day prior to the date on which the preliminary prospectus or prospectus supplement
intended to be used in connection with marketing efforts for the relevant offering is expected to be finalized, and (ii) in all cases, the trading day prior to the date on which the pricing of the relevant takedown occurs.
(c) Pending any required public disclosure and subject to applicable legal requirements, the parties will maintain appropriate confidentiality
of their discussions regarding a prospective underwritten takedown.
SECTION 2.10 Plan of Distribution, Underwriters and Counsel.
If a majority of the shares proposed to be sold in an underwritten offering through a non-shelf registration statement or through a shelf takedown is being sold by the Company for its own account, the Company will be entitled to determine the plan
of distribution and select the managing underwriters for such offering. Otherwise, Holders holding a majority of the Registrable Securities requested to be included in such offering will be entitled to determine the plan of distribution and select
the managing underwriters, and such majority will also be entitled to select counsel for the selling Holders (which may be the same as counsel for the Company). In the case of a shelf registration statement, the plan of distribution will provide as
much flexibility as is reasonably possible, including with respect or resales by transferee Holders.
SECTION 2.11 Cutbacks. If the
managing underwriters advise the Company and the selling Holders that, in their opinion, the number of shares requested to be included in an underwritten offering exceeds the amount that can be sold in such offering without adversely affecting the
distribution of the shares being offered, such offering will include only the number of shares that the underwriters advise can be sold in such offering. If the Company is selling shares for its own account in such offering, the Company will have
first priority. To the extent of any remaining capacity, and in all other cases where the Company is not selling shares in the relevant offering, the selling Holders will be subject to cutback pro rata based on the number of Registrable Securities
initially requested by them to be included in such offering, without distinguishing between Holders based on who made the demand for such offering or who is exercising piggyback rights.
SECTION 2.12 Lockups.
(a) Other than as described in clause (b) below, in connection with any underwritten offering of shares, the Company and each Holder will
agree (in the case of Holders, with respect to Registrable Securities respectively held by them) to be bound by the underwriting agreements lockup restrictions (which must apply in like manner to all of them) that are agreed to (x) by the
Company, if a majority of the shares being sold in such offering are being sold for its account, and (y) by Holders holding a majority of Registrable Securities being sold by all Holders, if a majority of the shares being sold in such offering
are being sold by Holders. Other than as described in clause (b) below, pending the signing of the applicable underwriting agreement, from the point at which a Holder receives written notice that the Company intends to pursue an underwritten
registered public offering of shares with respect to which a piggyback opportunity will apply pursuant to this Agreement and until the applicable underwriting agreement is entered into or such offering is abandoned, each Holder agrees to be bound by
the same restrictions on transfer as were applicable under the underwriting agreement applicable to the Companys IPO.
(b) If, at
any time, Genstar and Aisling are no longer subject to the transfer restrictions set forth in Section 4.3, each of Genstar and Aisling shall have the right to elect to relinquish all rights under this Article II. If Genstar or Ailsing makes
such election, it will no longer be subject to this Section 2.12.
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SECTION 2.13 Expenses. All Registration Expenses incurred in connection with any
registration statement or registered offering covering Registrable Securities held by Holders will be borne by the Company. However, underwriters, brokers and dealers discounts and commissions applicable to shares sold for the
account of a Holder will be borne by such Holder.
SECTION 2.14 Facilitating Registrations and Offerings.
(a) If the Company becomes obligated under this Agreement to facilitate a registration and offering of Registrable Securities on behalf of
Holders, the Company will do so with the same degree of care and dispatch as would reasonably be expected in the case of a registration and offering by the Company of shares for its own account. Without limiting this general obligation, the Company
will fulfill its specific obligations as described in this Section 2.14.
(b) In connection with each registration statement that is
demanded by Holders or as to which piggyback rights otherwise apply, the Company will:
(i) prepare and file with the SEC a
registration statement covering the applicable shares, file amendments thereto as warranted, seek the effectiveness thereof, and file with the SEC prospectuses and prospectus supplements as may be required, all in consultation with the Holders and
as reasonably necessary in order to permit the offer and sale of the such shares in accordance with the applicable plan of distribution;
(ii) within a reasonable time prior to the filing of any registration statement, any prospectus, any amendment to a
registration statement, amendment or supplement to a prospectus or any free writing prospectus, provide copies of such documents to the selling Holders and to the underwriter or underwriters of an underwritten offering, if applicable, and to their
respective counsel; fairly consider such reasonable changes in any such documents prior to or after the filing thereof as the counsel to the Holders or the underwriter or the underwriters may request; and make such of the representatives of the
Company as shall be reasonably requested by the selling Holders or any underwriter available for discussion of such documents;
(iii) within a reasonable time prior to the filing of any document which is to be incorporated by reference into a registration
statement or a prospectus, provide copies of such document to counsel for the Holders and underwriters; fairly consider such reasonable changes in such document prior to or after the filing thereof as counsel for such Holders or such underwriter
shall request; and make such of the representatives of the Company as shall be reasonably requested by such counsel available for discussion of such document;
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(iv) use all reasonable efforts to cause each registration statement and the
related prospectus and any amendment or supplement thereto, as of the effective date of such registration statement, amendment or supplement and during the distribution of the registered shares (x) to comply in all material respects with the
requirements of the Securities Act and the rules and regulations of the SEC and (y) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements
therein not misleading;
(v) notify each Holder promptly, and, if requested by such Holder, confirm such advice in writing,
(A) when a registration statement has become effective and when any post-effective amendments and supplements thereto become effective if such registration statement or post-effective amendment is not automatically effective upon filing
pursuant to Rule 462 of the Securities Act, (B) of the issuance by the SEC or any state securities authority of any stop order, injunction or other order or requirement suspending the effectiveness of a registration statement or the initiation
of any proceedings for that purpose, (C) if, between the effective date of a registration statement and the closing of any sale of securities covered thereby pursuant to any agreement to which the Company is a party, the representations and
warranties of the Company contained in such agreement cease to be true and correct in all material respects or if the Company receives any notification with respect to the suspension of the qualification of the shares for sale in any jurisdiction or
the initiation of any proceeding for such purpose, and (D) of the happening of any event during the period a registration statement is effective as a result of which such registration statement or the related Prospectus contains any untrue
statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading;
(vi) furnish counsel for each underwriter, if any, and for the Holders copies of any correspondence with the SEC or any state
securities authority relating to the registration statement or prospectus;
(vii) otherwise use all reasonable efforts to
comply with all applicable rules and regulations of the SEC, including making available to its security holders an earnings statement covering at least 12 months which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule
158 thereunder (or any similar provision then in force); and
(viii) use all reasonable efforts to obtain the withdrawal of
any order suspending the effectiveness of a registration statement at the earliest possible time.
(c) In connection with any non-shelf
registered offering or shelf takedown that is demanded by Holders or as to which piggyback rights otherwise apply, the Company will:
(i) cooperate with the selling Holders and the sole underwriter or managing underwriter of an underwritten offering, if any, to
facilitate the timely
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preparation and delivery of certificates representing the shares to be sold and not bearing any restrictive legends; and enable such shares to be in such denominations (consistent with the
provisions of the governing documents thereof) and registered in such names as the selling Holders or the sole underwriter or managing underwriter of an underwritten offering of shares, if any, may reasonably request at least five days prior to any
sale of such shares;
(ii) furnish to each Holder and to each underwriter, if any, participating in the relevant offering,
without charge, as many copies of the applicable prospectus, including each preliminary prospectus, and any amendment or supplement thereto and such other documents as such Holder or underwriter may reasonably request in order to facilitate the
public sale or other disposition of the shares; the Company hereby consents to the use of the prospectus, including each preliminary prospectus, by each such Holder and underwriter in connection with the offering and sale of the shares covered by
the prospectus or the preliminary prospectus;
(iii) use all reasonable efforts to register or qualify the shares being
offered and sold, no later than the time the applicable registration statement becomes effective, under all applicable state securities or blue sky laws of such jurisdictions as each underwriter, if any, or any Holder holding Registrable
Securities covered by a registration statement, shall reasonably request; use all reasonable efforts to keep each such registration or qualification effective during the period such registration statement is required to be kept effective; and do any
and all other acts and things which may be reasonably necessary or advisable to enable each such underwriter, if any, and each such Holder to consummate the disposition in each such jurisdiction of such Registrable Securities owned by such Holder;
provided, however, that the Company shall not be obligated to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to consent to be subject to general service of process (other than
service of process in connection with such registration or qualification or any sale of shares in connection therewith) in any such jurisdiction;
(vi) cause all shares being sold to be qualified for inclusion in or listed on the New York Stock Exchange or any securities
exchange on which shares issued by the Company are then so qualified or listed if so requested by the Holders, or if so requested by the underwriter or underwriters of an underwritten offering of shares, if any;
(v) cooperate and assist in any filings required to be made with FINRA and in the performance of any due diligence
investigation by any underwriter in an underwritten offering;
(vi) use all reasonable efforts to facilitate the
distribution and sale of any shares to be offered pursuant to this Agreement, including without limitation by making road show presentations, holding meetings with and making calls to potential investors and taking such other actions as shall be
requested by the Holders or the lead managing underwriter of an underwritten offering; and
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(vii) enter into customary agreements (including, in the case of an underwritten
offering, underwriting agreements in customary form, and including provisions with respect to indemnification and contribution in customary form and consistent with the provisions relating to indemnification and contribution contained herein) and
take all other customary and appropriate actions in order to expedite or facilitate the disposition of such shares and in connection therewith:
(A) make such representations and warranties to the selling Holders and the underwriters, if any, in form, substance and scope
as are customarily made by issuers to underwriters in similar underwritten offerings;
(B) obtain opinions of counsel to
the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the lead managing underwriter, if any) addressed to each selling Holder and the underwriters, if any, covering the matters
customarily covered in opinions requested in sales of securities or underwritten offerings and such other matters as may be reasonably requested by such Holders and underwriters;
(C) obtain cold comfort letters and updates thereof from the Companys independent certified public
accountants addressed to the selling Holders, if permissible, and the underwriters, if any, which letters shall be customary in form and shall cover matters of the type customarily covered in cold comfort letters to underwriters in
connection with primary underwritten offerings; and
(D) to the extent requested and customary for the relevant
transaction, enter into a securities sales agreement with the Holders providing for, among other things, the appointment of such representative as agent for the selling Holders for the purpose of soliciting purchases of shares, which agreement shall
be customary in form, substance and scope and shall contain customary representations, warranties and covenants.
The above shall be done at such times as
customarily occur in similar registered offerings or shelf takedowns.
(d) In connection with each registration and offering of shares to
be sold by Holders, the Company will, in accordance with customary practice, make available for inspection by representatives of the Holders and underwriters and any counsel or accountant retained by such Holder or underwriters all relevant
financial and other records, pertinent corporate documents and properties of the Company and cause appropriate officers, managers and employees of the Company to supply all information reasonably requested by any such representative, underwriter,
counsel or accountant in connection with their due diligence exercise.
(e) Each Securityholder that holds shares covered by any
registration statement will furnish to the Company such information regarding itself as is required to be included in the registration statement, the ownership of shares by such Securityholder and the proposed distribution by such Securityholder of
such shares as the Company may from time to time reasonably request in writing.
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ARTICLE III
INDEMNIFICATION
SECTION
3.1 Indemnification by the Company. In the event of any registration of any Registrable Securities of the Company under the Securities Act pursuant to Article II, the Company hereby indemnifies and agrees to hold harmless, to the fullest
extent permitted by Law, each Holder who sells Registrable Securities covered by such registration statement, each Affiliate of such Holder and their respective directors and officers or general and limited partners (and the directors, officers,
employees, Affiliates and controlling Persons of any of the foregoing), each other Person who participates as an underwriter in the offering or sale of such Registrable Securities and each other Person, if any, who controls such Holder or any such
underwriter within the meaning of the Securities Act (each, and Indemnified Party and collectively, the Indemnified Parties), against any and all losses, claims, damages or liabilities, joint or several, and
reasonable and documented expenses to which such Indemnified Party may become subject under the Securities Act, common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof, whether or
not such Indemnified Party is a party thereto) arise out of or are based upon: (a) any untrue statement or alleged untrue statement of any material fact contained in any registration statement under which such Registrable Securities were
registered under the Securities Act, any preliminary, final or summary prospectus contained therein, or any amendment or supplement thereto, or any document incorporated by reference therein, or any other such disclosure document (including reports
and other documents filed under the Exchange Act and any document incorporated by reference therein) or related document or report; (b) any omission or alleged omission to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, in the case of a prospectus, in the light of the circumstances when they were made; or (c) any violation or alleged violation by the Company or any of its Subsidiaries of any federal, state,
foreign or common law rule or regulation applicable to the Company or any of its Subsidiaries and relating to action or inaction in connection with any such registration, disclosure document or related document or report, and the Company will
reimburse such Indemnified Party for any legal or other expenses reasonably incurred by it in connection with investigating or defending any such loss, claim, liability, action or proceeding; provided that the Company will not be liable to
any Indemnified Party in any such case to the extent that any such loss, claim, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, in any such preliminary, final or summary prospectus, or any amendment or supplement thereto in reliance upon and in conformity with written information with respect to such Indemnified Party
furnished to the Company by such Indemnified Party expressly for use in the preparation thereof. Such indemnity will remain in full force and effect regardless of any investigation made by or on behalf of such Holder or any Indemnified Party and
will survive the Transfer of such Registrable Securities by such Holder or any termination of this Agreement.
SECTION 3.2
Indemnification by the Holders and Underwriters. The Company may require, as a condition to including any Registrable Securities in any registration statement filed in accordance with Article II, that the Company shall have received an
undertaking reasonably satisfactory to it from the Holder of such Registrable Securities or any prospective
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underwriter to indemnify and hold harmless (in the same manner and to the same extent as set forth in Section 3.1) the Company, all other Holders or any prospective underwriter, as the case
may be, and any of their respective Affiliates, directors, officers and controlling Persons, with respect to any untrue statement in or omission from such registration statement, any preliminary, final or summary prospectus contained therein, or any
amendment or supplement, if such untrue statement or omission was made in reliance upon and in conformity with written information with respect to such Holder or underwriter furnished to the Company by such Holder or underwriter expressly for use in
the preparation of such registration statement, preliminary, final or summary prospectus or amendment or supplement, or a document incorporated by reference into any of the foregoing. Such indemnity will remain in full force and effect regardless of
any investigation made by or on behalf of the Company or any of the Holders, or any of their respective Affiliates, directors, officers or controlling Persons and will survive the Transfer of such Registrable Securities by such Holder. In no event
shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds actually received by such Holder upon the sale of the Registrable Securities giving rise to such
indemnification obligation.
SECTION 3.3 Notices of Claims, Etc.. Promptly after receipt by an Indemnified Party hereunder of
written notice of the commencement of any action or proceeding with respect to which a claim for indemnification may be made pursuant to this Article III, such Indemnified Party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of such action; provided that the failure of the Indemnified Party to give notice as provided herein will not relieve the indemnifying party of its obligations under
Section 3.1 or 3.2, except to the extent that the indemnifying party is actually prejudiced by such failure to give notice. In case any such action is brought against an Indemnified Party, unless in such Indemnified Partys reasonable
judgment a conflict of interest between such indemnified and indemnifying parties may exist in respect of such claim, the indemnifying party will be entitled to participate in and to assume the defense thereof, jointly with any other indemnifying
party similarly notified to the extent that it may wish, with counsel selected by the Holders of at least a majority of the Registrable Securities included in the relevant registration, and after notice from the indemnifying party to such
Indemnified Party of its election so to assume the defense thereof, the indemnifying party will not be liable to such Indemnified Party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof other
than reasonable costs of investigation. If, in such Indemnified Partys reasonable judgment, having common counsel would result in a conflict of interest between the interests of such indemnified and indemnifying parties, then such Indemnified
Party may employ separate counsel reasonably acceptable to the indemnifying party to represent or defend such Indemnified Party in such action, it being understood, however, that the indemnifying party will not be liable for the reasonable fees and
expenses of more than one separate firm of attorneys at any time for all such Indemnified Parties (and not more than one separate firm of local counsel at any time for all such Indemnified Parties) in such action. No indemnifying party will consent
to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect of such claim or litigation.
SECTION 3.4 Contribution. If the indemnification provided for hereunder from the indemnifying party is unavailable to an
Indemnified Party hereunder in respect of any losses,
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claims, damages, liabilities or expenses referred to herein for reasons other than those described in the proviso in the first sentence of Section 3.1, then the indemnifying party, in lieu
of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault
of the indemnifying party and Indemnified Parties in connection with the actions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative fault of such indemnifying
party and Indemnified Parties shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or Indemnified Parties, and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or
payable by a party under this Section 3.4 as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such party in connection with
any investigation or proceeding. In no event shall the liability of any selling Holder of Registrable Securities hereunder be greater in amount than the dollar amount of the proceeds actually received by such Holder upon the sale of the Registrable
Securities giving rise to such contribution obligation.
The parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 3.4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
SECTION 3.5 Non-Exclusivity. The obligations of the parties under this Article III will be in addition to any liability which any party
may otherwise have to any other party.
ARTICLE IV
OTHER
SECTION 4.1
Notices. Any notice, request, instruction or other document to be given hereunder by any party hereto to another party hereto shall be in writing and shall be deemed given (a) when delivered personally, (b) five (5) Business
Days after being sent by certified or registered mail, postage prepaid, return receipt requested, (c) one (1) Business Day after being sent by Federal Express or other nationally recognized overnight courier, or (d) if transmitted by
facsimile, if confirmed within 24 hours thereafter by a signed original sent in the manner provided in clause (a), (b) or (c) to parties at the following addresses (or at such other address for a party as shall be specified by
prior written notice from such party):
if to the Company:
Catalent, Inc.
14 Schoolhouse
Road
Somerset, New Jersey 08873
Attention: General Counsel
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if to Blackstone:
The Blackstone Group L.P.
345
Park Avenue
New York, NY 10154
Attention: Chinh Chu
Fax:
(212) 583-5722
with an additional copy (not constituting notice) to:
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York,
NY 10017
Attention: Edward P. Tolley III
Fax: (212) 455-2502
if to
Genstar:
Four Embarcadero Center, Suite 1900
San Francisco, CA 94111
Attention: Robert Weltman
Fax:
(415) 834-2383
With a copy (not constituting notice) to:
Latham & Watkins LLP
505 Montgomery Street, Suite 2000
San Francisco, CA 94111
Attention: Scott R. Haber
Fax:
(415) 395-8095
if to Aisling:
Aisling Capital II, L.P.
888
Seventh Avenue, 30th Floor
New York, NY 10106
Attn: Brett Zbar
Fax: 212 651
6379
and
Aisling Capital
II, L.P.
888 Seventh Avenue, 30th Floor
New York, NY 10106
Attn: Chief
Financial Officer
Fax: 212 651 6379
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With a required copy to:
McDermott Will & Emery LLP
340 Madison Avenue
New York,
NY 10173-1922
Attn: Todd Finger
Fax: 212 547 5444
if to any
Management Stockholder:
c/o Catalent, Inc.
14 Schoolhouse Road
Somerset,
New Jersey 08873
Attention: General Counsel
SECTION 4.2 Assignment. Neither the Company nor any Holder shall assign all or any part of this Agreement without the prior written
consent of the Company and Blackstone; provided, however, that any Blackstone Entity, Genstar and Aisling may assign their respective rights and obligations under this Agreement in whole or in part to any of their respective Affiliates
without the consent of any other party; provided, further that the consent of Blackstone shall not be required for any assignment if, at the time of such assignment, the number of shares of Common Stock held directly or indirectly by
Blackstone is less than 25% of the total number of outstanding shares of Common Stock. Except as otherwise provided herein, this Agreement will inure to the benefit of and be binding on the parties hereto and their respective successors and
permitted assigns.
SECTION 4.3 Transfer Restrictions. (a) Each of Genstar and Aisling agree it will not Transfer any Registrable
Securities until the second anniversary of the date hereof other than (1) pursuant to this Agreement (including pursuant to clause (b) below), (2) to one or more of its Affiliates, provided that such Affiliates become parties
to this Agreement and are bound by this Section 4.3, (3) pursuant to a Change of Control of the Company, (4) with the consent of Blackstone, (5) in the event that Blackstone Transfers any Registrable Securities pursuant to Rule
144, Blackstone shall provide advance notice to each of Genstar and Aisling at least one day prior to such transfer and each of Genstar and Aisling shall have the right to Transfer Registrable Securities pursuant to Rule 144 on a pro rata basis at
the time of Blackstones Transfer or at any time thereafter or (6) in the event that Blackstone distributes any Registrable Securities to its limited partners, members or stockholders, each of Genstar and Aisling shall have the right to
similarly distribute Registrable Securities on a pro rata basis at any time thereafter, provided that, if the Registrable Securities distributed by Blackstone are subject to any transfer restrictions, the Registrable Securities distributed by
Genstar and Aisling shall be subject to similar transfer restrictions.
(b) (i) Prior to Blackstone making any Transfer of
Registrable Securities (other than a Transfer described in Section 4.3(c)), Blackstone shall give at least twenty (20) days prior written notice to each of Genstar and Aisling (for purposes of this Section 2.2, each an
Other Holder) and the Company, which notice (for purposes of this Section 4.3, the Sale Notice) shall identify the type and amount of Registrable
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Securities to be sold (for purposes of this Section 4.3, the Offered Securities), describe the terms and conditions of such proposed Transfer, and identify each
prospective transferee. Any of the Other Holders may, within fourteen (14) days of the receipt of the Sale Notice, give written notice (each, a Tag-Along Notice) to Blackstone that such Other Holder wishes to participate in
such proposed Transfer upon the terms and conditions set forth in the Sale Notice, which Tag-Along Notice shall specify the Registrable Securities such Other Holder desires to include in such proposed Transfer; provided, however, that
to exercise its tag-along rights hereunder, each Other Holder shall be obligated to join in any indemnification or other obligations that Blackstone agrees to provide in connection with such Transfer of Offered Securities (except that, while each
Other Holder shall be obligated to make representations and warranties as to such Other Holders title to and ownership of such Other Holders Registrable Securities that are Transferred by such Other Holder, authorization, execution and
delivery of relevant documents by such Other Holder, enforceability of relevant agreements against such Other Holder and other matters relating to such Other Holder, to enter into covenants in respect of the proposed Transfer of such Other
Holders Registrable Securities that are Transferred by such Other Holder and to enter into indemnification obligations with respect to the foregoing, in each case to the extent that Blackstone is similarly obligated in connection with its
proposed Transfer of Offered Securities, no Other Holder shall be obligated to enter into indemnification obligations with respect to any of the foregoing to the extent relating to any representation or warranty by any other Holder (including
Blackstone) in respect of any such other Holder (including Blackstone) or any such other Holders Registrable Securities or Offered Securities (in the case of Blackstone)), up to its pro rata share based on, and limited to, the value of
Registrable Securities that are Transferred by each such Holder. Each Holder will bear (x) its own costs of any sale of Securities pursuant to this Section 4.3(b)(i) and (y) its pro-rata share (based upon the relative amount of
proceeds received for the Registrable Securities sold) of the costs of any sale of Registrable Securities pursuant to this Section 4.3(b)(i) (excluding all amounts paid to any Holder or his or its Affiliates as a transaction fee, brokers
fee, finders fee, advisory fee, success fee, or other similar fee or charge related to the consummation of such sale) to the extent such costs are incurred for the benefit of all Holders and are not otherwise paid by the transferee. No Other
Holder shall be required to sign a non-competition agreement.
(ii) If none of the Other Holders gives Blackstone a timely
Tag-Along Notice with respect to the Transfer proposed in the Sale Notice, then (notwithstanding the first sentence of Section 4.3(b)(i)) Blackstone may Transfer such Offered Securities on the terms and conditions set forth, and to or among any
of the transferees identified (or Affiliates of transferees identified), in the Sale Notice at any time within ninety (90) days after expiration of the fourteen-day period for giving Tag-Along Notices with respect to such Transfer. Any such
Offered Securities not Transferred by Blackstone during such ninety-day period will again be subject to the provisions of this Section 4.3(b) upon subsequent Transfer. If one or more Other Holders give Blackstone a timely Tag-Along Notice, then Blackstone shall use its reasonable efforts to obtain the agreement of the prospective transferee(s) to the participation of the Other Holders in any contemplated Transfer, on the same terms
and conditions as are applicable to the Offered Securities, and Blackstone shall not transfer any of its Registrable Securities to any prospective
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transferee if such prospective transferee(s) declines to allow the participation of the Other Holders. If the prospective transferee(s) is unwilling or unable to acquire all of the Offered
Securities and all of the Registrable Securities specified in a timely Tag-Along Notice upon such terms, then Blackstone may elect either to cancel such proposed Transfer or to allocate the maximum number of Registrable Securities that the
prospective transferees are willing to purchase (the Allocable Shares) among Blackstone and the Other Holders giving timely Tag-Along Notices as follows (it being understood that the prospective transferees shall be required to
purchase Registrable Securities on the same terms and conditions, and to consummate such Transfer on those terms and conditions):
(A) each participating Holder (including Blackstone) shall be entitled to sell a number of Registrable Securities (not to
exceed, for any Other Holder, the number of Registrable Securities identified in such Other Holders Tag-Along Notice) on a pro rata basis; and
(B) if, after allocating the Allocable Shares to such Holders in accordance with clause (A) above, there are any Allocable
Shares that remain unallocated, then they shall be allocated (in one or more successive allocations on the basis of the allocation method specified in clause (A) above) among Blackstone and each such Other Holder that has elected in its
Tag-Along Notice to sell a greater number of Registrable Securities than previously has been allocated to it pursuant to clause (A) and this clause (B) (all of whom (but no others) shall, for purposes of clause (A) above, be deemed to
be the participating Holders) until all such Allocable Shares have been allocated in accordance with this clause (B).
(c) The rights and
restrictions contained in Section 4.3(b) shall not apply with respect to any of the following Transfers of Registrable Securities by Blackstone:
(i) any Transfer of Registrable Securities pursuant to Article II;
(ii) any Transfer of Registrable Securities to and among the members, partners or Affiliates of Blackstone and the members,
partners, securityholders and employees of such partners;
(iii) any Transfer of Registrable Securities incidental to the
exercise, conversion or exchange of such securities in accordance with their terms or any reclassification or combination of shares (including any reverse stock split) or any recapitalization, reorganization or reclassification of, or any merger or
consolidation involving, the Company; provided that each Other Holder holding Registrable Securities are treated in the same way as the Blackstone Securities in connection with such exercise, conversion or exchange; and
(iv) any Transfer pursuant to Rule 144.
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SECTION 4.4 Amendments; Waiver. This Agreement may be amended, supplemented or otherwise
modified, or any provision waived, only by a written instrument executed by the Company and the Holders holding a majority of the Registrable Securities subject to this Agreement; provided that no such amendment, supplement or other
modification or waiver shall adversely affect the economic interests of any Holder hereunder, or increase the obligations of any Holder, disproportionately to other Holders without the written consent of such Holder. For the avoidance of doubt, no
consent pursuant to this Section 4.4 shall be required in connection with any amendment or revision to Schedule A unless such amendment or revision is to remove a Holder from such schedule at a time when such Holder would otherwise be entitled
to registration rights herein. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and executed by the party so waiving. Except as provided in the preceding sentence, no action taken
pursuant to this Agreement, including without limitation, any investigation by or on behalf of any party, will be deemed to constitute a waiver by the party taking such action of compliance with any covenants or agreements contained herein. The
waiver by any party hereto of a breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent breach.
SECTION 4.5 Third Parties. This Agreement does not create any rights, claims or benefits inuring to any person that is not a party
hereto nor create or establish any third party beneficiary hereto.
SECTION 4.6 Governing Law. This Agreement shall be governed by,
and construed and enforced in accordance with, the laws of the State of New York.
SECTION 4.7 CONSENT TO JURISDICTION. EACH OF THE
PARTIES HERETO CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE STATE OF NEW YORK AND IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS RELATING TO THIS AGREEMENT SHALL BE LITIGATED IN SUCH COURTS. EACH OF THE
PARTIES HERETO ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS RESPECTIVE PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND
BY ANY FINAL AND NONAPPEALABLE JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. EACH OF THE PARTIES HERETO FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY
THE MAILING OF COPIES THEREOF VIA OVERNIGHT COURIER, TO SUCH PARTY AT THE ADDRESS SPECIFIED IN THIS AGREEMENT, SUCH SERVICE TO BECOME EFFECTIVE FOURTEEN CALENDAR DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL IN ANY WAY BE DEEMED TO LIMIT THE ABILITY
OF EITHER PARTY HERETO TO SERVE ANY SUCH LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW OR TO OBTAIN JURISDICTION OVER OR TO BRING ACTIONS, SUITS OR PROCEEDINGS AGAINST THE OTHER PARTY HERETO IN SUCH
OTHER JURISDICTIONS, AND IN SUCH MANNER, AS MAY BE PERMITTED BY ANY APPLICABLE LAW.
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SECTION 4.8 MUTUAL WAIVER OF JURY TRIAL. THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES UNDER THIS AGREEMENT.
SECTION 4.9 Specific
Performance. Each of the parties hereto acknowledges and agrees that in the event of any breach of this Agreement by any of them, the non-breaching party would be irreparably harmed and could not be made whole by monetary damages. Each party
accordingly agrees to waive the defense in any action for specific performance that a remedy at law would be adequate and that the parties, in addition to any other remedy to which they may be entitled at law or in equity, shall be entitled to
compel specific performance of this Agreement.
SECTION 4.10 Entire Agreement. This Agreement sets forth the entire understanding
of the parties hereto with respect to the subject matter hereof. There are no agreements, representations, warranties, covenants or undertakings with respect to the subject matter hereof other than those expressly set forth herein. This Agreement
supersedes all other prior agreements and understandings between the parties with respect to such subject matter.
SECTION 4.11
Severability. If one or more of the provisions, paragraphs, words, clauses, phrases or sentences contained herein, or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision, paragraph, word, clause, phrase or sentence in every other respect and of the remaining provisions, paragraphs, words, clauses, phrases or sentences hereof shall not be in any way
impaired, it being intended that all rights, powers and privileges of the parties hereto shall be enforceable to the fullest extent permitted by Law.
SECTION 4.12 Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original
and all of which together will be deemed to be one and the same instrument.
SECTION 4.13 Effectiveness. This Agreement shall
become effective, as to any Holder, as of the date signed by the Company and countersigned by such Holder.
[Remainder of Page
Intentionally Left Blank]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written
above.
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COMPANY: |
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CATALENT, INC. |
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By: |
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/s/ Matthew Walsh |
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Name: |
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Matthew Walsh |
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Title: |
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Executive Vice President and Chief Financial Officer |
[Signature Page to
Registration Rights Agreement]
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BLACKSTONE: |
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BLACKSTONE HEALTHCARE PARTNERS L.L.C. |
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By: |
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BLACKSTONE CAPITAL PARTNERS V, L.P., managing member |
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By: |
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BLACKSTONE MANAGEMENT ASSOCIATES V L.L.C., its general partner |
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By: |
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/s/ Chinh E. Chu |
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Name: |
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Chinh E. Chu |
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Title: |
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Senior Managing Director |
[Signature Page to
Registration Rights Agreement]
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GENSTAR: |
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GENSTAR PHOENIX HOLDINGS, LLC |
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By: |
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/s/ Robert J. Weltman |
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Name: |
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Robert J. Weltman |
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Title: |
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Managing Director |
[Signature Page to
Registration Rights Agreement]
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AISLING CAPITAL II, L.P. |
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By: |
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/s/ Lloyd Appel |
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Name: |
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Lloyd Appel |
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Title: |
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Chief Financial Officer |
[Signature Page to
Registration Rights Agreement]
Schedule A
Management Stockholders
Exhibit 10.3
CATALENT, INC.
2014
OMNIBUS INCENTIVE PLAN
1. Purpose. The purpose of the Catalent, Inc. 2014 Omnibus Incentive Plan is to provide a means through
which the Company and its Affiliates may attract and retain key personnel and to provide a means whereby directors, officers, employees, consultants and advisors (and prospective directors, officers, employees, consultants and advisors) of the
Company and its Affiliates can acquire and maintain an equity interest in the Company, or be paid incentive compensation, including incentive compensation measured by reference to the value of Common Stock, thereby strengthening their commitment to
the welfare of the Company and its Affiliates and aligning their interests with those of the Companys stockholders.
2.
Definitions. The following definitions shall be applicable throughout the Plan.
(a) Absolute Share Limit has
the meaning given such term in Section 5(b) of the Plan.
(b) Affiliate means any Person that directly or
indirectly controls, is controlled by or is under common control with the Company. The term control (including, with correlative meaning, the terms controlled by and under common control with), as applied to any
Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting or other securities, by contract or otherwise.
(c) Award means, individually or collectively, any Incentive Stock Option, Nonqualified Stock Option, Stock Appreciation
Right, Restricted Stock, Restricted Stock Unit, Other Stock-Based Award and Performance Compensation Award granted under the Plan.
(d)
Board means the Board of Directors of the Company.
(e) Cause means, as to any Participant, unless
the applicable Award agreement states otherwise, Cause as such term may be defined in any employment agreement in effect at the time of the Participants termination of employment between the Participant and a Service Recipient, or,
if there is no such employment agreement or such term is not defined therein, (i) the Participants willful failure to perform duties which is not cured within 15 days following written notice, (ii) the Participants conviction
or confessing to or becoming subject to proceedings that provide a reasonable basis for the Company to believe that the Participant has engaged in a (x) felony, (y) crime involving dishonesty, or (z) crime involving moral turpitude
and which is demonstrably injurious to the Company and its Subsidiaries, (iii) the Participants willful malfeasance or misconduct which is demonstrably injurious to the Company and its Subsidiaries, or (iv) breach by the Participant
of the material terms of any agreement with the Company or its Subsidiaries, including, without limitation, any non-competition, non-solicitation or confidentiality provisions thereof. For purposes of this definition, no act or failure to act shall
be deemed willful unless effected by the Participant not in good faith.
(f) Change in Control means:
(i) the acquisition (whether by purchase, merger, consolidation, combination or other similar transaction) by any Person of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than 50% (on a fully diluted basis) of either (A) the then outstanding shares of Common Stock, taking into account as outstanding for this
purpose such Common Stock issuable upon the exercise of options or warrants, the conversion of convertible stock or debt, and the exercise of any similar right to acquire such Common Stock or (B) the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally in the election of directors; provided, however, that for purposes of this Plan, the following acquisitions shall not constitute a Change in Control: (I) any
acquisition by the Company or any Affiliate; (II) any acquisition by any employee benefit plan sponsored or maintained by the Company or any Affiliate; or (III) in respect of an Award held by a particular Participant, any acquisition by the
Participant or any group of Persons including the Participant (or any entity controlled by the Participant or any group of Persons including the Participant);
(ii) during any period of twenty-four months, individuals who, at the beginning of such period, constitute the Board (the
Incumbent Directors) cease for any reason to constitute at least a majority of the Board, provided that any person becoming a director subsequent to the date hereof, whose election or nomination for election was approved by a vote
of at least two-thirds of the Incumbent Directors then on the Board (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for director, without written objection to such
nomination) shall be an Incumbent Director; provided, however, that no individual initially elected or nominated as a director of the Company as a result of an actual or threatened election contest, as such terms are used in Rule
14a-12 of Regulation 14A promulgated under the Exchange Act, with respect to directors or as a result of any other actual or threatened solicitation of proxies or consents by or on behalf of any person other than the Board shall be deemed to be an
Incumbent Director; or
(iii) the sale, transfer or other disposition of all or substantially all of the assets of the
Company to any Person that is not an Affiliate of the Company.
(g) Code means the Internal Revenue Code of 1986, as
amended, and any successor thereto. Reference in the Plan to any section of the Code shall be deemed to include any regulations or other interpretative guidance under such section, and any amendments or successor provisions to such section,
regulations or guidance.
(h) Committee means the Compensation Committee of the Board or subcommittee thereof if
required with respect to actions taken to comply with Section 162(m) of the Code in respect of Awards or, if no such Compensation Committee or subcommittee thereof exists, the Board.
(i) Common Stock means the common stock, par value $0.01 per share, of the Company (and any stock or other securities into
which such Common Stock may be converted or into which it may be exchanged).
2
(j) Company means Catalent, Inc., a Delaware corporation, and any successor
thereto.
(k) Date of Grant means the date on which the granting of an Award is authorized, or such other date as may
be specified in such authorization.
(l) Designated Foreign Subsidiaries means all Affiliates organized under the laws
of any jurisdiction or country other than the United States of America that may be designated by the Board or the Committee from time to time.
(m) Detrimental Activity means any of the following: (i) unauthorized disclosure of any confidential or proprietary
information of the Company or its Affiliates; (ii) any activity that would be grounds to terminate the Participants employment or service with the Service Recipient for Cause; (iii) whether in writing or orally, maligning,
denigrating or disparaging the Company, its Affiliates or their respective predecessors and successors, or any of the current or former directors, officers, employees, shareholders, partners, members, agents or representatives of any of the
foregoing, with respect to any of their respective past or present activities, or otherwise publishing (whether in writing or orally) statements that tend to portray any of the aforementioned persons or entities in an unfavorable light;
(iv) the breach of any non-competition, non-solicitation or other agreement containing restrictive covenants, with the Company or its Affiliates; or (v) fraud or conduct contributing to any financial restatements or irregularities, as
determined by the Committee in its sole discretion.
(n) Disability means, as to any Participant, unless the applicable
Award agreement states otherwise, Disability as such term may be defined in any employment agreement in effect at the time of the Participants termination of employment between the Participant and a Service Recipient, or, if there
is no such employment agreement or such term is not defined therein, the Participant becomes physically or mentally incapacitated and is therefore unable for a period of six (6) consecutive months or for an aggregate of nine (9) months in
any twenty-four (24) consecutive month period to perform the Participants duties.
(o) Effective Date means
July 29, 2014.
(p) Eligible Director means a person who is (i) a non-employee director within
the meaning of Rule 16b-3 under the Exchange Act, (ii) an outside director within the meaning of Section 162(m) of the Code and (iii) an independent director under the rules of the NYSE or any other securities
exchange or inter-dealer quotation system on which the Common Stock is listed or quoted, or a person meeting any similar requirement under any successor rule or regulation.
(q) Eligible Person means any (i) individual employed by the Company or an Affiliate; provided, however,
that no such employee covered by a collective bargaining agreement shall be an Eligible Person unless and to the extent that such eligibility is set forth in such collective bargaining agreement or in an agreement or instrument relating thereto,
(ii) director or officer of the Company or an Affiliate, (iii) consultant or advisor to the Company or an Affiliate who may be offered securities registrable pursuant to a registration statement on Form S-8 under the Securities Act, or
(iv) any prospective employees, directors, officers,
3
consultants or advisors who have accepted offers of employment or consultancy from the Company or one of its Affiliates (and would satisfy the provisions of clauses (i) through
(iii) above once he or she begins employment with or providing services to the Company or one of its Affiliates), who, in the case of each of clauses (i) through (iv) above has entered into an Award agreement or who has received
written notification from the Committee or its designee that they have been selected to participate in the Plan. Solely for purposes of this Section 2(q), Affiliate shall be limited to (1) a Subsidiary, (2) any parent
corporation of the Company within the meaning of Section 424(e) of the Code (Parent), (3) any corporation, trade or business of which 50% or more of the combined voting power of such entitys outstanding securities
is directly or indirectly controlled by the Company or any Subsidiary or Parent, or (4) any corporation, trade or business which directly or indirectly controls 50% or more of the combined voting power of the outstanding securities of the
Company.
(r) Exchange Act means the Securities Exchange Act of 1934, as amended, and any successor thereto. Reference
in the Plan to any section of (or rule promulgated under) the Exchange Act shall be deemed to include any rules, regulations or other interpretative guidance under such section or rule, and any amendments or successor provisions to such section,
rules, regulations or guidance.
(s) Exercise Price has the meaning given such term in Section 7(b) of the Plan.
(t) Fair Market Value means, on a given date, (i) if the Common Stock is listed on a national securities
exchange, the closing sales price of the Common Stock reported on the primary exchange on which the Common Stock is listed and traded on such date, or, if there are no such sales on that date, then on the last preceding date on which such sales were
reported, (ii) if the Common Stock is not listed on any national securities exchange but is quoted in an inter-dealer quotation system on a last sale basis, the average between the closing bid price and ask price reported on such date, or, if
there is no such sale on that date, then on the last preceding date on which a sale was reported, or (iii) if the Common Stock is not listed on a national securities exchange or quoted in an inter-dealer quotation system on a last sale basis,
the amount determined by the Committee in good faith to be the fair market value of the Common Stock; provided, however, as to any Awards granted on or with a Date of Grant of the date of the pricing of the Companys initial
public offering, Fair Market Value shall be equal to the per share price the Common Stock is offered to the public in connection with such initial public offering.
(u) Immediate Family Members has the meaning given such term in Section 14(b) of the Plan.
(v) Incentive Stock Option means an Option which is designated by the Committee as an incentive stock option as described
in Section 422 of the Code and otherwise meets the requirements set forth in the Plan.
(w) Indemnifiable Person
has the meaning given such term in Section 4(e) of the Plan.
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(x) Negative Discretion means the discretion authorized by the Plan to be
applied by the Committee to eliminate or reduce the size of a Performance Compensation Award consistent with Section 162(m) of the Code.
(y) Nonqualified Stock Option means an Option which is not designated by the Committee as an Incentive Stock Option.
(z) Non-Employee Director means a member of the Board who is not an employee of the Company or any Affiliate.
(aa) NYSE means the New York Stock Exchange.
(bb) Option means an Award granted under Section 7 of the Plan.
(cc) Option Period has the meaning given such term in Section 7(c) of the Plan.
(dd) Other Stock-Based Award means an Award granted under Section 10 of the Plan.
(ee) Participant means an Eligible Person who has been selected by the Committee to participate in the Plan and to receive
an Award pursuant to the Plan.
(ff) Performance Compensation Award means any Award designated by the Committee as a
Performance Compensation Award pursuant to Section 11 of the Plan.
(gg) Performance Criteria means the criterion
or criteria that the Committee shall select for purposes of establishing the Performance Goals for a Performance Period with respect to any Performance Compensation Award under the Plan.
(hh) Performance Formula means, for a Performance Period, the one or more objective formulae applied against the relevant
Performance Goal to determine, with regard to the Performance Compensation Award of a particular Participant, whether all, some portion but less than all, or none of the Performance Compensation Award has been earned for the Performance Period.
(ii) Performance Goals means, for a Performance Period, the one or more goals established by the Committee for the
Performance Period based upon the Performance Criteria.
(jj) Performance Period means the one or more periods of time
of not less than 12 months, as the Committee may select, over which the attainment of one or more Performance Goals will be measured for the purpose of determining a Participants right to, and the payment of, a Performance Compensation Award.
(kk) Permitted Transferee has the meaning given such term in Section 14(b) of the Plan.
(ll) Person means any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange
Act).
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(mm) Plan means this Catalent, Inc. 2014 Omnibus Incentive Plan, as it may be
amended from time to time.
(nn) Restricted Period means the period of time determined by the Committee during which an
Award is subject to restrictions or, as applicable, the period of time within which performance is measured for purposes of determining whether an Award has been earned.
(oo) Restricted Stock means Common Stock, subject to certain specified restrictions (which may include, without limitation,
a requirement that the Participant remain continuously employed or provide continuous services for a specified period of time), granted under Section 9 of the Plan.
(pp) Restricted Stock Unit means an unfunded and unsecured promise to deliver shares of Common Stock, cash, other
securities or other property, subject to certain restrictions (which may include, without limitation, a requirement that the Participant remain continuously employed or provide continuous services for a specified period of time), granted under
Section 9 of the Plan.
(qq) SAR Period has the meaning given such term in Section 8(c) of the Plan.
(rr) Securities Act means the Securities Act of 1933, as amended, and any successor thereto. Reference in the Plan to any
section of (or rule promulgated under) the Securities Act shall be deemed to include any rules, regulations or other interpretative guidance under such section or rule, and any amendments or successor provisions to such section, rules, regulations
or guidance.
(ss) Service Recipient means, with respect to a Participant holding a given Award, either the Company or
an Affiliate of the Company by which the original recipient of such Award is, or following a Termination was most recently, principally employed or to which such original recipient provides, or following a Termination was most recently providing,
services, as applicable.
(tt) Stock Appreciation Right or SAR means an Award granted under
Section 8 of the Plan.
(uu) Strike Price has the meaning given such term in Section 8(b) of the Plan.
(vv) Subsidiary means, with respect to any specified Person:
(i) any corporation, association or other business entity of which more than 50% of the total voting power of shares of such
entitys voting securities (without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders agreement that effectively transfers voting power) is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and
(ii) any partnership (or any comparable foreign entity) (A) the sole general partner (or functional equivalent thereof) or
the managing general partner of which is
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such Person or Subsidiary of such Person or (B) the only general partners (or functional equivalents thereof) of which are that Person or one or more Subsidiaries of that Person (or any
combination thereof).
(ww) Substitute Award has the meaning given such term in Section 5(e) of the Plan.
(xx) Sub-Plans means any sub-plan to this Plan that has been adopted by the Board or the Committee for the purpose of
permitting the offering of Awards to employees of certain Designated Foreign Subsidiaries or otherwise outside the United States of America, with each such sub-plan designed to comply with local laws applicable to offerings in such foreign
jurisdictions. Although any Sub-Plan may be designated a separate and independent plan from the Plan in order to comply with applicable local laws, the Absolute Share Limit shall apply in the aggregate to the Plan and any Sub-Plan adopted hereunder.
(yy) Termination means the termination of a Participants employment or service, as applicable, with the Service
Recipient.
3. Effective Date; Duration. The Plan shall be effective as of the Effective Date. The expiration date of the Plan, on
and after which date no Awards may be granted hereunder, shall be the tenth anniversary of the Effective Date; provided, however, that such expiration shall not affect Awards then outstanding, and the terms and conditions of the Plan
shall continue to apply to such Awards.
4. Administration.
(a) The Committee shall administer the Plan. To the extent required to comply with the provisions of Rule 16b-3 promulgated under the Exchange
Act (if the Board is not acting as the Committee under the Plan) or necessary to obtain the exception for performance-based compensation under Section 162(m) of the Code, as applicable, it is intended that each member of the Committee shall, at
the time he or she takes any action with respect to an Award under the Plan that is subject to Rule 16b-3 or Section 162(m) of the Code, as applicable, be an Eligible Director. However, the fact that a Committee member shall fail to qualify as
an Eligible Director shall not invalidate any Award granted by the Committee that is otherwise validly granted under the Plan.
(b)
Subject to the provisions of the Plan and applicable law, the Committee shall have the sole and plenary authority, in addition to other express powers and authorizations conferred on the Committee by the Plan, to: (i) designate Participants;
(ii) determine the type or types of Awards to be granted to a Participant; (iii) determine the number of shares of Common Stock to be covered by, or with respect to which payments, rights, or other matters are to be calculated in
connection with, Awards; (iv) determine the terms and conditions of any Award; (v) determine whether, to what extent, and under what circumstances Awards may be settled or exercised in cash, shares of Common Stock, other securities, other
Awards or other property, or canceled, forfeited, or suspended and the method or methods by which Awards may be settled, exercised, canceled, forfeited, or suspended; (vi) determine whether, to what extent, and under what circumstances the
delivery of cash, shares of Common Stock, other securities, other Awards or other property and other amounts payable with respect to an Award shall be deferred either
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automatically or at the election of the Participant or of the Committee; (vii) interpret, administer, reconcile any inconsistency in, correct any defect in and/or supply any omission in the
Plan and any instrument or agreement relating to, or Award granted under, the Plan; (viii) establish, amend, suspend, or waive any rules and regulations and appoint such agents as the Committee shall deem appropriate for the proper
administration of the Plan; (ix) make any other determination and take any other action that the Committee deems necessary or desirable for the administration of the Plan; and (x) adopt Sub-Plans.
(c) Except to the extent prohibited by applicable law or the applicable rules and regulations of any securities exchange or inter-dealer
quotation system on which the securities of the Company are listed or traded, the Committee may allocate all or any portion of its responsibilities and powers to any one or more of its members and may delegate all or any part of its responsibilities
and powers to any person or persons selected by it. Any such allocation or delegation may be revoked by the Committee at any time. Without limiting the generality of the foregoing, the Committee may delegate to one or more officers of the Company or
any Subsidiary the authority to act on behalf of the Committee with respect to any matter, right, obligation, or election which is the responsibility of or which is allocated to the Committee herein, and which may be so delegated as a matter of law,
except for grants of Awards to Non-Employee Directors. Without limiting the generality of the foregoing, the Committee may delegate to one or more officers of the Company or any Subsidiary the authority to act on behalf of the Committee with respect
to any matter, right, obligation, or election which is the responsibility of or which is allocated to the Committee herein, and which may be so delegated as a matter of law, except for grants of Awards to persons (i) who are Non-Employee
Directors or otherwise are subject to Section 16 of the Exchange Act or (ii) who are, or who are reasonably expected to be, covered employees for purposes of Section 162(m) of the Code.
(d) Unless otherwise expressly provided in the Plan, all designations, determinations, interpretations, and other decisions under or with
respect to the Plan or any Award or any documents evidencing Awards granted pursuant to the Plan shall be within the sole discretion of the Committee, may be made at any time and shall be final, conclusive and binding upon all persons or entities,
including, without limitation, the Company, any of its Affiliates, any Participant, any holder or beneficiary of any Award, and any stockholder of the Company.
(e) No member of the Board, the Committee or any employee or agent of the Company or any Subsidiary (each such person, an
Indemnifiable Person) shall be liable for any action taken or omitted to be taken or any determination made with respect to the Plan or any Award hereunder (unless constituting fraud or a willful criminal act or omission). Each
Indemnifiable Person shall be indemnified and held harmless by the Company against and from any loss, cost, liability, or expense (including attorneys fees) that may be imposed upon or incurred by such Indemnifiable Person in connection with
or resulting from any action, suit or proceeding to which such Indemnifiable Person may be a party or in which such Indemnifiable Person may be involved by reason of any action taken or omitted to be taken or determination made under the Plan or any
Award agreement and against and from any and all amounts paid by such Indemnifiable Person with the Companys approval, in settlement thereof, or paid by such Indemnifiable Person in satisfaction of any judgment in any such action, suit or
proceeding against such Indemnifiable Person, and the Company shall advance to such Indemnifiable Person any such expenses promptly upon written request (which request shall include an undertaking by
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the Indemnifiable Person to repay the amount of such advance if it shall ultimately be determined as provided below that the Indemnifiable Person is not entitled to be indemnified);
provided, that the Company shall have the right, at its own expense, to assume and defend any such action, suit or proceeding and once the Company gives notice of its intent to assume the defense, the Company shall have sole control over such
defense with counsel of the Companys choice. The foregoing right of indemnification shall not be available to an Indemnifiable Person to the extent that a final judgment or other final adjudication (in either case not subject to further
appeal) binding upon such Indemnifiable Person determines that the acts or omissions or determinations of such Indemnifiable Person giving rise to the indemnification claim resulted from such Indemnifiable Persons fraud or willful criminal act
or omission or that such right of indemnification is otherwise prohibited by law or by the Companys or any Subsidiarys organizational documents. The foregoing right of indemnification shall not be exclusive of or otherwise supersede any
other rights of indemnification to which such Indemnifiable Persons may be entitled under the Companys Certificate of Incorporation or Bylaws, as a matter of law, individual indemnification agreement or contract or otherwise, or any other
power that the Company may have to indemnify such Indemnifiable Persons or hold them harmless.
(f) Notwithstanding anything to the
contrary contained in the Plan, the Board may, in its sole discretion, at any time and from time to time, grant Awards and administer the Plan with respect to such Awards. Any such actions by the Board shall be subject to the applicable rules of the
NYSE or any other securities exchange or inter-dealer quotation system on which the Common Stock is listed or quoted. In any such case, the Board shall have all the authority granted to the Committee under the Plan.
5. Grant of Awards; Shares Subject to the Plan; Limitations.
(a) The Committee may, from time to time, grant Awards to one or more Eligible Persons.
(b) Awards granted under the Plan shall be subject to the following limitations: (i) subject to Section 12 of the Plan, no more than
6,700,000 shares of Common Stock (the Absolute Share Limit) shall be available for Awards under the Plan; (ii) subject to Section 12 of the Plan, grants of Options or SARs under the Plan in respect of no more than
1,500,000 shares of Common Stock may be made to any individual Participant during any single fiscal year of the Company (for this purpose, if a SAR is granted in tandem with an Option (such that the SAR expires with respect to the number of shares
of Common Stock for which the Option is exercised), only the shares underlying the Option shall count against this limitation); (iii) subject to Section 12 of the Plan, no more than the number of shares of Common Stock equal to the
Absolute Share Limit may be issued in the aggregate pursuant to the exercise of Incentive Stock Options granted under the Plan; (iv) subject to Section 12 of the Plan, no more than 600,000 shares of Common Stock may be issued in respect of
Performance Compensation Awards denominated in shares of Common Stock granted pursuant to Section 11 of the Plan to any individual Participant for a single fiscal year during a Performance Period (or with respect to each single fiscal year in
the event a Performance Period extends beyond a single fiscal year), or in the event such share denominated Performance Compensation Award is paid in cash, other securities, other Awards or other property, no more than the Fair Market Value of such
shares of Common Stock on the last day of the Performance Period to which such Award relates; (v) the
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maximum number of shares of Common Stock subject to Awards granted during a single fiscal year to any Non-Employee Director, taken together with any cash fees paid to such Non-Employee Director
during the fiscal year, shall not exceed $500,000 in total value (calculating the value of any such Awards based on the grant date fair value of such Awards for financial reporting purposes); and (vi) the maximum amount that can be paid to any
individual Participant for a single fiscal year during a Performance Period (or with respect to each single fiscal year in the event a Performance Period extends beyond a single fiscal year) pursuant to a Performance Compensation Award denominated
in cash (described in Section 11(a) of the Plan) shall be $5,000,000.
(c) Other than with respect to Substitute Awards, to the
extent that an Award expires or is canceled, forfeited, terminated, settled in cash, or otherwise is settled without a delivery to the Participant of the full number of shares of Common Stock to which the Award related, the undelivered shares will
again be available for grant. Shares of Common Stock withheld in payment of the exercise price or taxes relating to an Award and shares equal to the number of shares surrendered in payment of any Exercise Price or Strike Price, or taxes relating to
an Award, shall be deemed to constitute shares not issued to the Participant and shall be deemed to again be available for Awards under the Plan; provided, however, that such shares shall not become available for issuance hereunder if
either (i) the applicable shares are withheld or surrendered following the termination of the Plan or (ii) at the time the applicable shares are withheld or surrendered, it would constitute a material revision of the Plan subject to
stockholder approval under any then-applicable rules of the national securities exchange on which the Common Stock is listed.
(d) Shares
of Common Stock issued by the Company in settlement of Awards may be authorized and unissued shares, shares held in the treasury of the Company, shares purchased on the open market or by private purchase or a combination of the foregoing. Following
the Effective Date, no further awards shall be granted under the 2007 PTS Holdings Corp. Stock Incentive Plan, as amended and restated from time to time.
(e) Awards may, in the sole discretion of the Committee, be granted under the Plan in assumption of, or in substitution for, outstanding
awards previously granted by an entity directly or indirectly acquired by the Company or with which the Company combines (Substitute Awards). Substitute Awards shall not be counted against the Absolute Share Limit;
provided, that Substitute Awards issued in connection with the assumption of, or in substitution for, outstanding options intended to qualify as incentive stock options within the meaning of Section 422 of the Code shall be
counted against the aggregate number of shares of Common Stock available for Awards of Incentive Stock Options under the Plan. Subject to applicable stock exchange requirements, available shares under a stockholder approved plan of an entity
directly or indirectly acquired by the Company or with which the Company combines (as appropriately adjusted to reflect the acquisition or combination transaction) may be used for Awards under the Plan and shall not reduce the number of shares of
Common Stock available for issuance under the Plan.
6. Eligibility. Participation in the Plan shall be limited to Eligible
Persons.
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7. Options.
(a) General. Each Option granted under the Plan shall be evidenced by an Award agreement, in written or electronic form, which
agreement need not be the same for each Participant. Each Option so granted shall be subject to the conditions set forth in this Section 7, and to such other conditions not inconsistent with the Plan as may be reflected in the applicable Award
agreement. All Options granted under the Plan shall be Nonqualified Stock Options unless the applicable Award agreement expressly states that the Option is intended to be an Incentive Stock Option. Incentive Stock Options shall be granted only to
Eligible Persons who are employees of the Company and its Affiliates, and no Incentive Stock Option shall be granted to any Eligible Person who is ineligible to receive an Incentive Stock Option under the Code. No Option shall be treated as an
Incentive Stock Option unless the Plan has been approved by the stockholders of the Company in a manner intended to comply with the stockholder approval requirements of Section 422(b)(1) of the Code, provided that any Option intended to
be an Incentive Stock Option shall not fail to be effective solely on account of a failure to obtain such approval, but rather such Option shall be treated as a Nonqualified Stock Option unless and until such approval is obtained. In the case of an
Incentive Stock Option, the terms and conditions of such grant shall be subject to and comply with such rules as may be prescribed by Section 422 of the Code. If for any reason an Option intended to be an Incentive Stock Option (or any portion
thereof) shall not qualify as an Incentive Stock Option, then, to the extent of such nonqualification, such Option or portion thereof shall be regarded as a Nonqualified Stock Option appropriately granted under the Plan.
(b) Exercise Price. Except as otherwise provided by the Committee in the case of Substitute Awards, the exercise price
(Exercise Price) per share of Common Stock for each Option shall not be less than 100% of the Fair Market Value of such share (determined as of the Date of Grant); provided, however, that in the case of an Incentive
Stock Option granted to an employee who, at the time of the grant of such Option, owns stock representing more than 10% of the voting power of all classes of stock of the Company or any Affiliate, the Exercise Price per share shall be no less than
110% of the Fair Market Value per share on the Date of Grant.
(c) Vesting and Expiration; Termination.
(i) Options shall vest and become exercisable in such manner and on such date or dates or upon such events as determined by the
Committee; provided, however, that notwithstanding any such vesting dates or events, the Committee may, in its sole discretion, accelerate the vesting of any Options at any time and for any reason. Options shall expire upon a date determined
by the Committee, not to exceed ten years from the Date of Grant (the Option Period); provided, that if the Option Period (other than in the case of an Incentive Stock Option) would expire at a time when trading in the
shares of Common Stock is prohibited by the Companys insider trading policy (or Company-imposed blackout period), then the Option Period shall be automatically extended until the
30th day following the expiration of such prohibition. Notwithstanding the foregoing, in no event shall the Option Period exceed five years from the Date of Grant in the case of an Incentive Stock
Option granted to a Participant who on the Date of Grant owns stock representing more than 10% of the voting power of all classes of stock of the Company or any Affiliate.
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(ii) Unless otherwise provided by the Committee, whether in an Award agreement or
otherwise, in the event of (A) a Participants Termination by the Service Recipient for Cause, all outstanding Options granted to such Participant shall immediately terminate and expire, (B) a Participants Termination due to
death or Disability, each outstanding unvested Option granted to such Participant shall immediately terminate and expire, and each outstanding vested Option shall remain exercisable for one year thereafter (but in no event beyond the expiration of
the Option Period) and (C) a Participants Termination for any other reason, each outstanding unvested Option granted to such Participant shall immediately terminate and expire, and each outstanding vested Option shall remain exercisable
for ninety (90) days thereafter (but in no event beyond the expiration of the Option Period).
(d) Method of Exercise and Form of
Payment. No shares of Common Stock shall be issued pursuant to any exercise of an Option until payment in full of the Exercise Price therefor is received by the Company and the Participant has paid to the Company an amount equal to any Federal,
state, local and non-U.S. income, employment and any other applicable taxes required to be withheld. Options which have become exercisable may be exercised by delivery of written or electronic notice of exercise to the Company (or telephonic
instructions to the extent provided by the Committee) in accordance with the terms of the Option accompanied by payment of the Exercise Price. The Exercise Price shall be payable (i) in cash, check, cash equivalent and/or shares of Common Stock
valued at the Fair Market Value at the time the Option is exercised (including, pursuant to procedures approved by the Committee, by means of attestation of ownership of a sufficient number of shares of Common Stock in lieu of actual issuance of
such shares to the Company); provided, that such shares of Common Stock are not subject to any pledge or other security interest; or (ii) by such other method as the Committee may permit in its sole discretion, including without
limitation: (A) in other property having a fair market value on the date of exercise equal to the Exercise Price, (B) if there is a public market for the shares of Common Stock at such time, by means of a broker-assisted cashless
exercise pursuant to which the Company is delivered (including telephonically to the extent permitted by the Committee) a copy of irrevocable instructions to a stockbroker to sell the shares of Common Stock otherwise issuable upon the exercise
of the Option and to deliver promptly to the Company an amount equal to the Exercise Price or (C) a net exercise procedure effected by withholding the minimum number of shares of Common Stock otherwise issuable in respect of an
Option that are needed to pay the Exercise Price and all applicable required withholding and any other applicable taxes. Any fractional shares of Common Stock shall be settled in cash.
(e) Notification upon Disqualifying Disposition of an Incentive Stock Option. Each Participant awarded an Incentive Stock Option under
the Plan shall notify the Company in writing immediately after the date he or she makes a disqualifying disposition of any Common Stock acquired pursuant to the exercise of such Incentive Stock Option. A disqualifying disposition is any disposition
(including, without limitation, any sale) of such Common Stock before the later of (A) two years after the Date of Grant of the Incentive Stock Option or (B) one year after the date of exercise of the Incentive Stock Option. The Company
may, if determined by the Committee and in accordance with procedures established by the Committee, retain possession, as agent for the applicable Participant, of any Common Stock acquired pursuant to the exercise of an Incentive Stock Option until
the end of the period described in the preceding sentence, subject to complying with any instructions from such Participant as to the sale of such Common Stock.
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(f) Compliance With Laws, etc. Notwithstanding the foregoing, in no event shall a
Participant be permitted to exercise an Option in a manner which the Committee determines would violate the Sarbanes-Oxley Act of 2002, as it may be amended from time to time, or any other applicable law or the applicable rules and regulations of
the Securities and Exchange Commission or the applicable rules and regulations of any securities exchange or inter-dealer quotation system on which the securities of the Company are listed or traded.
8. Stock Appreciation Rights.
(a) General. Each SAR granted under the Plan shall be evidenced by an Award agreement. Each SAR so granted shall be subject to the
conditions set forth in this Section 8, and to such other conditions not inconsistent with the Plan as may be reflected in the applicable Award agreement. Any Option granted under the Plan may include tandem SARs. The Committee also may award
SARs to Eligible Persons independent of any Option.
(b) Strike Price. Except as otherwise provided by the Committee in the case of
Substitute Awards, the strike price (Strike Price) per share of Common Stock for each SAR shall not be less than 100% of the Fair Market Value of such share (determined as of the Date of Grant). Notwithstanding the foregoing, a
SAR granted in tandem with (or in substitution for) an Option previously granted shall have a Strike Price equal to the Exercise Price of the corresponding Option.
(c) Vesting and Expiration; Termination.
(i) A SAR granted in connection with an Option shall become exercisable and shall expire according to the same vesting schedule
and expiration provisions as the corresponding Option. A SAR granted independent of an Option shall vest and become exercisable in such manner and on such date or dates or upon such events as determined by the Committee; provided, however,
that, notwithstanding any such vesting dates or events, the Committee may, in its sole discretion, accelerate the vesting of any SAR at any time and for any reason. SARs shall expire upon a date determined by the Committee, not to exceed ten years
from the Date of Grant (the SAR Period); provided, that if the SAR Period would expire at a time when trading in the shares of Common Stock is prohibited by the Companys insider trading policy (or Company-imposed
blackout period), then the SAR Period shall be automatically extended until the 30th day following the expiration of such prohibition.
(ii) Unless otherwise provided by the Committee, whether in an Award agreement or otherwise, in the event of (A) a
Participants Termination by the Service Recipient for Cause, all outstanding SARs granted to such Participant shall immediately terminate and expire, (B) a Participants Termination due to death or Disability, each outstanding
unvested SAR granted to such Participant shall immediately terminate and expire, and each outstanding vested SAR shall remain exercisable for one (1) year thereafter (but in no event beyond the expiration of the SAR Period) and (C) a
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Participants Termination for any other reason, each outstanding unvested SAR granted to such Participant shall immediately terminate and expire, and each outstanding vested SAR shall remain
exercisable for ninety (90) days thereafter (but in no event beyond the expiration of the SAR Period).
(d) Method of
Exercise. SARs which have become exercisable may be exercised by delivery of written or electronic notice of exercise to the Company in accordance with the terms of the Award, specifying the number of SARs to be exercised and the date on which
such SARs were awarded.
(e) Payment. Upon the exercise of a SAR, the Company shall pay to the Participant an amount equal to the
number of shares subject to the SAR that are being exercised multiplied by the excess of the Fair Market Value of one share of Common Stock on the exercise date over the Strike Price, less an amount equal to any Federal, state, local and non-U.S.
income, employment, and any other applicable taxes required to be withheld. The Company shall pay such amount in cash, in shares of Common Stock valued at Fair Market Value, or any combination thereof, as determined by the Committee. Any fractional
shares of Common Stock shall be settled in cash.
(f) Substitution of SARs for Nonqualified Stock Options. The Committee shall have
the authority in its sole discretion to substitute, without the consent of the affected Participant or any holder or beneficiary of SARs, SARs settled in shares of Common Stock (or settled in shares or cash in the sole discretion of the Committee)
for outstanding Nonqualified Stock Options, provided that (i) the substitution shall not otherwise result in a modification of the terms of any such Nonqualified Stock Option, (ii) the number of shares of Common Stock underlying the
substituted SARs shall be the same as the number of shares of Common Stock underlying such Nonqualified Stock Options and (iii) the Strike Price of the substituted SARs shall be equal to the Exercise Price of such Nonqualified Stock Options.
9. Restricted Stock and Restricted Stock Units.
(a) General. Each grant of Restricted Stock and Restricted Stock Units shall be evidenced by an Award agreement. Each Restricted Stock
and Restricted Stock Unit grant shall be subject to the conditions set forth in this Section 9, and to such other conditions not inconsistent with the Plan as may be reflected in the applicable Award agreement.
(b) Stock Certificates and Book Entry; Escrow or Similar Arrangement. Upon the grant of Restricted Stock, the Committee shall cause a
stock certificate registered in the name of the Participant to be issued or shall cause share(s) of Common Stock to be registered in the name of the Participant and held in book-entry form subject to the Companys directions and, if the
Committee determines that the Restricted Stock shall be held by the Company or in escrow rather than issued to the Participant pending the release of the applicable restrictions, the Committee may require the Participant to additionally execute and
deliver to the Company (i) an escrow agreement satisfactory to the Committee, if applicable, and (ii) the appropriate stock power (endorsed in blank) with respect to the Restricted Stock covered by such agreement. If a Participant shall
fail to execute and deliver (in a manner permitted under Section 14(a) of the Plan or as otherwise determined by the Committee) an agreement evidencing an Award of
14
Restricted Stock and, if applicable, an escrow agreement and blank stock power within the amount of time specified by the Committee, the Award shall be null and void. Subject to the restrictions
set forth in this Section 9 and the applicable Award agreement, the Participant generally shall have the rights and privileges of a stockholder as to such Restricted Stock, including without limitation the right to vote such Restricted Stock;
provided that if the lapsing of restrictions with respect to any grant of Restricted Stock is contingent on satisfaction of performance conditions (other than or in addition to the passage of time), any dividends payable on such shares of
Restricted Stock shall be held by the Company and delivered (without interest) to the Participant within fifteen (15) days following the date on which the restrictions on such Restricted Stock lapse (and the right to any such accumulated
dividends shall be forfeited upon the forfeiture of the Restricted Stock to which such dividends relate). To the extent shares of Restricted Stock are forfeited, any stock certificates issued to the Participant evidencing such shares shall be
returned to the Company, and all rights of the Participant to such shares and as a stockholder with respect thereto shall terminate without further obligation on the part of the Company.
(c) Restricted Period; Termination.
(i) The Restricted Period with respect to Restricted Stock and Restricted Stock Units shall lapse in such manner and on such
date or dates or upon such events as determined by the Committee; provided, however, that, notwithstanding any such dates or events, the Committee may, in its sole discretion, accelerate the lapse of the Restricted Period at any time and for
any reason.
(ii) Unless otherwise provided by the Committee, whether in an Award agreement or otherwise, in the event of a
Participants Termination for any reason prior to the time that such Participants Restricted Stock or Restricted Stock Units, as applicable, have vested, (x) all vesting with respect to such Participants Restricted Stock or
Restricted Stock Units shall cease and (y) unvested shares of Restricted Stock and unvested Restricted Stock Units, as applicable, shall be forfeited to the Company by the Participant for no consideration as of the date of such Termination.
(d) Issuance of Restricted Stock and Settlement of Restricted Stock Units.
(i) Upon the expiration of the Restricted Period with respect to any shares of Restricted Stock, the restrictions set forth in
the applicable Award agreement shall be of no further force or effect with respect to such shares, except as set forth in the applicable Award agreement. If an escrow arrangement is used, upon such expiration, the Company shall issue to the
Participant, or his or her beneficiary, without charge, the stock certificate (or, if applicable, a notice evidencing a book entry notation) evidencing the shares of Restricted Stock which have not then been forfeited and with respect to which the
Restricted Period has expired (rounded down to the nearest full share). Dividends, if any, that may have been withheld by the Committee and attributable to any particular share of Restricted Stock shall be distributed to the Participant in cash or,
at the sole discretion of the Committee, in shares of Common Stock having a Fair Market Value (on the date of distribution) equal to the amount of such dividends, upon the release of restrictions on such share and, if such share is forfeited, the
Participant shall have no right to such dividends.
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(ii) Unless otherwise provided by the Committee in an Award agreement or
otherwise, upon the expiration of the Restricted Period with respect to any outstanding Restricted Stock Units, the Company shall issue to the Participant, or his or her beneficiary, without charge, one share of Common Stock (or other securities or
other property, as applicable) for each such outstanding Restricted Stock Unit; provided, however, that the Committee may, in its sole discretion, elect to (i) pay cash or part cash and part shares of Common Stock in lieu of
issuing only shares of Common Stock in respect of such Restricted Stock Units or (ii) defer the issuance of shares of Common Stock (or cash or part shares of Common Stock and part cash, as the case may be) beyond the expiration of the
Restricted Period if such extension would not cause adverse tax consequences under Section 409A of the Code. If a cash payment is made in lieu of issuing shares of Common Stock, the amount of such payment shall be equal to the Fair Market Value
of the Common Stock as of the date on which the Restricted Period lapsed with respect to such Restricted Stock Units. To the extent provided in an Award agreement, the holder of outstanding Restricted Stock Units shall be entitled to be credited
with dividend equivalent payments (upon the payment by the Company of dividends on shares of Common Stock) either in cash or, at the sole discretion of the Committee, in shares of Common Stock having a Fair Market Value equal to the amount of such
dividends (and interest may, at the sole discretion of the Committee, be credited on the amount of cash dividend equivalents at a rate and subject to such terms as determined by the Committee), which accumulated dividend equivalents (and interest
thereon, if applicable) shall be payable at the same time as the underlying Restricted Stock Units are settled following the release of restrictions on such Restricted Stock Units, and, if such Restricted Stock Units are forfeited, the Participant
shall have no right to such dividend equivalent payments.
(e) Legends on Restricted Stock. Each certificate, if any, representing
Restricted Stock awarded under the Plan, if any, shall bear a legend substantially in the form of the following, in addition to any other information the Company deems appropriate, until the lapse of all restrictions with respect to such shares of
Common Stock:
TRANSFER OF THIS CERTIFICATE AND THE SHARES REPRESENTED HEREBY IS RESTRICTED PURSUANT TO THE TERMS OF THE CATALENT, INC.
2014 OMNIBUS INCENTIVE PLAN AND A RESTRICTED STOCK AWARD AGREEMENT, BETWEEN CATALENT, INC. AND PARTICIPANT. A COPY OF SUCH PLAN AND AWARD AGREEMENT IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF CATALENT, INC.
10. Other Stock-Based Awards. The Committee may issue unrestricted Common Stock, rights to receive grants of Awards at a future date,
or other Awards denominated in Common Stock (including, without limitation, performance shares or performance units), under the Plan to Eligible Persons, alone or in tandem with other Awards, in such amounts as the Committee shall from time to time
in its sole discretion determine. Each Other Stock-Based
16
Award granted under the Plan shall be evidenced by an Award agreement. Each Other Stock-Based Award so granted shall be subject to such conditions not inconsistent with the Plan as may be
reflected in the applicable Award agreement, including, without limitation, those set forth in Section 14(c) of the Plan.
11.
Performance Compensation Awards.
(a) General. The Committee shall have the authority, at or before the time of grant of any
Award, to designate such Award as a Performance Compensation Award intended to qualify as performance-based compensation under Section 162(m) of the Code. The Committee shall also have the authority to make an award of a cash bonus
to any Participant and designate such Award as a Performance Compensation Award intended to qualify as performance-based compensation under Section 162(m) of the Code. Notwithstanding anything in the Plan to the contrary, if the
Company determines that a Participant who has been granted an Award designated as a Performance Compensation Award is not (or is no longer) a covered employee (within the meaning of Section 162(m) of the Code), the terms and
conditions of such Award may be modified without regard to any restrictions or limitations set forth in this Section 11 (but subject otherwise to the provisions of Section 13 of the Plan).
(b) Discretion of Committee with Respect to Performance Compensation Awards. With regard to a particular Performance Period, the
Committee shall have sole discretion to select the length of such Performance Period, the type(s) of Performance Compensation Awards to be issued, the Performance Criteria that will be used to establish the Performance Goal(s), the kind(s) and/or
level(s) of the Performance Goal(s) that is (are) to apply and the Performance Formula. Within the first ninety (90) days of a Performance Period (or, within any other maximum period allowed under Section 162(m) of the Code), the Committee
shall, with regard to the Performance Compensation Awards to be issued for such Performance Period, exercise its discretion with respect to each of the matters enumerated in the immediately preceding sentence and record the same in writing.
(c) Performance Criteria. The Performance Criteria that will be used to establish the Performance Goal(s) may be based on the
attainment of specific levels of performance of the Company (and/or one or more Affiliates, divisions or operational and/or business units, product lines, brands, business segments, administrative departments, or any combination of the foregoing)
and shall be limited to the following: (i) net earnings or net income (before or after taxes); (ii) basic or diluted earnings per share (before or after taxes); (iii) net revenue or net revenue growth; (iv) gross revenue or gross
revenue growth, gross profit or gross profit growth; (v) net operating profit (before or after taxes); (vi) return measures (including, but not limited to, return on investment, assets, capital, employed capital, invested capital, equity,
or sales); (vii) cash flow measures (including, but not limited to, operating cash flow, free cash flow, and cash flow return on capital), which may but are not required to be measured on a per share basis; (viii) earnings before or after
interest, taxes, depreciation, amortization and/or rent (including EBIT, EBITDA and EBITDAR); (ix) gross or net operating margins; (x) productivity ratios; (xi) share price (including, but not limited to, growth measures and total
stockholder return); (xii) expense targets or cost reduction goals, general and administrative expense savings; (xiii) operating efficiency; (xiv) objective measures of customer satisfaction; (xv) working capital targets;
(xvi) measures of economic value added or other value creation metrics; (xvii) inventory control; (xviii) enterprise value; (xix) sales; (xx) stockholder return; (xxi) client retention;
(xxii)
17
competitive market metrics; (xxiii) employee retention; (xxiv) timely completion of new product rollouts; (xxv) timely launch of new facilities; (xxvi) measurements related to
a new purchasing co-op; (xxvii) objective measures of personal targets, goals or completion of projects (including but not limited to succession and hiring projects, completion of specific acquisitions, reorganizations or other
corporate transactions or capital-raising transactions, expansions of specific business operations and meeting divisional or project budgets); (xxviii) system-wide revenues; (xxix) royalty income; (xxx) comparisons of continuing
operations to other operations; (xxxi) market share; (xxxii) cost of capital, debt leverage year-end cash position or book value; (xxxiii) strategic objectives, development of new product lines and related revenue, sales and margin
targets, co-branding or international operations; or (xxxiv) any combination of the foregoing. Any one or more of the Performance Criteria may be stated as a percentage of another Performance Criteria, or used on an absolute or relative basis
to measure the performance of the Company and/or one or more Affiliates as a whole or any divisions or operational and/or business units, product lines, brands, business segments, administrative departments of the Company and/or one or more
Affiliates or any combination thereof, as the Committee may deem appropriate, or any of the above Performance Criteria may be compared to the performance of a selected group of comparison companies, or a published or special index that the
Committee, in its sole discretion, deems appropriate, or as compared to various stock market indices. The Committee also has the authority to provide for accelerated vesting of any Award based on the achievement of Performance Goals pursuant to the
Performance Criteria specified in this paragraph. To the extent required under Section 162(m) of the Code, the Committee shall, within the first ninety (90) days of a Performance Period (or, within any other maximum period allowed under
Section 162(m) of the Code), define in an objective fashion the manner of calculating the Performance Criteria it selects to use for such Performance Period.
(d) Modification of Performance Goal(s). In the event that applicable tax and/or securities laws change to permit Committee discretion
to alter the governing Performance Criteria without obtaining stockholder approval of such alterations, the Committee shall have sole discretion to make such alterations without obtaining stockholder approval. Unless otherwise determined by the
Committee at the time a Performance Compensation Award is granted, the Committee shall, during the first ninety (90) days of a Performance Period (or, within any other maximum period allowed under Section 162(m) of the Code), or at any
time thereafter to the extent the exercise of such authority at such time would not cause the Performance Compensation Awards granted to any Participant for such Performance Period to fail to qualify as performance-based compensation
under Section 162(m) of the Code, specify adjustments or modifications to be made to the calculation of a Performance Goal for such Performance Period, based on and in order to appropriately reflect the following events: (i) asset
write-downs; (ii) litigation or claim judgments or settlements; (iii) the effect of changes in tax laws, accounting principles, or other laws or regulatory rules affecting reported results; (iv) any reorganization and restructuring
programs; (v) extraordinary nonrecurring items as described in Accounting Standards Codification Topic 225-20 (or any successor pronouncement thereto) and/or in managements discussion and analysis of financial condition and results of
operations appearing in the Companys annual report to stockholders for the applicable year; (vi) acquisitions or divestitures; (vii) any other specific, unusual or nonrecurring events, or objectively determinable category thereof;
(viii) foreign exchange gains and losses; (ix) discontinued operations and nonrecurring charges; and (x) a change in the Companys fiscal year.
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(e) Payment of Performance Compensation Awards.
(i) Condition to Receipt of Payment. Unless otherwise provided in the applicable Award agreement, a Participant must be
employed by the Company on the last day of a Performance Period to be eligible for payment in respect of a Performance Compensation Award for such Performance Period.
(ii) Limitation. Unless otherwise provided in the applicable Award agreement, a Participant shall be eligible to receive
payment in respect of a Performance Compensation Award only to the extent that: (A) the Performance Goals for such period are achieved; and (B) all or some of the portion of such Participants Performance Compensation Award has been
earned for the Performance Period based on the application of the Performance Formula to such achieved Performance Goals.
(iii) Certification. Following the completion of a Performance Period, the Committee shall review and certify in writing
whether, and to what extent, the Performance Goals for the Performance Period have been achieved and, if so, calculate and certify in writing that amount of the Performance Compensation Awards earned for the period based upon the Performance
Formula. The Committee shall then determine the amount of each Participants Performance Compensation Award actually payable for the Performance Period and, in so doing, may apply Negative Discretion.
(iv) Use of Negative Discretion. In determining the actual amount of an individual Participants Performance
Compensation Award for a Performance Period, the Committee may reduce or eliminate the amount of the Performance Compensation Award earned under the Performance Formula in the Performance Period through the use of Negative Discretion. Unless
otherwise provided in the applicable Award agreement, the Committee shall not have the discretion to (A) grant or provide payment in respect of Performance Compensation Awards for a Performance Period if the Performance Goals for such
Performance Period have not been attained or (B) increase a Performance Compensation Award above the applicable limitations set forth in Section 5 of the Plan.
(f) Timing of Award Payments. Unless otherwise provided in the applicable Award agreement, Performance Compensation Awards granted for
a Performance Period shall be paid to Participants as soon as administratively practicable following completion of the certifications required by this Section 11. Any Performance Compensation Award that has been deferred shall not (between the
date as of which the Award is deferred and the payment date) increase (i) with respect to a Performance Compensation Award that is payable in cash, by a measuring factor for each fiscal year greater than a reasonable rate of interest set by the
Committee or (ii) with respect to a Performance Compensation Award that is payable in shares of Common Stock, by an amount greater than the appreciation of a share of Common Stock from the date such Award is deferred to the payment date. Any
Performance Compensation Award that is deferred and is otherwise payable in shares of Common Stock shall be credited (during the period between the date as of which the Award is deferred and the payment date) with dividend equivalents (in a manner
consistent with the methodology set forth in the last sentence of Section 9(d)(ii) of the Plan).
19
12. Changes in Capital Structure and Similar Events. In the event of (a) any dividend
(other than regular cash dividends) or other distribution (whether in the form of cash, shares of Common Stock, other securities or other property), recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up,
split-off, spin-off, combination, repurchase or exchange of shares of Common Stock or other securities of the Company, issuance of warrants or other rights to acquire shares of Common Stock or other securities of the Company, or other similar
corporate transaction or event (including, without limitation, a Change in Control) that affects the shares of Common Stock, or (b) unusual or nonrecurring events (including, without limitation, a Change in Control) affecting the Company, any
Affiliate, or the financial statements of the Company or any Affiliate, or changes in applicable rules, rulings, regulations or other requirements of any governmental body or securities exchange or inter-dealer quotation system, accounting
principles or law, such that in either case an adjustment is determined by the Committee in its sole discretion to be necessary or appropriate, then the Committee shall make any such adjustments in such manner as it may deem equitable, including
without limitation, any or all of the following:
(i) adjusting any or all of (A) the Absolute Share Limit, or any
other limit applicable under the Plan with respect to the number of Awards which may be granted hereunder, (B) the number of shares of Common Stock or other securities of the Company (or number and kind of other securities or other property)
which may be issued in respect of Awards or with respect to which Awards may be granted under the Plan (including, without limitation, adjusting any or all of the limitations under Section 5 of the Plan) and (C) the terms of any
outstanding Award, including, without limitation, (1) the number of shares of Common Stock or other securities of the Company (or number and kind of other securities or other property) subject to outstanding Awards or to which outstanding
Awards relate, (2) the Exercise Price or Strike Price with respect to any Award or (3) any applicable performance measures (including, without limitation, Performance Criteria and Performance Goals);
(ii) providing for a substitution or assumption of Awards (or awards of an acquiring company), accelerating the exercisability
of, lapse of restrictions on, or termination of, Awards or providing for a period of time (which shall not be required to be more than ten (10) days) for Participants to exercise outstanding Awards prior to the occurrence of such event (and any
such Award not so exercised shall terminate upon the occurrence of such event); and
(iii) cancelling any one or more
outstanding Awards and causing to be paid to the holders holding vested Awards (including any Awards that would vest as a result of the occurrence of such event but for such cancellation) the value of such Awards, if any, as determined by the
Committee (which if applicable may be based upon the price per share of Common Stock received or to be received by other stockholders of the Company in such event), including without limitation, in the case of an outstanding Option or SAR, a cash
payment in an amount equal to the excess, if any, of the Fair Market Value (as of a date specified by the Committee) of the shares of Common Stock subject to such Option or SAR over the aggregate Exercise Price or Strike Price of such Option or SAR,
respectively (it being understood that, in such event, any Option or SAR having a per share Exercise Price or Strike Price equal to, or in excess of, the Fair Market Value of a share of Common Stock subject thereto may be canceled and terminated
without any payment or consideration therefor);
20
provided, however, that in the case of any equity restructuring (within the meaning of
the Financial Accounting Standards Board Accounting Standards Codification Topic 718 (or any successor pronouncement thereto)), the Committee shall make an equitable or proportionate adjustment to outstanding Awards to reflect such equity
restructuring. Any adjustment in Incentive Stock Options under this Section 12 (other than any cancellation of Incentive Stock Options) shall be made only to the extent not constituting a modification within the meaning of
Section 424(h)(3) of the Code, and any adjustments under this Section 12 shall be made in a manner which does not adversely affect the exemption provided pursuant to Rule 16b-3 under the Exchange Act. Any such adjustment shall be
conclusive and binding for all purposes. Payments to holders pursuant to clause (iii) above shall be made in cash or, in the sole discretion of the Committee, in the form of such other consideration necessary for a Participant to receive
property, cash, or securities (or combination thereof) as such Participant would have been entitled to receive upon the occurrence of the transaction if the Participant had been, immediately prior to such transaction, the holder of the number of
shares of Common Stock covered by the Award at such time (less any applicable Exercise Price or Strike Price). In addition, prior to any payment or adjustment contemplated under this Section 12, the Committee may require a Participant to
(A) represent and warrant as to the unencumbered title to his Awards, (B) bear such Participants pro rata share of any post-closing indemnity obligations, and be subject to the same post-closing purchase price adjustments, escrow
terms, offset rights, holdback terms, and similar conditions as the other holders of Common Stock, and (C) deliver customary transfer documentation as reasonably determined by the Committee.
13. Amendments and Termination.
(a) Amendment and Termination of the Plan. The Board may amend, alter, suspend, discontinue, or terminate the Plan or any portion
thereof at any time; provided, that no such amendment, alteration, suspension, discontinuation or termination shall be made without stockholder approval if (i) such approval is necessary to comply with any regulatory requirement
applicable to the Plan (including, without limitation, as necessary to comply with any rules or regulations of any securities exchange or inter-dealer quotation system on which the securities of the Company may be listed or quoted) or for changes in
GAAP to new accounting standards, (ii) it would materially increase the number of securities which may be issued under the Plan (except for increases pursuant to Section 5 or 12 of the Plan), or (iii) it would materially modify the
requirements for participation in the Plan; provided, further, that any such amendment, alteration, suspension, discontinuance or termination that would materially and adversely affect the rights of any Participant or any holder or
beneficiary of any Award theretofore granted shall not to that extent be effective without the consent of the affected Participant, holder or beneficiary. Notwithstanding the foregoing, no amendment shall be made to the last proviso of
Section 13(b) of the Plan without stockholder approval.
(b) Amendment of Award Agreements. The Committee may, to the extent
consistent with the terms of any applicable Award agreement, waive any conditions or rights under, amend any terms of, or alter, suspend, discontinue, cancel or terminate, any Award theretofore granted or the associated Award agreement,
prospectively or retroactively (including after a Participants
21
Termination); provided that any such waiver, amendment, alteration, suspension, discontinuance, cancellation or termination that would materially and adversely affect the rights of any
Participant with respect to any Award theretofore granted shall not to that extent be effective without the consent of the affected Participant; provided, further, that without stockholder approval, except as otherwise permitted under
Section 12 of the Plan, (i) no amendment or modification may reduce the Exercise Price of any Option or the Strike Price of any SAR, (ii) the Committee may not cancel any outstanding Option or SAR and replace it with a new Option or
SAR (with a lower Exercise Price or Strike Price, as the case may be) or other Award or cash payment that is greater than the intrinsic value (if any) of the cancelled Option or SAR, and (iii) the Committee may not take any other action which
is considered a repricing for purposes of the stockholder approval rules of any securities exchange or inter-dealer quotation system on which the securities of the Company are listed or quoted.
14. General.
(a)
Award Agreements. Each Award under the Plan shall be evidenced by an Award agreement, which shall be delivered to the Participant and shall specify the terms and conditions of the Award and any rules applicable thereto, including without
limitation, the effect on such Award of the death, Disability or Termination of a Participant, or of such other events as may be determined by the Committee. For purposes of the Plan, an Award agreement may be in any such form (written or
electronic) as determined by the Committee (including, without limitation, a Board or Committee resolution, an employment agreement, a notice, a certificate or a letter) evidencing the Award. The Committee need not require an Award agreement to be
signed by the Participant or a duly authorized representative of the Company.
(b) Nontransferability. (i) Each Award shall be
exercisable only by a Participant during the Participants lifetime, or, if permissible under applicable law, by the Participants legal guardian or representative. No Award may be assigned, alienated, pledged, attached, sold or otherwise
transferred or encumbered by a Participant other than by will or by the laws of descent and distribution and any such purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be void and unenforceable against the
Company or an Affiliate; provided, that the designation of a beneficiary shall not constitute an assignment, alienation, pledge, attachment, sale, transfer or encumbrance.
(ii) Notwithstanding the foregoing, the Committee may, in its sole discretion, permit Awards (other than Incentive Stock
Options) to be transferred by a Participant, without consideration, subject to such rules as the Committee may adopt consistent with any applicable Award agreement to preserve the purposes of the Plan, to: (A) any person who is a family
member of the Participant, as such term is used in the instructions to Form S-8 under the Securities Act or any successor form of registration statement promulgated by the Securities and Exchange Commission (collectively, the
Immediate Family Members); (B) a trust solely for the benefit of the Participant and his or her Immediate Family Members; (C) a partnership or limited liability company whose only partners or stockholders are the
Participant and his or her Immediate Family Members; or (D) a beneficiary to whom donations are eligible to be treated as charitable contributions for federal income tax purposes;
22
(each transferee described in clauses (A), (B), (C) and (D) above is hereinafter
referred to as a Permitted Transferee); provided, that the Participant gives the Committee advance written notice describing the terms and conditions of the proposed transfer and the Committee notifies the Participant in
writing that such a transfer would comply with the requirements of the Plan.
(iii) The terms of any Award transferred in
accordance with the immediately preceding sentence shall apply to the Permitted Transferee and any reference in the Plan, or in any applicable Award agreement, to a Participant shall be deemed to refer to the Permitted Transferee, except that
(A) Permitted Transferees shall not be entitled to transfer any Award, other than by will or the laws of descent and distribution, (B) Permitted Transferees shall not be entitled to exercise any transferred Option unless there shall be in
effect a registration statement on an appropriate form covering the shares of Common Stock to be acquired pursuant to the exercise of such Option if the Committee determines, consistent with any applicable Award agreement, that such a registration
statement is necessary or appropriate, (C) the Committee or the Company shall not be required to provide any notice to a Permitted Transferee, whether or not such notice is or would otherwise have been required to be given to the Participant
under the Plan or otherwise, and (D) the consequences of the Termination of the Participant under the terms of the Plan and the applicable Award agreement shall continue to be applied with respect to the Participant, including, without
limitation, that an Option shall be exercisable by the Permitted Transferee only to the extent, and for the periods, specified in the Plan and the applicable Award agreement.
(c) Dividends and Dividend Equivalents. The Committee in its sole discretion may provide a Participant as part of an Award with
dividends or dividend equivalents, payable in cash, shares of Common Stock, other securities, other Awards or other property, on a current or deferred basis, on such terms and conditions as may be determined by the Committee in its sole discretion,
including without limitation, payment directly to the Participant, withholding of such amounts by the Company subject to vesting of the Award or reinvestment in additional shares of Common Stock, Restricted Stock or other Awards; provided,
that no dividends or dividend equivalents shall be payable in respect of outstanding (i) Options or SARs or (ii) unearned Performance Compensation Awards or other unearned Awards subject to performance conditions (other than or in addition
to the passage of time) (although dividends and dividend equivalents may be accumulated in respect of unearned Awards and paid within fifteen (15) days after such Awards are earned and become payable or distributable).
(d) Tax Withholding.
(i) A Participant shall be required to pay to the Company or any Affiliate, and the Company or any Affiliate shall have the
right and is hereby authorized to withhold, from any cash, shares of Common Stock, other securities or other property issuable or deliverable under any Award or from any compensation or other amounts owing to a Participant, the amount (in cash,
shares of Common Stock, other securities or other property) of any required withholding or any other applicable taxes in respect of an Award, its exercise, or any payment or transfer under an Award or under the Plan and to take such other action as
may be necessary in the opinion of the Committee or the Company to satisfy all obligations for the payment of such withholding or any other applicable taxes.
23
(ii) Without limiting the generality of clause (i) above, the Committee may,
in its sole discretion, permit a Participant to satisfy, in whole or in part, the foregoing withholding liability by (A) the issuance of shares of Common Stock (which are not subject to any pledge or other security interest) owned by the
Participant having a Fair Market Value equal to such withholding liability or (B) having the Company withhold from the number of shares of Common Stock otherwise issuable or deliverable pursuant to the exercise or settlement of the Award a
number of shares with a Fair Market Value equal to such withholding liability, provided that with respect to shares withheld pursuant to clause (B), the number of such shares may not have a Fair Market Value greater than the minimum required
statutory withholding liability.
(e) No Claim to Awards; No Rights to Continued Employment; Waiver. No employee of the Company or
any Affiliate, or other person, shall have any claim or right to be granted an Award under the Plan or, having been selected for the grant of an Award, to be selected for a grant of any other Award. There is no obligation for uniformity of treatment
of Participants or holders or beneficiaries of Awards. The terms and conditions of Awards and the Committees determinations and interpretations with respect thereto need not be the same with respect to each Participant and may be made
selectively among Participants, whether or not such Participants are similarly situated. Neither the Plan nor any action taken hereunder shall be construed as giving any Participant any right to be retained in the employ or service of the Company or
any Affiliate, nor shall it be construed as giving any Participant any rights to continued service on the Board. The Company or any of its Affiliates may at any time dismiss a Participant from employment or discontinue any consulting relationship,
free from any liability or any claim under the Plan, unless otherwise expressly provided in the Plan or any Award agreement. By accepting an Award under the Plan, a Participant shall thereby be deemed to have waived any claim to continued exercise
or vesting of an Award or to damages or severance entitlement related to non-continuation of the Award beyond the period provided under the Plan or any Award agreement, except to the extent of any provision to the contrary in any written employment
contract or other agreement between the Company and its Affiliates and the Participant, whether any such agreement is executed before, on or after the Date of Grant.
(f) International Participants. With respect to Participants who reside or work outside of the United States of America and who are not
(and who are not expected to be) covered employees within the meaning of Section 162(m) of the Code, the Committee may in its sole discretion amend the terms of the Plan and create or amend Sub-Plans or amend outstanding Awards with
respect to such Participants in order to conform such terms with the requirements of local law or to obtain more favorable tax or other treatment for a Participant, the Company or its Affiliates.
(g) Designation and Change of Beneficiary. Each Participant may file with the Committee a written designation of one or more persons as
the beneficiary(ies) who shall be entitled to receive the amounts payable with respect to an Award, if any, due under the Plan upon his or her death. A Participant may, from time to time, revoke or change his or her beneficiary designation without
the consent of any prior beneficiary by filing a new designation with the
24
Committee. The last such designation received by the Committee shall be controlling; provided, however, that no designation, or change or revocation thereof, shall be effective
unless received by the Committee prior to the Participants death, and in no event shall it be effective as of a date prior to such receipt. If no beneficiary designation is filed by a Participant, the beneficiary shall be deemed to be his or
her spouse or, if the Participant is unmarried at the time of death, his or her estate.
(h) Termination. Except as otherwise
provided in an Award agreement, unless determined otherwise by the Committee at any point following such event: (i) neither a temporary absence from employment or service due to illness, vacation or leave of absence (including, without
limitation, a call to active duty for military service through a Reserve or National Guard unit) nor a transfer from employment or service with one Service Recipient to employment or service with another Service Recipient (or vice-versa) shall be
considered a Termination; and (ii) if a Participant undergoes a Termination of employment, but such Participant continues to provide services to the Company and its Affiliates in a non-employee capacity, such change in status shall not be
considered a Termination for purposes of the Plan. Further, unless otherwise determined by the Committee, in the event that any Service Recipient ceases to be an Affiliate of the Company (by reason of sale, divestiture, spin-off, or other similar
transaction), unless a Participants employment or service is transferred to another entity that would constitute a Service Recipient immediately following such transaction, such Participant shall be deemed to have suffered a Termination
hereunder as of the date of the consummation of such transaction.
(i) No Rights as a Stockholder. Except as otherwise specifically
provided in the Plan or any Award agreement, no person shall be entitled to the privileges of ownership in respect of shares of Common Stock which are subject to Awards hereunder until such shares have been issued or delivered to such person.
(j) Government and Other Regulations.
(i) The obligation of the Company to settle Awards in shares of Common Stock or other consideration shall be subject to all
applicable laws, rules, and regulations, and to such approvals by governmental agencies as may be required. Notwithstanding any terms or conditions of any Award to the contrary, the Company shall be under no obligation to offer to sell or to sell,
and shall be prohibited from offering to sell or selling, any shares of Common Stock pursuant to an Award unless such shares have been properly registered for sale pursuant to the Securities Act with the Securities and Exchange Commission or unless
the Company has received an opinion of counsel (if the Company has requested such an opinion), satisfactory to the Company, that such shares may be offered or sold without such registration pursuant to an available exemption therefrom and the terms
and conditions of such exemption have been fully complied with. The Company shall be under no obligation to register for sale under the Securities Act any of the shares of Common Stock to be offered or sold under the Plan. The Committee shall have
the authority to provide that all shares of Common Stock or other securities of the Company or any Affiliate issued under the Plan shall be subject to such stop transfer orders and other restrictions as the Committee may deem advisable under the
Plan, the applicable Award agreement, the Federal securities laws, or the rules, regulations and
25
other requirements of the Securities and Exchange Commission, any securities exchange or inter- dealer quotation system on which the securities of the Company are listed or quoted and any other
applicable Federal, state, local or non-U.S. laws, rules, regulations and other requirements, and, without limiting the generality of Section 9 of the Plan, the Committee may cause a legend or legends to be put on certificates representing
shares of Common Stock or other securities of the Company or any Affiliate issued under the Plan to make appropriate reference to such restrictions or may cause such Common Stock or other securities of the Company or any Affiliate issued under the
Plan in book-entry form to be held subject to the Companys instructions or subject to appropriate stop-transfer orders. Notwithstanding any provision in the Plan to the contrary, the Committee reserves the right to add any additional terms or
provisions to any Award granted under the Plan that it in its sole discretion deems necessary or advisable in order that such Award complies with the legal requirements of any governmental entity to whose jurisdiction the Award is subject.
(ii) The Committee may cancel an Award or any portion thereof if it determines, in its sole discretion, that legal or
contractual restrictions and/or blockage and/or other market considerations would make the Companys acquisition of shares of Common Stock from the public markets, the Companys issuance of Common Stock to the Participant, the
Participants acquisition of Common Stock from the Company and/or the Participants sale of Common Stock to the public markets, illegal, impracticable or inadvisable. If the Committee determines to cancel all or any portion of an Award in
accordance with the foregoing, the Company shall pay to the Participant an amount equal to the excess of (A) the aggregate Fair Market Value of the shares of Common Stock subject to such Award or portion thereof canceled (determined as of the
applicable exercise date, or the date that the shares would have been vested or issued, as applicable), over (B) the aggregate Exercise Price or Strike Price (in the case of an Option or SAR, respectively) or any amount payable as a condition
of issuance of shares of Common Stock (in the case of any other Award). Such amount shall be delivered to the Participant as soon as practicable following the cancellation of such Award or portion thereof.
(k) No Section 83(b) Elections Without Consent of Company. No election under Section 83(b) of the Code or under a similar
provision of law may be made unless expressly permitted by the terms of the applicable Award agreement or by action of the Committee in writing prior to the making of such election. If a Participant, in connection with the acquisition of shares of
Common Stock under the Plan or otherwise, is expressly permitted to make such election and the Participant makes the election, the Participant shall notify the Company of such election within ten (10) days of filing notice of the election with
the Internal Revenue Service or other governmental authority, in addition to any filing and notification required pursuant to Section 83(b) of the Code or other applicable provision.
(l) Payments to Persons Other Than Participants. If the Committee shall find that any person to whom any amount is payable under the
Plan is unable to care for his or her affairs because of illness or accident, or is a minor, or has died, then any payment due to such person or his or her estate (unless a prior claim therefor has been made by a duly appointed legal representative)
may, if the Committee so directs the Company, be paid to his or her spouse, child, relative, an institution maintaining or having custody of such person, or any other person
26
deemed by the Committee to be a proper recipient on behalf of such person otherwise entitled to payment. Any such payment shall be a complete discharge of the liability of the Committee and the
Company therefor.
(m) Nonexclusivity of the Plan. Neither the adoption of this Plan by the Board nor the submission of this Plan
to the stockholders of the Company for approval shall be construed as creating any limitations on the power of the Board to adopt such other incentive arrangements as it may deem desirable, including, without limitation, the granting of stock
options otherwise than under this Plan, and such arrangements may be either applicable generally or only in specific cases.
(n) No
Trust or Fund Created. Neither the Plan nor any Award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company or any Affiliate, on the one hand, and a Participant or other
person or entity, on the other hand. No provision of the Plan or any Award shall require the Company, for the purpose of satisfying any obligations under the Plan, to purchase assets or place any assets in a trust or other entity to which
contributions are made or otherwise to segregate any assets, nor shall the Company maintain separate bank accounts, books, records or other evidence of the existence of a segregated or separately maintained or administered fund for such purposes.
Participants shall have no rights under the Plan other than as unsecured general creditors of the Company, except that insofar as they may have become entitled to payment of additional compensation by performance of services, they shall have the
same rights as other employees under general law.
(o) Reliance on Reports. Each member of the Committee and each member of the
Board shall be fully justified in acting or failing to act, as the case may be, and shall not be liable for having so acted or failed to act in good faith, in reliance upon any report made by the independent public accountant of the Company and its
Affiliates and/or any other information furnished in connection with the Plan by any agent of the Company or the Committee or the Board, other than himself.
(p) Relationship to Other Benefits. No payment under the Plan shall be taken into account in determining any benefits under any
pension, retirement, profit sharing, group insurance or other benefit plan of the Company except as otherwise specifically provided in such other plan or as required by applicable law.
(q) Governing Law. The Plan shall be governed by and construed in accordance with the internal laws of the State of Delaware applicable
to contracts made and performed wholly within the State of Delaware, without giving effect to the conflict of laws provisions thereof.
(r) Severability. If any provision of the Plan or any Award or Award agreement is or becomes or is deemed to be invalid, illegal, or
unenforceable in any jurisdiction or as to any person or entity or Award, or would disqualify the Plan or any Award under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to the applicable
laws, or if it cannot be construed or deemed amended without, in the determination of the Committee, materially altering the intent of the Plan or the Award, such provision shall be construed or deemed stricken as to such jurisdiction, person or
entity or Award and the remainder of the Plan and any such Award shall remain in full force and effect.
27
(s) Obligations Binding on Successors. The obligations of the Company under the Plan shall
be binding upon any successor corporation or organization resulting from the merger, consolidation or other reorganization of the Company, or upon any successor corporation or organization succeeding to substantially all of the assets and business
of the Company.
(t) 409A of the Code.
(i) Notwithstanding any provision of the Plan to the contrary, it is intended that the provisions of this Plan comply with
Section 409A of the Code, and all provisions of this Plan shall be construed and interpreted in a manner consistent with the requirements for avoiding taxes or penalties under Section 409A of the Code. Each Participant is solely
responsible and liable for the satisfaction of all taxes and penalties that may be imposed on or in respect of such Participant in connection with this Plan (including any taxes and penalties under Section 409A of the Code), and neither the
Company nor any Affiliate shall have any obligation to indemnify or otherwise hold such Participant (or any beneficiary) harmless from any or all of such taxes or penalties. With respect to any Award that is considered deferred
compensation subject to Section 409A of the Code, references in the Plan to termination of employment (and substantially similar phrases) shall mean separation from service within the meaning of Section 409A
of the Code. For purposes of Section 409A of the Code, each of the payments that may be made in respect of any Award granted under the Plan is designated as separate payments.
(ii) Notwithstanding anything in the Plan to the contrary, if a Participant is a specified employee within the
meaning of Section 409A(a)(2)(B)(i) of the Code, no payments in respect of any Awards that are deferred compensation subject to Section 409A of the Code and which would otherwise be payable upon the Participants
separation from service (as defined in Section 409A of the Code) shall be made to such Participant prior to the date that is six months after the date of such Participants separation from service or, if earlier,
the Participants date of death. Following any applicable six month delay, all such delayed payments will be paid in a single lump sum on the earliest date permitted under Section 409A of the Code that is also a business day.
(iii) Unless otherwise provided by the Committee in an Award agreement or otherwise, in the event that the timing of payments
in respect of any Award (that would otherwise be considered deferred compensation subject to Section 409A of the Code) would be accelerated upon the occurrence of (A) a Change in Control, no such acceleration shall be permitted
unless the event giving rise to the Change in Control satisfies the definition of a change in the ownership or effective control of a corporation, or a change in the ownership of a substantial portion of the assets of a corporation pursuant to
Section 409A of the Code and any Treasury Regulations promulgated thereunder or (B) a Disability, no such acceleration shall be permitted unless the Disability also satisfies the definition of Disability pursuant to
Section 409A of the Code and any Treasury Regulations promulgated thereunder.
(u) Clawback/Forfeiture. Notwithstanding
anything to the contrary contained herein, an Award agreement may provide that the Committee may, in its sole discretion, cancel such
28
Award if the Participant has engaged in or engages in any Detrimental Activity. The Committee may also provide in an Award agreement that if the Participant otherwise has engaged in or engages in
any Detrimental Activity, the Participant will forfeit any gain realized on the vesting or exercise of such Award, and must repay the gain to the Company. The Committee may also provide in an Award agreement that if the Participant receives any
amount in excess of what the Participant should have received under the terms of the Award for any reason (including without limitation by reason of a financial restatement, mistake in calculations or other administrative error), then the
Participant shall be required to repay any such excess amount to the Company. Without limiting the foregoing, all Awards shall be subject to reduction, cancellation, forfeiture or recoupment to the extent necessary to comply with applicable law.
(v) Expenses; Gender; Titles and Headings. The expenses of administering the Plan shall be borne by the Company and its
Affiliates. Masculine pronouns and other words of masculine gender shall refer to both men and women. The titles and headings of the sections in the Plan are for convenience of reference only, and in the event of any conflict, the text of the Plan,
rather than such titles or headings shall control.
29
Exhibit 10.4
OPTION GRANT NOTICE
UNDER THE
CATALENT, INC.
2014 OMNIBUS INCENTIVE PLAN
Catalent, Inc. (the Company), pursuant to its 2014 Omnibus Incentive Plan, as it may be amended from time to time (the
Plan), hereby grants to the Participant set forth below the Option set forth below, at an Exercise Price per share as set forth below. The Option is subject to all of the terms and conditions as set forth herein and in the Option
Agreement (attached hereto or previously provided to the Participant in connection with a prior grant) and the Plan, all of which are incorporated herein in their entirety. Capitalized terms not otherwise defined herein or in the Option Agreement
shall have the meaning set forth in the Plan.
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Participant: |
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[Insert Participant Name] |
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Date of Grant: |
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[Insert Date of Grant] |
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Number of Shares |
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Subject to Option: |
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[Insert No. of Shares Subject to the Option Granted], subject to adjustment as set forth in the Plan. |
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Exercise Price per Share: |
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[Insert Exercise Price per share], subject to adjustment as set forth in the Plan. |
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Option Period Expiration Date: |
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[Insert Expiration Date (e.g., Ten years from Date of Grant)] |
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Type of Option: |
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Nonqualified Stock Option |
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Vesting Schedule: |
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Provided the Participant has not incurred a Termination at the time of each applicable vesting date, the Option shall become vested and exercisable as to 25% of the shares of Common Stock subject to the Option on each of the first,
second, third and fourth anniversaries of the Date of Grant. |
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Notwithstanding the foregoing, in the event of a Change in Control, to the extent the acquiring or successor entity does not assume, continue or substitute for the Option, the Option, to the extent not then vested or previously
forfeited or cancelled, shall become fully vested. |
* * *
THE UNDERSIGNED PARTICIPANT ACKNOWLEDGES RECEIPT OF THIS OPTION GRANT NOTICE, THE OPTION AGREEMENT AND THE
PLAN, AND, AS AN EXPRESS CONDITION TO THE GRANT OF THE OPTION HEREUNDER, AGREES TO BE BOUND BY THE TERMS OF THIS OPTION GRANT NOTICE, THE OPTION AGREEMENT AND THE PLAN. THE PARTICIPANTS RIGHTS UNDER THIS OPTION GRANT NOTICE AND THE OPTION
AGREEMENT WILL LAPSE SIXTY (60) DAYS FROM THE DATE OF GRANT AND THE OPTION WILL BE FORFEITED ON SUCH DATE IF THE PARTICIPANT SHALL NOT HAVE ACCEPTED THIS OPTION GRANT NOTICE AND OPTION AGREEMENT BY SUCH DATE.
This Option Grant Notice may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument.
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CATALENT, INC. |
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PARTICIPANT1 |
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To the extent that the Company has established, either itself or through a third-party plan administrator, the ability to accept this award electronically, such acceptance shall constitute the Participants
signature hereof. |
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OPTION AGREEMENT
UNDER THE
CATALENT, INC.
2014 OMNIBUS INCENTIVE PLAN
Pursuant to the Option Grant Notice (the Grant Notice) delivered to the Participant (as defined in the Grant Notice), and subject to the
terms of this Option Agreement (this Option Agreement) and the Catalent, Inc. 2014 Omnibus Incentive Plan, as it may be amended from time to time (the Plan), Catalent, Inc. (the Company) and
the Participant agree as follows.
1. Definitions. Whenever the following terms are used in this Option Agreement, they
shall have the meanings set forth below. Capitalized terms not otherwise defined herein shall have the same meanings as in the Plan or the Grant Notice, as applicable.
(a) Employment. The term Employment means the Participants employment as an employee of the Company or any of its
Affiliates or Subsidiaries.
(b) Restrictive Covenant Violation. The term Restrictive Covenant Violation shall mean
the Participants breach of the Restrictive Covenants set forth in Section 9 or any covenant regarding confidentiality, competitive activity, solicitation of the Companys or any of its Affiliates or Subsidiaries vendors,
suppliers, customers or employees or any similar provision applicable to or agreed to by the Participant.
(c) Retirement. The
term Retirement shall mean a Termination by the Participant that occurs on or after the date on which the Participant attains the age of sixty-five (65) and has completed at least ten (10) years of Employment (other than a
Termination when grounds existed for a Termination for Cause at the time thereof).
(d) Termination Date. The term
Termination Date shall mean the date upon which the Participant incurs a Termination for any reason.
(e) Unvested
Portion. The term Unvested Portion shall mean, at any time, the portion of the Option which is then unvested in accordance with the Grant Notice and the Option Agreement.
(f) Vested Portion: The term Vested Portion shall mean, at any time, the portion of the Option which has become and
remains vested in accordance with the Grant Notice and the Option Agreement.
2. Grant of Option. Subject to the terms and
conditions set forth herein, in the Grant Notice and in the Plan, for good and valuable consideration, the Company hereby grants to the Participant the right and option to purchase, all or any part of the aggregate number of shares of Common Stock
subject to the Option provided in the Grant Notice, at an Exercise Price per share as provided in the Grant Notice. The Company may make one or more additional grants of Options to the Participant under this Option Agreement by providing the
Participant with a new Grant Notice, which may also include any terms and conditions differing from this Option Agreement to the extent provided therein. The Company reserves all rights with respect to the granting of additional Options hereunder
and makes no implied promise to grant additional Options.
3. Vesting. Subject to the conditions contained herein and the
Plan, the Option shall vest as provided in the Grant Notice.
4. Treatment on Termination. If the Participant incurs a Termination, except as set
forth in this Section 4, the Unvested Portion of the Option shall be cancelled by the Company without any payment of consideration therefor and the Vested Portion of the Option shall remain exercisable for the period set forth in
Section 5.
(a) Death. If the Participant incurs a Termination due to death, the Option shall, to the extent not then vested
or previously forfeited or cancelled, become fully vested and exercisable.
(b) Disability/Retirement. If the Participant incurs a
Termination due to Disability or Retirement, in each case, the Option shall, to the extent not then vested or previously forfeited or cancelled, continue to vest as provided in the Grant Notice as if the Participant had continued Employment through
each applicable anniversary of the Date of Grant, subject to the Participants compliance with the restrictive covenants set forth in Section 9 and the Participants execution, delivery and non-revocation of a waiver and release of
claims in favor of the Company and its Affiliates and Subsidiaries in a form prescribed by the Company on or prior to the 60th day following the Termination Date.
(c) Change in Control. In the event of a Change in Control, to the extent the acquiring or successor entity does assume, continue or
substitute for the Option, if the Participant incurs a Termination by the Service Recipient without Cause (other than due to death or Disability) during the period commencing on the date of the consummation of a Change in Control and ending on the
date that is eighteen (18) months following the consummation of such Change in Control, the Option shall, to the extent not then vested or previously forfeited or cancelled, become fully vested and exercisable.
5. Exercise of Options. Subject to the provisions of the Plan and this Option Agreement, the Participant may exercise all or any
part of the Vested Portion of the Option at any time prior to the Option Period Expiration Date. Notwithstanding the foregoing, if the Participant incurs a Termination prior to the Option Period Expiration Date, the Vested Portion of the Option
shall remain exercisable for the period set forth below.
(a) Death. If the Participant incurs a Termination due to death, the
Participant may exercise the Vested Portion of the Option for a period ending on the earlier of (A) the first anniversary of the Termination Date and (B) the Option Period Expiration Date.
(b) Disability/Retirement. If the Participant incurs a Termination due to Disability or Retirement, in each case, the Participant may
exercise the Vested Portion of the Option for a period ending on the earlier of (A) the first anniversary of the Termination Date and (B) the Option Period Expiration Date and for any portion of the Option that becomes vested after the
Termination Date pursuant to Section 4(b) above, the earlier of (I) the first anniversary of the date on which such portion of the Option vests and (II) the Option Period Expiration Date.
(c) Termination for Cause. If the Participant incurs a Termination by the Service Recipient for Cause, the Vested Portion of the
Option shall immediately terminate in full and cease to be exercisable.
(d) Other Terminations. If the Participant incurs a
Termination for any other reason not covered by clauses (a) through (c) above, the Participant may exercise the Vested Portion of the Option for a period ending on the earlier of (A) the
90th day following the Termination Date and (B) the Option Period Expiration Date.
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6. Method of Exercising Option. All or any portion of the Vested Portion of the
Option may be exercised by the delivery of notice of the number of shares subject to the Option that are being exercised accompanied by payment in full of the Exercise Price applicable to the portion of the Option so exercised. Such notice shall be
delivered either (x) in writing to the Company at its principal office or at such other address as may be established by the Committee, to the attention of the Companys General Counsel; or (y) to a third-party plan administrator as
may be arranged for by the Company or the Committee from time to time for purposes of the administration of outstanding Options under the Plan, in the case of either (x) or (y), as communicated to the Participant by the Company from time to
time. Payment of the aggregate Exercise Price may be made using any of the methods described in Section 7(d)(i) or (ii) of the Plan; provided, that the Participant shall obtain written consent from the Committee prior to the use of
the method described in Section 7(d)(ii)(A) of the Plan.
7. Issuance of Shares. If the Participant elects to exercise
all or any portion of the Option, then, as promptly as practical after receipt of such notification and full payment of the Exercise Price and any required withholding or any other applicable taxes (as provided in Section 12 hereof), the
Company shall issue or transfer, or cause such issue or transfer, to the Participant the number of shares with respect to which the Option has been so exercised, and shall either (a) deliver, or cause to be delivered, to the Participant a
certificate or certificates therefor, registered in the Participants name or (b) cause such shares to be credited to the Participants account at the third-party plan administrator.
8. Repayment of Proceeds; Clawback Policy. If a Restrictive Covenant Violation occurs or the Company discovers after a
Termination that grounds existed for Cause at the time thereof, then the Participant shall be required, in addition to any other remedy available (on a non-exclusive basis), to pay to the Company, within ten (10) business days of the
Companys request to the Participant therefor, an amount equal to the excess, if any, of (a) the aggregate after-tax proceeds (taking into account all amounts of tax that would be recoverable upon a claim of loss for payment of such
proceeds in the year of repayment) the Participant received upon the sale or other disposition of, or distributions in respect of, all or any portion of the Option and any shares of Common Stock acquired in respect thereof over (b) the
aggregate Cost (if any) of such shares. For purposes of this Option Agreement, Cost means, in respect of any share, the amount paid by the Participant for the share (excluding, for the avoidance of doubt, any withholding or other
applicable taxes), as proportionately adjusted for corporate transactions and other recapitalizations and less the amount of any dividends or distributions made with respect to the share; provided that Cost may not be less than zero. Any reference
in this Option Agreement to grounds existing for a Termination for Cause shall be determined without regard to any notice period, cure period, or other procedural delay or event required prior to finding of or termination with, Cause. The Option and
all proceeds of the Option shall be subject to the Companys Clawback Policy, as in effect from time to time, to the extent the Participant is a director or officer as defined under Rule 16a-1(f) of the Exchange Act.
9. Restrictive Covenants.
(a) To the extent that the Participant is a party to an employment or similar agreement with the Company or one of its
Affiliates or Subsidiaries containing non-competition, non-solicitation, non-interference or confidentiality restrictions (or two or more such restrictions), those restrictions and related enforcement provisions under such agreement shall govern and
the following provisions of this Section 9 shall not apply.
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(b) Competitive Activity.
(i) The Participant shall be deemed to have engaged in Competitive Activity if, during the period commencing
on the Date of Grant and ending on the date that is 12 months after the Termination Date (the Restricted Period), the Participant, whether on the Participants own behalf or on behalf of or in conjunction with any other
Person (as defined below), directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted
Period, the Participant will not, whether on the Participants own behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise
whatsoever (Person), directly or indirectly, solicit or assist in soliciting in competition with the Company or any of its Subsidiaries, the business of any client or prospective client:
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with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one year period preceding the Termination Date; |
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with whom employees reporting to the Participant have had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one year immediately preceding the Termination Date; or
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for whom the Participant had direct or indirect responsibility during the one year immediately preceding the Termination Date. |
(II) During the Restricted Period, the Participant will not directly or indirectly:
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engage in any business that competes with the business of the Company or any of its Subsidiaries, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical,
biotechnology, over-the-counter and vitamin/mineral supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed,
manufactured or sold by the Company or any of its Subsidiaries (including, without limitation, any other business which the Company or any of its Subsidiaries have plans to engage in as of the Termination Date) in any geographical area where the
Company or any of its Subsidiaries conduct business (a Competitive Business); |
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enter the employ of, or render any services to, any Person (or any division or controlled or controlling Affiliate of any Person) who or which engages in a Competitive Business; |
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acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or
consultant; or |
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interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the Date of Grant) between the Company or any of its Subsidiaries and customers, clients, suppliers, or investors
of the Company or any of its Subsidiaries. |
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Notwithstanding anything to the contrary in this Option Agreement, the
Participant may, directly or indirectly own, solely as an investment, securities of any entity engaged in the business of the Company or any of its Subsidiaries which are publicly traded on a national or regional stock exchange or on the
over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which controls, such Person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person.
(III) During the Restricted Period, the Participant will not, whether on the Participants own behalf or on behalf of or
in conjunction with any Person, directly or indirectly:
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solicit or encourage any employee of the Company or any of its Subsidiaries to leave the employment of the Company or any of its Subsidiaries; or |
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hire any such employee who was employed by the Company or any of its Subsidiaries as of the Termination Date or who left the employment of the Company or any of its Subsidiaries coincident with, or within six
(6) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any of its Subsidiaries for at least six (6) months.
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(IV) During the Restricted Period, the Participant will not, directly or indirectly, solicit or encourage
to cease to work with the Company or any of its Subsidiaries any consultant then under contract with the Company or any of its Subsidiaries.
(ii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in
this Section 9(b) to be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Option Agreement is an unenforceable restriction against
the Participant, the provisions of this Option Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be
enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Option Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the
enforceability of any of the other restrictions contained herein.
(c) Confidentiality.
(i) The Participant will not at any time (whether during or after the Participants Employment) (x) retain or use
for the benefit, purposes or account of the Participant or any other Person; or (y) disclose, divulge, reveal, communicate, share, transfer or provide access to any person outside the Company and its Affiliates and Subsidiaries (other than its
professional advisers who are bound by confidentiality obligations), any non-public, proprietary or confidential information including without limitation trade secrets, know-how, research and development, software, databases, inventions,
processes, formulae, technology, designs and other intellectual property, information concerning finances, investments, profits, pricing, costs, products, services, vendors, customers, clients, partners, investors, personnel, compensation,
recruiting,
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training, advertising, sales, marketing, promotions, government and regulatory activities and approvals concerning the past, current or future business, activities and operations of the
Company, its Affiliates or Subsidiaries and/or any third party that has disclosed or provided any of same to the Company on a confidential basis (Confidential Information) without the prior written authorization of the Board.
(ii) Confidential Information shall not include any information that is (x) generally known to the
industry or the public other than as a result of the Participants breach of this covenant or any breach of other confidentiality obligations by third parties, (y) made legitimately available to the Participant by a third party without
breach of any known confidentiality obligation, or (z) required by law to be disclosed or in any judicial or administrative process; provided that the Participant shall give prompt written notice to the Company of such requirement,
disclose no more information than is so required, and cooperate, at the Companys cost, with any attempts by the Company to obtain a protective order or similar treatment.
(iii) Except as required by law, the Participant will not disclose to anyone, other than the Participants immediate
family and legal or financial or tax advisors or lender, each of whom the Participant agrees to instruct not to disclose, the existence or contents of this Option Agreement (unless this Option Agreement shall be publicly available as a result of a
regulatory filing made by the Company or one of its Affiliates or Subsidiaries); provided, that the Participant may disclose to any prospective future employer the provisions of Section 9 of this Option Agreement provided they agree to
maintain the confidentiality of such terms.
(iv) Upon Termination, the Participant shall (x) cease and not
thereafter commence use of any Confidential Information or intellectual property (including, without limitation, any patent, invention, copyright, trade secret, trademark, trade name, logo, domain name or other source indicator) owned or used by the
Company, its Affiliates or Subsidiaries, (y) immediately destroy, delete, or return to the Company, at the Companys option, all originals and copies in any form or medium (including memoranda, books, papers, plans, computer files, letters
and other data) in the Participants possession or control (including any of the foregoing stored or located in the Participants office, home, laptop or other computer, whether or not Company property) that contain Confidential
Information or otherwise relate to the business of the Company, its Affiliates or Subsidiaries, except that the Participant may retain only those portions of any personal notes, notebooks and diaries that do not contain any Confidential Information,
and (z) notify and fully cooperate with the Company regarding the delivery or destruction of any other Confidential Information of which the Participant is or becomes aware.
(d) Equitable Relief.
Notwithstanding the remedies set forth in Section 9 above and notwithstanding any other remedy which would otherwise be available to the
Company at law or in equity, the Company and the Participant agree and acknowledge that if an actual or threatened Restrictive Covenant Violation occurs, the Company will be entitled to an injunction and/or other equitable relief restraining the
Participant from the Restrictive Covenant Violation without the necessity of posting a bond or proving actual damages.
10.
Non-Transferability. The Option is not transferable by the Participant except to Permitted Transferees in accordance with Section 14(b) of the Plan. Whenever the word Participant is
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used in any provision of this Option Agreement under circumstances where the provision should logically be construed to apply to executors, the administrators or the person or persons to whom the
Option may be transferred by will or by the laws of descent and distribution in accordance with Section 14 of the Plan, the word Participant shall be deemed to include such person or persons. Except as otherwise provided herein, no
assignment or transfer of the Option, or of the rights represented thereby, whether voluntary or involuntary, by operation of law or otherwise, shall vest in the assignee or transferee any interest or right herein whatsoever, but immediately upon
such assignment or transfer the Option shall terminate and become of no further effect.
11. Rights as Stockholder. The
Participant or a Permitted Transferee of the Option shall have no rights as a stockholder with respect to any shares of Common Stock covered by the Option until the Participant shall have become the holder of record or the beneficial owner of such
Common Stock, and no adjustment shall be made for dividends or distributions or other rights in respect of such shares of Common Stock for which the record date is prior to the date upon which the Participant shall become the holder of record or the
beneficial owner thereof.
12. Tax Withholding. The provisions of Section 14(d) of the Plan are incorporated herein by
reference and made a part hereof.
13. Notice. Every notice or other communication relating to this Option Agreement between
the Company and the Participant shall be in writing, and shall be mailed to or delivered to the party for whom it is intended at such address as may from time to time be designated by it in a notice mailed or delivered to the other party as herein
provided; provided that, unless and until some other address be so designated, all notices or communications by the Participant to the Company shall be mailed or delivered to the Company at its principal executive office, to the attention of
the Companys General Counsel, and all notices or communications by the Company to the Participant may be given to the Participant personally or may be mailed to the Participant at the Participants last known address, as reflected in the
Companys records. Notwithstanding the above, all notices and communications between the Participant and any third-party plan administrator shall be mailed, delivered, transmitted or sent in accordance with the procedures established by such
third-party plan administrator and communicated to the Participant from time to time.
14. No Right to Continued Employment.
Neither the Plan nor this Option Agreement nor the granting of the Option evidenced hereby shall be construed as giving the Participant the right to be retained in the employ of, or in any consulting relationship to, the Company or any of its
Affiliates or Subsidiaries. Further, the Company, or, if different, the Service Recipient, may at any time dismiss the Participant or discontinue any consulting relationship, free from any liability or any claim under the Plan or this Option
Agreement, except as otherwise expressly provided herein.
15. Data Privacy. The Participant hereby explicitly and
unambiguously consents to the collection, use and transfer, in electronic or other form, of the Participants personal data as described in this Option Agreement and any other Option grant materials by and among, as applicable, the Service
Recipient, the Company and its other Affiliates or Subsidiaries for the exclusive purpose of implementing, administering and managing the Participants participation in the Plan.
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The Participant understands that the Company and the Service Recipient may hold certain
personal information about the Participant, including, but not limited to, the Participants name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any
shares of stock or directorships held in the Company, details of all Options or any other entitlement to shares of stock awarded, canceled, exercised, vested, unvested or outstanding in the Participants favor (Data), for the
exclusive purpose of implementing, administering and managing the Plan.
The Participant understands that Data will be
transferred to Morgan Stanley Smith Barney LLC, or such other stock plan service provider as may be selected by the Company in the future, which is assisting the Company with the implementation, administration and management of the Plan. The
Participant understands that the recipients of the Data may be located in the United States or elsewhere, and that the recipients country (e.g., the United States) may have different data privacy laws and protections than the
Participants country. The Participant understands that the Participant may request a list with the names and addresses of any potential recipients of the Data by contacting the Participants local human resources representative. The
Participant authorizes the Company, Morgan Stanley Smith Barney LLC and any other possible recipients which may assist the Company (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, retain
and transfer the Data, in electronic or other form, for the sole purpose of implementing, administering and managing the Participants participation in the Plan. The Participant understands that Data will be held only as long as is necessary to
implement, administer and manage the Participants participation in the Plan. The Participant understands that the Participant may, at any time, view Data, request additional information about the storage and processing of Data, require any
necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing the Participants local human resources representative. Further, the Participant understands that the Participant is
providing the consents herein on a purely voluntary basis. If the Participant does not consent, or if the Participant later seeks to revoke the Participants consent, the Participants Employment and career with the Service Recipient will
not be adversely affected; the only adverse consequence of refusing or withdrawing the Participants consent is that the Company would not be able to grant Options or other equity awards to the Participant or administer or maintain such awards.
Therefore, the Participant understands that refusing or withdrawing the Participants consent may affect the Participants ability to participate in the Plan. For more information on the consequences of the Participants refusal to
consent or withdrawal of consent, the Participant understands that the Participant may contact the Participants local human resources representative.
16. Binding Effect. This Option Agreement shall be binding upon the heirs, executors, administrators and successors of the
parties hereto.
17. Waiver and Amendments. Subject to Section 13(b) of the Plan, the Committee may waive any
conditions or rights under, amend any terms of, or alter, suspend, discontinue, cancel or terminate, this Option Agreement, prospectively or retroactively (including after the Participants Termination); provided that any such waiver,
amendment, alteration, suspension, discontinuance, cancellation or termination that would materially and adversely affect the rights of the Participant hereunder shall not to that extent be effective without the consent of the Participant. No waiver
by either of the parties hereto of their rights hereunder shall be deemed to constitute a waiver with respect to any subsequent occurrences or transactions hereunder unless such waiver specifically states that it is to be construed as a continuing
waiver.
18. Governing Law; Venue. This Option Agreement shall be construed and interpreted in accordance with the laws of
the State of Delaware, without regard to the principles of conflicts of law
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thereof. For purposes of litigating any dispute that arises under this grant or this Option Agreement, the parties hereby submit to and consent to the jurisdiction of the State of New Jersey,
agree that such litigation shall be conducted in the courts of Somerset County, or the federal courts for the United States for the District of New Jersey, where this grant is made and/or to be performed.
19. Plan. The terms and provisions of the Plan are incorporated herein by reference. In the event of a conflict or inconsistency
between the terms and provisions of the Plan and the provisions of this Option Agreement, the Plan shall govern and control.
20.
Electronic Delivery and Acceptance. The Company may, in its sole discretion, decide to deliver any documents related to current or future participation in the Plan by electronic means. The Participant hereby consents to receive such
documents by electronic delivery and agrees to participate in the Plan through an on-line or electronic system established and maintained by the Company or a third party designated by the Company.
21. Imposition of Other Requirements. The Company reserves the right to impose any other requirements on the Participants
participation in the Plan, on the Option and on any shares acquired under the Plan, to the extent the Company determines it is necessary or advisable for legal or administrative reasons, and to require the Participant to sign any additional
agreements or undertakings that may be necessary to accomplish the foregoing.
22. Insider Trading Restrictions/Market Abuse
Laws. The Participant acknowledges that, depending on his or her country, the Participant may be subject to insider trading restrictions and/or market abuse laws, which may affect his or her ability to acquire or sell shares of Common Stock
or rights to shares of Common Stock (e.g., Options) under the Plan during such times as the Participant is considered to have inside information regarding the Company (as defined by the laws in the Participants country). Any
restrictions under these laws or regulations are separate from and in addition to any restrictions that may be imposed under any applicable Company insider trading policy. The Participant is responsible for ensuring compliance with any applicable
restrictions and is advised to consult his or her personal legal advisor on this matter.
23. Entire Agreement. This Option
Agreement, the Grant Notice and the Plan constitute the entire understanding between the Participant and the Company regarding the Option. This Option Agreement, the Grant Notice and the Plan supersede any prior agreements, commitments or
negotiations concerning the Option.
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Exhibit 10.5
RESTRICTED STOCK UNIT GRANT NOTICE
UNDER THE
CATALENT, INC.
2014 OMNIBUS INCENTIVE PLAN
Catalent, Inc. (the Company), pursuant to its 2014 Omnibus Incentive Plan, as it may be amended from time to time (the
Plan), hereby grants to the Participant set forth below the number of Restricted Stock Units set forth below. The Restricted Stock Units are subject to all of the terms and conditions as set forth herein and in the Restricted
Stock Unit Agreement (attached hereto or previously provided to the Participant in connection with a prior grant) and the Plan, all of which are incorporated herein in their entirety. Capitalized terms not otherwise defined herein shall have the
meaning set forth in the Plan or the Restricted Stock Unit Agreement.
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Participant: |
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[Insert Participant Name] |
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Date of Grant: |
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[Insert Date of Grant] |
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Number of Restricted Stock Units: |
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[Insert No. of Restricted Stock Units Granted], subject to adjustment as set forth in the Plan. |
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Vesting Schedule: |
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Provided the Participant has not incurred a Termination on or prior to the Vesting Date (as defined below), 100% of the Restricted Stock Units will vest on the third anniversary of the Date of Grant (the Vesting
Date) and upon the Vesting Date, the Restricted Period shall expire. |
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Notwithstanding the foregoing, in the event of a Change in Control, to the extent the acquiring or successor entity does not assume, continue or substitute for the Restricted Stock Units, the Restricted Stock Units, to the extent
not then vested or previously forfeited or cancelled, shall become fully vested and the Restricted Period shall expire. |
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THE UNDERSIGNED PARTICIPANT ACKNOWLEDGES RECEIPT OF THIS RESTRICTED STOCK UNIT GRANT NOTICE, THE RESTRICTED
STOCK UNIT AGREEMENT AND THE PLAN, AND, AS AN EXPRESS CONDITION TO THE GRANT OF RESTRICTED STOCK UNITS HEREUNDER, AGREES TO BE BOUND BY THE TERMS OF THIS RESTRICTED STOCK UNIT GRANT NOTICE, THE RESTRICTED STOCK UNIT AGREEMENT AND THE PLAN. THE
PARTICIPANTS RIGHTS UNDER THE RESTRICTED STOCK UNIT GRANT NOTICE AND THE RESTRICTED STOCK UNIT AGREEMENT WILL LAPSE SIXTY (60) DAYS FROM THE DATE OF GRANT AND THE RESTRICTED STOCK UNITS WILL BE FORFEITED ON SUCH DATE IF THE PARTICIPANT
SHALL NOT HAVE ACCEPTED THIS RESTRICTED STOCK UNIT GRANT NOTICE AND THE RESTRICTED STOCK UNIT AGREEMENT BY SUCH DATE.
This Restricted Stock Unit
Grant Notice may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
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CATALENT, INC. |
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PARTICIPANT1 |
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By: |
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Title: |
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To the extent that the Company has established, either itself or through a third-party plan administrator, the ability to accept this award electronically, such acceptance shall constitute the Participants
signature hereof. |
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RESTRICTED STOCK UNIT AGREEMENT
UNDER THE
CATALENT, INC.
2014 OMNIBUS INCENTIVE PLAN
Pursuant to the Restricted Stock Unit Grant Notice (the Grant Notice) delivered to the Participant (as defined in the Grant Notice), and
subject to the terms of this Restricted Stock Unit Agreement (this Restricted Stock Unit Agreement) and the Catalent, Inc. 2014 Omnibus Incentive Plan, as it may be amended from time to time (the Plan),
Catalent, Inc. (the Company) and the Participant agree as follows.
1. Definitions. Whenever the
following terms are used in this Restricted Stock Unit Agreement, they shall have the meanings set forth below. Capitalized terms not otherwise defined herein shall have the same meanings as in the Plan or the Grant Notice, as applicable.
(a) Employment. The term Employment means the Participants employment as an employee of the Company or any of its
Affiliates or Subsidiaries.
(b) Restrictive Covenant Violation. The term Restrictive Covenant Violation shall mean the
Participants breach of the Restrictive Covenants set forth in Section 10 or any covenant regarding confidentiality, competitive activity, solicitation of the Companys or any of its Affiliates or Subsidiaries vendors,
suppliers, customers or employees or any similar provision applicable to or agreed to by the Participant.
(c) Retirement. The term
Retirement shall mean a Termination by the Participant that occurs on or after the date on which the Participant attains the age of sixty-five (65) and has completed at least ten (10) years of Employment (other than a
Termination when grounds existed for a Termination for Cause at the time thereof).
(d) Termination Date. The term
Termination Date shall mean the date upon which the Participant incurs a Termination for any reason.
2. Grant of
Restricted Stock Units. Subject to the terms and conditions set forth herein, in the Grant Notice and in the Plan, for good and valuable consideration, the Company hereby grants to the Participant the number of Restricted Stock Units
provided in the Grant Notice (with each Restricted Stock Unit representing an unfunded, unsecured right to receive one share of Common Stock). The Company may make one or more additional grants of Restricted Stock Units to the Participant under this
Restricted Stock Unit Agreement by providing the Participant with a new Grant Notice, which may also include any terms and conditions differing from this Restricted Stock Unit Agreement to the extent provided therein. The Company reserves all rights
with respect to the granting of additional Restricted Stock Units hereunder and makes no implied promise to grant additional Restricted Stock Units.
3. Vesting. Subject to the conditions contained herein and the Plan, the Restricted Stock Units shall vest as provided in the
Grant Notice. With respect to any Restricted Stock Unit, the period of time that such Restricted Stock Unit remains subject to vesting shall be its Restricted Period.
4. Dividend Equivalents. The Restricted Stock Units shall be entitled to be credited with dividend equivalent payments upon the
payment by the Company of dividends on shares of Common Stock. Such dividend equivalents will be provided in shares of Common Stock having a Fair Market Value equal to the amount of such applicable dividends, and shall be shall be payable at the
same time as the Restricted Stock Units are settled in accordance with Section 5 below. In the event that any Restricted Stock Unit is forfeited by its terms, the Participant shall have no right to dividend equivalent payments in respect of
such forfeited Restricted Stock Units.
5. Settlement of Restricted Stock Units. Upon expiration of the Restricted Period
with respect to any outstanding Restricted Stock Units that have not previously been forfeited in accordance with Section 6, the Company shall issue to the Participant as soon as practicable (but no later than March 15 of the year
following the year in which the Restricted Period expires) one share of Common Stock for each Restricted Stock Unit and such Restricted Stock Unit shall be cancelled; provided, however, that the Committee may, in its sole discretion,
elect to defer the issuance of such shares beyond the expiration of the Restricted Period if such extension would not cause adverse tax consequences under Section 409A of the Code.
6. Treatment on Termination.
(a) Subject to clauses (b) (d) below, in the event of a Termination prior to the Vesting Date, (i) all vesting with
respect to the Participants Restricted Stock Units shall cease and (ii) unvested Restricted Stock Units shall be forfeited to the Company by the Participant for no consideration as of the date of such Termination.
(b) Death. If the Participant incurs a Termination due to death, the Restricted Stock Units shall, to the extent not then vested or
previously forfeited or cancelled, become fully vested and the Restricted Period shall expire.
(c) Disability/Retirement. If the
Participant incurs a Termination due to Disability or Retirement, in each case, the Restricted Stock Units shall, to the extent not then vested or previously forfeited or cancelled, continue to vest as provided in the Grant Notice as if the
Participant had continued Employment through the Vesting Date, subject to the Participants compliance with the restrictive covenants set forth in Section 10 and the Participants execution, delivery and non-revocation of a waiver and
release of claims in favor of the Company and its Affiliates and Subsidiaries in a form prescribed by the Company on or prior to the 60th day following the Termination Date. Upon the Vesting Date,
the Restricted Period shall expire.
(d) Change in Control. In the event of a Change in Control, to the extent the acquiring or
successor entity does assume, continue or substitute for the Restricted Stock Units, if the Participant incurs a Termination by the Service Recipient without Cause (other than due to death or Disability) during the period commencing on the date of
the consummation of a Change in Control and ending on the date that is eighteen (18) months following the consummation of such Change in Control, the Restricted Stock Units shall, to the extent not then vested or previously forfeited or
cancelled, become fully vested and the Restricted Period shall expire.
7. Non-Transferability. The Restricted Stock Units
are not transferable by the Participant except to Permitted Transferees in accordance with Section 14(b) of the Plan. Whenever the word Participant is used in any provision of this Agreement under circumstances where the provision
should logically be construed to apply to executors, the administrators or the person or persons to whom the Restricted Stock Units may be transferred by will or by the laws of descent and distribution in accordance with Section 14 of the Plan,
the word Participant shall be deemed to include such person or persons. Except as otherwise provided herein, no assignment or transfer of the Restricted Stock Units, or of the rights represented thereby, whether voluntary or involuntary,
by operation of law or otherwise, shall vest in the assignee or transferee any interest or right herein whatsoever, but immediately upon such assignment or transfer the Restricted Stock Units shall terminate and become of no further effect.
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8. Rights as Stockholder. Except as otherwise expressly provided for herein, the
Participant or a Permitted Transferee of the Restricted Stock Units shall have no rights as a stockholder with respect to any share of Common Stock underlying a Restricted Stock Unit unless and until the Participant shall have become the holder of
record or the beneficial owner of such Common Stock, and no adjustment shall be made for dividends or distributions or other rights in respect of such share of Common Stock for which the record date is prior to the date upon which the Participant
shall become the holder of record or the beneficial owner thereof.
9. Repayment of Proceeds; Clawback Policy. If a
Restrictive Covenant Violation occurs or the Company discovers after a Termination that grounds existed for Cause at the time thereof, then the Participant shall be required, in addition to any other remedy available (on a non-exclusive basis), to
pay to the Company, within ten (10) business days of the Companys request to the Participant therefor, an amount equal to the aggregate after-tax proceeds (taking into account all amounts of tax that would be recoverable upon a claim of
loss for payment of such proceeds in the year of repayment) the Participant received upon the sale or other disposition of, or distributions in respect of, the Restricted Stock Units and any shares issued in respect thereof. Any reference in this
Restricted Stock Unit Agreement to grounds existing for a Termination for Cause shall be determined without regard to any notice period, cure period, or other procedural delay or event required prior to finding of or termination with, Cause. The
Restricted Stock Units and all proceeds thereof shall be subject to the Companys Clawback Policy, as in effect from time to time, to the extent the Participant is a director or officer as defined under Rule 16a-1(f) of the Exchange
Act.
10. Restrictive Covenants.
(a) To the extent that the Participant is a party to an employment or similar agreement with the Company or one of its Affiliates or
Subsidiaries containing non-competition, non-solicitation, non-interference or confidentiality restrictions (or two or more such restrictions), those restrictions and related enforcement provisions under such agreement shall govern and the following
provisions of this Section 10 shall not apply.
(b) Competitive Activity.
(i) The Participant shall be deemed to have engaged in Competitive Activity if, during the period commencing
on the Date of Grant and ending on the date that is 12 months after the Termination Date (the Restricted Activity Period), the Participant, whether on the Participants own behalf or on behalf of or in conjunction with any
other Person (as defined below), directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted Activity
Period, the Participant will not, whether on the Participants own behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise
whatsoever (Person), directly or indirectly, solicit or assist in soliciting in competition with the Company or any of its Subsidiaries, the business of any client or prospective client:
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with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one year period preceding the Termination Date; |
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with whom employees reporting to the Participant have had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one year immediately preceding the Termination Date; or
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for whom the Participant had direct or indirect responsibility during the one year immediately preceding the Termination Date. |
(II) During the Restricted Activity Period, the Participant will not directly or indirectly:
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engage in any business that competes with the business of the Company or any of its Subsidiaries, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical,
biotechnology, over-the-counter and vitamin/mineral supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed,
manufactured or sold by the Company or any of its Subsidiaries (including, without limitation, any other business which the Company or any of its Subsidiaries have plans to engage in as of the Termination Date) in any geographical area where the
Company or any of its Subsidiaries conduct business (a Competitive Business); |
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enter the employ of, or render any services to, any Person (or any division or controlled or controlling Affiliate of any Person) who or which engages in a Competitive Business; |
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acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or
consultant; or |
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interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the Date of Grant) between the Company or any of its Subsidiaries and customers, clients, suppliers, or investors
of the Company or any of its Subsidiaries. |
Notwithstanding anything to the contrary in this Restricted Stock Unit Agreement,
the Participant may, directly or indirectly own, solely as an investment, securities of any entity engaged in the business of the Company or any of its Subsidiaries which are publicly traded on a national or regional stock exchange or on the
over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which controls, such Person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person.
(III) During the Restricted Activity Period, the Participant will not, whether on the Participants own behalf or on behalf of or in
conjunction with any Person, directly or indirectly:
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solicit or encourage any employee of the Company or any of its Subsidiaries to leave the employment of the Company or any of its Subsidiaries; or |
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hire any such employee who was employed by the Company or any of its Subsidiaries as of the Termination Date or who left the employment of the Company or any of its Subsidiaries coincident with, or within six
(6) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any of its Subsidiaries for at least six (6) months.
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(IV) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease
to work with the Company or any of its Subsidiaries any consultant then under contract with the Company or any of its Subsidiaries.
(ii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in
this Section 10(b) to be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Restricted Stock Unit Agreement is an unenforceable
restriction against the Participant, the provisions of this Restricted Stock Unit Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially
determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Restricted Stock Unit Agreement is unenforceable, and such restriction cannot be amended so as to make it
enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
(c)
Confidentiality.
(i) The Participant will not at any time (whether during or after the Participants Employment)
(x) retain or use for the benefit, purposes or account of the Participant or any other Person; or (y) disclose, divulge, reveal, communicate, share, transfer or provide access to any person outside the Company and its Affiliates and
Subsidiaries (other than its professional advisers who are bound by confidentiality obligations), any non-public, proprietary or confidential information including without limitation trade secrets, know-how, research and development, software,
databases, inventions, processes, formulae, technology, designs and other intellectual property, information concerning finances, investments, profits, pricing, costs, products, services, vendors, customers, clients, partners, investors, personnel,
compensation, recruiting, training, advertising, sales, marketing, promotions, government and regulatory activities and approvals concerning the past, current or future business, activities and operations of the Company, its Subsidiaries or
Affiliates and/or any third party that has disclosed or provided any of same to the Company on a confidential basis (Confidential Information) without the prior written authorization of the Board.
(ii) Confidential Information shall not include any information that is (x) generally known to the industry or the
public other than as a result of the Participants breach of this covenant or any breach of other confidentiality obligations by third parties, (y) made legitimately available to the Participant by a third party without breach of any known
confidentiality obligation, or (z) required by law to be disclosed or in any judicial or administrative process;
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provided that the Participant shall give prompt written notice to the Company of such requirement, disclose no more information than is so required, and cooperate, at the Companys
cost, with any attempts by the Company to obtain a protective order or similar treatment.
(iii) Except as required by law, the
Participant will not disclose to anyone, other than the Participants immediate family and legal or financial or tax advisors or lender, each of whom the Participant agrees to instruct not to disclose, the existence or contents of this
Restricted Stock Unit Agreement (unless this Restricted Stock Unit Agreement shall be publicly available as a result of a regulatory filing made by the Company or one of its Affiliates or Subsidiaries); provided, that the Participant may
disclose to any prospective future employer the provisions of Section 10 of this Restricted Stock Unit Agreement provided they agree to maintain the confidentiality of such terms.
(iv) Upon Termination, the Participant shall (x) cease and not thereafter commence use of any Confidential Information or
intellectual property (including without limitation, any patent, invention, copyright, trade secret, trademark, trade name, logo, domain name or other source indicator) owned or used by the Company, its Subsidiaries or Affiliates;
(y) immediately destroy, delete, or return to the Company, at the Companys option, all originals and copies in any form or medium (including memoranda, books, papers, plans, computer files, letters and other data) in the
Participants possession or control (including any of the foregoing stored or located in the Participants office, home, laptop or other computer, whether or not Company property) that contain Confidential Information or otherwise relate
to the business of the Company or one of its Affiliates or Subsidiaries, except that the Participant may retain only those portions of any personal notes, notebooks and diaries that do not contain any Confidential Information; and (z) notify
and fully cooperate with the Company regarding the delivery or destruction of any other Confidential Information of which the Participant is or becomes aware.
(d) Equitable Relief.
Notwithstanding the remedies set forth in Section 9 above and notwithstanding any other remedy which would otherwise be available to the
Company at law or in equity, the Company and the Participant agree and acknowledge that if an actual or threatened Restrictive Covenant Violation occurs, the Company will be entitled to an injunction and/or other equitable relief restraining the
Participant from the Restrictive Covenant Violation without the necessity of posting a bond or proving actual damages.
11. Tax
Withholding. The provisions of Section 14(d) of the Plan are incorporated herein by reference and made a part hereof.
12.
Notice. Every notice or other communication relating to this Restricted Stock Unit Agreement between the Company and the Participant shall be in writing, and shall be mailed to or delivered to the party for whom it is intended at such
address as may from time to time be designated by it in a notice mailed or delivered to the other party as herein provided; provided that, unless and until some other address be so designated, all notices or communications by the Participant
to the Company shall be mailed or delivered to the Company at its principal executive office, to the attention of the Companys General Counsel, and all notices or communications by the Company to the Participant may be given to the Participant
personally or may be mailed to the Participant at the Participants last known address, as reflected in the Companys records. Notwithstanding the above, all notices and communications between
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the Participant and any third-party plan administrator shall be mailed, delivered, transmitted or sent in accordance with the procedures established by such third-party plan administrator and
communicated to the Participant from time to time.
13. No Right to Continued Employment. Neither the Plan nor this
Restricted Stock Unit Agreement nor the granting of the Restricted Stock Units evidenced hereby shall be construed as giving the Participant the right to be retained in the employ of, or in any consulting relationship to, the Company or any of its
Affiliates or Subsidiaries. Further, the Company, or, if different, the Service Recipient, may at any time dismiss the Participant or discontinue any consulting relationship, free from any liability or any claim under the Plan or this Restricted
Stock Unit Agreement, except as otherwise expressly provided herein.
14. Data Privacy. The Participant hereby
explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of the Participants personal data as described in this Restricted Stock Unit Agreement and any other Restricted Stock Unit grant materials
by and among, as applicable, the Service Recipient, the Company and its other Affiliates or Subsidiaries for the exclusive purpose of implementing, administering and managing the Participants participation in the Plan.
The Participant understands that the Company and the Service Recipient may hold certain personal information about the Participant,
including, but not limited to, the Participants name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any shares of stock or directorships held in the
Company, details of all Restricted Stock Units or any other entitlement to shares of stock awarded, canceled, exercised, vested, unvested or outstanding in the Participants favor (Data), for the exclusive purpose of implementing,
administering and managing the Plan.
The Participant understands that Data will be transferred to Morgan Stanley Smith
Barney LLC, or such other stock plan service provider as may be selected by the Company in the future, which is assisting the Company with the implementation, administration and management of the Plan. The Participant understands that the recipients
of the Data may be located in the United States or elsewhere, and that the recipients country (e.g., the United States) may have different data privacy laws and protections than the Participants country. The Participant understands that
the Participant may request a list with the names and addresses of any potential recipients of the Data by contacting the Participants local human resources representative. The Participant authorizes the Company, Morgan Stanley Smith Barney
LLC and any other possible recipients which may assist the Company (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, retain and transfer the Data, in electronic or other form, for the sole
purpose of implementing, administering and managing the Participants participation in the Plan. The Participant understands that Data will be held only as long as is necessary to implement, administer and manage the Participants
participation in the Plan. The Participant understands that the Participant may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the
consents herein, in any case without cost, by contacting in writing the Participants local human resources representative. Further, the Participant understands that the Participant is providing the consents herein on a purely voluntary basis.
If the Participant does not consent, or if the Participant later seeks to revoke the Participants consent, the Participants Employment and career with the Service Recipient will not be adversely affected; the only adverse consequence of
refusing or withdrawing the Participants consent is that the Company would not be able to grant Restricted Stock Units or other equity awards to the Participant or administer or maintain such awards. Therefore, the Participant understands that
refusing or withdrawing the Participants consent may affect the Participants ability
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to participate in the Plan. For more information on the consequences of the Participants refusal to consent or withdrawal of consent, the Participant understands that the Participant may
contact the Participants local human resources representative.
15. Binding Effect. This Restricted Stock Unit
Agreement shall be binding upon the heirs, executors, administrators and successors of the parties hereto.
16. Waiver and
Amendments. Subject to Section 13(b) of the Plan, the Committee may waive any conditions or rights under, amend any terms of, or alter, suspend, discontinue, cancel or terminate, this Restricted Stock Unit Agreement, prospectively or
retroactively (including after the Participants Termination); provided that any such waiver, amendment, alteration, suspension, discontinuance, cancellation or termination that would materially and adversely affect the rights of the
Participant hereunder shall not to that extent be effective without the consent of the Participant. No waiver by either of the parties hereto of their rights hereunder shall be deemed to constitute a waiver with respect to any subsequent occurrences
or transactions hereunder unless such waiver specifically states that it is to be construed as a continuing waiver.
17. Governing
Law; Venue. This Restricted Stock Unit Agreement shall be construed and interpreted in accordance with the laws of the State of Delaware, without regard to the principles of conflicts of law thereof. For purposes of litigating any dispute
that arises under this grant or this Restricted Stock Unit Agreement, the parties hereby submit to and consent to the jurisdiction of the State of New Jersey, agree that such litigation shall be conducted in the courts of Somerset County, or the
federal courts for the United States for the District of New Jersey, where this grant is made and/or to be performed.
18.
Plan. The terms and provisions of the Plan are incorporated herein by reference. In the event of a conflict or inconsistency between the terms and provisions of the Plan and the provisions of this Restricted Stock Unit Agreement, the
Plan shall govern and control.
19. Electronic Delivery and Acceptance. The Company may, in its sole discretion, decide to
deliver any documents related to current or future participation in the Plan by electronic means. The Participant hereby consents to receive such documents by electronic delivery and agrees to participate in the Plan through an on-line or electronic
system established and maintained by the Company or a third party designated by the Company.
20. Imposition of Other
Requirements. The Company reserves the right to impose any other requirements on the Participants participation in the Plan, on the Restricted Stock Units and on any shares acquired under the Plan, to the extent the Company determines
it is necessary or advisable for legal or administrative reasons, and to require the Participant to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.
21. Section 409A of the Code. The Restricted Stock Units are not intended to constitute nonqualified deferred
compensation within the meaning of Section 409A of the Code (together with any Department of Treasury regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other guidance that
may be issued after the date hereof, Section 409A). However, notwithstanding any other provision of the Plan, the Grant Notice or this Restricted Stock Unit Agreement, if at any time the Committee determines that the Restricted
Stock Units (or any portion thereof) may be subject to Section 409A, the Committee shall have the right in its sole discretion (without any obligation to do so or to indemnify the Participant or any other person for failure to do so) to adopt
such amendments to the Plan, the Grant Notice or this Restricted Stock Unit Agreement, or adopt other policies and procedures (including amendments, policies and procedures with
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retroactive effect), or take any other actions, as the Committee determines are necessary or appropriate either for the Restricted Stock Units to be exempt from the application of
Section 409A or to comply with the requirements of Section 409A.
22. Insider Trading Restrictions/Market Abuse Laws.
The Participant acknowledges that, depending on his or her country, the Participant may be subject to insider trading restrictions and/or market abuse laws, which may affect his or her ability to acquire or sell shares of Common Stock or rights
to shares of Common Stock (e.g., Restricted Stock Units) under the Plan during such times as the Participant is considered to have inside information regarding the Company (as defined by the laws in the Participants country). Any
restrictions under these laws or regulations are separate from and in addition to any restrictions that may be imposed under any applicable Company insider trading policy. The Participant is responsible for ensuring compliance with any applicable
restrictions and is advised to consult his or her personal legal advisor on this matter.
23. Entire Agreement. This
Restricted Stock Unit Agreement, the Grant Notice and the Plan constitute the entire understanding between the Participant and the Company regarding the Restricted Stock Units. This Restricted Stock Unit Agreement, the Grant Notice and the Plan
supersede any prior agreements, commitments or negotiations concerning the Restricted Stock Units.
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Exhibit 10.6
RESTRICTED STOCK UNIT GRANT NOTICE
UNDER THE
CATALENT, INC.
2014 OMNIBUS INCENTIVE PLAN
Catalent, Inc. (the Company), pursuant to its 2014 Omnibus Incentive Plan, as it may be amended from time to time (the
Plan), hereby grants to the Participant set forth below the number of Restricted Stock Units set forth below. The Restricted Stock Units are subject to all of the terms and conditions as set forth herein and in the Restricted
Stock Unit Agreement (attached hereto or previously provided to the Participant in connection with a prior grant) and the Plan, all of which are incorporated herein in their entirety. Capitalized terms not otherwise defined herein shall have the
meaning set forth in the Plan or the Restricted Stock Unit Agreement.
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Participant: |
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[Insert Participant Name] |
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Date of Grant: |
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[Insert Date of Grant] |
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Number of Restricted Stock Units: |
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[Insert No. of Restricted Stock Units Granted], subject to adjustment as set forth in the Plan. |
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Vesting Schedule: |
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Provided the Participant has not incurred a Termination on or prior to the Vesting Date (as defined below), 100% of the Restricted Stock Units will vest on the first anniversary of the Date of Grant (the Vesting
Date) and upon the Vesting Date, the Restricted Period shall expire. |
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Notwithstanding the foregoing, in the event of a Change in Control prior to the Termination Date, the Restricted Stock Units, to the extent not then vested or previously forfeited or cancelled, shall become fully vested and the
Restricted Period shall expire. |
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THE UNDERSIGNED PARTICIPANT ACKNOWLEDGES RECEIPT OF THIS RESTRICTED STOCK UNIT GRANT NOTICE, THE RESTRICTED
STOCK UNIT AGREEMENT AND THE PLAN, AND, AS AN EXPRESS CONDITION TO THE GRANT OF RESTRICTED STOCK UNITS HEREUNDER, AGREES TO BE BOUND BY THE TERMS OF THIS RESTRICTED STOCK UNIT GRANT NOTICE, THE RESTRICTED STOCK UNIT AGREEMENT AND THE PLAN.
This Restricted Stock Unit Grant Notice may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
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CATALENT, INC. |
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PARTICIPANT |
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By: |
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Title: |
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[Signature Page for Restricted Stock Unit Grant (Non-Employee Directors)]
2
RESTRICTED STOCK UNIT AGREEMENT
UNDER THE
CATALENT, INC.
2014 OMNIBUS INCENTIVE PLAN
Pursuant to the Restricted Stock Unit Grant Notice (the Grant Notice) delivered to the Participant (as defined in the Grant Notice), and
subject to the terms of this Restricted Stock Unit Agreement (this Restricted Stock Unit Agreement) and the Catalent, Inc. 2014 Omnibus Incentive Plan, as it may be amended from time to time (the Plan),
Catalent, Inc. (the Company) and the Participant agree as follows.
1. Definitions. Whenever the
following terms are used in this Restricted Stock Unit Agreement, they shall have the meanings set forth below. Capitalized terms not otherwise defined herein shall have the same meanings as in the Plan or the Grant Notice, as applicable.
(a) Service. The term Service means the Participants services as a Non-Employee Director.
(b) Termination Date. The term Termination Date shall mean the date upon which the Participant incurs a Termination for any
reason.
2. Grant of Restricted Stock Units. Subject to the terms and conditions set forth herein, in the Grant Notice and
in the Plan, for good and valuable consideration, the Company hereby grants to the Participant the number of Restricted Stock Units provided in the Grant Notice (with each Restricted Stock Unit representing an unfunded, unsecured right to receive
one share of Common Stock). The Company may make one or more additional grants of Restricted Stock Units to the Participant under this Restricted Stock Unit Agreement by providing the Participant with a new Grant Notice, which may also include any
terms and conditions differing from this Restricted Stock Unit Agreement to the extent provided therein. The Company reserves all rights with respect to the granting of additional Restricted Stock Units hereunder and makes no implied promise to
grant additional Restricted Stock Units.
3. Vesting. Subject to the conditions contained herein and the Plan, the
Restricted Stock Units shall vest as provided in the Grant Notice. With respect to any Restricted Stock Unit, the period of time that such Restricted Stock Unit remains subject to vesting shall be its Restricted Period.
4. Dividend Equivalents. The Restricted Stock Units shall be entitled to be credited with dividend equivalent payments upon the
payment by the Company of dividends on shares of Common Stock. Such dividend equivalents will be provided in shares of Common Stock having a Fair Market Value equal to the amount of such applicable dividends, and shall be shall be payable at the
same time as the Restricted Stock Units are settled in accordance with Section 5 below. In the event that any Restricted Stock Unit is forfeited by its terms, the Participant shall have no right to dividend equivalent payments in respect of
such forfeited Restricted Stock Units.
5. Settlement of Restricted Stock Units. Upon expiration of the Restricted Period
with respect to any outstanding Restricted Stock Units that have not previously been forfeited in accordance with Section 6, the Company shall issue to the Participant as soon as practicable (but no later than March 15 of the year
following the year in which the Restricted Period expires) one share of Common Stock for each Restricted Stock Unit and such Restricted Stock Unit shall be cancelled; provided, however, that the Committee may, in its sole discretion,
elect to defer the issuance of such shares beyond the expiration of the Restricted Period if such extension would not cause adverse tax consequences under Section 409A of the Code.
6. Treatment on Termination. In the event of a Termination prior to the Vesting
Date, (i) all vesting with respect to the Participants Restricted Stock Units shall cease and (ii) unvested Restricted Stock Units shall be forfeited to the Company by the Participant for no consideration as of the date of such
Termination. Notwithstanding the foregoing, if the Participant incurs a Termination due to death or Disability, the Restricted Stock Units shall, to the extent not then vested or previously forfeited or cancelled, become fully vested and the
Restricted Period shall expire.
7. Non-Transferability. The Restricted Stock Units are not transferable by the Participant
except to Permitted Transferees in accordance with Section 14(b) of the Plan. Whenever the word Participant is used in any provision of this Agreement under circumstances where the provision should logically be construed to apply to
executors, the administrators or the person or persons to whom the Restricted Stock Units may be transferred by will or by the laws of descent and distribution in accordance with Section 14 of the Plan, the word Participant shall be
deemed to include such person or persons. Except as otherwise provided herein, no assignment or transfer of the Restricted Stock Units, or of the rights represented thereby, whether voluntary or involuntary, by operation of law or otherwise, shall
vest in the assignee or transferee any interest or right herein whatsoever, but immediately upon such assignment or transfer the Restricted Stock Units shall terminate and become of no further effect.
8. Rights as Stockholder. Except as otherwise expressly provided for herein, the Participant or a Permitted Transferee of the
Restricted Stock Units shall have no rights as a stockholder with respect to any share of Common Stock underlying a Restricted Stock Unit unless and until the Participant shall have become the holder of record or the beneficial owner of such Common
Stock, and no adjustment shall be made for dividends or distributions or other rights in respect of such share of Common Stock for which the record date is prior to the date upon which the Participant shall become the holder of record or the
beneficial owner thereof.
9. Tax Withholding. The provisions of Section 14(d) of the Plan are incorporated herein by
reference and made a part hereof.
10. Notice. Every notice or other communication relating to this Restricted Stock Unit
Agreement between the Company and the Participant shall be in writing, and shall be mailed to or delivered to the party for whom it is intended at such address as may from time to time be designated by it in a notice mailed or delivered to the other
party as herein provided; provided that, unless and until some other address be so designated, all notices or communications by the Participant to the Company shall be mailed or delivered to the Company at its principal executive office, to
the attention of the Companys General Counsel, and all notices or communications by the Company to the Participant may be given to the Participant personally or may be mailed to the Participant at the Participants last known address, as
reflected in the Companys records. Notwithstanding the above, all notices and communications between the Participant and any third-party plan administrator shall be mailed, delivered, transmitted or sent in accordance with the procedures
established by such third-party plan administrator and communicated to the Participant from time to time.
11. No Right to Continued
Service. Neither the Plan nor this Restricted Stock Unit Agreement nor the granting of the Restricted Stock Units evidenced hereby shall be construed as giving the Participant the right to be retained in the employ of, or in any consulting
relationship to, the Company or any of its Affiliates or Subsidiaries. Further, the Company, or, if different, the Service Recipient, may at any time dismiss the Participant or discontinue any consulting relationship, free from any liability or any
claim under the Plan or this Restricted Stock Unit Agreement, except as otherwise expressly provided herein.
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12. Data Privacy. The Participant
hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of the Participants personal data as described in this Restricted Stock Unit Agreement and any other Restricted Stock Unit grant
materials by and among, as applicable, the Service Recipient, the Company and its other Affiliates or Subsidiaries for the exclusive purpose of implementing, administering and managing the Participants participation in the Plan.
The Participant understands that the Company and the Service Recipient may hold certain personal information about the Participant,
including, but not limited to, the Participants name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any shares of stock or directorships held in the
Company, details of all Restricted Stock Units or any other entitlement to shares of stock awarded, canceled, exercised, vested, unvested or outstanding in the Participants favor (Data), for the exclusive purpose of implementing,
administering and managing the Plan.
The Participant understands that Data will be transferred to Morgan Stanley Smith
Barney LLC, or such other stock plan service provider as may be selected by the Company in the future, which is assisting the Company with the implementation, administration and management of the Plan. The Participant understands that the recipients
of the Data may be located in the United States or elsewhere, and that the recipients country (e.g., the United States) may have different data privacy laws and protections than the Participants country. The Participant understands that
the Participant may request a list with the names and addresses of any potential recipients of the Data by contacting the Participants local human resources representative. The Participant authorizes the Company, Morgan Stanley Smith Barney
LLC and any other possible recipients which may assist the Company (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, retain and transfer the Data, in electronic or other form, for the sole
purpose of implementing, administering and managing the Participants participation in the Plan. The Participant understands that Data will be held only as long as is necessary to implement, administer and manage the Participants
participation in the Plan. The Participant understands that the Participant may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the
consents herein, in any case without cost, by contacting in writing the Participants local human resources representative. Further, the Participant understands that the Participant is providing the consents herein on a purely voluntary basis.
If the Participant does not consent, or if the Participant later seeks to revoke the Participants consent, the Participants Employment and career with the Service Recipient will not be adversely affected; the only adverse consequence of
refusing or withdrawing the Participants consent is that the Company would not be able to grant Restricted Stock Units or other equity awards to the Participant or administer or maintain such awards. Therefore, the Participant understands that
refusing or withdrawing the Participants consent may affect the Participants ability to participate in the Plan. For more information on the consequences of the Participants refusal to consent or withdrawal of consent, the
Participant understands that the Participant may contact the Participants local human resources representative.
13.
Binding Effect. This Restricted Stock Unit Agreement shall be binding upon the heirs, executors, administrators and successors of the parties hereto.
14. Waiver and Amendments. Subject to Section 13(b) of the Plan, the Committee may waive any conditions or rights under,
amend any terms of, or alter, suspend, discontinue, cancel or terminate, this Restricted Stock Unit Agreement, prospectively or retroactively (including after the Participants Termination); provided that any such waiver, amendment, alteration,
suspension, discontinuance, cancellation or termination that would materially and adversely affect the rights of the
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Participant hereunder shall not to that extent be effective without the consent of the Participant. No waiver by either of the parties hereto of their rights hereunder shall be deemed to
constitute a waiver with respect to any subsequent occurrences or transactions hereunder unless such waiver specifically states that it is to be construed as a continuing waiver.
15. Governing Law; Venue. This Restricted Stock Unit Agreement shall be construed and interpreted in accordance with the laws of
the State of Delaware, without regard to the principles of conflicts of law thereof. For purposes of litigating any dispute that arises under this grant or this Restricted Stock Unit Agreement, the parties hereby submit to and consent to the
jurisdiction of the State of New Jersey, agree that such litigation shall be conducted in the courts of Somerset County, or the federal courts for the United States for the District of New Jersey, where this grant is made and/or to be performed.
16. Plan. The terms and provisions of the Plan are incorporated herein by reference. In the event of a conflict or
inconsistency between the terms and provisions of the Plan and the provisions of this Restricted Stock Unit Agreement, the Plan shall govern and control.
17. Electronic Delivery and Acceptance. The Company may, in its sole discretion, decide to deliver any documents related to
current or future participation in the Plan by electronic means. The Participant hereby consents to receive such documents by electronic delivery and agrees to participate in the Plan through an on-line or electronic system established and
maintained by the Company or a third party designated by the Company.
18. Imposition of Other Requirements. The Company
reserves the right to impose any other requirements on the Participants participation in the Plan, on the Restricted Stock Units and on any shares acquired under the Plan, to the extent the Company determines it is necessary or advisable for
legal or administrative reasons, and to require the Participant to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.
19. Section 409A of the Code. The Restricted Stock Units are not intended to constitute nonqualified deferred
compensation within the meaning of Section 409A of the Code (together with any Department of Treasury regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other guidance that
may be issued after the date hereof, Section 409A). However, notwithstanding any other provision of the Plan, the Grant Notice or this Restricted Stock Unit Agreement, if at any time the Committee determines that the Restricted
Stock Units (or any portion thereof) may be subject to Section 409A, the Committee shall have the right in its sole discretion (without any obligation to do so or to indemnify the Participant or any other person for failure to do so) to adopt
such amendments to the Plan, the Grant Notice or this Restricted Stock Unit Agreement, or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, as the Committee
determines are necessary or appropriate either for the Restricted Stock Units to be exempt from the application of Section 409A or to comply with the requirements of Section 409A.
20. Insider Trading Restrictions/Market Abuse Laws. The Participant acknowledges that, depending on his or her country, the
Participant may be subject to insider trading restrictions and/or market abuse laws, which may affect his or her ability to acquire or sell shares of Common Stock or rights to shares of Common Stock (e.g., Restricted Stock Units) under the Plan
during such times as the Participant is considered to have inside information regarding the Company (as defined by the laws in the Participants country). Any restrictions under these laws or regulations are separate from and in
addition to any restrictions that may be imposed under any applicable Company insider trading policy. The Participant is responsible for ensuring compliance with any applicable restrictions and is advised to consult his or her personal legal advisor
on this matter.
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21. Entire Agreement. This Restricted Stock Unit Agreement, the Grant Notice and
the Plan constitute the entire understanding between the Participant and the Company regarding the Restricted Stock Units. This Restricted Stock Unit Agreement, the Grant Notice and the Plan supersede any prior agreements, commitments or
negotiations concerning the Restricted Stock Units.
7
Exhibit 10.7
OPTION GRANT NOTICE FOR NON-U.S. PARTICIPANTS
UNDER THE
CATALENT, INC.
2014 OMNIBUS INCENTIVE PLAN
Catalent, Inc. (the Company), pursuant to its 2014 Omnibus Incentive Plan, as it may be amended from time to time (the
Plan), hereby grants to the Participant set forth below the Option set forth below, at an Exercise Price per share as set forth below. The Option is subject to all of the terms and conditions as set forth herein and in the Option
Agreement for Non-U.S. Participants, including any special terms and conditions for the Participants country set forth in Appendix A (both attached hereto), and the Plan, all of which are incorporated herein in their entirety. Capitalized
terms not otherwise defined herein or in the Option Agreement shall have the meaning set forth in the Plan.
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Participant: |
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[Insert Participant Name] |
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Date of Grant: |
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[Insert Date of Grant] |
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Number of Shares Subject to Option: |
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[Insert No. of Shares Subject to the Option Granted], subject to adjustment as set forth in the Plan. |
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Exercise Price per Share: |
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[Insert Exercise Price per share], subject to adjustment as set forth in the Plan. |
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Option Period Expiration Date: |
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[Insert Expiration Date (e.g., Ten years from Date of Grant)] |
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Type of Option: |
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Nonqualified Stock Option |
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Vesting Schedule: |
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Provided the Participant has not incurred a Termination at the time of each applicable vesting date, the Option shall become vested and exercisable as to 25% of the shares of Common Stock subject to the Option on each of the first,
second, third and fourth anniversaries of the Date of Grant. |
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Notwithstanding the foregoing, in the event of a Change in Control, to the extent the acquiring or successor entity does not assume, continue or substitute for the Option, the Option, to the extent not then vested or previously
forfeited or cancelled, shall become fully vested. |
* * *
THE UNDERSIGNED PARTICIPANT ACKNOWLEDGES RECEIPT OF THIS OPTION GRANT NOTICE, THE OPTION AGREEMENT (INCLUDING
APPENDIX A) AND THE PLAN, AND, AS AN EXPRESS CONDITION TO THE GRANT OF THE OPTION HEREUNDER, AGREES TO BE BOUND BY THE TERMS OF THIS OPTION GRANT NOTICE, THE OPTION AGREEMENT (INCLUDING APPENDIX A) AND THE PLAN. THE PARTICIPANTS RIGHTS UNDER
THIS OPTION GRANT NOTICE AND THE OPTION AGREEMENT WILL LAPSE SIXTY (60) DAYS FROM THE DATE OF GRANT AND THE OPTION WILL BE FORFEITED ON SUCH DATE IF THE PARTICIPANT SHALL NOT HAVE ACCEPTED THIS OPTION GRANT NOTICE AND OPTION AGREEMENT
(INCLUDING APPENDIX A) BY SUCH DATE.
This Option Grant Notice may be signed in counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
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CATALENT, INC. |
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PARTICIPANT1 |
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By: |
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Title: |
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1 |
To the extent that the Company has established, either itself or through a third-party plan administrator, the ability to accept this award electronically, such acceptance shall constitute the Participants
signature hereof. |
2
OPTION AGREEMENT FOR NON-U.S. PARTICIPANTS
UNDER THE
CATALENT, INC.
2014 OMNIBUS INCENTIVE PLAN
Pursuant to the Option Grant Notice for Non-U.S. Participants (the Grant Notice) delivered to the Participant (as defined in the Grant
Notice), and subject to the terms of this Option Agreement for Non-U.S. Participants (the Option Agreement), including any special terms and conditions for the Participants country set forth in Appendix A attached hereto
(collectively, this Agreement), and the Catalent, Inc. 2014 Omnibus Incentive Plan, as it may be amended from time to time (the Plan), Catalent, Inc. (the Company) and the Participant agree as
follows.
1. Definitions. Whenever the following terms are used in this Agreement, they shall have the meanings set forth
below. Capitalized terms not otherwise defined herein shall have the same meanings as in the Plan or the Grant Notice, as applicable.
(a)
Employment. The term Employment means the Participants employment as an employee of the Company or any of its Affiliates or Subsidiaries.
(b) Restrictive Covenant Violation. The term Restrictive Covenant Violation shall mean the Participants breach of the
Restrictive Covenants set forth in Section 9 or any covenant regarding confidentiality, competitive activity, solicitation of the Companys or any of its Affiliates or Subsidiaries vendors, suppliers, customers or employees or
any similar provision applicable to or agreed to by the Participant.
(c) Retirement. The term Retirement shall mean a
Termination by the Participant that occurs on or after the date on which the Participant attains the age of sixty-five (65) and has completed at least ten (10) years of Employment (other than a Termination when grounds existed for a
Termination for Cause at the time thereof).
(d) Termination Date. The term Termination Date shall mean the date upon
which the Participant incurs a Termination for any reason.
(e) Unvested Portion. The term Unvested Portion shall mean,
at any time, the portion of the Option which is then unvested in accordance with the Grant Notice and the Agreement.
(f) Vested
Portion. The term Vested Portion shall mean, at any time, the portion of the Option which has become and remains vested in accordance with the Grant Notice and the Agreement.
2. Grant of Option. Subject to the terms and conditions set forth herein, in the Grant Notice and in the Plan, for good and
valuable consideration, the Company hereby grants to the Participant the right and option to purchase, all or any part of the aggregate number of shares of Common Stock subject to the Option provided in the Grant Notice, at an Exercise Price per
share as provided in the Grant Notice. The Company may make one or more additional grants of Options to the Participant under this Agreement by providing the Participant with a new Grant Notice, which may also include any terms and conditions
differing from this Agreement to the extent provided therein. The Company reserves all rights with respect to the granting of additional Options hereunder and makes no implied promise to grant additional Options.
3. Vesting. Subject to the conditions contained herein and the Plan, the Option
shall vest as provided in the Grant Notice.
4. Treatment on Termination. If the Participant incurs a Termination, except as
set forth in this Section 4, the Unvested Portion of the Option shall be cancelled by the Company without any payment of consideration therefor and the Vested Portion of the Option shall remain exercisable for the period set forth in
Section 5.
(a) Death. If the Participant incurs a Termination due to death, the Option shall, to the extent not then vested
or previously forfeited or cancelled, become fully vested and exercisable.
(b) Disability/Retirement. If the Participant incurs a
Termination due to Disability or Retirement, in each case, the Option shall, to the extent not then vested or previously forfeited or cancelled, continue to vest as provided in the Grant Notice as if the Participant had continued Employment through
each applicable anniversary of the Date of Grant, subject to the Participants compliance with the restrictive covenants set forth in Section 9 and the Participants execution, delivery and non-revocation of a waiver and release of
claims in favor of the Company and its Affiliates and Subsidiaries in a form prescribed by the Company on or prior to the 60th day following the Termination Date.
Notwithstanding the above, if the Company receives an opinion of counsel that there has been a legal judgment and/or legal development in the
Participants jurisdiction that would cause the continued vesting of the Option after Termination due to retirement being deemed unlawful and/or discriminatory, the unvested portion of the Options shall be treated as set forth in the remaining
provisions of this Section 4.
(c) Change in Control. In the event of a Change in Control, to the extent the acquiring or
successor entity does assume, continue or substitute for the Option, if the Participant incurs a Termination by the Service Recipient without Cause (other than due to death or Disability) during the period commencing on the date of the consummation
of a Change in Control and ending on the date that is eighteen (18) months following the consummation of such Change in Control, the Option shall, to the extent not then vested or previously forfeited or cancelled, become fully vested and
exercisable.
5. Exercise of Options. Subject to the provisions of the Plan and this Agreement, the Participant may exercise
all or any part of the Vested Portion of the Option at any time prior to the Option Period Expiration Date. Notwithstanding the foregoing, if the Participant incurs a Termination prior to the Option Period Expiration Date, the Vested Portion of the
Option shall remain exercisable for the period set forth below.
(a) Death. If the Participant incurs a Termination due to death,
the Participant may exercise the Vested Portion of the Option for a period ending on the earlier of (A) the first anniversary of the Termination Date and (B) the Option Period Expiration Date.
(b) Disability/Retirement. If the Participant incurs a Termination due to Disability or Retirement, in each case, the Participant may
exercise the Vested Portion of the Option for a period ending on the earlier of (A) the first anniversary of the Termination Date and (B) the Option Period Expiration Date and for any portion of the Option that becomes vested after the
Termination Date pursuant to Section 4(b) above, the earlier of (I) the first anniversary of the date on which such portion of the Option vests and (II) the Option Period Expiration Date.
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Notwithstanding the above, if the Company receives an opinion of counsel that there has been a
legal judgment and/or legal development in the Participants jurisdiction that would cause the extended post-Termination period of the Option after termination due to retirement being deemed unlawful and/or discriminatory, the Participant may
exercise the Vested Portion of the Option as set forth in the remaining provisions of this Section 5.
(c) Termination for
Cause. If the Participant incurs a Termination by the Service Recipient for Cause, the Vested Portion of the Option shall immediately terminate in full and cease to be exercisable.
(d) Other Terminations. If the Participant incurs a Termination for any other reason not covered by clauses (a) through
(c) above, the Participant may exercise the Vested Portion of the Option for a period ending on the earlier of (A) the 90th day following the Termination Date and (B) the Option
Period Expiration Date.
6. Method of Exercising Option. All or any portion of the Vested Portion of the Option may be
exercised by the delivery of notice of the number of shares subject to the Option that are being exercised accompanied by payment in full of the Exercise Price applicable to the portion of the Option so exercised. Such notice shall be delivered
either (x) in writing to the Company at its principal office or at such other address as may be established by the Committee, to the attention of the Companys General Counsel; or (y) to a third-party plan administrator as may be
arranged for by the Company or the Committee from time to time for purposes of the administration of outstanding Options under the Plan, in the case of either (x) or (y), as communicated to the Participant by the Company from time to time.
Payment of the aggregate Exercise Price may be made using any of the methods described in Section 7(d)(i) or (ii) of the Plan; provided, that the Participant shall obtain written consent from the Committee prior to the use of the
methods described in Section 7(d)(ii)(A) or (C) of the Plan.
7. Issuance of Shares. If the Participant elects to
exercise all or any portion of the Option, then, as promptly as practical after receipt of such notification and full payment of the Exercise Price and any Tax-Related Items (as provided in Section 12 hereof), the Company shall issue or
transfer, or cause such issue or transfer, to the Participant the number of shares with respect to which the Option has been so exercised, and shall either (a) deliver, or cause to be delivered, to the Participant a certificate or certificates
therefor, registered in the Participants name or (b) cause such shares to be credited to the Participants account at the third-party plan administrator.
8. Repayment of Proceeds; Clawback Policy. If a Restrictive Covenant Violation occurs or the Company discovers after a
Termination that grounds existed for Cause at the time thereof, then the Participant shall be required, in addition to any other remedy available (on a non-exclusive basis), to pay to the Company, within ten (10) business days of the
Companys request to the Participant therefor, an amount equal to the excess, if any, of (a) the aggregate after-tax proceeds (taking into account all amounts of tax that would be recoverable upon a claim of loss for payment of such
proceeds in the year of repayment) the Participant received upon the sale or other disposition of, or distributions in respect of, all or any portion of the Option and any shares of Common Stock acquired in respect thereof over (b) the
aggregate Cost (if any) of such shares. For purposes of this Agreement, Cost means, in respect of any share, the amount paid by the Participant for the share (excluding, for the avoidance of doubt, any Tax-Related Items), as
proportionately adjusted for corporate transactions and other recapitalizations and less the amount of any dividends or distributions made with respect to the share; provided that Cost may not be less than zero. Any reference in this Agreement to
grounds existing for a Termination for Cause shall be determined without regard to any notice period, cure period, or other procedural delay or event required prior to finding of or termination with, Cause. The Option and all proceeds of the Option
shall be subject to the Companys Clawback Policy, as in effect from time to time, to the extent the Participant is a director or officer as defined under Rule 16a-1(f) of the Exchange Act.
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9. Restrictive Covenants.
(a) To the extent that the Participant is a party to an employment or similar agreement with the Company or one of its Affiliates or
Subsidiaries containing non-competition, non-solicitation, non-interference or confidentiality restrictions (or two or more such restrictions), those restrictions and related enforcement provisions under such agreement shall govern and the following
provisions of this Section 9 shall not apply.
(b) Competitive Activity.
(i) The Participant shall be deemed to have engaged in Competitive Activity if, during the period commencing
on the Date of Grant and ending on the date that is 12 months after the Termination Date (the Restricted Period), the Participant, whether on the Participants own behalf or on behalf of or in conjunction with any other
Person (as defined below), directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted
Period, the Participant will not, whether on the Participants own behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise
whatsoever (Person), directly or indirectly, solicit or assist in soliciting in competition with the Company or any of its Subsidiaries, the business of any client or prospective client:
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with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one year period preceding the Termination Date; |
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with whom employees reporting to the Participant have had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one year immediately preceding the Termination Date; or
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for whom the Participant had direct or indirect responsibility during the one year immediately preceding the Termination Date. |
(II) During the Restricted Period, the Participant will not directly or indirectly:
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engage in any business that competes with the business of the Company or any of its Subsidiaries, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical,
biotechnology, over-the-counter and vitamin/mineral supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed,
manufactured or sold by the Company or any of its Subsidiaries (including, without limitation, any other business which the Company or any of its Subsidiaries have plans to engage in as of the Termination Date) in any geographical area where the
Company or any of its Subsidiaries conduct business (a Competitive Business); |
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enter the employ of, or render any services to, any Person (or any division or controlled or controlling Affiliate of any Person) who or which engages in a Competitive Business; |
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acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or
consultant; or |
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interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the Date of Grant) between the Company or any of its Subsidiaries and customers, clients, suppliers, or investors
of the Company or any of its Subsidiaries. |
Notwithstanding anything to the contrary in this Agreement, the
Participant may, directly or indirectly own, solely as an investment, securities of any entity engaged in the business of the Company or any of its Subsidiaries which are publicly traded on a national or regional stock exchange or on the
over-the-counter market if the Participant (i) is not a controlling person of, or a member of a group which controls, such Person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person.
(III) During the Restricted Period, the Participant will not, whether on the Participants own behalf or on behalf of or
in conjunction with any Person, directly or indirectly:
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solicit or encourage any employee of the Company or any of its Subsidiaries to leave the employment of the Company or any of its Subsidiaries; or |
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hire any such employee who was employed by the Company or any of its Subsidiaries as of the Termination Date or who left the employment of the Company or any of its Subsidiaries coincident with, or within six
(6) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any of its Subsidiaries for at least six (6) months.
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(IV) During the Restricted Period, the Participant will not, directly or indirectly, solicit or encourage to
cease to work with the Company or any of its Subsidiaries any consultant then under contract with the Company or any of its Subsidiaries.
(ii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in
this Section 9(b) to be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the
Participant, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such
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court may judicially determine or indicate to be enforceable. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and
such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of any of the other restrictions contained herein.
(c) Confidentiality.
(i) The Participant will not at any time (whether during or after the Participants Employment) (x) retain or use for
the benefit, purposes or account of the Participant or any other Person; or (y) disclose, divulge, reveal, communicate, share, transfer or provide access to any person outside the Company and its Affiliates and Subsidiaries (other than its
professional advisers who are bound by confidentiality obligations), any non-public, proprietary or confidential information including without limitation trade secrets, know-how, research and development, software, databases, inventions,
processes, formulae, technology, designs and other intellectual property, information concerning finances, investments, profits, pricing, costs, products, services, vendors, customers, clients, partners, investors, personnel, compensation,
recruiting, training, advertising, sales, marketing, promotions, government and regulatory activities and approvals concerning the past, current or future business, activities and operations of the Company, its Affiliates or Subsidiaries
and/or any third party that has disclosed or provided any of same to the Company on a confidential basis (Confidential Information) without the prior written authorization of the Board.
(ii) Confidential Information shall not include any information that is (x) generally known to the
industry or the public other than as a result of the Participants breach of this covenant or any breach of other confidentiality obligations by third parties; (y) made legitimately available to the Participant by a third party without
breach of any known confidentiality obligation; or (z) required by law to be disclosed or in any judicial or administrative process; provided that the Participant shall give prompt written notice to the Company of such requirement,
disclose no more information than is so required, and cooperate, at the Companys cost, with any attempts by the Company to obtain a protective order or similar treatment.
(iii) Except as required by law, the Participant will not disclose to anyone, other than the Participants immediate
family and legal or financial or tax advisors or lender, each of whom the Participant agrees to instruct not to disclose, the existence or contents of this Agreement (unless this Agreement shall be publicly available as a result of a regulatory
filing made by the Company, its Affiliates or Subsidiaries); provided, that the Participant may disclose to any prospective future employer the provisions of Section 9 of this Agreement provided they agree to maintain the confidentiality
of such terms.
(iv) Upon Termination, the Participant shall (x) cease and not thereafter commence use of any
Confidential Information or intellectual property (including without limitation, any patent, invention, copyright, trade secret, trademark, trade name, logo, domain name or other source indicator) owned or used by the Company, its Affiliates or
Subsidiaries; (y) immediately destroy, delete, or return to the Company, at the Companys option, all originals and copies in any form or medium (including memoranda, books, papers, plans, computer files, letters and other data) in the
Participants possession or control (including any of the foregoing stored or located in the Participants office, home, laptop or other computer, whether or not Company property) that contain Confidential Information or otherwise relate
to the business of the Company,
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its Affiliates or Subsidiaries, except that the Participant may retain only those portions of any personal notes, notebooks and diaries that do not contain any Confidential Information; and
(z) notify and fully cooperate with the Company regarding the delivery or destruction of any other Confidential Information of which the Participant is or becomes aware.
(d) Equitable Relief.
Notwithstanding the remedies set forth in Section 9 above and notwithstanding any other remedy which would otherwise be available to the
Company at law or in equity, the Company and the Participant agree and acknowledge that if an actual or threatened Restrictive Covenant Violation occurs, the Company will be entitled to an injunction and/or other equitable relief restraining the
Participant from the Restrictive Covenant Violation without the necessity of posting a bond or proving actual damages.
10.
Non-Transferability. The Option is not transferable by the Participant except to Permitted Transferees in accordance with Section 14(b) of the Plan. Whenever the word Participant is used in any provision of this
Agreement under circumstances where the provision should logically be construed to apply to executors, the administrators or the person or persons to whom the Option may be transferred by will or by the laws of descent and distribution in accordance
with Section 14 of the Plan, the word Participant shall be deemed to include such person or persons. Except as otherwise provided herein, no assignment or transfer of the Option, or of the rights represented thereby, whether
voluntary or involuntary, by operation of law or otherwise, shall vest in the assignee or transferee any interest or right herein whatsoever, but immediately upon such assignment or transfer the Option shall terminate and become of no further
effect.
11. Rights as Stockholder. The Participant or a Permitted Transferee of the Option shall have no rights as a
stockholder with respect to any shares of Common Stock covered by the Option until the Participant shall have become the holder of record or the beneficial owner of such Common Stock, and no adjustment shall be made for dividends or distributions or
other rights in respect of such shares of Common Stock for which the record date is prior to the date upon which the Participant shall become the holder of record or the beneficial owner thereof.
12. Taxes.
(a)
Responsibility for Taxes. The Participant acknowledges that, regardless of any action taken by the Company or, if different, the Service Recipient, the ultimate liability for all income tax, social insurance, payroll tax, fringe benefits tax,
payment on account or other tax-related items related to the Participants participation in the Plan and legally applicable to the Participant (Tax-Related Items) is and remains the Participants responsibility and may exceed
the amount actually withheld by the Company or the Service Recipient. The Participant further acknowledges that the Company and/or the Service Recipient (1) make no representations or undertakings regarding the treatment of any Tax-Related
Items in connection with any aspect of the Options, including, but not limited to, the grant, vesting, or exercise of the Option, the subsequent sale of shares of Common Stock acquired pursuant to such exercise and the receipt of any dividends; and
(2) do not commit to and are under no obligation to structure the terms of the grant or any aspect of the Option to reduce or eliminate the Participants liability for Tax-Related Items or achieve any particular tax result. Further, if the
Participant is subject to Tax-Related Items in more than one jurisdiction, the Participant acknowledges that the Company and/or the Service Recipient (or former Service Recipient, as applicable) may be required to withhold or account for Tax-Related
Items in more than one jurisdiction.
9
(b) Satisfaction of Withholding Obligations. Prior to any relevant taxable or tax
withholding event, as applicable, the Participant agrees to make adequate arrangements satisfactory to the Company and/or the Service Recipient to satisfy all Tax-Related Items. In this regard, the Participant authorizes the Company and/or the
Service Recipient, or their respective agents, at their discretion, to satisfy their withholding obligations with regard to all Tax-Related Items by any of the means described in Section 14(d) of the Plan or by such other means or method as the
Committee in its sole discretion and without notice to the Participant deems appropriate.
Depending on the withholding method, the
Company may withhold or account for Tax-Related Items by considering applicable minimum statutory withholding rates or other applicable withholding rates, including maximum applicable rates, in which case the Participant will receive a refund of any
over-withheld amount in cash and will have no entitlement to the Common Stock equivalent. If the obligation for Tax-Related Items is satisfied by withholding in shares of Common Stock, for tax purposes, the Participant is deemed to have been issued
the full number of shares of Common Stock subject to the exercised Options, notwithstanding that a number of the shares of Common Stock is held back solely for the purpose of paying the Tax-Related Items.
Finally, the Participant agrees to pay to the Company or the Service Recipient any amount of Tax-Related Items that the Company or the Service
Recipient may be required to withhold or account for as a result of the Participants participation in the Plan that cannot be satisfied by the means previously described. The Company may refuse to issue or deliver the shares or the proceeds of
the sale of shares of Common Stock, if the Participant fails to comply with the Participants obligations in connection with the Tax-Related Items.
13. Notice. Every notice or other communication relating to this Agreement between the Company and the Participant shall be in
writing, and shall be mailed to or delivered to the party for whom it is intended at such address as may from time to time be designated by it in a notice mailed or delivered to the other party as herein provided; provided that, unless and
until some other address be so designated, all notices or communications by the Participant to the Company shall be mailed or delivered to the Company at its principal executive office, to the attention of the Companys General Counsel, and all
notices or communications by the Company to the Participant may be given to the Participant personally or may be mailed to the Participant at the Participants last known address, as reflected in the Companys records. Notwithstanding the
above, all notices and communications between the Participant and any third-party plan administrator shall be mailed, delivered, transmitted or sent in accordance with the procedures established by such third-party plan administrator and
communicated to the Participant from time to time.
14. No Right to Continued Employment. Neither the Plan nor this
Agreement nor the granting of the Option evidenced hereby shall be construed as giving the Participant the right to be retained in the employ of, or in any consulting relationship to, the Company or any of its Affiliates or Subsidiaries. Further,
the Company, or, if different, the Service Recipient, may at any time dismiss the Participant or discontinue any consulting relationship, free from any liability or any claim under the Plan or this Agreement, except as otherwise expressly provided
herein.
15. Nature of Grant. In accepting the grant of the Option, the Participant acknowledges, understands and agrees
that:
(a) the Plan is established voluntarily by the Company, it is discretionary in nature and it may be modified, amended, suspended or
terminated by the Company at any time, to the extent permitted by the Plan;
10
(b) the grant of the Option is voluntary and occasional and does not create any contractual or
other right to receive future grants of options, or benefits in lieu of options, even if options have been granted in the past;
(c) all
decisions with respect to future Options or other grants, if any, will be at the sole discretion of the Company;
(d) the Option grant and
the Participants participation in the Plan shall not be interpreted as forming an employment or service contract with the Company or any Affiliate or Subsidiary;
(e) the Participant is voluntarily participating in the Plan;
(f) the Option and the shares of Common Stock subject to the Option, and the income and value of same, are not intended to replace any pension
rights or compensation;
(g) the Option and the shares of Common Stock subject to the Option, and the income and value of same, are not
part of normal or expected compensation for any purpose, including, without limitation, calculating any severance, resignation, termination, redundancy, dismissal, end-of-service payments, bonuses, holiday pay, long-service awards, pension or
retirement or welfare benefits or similar payments;
(h) the future value of the underlying shares of Common Stock is unknown,
indeterminable and cannot be predicted with certainty;
(i) if the underlying shares of Common Stock do not increase in value, the Option
will have no value;
(j) if the Participant exercises the Option and acquires shares of Common Stock, the value of such shares of Common
Stock may increase or decrease in value, even below the Exercise Price;
(k) no claim or entitlement to compensation or damages shall
arise from forfeiture of the Option resulting from a Termination (for any reason whatsoever, whether or not later found to be invalid or in breach of employment laws in the jurisdiction where the Participant is employed or the terms of the
Participants employment agreement, if any), and in consideration of the grant of the Option to which the Participant is otherwise not entitled, the Participant irrevocably agrees never to institute any claim against the Company any of its
Affiliates or Subsidiaries, waives the Participants ability, if any, to bring any such claim, and releases the Company, its Affiliates and Subsidiaries from any such claim; if, notwithstanding the foregoing, any such claim is allowed by a
court of competent jurisdiction, then, by participating in the Plan, the Participant shall be deemed irrevocably to have agreed not to pursue such claim and agrees to execute any and all documents necessary to request dismissal or withdrawal of such
claim;
(l) unless otherwise provided in the Plan or by the Company in its discretion, the Option and the benefits evidenced by this
Agreement do not create any entitlement to have the Option or any such benefits transferred to, or assumed by, another company nor to be exchanged, cashed out or substituted for, in connection with any corporate transaction affecting the Common
Stock of the Company; and
(m) neither the Company nor any Affiliate or Subsidiary shall be liable for any foreign exchange rate
fluctuation between the Participants local currency and the United States Dollar that may affect the value of the Option or of any amounts due to the Participant pursuant to the exercise of the Option or the subsequent sale of any shares of
Common Stock acquired upon exercise.
11
16. No Advice Regarding Grant. The Company is not providing any tax, legal or
financial advice, nor is the Company making any recommendations regarding the Participants participation in the Plan, or the Participants acquisition or sale of the underlying shares of Common Stock. The Participant is hereby advised to
consult with the Participants own personal tax, legal and financial advisors regarding the Participants participation in the Plan before taking any action related to the Plan.
17. Data Privacy. The Participant hereby explicitly and unambiguously consents to the collection, use and transfer,
in electronic or other form, of the Participants personal data as described in this Agreement and any other Option grant materials by and among, as applicable, the Service Recipient, the Company and its other Affiliates or Subsidiaries for the
exclusive purpose of implementing, administering and managing the Participants participation in the Plan.
The
Participant understands that the Company and the Service Recipient may hold certain personal information about the Participant, including, but not limited to, the Participants name, home address and telephone number, date of birth, social
insurance number or other identification number, salary, nationality, job title, any shares of stock or directorships held in the Company, details of all Options or any other entitlement to shares of stock awarded, canceled, exercised, vested,
unvested or outstanding in the Participants favor (Data), for the exclusive purpose of implementing, administering and managing the Plan.
The Participant understands that Data will be transferred to Morgan Stanley Smith Barney LLC, or such other stock plan service provider
as may be selected by the Company in the future, which is assisting the Company with the implementation, administration and management of the Plan. The Participant understands that the recipients of the Data may be located in the United States or
elsewhere, and that the recipients country (e.g., the United States) may have different data privacy laws and protections than the Participants country. The Participant understands that the Participant may request a list with the names
and addresses of any potential recipients of the Data by contacting the Participants local human resources representative. The Participant authorizes the Company, Morgan Stanley Smith Barney LLC and any other possible recipients which may
assist the Company (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, retain and transfer the Data, in electronic or other form, for the sole purpose of implementing, administering and
managing the Participants participation in the Plan. The Participant understands that Data will be held only as long as is necessary to implement, administer and manage the Participants participation in the Plan. The Participant
understands that the Participant may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by
contacting in writing the Participants local human resources representative. Further, the Participant understands that the Participant is providing the consents herein on a purely voluntary basis. If the Participant does not consent, or if the
Participant later seeks to revoke the Participants consent, the Participants Employment and career with the Service Recipient will not be adversely affected; the only adverse consequence of refusing or withdrawing the Participants
consent is that the Company would not be able to grant Options or other equity awards to the Participant or administer or maintain such awards. Therefore, the Participant understands that refusing or withdrawing the Participants consent may
affect the Participants ability to participate in the Plan. For more information on the consequences of the Participants refusal to consent or withdrawal of consent, the Participant understands that the Participant may contact the
Participants local human resources representative.
12
18. Binding Effect. This Agreement shall be binding upon the heirs, executors,
administrators and successors of the parties hereto.
19. Waiver and Amendments. Subject to Section 13(b) of the Plan,
the Committee may waive any conditions or rights under, amend any terms of, or alter, suspend, discontinue, cancel or terminate, this Agreement, prospectively or retroactively (including after the Participants Termination); provided that any
such waiver, amendment, alteration, suspension, discontinuance, cancellation or termination that would materially and adversely affect the rights of the Participant hereunder shall not to that extent be effective without the consent of the
Participant. No waiver by either of the parties hereto of their rights hereunder shall be deemed to constitute a waiver with respect to any subsequent occurrences or transactions hereunder unless such waiver specifically states that it is to be
construed as a continuing waiver.
20. Governing Law; Venue. This Agreement shall be construed and interpreted in accordance
with the laws of the State of Delaware, without regard to the principles of conflicts of law thereof. For purposes of litigating any dispute that arises under this grant or this Agreement, the parties hereby submit to and consent to the jurisdiction
of the State of New Jersey, agree that such litigation shall be conducted in the courts of Somerset County, or the federal courts for the United States for the District of New Jersey, where this grant is made and/or to be performed.
21. Plan. The terms and provisions of the Plan are incorporated herein by reference. In the event of a conflict or inconsistency
between the terms and provisions of the Plan and the provisions of this Agreement, the Plan shall govern and control.
22.
Language. If the Participant has received this Agreement or any other document related to the Plan translated into a language other than English and if the meaning of the translated version is different than the English version, the
English version will control.
23. Electronic Delivery and Acceptance. The Company may, in its sole discretion, decide to
deliver any documents related to current or future participation in the Plan by electronic means. The Participant hereby consents to receive such documents by electronic delivery and agrees to participate in the Plan through an on-line or electronic
system established and maintained by the Company or a third party designated by the Company.
24. Imposition of Other
Requirements. The Company reserves the right to impose any other requirements on the Participants participation in the Plan, on the Option and on any shares acquired under the Plan, to the extent the Company determines it is necessary
or advisable for legal or administrative reasons, and to require the Participant to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.
13
25. Appendix. Notwithstanding any provisions in this Agreement, the Option grant
shall be subject to any special terms and conditions set forth in Appendix A to this Option Agreement for the Participants country. Moreover, if the Participant relocates to one of the countries included in Appendix A, the special terms and
conditions for such country will apply to the Participant, to the extent the Company determines that the application of such terms and conditions is necessary or advisable for legal or administrative reasons. Appendix A constitutes part of this
Option Agreement.
26. Insider Trading Restrictions/Market Abuse Laws. The Participant acknowledges that, depending on his
or her country, the Participant may be subject to insider trading restrictions and/or market abuse laws, which may affect his or her ability to acquire or sell shares of Common Stock or rights to shares of Common Stock (e.g., Options) under
the Plan during such times as the Participant is considered to have inside information regarding the Company (as defined by the laws in the Participants country). Any restrictions under these laws or regulations are separate from
and in addition to any restrictions that may be imposed under any applicable Company insider trading policy. The Participant is responsible for ensuring compliance with any applicable restrictions and is advised to consult his or her personal legal
advisor on this matter.
27. Entire Agreement. This Agreement, the Grant Notice and the Plan constitute the entire
understanding between the Participant and the Company regarding the Option. This Agreement, the Grant Notice and the Plan supersede any prior agreements, commitments or negotiations concerning the Option.
14
APPENDIX A
OPTION AGREEMENT FOR NON-U.S. PARTICIPANTS
UNDER THE
CATALENT, INC.
2014 OMNIBUS INCENTIVE PLAN
COUNTRY-SPECIFIC TERMS AND CONDITIONS
All capitalized terms used in this Appendix A that are not defined herein have the meanings defined in the Plan or the Option Agreement for Non-U.S.
Participants (the Option Agreement). This Appendix A constitutes part of the Option Agreement.
Terms and Conditions
This Appendix A includes additional or different terms and conditions that govern the Option if the Participant works or resides in one of the countries listed
below. The Participant understands that if the Participant is a citizen or resident of a country other than the one in which he or she is currently working, transfers Employment and/or residency after the Date of Grant or is considered a
resident of another country for local law purposes, the Company shall, in its discretion, determine to what extent the terms and conditions contained herein shall apply to the Participant.
Notifications
This Appendix A also includes
information regarding exchange controls and certain other issues of which the Participant should be aware with respect to participation in the Plan. The information is based on the securities, exchange control and other laws in effect in the
respective countries as of May 2014. Such laws are often complex and change frequently. As a result, the Participant should not rely on the information in this Appendix A as the only source of information relating to the consequences of
participation in the Plan because the information may be out of date at the time the Participant exercises the Option or sells the shares of Common Stock.
In addition, the information contained herein is general in nature and may not apply to the Participants particular situation, and the Company is not in
a position to assure the Participant of a particular result. Accordingly, the Participant should seek appropriate professional advice as to how the relevant laws in the Participants country may apply to his or her situation.
Finally, if the Participant is a citizen or resident of a country other than the one in which he or she is currently working, transfers Employment and/or
residency after the Date of Grant or is considered a resident of another country for local law purposes, the information contained herein may not apply to the Participant.
ARGENTINA
Notifications
Securities Law Information.
Neither the Option nor the underlying shares of Common Stock are publicly offered or listed on any stock exchange in Argentina. The offer is private and not subject to the supervision of any Argentine governmental authority.
Exchange Control Information. Under current exchange control laws in Argentina, the Participant is not permitted to purchase and remit foreign currency
out of Argentina for the purpose of acquiring foreign securities (including shares of Common Stock).
The Participant understands and acknowledges that
the Company has no liability if the Participant is unable to exercise the Option due to exchange control restrictions and that the Company reserves the right not to honor the exercise and/or to impose further terms and conditions on the exercise of
the Option and the issuance of shares of Common Stock pursuant to the Option if it determines that any regulatory requirements have not been met. In particular, but without limitation to the foregoing, the Company reserves the right to
(i) require that the Participant make payment of the aggregate Exercise Price by a method that does not involve that the Participant advance any funds (e.g., by a cashless exercise arrangement), and/or (ii) cancel the
option in exchange for such cash consideration that the Committee, in its sole discretion, may consider appropriate.
If the Participant transfers
proceeds from the sale of shares of Common Stock or the receipt of any dividends paid on such shares into Argentina within 10 days of sale/receipt (i.e., if the proceeds have not been held in a U.S. bank or brokerage account for at least 10
days prior to transfer), the Participant must deposit 30% of the proceeds into a non-interest bearing account in Argentina for 365 days. If the Participant has satisfied the 10 day holding obligation, the Argentine bank handling the transaction may
still request certain documentation in connection with the Participants request to transfer proceeds into Argentina, including evidence of the sale and proof of the source of funds used to purchase the shares of Common Stock. If the bank
determines that the 10-day rule or any other rule or regulation promulgated by the Argentine Central Bank has not been satisfied, it will require that 30% of the transfer amount be placed in a non-interest bearing dollar denominated mandatory
deposit account for a holding period of 365 days.
The Participant must comply with any and all Argentine currency exchange restrictions, approvals and
reporting requirements in connection with the exercise of the Option, the subsequent sale of any shares of Common Stock acquired at exercise and the receipt of any dividends.
Please note that exchange control regulations in Argentina are subject to frequent change. The Participant should consult with his or her personal
legal advisor regarding any exchange control obligations the Participant may have in connection with the Participants participation in the Plan.
Foreign Asset/Account Reporting Information. The Participant must report any shares of Common Stock acquired under the Plan and held by
the Participant on December 31st of each year on the Participants annual tax return for that year. The Participant is strongly advised to consult the Participants personal tax advisor to ensure compliance with this tax reporting
obligation.
AUSTRALIA
Terms and Conditions
Restriction on
Exercise. Notwithstanding anything to the contrary in the Plan or the Agreement, if the Option vests when the Fair Market Value per share of Common Stock is equal to or less than the Exercise Price for the Option, the Participant shall not
be permitted to exercise the vested Option. The vested Option may be exercised only starting on the business day following the first day on which the Fair Market Value per share of Common Stock exceeds the Exercise Price for the Option. For the
avoidance of doubt, this provision applies equally to any unvested Options the Participant holds upon transfer to Australia after the Date of Grant, unless otherwise determined by the Committee in its sole discretion.
Notwithstanding Section 5(d) of the Agreement, if the Participant incurs a Termination for any reason other than death, Disability or Retirement at a
time when the Option is vested but not exercisable due to the provision in the proceeding paragraph, the Option shall immediately terminate in full upon the Termination Date.
Expiration Date. The Option shall expire on the earlier of the Option Period Expiration Date set forth in the Grant Notice and the date
immediately preceding the seventh (7th) anniversary of the Date of Grant.
Data Privacy. The following provisions supplement Section 16
of the Option Agreement:
The Company can be contacted at 14 Schoolhouse Rd, Somerset, NJ 08873 The Service Recipient can be contacted at [insert address
of Australian subsidiary].
The Participants personal information will be held in accordance with the Service Recipients privacy policy, a
copy of which can be obtained by contacting the Service Recipient at the address indicated above. The Service Recipients privacy policy contains, among other things, details of how the Participant can access and seek correction of personal
information held in connection with this Option, how the Participant can complain about a breach of the Australian Privacy Principles and how the Service Recipient will deal with such a complaint.
The Participant understands and agrees that Data may be transferred to recipients located outside of Australia, including the United States and any other
country where the Company has operations.
Notifications
Securities Law Information. If the Participant acquires shares of Common Stock pursuant to the Option and offers the shares of Common
Stock for sale to a person or entity resident in Australia, such offer may be subject to disclosure requirements under Australian law. The Participant should obtain legal advice as to his or her disclosure obligations prior to making any such
offer.
Exchange Control Information. The Participant is responsible for reporting cash transactions inbound
(e.g., the remittance of cash proceeds received upon sale of shares of Common Stock) exceeding A$10,000 and for inbound international fund transfers of any value, which do not involve an Australian bank.
BELGIUM
Terms and
Conditions
Acceptance of Option. This option must be accepted more than 60 days after the offer.
Notifications
Foreign
Asset/Account Reporting Information. The Participant is required to report any security or bank account (including a brokerage account) opened and maintained outside Belgium on his or her annual tax return.
BRAZIL
Terms and Conditions
Compliance with Law. By accepting the Option, the Participant acknowledges his or her agreement to comply with applicable Brazilian laws
and to pay any and all applicable Tax-Related Items associated with the Option, the receipt of any dividends, and the sale of shares of Common Stock acquired under the Plan.
Notifications
Exchange Control Information.
If the Participant is resident or domiciled in Brazil, the Participant will be required to submit annually a declaration of assets and rights held outside of Brazil to the Central Bank of Brazil if the aggregate value of such assets and rights
is equal to or greater than US$100,000. Assets and rights that must be reported include shares of Common Stock acquired under the Plan.
CHINA
Terms and Conditions
The following terms and conditions will be applicable to the Participant to the extent that the Company, in its discretion, determines that the
Participants participation in the Plan will be subject to exchange control restrictions in the Peoples Republic of China (PRC), as implemented by the PRC State Administration of Foreign Exchange (SAFE).
Vesting/Exercise of Options. The following provision supplements the Option Grant Notice and
Section 5 of the Option Agreement:
|
(a) |
Notwithstanding the Vesting Schedule set forth in the Grant Notice, the Option shall not vest unless and until all necessary exchange control or other approvals with respect to the Option under the Plan have been
obtained from SAFE or its local counterpart (SAFE Approval). |
|
(b) |
Notwithstanding Section 4(b) of the Option Agreement, upon termination due to Disability or Retirement, the Option shall, to the extent not then vested or previously forfeited or cancelled, become fully vested and
exercisable. |
|
(c) |
The Participant will be restricted to the cashless-sell-all method of exercise or same-day sale, whereby all shares of Common Stock subject to the exercised portion of the Option will be sold immediately
upon exercise and the proceeds of sale, less the Exercise Price, any Tax-Related Items and brokers fees or commissions, will be remitted to the Participant in accordance with any applicable exchange control laws and regulations. The
Participant further agrees that the Company is authorized to instruct its designated broker to assist with the exercise of the Option and sale of the shares of Common Stock (on the Participants behalf pursuant to this authorization), and the
Participant expressly authorizes such broker to complete the sale of such shares of Common Stock. |
|
(d) |
Notwithstanding Sections 5(a) and (b), upon Termination due to death, Disability or Retirement, the Participant must exercise the Option on the earlier of (A) the Option Period Expiration Date and (B) the six
(6) month anniversary of the Termination Date. |
Exchange Control Restrictions. The Participant understands and agrees that he or
she will be required to immediately repatriate to China the proceeds from the sale of any shares of Common Stock acquired under the Plan at exercise. The Participant further understands that such repatriation of the proceeds may need to be effected
through a special exchange control account established by the Company or any Affiliate or Subsidiary, and the Participant hereby consents and agrees that the proceeds may be transferred to such account by the Company (or its designated broker) on
the Participants behalf prior to being delivered to the Participant. The Participant also agrees to sign any agreements, forms and/or consents that may be reasonably requested by the Company (or the Companys designated broker) to
effectuate such transfers.
The proceeds may be paid to the Participant in U.S. dollars or local currency at the Companys discretion. If the
proceeds are paid to the Participant in U.S. dollars, the Participant understands that he or she will be required to set up a U.S. dollar bank account in China so that the proceeds may be deposited into this account. If the proceeds are paid to the
Participant in local currency, (i) the Participant acknowledges that the Company is under no obligation to secure any particular exchange conversion rate and that the Company may face delays in converting the proceeds to local currency due to
exchange control restrictions, and (ii) the Participant agrees to bear any currency fluctuation risk between the time the shares of Common Stock are sold and the time the proceeds are converted to local currency and distributed to the
Participant.
The Participant agrees to comply with any other requirements that may be imposed by the Company in the future in order to facilitate
compliance with exchange control requirements in China.
Notifications
Foreign Asset/Account Reporting Information. Effective from January 1, 2014, PRC residents are required to report to SAFE details of their foreign
financial assets and liabilities, as well as details of any economic transactions conducted with non-PRC residents, either directly or through
financial institutions. Under these rules, the Participant may be subject to reporting obligations for the Option and/or the shares of Common Stock acquired under the Plan and any Plan-related
transactions. The Participant should consult his or her personal legal advisor regarding the details of this reporting obligation.
FRANCE
Terms and Conditions
Type of Option. The Option is not granted as a French-qualified stock option and is not intended to qualify for the special tax
and social security treatment applicable to stock options granted under Section L. 225-177 to L. 225-186-1 of the French Commercial Code, as amended.
Consent to Receive Information in English. By accepting the Option, the Participant confirms having read and understood the documents related to the
Option (the Plan and the Agreement) which were provided in the English language. The Participant accepts the terms of these documents accordingly.
Consentement Relatif à lUtilisation de la Langue Anglaise. En acceptant lOption, le Participant confirme avoir lu
et compris les documents relatifs à cette Option (le Plan et le Contrat dAttribution) qui ont été remis en langue anglaise. Le Participant accepte les termes de ces documents en conséquence.
Notifications
Foreign Asset/Account Reporting
Information. The Participant is required to report all foreign accounts (whether open, current or closed) to the French tax authorities when filing his or her annual tax return.
GERMANY
Notifications
Exchange Control Information. Cross-border payments in excess of 12,500 must be reported electronically to the German Federal Bank
(Bundesbank). In the case of payments made or received in connection with securities (including proceeds realized upon the sale of shares of Common Stock), the report must be made by the 5th day of the month following the month in which the
payment was made or received. The form of the report (Allgemeine Meldeportal Statistik) can be accessed via the Bundesbanks website (www.bundesbank.de) and is available in both German and English. The Participant understands
that if the Participant makes or receives a payment in excess of this amount, the Participant is responsible for complying with applicable reporting requirements.
ITALY
Terms and Conditions
Method of
Exercise. Notwithstanding anything to the contrary in the Option Agreement, the Participant must exercise this Option using the cashless-sell-all exercise method. To complete a cashless-sell-all exercise, the Participant should
notify a licensed securities broker acceptable to the Company to: (i) sell all of the shares upon exercise; (ii) use the proceeds to pay the Option price, brokerage fees and any applicable Tax-Related Items; and (iii) remit the
balance in cash to the Participant. If the Participant does not complete this procedure, the Company may refuse to allow the Participant to exercise this Option. The Company reserves the right to provide the Participant with additional methods of
exercise depending on local developments.
Data Privacy. This provision replaces Section 16 of the Option Agreement:
The Participant understands that the Service Recipient, the Company and any other Affiliate and Subsidiary may hold certain personal information about
the Participant, including, the Participants name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any shares of Common Stock or directorships held in
the Company, details of the Option or any other entitlement to shares of Common Stock awarded, canceled, exercised, vested, unvested or outstanding in the Participants favor (Personal Data) and will process such data for the
exclusive purpose of implementing, managing and administering the Plan.
The Participant also understands that providing the Company with
Personal Data is mandatory for compliance with local law and necessary for the performance of the Plan and that the Participants refusal to provide such Personal Data would make it impossible for the Company to perform its contractual
obligations and may affect the Participants ability to participate in the Plan. The Controllers of personal data processing are Catalent, Inc., 14 Schoolhouse Road, Somerset, NJ 08873, and [insert name and address of Italian subsidiary], which
is also the Companys representative in Italy for privacy purposes pursuant to Legislative Decree no 196/2003.
The Participant
understands that Personal Data will not be publicized, but it may be accessible by the Service Recipient and its internal and external personnel in charge of processing of such Personal Data and by the Personal Data Processor (the
Processor), if any. An updated list of Processors and other transferees of Personal Data is available upon request from the Service Recipient. Furthermore, Personal Data may be transferred to Morgan Stanley Smith Barney LLC,, Service
Recipient, and any banks, other financial institutions or brokers involved in the management and administration of the Plan. The Participant understands that the Company and/or its Affiliates and Subsidiaries will transfer Personal Data amongst
themselves as necessary for the purpose of implementation, administration and management of the Participants participation in the Plan, and that the Company and/or its Affiliates and Subsidiaries may each further transfer Personal Data to
third parties assisting the Company in the implementation, administration and management of the Plan, including any requisite transfer to Morgan Stanley Smith Barney LLC or another third party with whom the Participant may elect to deposit any
shares of Common Stock acquired under the Plan. Such recipients may receive, possess, use, retain and transfer the Personal Data in electronic or other form, for the purposes of implementing, administering and managing the Participants
participation in the Plan. The Participant understands that these recipients may be located in or outside the European Economic Area in such countries as in the United States that may not provide the same level of protection as intended under
Italian data privacy laws. Should the Company exercise its discretion in suspending all necessary legal obligations connected with the management and administration of the Plan, it will delete the Participants Personal Data as soon as it has
accomplished all the necessary legal obligations connected with the management and administration of the Plan.
The Participant understands that Personal Data processing related to the purposes specified above shall
take place under automated or non-automated conditions, anonymously when possible, that comply with the purposes for which Personal Data are collected and with confidentiality and security provisions as set forth by applicable laws and regulations,
with specific reference to Legislative Decree no. 196/2003.
The processing activity, including communication, the transfer of the
Participants Personal Data abroad, including outside of the European Economic Area, as herein specified and pursuant to applicable laws and regulations, does not require the Participants consent thereto as the processing is necessary to
performance of contractual obligations related to implementation, administration and management of the Plan. The Participant understands that, pursuant to Section 7 of the Legislative Decree no. 196/2003, the Participant has the right to,
including but not limited to, access, delete, update, ask for rectification of the Participants Personal Data and estop, for legitimate reason, the Personal Data processing.
Furthermore, the Participant is aware that the Participants Personal Data will not be used for direct marketing purposes. In addition, the
Personal Data provided can be reviewed and questions or complaints can be addressed by contacting the Participants human resources department.
Plan Document Acknowledgement. By accepting the Option, the Participant acknowledges that (a) the Participant has received the Plan and the Option
Agreement; (b) the Participant has reviewed those documents in their entirety and fully understands the contents thereof; and (c) the Participant accepts all provisions of the Plan and the Option Agreement. The Participant further
acknowledges that the Participant has read and specifically and expressly approves, without limitation, the following sections of the Option Agreement: Treatment on Termination; Non-Transferability; Repayment of
Proceeds; Clawback Policy; Restrictive Covenants; Tax Withholding; No Right to Continued Employment; Nature of Grant; No Advice Regarding Grant; Data Privacy as replaced
by the above provision; Waiver and Amendments; Governing Law; Venue; Electronic Delivery and Acceptance; Imposition of Other Requirements; and Appendix.
Notifications
Foreign Asset/Account Reporting
Information. If, at any time during the fiscal year, the Participant holds foreign financial assets (including cash and/or shares of Common Stock) which may generate income taxable in Italy, the Participant is required to report these assets on
his or her annual tax return (UNICO Form, RW Schedule) for the year during which the assets are held, or on a special form if no tax return is due. These reporting obligations will also apply to the Participant if the Participant is the beneficial
owner of foreign financial assets under Italian money laundering provisions.
Foreign Asset Tax Information. The value of the financial assets held
outside of Italy by Italian residents is subject to a foreign asset tax. Beginning in 2014, such tax is levied at an annual rate of 2 per thousand (0.2%). The taxable amount will be the fair market value of the financial assets (e.g.,
shares of Common Stock) assessed at the end of the calendar year. The Participant is responsible for complying with any reporting and/or payment obligations that may arise in connection with this tax.
JAPAN
Notifications
Exchange Control
Information. If the Participant pays more than ¥30,000,000 in a single transaction for the purchase of shares of Common Stock when he or she exercises the Option, the Participant must file a Payment Report with the Ministry of Finance
through the Bank of Japan. If the Participant pays more than ¥100,000,000 in a single transaction for the purchase of shares of Common Stock when he or she exercises the Option, the Participant must file a Securities Acquisition Report, in
addition to the Payment Report, with the Ministry of Finance through the Bank of Japan.
Foreign Asset/Account Reporting
Information. If the Participant holds assets (e.g., shares of Common Stock acquired under the Plan, proceeds from the sale of shares of Common Stock and, possibly, the Option) outside of Japan with a value exceeding
¥50 million as of December 31 of any calendar year, the Participant is required to report such to the Japanese tax authorities by March 15th of the following year. The Participant should consult with his or her personal tax
advisor regarding the details of this reporting obligation.
SINGAPORE
Notifications
Securities Law Information.
The Option is granted pursuant to the Qualifying Person exemption under section 273(1)(f) of the Securities and Futures Act (Chapter 289, 2006 Ed.) (SFA). The Plan has not been lodged or registered as a prospectus with the
Monetary Authority of Singapore. The Participant should note that the Option is subject to section 257 of the SFA and the Participant will not be able to make (i) any subsequent sale of the shares of Common Stock in Singapore or (ii) any
offer of such subsequent sale of the shares of Common Stock in Singapore, unless such sale or offer is made pursuant to the exemptions under Part XIII Division 1 Subdivision (4) (other than section 280) of the SFA.
Director Notification Requirement. Directors, associate directors and shadow directors2 of a
Singaporean Subsidiary are subject to certain notification requirements under the Singapore Companies Act and must notify the Singaporean Subsidiary in writing of an interest (e.g., Option, shares of Common Stock, etc.) in the Company or any
related companies within two business days of (i) its acquisition or disposal, (ii) any change in a previously disclosed interest (e.g., when the shares of Common Stock are sold), or (iii) becoming a director (if such an
interest exists at the time).
2 |
A shadow director is an individual who is not on the board of directors of a company but who has sufficient control so that the board of directors acts in accordance with the directions or instructions of
the individual. |
SWITZERLAND
Notifications
Securities Law Information.
The offer of the Option is considered a private offering in Switzerland and is therefore not subject to securities registration in Switzerland.
UNITED KINGDOM
Terms and
Conditions
Tax Withholding. The following provisions supplement Section 12 of the Option Agreement:
If payment or withholding of the income tax due in connection with the Option is not made within ninety (90) days of the end of the tax year in which the
taxable event occurs or such other period specified in Section 222(1)(c) of the U.K. Income Tax (Earnings and Pensions) Act 2003 (the Due Date), the amount of any uncollected income tax shall constitute a loan owed by the
Participant to the Service Recipient, effective on the Due Date. The Participant agrees that the loan will bear interest at the official rate of Her Majestys Revenue and Customs (HMRC) and will be immediately due and repayable by
the Participant, and the Company and/or the Service Recipient may recover it at any time thereafter by any of the means referred to in Section 12 of the Option Agreement.
Notwithstanding the foregoing, if the Participant is an executive officer or director of the Company (within the meaning of Section 13(k) of the Exchange
Act), the Participant shall not be eligible for a loan to cover the income tax due as described above. Instead, the amount of any uncollected income tax may constitute a benefit to the Participant on which additional income tax and National
Insurance contributions may be payable. The Participant acknowledges that the Participant will be responsible for reporting and paying any income tax due on this additional benefit directly to HMRC under the self-assessment regime and for paying the
Company or the Service Recipient (as applicable) for the value of any employee National Insurance contributions due on this additional benefit. The Participant further acknowledges that the Company or the Service Recipient may recover such amounts
from the Participant by any of the means referred to in Section 12 of the Option Agreement.
Joint Election. As a condition of the
Participants participation in the Plan, the Participant agrees to accept any liability for secondary Class 1 National Insurance contributions which may be payable by the Company and/or the Service Recipient in connection with the Option and
any event giving rise to Tax-Related Items (the Service Recipients Liability). Without limitation to the foregoing, the Participant agrees to execute the following joint election with the Company (the Joint Election),
the form of such Joint Election being formally approved by HMRC, and to execute any other consents or elections required to accomplish the transfer of the Service Recipients Liability to the Participant. The Participant further agrees to
execute such other joint elections as may be required between the Participant and any successor to the Company and/or the Service Recipient. The Participant further agrees that the Company and/or the Service Recipient may collect the Service
Recipients Liability from him or her by any of the means set forth in Section 12 of the Option Agreement.
If the Participant does not enter
into the Joint Election prior to the exercise of the Option or any other event giving rise to Tax-Related Items, he or she will not be entitled to exercise the Option
or receive any benefit in connection with the Option unless and until he or she enters into the Joint Election and no shares of Common Stock or other benefit pursuant to the Option will be issued
to the Participant under the Plan, without any liability to the Company and/or the Service Recipient.
URUGUAY
There are no country-specific provisions.
ATTACHMENT TO APPENDIX FOR THE UNITED KINGDOM
Important Note on the Joint Election to Transfer
Employer National Insurance Contributions
As a condition of participation in the Catalent, Inc. 2014 Omnibus Incentive Plan (the Plan) and the Option that has been granted to you (the
the Participant) by Catalent, Inc. (the Company), the Participant is required to enter into a joint election to transfer to the Participant any liability for employer National Insurance contributions (the
Employers Liability) that may arise in connection with the Option or in connection with any future option that may be granted by the Company to the Participant under the Plan (the Joint Election).
If the Participant does not agree to enter into the Joint Election, the Option will be worthless as the Participant will not be able to exercise the Option
or receive any benefit in connection with the Option.
By entering into the Joint Election:
1. |
the Participant agrees that any Employers Liability that may arise in connection with or pursuant to the exercise of the Option (or any option granted to the Participant under the Plan) or the acquisition of
shares of the Companys common stock or other taxable events in connection with the Option (or any other option granted under the Plan) will be transferred to the Participant; |
2. |
the Participant authorises the Company and/or the Participants employer to recover an amount sufficient to cover the Employers Liability by any method set forth in the Option Agreement and/or the Joint
Election; and |
3. |
the Participant acknowledges that even if he or she has accepted the Joint Election via the Companys online procedure, the Company or the Participants employer may still require the Participant to sign a
paper copy of the Joint Election (or a substantially similar form) if the Company determines such is necessary to give effect to the Joint Election. |
By accepting the Option through the Companys online acceptance procedure (or by signing the Option Agreement), the Participant is agreeing to be
bound by the terms of the Joint Election.
Please read the terms of the Joint Election carefully before
accepting the Option Agreement
and the Joint Election.
Please print and keep a copy of the Joint Election
for your records.
CATALENT, INC.
2014 OMNIBUS INCENTIVE PLAN
(UK Employees)
Election To Transfer the Employers National Insurance Liability to the Employee
This Election is between:
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(A) |
You, the individual who has gained access to this Election (the Employee), who is employed by one of the U.K. companies listed in the Schedule below (the Employer) and who is eligible to receive
stock options (Options) granted by Catalent, Inc. pursuant to the terms and conditions of the 2014 Omnibus Incentive Plan (the Plan), and |
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(B) |
Catalent, Inc. of 14 Schoolhouse Road, Somerset, NJ 08873, United States of America (the Company), which may grant Options under the Plan and is entering into this Form of Election on behalf of the Employer.
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2.1 |
This Election relates to Options granted by the Company under the Plan on or after [June 1, 2014]. |
2.2 |
In this Election the following words and phrases have the following meanings: |
Taxable Event means, in relation to the Option:
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(i) |
the acquisition of securities pursuant to the Option (within section 477(3)(a) of ITEPA); and/or |
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(ii) |
the assignment or release of the Option in return for consideration (within section 477(3)(b) of ITEPA); and/or |
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(iii) |
the receipt of a benefit in connection with the Option, other than a benefit within (i) or (ii) above (within section 477(3)(c) of ITEPA); and/or |
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(iv) |
post-acquisition charges relating to the Option and/or shares acquired pursuant to the Option (within section 427 of ITEPA); and/or |
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(v) |
post-acquisition charges relating to the Option and/or shares acquired pursuant to the Option (within section 439 of ITEPA). |
ITEPA means the Income Tax (Earnings and Pensions) Act 2003.
SSCBA means the Social Security Contributions and Benefits Act 1992.
2.3 |
This Election relates to the Employers secondary Class 1 National Insurance Contributions (the Employers Liability) which may arise on the occurrence of a Taxable Event in respect of the
Option pursuant to section 4(4)(a) and/or paragraph 3B(1A) of Schedule 1 of the SSCBA. |
2.4 |
This Election does not apply in relation to any liability, or any part of any liability, arising as a result of regulations being given retrospective effect by virtue of section 4B(2) of either the SSCBA or the Social
Security Contributions and Benefits (Northern Ireland) Act 1992. |
2.5 |
This Election does not apply to the extent that it relates to relevant employment income which is employment income of the earner by virtue of Chapter 3A of Part VII of ITEPA (employment income: securities with
artificially depressed market value). |
The Employee and the Company jointly elect that the entire liability of
the Employer to pay the Employers Liability on the Taxable Event is hereby transferred to the Employee. The Employee understands that by [clicking the ACCEPT box on the [broker] screen] or by [signing the Option Agreement] to
accept the grant of the Option he or she will become personally liable for the Employers Liability covered by this Election. This Election is made in accordance with paragraph 3B(1) of Schedule 1 to SSCBA.
4. |
Payment of the Employers Liability |
4.1 |
The Employee hereby authorises the Company and/or the Employer to collect the Employers Liability from the Employee at any time after the Taxable Event: |
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(i) |
by deduction from salary or any other payment payable to the Employee at any time on or after the date of the Taxable Event; and/or |
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(ii) |
directly from the Employee by payment in cash or cleared funds; and/or |
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(iii) |
by arranging, on behalf of the Employee, for the sale of some of the securities which the Employee is entitled to receive in respect of the Option; and/or |
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(iv) |
by any other means specified in the Option Agreement. |
4.2 |
The Company hereby reserves for itself and the Employer the right to withhold the transfer of any securities in respect of the Option to the Employee until full payment of the Employers Liability is received.
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4.3 |
The Company agrees to procure the remittance by the Employer of the Employers Liability to HM Revenue and Customs on behalf of the Employee within 14 days after the end of the UK tax month during which the Taxable
Event occurs (or within 17 days after the end of the UK tax month during which the Taxable Event occurs, if payments are made electronically). |
5.1 |
The Employee and the Company agree to be bound by the terms of this Election regardless of whether the Employee is transferred abroad or is not employed by the Employer on the date on which the Employers Liability
becomes due. |
5.2 |
Any reference in this Election to the Company and/or the Employer shall include that entitys successors in title and assigns as permitted in accordance with the terms of the relevant Plan and relevant Agreement.
This Election will continue in effect in respect of any awards which replace the Option in circumstances where section 483 of ITEPA applies. |
This Election will continue in effect until the earliest of the following:
|
(i) |
the Employee and the Company agree in writing that it should cease to have effect; |
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(ii) |
the date the Company serves written notice on the Employee terminating its effect; |
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(iii) |
the date HM Revenue and Customs withdraws approval of this Election; or |
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(iv) |
after due payment of the Employers Liability in respect of the entirety of the Option to which this Election relates or could relate, such that the Election ceases to have effect in accordance with its terms.
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Acceptance by the Employee
The
Employee acknowledges that by [clicking the ACCEPT box on the [broker] screen] or by [signing the Option Agreement] to accept the grant of the Option, the Employee agrees to be bound by the terms of this Election.
Acceptance by the Company
The Company
acknowledges that, by arranging for the scanned signature of an authorised representative to appear on this Election, the Company agrees to be bound by the terms of this Election.
Signed for and on behalf of the Company
[Insert title of
Signatory]
SCHEDULE OF EMPLOYER COMPANIES
The Employers to which this Form of Election relates are:
[insert registered name of subsidiary]
Lancaster Way, Wingates
Industrial Park,
Registered Number: [insert]
Corporation
Tax District: [insert]
Westhoughton, Bolton,
Lancashire UK,
BL5 3XX
PAYE Reference: [insert]
[insert registered name
of subsidiary]
Frankland Road,
Registered Number: [insert]
Corporation Tax District: [insert]
Blagrove, Swindon,
Wiltshire, UK SN5 8YG
PAYE Reference: [insert]
[insert name and address any other UK subsidiaries]
Exhibit 10.8
RESTRICTED STOCK UNIT GRANT NOTICE FOR NON-U.S. PARTICIPANTS
UNDER THE
CATALENT, INC.
2014 OMNIBUS INCENTIVE PLAN
Catalent, Inc. (the Company), pursuant to its 2014 Omnibus Incentive Plan, as it may be amended from time to time (the
Plan), hereby grants to the Participant set forth below the number of Restricted Stock Units set forth below. The Restricted Stock Units are subject to all of the terms and conditions as set forth herein and in the Restricted
Stock Unit Agreement for Non-U.S. Participants, including any special terms and conditions for the Participants country set forth in Appendix A (both attached hereto), and the Plan, all of which are incorporated herein in their entirety.
Capitalized terms not otherwise defined herein shall have the meaning set forth in the Plan or the Restricted Stock Unit Agreement.
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Participant: |
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[Insert Participant Name] |
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Date of Grant: |
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[Insert Date of Grant] |
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Number of Restricted Stock Units: |
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[Insert No. of Restricted Stock Units Granted], subject to adjustment as set forth in the Plan. |
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Vesting Schedule: |
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Provided the Participant has not incurred a Termination on or prior to the Vesting Date (as defined below), 100% of the Restricted Stock Units will vest on the third anniversary of the Date of Grant (the Vesting
Date) and upon the Vesting Date, the Restricted Period shall expire. |
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Notwithstanding the foregoing, in the event of a Change in Control, to the extent the acquiring or successor entity does not assume, continue or substitute for the Restricted Stock Units, the Restricted Stock Units, to the extent
not then vested or previously forfeited or cancelled, shall become fully vested and the Restricted Period shall expire. |
* * *
THE UNDERSIGNED PARTICIPANT ACKNOWLEDGES RECEIPT OF THIS RESTRICTED STOCK UNIT GRANT NOTICE, THE RESTRICTED
STOCK UNIT AGREEMENT (INCLUDING APPENDIX A) AND THE PLAN, AND, AS AN EXPRESS CONDITION TO THE GRANT OF RESTRICTED STOCK UNITS HEREUNDER, AGREES TO BE BOUND BY THE TERMS OF THIS RESTRICTED STOCK UNIT GRANT NOTICE, THE RESTRICTED STOCK UNIT AGREEMENT
(INCLUDING APPENDIX A) AND THE PLAN. THE PARTICIPANTS RIGHTS UNDER THE RESTRICTED STOCK UNIT GRANT NOTICE AND THE RESTRICTED STOCK UNIT AGREEMENT (INCLUDING APPENDIX A) WILL LAPSE SIXTY (60) DAYS FROM THE DATE OF GRANT AND THE RESTRICTED
STOCK UNITS WILL BE FORFEITED ON SUCH DATE IF THE PARTICIPANT SHALL NOT HAVE ACCEPTED THIS RESTRICTED STOCK UNIT GRANT NOTICE AND THE RESTRICTED STOCK UNIT AGREEMENT BY SUCH DATE.
This Restricted Stock Unit Grant Notice may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
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CATALENT, INC. |
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PARTICIPANT1 |
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By: |
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Title: |
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1 |
To the extent that the Company has established, either itself or through a third-party plan administrator, the ability to accept this award electronically, such acceptance shall constitute the Participants
signature hereof. |
2
RESTRICTED STOCK UNIT AGREEMENT FOR NON-U.S. PARTICIPANTS
UNDER THE
CATALENT, INC.
2014 OMNIBUS INCENTIVE PLAN
Pursuant to the Restricted Stock Unit Grant Notice for Non-U.S. Participants (the Grant Notice) delivered to the Participant (as defined in
the Grant Notice), and subject to the terms of this Restricted Stock Unit Agreement for Non-U.S. Participants (the Restricted Stock Unit Agreement), including any special terms and conditions for the Participants country set forth
in Appendix A attached hereto (collectively, this Agreement), and the Catalent, Inc. 2014 Omnibus Incentive Plan, as it may be amended from time to time (the Plan), Catalent, Inc. (the
Company) and the Participant agree as follows.
1. Definitions. Whenever the following terms are used in
this Agreement, they shall have the meanings set forth below. Capitalized terms not otherwise defined herein shall have the same meanings as in the Plan or the Grant Notice, as applicable.
(a) Employment. The term Employment means the Participants employment as an employee of the Company or any of its
Affiliates or Subsidiaries.
(b) Restrictive Covenant Violation. The term Restrictive Covenant Violation shall mean
the Participants breach of the Restrictive Covenants set forth in Section 10 or any covenant regarding confidentiality, competitive activity, solicitation of the Companys or any of its Affiliates or Subsidiaries vendors,
suppliers, customers or employees or any similar provision applicable to or agreed to by the Participant.
(c) Retirement. The
term Retirement shall mean a Termination by the Participant that occurs on or after the date on which the Participant attains the age of sixty-five (65) and has completed at least ten (10) years of Employment (other than a
Termination when grounds existed for a Termination for Cause at the time thereof).
(d) Termination Date. The term
Termination Date shall mean the date the Participant incurs a Termination for any reason.
2. Grant of Restricted Stock
Units. Subject to the terms and conditions set forth herein, in the Grant Notice and in the Plan, for good and valuable consideration, the Company hereby grants to the Participant the number of Restricted Stock Units provided in the Grant
Notice (with each Restricted Stock Unit representing an unfunded, unsecured right to receive one share of Common Stock). The Company may make one or more additional grants of Restricted Stock Units to the Participant under this Agreement by
providing the Participant with a new Grant Notice, which may also include any terms and conditions differing from this Agreement to the extent provided therein. The Company reserves all rights with respect to the granting of additional Restricted
Stock Units hereunder and makes no implied promise to grant additional Restricted Stock Units.
3. Vesting. Subject to the
conditions contained herein and the Plan, the Restricted Stock Units shall vest as provided in the Grant Notice. With respect to any Restricted Stock Unit, the period of time that such Restricted Stock Unit remains subject to vesting shall be its
Restricted Period.
4. Dividend Equivalents. The Restricted Stock Units shall be entitled to be credited with dividend
equivalent payments upon the payment by the Company of dividends on shares of Common Stock. Such dividend equivalents will be provided in shares of Common Stock having a Fair Market
Value equal to the amount of such applicable dividends, and shall be shall be payable at the same time as the Restricted Stock Units are settled in accordance with Section 5 below. In the
event that any Restricted Stock Unit is forfeited by its terms, the Participant shall have no right to dividend equivalent payments in respect of such forfeited Restricted Stock Units.
5. Settlement of Restricted Stock Units. Upon expiration of the Restricted Period with respect to any outstanding Restricted
Stock Units that have not previously been forfeited in accordance with Section 6, the Company shall issue to the Participant as soon as practicable (but no later than March 15 of the year following the year in which the Restricted Period
expires) one share of Common Stock for each Restricted Stock Unit and such Restricted Stock Unit shall be cancelled; provided, however, that the Committee may, in its sole discretion, elect to defer the issuance of such shares beyond
the expiration of the Restricted Period if such extension would not cause adverse tax consequences under Section 409A of the Code.
6. Treatment on Termination.
(a) Subject to clauses (b) (d) below, in the event of a Termination prior to the Vesting Date, (i) all vesting with
respect to the Participants Restricted Stock Units shall cease and (ii) unvested Restricted Stock Units shall be forfeited to the Company by the Participant for no consideration as of the Termination Date.
(b) Death. If the Participant incurs a Termination due to death, the Restricted Stock Units shall, to the extent not then vested or
previously forfeited or cancelled, become fully vested and the Restricted Period shall expire.
(c) Disability/Retirement. If the
Participant incurs a Termination due to Disability or Retirement, in each case, the Restricted Stock Units shall, to the extent not then vested or previously forfeited or cancelled, continue to vest as provided in the Grant Notice as if the
Participant had continued Employment through the Vesting Date, subject to the Participants compliance with the restrictive covenants set forth in Section 10 and the Participants execution, delivery and non-revocation of a waiver and
release of claims in favor of the Company and its Affiliates and Subsidiaries in a form prescribed by the Company on or prior to the 60th day following the Termination Date. Upon the Vesting Date,
the Restricted Period shall expire.
Notwithstanding the above, if the Company receives an opinion of counsel that there has been a legal judgment and/or
legal development in the Participants jurisdiction that would cause the continued vesting of the Restricted Stock Units after Termination due to retirement being deemed unlawful and/or discriminatory, the unvested Restricted Stock Units shall
be treated as set forth in the remaining provisions of this Section 6.
(d) Change in Control. In the event of a Change in
Control, to the extent the acquiring or successor entity does assume, continue or substitute for the Restricted Stock Units, if the Participant incurs a Termination by the Service Recipient without Cause (other than due to death or Disability)
during the period commencing on the date of the consummation of a Change in Control and ending on the date that is eighteen (18) months following the consummation of such Change in Control, the Restricted Stock Units shall, to the extent not
then vested or previously forfeited or cancelled, become fully vested and the Restricted Period shall expire.
7.
Non-Transferability. The Restricted Stock Units are not transferable by the Participant except to Permitted Transferees in accordance with Section 14(b) of the Plan. Whenever the word Participant is used in any
provision of this Agreement under circumstances where the provision should
4
logically be construed to apply to executors, the administrators or the person or persons to whom the Restricted Stock Units may be transferred by will or by the laws of descent and distribution
in accordance with Section 14 of the Plan, the word Participant shall be deemed to include such person or persons. Except as otherwise provided herein, no assignment or transfer of the Restricted Stock Units, or of the rights
represented thereby, whether voluntary or involuntary, by operation of law or otherwise, shall vest in the assignee or transferee any interest or right herein whatsoever, but immediately upon such assignment or transfer the Restricted Stock Units
shall terminate and become of no further effect.
8. Rights as Stockholder. Except as otherwise expressly provided for
herein, the Participant or a Permitted Transferee of the Restricted Stock Units shall have no rights as a stockholder with respect to any share of Common Stock underlying a Restricted Stock Unit unless and until the Participant shall have become the
holder of record or the beneficial owner of such Common Stock, and no adjustment shall be made for dividends or distributions or other rights in respect of such share of Common Stock for which the record date is prior to the date upon which the
Participant shall become the holder of record or the beneficial owner thereof.
9. Repayment of Proceeds; Clawback Policy.
If a Restrictive Covenant Violation occurs or the Company discovers after a Termination that grounds existed for Cause at the time thereof, then the Participant shall be required, in addition to any other remedy available (on a non-exclusive basis),
to pay to the Company, within ten (10) business days of the Companys request to the Participant therefor, an amount equal to the aggregate after-tax proceeds (taking into account all amounts of tax that would be recoverable upon a claim
of loss for payment of such proceeds in the year of repayment) the Participant received upon the sale or other disposition of, or distributions in respect of, the Restricted Stock Units and any shares issued in respect thereof. Any reference in this
Agreement to grounds existing for a Termination for Cause shall be determined without regard to any notice period, cure period, or other procedural delay or event required prior to finding of or termination with, Cause. The Restricted Stock Units
and all proceeds thereof shall be subject to the Companys Clawback Policy, as in effect from time to time, to the extent the Participant is a director or officer as defined under Rule 16a-1(f) of the Exchange Act.
10. Restrictive Covenants.
(a) To the extent that the Participant is a party to an employment or similar agreement with the Company or one of its
Affiliates or Subsidiaries containing non-competition, non-solicitation, non-interference or confidentiality restrictions (or two or more such restrictions), those restrictions and related enforcement provisions under such agreement shall govern and
the following provisions of this Section 10 shall not apply.
5
(b) Competitive Activity.
(i) The Participant shall be deemed to have engaged in Competitive Activity if, during the period commencing
on the Date of Grant and ending on the date that is 12 months after the Termination Date (the Restricted Activity Period), the Participant, whether on the Participants own behalf or on behalf of or in conjunction with any
other Person (as defined below), directly or indirectly, violates any of the following prohibitions:
(I) During the Restricted Activity
Period, the Participant will not, whether on the Participants own behalf or on behalf of or in conjunction with any person, firm, partnership, joint venture, association, corporation or other business organization, entity or enterprise
whatsoever (Person), directly or indirectly, solicit or assist in soliciting in competition with the Company or any of its Subsidiaries, the business of any client or prospective client:
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(1) |
with whom the Participant had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one year period preceding the Termination Date; |
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(2) |
with whom employees reporting to the Participant have had personal contact or dealings on behalf of the Company or any of its Subsidiaries during the one year immediately preceding the Termination Date; or
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(3) |
for whom the Participant had direct or indirect responsibility during the one year immediately preceding the Termination Date. |
(II) During the Restricted Activity Period, the Participant will not directly or indirectly:
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(1) |
engage in any business that competes with the business of the Company or any of its Subsidiaries, including, but not limited to, providing formulation/dose form technologies and/or contract services to pharmaceutical,
biotechnology, over-the-counter and vitamin/mineral supplements companies related to pre-clinical and clinical development, formulation, analysis, manufacturing and/or packaging and any other technology, product or service of the type developed,
manufactured or sold by the Company or any of its Subsidiaries (including, without limitation, any other business which the Company or any of its Subsidiaries have plans to engage in as of the Termination Date) in any geographical area where the
Company or any of its Subsidiaries conduct business (a Competitive Business); |
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(2) |
enter the employ of, or render any services to, any Person (or any division or controlled or controlling Affiliate of any Person) who or which engages in a Competitive Business; |
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(3) |
acquire a financial interest in, or otherwise become actively involved with, any Competitive Business, directly or indirectly, as an individual, partner, shareholder, officer, director, principal, agent, trustee or
consultant; or |
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(4) |
interfere with, or attempt to interfere with, business relationships (whether formed before, on or after the Date of Grant) between the Company or any of its Subsidiaries and customers, clients, suppliers, or investors
of the Company or any of its Subsidiaries. |
6
Notwithstanding anything to the contrary in this Agreement, the Participant may, directly or
indirectly own, solely as an investment, securities of any entity engaged in the business of the Company or any of its Subsidiaries which are publicly traded on a national or regional stock exchange or on the over-the-counter market if the
Participant (i) is not a controlling person of, or a member of a group which controls, such Person and (ii) does not, directly or indirectly, own 5% or more of any class of securities of such Person.
(III) During the Restricted Activity Period, the Participant will not, whether on the Participants own behalf or on behalf of or in
conjunction with any Person, directly or indirectly:
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(1) |
solicit or encourage any employee of the Company or any of its Subsidiaries to leave the employment of the Company or any of its Subsidiaries; or |
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(2) |
hire any such employee who was employed by the Company or any of its Subsidiaries as of the Termination Date or who left the employment of the Company or any of its Subsidiaries coincident with, or within six
(6) months prior to or after, the Termination Date; provided, however, that this restriction shall cease to apply to any employee who has not been employed by the Company or any of its Subsidiaries for at least six (6) months.
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(IV) During the Restricted Activity Period, the Participant will not, directly or indirectly, solicit or encourage to cease
to work with the Company or any of its Subsidiaries any consultant then under contract with the Company or any of its Subsidiaries.
(ii) It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in
this Section 10(b) to be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the
Participant, the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable.
Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the enforceability of
any of the other restrictions contained herein.
(c) Confidentiality.
(i) The Participant will not at any time (whether during or after the Participants Employment) (x) retain or use for the benefit,
purposes or account of the Participant or any other Person; or (y) disclose, divulge, reveal, communicate, share, transfer or provide access to any person outside the Company and its Affiliates and Subsidiaries (other than its professional
advisers
7
who are bound by confidentiality obligations), any non-public, proprietary or confidential information including without limitation trade secrets, know-how, research and development,
software, databases, inventions, processes, formulae, technology, designs and other intellectual property, information concerning finances, investments, profits, pricing, costs, products, services, vendors, customers, clients, partners, investors,
personnel, compensation, recruiting, training, advertising, sales, marketing, promotions, government and regulatory activities and approvals concerning the past, current or future business, activities and operations of the Company, its
Subsidiaries or Affiliates and/or any third party that has disclosed or provided any of same to the Company on a confidential basis (Confidential Information) without the prior written authorization of the Board.
(ii) Confidential Information shall not include any information that is (x) generally known to the industry or the
public other than as a result of the Participants breach of this covenant or any breach of other confidentiality obligations by third parties; (y) made legitimately available to the Participant by a third party without breach of any known
confidentiality obligation; or (z) required by law to be disclosed or in any judicial or administrative process; provided that the Participant shall give prompt written notice to the Company of such requirement, disclose no more
information than is so required, and cooperate, at the Companys cost, with any attempts by the Company to obtain a protective order or similar treatment.
(iii) Except as required by law, the Participant will not disclose to anyone, other than the Participants immediate family and legal or
financial or tax advisors or lender, each of whom the Participant agrees to instruct not to disclose, the existence or contents of this Agreement (unless this Agreement shall be publicly available as a result of a regulatory filing made by the
Company or one of its Affiliates or Subsidiaries); provided, that the Participant may disclose to any prospective future employer the provisions of Section 10 of this Agreement provided they agree to maintain the confidentiality of such
terms.
(iv) Upon Termination, the Participant shall (x) cease and not thereafter commence use of any Confidential
Information or intellectual property (including without limitation, any patent, invention, copyright, trade secret, trademark, trade name, logo, domain name or other source indicator) owned or used by the Company, its Subsidiaries or Affiliates;
(y) immediately destroy, delete, or return to the Company, at the Companys option, all originals and copies in any form or medium (including memoranda, books, papers, plans, computer files, letters and other data) in the
Participants possession or control (including any of the foregoing stored or located in the Participants office, home, laptop or other computer, whether or not Company property) that contain Confidential Information or otherwise relate
to the business of the Company or one of its Affiliates or Subsidiaries, except that the Participant may retain only those portions of any personal notes, notebooks and diaries that do not contain any Confidential Information; and (z) notify
and fully cooperate with the Company regarding the delivery or destruction of any other Confidential Information of which the Participant is or becomes aware.
8
(d) Equitable Relief.
Notwithstanding the remedies set forth in Section 9 above and notwithstanding any other remedy which would otherwise be available to the
Company at law or in equity, the Company and the Participant agree and acknowledge that if an actual or threatened Restrictive Covenant Violation occurs, the Company will be entitled to an injunction and/or other equitable relief restraining the
Participant from the Restrictive Covenant Violation without the necessity of posting a bond or proving actual damages.
11. Tax
Withholding.
(a) Responsibility for Taxes. The Participant acknowledges that, regardless of any action taken by the
Company or, if different, the Service Recipient, the ultimate liability for all income tax, social insurance, payroll tax, fringe benefits tax, payment on account or other tax-related items related to the Participants participation in the Plan
and legally applicable to the Participant (Tax-Related Items) is and remains the Participants responsibility and may exceed the amount actually withheld by the Company or the Service Recipient. The Participant further acknowledges
that the Company and/or the Service Recipient (1) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the Restricted Stock Units, including, but not limited to, the grant,
vesting or settlement of the Restricted Stock Units, the subsequent sale of shares of Common Stock acquired pursuant to such settlement and the receipt of any dividends and/or any dividend equivalents; and (2) do not commit to and are under no
obligation to structure the terms of the grant or any aspect of the Restricted Stock Units to reduce or eliminate the Participants liability for Tax-Related Items or achieve any particular tax result. Further, if the Participant is subject to
Tax-Related Items in more than one jurisdiction, the Participant acknowledges that the Company and/or the Service Recipient (or former Service Recipient, as applicable) may be required to withhold or account for Tax-Related Items in more than one
jurisdiction.
(b) Satisfaction of Withholding Obligations. Prior to any relevant taxable or tax withholding event, as applicable,
the Participant agrees to make adequate arrangements satisfactory to the Company and/or the Service Recipient to satisfy all Tax-Related Items. In this regard, the Participant authorizes the Company and/or the Service Recipient, or their respective
agents, at their discretion, to satisfy their withholding obligations with regard to all Tax-Related Items by any of the means described in Section 14(d) of the Plan or by such other means or method as the Committee in its sole discretion and
without notice to the Participant deems appropriate.
Depending on the withholding method, the Company may withhold or account for
Tax-Related Items by considering applicable minimum statutory withholding rates or other applicable withholding rates, including maximum applicable rates, in which case the Participant will receive a refund of any over-withheld amount in cash and
will have no entitlement to the Common Stock equivalent. If the obligation for Tax-Related Items is satisfied by withholding in shares of Common Stock, for tax purposes, the Participant is deemed to have been issued the full number of shares of
Common Stock subject to the vested Restricted Stock Units, notwithstanding that a number of the shares of Common Stock is held back solely for the purpose of paying the Tax-Related Items.
Finally, the Participant agrees to pay to the Company or the Service Recipient any amount of Tax-Related Items that the Company or the Service
Recipient may be required to withhold or account for as a result of the Participants participation in the Plan that cannot be satisfied by the means previously described. The Company may refuse to issue or deliver the shares or the proceeds of
the sale of shares of Common Stock, if the Participant fails to comply with the Participants obligations in connection with the Tax-Related Items.
12. Notice. Every notice or other communication relating to this Agreement between the Company and the Participant shall be in
writing, and shall be mailed to or delivered to the party for whom
9
it is intended at such address as may from time to time be designated by it in a notice mailed or delivered to the other party as herein provided; provided that, unless and until some
other address be so designated, all notices or communications by the Participant to the Company shall be mailed or delivered to the Company at its principal executive office, to the attention of the Companys General Counsel, and all notices or
communications by the Company to the Participant may be given to the Participant personally or may be mailed to the Participant at the Participants last known address, as reflected in the Companys records. Notwithstanding the above, all
notices and communications between the Participant and any third-party plan administrator shall be mailed, delivered, transmitted or sent in accordance with the procedures established by such third-party plan administrator and communicated to the
Participant from time to time.
13. No Right to Continued Employment. Neither the Plan nor this Agreement nor the granting
of the Restricted Stock Units evidenced hereby shall be construed as giving the Participant the right to be retained in the employ of, or in any consulting relationship to, the Company or any of its Affiliates or Subsidiaries. Further, the Company
or, if different, the Service Recipient may at any time dismiss the Participant or discontinue any consulting relationship, free from any liability or any claim under the Plan or this Agreement, except as otherwise expressly provided herein.
14. Nature of Grant. In accepting the grant of the Restricted Stock Units, the Participant acknowledges, understands and agrees
that:
(a) the Plan is established voluntarily by the Company, it is discretionary in nature and it may be modified, amended, suspended
or terminated by the Company at any time, to the extent permitted by the Plan;
(b) the grant of the Restricted Stock Units is voluntary
and occasional and does not create any contractual or other right to receive future grants of Restricted Stock Units, or benefits in lieu of Restricted Stock Units, even if Restricted Stock Units have been granted in the past;
(c) all decisions with respect to future Restricted Stock Unit or other grants, if any, will be at the sole discretion of the Company;
(d) the Restricted Stock Unit grant and the Participants participation in the Plan shall not be interpreted as forming an employment or
service contract with the Company, or any Affiliate or Subsidiary;
(e) the Participant is voluntarily participating in the Plan;
(f) the Restricted Stock Units and the shares of Common Stock subject to the Restricted Stock Units, and the income and value of same, are
not intended to replace any pension rights or compensation;
(g) the Restricted Stock Units and the shares of Common Stock subject to the
Restricted Stock Units, and the income and value of same, are not part of normal or expected compensation for any purpose, including, without limitation, calculating any severance, resignation, termination, redundancy, dismissal, end-of-service
payments, bonuses, holiday pay, long-service awards, pension or retirement or welfare benefits or similar payments;
(h) the future value
of the underlying shares of Common Stock is unknown, indeterminable and cannot be predicted with certainty;
10
(i) no claim or entitlement to compensation or damages shall arise from forfeiture of the
Restricted Stock Units resulting from a Termination (for any reason whatsoever, whether or not later found to be invalid or in breach of employment laws in the jurisdiction where the Participant is employed or the terms of the Participants
employment agreement, if any), and in consideration of the grant of the Restricted Stock Units to which the Participant is otherwise not entitled, the Participant irrevocably agrees never to institute any claim against the Company, any of its
Affiliates or Subsidiaries, waives the Participants ability, if any, to bring any such claim, and releases the Company, its Affiliates and Subsidiaries from any such claim; if, notwithstanding the foregoing, any such claim is allowed by a
court of competent jurisdiction, then, by participating in the Plan, the Participant shall be deemed irrevocably to have agreed not to pursue such claim and agrees to execute any and all documents necessary to request dismissal or withdrawal of such
claim;
(j) unless otherwise provided in the Plan or by the Company in its discretion, the Restricted Stock Units and the benefits
evidenced by this Agreement do not create any entitlement to have the Restricted Stock Units or any such benefits transferred to, or assumed by, another company nor to be exchanged, cashed out or substituted for, in connection with any corporate
transaction affecting the Common Stock of the Company; and
(m) the Participant acknowledges and agrees that neither the Company, nor any
Affiliate or Subsidiary shall be liable for any foreign exchange rate fluctuation between the Participants local currency and the United States Dollar that may affect the value of the Restricted Stock Units or of any amounts due to the
Participant pursuant to the settlement of the Restricted Stock Units or the subsequent sale of any shares of Common Stock acquired upon settlement.
15. No Advice Regarding Grant. The Company is not providing any tax, legal or financial advice, nor is the Company making any
recommendations regarding the Participants participation in the Plan, or the Participants acquisition or sale of the underlying shares of Common Stock. The Participant is hereby advised to consult with the Participants own personal
tax, legal and financial advisors regarding the Participants participation in the Plan before taking any action related to the Plan.
16. Data Privacy. The Participant hereby explicitly and unambiguously consents to the collection, use and transfer,
in electronic or other form, of the Participants personal data as described in this Agreement and any other Restricted Stock Unit grant materials by and among, as applicable, the Service Recipient, the Company and its other Affiliates or
Subsidiaries for the exclusive purpose of implementing, administering and managing the Participants participation in the Plan.
The Participant understands that the Company and the Service Recipient may hold certain personal information about the Participant,
including, but not limited to, the Participants name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any shares of stock or directorships held in the
Company, details of all Restricted Stock Units or any other entitlement to shares of stock awarded, canceled, exercised, vested, unvested or outstanding in the Participants favor (Data), for the exclusive purpose of implementing,
administering and managing the Plan.
The Participant understands that Data will be transferred to Morgan Stanley Smith
Barney LLC, or such other stock plan service provider as may be selected by the Company in the future, which is assisting the Company with the implementation, administration and management of the Plan. The Participant understands that the recipients
of the Data may be located in the United States or elsewhere, and that the recipients country (e.g., the United States) may have different data privacy laws and protections than the Participants country. The Participant understands that
the Participant may request a list with the names and addresses of any potential recipients of the Data by
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contacting the Participants local human resources representative. The Participant authorizes the Company, Morgan Stanley Smith Barney LLC and any other possible recipients which may assist
the Company (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, retain and transfer the Data, in electronic or other form, for the sole purpose of implementing, administering and managing the
Participants participation in the Plan. The Participant understands that Data will be held only as long as is necessary to implement, administer and manage the Participants participation in the Plan. The Participant understands that the
Participant may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing
the Participants local human resources representative. Further, the Participant understands that the Participant is providing the consents herein on a purely voluntary basis. If the Participant does not consent, or if the Participant later
seeks to revoke the Participants consent, the Participants Employment and career with the Service Recipient will not be adversely affected; the only adverse consequence of refusing or withdrawing the Participants consent is that
the Company would not be able to grant Restricted Stock Units or other equity awards to the Participant or administer or maintain such awards. Therefore, the Participant understands that refusing or withdrawing the Participants consent may
affect the Participants ability to participate in the Plan. For more information on the consequences of the Participants refusal to consent or withdrawal of consent, the Participant understands that the Participant may contact the
Participants local human resources representative.
17. Binding Effect. This Agreement shall be binding upon
the heirs, executors, administrators and successors of the parties hereto.
18. Waiver and Amendments. Subject to
Section 13(b) of the Plan, the Committee may waive any conditions or rights under, amend any terms of, or alter, suspend, discontinue, cancel or terminate, this Agreement, prospectively or retroactively (including after the Participants
Termination); provided that any such waiver, amendment, alteration, suspension, discontinuance, cancellation or termination that would materially and adversely affect the rights of the Participant hereunder shall not to that extent be effective
without the consent of the Participant. No waiver by either of the parties hereto of their rights hereunder shall be deemed to constitute a waiver with respect to any subsequent occurrences or transactions hereunder unless such waiver specifically
states that it is to be construed as a continuing waiver.
19. Governing Law; Venue. This Agreement shall be construed and
interpreted in accordance with the laws of the State of Delaware, without regard to the principles of conflicts of law thereof. For purposes of litigating any dispute that arises under this grant or this Agreement, the parties hereby submit to and
consent to the jurisdiction of the State of New Jersey, agree that such litigation shall be conducted in the courts of Somerset County, or the federal courts for the United States for the District of New Jersey, where this grant is made and/or to be
performed.
20. Plan. The terms and provisions of the Plan are incorporated herein by reference. In the event of a conflict
or inconsistency between the terms and provisions of the Plan and the provisions of this Agreement, the Plan shall govern and control.
21. Language. If the Participant has received this Agreement or any other document related to the Plan translated into a
language other than English and if the meaning of the translated version is different than the English version, the English version will control.
22. Electronic Delivery and Acceptance. The Company may, in its sole discretion, decide to deliver any documents related to
current or future participation in the Plan by electronic means. The
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Participant hereby consents to receive such documents by electronic delivery and agrees to participate in the Plan through an on-line or electronic system established and maintained by the
Company or a third party designated by the Company.
23. Imposition of Other Requirements. The Company reserves the right to
impose any other requirements on the Participants participation in the Plan, on the Restricted Stock Units and on any shares acquired under the Plan, to the extent the Company determines it is necessary or advisable for legal or administrative
reasons, and to require the Participant to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.
24. Section 409A of the Code. The Restricted Stock Units are not intended to constitute nonqualified deferred
compensation within the meaning of Section 409A of the Code (together with any Department of Treasury regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other guidance that
may be issued after the date hereof, Section 409A). However, notwithstanding any other provision of the Plan, the Grant Notice or this Agreement, if at any time the Committee determines that the Restricted Stock Units (or any portion
thereof) may be subject to Section 409A, the Committee shall have the right in its sole discretion (without any obligation to do so or to indemnify the Participant or any other person for failure to do so) to adopt such amendments to the Plan,
the Grant Notice or this Agreement, or adopt other policies and procedures (including amendments, policies and procedures with retroactive effect), or take any other actions, as the Committee determines are necessary or appropriate either for the
Restricted Stock Units to be exempt from the application of Section 409A or to comply with the requirements of Section 409A.
25. Appendix. Notwithstanding any provisions in this Agreement, the Restricted Stock Unit grant shall be subject to any special
terms and conditions set forth in Appendix A to this Restricted Stock Unit Agreement for the Participants country. Moreover, if the Participant relocates to one of the countries included in Appendix A, the special terms and conditions for such
country will apply to the Participant, to the extent the Company determines that the application of such terms and conditions is necessary or advisable for legal or administrative reasons. Appendix A constitutes part of this Restricted Stock Unit
Agreement.
26. Insider Trading Restrictions/Market Abuse Laws. The Participant acknowledges that, depending on his or her
country, the Participant may be subject to insider trading restrictions and/or market abuse laws, which may affect his or her ability to acquire or sell shares of Common Stock or rights to shares of Common Stock (e.g., Restricted Stock Units)
under the Plan during such times as the Participant is considered to have inside information regarding the Company (as defined by the laws in the Participants country). Any restrictions under these laws or regulations are separate
from and in addition to any restrictions that may be imposed under any applicable Company insider trading policy. The Participant is responsible for ensuring compliance with any applicable restrictions and is advised to consult his or her personal
legal advisor on this matter.
27. Entire Agreement. This Agreement, the Grant Notice and the Plan constitute the entire
understanding between the Participant and the Company regarding the Restricted Stock Units. This Agreement, the Grant Notice and the Plan supersede any prior agreements, commitments or negotiations concerning the Restricted Stock Units.
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APPENDIX A
RESTRICTED STOCK UNIT AGREEMENT FOR NON-U.S. PARTICIPANTS
UNDER THE
CATALENT, INC.
2014 OMNIBUS INCENTIVE PLAN
COUNTRY-SPECIFIC TERMS AND CONDITIONS
All capitalized terms used in this Appendix A that are not defined herein have the meanings defined in the Plan or the Restricted Stock Unit Agreement for
Non-U.S. Participants (the Restricted Stock Unit Agreement). This Appendix A constitutes part of the Restricted Stock Unit Agreement.
Terms and Conditions
This Appendix A includes
additional or different terms and conditions that govern the Restricted Stock Units if the Participant works or resides in one of the countries listed below. The Participant understands that if the Participant is a citizen or resident of a
country other than the one in which he or she is currently working, transfers Employment and/or residency after the Date of Grant or is considered a resident of another country for local law purposes, the Company shall, in its discretion, determine
to what extent the terms and conditions contained herein shall apply to the Participant.
Notifications
This Appendix A also includes information regarding exchange controls and certain other issues of which the Participant should be aware with respect to
participation in the Plan. The information is based on the securities, exchange control and other laws in effect in the respective countries as of May 2014. Such laws are often complex and change frequently. As a result, the
Participant should not rely on the information in this Appendix A as the only source of information relating to the consequences of participation in the Plan because the information may be out of date at the time the Restricted Stock Units vest or
at the time the Participant sells the shares of Common Stock.
In addition, the information contained herein is general in nature and may not apply to the
Participants particular situation, and the Company is not in a position to assure the Participant of a particular result. Accordingly, the Participant should seek appropriate professional advice as to how the relevant laws in the
Participants country may apply to his or her situation.
Finally, if the Participant is a citizen or resident of a country other than the one in
which he or she is currently working, transfers Employment and/or residency after the Date of Grant or is considered a resident of another country for local law purposes, the information contained herein may not apply to the Participant.
ARGENTINA
Notifications
Securities Law Information.
Neither the Restricted Stock Units nor the underlying shares of Common Stock are publicly offered or listed on any stock exchange in Argentina. The offer is private and not subject to the supervision of any Argentine governmental authority.
Exchange Control Information. If the Participant transfers proceeds from the sale of shares of Common Stock or the receipt of any dividends paid on
such shares into Argentina within 10 days of sale/receipt (i.e., if the proceeds have not been held in a U.S. bank or brokerage account for at least 10 days prior to transfer), the Participant must deposit 30% of the proceeds into a
non-interest bearing account in Argentina for 365 days. If the Participant has satisfied the 10 day holding obligation, the Argentine bank handling the transaction may still request certain documentation in connection with the Participants
request to transfer proceeds into Argentina, including evidence of the sale and proof of the source of funds used to purchase the shares of Common Stock. If the bank determines that the 10-day rule or any other rule or regulation promulgated by the
Argentine Central Bank has not been satisfied, it will require that 30% of the transfer amount be placed in a non-interest bearing dollar denominated mandatory deposit account for a holding period of 365 days.
The Participant must comply with any and all Argentine currency exchange restrictions, approvals and reporting requirements in connection with the vesting of
the Restricted Stock Units and the subsequent sale of any shares of Common Stock acquired at vesting and the receipt of any dividends.
Please note
that exchange control regulations in Argentina are subject to frequent change. The Participant should consult with his or her personal legal advisor regarding any exchange control obligations the Participant may have in connection with the
Participants participation in the Plan.
Foreign Asset/Account Reporting Information. The Participant must report any
shares of Common Stock acquired under the Plan and held by the Participant on December 31st of each year on the Participants annual tax return for that year. The Participant is strongly advised to consult the Participants
personal tax advisor to ensure compliance with this tax reporting obligation.
AUSTRALIA
Terms and Conditions
Vesting. The
following provisions supplement the Restricted Stock Unit Grant Notice and Sections 3 and 6 of the Restricted Stock Unit Agreement:
Notwithstanding
Section 6(c) of the Restricted Stock Unit Agreement, if the Participant incurs a Termination due to Disability or Retirement, the Restricted Stock Units shall, to the extent not then vested or previously forfeited or cancelled, become fully
vested and the Restricted Period shall expire.
Data Privacy. The following provisions supplement Section 16 of the Restricted Stock Unit Agreement:
The Company can be contacted at 14 Schoolhouse Rd, Somerset, NJ 08873 The Service Recipient can be contacted at [insert address of Australian
subsidiary].
The Participants personal information will be held in accordance with the Service Recipients privacy policy, a copy of which can
be obtained by contacting the Service Recipient at the address indicated above. The Service Recipients privacy policy contains, among other things, details of how the Participant can access and seek correction of personal information held in
connection with this Restricted Stock Units, how the Participant can complain about a breach of the Australian Privacy Principles and how the Service Recipient will deal with such a complaint.
The Participant understands and agrees that Data may be transferred to recipients located outside of Australia, including the United States and any other
country where the Company has operations.
Notifications
Securities Law Information. If the Participant acquires shares of Common Stock pursuant to the Restricted Stock Units and offers the
shares of Common Stock for sale to a person or entity resident in Australia, such offer may be subject to disclosure requirements under Australian law. The Participant should obtain legal advice as to his or her disclosure obligations prior to
making any such offer.
Exchange Control Information. The Participant is responsible for reporting cash transactions inbound (e.g., the
remittance of cash proceeds received upon sale of shares of Common Stock) exceeding A$10,000 and for inbound international fund transfers of any value, which do not involve an Australian bank.
BELGIUM
Notifications
Foreign Asset/Account Reporting Information. The Participant is required to report any security or bank account (including a brokerage
account) opened and maintained outside Belgium on his or her annual tax return.
BRAZIL
Terms and Conditions
Compliance with Law.
By accepting the Restricted Stock Units, the Participant acknowledges his or her agreement to comply with applicable Brazilian laws and to pay any and all applicable Tax-Related Items associated with the Restricted Stock Units, the receipt of any
dividends, and the sale of shares of Common Stock acquired under the Plan.
Notifications
Exchange Control Information. If the Participant is resident or domiciled in Brazil, the Participant will be required to submit annually a declaration
of assets and rights held outside of Brazil to the Central Bank of Brazil if the aggregate value of such assets and rights is equal to or greater than US$100,000. Assets and rights that must be reported include shares of Common Stock acquired under
the Plan.
CHINA
Terms
and Conditions
The following terms and conditions will be applicable to the Participant to the extent that the Company, in its discretion,
determines that the Participants participation in the Plan will be subject to exchange control restrictions in the Peoples Republic of China (PRC), as implemented by the PRC State Administration of Foreign Exchange
(SAFE).
Vesting. The following provisions supplement the Restricted Stock Unit Grant Notice and Sections 3 and 6 of the Restricted
Stock Unit Agreement:
Notwithstanding anything to the contrary in the Restricted Stock Unit Agreement, the Restricted Stock Units shall not vest and no
shares of Common Stock will be issued to the Participant unless and until all necessary exchange control or other approvals with respect to the Restricted Stock Units under the Plan have been obtained from SAFE or its local counterpart (SAFE
Approval). In the event that SAFE Approval has not been obtained prior to any date(s) on which the Restricted Stock Units are scheduled to vest in accordance with the Vesting Schedule set forth in the Grant Notice, the Restricted Stock Units
will not vest until the seventh day of the month following the month in which SAFE Approval is obtained (the Actual Vesting Date). If the Participant incurs a Termination prior to the Actual Vesting Date, the Participant shall not be
entitled to vest in any portion of the Restricted Stock Units and the Restricted Stock Units shall be forfeited without any liability to the Company or its Affiliates.
Notwithstanding Section 6(c) of the Restricted Stock Unit Agreement, if the Participant incurs a Termination due to Disability or Retirement on or after
the Actual Vesting Date, the Restricted Stock Units shall, to the extent not then vested or previously forfeited or cancelled, become fully vested and the Restricted Period shall expire.
Settlement of Restricted Stock Units and Sale of Shares. Notwithstanding anything to the contrary in the Plan or the Restricted Stock Unit Agreement,
due to PRC exchange control restrictions the Participant agrees that any shares of Common Stock acquired at settlement of the Restricted Stock Units may be immediately sold at settlement or, at the Companys discretion, at a later time
(including when the Participant terminates Employment for any reason). If, however, the sale of the shares of Common Stock is not permissible under the Companys insider trading policy, the Company retains the discretion to postpone the
issuance of the shares of Common Stock subject to the vested Restricted Stock Units until such time that the sale is again permissible and to then immediately sell the shares of Common Stock subject to the Restricted Stock Units. The Participant
further agrees that the Company is authorized to instruct its designated broker to assist with the mandatory sale of the shares of Common Stock (on the Participants behalf pursuant to this authorization), and the Participant expressly
authorizes such broker to complete the sale of such shares of Common Stock. The Participant acknowledges that the Companys designated broker is under no obligation to arrange for the sale of shares of
Common Stock at any particular price. Upon the sale of the shares of Common Stock, the Company agrees to pay the cash proceeds from the sale, less any brokerage fees or commissions, to the
Participant in accordance with applicable exchange control laws and regulations and provided any liability for Tax-Related Items has been satisfied. Due to fluctuations in the share price and/or the United States Dollar exchange rate between the
settlement date and (if later) the date on which the shares of Common Stock are sold, the sale proceeds may be more or less than the market value of the shares of Common Stock on the settlement date (which is the amount relevant to determining the
Participants tax liability). The Participant understands and agrees that the Company is not responsible for the amount of any loss the Participant may incur and that the Company assumes no liability for any fluctuation in the share price
and/or United States Dollar exchange rate.
Exchange Control Restrictions. The Participant understands and agrees that he or she will be required
to immediately repatriate to China the proceeds from the sale of any shares of Common Stock acquired under the Plan or from any cash dividends paid or such shares. The Participant further understands that such repatriation of the proceeds may need
to be effected through a special exchange control account established by the Company or any Affiliate or Subsidiary, and the Participant hereby consents and agrees that the proceeds may be transferred to such account by the Company (or its
designated broker) on the Participants behalf prior to being delivered to the Participant. The Participant also agrees to sign any agreements, forms and/or consents that may be reasonably requested by the Company (or the Companys
designated broker) to effectuate such transfers.
The proceeds may be paid to the Participant in U.S. dollars or local currency at the Companys
discretion. If the proceeds are paid to the Participant in U.S. dollars, the Participant understands that he or she will be required to set up a U.S. dollar bank account in China so that the proceeds may be deposited into this account. If the
proceeds are paid to the Participant in local currency, (i) the Participant acknowledges that the Company is under no obligation to secure any particular exchange conversion rate and that the Company may face delays in converting the proceeds
to local currency due to exchange control restrictions, and (ii) the Participant agrees to bear any currency fluctuation risk between the time the shares of Common Stock are sold or dividends are paid and the time the proceeds are converted to
local currency and distributed to the Participant. The Participant agrees to comply with any other requirements that may be imposed by the Company in the future in order to facilitate compliance with exchange control requirements in China.
Notifications
Foreign Asset/Account Reporting
Information. Effective from January 1, 2014, PRC residents are required to report to SAFE details of their foreign financial assets and liabilities, as well as details of any economic transactions conducted with non-PRC residents, either
directly or through financial institutions. Under these rules, the Participant may be subject to reporting obligations for the Restricted Stock Units and/or the shares of Common Stock acquired under the Plan and any Plan-related transactions. The
Participant should consult his or her personal legal advisor regarding the details of this reporting obligation.
FRANCE
Terms and Conditions
Type of Restricted Stock
Units. The Restricted Stock Units are not granted as French-qualified awards and are not intended to qualify for the special tax and social security treatment applicable to shares granted for no consideration under Sections L.
225-197 to L. 225-197-6 of the French Commercial Code, as amended.
Consent to Receive Information in English. By accepting the Restricted Stock
Units, the Participant confirms having read and understood the documents related to the Restricted Stock Units (the Plan and the Agreement) which were provided in the English language. The Participant accepts the terms of these documents
accordingly.
Consentement Relatif à lUtilisation de la Langue Anglaise. En acceptant lAttribution, le
Participant confirme avoir lu et compris les documents relatifs à cette Attribution (le Plan et le Contrat dAttribution) qui ont été remis en langue anglaise. Le Participant accepte les termes de ces documents en
conséquence.
Notifications
Foreign Asset/Account Reporting Information. The Participant is required to report all foreign accounts (whether open, current or closed) to the French
tax authorities when filing his or her annual tax return.
GERMANY
Notifications
Exchange Control
Information. Cross-border payments in excess of 12,500 must be reported electronically to the German Federal Bank (Bundesbank). In the case of payments made or received in connection with securities (including proceeds realized upon
the sale of shares of Common Stock), the report must be made by the 5th day of the month following the month in which the payment was made or received. The form of the report (Allgemeine Meldeportal Statistik) can be accessed via
the Bundesbanks website (www.bundesbank.de) and is available in both German and English. The Participant understands that if the Participant makes or receives a payment in excess of this amount, the Participant is responsible for complying
with applicable reporting requirements.
ITALY
Terms and Conditions
Data Privacy. This
provision replaces Section 16 of the Restricted Stock Unit Agreement:
The Participant understands that the Service Recipient, the
Company and any other Affiliate and Subsidiary may hold certain personal information about the Participant, including, the Participants name, home address and telephone number, date of birth, social insurance number or other identification
number, salary, nationality, job title, any shares of Common Stock or directorships held in the Company, details of the Restricted Stock Units or any other entitlement to shares of Common Stock awarded, canceled, exercised, vested, unvested or
outstanding in the Participants favor (Personal Data) and will process such data for the exclusive purpose of implementing, managing and administering the Plan.
The Participant also understands that providing the Company with Personal Data is mandatory for compliance
with local law and necessary for the performance of the Plan and that the Participants refusal to provide such Personal Data would make it impossible for the Company to perform its contractual obligations and may affect the Participants
ability to participate in the Plan. The Controllers of personal data processing are Catalent, Inc., 14 Schoolhouse Road, Somerset, NJ 08873, and [insert name and address of Italian subsidiary], which is also the Companys representative in
Italy for privacy purposes pursuant to Legislative Decree no 196/2003.
The Participant understands that Personal Data will not be
publicized, but it may be accessible by the Service Recipient and its internal and external personnel in charge of processing of such Personal Data and by the Personal Data Processor (the Processor), if any. An updated list of Processors
and other transferees of Personal Data is available upon request from the Service Recipient. Furthermore, Personal Data may be transferred to Morgan Stanley Smith Barney LLC, Service Recipient and any banks, other financial institutions or brokers
involved in the management and administration of the Plan. The Participant understands that the Company and/or its Affiliates and Subsidiaries will transfer Personal Data amongst themselves as necessary for the purpose of implementation,
administration and management of the Participants participation in the Plan, and that the Company and/or its Affiliates and Subsidiaries may each further transfer Personal Data to third parties assisting the Company in the implementation,
administration and management of the Plan, including any requisite transfer to Morgan Stanley Smith Barney LLC or another third party with whom the Participant may elect to deposit any shares of Common Stock acquired under the Plan. Such recipients
may receive, possess, use, retain and transfer the Personal Data in electronic or other form, for the purposes of implementing, administering and managing the Participants participation in the Plan. The Participant understands that these
recipients may be located in or outside the European Economic Area in such countries as in the United States that may not provide the same level of protection as intended under Italian data privacy laws. Should the Company exercise its discretion in
suspending all necessary legal obligations connected with the management and administration of the Plan, it will delete the Participants Personal Data as soon as it has accomplished all the necessary legal obligations connected with the
management and administration of the Plan.
The Participant understands that Personal Data processing related to the purposes specified
above shall take place under automated or non-automated conditions, anonymously when possible, that comply with the purposes for which Personal Data are collected and with confidentiality and security provisions as set forth by applicable laws and
regulations, with specific reference to Legislative Decree no. 196/2003.
The processing activity, including communication, the transfer of
the Participants Personal Data abroad, including outside of the European Economic Area, as herein specified and pursuant to applicable laws and regulations, does not require the Participants consent thereto as the processing is necessary
to performance of contractual obligations related to implementation, administration and management of the Plan. The Participant understands that, pursuant to Section 7 of the Legislative Decree no. 196/2003, the Participant has the right to,
including but not limited to, access, delete, update, ask for rectification of the Participants Personal Data and estop, for legitimate reason, the Personal Data processing.
Furthermore, the Participant is aware that the Participants Personal Data will not be used for direct marketing purposes. In addition, the
Personal Data provided can be reviewed and questions or complaints can be addressed by contacting the Participants human resources department.
Plan Document Acknowledgement. By accepting the Restricted Stock Units, the Participant acknowledges that
(a) the Participant has received the Plan and the Agreement; (b) the Participant has reviewed those documents in their entirety and fully understands the contents thereof; and (c) the Participant accepts all provisions of the Plan and
the Agreement. The Participant further acknowledges that the Participant has read and specifically and expressly approves, without limitation, the following sections of the Restricted Stock Unit Agreement: Treatment on Termination;
Non-Transferability; Repayment of Proceeds; Clawback Policy; Restrictive Covenants; Tax Withholding; No Right to Continued Employment; Nature of Grant; No Advice Regarding
Grant; Data Privacy as replaced by the above provision; Waiver and Amendments; Governing Law; Venue; Electronic Delivery and Acceptance; Imposition of Other Requirements; and
Appendix.
Notifications
Foreign Asset/Account Reporting Information. If, at any time during the fiscal year, the Participant holds foreign financial assets (including cash
and/or shares of Common Stock) which may generate income taxable in Italy, the Participant is required to report these assets on his or her annual tax return (UNICO Form, RW Schedule) for the year during which the assets are held, or on a special
form if no tax return is due. These reporting obligations will also apply to the Participant if the Participant is the beneficial owner of foreign financial assets under Italian money laundering provisions.
Foreign Asset Tax Information. The value of the financial assets held outside of Italy by Italian residents is subject to a foreign asset tax.
Beginning in 2014, such tax is levied at an annual rate of 2 per thousand (0.2%). The taxable amount will be the fair market value of the financial assets (e.g., shares of Common Stock) assessed at the end of the calendar year. The
Participant is responsible for complying with any reporting and/or payment obligations that may arise in connection with this tax.
JAPAN
Notifications
Foreign Asset/Account Reporting Information. If the Participant holds assets (e.g., shares of Common Stock acquired
under the Plan, proceeds from the sale of shares of Common Stock and, possibly, Restricted Stock Units) outside of Japan with a value exceeding ¥50 million as of December 31 of any calendar year, the Participant is required to report
such to the Japanese tax authorities by March 15th of the following year. The Participant should consult with his or her personal tax advisor regarding the details of this reporting obligation.
SINGAPORE
Notifications
Securities Law Information. The Restricted Stock Units are granted pursuant to the Qualifying Person exemption under
section 273(1)(f) of the Securities and Futures Act (Chapter 289, 2006
Ed.) (SFA). The Plan has not been lodged or registered as a prospectus with the Monetary Authority of Singapore. The Participant should note that the Restricted Stock Units are
subject to section 257 of the SFA and the Participant will not be able to make (i) any subsequent sale of the shares of Common Stock in Singapore or (ii) any offer of such subsequent sale of the shares of Common Stock in Singapore, unless
such sale or offer is made pursuant to the exemptions under Part XIII Division 1 Subdivision (4) (other than section 280) of the SFA.
Director
Notification Requirement. Directors, associate directors and shadow directors2 of a Singaporean Affiliate or Subsidiary are subject to certain notification requirements under the Singapore
Companies Act and must notify the Singaporean Affiliate or Subsidiary in writing of an interest (e.g., Restricted Stock Units, shares of Common Stock, etc.) in the Company or any related companies within two business days of (i) its
acquisition or disposal, (ii) any change in a previously disclosed interest (e.g., when the shares of Common Stock are sold), or (iii) becoming a director (if such an interest exists at the time).
SWITZERLAND
Notifications
Securities Law Information. The offer of the Restricted Stock Units is considered a private offering in Switzerland and is therefore not
subject to securities registration in Switzerland.
UNITED KINGDOM
Terms and Conditions
Form of Settlement.
Notwithstanding any discretion contained in the Plan or anything to the contrary in the Restricted Stock Unit Agreement, the Restricted Stock Units are payable in shares of Common Stock only.
Tax Withholding. The following provisions supplement Section 11 of the Restricted Stock Unit Agreement:
If payment or withholding of the income tax due in connection with the Restricted Stock Units is not made within ninety (90) days of the end of the tax
year in which the taxable event occurs or such other period specified in Section 222(1)(c) of the U.K. Income Tax (Earnings and Pensions) Act 2003 (the Due Date), the amount of any uncollected income tax shall constitute a loan owed
by the Participant to the Service Recipient, effective on the Due Date. The Participant agrees that the loan will bear interest at the official rate of Her Majestys Revenue and Customs (HMRC) and will be immediately due and
repayable by the Participant, and the Company and/or the Service Recipient may recover it at any time thereafter by any of the means referred to in Section 11 of the Restricted Stock Unit Agreement.
2 |
A shadow director is an individual who is not on the board of directors of a company but who has sufficient control so that the board of directors acts in accordance with the directions or instructions of
the individual. |
Notwithstanding the foregoing, if the Participant is an executive officer or director of the Company (within the
meaning of Section 13(k) of the Exchange Act), the Participant shall not be eligible for a loan to cover the income tax due as described above. Instead, the amount of any uncollected income tax may constitute a benefit to the Participant on
which additional income tax and National Insurance contributions may be payable. The Participant acknowledges that the Participant will be responsible for reporting and paying any income tax due on this additional benefit directly to HMRC under the
self-assessment regime and for paying the Company or the Service Recipient (as applicable) for the value of any employee National Insurance contributions due on this additional benefit. The Participant further acknowledges that the Company or the
Service Recipient may recover such amounts from the Participant by any of the means referred to in Section 11 of the Restricted Stock Unit Agreement.
Joint Election. As a condition of the Participants participation in the Plan, the Participant agrees to accept any liability for secondary Class
1 National Insurance contributions which may be payable by the Company and/or the Service Recipient in connection with the Restricted Stock Units and any event giving rise to Tax-Related Items (the Service Recipients Liability).
Without limitation to the foregoing, the Participant agrees to execute the following joint election with the Company (the Joint Election), the form of such Joint Election being formally approved by HMRC, and to execute any other consents
or elections required to accomplish the transfer of the Service Recipients Liability to the Participant. The Participant further agrees to execute such other joint elections as may be required between the Participant and any successor to the
Company and/or the Service Recipient. The Participant further agrees that the Company and/or the Service Recipient may collect the Service Recipients Liability from him or her by any of the means set forth in Section 11 of the Restricted
Stock Unit Agreement.
If the Participant does not enter into the Joint Election prior to the vesting of the Restricted Stock Units or any other event
giving rise to Tax-Related Items, he or she will not be entitled to vest in the Restricted Stock Units or receive any benefit in connection with the Restricted Stock Units unless and until he or she enters into the Joint Election and no shares of
Common Stock or other benefit pursuant to the Restricted Stock Units will be issued to the Participant under the Plan, without any liability to the Company and/or the Service Recipient.
URUGUAY
There are no
country-specific provisions.
ATTACHMENT TO APPENDIX FOR THE UNITED KINGDOM
|
Important Note on the Joint Election to Transfer |
Service Recipient National Insurance Contributions |
As a condition of participation in the Catalent, Inc. 2014 Omnibus Incentive Plan (the Plan) and the Restricted
Stock Units that have been granted to you (the the Participant) by Catalent, Inc. (the Company), the Participant is required to enter into a joint election to transfer to the Participant any liability for employer National
Insurance contributions (the Service Recipients Liability) that may arise in connection with the Restricted Stock Units or in connection with any future Restricted Stock Units that may be granted by the Company to the Participant
under the Plan (the Joint Election).
If the Participant does not agree to enter into the Joint Election, the Restricted Stock Units
will be worthless as the Participant will not be able to vest in the Restricted Stock Units or receive any benefit in connection with the Restricted Stock Units.
By entering into the Joint Election:
1. |
the Participant agrees that any Service Recipients Liability that may arise in connection with or pursuant to the vesting of the Restricted Stock Units (or any restricted stock units granted to the Participant
under the Plan) or the acquisition of shares of the Companys common stock or other taxable events in connection with the Restricted Stock Units (or any other restricted stock units granted under the Plan) will be transferred to the
Participant; |
2. |
the Participant authorises the Company and/or the Participants employer to recover an amount sufficient to cover the Service Recipients Liability by any method set forth in the Restricted Stock Unit
Agreement and/or the Joint Election; and |
3. |
the Participant acknowledges that even if he or she has accepted the Joint Election via the Companys online procedure, the Company or the Participants employer may still require the Participant to sign a
paper copy of the Joint Election (or a substantially similar form) if the Company determines such is necessary to give effect to the Joint Election. |
By accepting the Restricted Stock Units through the Companys online acceptance procedure (or by signing the Restricted Stock Unit Agreement), the
Participant is agreeing to be bound by the terms of the Joint Election.
Please read the terms of the Joint Election carefully
before
accepting the Restricted Stock Unit Agreement
and the Joint Election.
Please print and keep a copy of the Joint Election
for your records.
CATALENT, INC.
2014 OMNIBUS INCENTIVE PLAN
(UK Employees)
Election To Transfer the Service Recipients National Insurance Liability to the Employee
This Election is between:
|
(A) |
You, the individual who has gained access to this Election (the Employee), who is employed by one of the U.K. companies listed in the Schedule below (the Service Recipient) and who is eligible to
receive Restricted Stock Units (Restricted Stock Units) granted by Catalent, Inc. pursuant to the terms and conditions of the 2014 Omnibus Incentive Plan (the Plan), and |
|
(B) |
Catalent, Inc. of 14 Schoolhouse Road, Somerset, NJ 08873, United States of America (the Company), which may grant Restricted Stock Units under the Plan and is entering into this Form of Election on behalf
of the Service Recipient. |
2.1 |
This Election relates to Restricted Stock Units granted by the Company under the Plan on or after [June 1, 2014]. |
2.2 |
In this Election the following words and phrases have the following meanings: |
Taxable Event means, in relation to the Restricted Stock Units:
|
(i) |
the acquisition of securities pursuant to the Restricted Stock Units (within section 477(3)(a) of ITEPA); and/or |
|
(ii) |
the assignment or release of the Restricted Stock Units in return for consideration (within section 477(3)(b) of ITEPA); and/or |
|
(iii) |
the receipt of a benefit in connection with the Restricted Stock Units, other than a benefit within (i) or (ii) above (within section 477(3)(c) of ITEPA); and/or |
|
(iv) |
post-acquisition charges relating to the Restricted Stock Units and/or shares acquired pursuant to the Restricted Stock Units (within section 427 of ITEPA); and/or |
|
(v) |
post-acquisition charges relating to the Restricted Stock Units and/or shares acquired pursuant to the Restricted Stock Units (within section 439 of ITEPA). |
ITEPA means the Income Tax (Earnings and Pensions) Act 2003.
SSCBA means the Social Security Contributions and Benefits Act 1992.
2.3 |
This Election relates to the Service Recipients secondary Class 1 National Insurance Contributions (the Service Recipients Liability) which may arise on the occurrence of a Taxable Event
in respect of the Restricted Stock Units pursuant to section 4(4)(a) and/or paragraph 3B(1A) of Schedule 1 of the SSCBA. |
2.4 |
This Election does not apply in relation to any liability, or any part of any liability, arising as a result of regulations being given retrospective effect by virtue of section 4B(2) of either the SSCBA or the Social
Security Contributions and Benefits (Northern Ireland) Act 1992. |
2.5 |
This Election does not apply to the extent that it relates to relevant employment income which is employment income of the earner by virtue of Chapter 3A of Part VII of ITEPA (employment income: securities with
artificially depressed market value). |
The Employee and the Company jointly elect that the entire liability of
the Service Recipient to pay the Service Recipients Liability on the Taxable Event is hereby transferred to the Employee. The Employee understands that by [clicking the ACCEPT box on the [broker] screen] or by [signing the
Restricted Stock Unit Agreement] to accept the grant of the Restricted Stock Units he or she will become personally liable for the Service Recipients Liability covered by this Election. This Election is made in accordance with paragraph 3B(1)
of Schedule 1 to SSCBA.
4. |
Payment of the Service Recipients Liability |
4.1 |
The Employee hereby authorises the Company and/or the Service Recipient to collect the Service Recipients Liability from the Employee at any time after the Taxable Event: |
|
(i) |
by deduction from salary or any other payment payable to the Employee at any time on or after the date of the Taxable Event; and/or |
|
(ii) |
directly from the Employee by payment in cash or cleared funds; and/or |
|
(iii) |
by arranging, on behalf of the Employee, for the sale of some of the securities which the Employee is entitled to receive in respect of the Restricted Stock Units; and/or |
|
(iv) |
by any other means specified in the Restricted Stock Unit Agreement. |
4.2 |
The Company hereby reserves for itself and the Service Recipient the right to withhold the transfer of any securities in respect of the Restricted Stock Units to the Employee until full payment of the Service
Recipients Liability is received. |
4.3 |
The Company agrees to procure the remittance by the Service Recipient of the Service Recipients Liability to HM Revenue and Customs on behalf of the Employee within 14 days after the end of the UK tax month during
which the Taxable Event occurs (or within 17 days after the end of the UK tax month during which the Taxable Event occurs, if payments are made electronically). |
5.1 |
The Employee and the Company agree to be bound by the terms of this Election regardless of whether the Employee is transferred abroad or is not employed by the Service Recipient on the date on which the Service
Recipients Liability becomes due. |
5.2 |
Any reference in this Election to the Company and/or the Service Recipient shall include that entitys successors in title and assigns as permitted in accordance with the terms of the relevant Plan and relevant
Agreement. This Election will continue in effect in respect of any awards which replace the Restricted Stock Units in circumstances where section 483 of ITEPA applies. |
This Election will continue in effect until the earliest of the following:
|
(i) |
the Employee and the Company agree in writing that it should cease to have effect; |
|
(ii) |
the date the Company serves written notice on the Employee terminating its effect; |
|
(iii) |
the date HM Revenue and Customs withdraws approval of this Election; or |
|
(iv) |
after due payment of the Service Recipients Liability in respect of the entirety of the Restricted Stock Units to which this Election relates or could relate, such that the Election ceases to have effect in
accordance with its terms. |
Acceptance by the Employee
The Employee acknowledges that by [clicking the ACCEPT box on the [broker] screen] or by [signing the Restricted Stock Unit Agreement] to accept
the grant of the Restricted Stock Units, the Employee agrees to be bound by the terms of this Election.
Acceptance by the Company
The Company acknowledges that, by arranging for the scanned signature of an authorised representative to appear on this Election, the Company agrees to be
bound by the terms of this Election.
Signed for and on behalf of the Company
|
[Insert title of Signatory] |
SCHEDULE OF EMPLOYER COMPANIES
The Employers to which this Form of Election relates are:
[insert registered name of subsidiary]
Lancaster Way, Wingates
Industrial Park,
Registered Number: [insert]
Corporation
Tax District: [insert]
Westhoughton, Bolton,
Lancashire UK,
BL5 3XX
PAYE Reference: [insert]
[insert registered name
of subsidiary]
Frankland Road,
Registered Number: [insert]
Corporation Tax District: [insert]
Blagrove, Swindon,
Wiltshire, UK SN5 8YG
PAYE Reference: [insert]
[insert name and address any other UK subsidiaries].
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