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
May 6, 2008
Date of Report (Date of Earliest Event Reported)
ALLERGAN, INC.
(Exact Name of Registrant as Specified in its Charter)
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Delaware
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1-10269
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95-1622442
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(State of Incorporation)
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(Commission File Number)
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(IRS Employer
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Identification Number)
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2525 Dupont Drive
Irvine, California 92612
(Address of Principal Executive Offices) (Zip Code)
(714) 246-4500
(Registrant’s Telephone Number, Including Area Code)
N/A
(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 230.425)
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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))
TABLE OF CONTENTS
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain Officers.
On May 6, 2008, at the 2008 annual meeting of stockholders (the “2008 Annual Meeting”),
the stockholders of Allergan, Inc. (“Allergan”) approved the adoption of the Allergan, Inc. 2008
Incentive Award Plan (the “2008 Plan”) that provides for the grant of cash and equity awards to
employees and non-employee directors. Allergan’s Board of Directors (the “Board”) unanimously
approved the adoption of the 2008 Plan on January 28, 2008, subject to approval by Allergan’s
stockholders at the 2008 Annual Meeting. The 2008 Plan became effective immediately upon
stockholder approval.
A summary of the principal provisions of the 2008 Plan is set forth below.
Purpose of the 2008 Plan
The purpose of the 2008 Plan is to promote Allergan’s success and enhance its value by linking
the personal interests of Board members and employees to those of Allergan’s stockholders and by
providing such individuals with an incentive for outstanding performance. The 2008 Plan is further
intended to provide flexibility in Allergan’s ability to motivate, attract and retain the services
of Board members and employees upon whose judgment, interest and special effort Allergan depends.
The 2008 Plan succeeds the Allergan, Inc. 1989 Incentive Compensation Plan, the Allergan, Inc. 2001
Premium Priced Stock Option Plan, the Allergan, Inc. Employee Recognition Stock Award Plan and the
Allergan, Inc. 2003 Nonemployee Director Equity Incentive Plan, in each case, as amended from time
to time (the “Prior Plans”). No further awards will be made under the Prior Plans.
Administration
The 2008 Plan generally will be administered by the Board’s Corporate Governance Committee with respect to non-employee directors,
and the Board’s Organization and Compensation Committee with respect to all other awards. The administrator will have the power to establish
rules and regulations for the proper administration of the 2008 Plan, determine which participants
will receive awards and establish the other terms and conditions of the awards, consistent with the
terms of the 2008 Plan. The administrator may modify outstanding awards as provided in the 2008
Plan.
Shares Available and Award Limits
The aggregate number of shares of Allergan’s common stock,
par value $0.01 per share (the
“Common Stock”), that may be issued or transferred pursuant to awards under the 2008 Plan is
20,000,000 plus any shares of Common Stock that, as of the date of the 2008 Annual Meeting, are
subject to awards under the Prior Plans that are subsequently forfeited, cancelled, expire, settled
in cash or lapse unexercised and are not issued under the Prior Plans. No more than
25,000,000 shares of Common Stock may be issued upon the exercise of incentive stock options
granted under the 2008 Plan.
The number of shares of Common Stock available for issuance under the 2008 Plan will be
reduced by 1.4 shares for each share of Common Stock delivered in settlement of any “full value
award” granted under the 2008 Plan, which is any award other than a stock option, stock
appreciation right or other award for which the participant pays the intrinsic value (whether
directly or by forgoing a right to receive a payment from Allergan). In the event that a full
value award granted under the 2008 Plan expires or is cancelled, forfeited, settled in cash or
otherwise terminated before delivery of the shares subject to such award, the number of shares of
Common Stock available for issuance under the 2008 Plan will be increased by 1.4 shares for each
share of Common Stock subject to such award.
The maximum number of shares which may be subject to awards granted
under the 2008 Plan to any individual during any calendar year may not exceed 1,500,000 shares of
Common Stock. The maximum aggregate cash amount that may become payable pursuant to all
performance-based awards that may be granted to any individual during any calendar year is
$5,000,000.
Awards
The 2008 Plan provides that the administrator may grant or issue stock options, stock
appreciation rights, restricted stock, restricted stock units, deferred stock, dividend
equivalents, performance awards and stock payments, or any combination thereof, to eligible
participants. Each award will be evidenced by a separate agreement with the person receiving the
award and will indicate the type, terms and conditions of the award.
The exercise price of a stock option and the base price of a stock appreciation right shall
not be less than the fair market value of Common Stock on the date of grant. No stock option shall
be exercisable later than ten (10) years after the date it is granted. In general, full value
awards are required to vest over a period of not less than (i) three years from the grant date for
those full value awards that vest based solely on employment with Allergan, or (ii) one year
following the commencement of the performance period for full value awards that vest based upon the
attainment of performance goals.
The administrator is authorized to grant awards intended to qualify as “performance-based
compensation” under Section 162(m) of the Internal Revenue Code of 1986, as amended (the “Code”).
The 2008 Plan enumerates certain performance criteria that may be used in granting such awards.
Automatic Grants to Non-Employee Directors
Beginning on the date of the 2008 Annual Meeting, each non-employee director will
automatically receive, effective as of the date of each annual meeting, an option to purchase
11,400 shares of Common Stock; provided, that the non-employee director continues to serve as a
member of the Board as of such date. Automatic annual options granted to non-employee directors
will be non-qualified stock options. Unless otherwise specified by the administrator prior to the
date the annual option is granted, each annual option will vest and become exercisable upon the
earlier of the first anniversary of the grant date of such annual option or the first annual
meeting following the grant date of such annual option at which one or more members of the Board
are standing for re-election. However, in no event will a non-employee director’s automatic annual
option grant vest and become exercisable for any additional shares of Common Stock following his or
her termination of service as a director, unless otherwise provided in the award notice or by
action of the administrator on or after the grant date of such annual option.
Also beginning on the date of the 2008 Annual Meeting, each non-employee director who is
elected, re-elected or appointed to the Board during the term of the 2008 Plan will automatically
be granted a restricted stock award covering 14,400 shares of restricted stock. In the event an
individual’s initial appointment or election to be a non-employee director occurs at any time other
than an annual meeting at which members of the class of directors to which such individual becomes
a member are standing for re-election, such individual will instead automatically receive a
restricted stock award covering 14,400 shares less 4,800 shares for each calendar year ended since
the last annual meeting at which members of the class of directors to which such individual is
elected were standing for re-election. Each automatically granted restricted stock award will be
granted without cost to the non-employee director and will initially be subject to forfeiture upon
the non-employee director’s termination of service on the Board. The forfeiture restrictions will
lapse with respect to, and the non-employee director will become vested in, 4,800 shares of common
stock subject to each restricted stock award upon the earlier of each anniversary of the grant date
of such restricted stock award or the annual meeting held during such calendar year at which one or
more members of the Board are standing for re-election. However, a non-employee director will not
vest in any additional shares of Common Stock following his or her termination of service as a
director, unless otherwise provided in the award notice or by action of the administrator on or
after the grant date of such restricted stock award.
Amendment and Termination
The administrator may, with approval of the Board, terminate, amend or modify the 2008 Plan at
any time, subject to stockholder approval to the extent required by applicable law or regulation or
the listing standards of the NYSE (or any other market or stock exchange on which the Common
Stock is at the time primarily traded). Additionally, stockholder approval will be specifically
required to increase the maximum number of shares of Common Stock that may be issued under the 2008
Plan, materially change the eligibility requirements, permit the administrator to extend the
exercise period for an option beyond ten years from the date of grant or permit the administrator
to grant stock options with an exercise price that is below fair market value on the date of grant.
Except with respect to amendments that are intended to cause awards to comply with or be
exempt from Section 409A of the Code, no amendment, modification or termination of the 2008 Plan
will adversely affect in any material way any award previously granted pursuant to the 2008 Plan
without the participant’s consent. Additionally, in no event may an award be granted pursuant to
the 2008 Plan on or after May 6, 2018.
Section 162(m) Compliance
The 2008 Plan is designed to permit Allergan to make cash and equity based awards intended to
qualify as “performance-based compensation” under Section 162(m) of the Code. Under
Section 162(m), income tax
deductions of publicly-held corporations may be limited to the extent total compensation (including
base salary, annual bonus, stock option exercises and non-qualified benefits paid) for certain
executive officers exceeds $1,000,000 in any one year. The Section 162(m) deduction limit,
however, does not apply to certain “qualified performance-based compensation.” In the event that
Allergan issues awards that satisfy the “qualified performance-based compensation” exception, the
remuneration attributable to those awards should not be subject to the $1,000,000 deduction limit.
Miscellaneous
The 2008 Plan also contains provisions with respect to payment of purchase price, vesting and
expiration of awards, treatment of awards upon a change of control of Allergan, adjustments for
stock splits, recapitalizations and mergers, transferability of awards and tax withholding
requirements. Various other terms, conditions and limitations apply, as further described in the
2008 Plan.
The 2008 Plan is described in detail in Allergan’s proxy statement on Schedule 14A filed with
the Securities and Exchange Commission on March 20, 2008 in connection with the 2008 Annual
Meeting. The descriptions of the 2008 Plan set forth herein and in the proxy statement do not
purport to be complete and are qualified entirely by reference to the full text of the 2008 Plan, a
copy of which is attached hereto as Exhibit 10.1 and incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
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Exhibits:
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Description of Document
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10.1
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Allergan, Inc. 2008 Incentive Award Plan (incorporated by reference to Appendix A
to Allergan, Inc.’s Proxy Statement filed on March 20, 2008)
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10.2
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Sub-Plan for Restricted Stock Units for Employees in France
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10.3
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Sub-Plan for Stock Options for Employees in France
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10.4
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Form Non-Qualified Stock Option Grant Notice for Non-Employee Directors
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10.5
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Form Non-Qualified Stock Option Grant Notice for Employees
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10.6
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Addendum to Form Non-Qualified Stock Option Grant Notice for Employees in China
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10.7
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Addendum to Form Non-Qualified Stock Option Grant Notice for Employees in France
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10.8
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Addendum to Form Non-Qualified Stock Option Grant Notice for Employees in Italy
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10.9
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Addendum to Form Non-Qualified Stock Option Grant Notice for Employees in Thailand
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10.10
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Form Restricted Stock Award Grant Notice for Non-Employee Directors
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10.11
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Form Restricted Stock Award Grant Notice for Employees
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10.12
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Form Restricted Stock Award Grant Notice for Employees (Management Bonus Plan)
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10.13
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Form Restricted Stock Unit Award Grant Notice for Employees
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10.14
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Form Restricted Stock Unit Award Grant Notice for Employees (Management Bonus Plan)
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10.15
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Addendum to Form Restricted Stock Unit Award Grant Notice for Employees in France
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SIGNATURES
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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ALLERGAN, INC.
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Date: May 6, 2008
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By:
Name:
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/s/ Matthew J. Maletta
Matthew J. Maletta
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Title:
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Vice President,
Associate General Counsel and Assistant Secretary
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EXHIBIT INDEX
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Exhibits:
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Description of Document
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10.1
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Allergan, Inc. 2008 Incentive Award Plan (incorporated by reference to Appendix A
to Allergan, Inc.’s Proxy Statement filed on March 20, 2008)
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10.2
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Sub-Plan for Restricted Stock Units for Employees in France
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10.3
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Sub-Plan for Stock Options for Employees in France
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10.4
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Form Non-Qualified Stock Option Grant Notice for Non-Employee Directors
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10.5
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Form Non-Qualified Stock Option Grant Notice for Employees
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10.6
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Addendum to Form Non-Qualified Stock Option Grant Notice for Employees in China
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10.7
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Addendum to Form Non-Qualified Stock Option Grant Notice for Employees in France
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10.8
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Addendum to Form Non-Qualified Stock Option Grant Notice for Employees in Italy
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10.9
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Addendum to Form Non-Qualified Stock Option Grant Notice for Employees in Thailand
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10.10
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Form Restricted Stock Award Grant Notice for Non-Employee Directors
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10.11
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Form Restricted Stock Award Grant Notice for Employees
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10.12
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Form Restricted Stock Award Grant Notice for Employees (Management Bonus Plan)
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10.13
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Form Restricted Stock Unit Award Grant Notice for Employees
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10.14
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Form Restricted Stock Unit Award Grant Notice for Employees (Management Bonus Plan)
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10.15
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Addendum to Form Restricted Stock Unit Award Grant Notice for Employees in France
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Exhibit 10.4
NON-EMPLOYEE DIRECTOR
NON-QUALIFIED STOCK OPTION GRANT NOTICE
Pursuant to the Allergan, Inc. 2008 Incentive Award Plan (the “
Plan
”), Allergan, Inc. (the
“
Company
”) hereby grants to the individual listed below (“
Participant
”) an option to purchase the
number of shares of the Company’s common stock, par value US$0.01 per share (“
Stock
”), set forth
below (the “
Shares
”) at the price set forth below (the “
Option
”). The Option is subject to all of
the terms and conditions set forth herein, in the Stock Option Agreement attached hereto as
Exhibit A
(the “
Stock Option Agreement
”) and in the Plan, each of which is incorporated
herein by reference. Unless otherwise defined herein, the terms defined in the Plan shall have the
same defined meanings in this Non-Qualified Stock Option Grant Notice (the “
Grant Notice
”).
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Participant:
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Grant Date:
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Exercise Price per Share:
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US$
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Total Exercise Price:
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US$
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Total Number of Shares
Subject to the Option:
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shares
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Expiration Date:
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Type of Option:
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Non-Qualified Stock Option
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Vesting Schedule:
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Subject to the terms and conditions of the Plan, this
Grant Notice and the Stock Option Agreement, the Option
shall vest and become exercisable for all of the shares
of Stock subject to the Option upon the earlier of:
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(i)
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the first anniversary of the Grant
Date, or
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(ii)
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the next annual meeting at
which one or more members of the Board are standing for
re-election.
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In no event, however, shall the Option vest and become exercisable for any
additional shares of Stock following Participant’s termination of service as
a Director of the Company, except as may otherwise be provided by the
Administrator or as set forth in a written agreement between the Company and
Participant.
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By his or her signature below, Participant agrees to be bound by the terms and conditions of
the Plan, the Stock Option Agreement and this Grant Notice. Participant has reviewed the Stock
Option Agreement, the Plan and this Grant Notice in their entirety, has had an opportunity to
obtain the advice of counsel prior to executing this Grant Notice and fully understands all
provisions of this Grant Notice, the Stock Option Agreement and the Plan. Participant hereby
agrees to accept as binding, conclusive and final all decisions and interpretations of the
Administrator arising under the Plan, this Grant Notice or the Stock Option Agreement or relating
to the Option.
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ALLERGAN, INC.:
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PARTICIPANT:
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By:
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By:
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Print Name:
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Print Name:
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Title:
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Address: 2525 Dupont Drive
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Address:
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Irvine, California 92612
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Attachments:
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Stock Option Agreement (Exhibit A)
Allergan, Inc. 2008 Incentive Award Plan (Exhibit B)
Allergan, Inc. 2008 Incentive Award Plan Prospectus (Exhibit C)
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EXHIBIT A TO THE NON-QUALIFIED STOCK OPTION GRANT NOTICE
TERMS AND CONDITIONS
May 2008
Pursuant to the Non-qualified Stock Option Grant Notice (the “
Grant Notice
”) to which this
Non-qualified Stock Option Agreement (this “
Agreement
”) is attached, Allergan, Inc. (the “
Company
”)
granted to the participant (“
Participant
”) specified on the Grant Notice an option under the
Allergan, Inc. 2008 Incentive Award Plan (the “
Plan
”) to purchase the number of shares of the
Company’s common stock, par value US$0.01 per share (“
Stock
”), indicated in the Grant Notice,
subject to the terms and conditions of the Grant Notice, this Agreement and the Plan.
I. GENERAL
1.1.
Defined Terms
. Capitalized terms not specifically defined herein shall have the
meanings specified in the Grant Notice or, if not defined therein, the Plan.
1.2.
Incorporation of Terms of Plan
. The Option (as defined below) is also subject to
the terms and conditions of the Plan, which are incorporated herein by reference.
II. GRANT OF OPTION
2.1.
Grant of Option
. In consideration of Participant’s past and/or continued service
to the Company or its Subsidiaries and for other good and valuable consideration, effective as of
the grant date specified on the Grant Notice (the “
Grant Date
”), the Company irrevocably grants to
Participant an option (the “
Option
”) to purchase any part or all of the Shares specified on the
Grant Notice, subject to the terms and conditions set forth in the Plan and this Agreement.
2.2.
Exercise Price
. The exercise price payable for the Shares subject to the Option
shall be as set forth in the Grant Notice, without commission or other charge.
III. PERIOD OF EXERCISABILITY
3.1.
Commencement of Exercisability.
(a) Subject to Sections 3.3 and 3.4, the Option shall become vested and exercisable in such
amounts and at such times as are set forth in the Grant Notice and Section 3.2 below, or at such
earlier times as are set forth in a written agreement between the Company and Participant.
(b) The unvested and unexercisable portion of the Option shall terminate immediately upon
Participant’s termination of service as a Director of the Company.
3.2.
Acceleration of Exercisability
. Notwithstanding anything to the contrary in
Section 3.1 or the Grant Notice, the Option shall become fully vested and exercisable on an
accelerated basis under the following circumstances:
(a) if Participant’s termination of service as a Director of the Company occurs by reason of
Participant’s death or permanent and total disability (within the meaning of Section 22(e)(3) of
the Internal Revenue Code of 1986, as amended), then the Option shall become fully vested and
exercisable immediately prior to Participant’s termination of service as a Director of the Company;
and
(b) if a Change in Control occurs prior to Participant’s termination of service as a Director
of the Company, then the Option shall become fully vested and exercisable immediately prior to the
occurrence of such Change in Control.
3.3.
Duration of Exercisability
. The Option shall become vested and exercisable for
the shares of Stock in one or more installments as specified in Section 3.1, subject to
acceleration as provided in Section 3.2 or the Plan, or any other written agreement between the
Company and Participant. Each such installment that becomes vested and exercisable shall remain
vested and exercisable until it becomes unexercisable under Section 3.4.
3.4.
Expiration of Option
. The Option shall terminate and shall not be exercised
after the first to occur of the following events:
(a) the expiration of ten years from the Grant Date;
(b) except as otherwise provided in a written agreement between Participant and the Company,
the expiration of three months following the date of Participant’s termination of service as a
Director of the Company by reason of voluntary resignation or removal for cause; or
(c) except as otherwise provided in a written agreement between Participant and the Company,
the expiration of twelve months following the date of Participant’s termination of service as a
Director of the Company for any reason other than voluntary resignation or removal for cause.
IV. EXERCISE OF OPTION
4.1.
Person Eligible to Exercise
. Except as provided in Sections 5.2(b) and 5.2(c),
during Participant’s lifetime, only Participant may exercise the Option or any portion thereof.
After Participant’s death, any exercisable portion of the Option may, prior to the time when the
Option becomes unexercisable under Section 3.4, be exercised by Participant’s personal
representative or by any person empowered to do so under Participant’s will or under the then
applicable laws of descent and distribution.
4.2.
Partial Exercise
. Any exercisable portion of the Option or the entire Option, if
then wholly exercisable, may be exercised in whole or in part at any time prior to the time when
the Option or portion thereof becomes unexercisable under Section 3.4.
4.3.
Manner of Exercise
. The Option, or any exercisable portion thereof, may be
exercised solely by delivery to the Secretary of the Company (or any third party administrator or
other person or entity designated by the Company) of all of the following prior to the time when
the Option or such portion thereof becomes unexercisable under Section 3.4:
(a) An exercise notice in a form specified by the Administrator, stating that Participant is
electing to exercise the Option or a portion thereof, such notice complying with all applicable
rules established by the Administrator;
(b) The receipt by the Company of full payment for the shares of Stock with respect to which
the Option or portion thereof is exercised, including payment of any applicable withholding tax,
which may be in one or more of the forms of consideration permitted under Section 4.4; and
(c) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by
any person or persons other than Participant, appropriate proof of the right of such person or
persons to exercise the Option.
Notwithstanding the foregoing, the Company shall have the right to specify all conditions of the
manner of exercise, which conditions may vary by country and which may be subject to change from
time to time.
4.4.
Method of Payment
. Payment of the exercise price shall be by any of the
following, or a combination thereof, at Participant’s election:
(a) cash;
(b) check;
(c) to the extent permitted under applicable laws, delivery of a notice that Participant has
placed a market sell order with a broker with respect to shares of Stock then issuable upon
exercise of the Option, and that the broker has been directed to pay a sufficient portion of the
net proceeds of the sale to the Company in satisfaction of the aggregate exercise price;
provided
,
that payment of such proceeds is then made to the Company upon settlement of such sale;
(d) through the delivery of shares of Stock which have been owned by Participant for at least
six (6) months, duly endorsed for transfer to the Company with a Fair Market Value on the date of
exercise equal to the aggregate exercise price of the Option or exercised portion thereof;
(e) to the extent permitted by the Administrator, through the delivery of other lawful
consideration; or
(f) any combination of the foregoing.
4.5.
Conditions to Issuance of Stock Certificates
. The shares of Stock deliverable
upon the exercise of the Option, or any portion thereof, may be either previously authorized but
unissued shares or issued shares which have then been reacquired by the Company. Such shares shall
be fully paid and nonassessable. The Company shall not be required to issue or deliver any shares
of Stock purchased upon the exercise of the Option or portion thereof prior to fulfillment of all
of the following conditions:
(a) The admission of such shares to listing on all stock exchanges on which such Stock is then
listed;
(b) The completion of any registration or other qualification of such shares under any state
or federal law or under rulings or regulations of the Securities and Exchange Commission or of any
other governmental regulatory body, which the Administrator shall, in its sole and absolute
discretion, deem necessary or advisable;
(c) The obtaining of any approval or other clearance from any state or federal governmental
agency which the Administrator shall, in its sole and absolute discretion, determine to be
necessary or advisable;
(d) The receipt by the Company of full payment for such shares, including payment of any
applicable withholding tax, which may be in one or more of the forms of consideration permitted
under Section 4.4; and
(e) The lapse of such reasonable period of time following the exercise of the Option as the
Administrator may from time to time establish for reasons of administrative convenience.
4.6.
Rights as Stockholder
. The holder of the Option shall not be, nor have any of
the rights or privileges of, a stockholder of the Company in respect of any shares purchasable upon
the exercise of any part of the Option unless and until such shares shall have been issued by the
Company to such holder (as evidenced by the appropriate entry on the books of the Company or of a
duly authorized transfer agent of the Company). No adjustment will be made for a dividend or other
right for which the record date is prior to the date the shares are issued, except as provided in
Section 11.1 of the Plan.
V. OTHER PROVISIONS
5.1.
Administration
. The Administrator shall have the power to interpret the Plan and
this Agreement and to adopt such rules for the administration, interpretation and application of
the Plan as are consistent therewith and to interpret, amend or revoke any such rules. All actions
taken and all interpretations and determinations made by the Administrator in good faith shall be
binding, conclusive and final upon Participant, the Company and all other interested persons. No
member of the Administrator shall be personally liable for any action, determination or
interpretation made in good faith with respect to the Plan, this Agreement or the Option.
5.2.
Limited Transferability
.
(a) Subject to Section 5.2(b), the Option may not be sold, pledged, assigned or transferred in
any manner other than by will or the laws of descent and distribution. Neither the Option nor any
interest or right therein or part thereof shall be liable for Participant’s debts, contracts or
engagements or the debts, contracts or engagements of Participant’s successors in interest or shall
be subject to disposition by transfer, alienation, anticipation, pledge, encumbrance, assignment or
any other means whether such disposition be voluntary or involuntary or by operation of law by
judgment, levy, attachment, garnishment or any other legal or equitable proceedings (including
bankruptcy), and any attempted disposition thereof shall be null and void and of no effect, except
to the extent that such disposition is permitted by the preceding sentence.
(b) Notwithstanding any other provision of this Agreement, with the consent of the
Administrator, the Option may be transferred to one or more “Permitted Transferees” (as defined
below), subject to the following terms and conditions:
(i) the Option shall not be assignable or transferable by the Permitted Transferee
other than by will or the laws of descent and distribution;
(ii) the Option shall continue to be subject to all the terms and conditions of the
Plan and this Agreement, as amended from time to time, as applicable to Participant (other
than the ability to further transfer the Option); and
(iii) Participant and the Permitted Transferee execute any and all documents requested
by the Company, including, without limitation documents to (A) confirm the status of the
transferee as a Permitted Transferee, (B) satisfy any requirements for an exemption for the
transfer under applicable federal and state securities laws, and (C) evidence the transfer.
“
Permitted Transferee
” means, with respect to Participant, any child, stepchild, grandchild,
parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law,
father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive
relationships, any person sharing Participant’s household (other than a tenant or employee), a
trust in which these persons have more than 50% of the beneficial interest, any other entity in
which these persons (or Participant) own more than 50% of the voting interests, or any other
transferee specifically approved by the Administrator.
(c) Unless transferred to a Permitted Transferee in accordance with Section 5.2(b), during the
lifetime of Participant, only Participant may exercise the Option or any portion thereof. Subject
to such conditions and procedures as the Administrator may require, a Permitted Transferee may
exercise the Option or any portion thereof during Participant’s lifetime. After the death of
Participant, any exercisable portion of the Option may, prior to the time when the Option becomes
unexercisable under Section 3.4, be exercised by Participant’s personal representative or by any
person empowered to do so under the deceased Participant’s will or under the then applicable laws
of descent and distribution.
5.3.
No Right to Continue in Service
. Nothing in the Plan or this Agreement shall
confer upon Participant any right to continue in service as a member of the Board of Directors of
the Company or any Subsidiary or shall interfere with or restrict in any way the rights of the
Company and its stockholders (or of a Subsidiary or its stockholders, as the case may be), which
rights are hereby expressly reserved, to discharge or terminate Participant’s services at any time
for any reason whatsoever, with or without cause.
5.4.
Shares to Be Reserved
. The Company shall at all times during the term of the
Option reserve and keep available such number of shares of Stock as will be sufficient to satisfy
the requirements of this Agreement.
5.5.
Notices
. All notices or other communications required or permitted hereunder
shall be in writing, and shall be deemed duly given only when delivered in person or when sent by
certified mail (return receipt requested) and deposited (with postage prepaid) in a post office or
branch post office regularly maintained by the United States Postal Service, addressed as follows:
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If to the Company:
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Allergan, Inc.
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Attention: General Counsel
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2525 Dupont Drive
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Irvine, California 92612
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If to Participant:
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To Participant’s most recent
address then on file in the Company’s personnel records.
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By a notice given pursuant to this Section 5.5, either party may thereafter designate a different
address for notices to be given to that party. Any notice which is required to be given to
Participant shall, if Participant is then deceased, be given to the person entitled to exercise the
Option pursuant to Section 4.1 by written notice under this Section 5.5.
5.6.
Titles
. Titles are provided herein for convenience only and are not to serve as
a basis for interpretation or construction of this Agreement.
5.7.
Governing Law; Severability
. This Agreement shall be administered, interpreted
and enforced under the laws of the State of Delaware, without regard to conflicts of law principles
thereof. Should any provision of this Agreement be determined by a court of law to be illegal or
unenforceable, the other provisions shall nevertheless remain effective and shall remain
enforceable.
5.8.
Conformity to Securities Laws
. Participant acknowledges that the Plan is
intended to conform to the extent necessary with all provisions of the Securities Act and the
Exchange Act and any and all regulations and rules promulgated by the Securities and Exchange
Commission thereunder, and state and foreign securities laws and regulations. Notwithstanding
anything herein to the contrary, the Plan shall be administered, and the Option is granted and may
be exercised, only in such a manner as to conform to such laws, rules and regulations. To the
extent permitted by applicable law, the Plan and this
Agreement shall be deemed amended to the extent necessary to conform to such laws, rules and
regulations.
5.9.
Amendments
. To the extent permitted by the Plan, this Agreement may be wholly or
partially amended or otherwise modified, suspended or terminated at any time or from time to time
by the Administrator;
provided
, that, except as may otherwise be provided by the Plan, no
termination, amendment, or modification of this Agreement shall adversely affect the Option in any
material way without Participant’s prior written consent. This Agreement may not be modified,
suspended or terminated except by an instrument in writing signed by a duly authorized
representative of the Company and, if Participant’s consent is required, by Participant or such
other person as may be permitted to exercise the Option pursuant to Section 4.1.
5.10.
Successors and Assigns
. The Company may assign any of its rights with respect
to the Option to single or multiple assignees, and this Agreement shall inure to the benefit of the
successors and assigns of the Company. Subject to the restrictions on transfer set forth in
Section 5.2, this Agreement shall be binding upon Participant and Participant’s heirs, executors,
administrators, successors and assigns.
5.11.
Section 16
. Notwithstanding any other provision of the Plan or this Agreement,
the Option and this Agreement shall be subject to any additional limitations set forth in any
applicable exemptive rule under Section 16 of the Exchange Act (including any amendment to Rule
16b-3 of the Exchange Act) that are requirements for the application of such exemptive rule. To
the extent permitted by applicable law, this Agreement shall be deemed amended to the extent
necessary to conform to such applicable exemptive rule.
5.12.
Entire Agreement
. The Plan and this Agreement constitute the entire agreement
of the parties and supersede in their entirety all prior undertakings and agreements of the Company
and Participant with respect to the subject matter hereof.
EXHIBIT B TO THE NON-QUALIFIED STOCK OPTION GRANT NOTICE
ALLERGAN, INC. 2008 INCENTIVE AWARD PLAN
EXHIBIT C TO THE NON-QUALIFIED STOCK OPTION GRANT NOTICE
ALLERGAN, INC. 2008 INCENTIVE AWARD PLAN PROSPECTUS
Exhibit 10.5
NON-QUALIFIED STOCK OPTION GRANT NOTICE
Pursuant to the Allergan, Inc. 2008 Incentive Award Plan (the “
Plan
”), Allergan, Inc. (the
“
Company
”) hereby grants to the employee listed below (“
Participant
”), an option to purchase the
number of shares of the Company’s common stock, par value US$0.01 per share (“
Stock
”), set forth
below (the “
Shares
”) at the price set forth below (the “
Option
”). The Option is subject to all of
the terms and conditions set forth herein, in the Terms and Conditions attached hereto as
Exhibit A
(the “
Terms
”) and in the Plan, each of which is incorporated herein by reference.
Unless otherwise defined herein, the terms defined in the Plan shall have the same defined
meanings in this Non-Qualified Stock Option Grant Notice (the “
Grant Notice
”).
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Participant:
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Grant Date:
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Exercise Price per Share:
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US $
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Total Exercise Price:
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US $
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Total Number of Shares
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Subject to the Option:
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shares
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Expiration Date:
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Type of Option:
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Non-Qualified Stock Option
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Vesting Schedule:
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Subject to the terms and conditions of the Plan, this
Grant Notice and the Terms, the Option shall vest and
become exercisable as follows:
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[To be specified in individual agreements]
Except as provided in Section 3.2(a) of the Terms, as otherwise provided by
the Administrator or as set forth in a written agreement between the Company
and Participant, in no event shall the Option vest and become exercisable
for any additional shares of Stock following Participant’s Termination of
Employment.
All decisions and interpretations of the Administrator arising under the Plan, this Grant
Notice or the Terms or relating to the Option shall be binding, conclusive and final.
ALLERGAN, INC.
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By:
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Print Name:
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Title:
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Address:
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2525 Dupont Drive
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Irvine, California 92612
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Attachments:
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Terms and Conditions (
Exhibit A
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Allergan, Inc. 2008 Incentive Award Plan (
Exhibit B
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Allergan, Inc. 2008 Incentive Award Plan Prospectus (
Exhibit C
)
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EXHIBIT A TO THE NON-QUALIFIED STOCK OPTION GRANT NOTICE
TERMS AND CONDITIONS
May 2008
Pursuant to the Non-qualified Stock Option Grant Notice (the “
Grant Notice
”) to which these
Terms and Conditions (the “
Terms
”) are attached, Allergan, Inc. (the “
Company
”) granted to the
participant (“
Participant
”) specified on the Grant Notice an option under the Allergan, Inc. 2008
Incentive Award Plan (the “
Plan
”) to purchase the number of shares of the Company’s common stock,
par value US$0.01 per share (“
Stock
”), indicated in the Grant Notice, subject to the terms and
conditions of the Grant Notice, the Terms and the Plan.
1.1.
Defined Terms
. Wherever the following terms are used herein they shall have the
meanings specified below, unless the context clearly indicates otherwise. Capitalized terms not
specifically defined herein shall have the meanings specified in the Grant Notice or, if not
defined therein, the Plan.
“
Job Elimination
” means Participant’s Termination of Employment by the Company or any
Subsidiary under circumstances satisfying each of the following conditions, as determined in the
sole and absolute discretion of the Company: (a) Participant’s Termination of Employment results in
or is part of a net headcount reduction of one or more employees; (b) Participant is not offered a
comparable position with the Company, a subsidiary or a successor entity or an affiliate of the
Company or a subsidiary; and (c) the Company provides written notice to Participant prior to his or
her Termination of Employment that it has determined Employee’s Termination of Employment is a “job
elimination.”
“
Termination of Employment
” shall mean the time when the employee-employer relationship
between Participant and the Company or any Subsidiary is terminated for any reason, with or without
cause, including, without limitation, a termination by resignation, discharge, death, disability or
retirement, but excluding terminations where there is a simultaneous reemployment or continuing
employment of Participant by the Company or any Subsidiary. The Administrator, in its discretion,
shall determine the effect of all matters and questions relating to Participant’s Termination of
Employment, including, without limitation, the question of whether such Termination of Employment
resulted from a discharge for cause. For purposes of the Terms, Participant’s employee-employer
relationship shall be deemed to be terminated in the event that the Subsidiary employing
Participant ceases to remain a Subsidiary following any merger, sale of stock or other corporate
transaction or event (including, without limitation, a spin-off).
1.2.
Incorporation of Terms of Plan
. The Option is also subject to the terms and
conditions of the Plan, which are incorporated herein by reference.
2.1.
Grant of Option
. In consideration of Participant’s past and/or continued
employment with or service to the Company or its Subsidiaries and for other good and valuable
consideration, effective as of the grant date specified on the Grant Notice (the “
Grant Date
”), the
Company irrevocably grants to Participant an option (the “
Option
”) to purchase any part or all of
the Shares specified on the Grant Notice, subject to the terms and conditions set forth in the Plan
and the Terms.
2.2.
Exercise Price
. The exercise price payable for the Shares subject to the Option
shall be as set forth in the Grant Notice, without commission or other charge.
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III.
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PERIOD OF EXERCISABILITY
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3.1.
Commencement of Exercisability
.
(a) Subject to Sections 3.3 and 3.4, the Option shall become vested and exercisable in such
amounts and at such times as are set forth in the Grant Notice and Section 3.2 below, or at such
earlier times as are set forth in a written agreement between the Company and Participant.
(b) Except as provided in Section 3.2(a) below, as otherwise provided by the Administrator or
as set forth in a written agreement between the Company and Participant, the unvested and
unexercisable portion of the Option shall terminate immediately upon Participant’s Termination of
Employment.
3.2.
Acceleration of Exercisability
. Notwithstanding anything to the contrary in
Section 3.1 or the Grant Notice, the Option shall become fully vested and exercisable on an
accelerated basis under the following circumstances:
(a) if Participant’s Termination of Employment occurs by reason of Participant’s Job
Elimination and Participant executes and delivers, and does not revoke, a general waiver and
release of all claims against the Company and its subsidiaries and the employees, directors, agents
and affiliates of the Company and its subsidiaries, in a form acceptable to the Company in its sole
and absolute discretion, then the Option shall become fully vested and exercisable upon the date
such general waiver and release of all claims becomes effective and irrevocable;
provided
, that
such general waiver and release of all claims becomes effective and irrevocable prior to the
expiration of the Option pursuant to Section 3.4 below or such earlier date as may be specified by
the Company;
(b) if Participant’s Termination of Employment occurs by reason of Participant’s death or
permanent and total disability (within the meaning of Section 22(e)(3) of the Internal Revenue Code
of 1986, as amended (the “
Code
”)), then the Option shall become fully vested and exercisable
immediately prior to Participant’s Termination of Employment; and
(c) if a Change in Control occurs prior to Participant’s Termination of Employment, then the
Option shall become fully vested and exercisable immediately prior to the occurrence of such Change
in Control.
3.3.
Duration of Exercisability
. The Option shall become vested and exercisable for
the shares of Stock in one or more installments as specified in Section 3.1, subject to
acceleration as provided in Section 3.2 or the Plan, or any other written agreement between the
Company and Participant. Each such installment that becomes vested and exercisable shall remain
vested and exercisable until it becomes unexercisable under Section 3.4.
3.4.
Expiration of Option
. The Option shall terminate and shall not be exercised
after the first to occur of the following events:
(a) the expiration of ten years from the Grant Date;
(b) except as otherwise provided in a written agreement between Participant and the Company,
the expiration of three months following the date of Participant’s Termination of Employment,
A-2
unless such termination occurs by reason of Participant’s death, permanent and total
disability (within the meaning of Code Section 22(e)(3)) or voluntary Termination of Employment on
or after Participant’s Normal Retirement Eligibility Date or Participant’s discharge for Cause (as
defined below);
(c) except as otherwise provided in a written agreement between Participant and the Company,
the expiration of thirty-six months following the date of Participant’s voluntary Termination of
Employment on or after Participant’s Normal Retirement Eligibility Date;
(d) except as otherwise provided in a written agreement between Participant and the Company,
the expiration of twelve months following the date of Participant’s Termination of Employment by
reason of Participant’s death or permanent and total disability (within the meaning of Code Section
22(e)(3)); or
(e) except as otherwise provided in a written agreement between Participant and the Company,
the date of Participant’s Termination of Employment by the Company or any Subsidiary by reason of
Participant’s discharge for Cause.
For purposes of this Section 3.4, “Cause” means any conduct set forth on the Grant Date in the
Company’s employee handbook or Management Practices and Guidelines (or any successor thereto)
justifying immediate termination without the benefit of a counseling review or severance pay.
4.1.
Person Eligible to Exercise
. Except as provided in Sections 5.2(b) and 5.2(c),
during Participant’s lifetime, only Participant may exercise the Option or any portion thereof.
After Participant’s death, any exercisable portion of the Option may, prior to the time when the
Option becomes unexercisable under Section 3.4, be exercised by Participant’s personal
representative or by any person empowered to do so under Participant’s will or under the then
applicable laws of descent and distribution.
4.2.
Partial Exercise
. Any exercisable portion of the Option or the entire Option, if
then wholly exercisable, may be exercised in whole or in part at any time prior to the time when
the Option or portion thereof becomes unexercisable under Section 3.4.
4.3.
Manner of Exercise
. The Option, or any exercisable portion thereof, may be
exercised solely by delivery to the Secretary of the Company (or any third party administrator or
other person or entity designated by the Company) of all of the following prior to the time when
the Option or such portion thereof becomes unexercisable under Section 3.4:
(a) An exercise notice in a form specified by the Administrator, stating that Participant is
electing to exercise the Option or a portion thereof, such notice complying with all applicable
rules established by the Administrator;
(b) The receipt by the Company of full payment for the shares of Stock with respect to which
the Option or portion thereof is exercised, including payment of any applicable withholding tax,
which may be in one or more of the forms of consideration permitted under Section 4.4; and
(c) In the event the Option or portion thereof shall be exercised pursuant to Section 4.1 by
any person or persons other than Participant, appropriate proof of the right of such person or
persons to exercise the Option.
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Notwithstanding the foregoing, the Company shall have the right to specify all conditions of the
manner of exercise, which conditions may vary by country and which may be subject to change from
time to time.
4.4.
Method of Payment
. Payment of the exercise price shall be by any of the
following, or a combination thereof, at Participant’s election:
(a) cash;
(b) check;
(c) to the extent permitted under applicable laws, delivery of a notice that Participant has
placed a market sell order with a broker with respect to shares of Stock then issuable upon
exercise of the Option, and that the broker has been directed to pay a sufficient portion of the
net proceeds of the sale to the Company in satisfaction of the aggregate exercise price;
provided
,
that payment of such proceeds is then made to the Company upon settlement of such sale;
(d) through the delivery of shares of Stock which have been owned by Participant for at least
six (6) months, duly endorsed for transfer to the Company with a Fair Market Value on the date of
exercise equal to the aggregate exercise price of the Option or exercised portion thereof;
(e) to the extent permitted by the Administrator, through the delivery of other lawful
consideration; or
(f) any combination of the foregoing.
4.5.
Conditions to Issuance of Stock Certificates
. The shares of Stock deliverable
upon the exercise of the Option, or any portion thereof, may be either previously authorized but
unissued shares or issued shares which have then been reacquired by the Company. Such shares shall
be fully paid and nonassessable. The Company shall not be required to issue or deliver any shares
of Stock purchased upon the exercise of the Option or portion thereof prior to fulfillment of all
of the following conditions:
(a) The admission of such shares to listing on all stock exchanges on which such Stock is then
listed;
(b) The completion of any registration or other qualification of such shares under any state
or federal law or under rulings or regulations of the Securities and Exchange Commission or of any
other governmental regulatory body, which the Administrator shall, in its sole and absolute
discretion, deem necessary or advisable;
(c) The obtaining of any approval or other clearance from any state or federal governmental
agency which the Administrator shall, in its sole and absolute discretion, determine to be
necessary or advisable;
(d) The receipt by the Company of full payment for such shares, including payment of any
applicable withholding tax, which may be in one or more of the forms of consideration permitted
under Section 4.4; and
(e) The lapse of such reasonable period of time following the exercise of the Option as the
Administrator may from time to time establish for reasons of administrative convenience.
A-4
4.6.
Rights as Stockholder
. The holder of the Option shall not be, nor have any of
the rights or privileges of, a stockholder of the Company in respect of any shares purchasable upon
the exercise of any part of the Option unless and until such shares shall have been issued by the
Company to such holder (as evidenced by the appropriate entry on the books of the Company or of a
duly authorized transfer agent of the Company). No adjustment will be made for a dividend or other
right for which the record date is prior to the date the shares are issued, except as provided in
Section 11.1 of the Plan.
5.1.
Administration
. The Administrator shall have the power to interpret the Plan and
the Terms and to adopt such rules for the administration, interpretation and application of the
Plan as are consistent therewith and to interpret, amend or revoke any such rules. All actions
taken and all interpretations and determinations made by the Administrator in good faith shall be
binding, conclusive and final upon Participant, the Company and all other interested persons. No
member of the Administrator shall be personally liable for any action, determination or
interpretation made in good faith with respect to the Plan, the Terms or the Option. In its sole
and absolute discretion, the Board may at any time and from time to time exercise any and all
rights and duties of the Administrator under the Plan and the Terms, subject to Section 12.2 of the
Plan.
5.2.
Limited Transferability
.
(a) Subject to Section 5.2(b), the Option may not be sold, pledged, assigned or transferred in
any manner other than by will or the laws of descent and distribution. Neither the Option nor any
interest or right therein or part thereof shall be liable for Participant’s debts, contracts or
engagements or the debts, contracts or engagements of Participant’s successors in interest or shall
be subject to disposition by transfer, alienation, anticipation, pledge, encumbrance, assignment or
any other means whether such disposition be voluntary or involuntary or by operation of law by
judgment, levy, attachment, garnishment or any other legal or equitable proceedings (including
bankruptcy), and any attempted disposition thereof shall be null and void and of no effect, except
to the extent that such disposition is permitted by the preceding sentence.
(b) Notwithstanding any other provision of the Terms, with the consent of the Administrator,
the Option may be transferred to one or more “Permitted Transferees” (as defined below), subject to
the following terms and conditions:
(i) the Option shall not be assignable or transferable by the Permitted Transferee
other than by will or the laws of descent and distribution;
(ii) the Option shall continue to be subject to all the terms and conditions of the
Plan and the Terms, as amended from time to time, as applicable to Participant (other than
the ability to further transfer the Option); and
(iii) Participant and the Permitted Transferee execute any and all documents requested
by the Company, including, without limitation documents to (A) confirm the status of the
transferee as a Permitted Transferee, (B) satisfy any requirements for an exemption for the
transfer under applicable federal and state securities laws, and (C) evidence the transfer.
“
Permitted Transferee
” means, with respect to Participant, any child, stepchild, grandchild,
parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law,
father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive
relationships, any person sharing Participant’s household (other than a tenant or employee), a
trust in which these persons have
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more than 50% of the beneficial interest, any other entity in which these persons (or Participant)
own more than 50% of the voting interests, or any other transferee specifically approved by the
Administrator.
(c) Unless transferred to a Permitted Transferee in accordance with Section 5.2(b), during the
lifetime of Participant, only Participant may exercise the Option or any portion thereof. Subject
to such conditions and procedures as the Administrator may require, a Permitted Transferee may
exercise the Option or any portion thereof during Participant’s lifetime. After the death of
Participant, any exercisable portion of the Option may, prior to the time when the Option becomes
unexercisable under Section 3.4, be exercised by Participant’s personal representative or by any
person empowered to do so under the deceased Participant’s will or under the then applicable laws
of descent and distribution.
5.3.
No Employment Rights
. Nothing in the Plan or the Terms shall confer upon
Participant any right to continue in the employ or service of the Company or any Subsidiary or
shall interfere with or restrict in any way the rights of the Company and its Subsidiaries, which
rights are hereby expressly reserved, to discharge or terminate Participant’s services at any time
for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise
in a written agreement between the Company or a Subsidiary and Participant.
5.4.
Shares to Be Reserved
. The Company shall at all times during the term of the
Option reserve and keep available such number of shares of Stock as will be sufficient to satisfy
the requirements of the Terms.
5.5.
Notices
. All notices or other communications required or permitted hereunder
shall be in writing, and shall be deemed duly given only when delivered in person or when sent by
certified mail (return receipt requested) and deposited (with postage prepaid) in a post office or
branch post office regularly maintained by the United States Postal Service, addressed as follows:
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If to the Company:
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Allergan, Inc.
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Attention: General Counsel
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2525 Dupont Drive
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Irvine, California 92612
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If to Participant:
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To Participant’s most recent address then
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on file in the Company’s personnel records.
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By a notice given pursuant to this Section 5.5, either party may thereafter designate a different
address for notices to be given to that party. Any notice which is required to be given to
Participant shall, if Participant is then deceased, be given to the person entitled to exercise the
Option pursuant to Section 4.1 by written notice under this Section 5.5.
5.6.
Titles
. Titles are provided herein for convenience only and are not to serve as
a basis for interpretation or construction of the Terms.
5.7.
Governing Law; Severability
. The Terms shall be administered, interpreted and
enforced under the laws of the State of Delaware, without regard to conflicts of law principles
thereof. Should any provision of the Terms be determined by a court of law to be illegal or
unenforceable, the other provisions shall nevertheless remain effective and shall remain
enforceable.
5.8.
Conformity to Securities Laws
. Participant acknowledges that the Plan is
intended to conform to the extent necessary with all provisions of the Securities Act and the
Exchange Act and any and all regulations and rules promulgated by the Securities and Exchange
Commission thereunder, and
A-6
state and foreign securities laws and regulations. Notwithstanding anything herein to the
contrary, the Plan shall be administered, and the Option is granted and may be exercised, only in
such a manner as to conform to such laws, rules and regulations. To the extent permitted by
applicable law, the Plan and the Terms shall be deemed amended to the extent necessary to conform
to such laws, rules and regulations.
5.9.
Amendments
. To the extent permitted by the Plan, the Terms may be wholly or
partially amended or otherwise modified, suspended or terminated at any time or from time to time
by the Administrator;
provided
, that, except as may otherwise be provided by the Plan, no
termination, amendment or modification of the Terms shall adversely affect the Option in any
material way without Participant’s prior written consent. The Terms may not be modified, suspended
or terminated except by an instrument in writing signed by a duly authorized representative of the
Company and, if Participant’s consent is required, by Participant or such other person as may be
permitted to exercise the Option pursuant to Section 4.1.
5.10.
Successors and Assigns
. The Company may assign any of its rights with respect
to the Option to single or multiple assignees, and the Terms shall inure to the benefit of the
successors and assigns of the Company. Subject to the restrictions on transfer set forth in
Section 5.2, the Terms shall be binding upon Participant and Participant’s heirs, executors,
administrators, successors and assigns.
5.11.
Limitations Applicable to Section 16 Persons
. Notwithstanding any other
provision of the Plan or the Terms, if Participant is subject to Section 16 of the Exchange Act,
the Plan, the Option and the Terms shall be subject to any additional limitations set forth in any
applicable exemptive rule under Section 16 of the Exchange Act (including any amendment to Rule
16b-3 of the Exchange Act) that are requirements for the application of such exemptive rule. To
the extent permitted by applicable law, the Terms shall be deemed amended to the extent necessary
to conform to such applicable exemptive rule.
5.12.
Entire Agreement
. The Plan and the Terms constitute the entire agreement of the
parties and supersede in their entirety all prior undertakings and agreements of the Company and
Participant with respect to the subject matter hereof.
A-7
EXHIBIT B TO THE NON-QUALIFIED STOCK OPTION GRANT NOTICE
ALLERGAN, INC. 2008 INCENTIVE AWARD PLAN
EXHIBIT C TO THE NON-QUALIFIED STOCK OPTION GRANT NOTICE
ALLERGAN, INC. 2008 INCENTIVE AWARD PLAN PROSPECTUS
Exhibit 10.10
NON-EMPLOYEE DIRECTOR
RESTRICTED STOCK AWARD GRANT NOTICE
Pursuant to the Allergan, Inc. 2008 Incentive Award Plan (the “
Plan
”), Allergan, Inc. (the
“
Company
”) hereby grants to the individual listed below (“
Participant
”) the number of shares of the
Company’s common stock, par value US$0.01 per share (“
Stock
”), set forth below (the “
Shares
”).
This Restricted Stock award is subject to all of the terms and conditions set forth herein, in the
Restricted Stock Award Agreement attached hereto as
Exhibit A
(the “
Restricted Stock
Agreement
”) and in the Plan, each of which is incorporated herein by reference. Unless otherwise
defined herein, the terms defined in the Plan shall have the same defined meanings in this
Restricted Stock Award Grant Notice (the “
Grant Notice
”).
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Participant:
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Grant Date:
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Total Number of
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Shares of Restricted Stock:
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Vesting Schedule:
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Subject to the terms and conditions of the Plan, this Grant
Notice and the Restricted Stock Agreement, the Company’s
Forfeiture Restriction (as defined in the Restricted Stock
Agreement) shall lapse as to 4,800 Shares, as adjusted
pursuant to Section 11.1 of the Plan, each calendar year upon
the earlier to occur of:
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(i)
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the first anniversary of the Grant Date, or
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(ii)
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the annual meeting held during such calendar year at
which one or more members of the Board are standing for
re-election.
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In no event, however, shall the Forfeiture Restriction (as
defined in the Restricted Stock Agreement) lapse as to any
additional Shares following Participant’s termination of
service as a Director of the Company, except as may otherwise
be provided by the Administrator or as set forth in a written
agreement between the Company and Participant.
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Remainder of page intentionally left blank.
By his or her signature below, Participant agrees to be bound by the terms and conditions of
the Plan, the Restricted Stock Agreement and this Grant Notice. Participant has reviewed the
Restricted Stock Agreement, the Plan and this Grant Notice in their entirety, has had an
opportunity to obtain the advice of counsel prior to executing this Grant Notice and fully
understands all provisions of this Grant Notice, the Restricted Stock Agreement and the Plan.
Participant hereby agrees to accept as binding, conclusive and final all decisions and
interpretations of the Administrator arising under the Plan, this Grant Notice or the Restricted
Stock Agreement or relating to the Shares.
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ALLERGAN, INC.:
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PARTICIPANT:
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By:
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By:
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Print Name:
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Print Name:
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Title:
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Address:
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2525 Dupont Drive
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Address:
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Irvine, California 92612
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Attachments:
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Restricted Stock Award Agreement (
Exhibit A
)
Allergan, Inc. 2008 Incentive Award Plan (
Exhibit B
)
Allergan, Inc. 2008 Incentive Award Plan Prospectus (
Exhibit C
)
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-2-
NON-EMPLOYEE DIRECTOR
EXHIBIT A TO THE RESTRICTED STOCK AWARD GRANT NOTICE
RESTRICTED STOCK AWARD AGREEMENT
May 2008
Pursuant to the Restricted Stock Award Grant Notice (the “
Grant Notice
”) to which this
Restricted Stock Award Agreement (this “
Agreement
”) is attached, Allergan, Inc. (the “
Company
”)
granted to the participant (“
Participant
”) specified on the Grant Notice a restricted stock award
under the Allergan, Inc. 2008 Incentive Award Plan (the “
Plan
”) for the number of shares of the
Company’s common stock, par value US$0.01 per share (“
Stock
”), indicated in the Grant Notice (the
“
Shares
”), subject to the terms and conditions of the Grant Notice, this Agreement and the Plan.
I. GENERAL
1.1
Defined Terms
. Capitalized terms not specifically defined herein shall have the
meanings specified in the Grant Notice or, if not defined therein, the Plan.
1.2
Incorporation of Terms of Plan
. The Shares are subject to the terms and
conditions of the Plan, which are incorporated herein by reference.
II. GRANT OF RESTRICTED STOCK
2.1
Grant of Restricted Stock
. In consideration of Participant’s past and/or
continued service to the Company or its Subsidiaries and for other good and valuable consideration,
effective as of the grant date specified on the Grant Notice (the “
Grant Date
”), the Company hereby
agrees to issue the Shares to Participant, upon the terms and conditions set forth in the Plan, the
Grant Notice and this Agreement.
2.2
Issuance of Shares
. The issuance of the Shares under this Agreement shall occur
at the principal office of the Company simultaneously with the execution of the Grant Notice by the
parties or on such other date as the Company and Participant shall agree (the “
Issuance Date
”).
Subject to Section 2.3, the Company shall issue the Shares (which shall be issued in Participant’s
name) on the Issuance Date.
2.3
Conditions to Issuance of Stock Certificates
. The Shares, or any portion thereof,
may be either previously authorized but unissued shares or issued shares which have then been
reacquired by the Company. Such Shares shall be fully paid and nonassessable. The Company shall
not be required to issue or deliver any Shares prior to fulfillment of all of the following
conditions:
(a) The admission of such Shares to listing on all stock exchanges on which such Stock is then
listed;
(b) The completion of any registration or other qualification of such shares under any state
or federal law or under rulings or regulations of the Securities and Exchange Commission or of any
other governmental regulatory body, which the Administrator shall, in its sole and absolute
discretion, deem necessary or advisable;
(c) The obtaining of any approval or other clearance from any state or federal governmental
agency which the Administrator shall, in its sole and absolute discretion, determine to be
necessary or advisable;
(d) The lapse of such reasonable period of time following the Issuance Date as the
Administrator may from time to time establish for reasons of administrative convenience; and
(e) The receipt by the Company of full payment for such shares, including payment of all
amounts which, under federal, state or local tax law, the Company (or other Subsidiary) is required
to withhold upon issuance of such Shares.
2.4
Rights as Stockholder
. Except as otherwise provided in Section 3.6 or elsewhere
in this Agreement, upon issuance of the Shares, Participant shall have all the rights of a
stockholder with respect to the Shares, including the right to vote the Shares and to receive all
dividends or other distributions paid or made with respect to the Shares.
2.5
Escrow
. Until the Forfeiture Restriction (as defined in Section 3.1) and all of
the restrictions on transfer imposed pursuant to this Agreement lapse or are removed, the
Administrator may require the certificate(s) representing the Unreleased Shares (as defined in
Section 3.4) to be deposited with the Secretary of the Company, or such other escrow holder as the
Administrator may appoint, as Participant’s attorney-in-fact to sell, assign and transfer unto the
Company, such Unreleased Shares, if any, forfeited pursuant to Section 3.1.
III. RESTRICTIONS ON SHARES
3.1
Forfeiture Restriction
. Subject to the provisions of Section 3.2 and Section 3.3,
upon Participant’s termination of service as a Director of the Company for any or no reason, all of
the Unreleased Shares shall thereupon be forfeited immediately and without any further action by
the Company (the “
Forfeiture Restriction
”). Upon the occurrence of such a forfeiture, the Company
shall become the legal and beneficial owner of the Shares being forfeited and all rights and
interests therein or relating thereto, and the Company shall have the right to retain and transfer
to its own name the number of Shares being forfeited by Participant. In the event any of the
Unreleased Shares are forfeited under this Section 3.1, any cash, cash equivalents, assets or
securities received by or distributed to Participant with respect to, in exchange for or in
substitution of such Shares and held by the escrow agent pursuant to Section 2.5 and Section 3.6
shall be promptly transferred by the escrow agent to the Company.
3.2
Release of Shares from Forfeiture Restriction
. The Shares shall be released from
the Forfeiture Restriction as indicated in the Grant Notice and Section 3.3 below. Any of the
Shares released from the Forfeiture Restriction shall thereupon be released from the restrictions
on transfer under Section 3.5. In the event any of the Shares are released from the Forfeiture
Restriction, any dividends or other distributions paid on such Shares and held by the escrow agent
pursuant to Section 2.5 and Section 3.6 shall be promptly paid by the escrow agent to Participant.
3.3
Accelerated Vesting
. Notwithstanding anything to the contrary in Section 3.2 or
the Grant Notice, the Shares shall be released from the Forfeiture Restriction on an accelerated
basis under the following circumstances:
(a) if Participant’s termination of service as a Director of the Company occurs by reason of
Participant’s death or permanent and total disability (within the meaning of Section 22(e)(3) of
the Internal Revenue Code of 1986, as amended (the “
Code
”)), then the Shares shall be released from
the Forfeiture Restriction immediately prior to Participant’s termination of service as a Director
of the Company; and
A-2
(b) if a Change in Control occurs prior to Participant’s termination of service as a Director
of the Company, then the Shares shall be released from the Forfeiture Restriction immediately prior
to the occurrence of such Change in Control.
3.4
Unreleased Shares
. Any of the Shares which, from time to time, have not yet been
released from the Forfeiture Restriction are referred to herein as
“
Unreleased Shares
.”
3.5
Restrictions on Transfer
.
(a) Subject to Section 3.5(b), no Unreleased Shares or any dividends or other distributions
thereon or any interest or right therein or part thereof shall be liable for the debts, contracts
or engagements of Participant or Participant’s successors in interest or shall be subject to sale
or other disposition by transfer, alienation, anticipation, pledge, hypothecation, encumbrance,
assignment or any other means whether such sale or other disposition be voluntary or involuntary or
by operation of law by judgment, levy, attachment, garnishment or any other legal or equitable
proceedings (including bankruptcy), and any attempted sale or other disposition thereof shall be
null and void and of no effect, except to the extent that such disposition is permitted by the
preceding sentence.
(b) Notwithstanding any other provision of this Agreement, with the consent of the
Administrator, the Unreleased Shares may be transferred to one or more “Permitted Transferees” (as
defined below), subject to the following terms and conditions:
(i) the Unreleased Shares shall not be assignable or transferable by the Permitted
Transferee other than by will or the laws of descent and distribution;
(ii) the Unreleased Shares shall continue to be subject to all the terms and conditions
of the Plan and this Agreement, as amended from time to time, as applicable to Participant
(other than the ability to further transfer the Unreleased Shares); and
(iii) Participant and the Permitted Transferee execute any and all documents requested
by the Company, including, without limitation documents to (A) confirm the status of the
transferee as a Permitted Transferee, (B) satisfy any requirements for an exemption for the
transfer under applicable federal and state securities laws, and (C) evidence the transfer.
“
Permitted Transferee
” means, with respect to Participant, any child, stepchild, grandchild,
parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law,
father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive
relationships, any person sharing Participant’s household (other than a tenant or employee), a
trust in which these persons have more than 50% of the beneficial interest, any other entity in
which these persons (or Participant) own more than 50% of the voting interests, or any other
transferee specifically approved by the Administrator.
3.6
Restrictions on Distributions, etc
. In the event of any dividend or other
distribution (whether in the form of cash, Stock, other securities or other property, but excluding
money paid as a regular cash dividend), recapitalization, reclassification, stock split, reverse
stock split, reorganization, merger, consolidation, split-up, spin off, combination, repurchase,
liquidation, dissolution, or sale, transfer, exchange or other disposition of all or substantially
all of the assets of the Company, or exchange of Stock or other securities of the Company, issuance
of warrants or other rights to purchase Stock or other securities of the Company, or other similar
corporate transaction or event that affects the Stock, then any new or additional or different
shares or securities or property (including cash) which is paid, issued, exchanged or distributed
in respect of Shares then subject to the Forfeiture Restriction shall be subject to the Forfeiture
Restriction and the restrictions on transfer set forth in Section 3.5 and shall be considered to
A-3
be Unreleased Shares, until such restrictions on the underlying Shares lapse or are removed
pursuant to this Agreement (or, if such Shares are no longer outstanding, until such time as such
Shares would have been released from the Forfeiture Restriction pursuant to this Agreement). The
Administrator may require any new or additional or different shares or securities or property
(including cash) considered to be Unreleased Shares pursuant to this Section 3.6 to be deposited
with the Secretary of the Company, or such other escrow holder as the Administrator may appoint, as
Participant’s attorney-in-fact to sell, assign and transfer unto the Company, such new or
additional or different shares or securities or property (including cash) considered to be
Unreleased Shares pursuant to this Section 3.6, if any, forfeited pursuant to Section 3.1.
Notwithstanding the foregoing, nothing herein shall limit the ability of the Administrator to
adjust Unreleased Shares or make other adjustments to the terms and conditions of this Agreement in
accordance with the provisions of Section 11.1 of the Plan.
IV. OTHER PROVISIONS
4.1
Administration
. The Administrator shall have the power to interpret the Plan and
this Agreement and to adopt such rules for the administration, interpretation and application of
the Plan as are consistent therewith and to interpret, amend or revoke any such rules. All actions
taken and all interpretations and determinations made by the Administrator in good faith shall be
binding, conclusive and final upon Participant, the Company and all other interested persons. No
member of the Administrator shall be personally liable for any action, determination or
interpretation made in good faith with respect to the Plan, this Agreement or the Shares.
4.2
Taxes
. Participant has reviewed with Participant’s own tax advisors the federal,
state, local and foreign tax consequences of this investment and the transactions contemplated by
the Grant Notice and this Agreement. Participant is relying solely on such advisors and not on any
statements or representations of the Company or any of its agents. Participant understands that
Participant (and not the Company) shall be responsible for Participant’s own tax liability that may
arise as a result of this investment or the transactions contemplated by this Agreement.
Participant understands that Participant will recognize ordinary income for federal income tax
purposes under Section 83 of the Code as the restrictions applicable to the Unreleased Shares
lapse. In this context, “restriction” includes the Forfeiture Restriction. Participant
understands that Participant may elect to be taxed for federal income tax purposes at the time the
Shares are issued rather than as and when the Forfeiture Restriction lapses by filing an election
under Section 83(b) of the Code with the Internal Revenue Service no later than 30 days following
the date of purchase.
PARTICIPANT ACKNOWLEDGES THAT IT IS PARTICIPANT’S SOLE RESPONSIBILITY AND NOT THE COMPANY’S TO
TIMELY FILE THE ELECTION UNDER SECTION 83(b), EVEN IF PARTICIPANT REQUESTS THE COMPANY OR ITS
REPRESENTATIVES TO MAKE THIS FILING ON PARTICIPANT’S BEHALF.
4.3
Restrictive Legends and Stop-Transfer Orders
.
(a) In order to enforce the Forfeiture Restriction and the other restrictions set forth in the
Plan and this Agreement, the Administrator may cause one or more legends referencing the Forfeiture
Restriction and other restrictions, and any other legend(s) that may be required by applicable
federal, state or foreign securities laws, to be placed on the certificate(s) evidencing the
Shares.
(b) Participant agrees that, in order to ensure compliance with the restrictions referred to
herein, the Company may issue appropriate “stop transfer” instructions to its transfer agent, if
any, and that, if the Company transfers its own securities, it may make appropriate notations to
the same effect in its own records.
A-4
(c) The Company shall not be required: (i) to transfer on its books any Shares that have been
sold or otherwise transferred in violation of any of the provisions of this Agreement, or (ii) to
treat as owner of such Shares or to accord the right to vote or pay dividends to any purchaser or
other transferee to whom such shares shall have been so transferred.
4.4
No Right to Continue in Service
. Nothing in the Plan or this Agreement shall
confer upon Participant any right to continue in service as a member of the Board of Directors of
the Company or any Subsidiary or shall interfere with or restrict in any way the rights of the
Company and its stockholders (or of a Subsidiary and its stockholders, as the case may be), which
rights are hereby expressly reserved, to discharge or terminate Participant’s services at any time
for any reason whatsoever, with or without cause.
4.5
Notices
. All notices or other communications required or permitted hereunder
shall be in writing, and shall be deemed duly given only when delivered in person or when sent by
certified mail (return receipt requested) and deposited (with postage prepaid) in a post office or
branch post office regularly maintained by the United States Postal Service, addressed as follows:
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If to the Company:
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Allergan, Inc.
Attention: General Counsel
2525 Dupont Drive
Irvine, California 92612
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If to Participant:
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To Participant’s most recent address
then on file in the Company’s personnel records.
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By a notice given pursuant to this Section 4.5, either party may thereafter designate a different
address for notices to be given to that party.
4.6
Titles
. Titles are provided herein for convenience only and are not to serve as a
basis for interpretation or construction of this Agreement.
4.7
Governing Law; Severability
. This Agreement shall be administered, interpreted
and enforced under the laws of the State of Delaware, without regard to conflicts of law principles
thereof. Should any provision of this Agreement be determined by a court of law to be illegal or
unenforceable, the other provisions shall nevertheless remain effective and shall remain
enforceable.
4.8
Conformity to Securities Laws
. Participant acknowledges that the Plan is intended
to conform to the extent necessary with all provisions of the Securities Act and the Exchange Act
and any and all regulations and rules promulgated by the Securities and Exchange Commission
thereunder, and state and foreign securities laws and regulations. Notwithstanding anything herein
to the contrary, the Plan shall be administered, and the Shares are to be issued, only in such a
manner as to conform to such laws, rules and regulations. To the extent permitted by applicable
law, the Plan and this Agreement shall be deemed amended to the extent necessary to conform to such
laws, rules and regulations.
4.9
Amendments
. To the extent permitted by the Plan, this Agreement may be wholly or
partially amended or otherwise modified, suspended or terminated at any time or from time to time
by the Administrator;
provided
, that, except as may otherwise be provided by the Plan, no
termination, amendment, or modification of this Agreement shall adversely affect the Shares in any
material way without Participant’s prior written consent. This Agreement may not be modified,
suspended or
terminated except by an instrument in writing signed by a duly authorized representative of
the Company and, if Participant’s consent is required, by Participant.
A-5
4.10
Successors and Assigns
. The Company may assign any of its rights under this
Agreement to single or multiple assignees, and this Agreement shall inure to the benefit of the
successors and assigns of the Company. Subject to the restrictions on transfer set forth in
Section 3.5, this Agreement shall be binding upon Participant and Participant’s heirs, executors,
administrators, successors and assigns.
4.11
Section 16
. Notwithstanding any other provision of the Plan or this Agreement,
the Shares and this Agreement shall be subject to any additional limitations set forth in any
applicable exemptive rule under Section 16 of the Exchange Act (including any amendment to Rule
16b-3 of the Exchange Act) that are requirements for the application of such exemptive rule. To
the extent permitted by applicable law, this Agreement shall be deemed amended to the extent
necessary to conform to such applicable exemptive rule.
4.12
Entire Agreement
. The Plan and this Agreement constitute the entire agreement of
the parties and supersede in their entirety all prior undertakings and agreements of the Company
and Participant with respect to the subject matter hereof.
A-6
EXHIBIT B TO THE RESTRICTED STOCK AWARD GRANT NOTICE
ALLERGAN, INC. 2008 INCENTIVE AWARD PLAN
EXHIBIT C TO THE RESTRICTED STOCK AWARD GRANT NOTICE
ALLERGAN, INC. 2008 INCENTIVE AWARD PLAN PROSPECTUS
Exhibit 10.11
RESTRICTED STOCK AWARD GRANT NOTICE
Pursuant to the Allergan, Inc. 2008 Incentive Award Plan (the “
Plan
”), Allergan, Inc. (the
“
Company
”) hereby grants to the employee listed below (“
Participant
”) the number of shares of the
Company’s common stock, par value US$0.01 per share (“
Stock
”), set forth below (the “
Shares
”).
This Restricted Stock award is subject to all of the terms and conditions set forth herein, in the
Terms and Conditions attached hereto as
Exhibit A
(the “
Restricted Stock Terms
”) and in the
Plan, each of which is incorporated herein by reference. Unless otherwise defined herein, the
terms defined in the Plan shall have the same defined meanings in this Restricted Stock Award Grant
Notice (the “
Grant Notice
”).
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Participant:
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Grant Date:
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Total Number of
Shares of Restricted Stock:
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Vesting Schedule:
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[To be specified in individual award agreements]
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Except as provided in Section 3.3(a) of the
Restricted Stock Terms, in no event shall the
Forfeiture Restriction (as defined in the Restricted
Stock Terms) lapse as to any additional Shares
following Participant’s Termination of Employment (as
defined in the Restricted Stock Terms).
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All decisions and interpretations of the Administrator arising under the Plan, this Grant
Notice or the Restricted Stock Terms or relating to the Shares shall be binding, conclusive and
final.
ALLERGAN, INC.
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By:
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Print Name:
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Title:
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Address:
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2525 Dupont Drive
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Irvine, California 92612
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Attachments:
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Terms and Conditions (
Exhibit A
)
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Allergan, Inc. 2008 Incentive Award Plan (
Exhibit B
)
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Allergan, Inc. 2008 Incentive Award Plan Prospectus (
Exhibit C
)
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EXHIBIT A TO THE RESTRICTED STOCK AWARD GRANT NOTICE
TERMS AND CONDITIONS
May 2008
Pursuant to the Restricted Stock Award Grant Notice (the “
Grant Notice
”) to which these Terms
and Conditions (the “
Terms
”) are attached, Allergan, Inc. (the “
Company
”) granted to the
participant (“
Participant
”) specified on the Grant Notice a restricted stock award under the
Allergan, Inc. 2008 Incentive Award Plan (the “
Plan
”) for the number of shares of the Company’s
common stock, par value US$0.01 per share (“
Stock
”), indicated in the Grant Notice (the “
Shares
”),
subject to the terms and conditions of the Grant Notice, the Terms and the Plan.
I. GENERAL
1.1
Defined Terms
. Wherever the following terms are used herein, they shall have the
meanings specified below, unless the context clearly indicates otherwise. Capitalized terms not
specifically defined herein shall have the meanings specified in the Grant Notice or, if not
defined therein, the Plan.
“
Job Elimination
” means Participant’s Termination of Employment by the Company or any
Subsidiary under circumstances satisfying each of the following conditions, as determined in the
sole and absolute discretion of the Company: (a) Participant’s Termination of Employment results in
or is part of a net headcount reduction of one or more employees; (b) Participant is not offered a
comparable position with the Company, a subsidiary or a successor entity or an affiliate of the
Company or a subsidiary; and (c) the Company provides written notice to Participant prior to his or
her Termination of Employment that it has determined Employee’s Termination of Employment is a “job
elimination.”
“
Termination of Employment
” shall mean the time when the employee-employer relationship
between Participant and the Company or any Subsidiary is terminated for any reason, with or without
cause, including, without limitation, a termination by resignation, discharge, death, disability or
retirement, but excluding terminations where there is a simultaneous reemployment or continuing
employment of Participant by the Company or any Subsidiary. The Administrator, in its discretion,
shall determine the effect of all matters and questions relating to Participant’s Termination of
Employment, including, without limitation, the question of whether such Termination of Employment
resulted from a discharge for cause. For purposes of the Terms, Participant’s employee-employer
relationship shall be deemed to be terminated in the event that the Subsidiary employing
Participant ceases to remain a Subsidiary following any merger, sale of stock or other corporate
transaction or event (including, without limitation, a spin-off).
1.2
Incorporation of Terms of Plan
. The Shares are subject to the terms and
conditions of the Plan, which are incorporated herein by reference.
II. GRANT OF RESTRICTED STOCK
2.1
Grant of Restricted Stock
. In consideration of Participant’s past and/or
continued employment with or service to the Company or its Subsidiaries and for other good and
valuable consideration, effective as of the grant date specified on the Grant Notice (the “
Grant
Date
”), the Company hereby agrees to issue the Shares to Participant, upon the terms and conditions
set forth in the Plan, the Grant Notice and the Terms.
2.2
Issuance of Shares
. The issuance of the Shares under the Terms shall occur at the
principal office of the Company simultaneously with the execution of the Grant Notice by the
Company or on such other date as the Company and Participant shall agree (the “
Issuance Date
”).
Subject to Section 2.3, the Company shall issue the Shares (which shall be issued in Participant’s
name) on the Issuance Date.
2.3
Conditions to Issuance of Stock Certificates
. The Shares, or any portion thereof,
may be either previously authorized but unissued shares or issued shares which have then been
reacquired by the Company. Such Shares shall be fully paid and nonassessable. The Company shall
not be required to issue or deliver any Shares prior to fulfillment of all of the following
conditions:
(a) The admission of such Shares to listing on all stock exchanges on which such Stock is then
listed;
(b) The completion of any registration or other qualification of such shares under any state
or federal law or under rulings or regulations of the Securities and Exchange Commission or of any
other governmental regulatory body, which the Administrator shall, in its sole and absolute
discretion, deem necessary or advisable;
(c) The obtaining of any approval or other clearance from any state or federal governmental
agency which the Administrator shall, in its sole and absolute discretion, determine to be
necessary or advisable;
(d) The lapse of such reasonable period of time following the Issuance Date as the
Administrator may from time to time establish for reasons of administrative convenience; and
(e) The receipt by the Company of full payment for such shares, including payment of all
amounts which, under federal, state or local tax law, the Company (or other Subsidiary) is required
to withhold upon issuance of such Shares.
2.4
Rights as Stockholder
. Except as otherwise provided in Section 3.6 or elsewhere
in the Terms, upon issuance of the Shares, Participant shall have all the rights of a stockholder
with respect to the Shares, including the right to vote the Shares and to receive all dividends or
other distributions paid or made with respect to the Shares.
2.5
Escrow
. Until the Forfeiture Restriction (as defined in Section 3.1) and all of
the restrictions on transfer imposed pursuant to the Terms lapse or are removed, the Administrator
may require the certificate(s) representing the Unreleased Shares (as defined in Section 3.4) to be
deposited with the Secretary of the Company, or such other escrow holder as the Administrator may
appoint, as Participant’s attorney-in-fact to sell, assign and transfer unto the Company, such
Unreleased Shares, if any, forfeited pursuant to Section 3.1.
III. RESTRICTIONS ON SHARES
3.1
Forfeiture Restriction
. Subject to the provisions of Section 3.2 and Section 3.3,
upon Participant’s Termination of Employment for any or no reason, all of the Unreleased Shares
shall thereupon be forfeited immediately and without any further action by the Company;
provided
,
however, that if Participant’s Termination of Employment occurs by reason of Participant’s Job
Elimination, all of the Unreleased Shares (after giving effect to any accelerated vesting that may
occur pursuant to Section 3.3(a) following Participant’s Termination of Employment) shall be
forfeited at such time as Participant may no longer become entitled to receive any accelerated
vesting under Section 3.3(a) (the “
Forfeiture
A-2
Restriction
”). Upon the occurrence of such a forfeiture, the Company shall become the legal
and beneficial owner of the Shares being forfeited and all rights and interests therein or relating
thereto, and the Company shall have the right to retain and transfer to its own name the number of
Shares being forfeited by Participant. In the event any of the Unreleased Shares are forfeited
under this Section 3.1, any cash, cash equivalents, assets or securities received by or distributed
to Participant with respect to, in exchange for or in substitution of such Shares and held by the
escrow agent pursuant to Section 2.5 and Section 3.6 shall be promptly transferred by the escrow
agent to the Company.
3.2
Release of Shares from Forfeiture Restriction
. The Shares shall be released from
the Forfeiture Restriction as indicated in the Grant Notice and Section 3.3 below. Any of the
Shares released from the Forfeiture Restriction shall thereupon be released from the restrictions
on transfer under Section 3.5. In the event any of the Shares are released from the Forfeiture
Restriction, any dividends or other distributions paid on such Shares and held by the escrow agent
pursuant to Section 2.5 and Section 3.6 shall be promptly paid by the escrow agent to Participant.
3.3
Accelerated Vesting
. Notwithstanding anything to the contrary in Section 3.2 or
the Grant Notice, the Shares shall be released from the Forfeiture Restriction on an accelerated
basis under the following circumstances:
(a) if Participant’s Termination of Employment occurs by reason of Participant’s Job
Elimination and, prior to the expiration of 55 days following the date of Participant’s termination
of Employment or such earlier date as may be specified by the Company, Participant executes and
delivers, and does not revoke, a general waiver and release of all claims against the Company and
its subsidiaries and the employees, directors, agents and affiliates of the Company and its
subsidiaries, in a form acceptable to the Company in its sole and absolute discretion, then the
Shares shall be released from the Forfeiture Restriction upon the date such general waiver and
release of all claims becomes effective and irrevocable, equal to the total number of Shares
specified in the Grant Notice, as adjusted pursuant to Section 11.1 of the Plan, multiplied by a
fraction, the numerator of which is the number of months from the Grant Date until the date of
Participant’s Termination of Employment, and the denominator of which is the number of months
during the vesting schedule set forth in the Grant Notice (
i.e.
, the number of months from the
Grant Date until the date the Shares otherwise would be released from the Forfeiture Restriction
pursuant to the vesting schedule set forth in the Grant Notice based solely on continued
employment);
(b) if Participant’s Termination of Employment occurs by reason of Participant’s death or
permanent and total disability (within the meaning of Section 22(e)(3) of the Internal Revenue Code
of 1986, as amended (the “
Code
”)), then the Shares shall be released from the Forfeiture
Restriction immediately prior to Participant’s Termination of Employment; and
(c) if a Change in Control occurs prior to Participant’s Termination of Employment, then the
Shares shall be released from the Forfeiture Restriction immediately prior to the occurrence of
such Change in Control.
3.4
Unreleased Shares
. Any of the Shares which, from time to time, have not yet been
released from the Forfeiture Restriction are referred to herein as
“
Unreleased Shares
.”
3.5
Restrictions on Transfer
.
(a) Subject to Section 3.5(b), no Unreleased Shares or any dividends or other distributions
thereon or any interest or right therein or part thereof shall be liable for the debts, contracts
or engagements of Participant or Participant’s successors in interest or shall be subject to sale
or other
A-3
disposition by transfer, alienation, anticipation, pledge, hypothecation, encumbrance,
assignment or any other means whether such sale or other disposition be voluntary or involuntary or
by operation of law by judgment, levy, attachment, garnishment or any other legal or equitable
proceedings (including bankruptcy), and any attempted sale or other disposition thereof shall be
null and void and of no effect, except to the extent that such disposition is permitted by the
preceding sentence.
(b) Notwithstanding any other provision of the Terms, with the consent of the Administrator,
the Unreleased Shares may be transferred to one or more “Permitted Transferees” (as defined below),
subject to the following terms and conditions:
(i) the Unreleased Shares shall not be assignable or transferable by the Permitted
Transferee other than by will or the laws of descent and distribution;
(ii) the Unreleased Shares shall continue to be subject to all the terms and conditions
of the Plan and the Terms, as amended from time to time, as applicable to Participant (other
than the ability to further transfer the Unreleased Shares); and
(iii) Participant and the Permitted Transferee execute any and all documents requested
by the Company, including, without limitation documents to (A) confirm the status of the
transferee as a Permitted Transferee, (B) satisfy any requirements for an exemption for the
transfer under applicable federal and state securities laws, and (C) evidence the transfer.
“
Permitted Transferee
” means, with respect to Participant, any child, stepchild, grandchild,
parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law,
father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive
relationships, any person sharing Participant’s household (other than a tenant or employee), a
trust in which these persons have more than 50% of the beneficial interest, any other entity in
which these persons (or Participant) own more than 50% of the voting interests, or any other
transferee specifically approved by the Administrator.
3.6
Restrictions on Distributions, etc
. In the event of any dividend or other
distribution (whether in the form of cash, Stock, other securities or other property, but excluding
money paid as a regular cash dividend), recapitalization, reclassification, stock split, reverse
stock split, reorganization, merger, consolidation, split-up, spin off, combination, repurchase,
liquidation, dissolution, or sale, transfer, exchange or other disposition of all or substantially
all of the assets of the Company, or exchange of Stock or other securities of the Company, issuance
of warrants or other rights to purchase Stock or other securities of the Company, or other similar
corporate transaction or event that affects the Stock, then any new or additional or different
shares or securities or property (including cash) which is paid, issued, exchanged or distributed
in respect of Shares then subject to the Forfeiture Restriction shall be subject to the Forfeiture
Restriction and the restrictions on transfer set forth in Section 3.5 and shall be considered to be
Unreleased Shares, until such restrictions on the underlying Shares lapse or are removed pursuant
to the Terms (or, if such Shares are no longer outstanding, until such time as such Shares would
have been released from the Forfeiture Restriction pursuant to the Terms). The Administrator may
require any new or additional or different shares or securities or property (including cash)
considered to be Unreleased Shares pursuant to this Section 3.6 to be deposited with the Secretary
of the Company, or such other escrow holder as the Administrator may appoint, as Participant’s
attorney-in-fact to sell, assign and transfer unto the Company, such new or additional or different
shares or securities or property (including cash) considered to be Unreleased Shares pursuant to
this Section 3.6, if any, forfeited pursuant to Section 3.1. Notwithstanding the foregoing,
nothing herein shall limit the ability of the Administrator to adjust Unreleased Shares or make
other adjustments to the terms and conditions of the Terms in accordance with the provisions of
Section 11.1 of the Plan.
A-4
IV. OTHER PROVISIONS
4.1
Administration
. The Administrator shall have the power to interpret the Plan and
the Terms and to adopt such rules for the administration, interpretation and application of the
Plan as are consistent therewith and to interpret, amend or revoke any such rules. All actions
taken and all interpretations and determinations made by the Administrator in good faith shall be
binding, conclusive and final upon Participant, the Company and all other interested persons. No
member of the Administrator shall be personally liable for any action, determination or
interpretation made in good faith with respect to the Plan, the Terms or the Shares.
4.2
Taxes
.
(a) Notwithstanding anything to the contrary in the Terms, the Company shall be entitled to
require payment to the Company or any of its Subsidiaries of any sums required by federal, state,
local or foreign tax law to be withheld with respect to the issuance of the Shares or any other
taxable event related to the Shares. The Company may permit Participant to make such payment in
one or more of the forms specified below:
(i) by cash or check made payable to the Company;
(ii) by the deduction of such amount from other compensation payable to Participant;
(iii) tendering vested shares of Stock having a then current Fair Market Value not
exceeding the amount necessary to satisfy the withholding obligation of the Company and its
Subsidiaries based on the minimum applicable statutory withholding rates for federal, state,
local and foreign income tax and payroll tax purposes; or
(iv) in any combination of the foregoing.
(b) In the event Participant fails to provide timely payment of all sums required pursuant to
Section 4.2(a), the Company (or other employer) shall have the right and option, but not the
obligation, to treat such failure as an election by Participant to satisfy all or any portion of
Participant’s required payment obligation pursuant to Section 4.2(a)(ii) or Section 4.2(a)(iii)
above, or any combination of the foregoing as the Company may determine to be appropriate, subject
to compliance with all applicable legal requirements. The Company shall not be obligated to
deliver any certificate evidencing the Shares to Participant or his legal representative unless and
until Participant or his legal representative shall have paid or otherwise satisfied in full the
amount of all federal, state, local and foreign taxes applicable with respect to the taxable income
of Participant resulting from the lapse of any restrictions (including the Forfeiture Restriction)
on the Shares or any other taxable event related to the Shares.
(c) Participant has reviewed with Participant’s own tax advisors the federal, state, local and
foreign tax consequences of this investment and the transactions contemplated by the Grant Notice
and the Terms. Participant is relying solely on such advisors and not on any statements or
representations of the Company or any of its agents. Participant understands that Participant (and
not the Company) shall be responsible for Participant’s own tax liability that may arise as a
result of this investment or the transactions contemplated by the Terms. Participant understands
that Participant will recognize ordinary income for federal income tax purposes under Section 83 of
the Code as the restrictions applicable to the Unreleased Shares lapse. In this context,
“restriction” includes the Forfeiture Restriction. Participant understands that Participant may
elect to be taxed for federal income tax purposes at the time the Shares are issued rather than as
and when the Forfeiture Restriction lapses by filing an
election under Section 83(b) of the Code with the Internal Revenue Service no later than 30
days following the date of purchase.
A-5
PARTICIPANT ACKNOWLEDGES THAT IT IS PARTICIPANT’S SOLE RESPONSIBILITY AND NOT THE COMPANY’S TO
TIMELY FILE THE ELECTION UNDER SECTION 83(b), EVEN IF PARTICIPANT REQUESTS THE COMPANY OR ITS
REPRESENTATIVES TO MAKE THIS FILING ON PARTICIPANT’S BEHALF.
4.3
Restrictive Legends and Stop-Transfer Orders
.
(a) In order to enforce the Forfeiture Restriction and the other restrictions set forth in the
Plan and the Terms, the Administrator may cause one or more legends referencing the Forfeiture
Restriction and other restrictions, and any other legend(s) that may be required by applicable
federal, state or foreign securities laws, to be placed on the certificate(s) evidencing the
Shares.
(b) Participant agrees that, in order to ensure compliance with the restrictions referred to
herein, the Company may issue appropriate “stop transfer” instructions to its transfer agent, if
any, and that, if the Company transfers its own securities, it may make appropriate notations to
the same effect in its own records.
(c) The Company shall not be required: (i) to transfer on its books any Shares that have been
sold or otherwise transferred in violation of any of the provisions of the Terms, or (ii) to treat
as owner of such Shares or to accord the right to vote or pay dividends to any purchaser or other
transferee to whom such shares shall have been so transferred.
4.4
No Employment Rights
. Nothing in the Plan or the Terms shall confer upon
Participant any right to continue in the employ or service of the Company or any Subsidiary or
shall interfere with or restrict in any way the rights of the Company and its Subsidiaries, which
rights are hereby expressly reserved, to discharge or terminate Participant’s employment or
services at any time for any reason whatsoever, with or without cause, except to the extent
expressly provided otherwise in a written agreement between the Company or a Subsidiary and
Participant.
4.5
Notices
. All notices or other communications required or permitted hereunder
shall be in writing, and shall be deemed duly given only when delivered in person or when sent by
certified mail (return receipt requested) and deposited (with postage prepaid) in a post office or
branch post office regularly maintained by the United States Postal Service, addressed as follows:
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If to the Company:
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Allergan, Inc.
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Attention: General Counsel
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2525 Dupont Drive
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Irvine, California 92612
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If to Participant:
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To Participant’s most recent
address then on file in the Company’s personnel records.
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By a notice given pursuant to this Section 4.5, either party may thereafter designate a different
address for notices to be given to that party.
4.6
Titles
. Titles are provided herein for convenience only and are not to serve as a
basis for interpretation or construction of the Terms.
A-6
4.7
Governing Law; Severability
. The Terms shall be administered, interpreted and
enforced under the laws of the State of Delaware, without regard to conflicts of law principles
thereof. Should any provision of the Terms be determined by a court of law to be illegal or
unenforceable, the other provisions shall nevertheless remain effective and shall remain
enforceable.
4.8
Conformity to Securities Laws
. Participant acknowledges that the Plan is intended
to conform to the extent necessary with all provisions of the Securities Act and the Exchange Act
and any and all regulations and rules promulgated by the Securities and Exchange Commission
thereunder, and state and foreign securities laws and regulations. Notwithstanding anything herein
to the contrary, the Plan shall be administered, and the Shares are to be issued, only in such a
manner as to conform to such laws, rules and regulations. To the extent permitted by applicable
law, the Plan and the Terms shall be deemed amended to the extent necessary to conform to such
laws, rules and regulations.
4.9
Amendments
. To the extent permitted by the Plan, the Terms may be wholly or
partially amended or otherwise modified, suspended or terminated at any time or from time to time
by the Administrator;
provided
, that, except as may otherwise be provided by the Plan, no
termination, amendment, or modification of the Terms shall adversely affect the Shares in any
material way without Participant’s prior written consent. The Terms may not be modified, suspended
or terminated except by an instrument in writing signed by a duly authorized representative of the
Company and, if Participant’s consent is required, by Participant.
4.10
Successors and Assigns
. The Company may assign any of its rights under the Terms
to single or multiple assignees, and the Terms shall inure to the benefit of the successors and
assigns of the Company. Subject to the restrictions on transfer set forth in Section 3.5, the
Terms shall be binding upon Participant and Participant’s heirs, executors, administrators,
successors and assigns.
4.11
Limitations Applicable to Section 16 Persons
. Notwithstanding any other
provision of the Plan or the Terms, if Participant is subject to Section 16 of the Exchange Act,
the Plan, the Shares and the Terms shall be subject to any additional limitations set forth in any
applicable exemptive rule under Section 16 of the Exchange Act (including any amendment to Rule
16b-3 of the Exchange Act) that are requirements for the application of such exemptive rule. To
the extent permitted by applicable law, the Terms shall be deemed amended to the extent necessary
to conform to such applicable exemptive rule.
4.12
Entire Agreement
. The Plan and the Terms constitute the entire agreement of the
parties and supersede in their entirety all prior undertakings and agreements of the Company and
Participant with respect to the subject matter hereof.
A-7
EXHIBIT B TO THE RESTRICTED STOCK AWARD GRANT NOTICE
ALLERGAN, INC. 2008 INCENTIVE AWARD PLAN
EXHIBIT C TO THE RESTRICTED STOCK AWARD GRANT NOTICE
ALLERGAN, INC. 2008 INCENTIVE AWARD PLAN PROSPECTUS
Exhibit 10.12
RESTRICTED STOCK AWARD GRANT NOTICE
Pursuant to the Allergan, Inc. 2008 Incentive Award Plan (the “
Plan
”), Allergan, Inc. (the
“
Company
”) hereby grants to the employee listed below (“
Participant
”) the number of shares of the
Company’s common stock, par value US$0.01 per share (“
Stock
”), set forth below (the “
Shares
”).
This Restricted Stock award is subject to all of the terms and conditions set forth herein, in the
Terms and Conditions attached hereto as
Exhibit A
(the “
Restricted Stock Terms
”) and in the
Plan, each of which is incorporated herein by reference. Unless otherwise defined herein, the
terms defined in the Plan shall have the same defined meanings in this Restricted Stock Award Grant
Notice (the “
Grant Notice
”).
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Participant:
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Grant Date:
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Total Number of
Shares of Restricted Stock:
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Vesting Schedule:
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[To be specified in individual award agreements]
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Except as provided in Section 3.3(a) of the
Restricted Stock Terms, in no event shall the
Forfeiture Restriction (as defined in the Restricted
Stock Terms) lapse as to any additional Shares
following Participant’s Termination of Employment (as
defined in the Restricted Stock Terms).
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All decisions and interpretations of the Administrator arising under the Plan, this Grant
Notice or the Restricted Stock Terms or relating to the Shares shall be binding, conclusive and
final.
ALLERGAN, INC.
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By:
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Print Name:
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Title:
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Address:
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2525 Dupont Drive
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Irvine, California 92612
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Attachments:
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Terms and Conditions (
Exhibit A
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Allergan, Inc. 2008 Incentive Award Plan (
Exhibit B
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Allergan, Inc. 2008 Incentive Award Plan Prospectus (
Exhibit C
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EXHIBIT A TO THE RESTRICTED STOCK AWARD GRANT NOTICE
TERMS AND CONDITIONS
May 2008
Management Bonus Plan
Pursuant to the Restricted Stock Award Grant Notice (the “
Grant Notice
”) to which these Terms
and Conditions (the “
Terms
”) are attached, Allergan, Inc. (the “
Company
”) granted to the
participant (“
Participant
”) specified on the Grant Notice a restricted stock award under the
Allergan, Inc. 2008 Incentive Award Plan (the “
Plan
”) for the number of shares of the Company’s
common stock, par value US$0.01 per share (“
Stock
”), indicated in the Grant Notice (the “
Shares
”),
subject to the terms and conditions of the Grant Notice, the Terms and the Plan.
I. GENERAL
1.1
Defined Terms
. Wherever the following terms are used herein, they shall have the
meanings specified below, unless the context clearly indicates otherwise. Capitalized terms not
specifically defined herein shall have the meanings specified in the Grant Notice or, if not
defined therein, the Plan.
“
Job Elimination
” means Participant’s Termination of Employment by the Company or any
Subsidiary under circumstances satisfying each of the following conditions, as determined in the
sole and absolute discretion of the Company: (a) Participant’s Termination of Employment results in
or is part of a net headcount reduction of one or more employees; (b) Participant is not offered a
comparable position with the Company, a subsidiary or a successor entity or an affiliate of the
Company or a subsidiary; and (c) the Company provides written notice to Participant prior to his or
her Termination of Employment that it has determined Employee’s Termination of Employment is a “job
elimination.”
“
Termination of Employment
” shall mean the time when the employee-employer relationship
between Participant and the Company or any Subsidiary is terminated for any reason, with or without
cause, including, without limitation, a termination by resignation, discharge, death, disability or
retirement, but excluding terminations where there is a simultaneous reemployment or continuing
employment of Participant by the Company or any Subsidiary. The Administrator, in its discretion,
shall determine the effect of all matters and questions relating to Participant’s Termination of
Employment, including, without limitation, the question of whether such Termination of Employment
resulted from a discharge for cause. For purposes of the Terms, Participant’s employee-employer
relationship shall be deemed to be terminated in the event that the Subsidiary employing
Participant ceases to remain a Subsidiary following any merger, sale of stock or other corporate
transaction or event (including, without limitation, a spin-off).
1.2
Incorporation of Terms of Plan
. The Shares are subject to the terms and
conditions of the Plan, which are incorporated herein by reference.
II. GRANT OF RESTRICTED STOCK
2.1
Grant of Restricted Stock
. In consideration of Participant’s past and/or
continued employment with or service to the Company or its Subsidiaries and for other good and
valuable consideration, effective as of the grant date specified on the Grant Notice (the “
Grant
Date
”), the Company hereby agrees to issue the Shares to Participant, upon the terms and conditions
set forth in the Plan, the Grant Notice and the Terms.
2.2
Issuance of Shares
. The issuance of the Shares under the Terms shall occur at the
principal office of the Company simultaneously with the execution of the Grant Notice by the
Company or on such other date as the Company and Participant shall agree (the “
Issuance Date
”).
Subject to Section 2.3, the Company shall issue the Shares (which shall be issued in Participant’s
name) on the Issuance Date.
2.3
Conditions to Issuance of Stock Certificates
. The Shares, or any portion thereof,
may be either previously authorized but unissued shares or issued shares which have then been
reacquired by the Company. Such Shares shall be fully paid and nonassessable. The Company shall
not be required to issue or deliver any Shares prior to fulfillment of all of the following
conditions:
(a) The admission of such Shares to listing on all stock exchanges on which such Stock is then
listed;
(b) The completion of any registration or other qualification of such shares under any state
or federal law or under rulings or regulations of the Securities and Exchange Commission or of any
other governmental regulatory body, which the Administrator shall, in its sole and absolute
discretion, deem necessary or advisable;
(c) The obtaining of any approval or other clearance from any state or federal governmental
agency which the Administrator shall, in its sole and absolute discretion, determine to be
necessary or advisable;
(d) The lapse of such reasonable period of time following the Issuance Date as the
Administrator may from time to time establish for reasons of administrative convenience; and
(e) The receipt by the Company of full payment for such shares, including payment of all
amounts which, under federal, state or local tax law, the Company (or other Subsidiary) is required
to withhold upon issuance of such Shares.
2.4
Rights as Stockholder
. Except as otherwise provided in Section 3.6 or elsewhere
in the Terms, upon issuance of the Shares, Participant shall have all the rights of a stockholder
with respect to the Shares, including the right to vote the Shares and to receive all dividends or
other distributions paid or made with respect to the Shares.
2.5
Escrow
. Until the Forfeiture Restriction (as defined in Section 3.1) and all of
the restrictions on transfer imposed pursuant to the Terms lapse or are removed, the Administrator
may require the certificate(s) representing the Unreleased Shares (as defined in Section 3.4) to be
deposited with the Secretary of the Company, or such other escrow holder as the Administrator may
appoint, as Participant’s attorney-in-fact to sell, assign and transfer unto the Company, such
Unreleased Shares, if any, forfeited pursuant to Section 3.1.
III. RESTRICTIONS ON SHARES
3.1
Forfeiture Restriction
. Subject to the provisions of Section 3.2 and Section 3.3,
upon Participant’s Termination of Employment for any or no reason, all of the Unreleased Shares
shall thereupon be forfeited immediately and without any further action by the Company;
provided
,
however, that if Participant’s Termination of Employment occurs by reason of Participant’s Job
Elimination, all of the Unreleased Shares (after giving effect to any accelerated vesting that may
occur pursuant to Section 3.3(a) following Participant’s Termination of Employment) shall be
forfeited at such time as Participant may no longer become entitled to receive any accelerated
vesting under Section 3.3(a) (the “
Forfeiture
A-2
Restriction
”). Upon the occurrence of such a forfeiture, the Company shall become the legal
and beneficial owner of the Shares being forfeited and all rights and interests therein or relating
thereto, and the Company shall have the right to retain and transfer to its own name the number of
Shares being forfeited by Participant. In the event any of the Unreleased Shares are forfeited
under this Section 3.1, any cash, cash equivalents, assets or securities received by or distributed
to Participant with respect to, in exchange for or in substitution of such Shares and held by the
escrow agent pursuant to Section 2.5 and Section 3.6 shall be promptly transferred by the escrow
agent to the Company.
3.2
Release of Shares from Forfeiture Restriction
. The Shares shall be released from
the Forfeiture Restriction as indicated in the Grant Notice and Section 3.3 below. Any of the
Shares released from the Forfeiture Restriction shall thereupon be released from the restrictions
on transfer under Section 3.5. In the event any of the Shares are released from the Forfeiture
Restriction, any dividends or other distributions paid on such Shares and held by the escrow agent
pursuant to Section 2.5 and Section 3.6 shall be promptly paid by the escrow agent to Participant.
3.3
Accelerated Vesting
. Notwithstanding anything to the contrary in Section 3.2 or
the Grant Notice, the Shares shall be released from the Forfeiture Restriction on an accelerated
basis under the following circumstances:
(a) if Participant’s Termination of Employment occurs by reason of Participant’s Job
Elimination and, prior to the expiration of 55 days following the date of Participant’s termination
of Employment or such earlier date as may be specified by the Company, Participant executes and
delivers, and does not revoke, a general waiver and release of all claims against the Company and
its subsidiaries and the employees, directors, agents and affiliates of the Company and its
subsidiaries, in a form acceptable to the Company in its sole and absolute discretion, then the
Shares shall be released from the Forfeiture Restriction upon the date such general waiver and
release of all claims becomes effective and irrevocable, equal to the total number of Shares
specified in the Grant Notice, as adjusted pursuant to Section 11.1 of the Plan, multiplied by a
fraction, the numerator of which is the number of months from the Grant Date until the date of
Participant’s Termination of Employment, and the denominator of which is the number of months
during the vesting schedule set forth in the Grant Notice (
i.e.
, the number of months from the
Grant Date until the date the Shares otherwise would be released from the Forfeiture Restriction
pursuant to the vesting schedule set forth in the Grant Notice based solely on continued
employment);
(b) if Participant’s Termination of Employment occurs by reason of Participant’s death or
permanent and total disability (within the meaning of Section 22(e)(3) of the Internal Revenue Code
of 1986, as amended (the “
Code
”)), then the Shares shall be released from the Forfeiture
Restriction immediately prior to Participant’s Termination of Employment;
(c) if a Change in Control occurs prior to Participant’s Termination of Employment, then the
Shares shall be released from the Forfeiture Restriction immediately prior to the occurrence of
such Change in Control; and
(d) if Participant’s Normal Retirement Eligibility Date occurs prior to Participant’s
Termination of Employment, then the Shares shall be Released from the Forfeiture Restriction upon
Participant’s Normal Retirement Eligibility Date.
3.4
Unreleased Shares
. Any of the Shares which, from time to time, have not yet been
released from the Forfeiture Restriction are referred to herein as
“
Unreleased Shares
.”
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3.5
Restrictions on Transfer
.
(a) Subject to Section 3.5(b), no Unreleased Shares or any dividends or other distributions
thereon or any interest or right therein or part thereof shall be liable for the debts, contracts
or engagements of Participant or Participant’s successors in interest or shall be subject to sale
or other disposition by transfer, alienation, anticipation, pledge, hypothecation, encumbrance,
assignment or any other means whether such sale or other disposition be voluntary or involuntary or
by operation of law by judgment, levy, attachment, garnishment or any other legal or equitable
proceedings (including bankruptcy), and any attempted sale or other disposition thereof shall be
null and void and of no effect, except to the extent that such disposition is permitted by the
preceding sentence.
(b) Notwithstanding any other provision of the Terms, with the consent of the Administrator,
the Unreleased Shares may be transferred to one or more “Permitted Transferees” (as defined below),
subject to the following terms and conditions:
(i) the Unreleased Shares shall not be assignable or transferable by the Permitted
Transferee other than by will or the laws of descent and distribution;
(ii) the Unreleased Shares shall continue to be subject to all the terms and conditions
of the Plan and the Terms, as amended from time to time, as applicable to Participant (other
than the ability to further transfer the Unreleased Shares); and
(iii) Participant and the Permitted Transferee execute any and all documents requested
by the Company, including, without limitation documents to (A) confirm the status of the
transferee as a Permitted Transferee, (B) satisfy any requirements for an exemption for the
transfer under applicable federal and state securities laws, and (C) evidence the transfer.
“
Permitted Transferee
” means, with respect to Participant, any child, stepchild, grandchild,
parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law,
father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive
relationships, any person sharing Participant’s household (other than a tenant or employee), a
trust in which these persons have more than 50% of the beneficial interest, any other entity in
which these persons (or Participant) own more than 50% of the voting interests, or any other
transferee specifically approved by the Administrator.
3.6
Restrictions on Distributions, etc
. In the event of any dividend or other
distribution (whether in the form of cash, Stock, other securities or other property, but excluding
money paid as a regular cash dividend), recapitalization, reclassification, stock split, reverse
stock split, reorganization, merger, consolidation, split-up, spin off, combination, repurchase,
liquidation, dissolution, or sale, transfer, exchange or other disposition of all or substantially
all of the assets of the Company, or exchange of Stock or other securities of the Company, issuance
of warrants or other rights to purchase Stock or other securities of the Company, or other similar
corporate transaction or event that affects the Stock, then any new or additional or different
shares or securities or property (including cash) which is paid, issued, exchanged or distributed
in respect of Shares then subject to the Forfeiture Restriction shall be subject to the Forfeiture
Restriction and the restrictions on transfer set forth in Section 3.5 and shall be considered to be
Unreleased Shares, until such restrictions on the underlying Shares lapse or are removed pursuant
to the Terms (or, if such Shares are no longer outstanding, until such time as such Shares would
have been released from the Forfeiture Restriction pursuant to the Terms). The Administrator may
require any new or additional or different shares or securities or property (including cash)
considered to be Unreleased Shares pursuant to this Section 3.6 to be deposited with the Secretary
of the Company, or such other escrow holder as the Administrator may appoint, as Participant’s
attorney-in-fact to sell, assign and transfer unto the Company, such new or additional or different
shares or securities or property (including
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cash) considered to be Unreleased Shares pursuant to this Section 3.6, if any, forfeited
pursuant to Section 3.1. Notwithstanding the foregoing, nothing herein shall limit the ability of
the Administrator to adjust Unreleased Shares or make other adjustments to the terms and conditions
of the Terms in accordance with the provisions of Section 11.1 of the Plan.
IV. OTHER PROVISIONS
4.1
Administration
. The Administrator shall have the power to interpret the Plan and
the Terms and to adopt such rules for the administration, interpretation and application of the
Plan as are consistent therewith and to interpret, amend or revoke any such rules. All actions
taken and all interpretations and determinations made by the Administrator in good faith shall be
binding, conclusive and final upon Participant, the Company and all other interested persons. No
member of the Administrator shall be personally liable for any action, determination or
interpretation made in good faith with respect to the Plan, the Terms or the Shares.
4.2
Taxes
.
(a) Notwithstanding anything to the contrary in the Terms, the Company shall be entitled to
require payment to the Company or any of its Subsidiaries of any sums required by federal, state,
local or foreign tax law to be withheld with respect to the issuance of the Shares or any other
taxable event related to the Shares. The Company may permit Participant to make such payment in
one or more of the forms specified below:
(i) by cash or check made payable to the Company;
(ii) by the deduction of such amount from other compensation payable to Participant;
(iii) tendering vested shares of Stock having a then current Fair Market Value not
exceeding the amount necessary to satisfy the withholding obligation of the Company and its
Subsidiaries based on the minimum applicable statutory withholding rates for federal, state,
local and foreign income tax and payroll tax purposes; or
(iv) in any combination of the foregoing.
(b) In the event Participant fails to provide timely payment of all sums required pursuant to
Section 4.2(a), the Company (or other employer) shall have the right and option, but not the
obligation, to treat such failure as an election by Participant to satisfy all or any portion of
Participant’s required payment obligation pursuant to Section 4.2(a)(ii) or Section 4.2(a)(iii)
above, or any combination of the foregoing as the Company may determine to be appropriate, subject
to compliance with all applicable legal requirements. The Company shall not be obligated to
deliver any certificate evidencing the Shares to Participant or his legal representative unless and
until Participant or his legal representative shall have paid or otherwise satisfied in full the
amount of all federal, state, local and foreign taxes applicable with respect to the taxable income
of Participant resulting from the lapse of any restrictions (including the Forfeiture Restriction)
on the Shares or any other taxable event related to the Shares.
(c) Participant has reviewed with Participant’s own tax advisors the federal, state, local and
foreign tax consequences of this investment and the transactions contemplated by the Grant Notice
and the Terms. Participant is relying solely on such advisors and not on any statements or
representations of the Company or any of its agents. Participant understands that Participant (and
not the Company) shall be responsible for Participant’s own tax liability that may arise as a
result of this
A-5
investment or the transactions contemplated by the Terms. Participant understands that
Participant will recognize ordinary income for federal income tax purposes under Section 83 of the
Code as the restrictions applicable to the Unreleased Shares lapse. In this context, “restriction”
includes the Forfeiture Restriction. Participant understands that Participant may elect to be
taxed for federal income tax purposes at the time the Shares are issued rather than as and when the
Forfeiture Restriction lapses by filing an election under Section 83(b) of the Code with the
Internal Revenue Service no later than 30 days following the date of purchase.
PARTICIPANT ACKNOWLEDGES THAT IT IS PARTICIPANT’S SOLE RESPONSIBILITY AND NOT THE COMPANY’S TO
TIMELY FILE THE ELECTION UNDER SECTION 83(b), EVEN IF PARTICIPANT REQUESTS THE COMPANY OR ITS
REPRESENTATIVES TO MAKE THIS FILING ON PARTICIPANT’S BEHALF.
4.3
Restrictive Legends and Stop-Transfer Orders
.
(a) In order to enforce the Forfeiture Restriction and the other restrictions set forth in the
Plan and the Terms, the Administrator may cause one or more legends referencing the Forfeiture
Restriction and other restrictions, and any other legend(s) that may be required by applicable
federal, state or foreign securities laws, to be placed on the certificate(s) evidencing the
Shares.
(b) Participant agrees that, in order to ensure compliance with the restrictions referred to
herein, the Company may issue appropriate “stop transfer” instructions to its transfer agent, if
any, and that, if the Company transfers its own securities, it may make appropriate notations to
the same effect in its own records.
(c) The Company shall not be required: (i) to transfer on its books any Shares that have been
sold or otherwise transferred in violation of any of the provisions of the Terms, or (ii) to treat
as owner of such Shares or to accord the right to vote or pay dividends to any purchaser or other
transferee to whom such shares shall have been so transferred.
4.4
No Employment Rights
. Nothing in the Plan or the Terms shall confer upon
Participant any right to continue in the employ or service of the Company or any Subsidiary or
shall interfere with or restrict in any way the rights of the Company and its Subsidiaries, which
rights are hereby expressly reserved, to discharge or terminate Participant’s employment or
services at any time for any reason whatsoever, with or without cause, except to the extent
expressly provided otherwise in a written agreement between the Company or a Subsidiary and
Participant.
4.5
Notices
. All notices or other communications required or permitted hereunder
shall be in writing, and shall be deemed duly given only when delivered in person or when sent by
certified mail (return receipt requested) and deposited (with postage prepaid) in a post office or
branch post office regularly maintained by the United States Postal Service, addressed as follows:
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If to the Company:
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Allergan, Inc.
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Attention: General Counsel
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2525 Dupont Drive
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Irvine, California 92612
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If to Participant:
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To Participant’s most recent
address then on file in the Company’s personnel records.
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A-6
By a notice given pursuant to this Section 4.5, either party may thereafter designate a different
address for notices to be given to that party.
4.6
Titles
. Titles are provided herein for convenience only and are not to serve as a
basis for interpretation or construction of the Terms.
4.7
Governing Law; Severability
. The Terms shall be administered, interpreted and
enforced under the laws of the State of Delaware, without regard to conflicts of law principles
thereof. Should any provision of the Terms be determined by a court of law to be illegal or
unenforceable, the other provisions shall nevertheless remain effective and shall remain
enforceable.
4.8
Conformity to Securities Laws
. Participant acknowledges that the Plan is intended
to conform to the extent necessary with all provisions of the Securities Act and the Exchange Act
and any and all regulations and rules promulgated by the Securities and Exchange Commission
thereunder, and state and foreign securities laws and regulations. Notwithstanding anything herein
to the contrary, the Plan shall be administered, and the Shares are to be issued, only in such a
manner as to conform to such laws, rules and regulations. To the extent permitted by applicable
law, the Plan and the Terms shall be deemed amended to the extent necessary to conform to such
laws, rules and regulations.
4.9
Amendments
. To the extent permitted by the Plan, the Terms may be wholly or
partially amended or otherwise modified, suspended or terminated at any time or from time to time
by the Administrator;
provided
, that, except as may otherwise be provided by the Plan, no
termination, amendment, or modification of the Terms shall adversely affect the Shares in any
material way without Participant’s prior written consent. The Terms may not be modified, suspended
or terminated except by an instrument in writing signed by a duly authorized representative of the
Company and, if Participant’s consent is required, by Participant.
4.10
Successors and Assigns
. The Company may assign any of its rights under the Terms
to single or multiple assignees, and the Terms shall inure to the benefit of the successors and
assigns of the Company. Subject to the restrictions on transfer set forth in Section 3.5, the
Terms shall be binding upon Participant and Participant’s heirs, executors, administrators,
successors and assigns.
4.11
Limitations Applicable to Section 16 Persons
. Notwithstanding any other
provision of the Plan or the Terms, if Participant is subject to Section 16 of the Exchange Act,
the Plan, the Shares and the Terms shall be subject to any additional limitations set forth in any
applicable exemptive rule under Section 16 of the Exchange Act (including any amendment to Rule
16b-3 of the Exchange Act) that are requirements for the application of such exemptive rule. To
the extent permitted by applicable law, the Terms shall be deemed amended to the extent necessary
to conform to such applicable exemptive rule.
4.12
Entire Agreement
. The Plan and the Terms constitute the entire agreement of the
parties and supersede in their entirety all prior undertakings and agreements of the Company and
Participant with respect to the subject matter hereof.
A-7
EXHIBIT B TO THE RESTRICTED STOCK AWARD GRANT NOTICE
ALLERGAN, INC. 2008 INCENTIVE AWARD PLAN
EXHIBIT C TO THE RESTRICTED STOCK AWARD GRANT NOTICE
ALLERGAN, INC. 2008 INCENTIVE AWARD PLAN PROSPECTUS
Exhibit 10.13
RESTRICTED STOCK UNIT AWARD GRANT NOTICE
Pursuant to the Allergan, Inc. 2008 Incentive Award Plan (the “
Plan
”), Allergan, Inc. (the
“
Company
”) hereby grants to the employee listed below (“
Participant
”) the number of Restricted
Stock Units set forth below (the “
Restricted Stock Units
”). The Restricted Stock Units are subject
to all of the terms and conditions set forth herein, in the Terms and Conditions attached hereto as
Exhibit A
(the “
Restricted Stock Unit Terms
”) and in the Plan, each of which is
incorporated herein by reference. Unless otherwise defined herein, the terms defined in the Plan
shall have the same defined meanings in this Restricted Stock Unit Award Grant Notice (the “
Grant
Notice
”).
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Participant:
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Grant Date:
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Total Number of
Restricted Stock Units:
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Vesting Schedule:
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[To be specified in individual award agreements]
Except as provided in Section 2.3(a) of the
Restricted Stock Unit Terms, in no event shall
any additional Restricted Stock Units vest
following Participant’s Termination of
Employment (as defined in the Restricted Stock
Unit Terms).
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Distribution Schedule:
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The Restricted Stock Units shall be
distributable in accordance with Section 2.4 of
the Restricted Stock Unit Terms.
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All decisions and interpretations of the Administrator arising under the Plan, this Grant
Notice or the Restricted Stock Unit Terms or relating to the Restricted Stock Units shall be
binding, conclusive and final.
ALLERGAN, INC.
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By:
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Print Name:
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Title:
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Address:
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2525 Dupont Drive
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Irvine, California 92612
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Attachments:
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Terms and Conditions (
Exhibit A
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Allergan, Inc. 2008 Incentive Award Plan (
Exhibit B
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Allergan, Inc. 2008 Incentive Award Plan Prospectus (
Exhibit C
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EXHIBIT A TO THE RESTRICTED STOCK UNIT AWARD GRANT NOTICE
TERMS AND CONDITIONS
May 2008
Pursuant to the Restricted Stock Unit Award Grant Notice (the “
Grant Notice
”) to which these
Terms and Conditions (the “
Terms
”) are attached, Allergan, Inc. (the “
Company
”) granted to the
participant (“
Participant
”) specified on the Grant Notice a restricted stock unit award under the
Allergan, Inc. 2008 Incentive Award Plan (the “
Plan
”) for the number of restricted stock units
indicated in the Grant Notice (“
Restricted Stock Units
”), subject to the terms and conditions of
the Grant Notice, the Terms and the Plan.
I. GENERAL
1.1
Defined Terms
. Wherever the following terms are used herein they shall have the
meanings specified below, unless the context clearly indicates otherwise. Capitalized terms not
specifically defined herein shall have the meanings specified in the Grant Notice or, if not
defined therein, the Plan.
“
Job Elimination
” means Participant’s Termination of Employment by the Company or any
Subsidiary under circumstances satisfying each of the following conditions, as determined in the
sole and absolute discretion of the Company: (a) Participant’s Termination of Employment results in
or is part of a net headcount reduction of one or more employees; (b) Participant is not offered a
comparable position with the Company, a subsidiary or a successor entity or an affiliate of the
Company or a subsidiary; and (c) the Company provides written notice to Participant prior to his or
her Termination of Employment that it has determined Employee’s Termination of Employment is a “job
elimination.”
“
Termination of Employment
” shall mean the time when the employee-employer relationship
between Participant and the Company or any Subsidiary is terminated for any reason, with or without
cause, including, without limitation, a termination by resignation, discharge, death, disability or
retirement, but excluding terminations where there is a simultaneous reemployment or continuing
employment of Participant by the Company or any Subsidiary. The Administrator, in its discretion,
shall determine the effect of all matters and questions relating to Participant’s Termination of
Employment, including, without limitation, the question of whether such Termination of Employment
resulted from a discharge for cause. For purposes of the Terms, Participant’s employee-employer
relationship shall be deemed to be terminated in the event that the Subsidiary employing
Participant ceases to remain a Subsidiary following any merger, sale of stock or other corporate
transaction or event (including, without limitation, a spin-off).
1.2
Incorporation of Terms of Plan
. The Restricted Stock Units evidenced by the Grant
Notice and the Terms is also subject to the terms and conditions of the Plan, which are
incorporated herein by reference.
II. GRANT, VESTING AND DISTRIBUTION OF RESTRICTED STOCK UNITS
2.1
Grant of Restricted Stock Units
. In consideration of Participant’s past and/or
continued employment with or service to the Company or its Subsidiaries and for other good and
valuable consideration, effective as of the grant date specified on the Grant Notice (the “
Grant
Date
”), the Company irrevocably grants to Participant an award of the number of Restricted Stock
Units specified on
the Grant Notice, subject to the terms and conditions set forth in the Plan, the Grant Notice
and the Terms. Each Restricted Stock Unit represents the right to receive a share of the Company’s
common stock, par value $0.01 per share (“
Stock
”), at the time the Restricted Stock Unit is
available for distribution on a deferred basis in accordance with the terms and conditions set
forth in the Plan and the Terms.
2.2
Vesting of Restricted Stock Units
. The Restricted Stock Units shall vest in
accordance with the vesting schedule set forth in the Grant Notice and Section 2.3 below, or at
such earlier times as are set forth in a written agreement between the Company and Participant.
Unless and until the Restricted Stock Units have vested in accordance with the preceding sentence,
Participant shall have no right to any distribution made with respect to such Restricted Stock
Units. In the event of Participant’s Termination of Employment prior to the vesting of all of the
Restricted Stock Units, any Restricted Stock Units which remain unvested at such time will
terminate automatically and be forfeited without further notice and at no cost to the Company.
2.3
Accelerated Vesting
. Notwithstanding anything to the contrary in Section 2.2 or
the Grant Notice, all or a portion of the Restricted Stock Units shall vest on an accelerated basis
under the following circumstances:
(a) if Participant’s Termination of Employment occurs by reason of Participant’s Job
Elimination and, prior to the expiration of 55 days following the date of Participant’s termination
of Employment or such earlier date as may be specified by the Company, Participant executes and
delivers, and does not revoke, a general waiver and release of all claims against the Company and
its subsidiaries and the employees, directors, agents and affiliates of the Company and its
subsidiaries, in a form acceptable to the Company in its sole and absolute discretion, then a
number of Restricted Stock Units shall become vested upon the date such general waiver and release
of all claims becomes effective and irrevocable, the number of which will be equal to the total
number of Restricted Stock Units specified in the Grant Notice, as adjusted pursuant to Section
11.1 of the Plan, multiplied by a fraction, the numerator of which is the number of months from the
Grant Date until the date of Participant’s Termination of Employment, and the denominator of which
is the number of months during the vesting schedule set forth in the Grant Notice (i.e., the number
of months from the Grant Date until the date Participant would otherwise vest in the Restricted
Stock Units pursuant to Section 2.2 based solely on continued employment);
(b) if Participant’s Termination of Employment occurs by reason of Participant’s death or
permanent and total disability (within the meaning of Section 22(e)(3) of the Internal Revenue Code
of 1986, as amended (the “
Code
”)), then the Restricted Stock Units shall become fully vested
immediately prior to Participant’s Termination of Employment; and
(c) if a Change in Control occurs prior to Participant’s Termination of Employment, then the
Restricted Stock Units shall become fully vested immediately prior to the occurrence of such Change
in Control.
2.4
Distribution of Stock
.
(a) Subject to the terms and conditions of the Plan and the Terms, the shares of Stock
underlying the Restricted Stock Units shall be distributed to Participant (or in the event of
Participant’s death, to his or her estate) no later than 10 days following the date such Restricted
Stock Units vest under Section 2.2 or Section 2.3 (each vesting occurrence, a “
Distribution
Event
”).
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(b) All distributions shall be made by the Company in the form of whole shares of Stock (and
cash in an amount equal to the value of any fractional Restricted Stock Unit, determined based on
the Fair Market Value as of the distribution date).
2.5
Dividend Equivalent Rights
. In consideration of Participant’s past and/or
continued employment with or service to the Company or a Subsidiary and for other good and valuable
consideration, effective as of the Grant Date, the Company irrevocably grants to Participant
Dividend Equivalent Rights (as defined below) with respect to each Restricted Stock Unit that vests
pursuant to Section 2.2 or Section 2.3, subject to the terms and conditions of the Plan and the
Terms. “
Dividend Equivalent Right
” means a right to receive an amount equal to the aggregate
amount of dividends, if any, paid to the Company’s stockholders on one share of Stock where the
record date(s) for such dividends occurred during the period from the Grant Date through and
including the day immediately preceding the date the share of Stock subject to the Restricted Stock
Unit to which such Dividend Equivalent Right relates is distributed to Participant pursuant to
Section 2.4. Each Dividend Equivalent Right shall be paid, if at all, in cash or shares of Stock,
at the Company’s election, at the time the share of Stock subject to the Restricted Stock Unit to
which such Dividend Equivalent Right relates is distributed to Participant pursuant to Section 2.4.
Each Dividend Equivalent Right shall terminate as of the date the share of Stock subject to the
Restricted Stock Unit to which such Dividend Equivalent Right relates is distributed. Dividend
Equivalent Rights shall not be paid to Participant for any Restricted Stock Units that do not vest
pursuant to Section 2.2 or 2.3 above.
2.6
Conditions to Issuance of Stock Certificates
. The shares of Stock deliverable
upon settlement of the Restricted Stock Units, the Dividend Equivalent Rights, or any portion of
either, may be either previously authorized but unissued shares or issued shares which have then
been reacquired by the Company. Such shares shall be fully paid and nonassessable. The Company
shall not be required to issue or deliver any shares of Stock in settlement of the Restricted Stock
Units, the Dividend Equivalent Rights, or any portion of either, prior to fulfillment of all of the
following conditions:
(a) The admission of such shares to listing on all stock exchanges on which such Stock is then
listed;
(b) The completion of any registration or other qualification of such shares under any state
or federal law or under rulings or regulations of the Securities and Exchange Commission or of any
other governmental regulatory body, which the Administrator shall, in its sole and absolute
discretion, deem necessary or advisable;
(c) The obtaining of any approval or other clearance from any state or federal governmental
agency which the Administrator shall, in its sole and absolute discretion, determine to be
necessary or advisable;
(d) The receipt by the Company (or other employer) of full payment of all amounts which, under
federal, state or local tax law, the Company (or other employer) is required to withhold upon
issuance of such shares; and
(e) The lapse of such reasonable period of time following the applicable Distribution Event as
the Administrator may from time to time establish for reasons of administrative convenience.
2.7
Rights as Stockholder
. The holder of the Restricted Stock Units or Dividend
Equivalent Rights shall not be, nor have any of the rights or privileges of, a stockholder of the
Company in respect of any shares issuable or deliverable upon settlement of the Restricted Stock
Units or Dividend Equivalent Rights, or any part thereof, unless and until such shares shall have
been issued by the Company to such holder (as evidenced by the appropriate entry on the books of the Company or of a duly
authorized transfer agent of the Company).
A-3
III. OTHER PROVISIONS
3.1
Administration
. The Administrator shall have the power to interpret the Plan and
the Terms and to adopt such rules for the administration, interpretation and application of the
Plan as are consistent therewith and to interpret, amend or revoke any such rules. All actions
taken and all interpretations and determinations made by the Administrator in good faith shall be
binding, conclusive and final upon Participant, the Company and all other interested persons. No
member of the Administrator shall be personally liable for any action, determination or
interpretation made in good faith with respect to the Plan, the Terms, the Restricted Stock Units
or the Dividend Equivalent Rights. In its sole and absolute discretion, the Board may at any time
and from time to time exercise any and all rights and duties of the Administrator under the Plan
and the Terms, subject to Section 12.2 of the Plan.
3.2
Limited Transferability
.
(a) Subject to Section 3.2(b), the Restricted Stock Units may not be sold, pledged, assigned
or transferred in any manner other than by will or the laws of descent and distribution. Neither
the Restricted Stock Units nor any interest or right therein or part thereof shall be liable for
Participant’s debts, contracts or engagements or the debts, contracts or engagements of
Participant’s successors in interest or shall be subject to disposition by transfer, alienation,
anticipation, pledge, encumbrance, assignment or any other means whether such disposition be
voluntary or involuntary or by operation of law by judgment, levy, attachment, garnishment or any
other legal or equitable proceedings (including bankruptcy), and any attempted disposition thereof
shall be null and void and of no effect, except to the extent that such disposition is permitted by
the preceding sentence.
(b) Notwithstanding any other provision of the Terms, with the consent of the Administrator,
the Restricted Stock Units may be transferred to one or more “Permitted Transferees” (as defined
below), subject to the following terms and conditions:
(i) the Restricted Stock Units shall not be assignable or transferable by the Permitted
Transferee other than by will or the laws of descent and distribution;
(ii) the Restricted Stock Units shall continue to be subject to all the terms and
conditions of the Plan and the Terms, as amended from time to time, as applicable to
Participant (other than the ability to further transfer the Restricted Stock Units); and
(iii) Participant and the Permitted Transferee execute any and all documents requested
by the Company, including, without limitation documents to (A) confirm the status of the
transferee as a Permitted Transferee, (B) satisfy any requirements for an exemption for the
transfer under applicable federal and state securities laws, and (C) evidence the transfer.
“
Permitted Transferee
” means, with respect to Participant, any child, stepchild, grandchild,
parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law,
father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive
relationships, any person sharing Participant’s household (other than a tenant or employee), a
trust in which these persons have more than 50% of the beneficial interest, any other entity in
which these persons (or Participant) own more than 50% of the voting interests, or any other
transferee specifically approved by the Administrator.
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3.3
Restrictive Legends and Stop-Transfer Orders
.
(a) Any share certificate(s) evidencing the shares of Stock issued hereunder shall be endorsed
with any legend(s) that may be required by applicable federal, state or foreign securities laws, to
be placed on the certificate(s) evidencing such shares.
(b) Participant agrees that, in order to ensure compliance with the restrictions referred to
herein, the Company may issue appropriate “stop transfer” instructions to its transfer agent, if
any, and that, if the Company transfers its own securities, it may make appropriate notations to
the same effect in its own records.
(c) The Company shall not be required: (i) to transfer on its books any shares of Stock that
have been sold or otherwise transferred in violation of any of the provisions of the Terms, or (ii)
to treat as owner of such shares of Stock or to accord the right to vote or pay dividends to any
purchaser or other transferee to whom such shares shall have been so transferred.
3.4
No Employment Rights
. Nothing in the Plan or the Terms shall confer upon
Participant any right to continue in the employ or service of the Company or any Subsidiary or
shall interfere with or restrict in any way the rights of the Company and its Subsidiaries, which
rights are hereby expressly reserved, to discharge or terminate Participant’s employment or
services at any time for any reason whatsoever, with or without cause, except to the extent
expressly provided otherwise in a written agreement between the Company or a Subsidiary and
Participant.
3.5
Shares to Be Reserved
. The Company shall at all times prior to the settlement or
forfeiture of the Restricted Stock Units reserve and keep available such number of shares of Stock
as will be sufficient to satisfy the requirements of the Terms.
3.6
Notices
. All notices or other communications required or permitted hereunder
shall be in writing, and shall be deemed duly given only when delivered in person or when sent by
certified mail (return receipt requested) and deposited (with postage prepaid) in a post office or
branch post office regularly maintained by the United States Postal Service, addressed as follows:
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If to the Company:
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Allergan, Inc.
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Attention: General Counsel
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2525 Dupont Drive
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Irvine, California 92612
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If to Participant:
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To Participant’s most recent
address then on file in the Company’s personnel records.
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By a notice given pursuant to this Section 3.6, either party may thereafter designate a different
address for notices to be given to that party.
3.7
Titles
. Titles are provided herein for convenience only and are not to serve as a
basis for interpretation or construction of the Terms.
3.8
Governing Law; Severability
. The Terms shall be administered, interpreted and
enforced under the laws of the State of Delaware, without regard to conflicts of law principles
thereof. Should any provision of the Terms be determined by a court of law to be illegal or
unenforceable, the other provisions shall nevertheless remain effective and shall remain
enforceable.
A-5
3.9
Conformity to Securities Laws
. Participant acknowledges that the Plan is intended
to conform to the extent necessary with all provisions of the Securities Act and the Exchange Act
and any and all regulations and rules promulgated by the Securities and Exchange Commission
thereunder, and state and foreign securities laws and regulations. Notwithstanding anything herein
to the contrary, the Plan shall be administered, and the Restricted Stock Units shall be granted,
only in such a manner as to conform to such laws, rules and regulations. To the extent permitted
by applicable law, the Plan and the Terms shall be deemed amended to the extent necessary to
conform to such laws, rules and regulations.
3.10
Amendments
. To the extent permitted by the Plan, the Terms may be wholly or
partially amended or otherwise modified, suspended or terminated at any time or from time to time
by the Administrator;
provided
, that, except as may otherwise be provided by the Plan, no
termination, amendment, or modification of the Terms shall adversely affect the Restricted Stock
Units in any material way without Participant’s prior written consent. The Terms may not be
modified, suspended or terminated except by an instrument in writing signed by a duly authorized
representative of the Company and, if Participant’s consent is required, by Participant.
3.11
Successors and Assigns
. The Company may assign any of its rights with respect to
the Restricted Stock Units to single or multiple assignees, and the Terms shall inure to the
benefit of the successors and assigns of the Company. Subject to the restrictions on transfer set
forth in Section 3.2, the Terms shall be binding upon Participant and Participant’s heirs,
executors, administrators, successors and assigns.
3.12
Limitations Applicable to Section 16 Persons
. Notwithstanding any other
provision of the Plan or the Terms, if Participant is subject to Section 16 of the Exchange Act,
the Plan, the Restricted Stock Units and the Terms shall be subject to any additional limitations
set forth in any applicable exemptive rule under Section 16 of the Exchange Act (including any
amendment to Rule 16b-3 of the Exchange Act) that are requirements for the application of such
exemptive rule. To the extent permitted by applicable law, the Terms shall be deemed amended to
the extent necessary to conform to such applicable exemptive rule.
3.13
Taxes
.
(a) Notwithstanding anything to the contrary in the Terms, the Company shall be entitled to
require payment to the Company or any of its Subsidiaries any sums required by federal, state,
local or foreign tax law to be withheld with respect to the issuance of the Restricted Stock Units
or Distribution Equivalent Rights, the distribution of shares of Stock with respect thereto, or any
other taxable event related to the Restricted Stock Units or Distribution Equivalent Rights. The
Company may permit Participant to make such payment in one or more of the forms specified below:
(i) by cash or check made payable to the Company;
(ii) by the deduction of such amount from other compensation payable to Participant;
(iii) by requesting that the Company withhold a net number of vested shares of Stock
otherwise issuable having a then current Fair Market Value not exceeding the amount
necessary to satisfy the withholding obligation of the Company and its Subsidiaries based on
the minimum applicable statutory withholding rates for federal, state, local and foreign
income tax and payroll tax purposes;
A-6
(iv) tendering vested shares of Stock having a then current Fair Market Value not
exceeding the amount necessary to satisfy the withholding obligation of the Company and its
Subsidiaries based on the minimum applicable statutory withholding rates for federal, state,
local and foreign income tax and payroll tax purposes; or
(v) in any combination of the foregoing.
(b) In the event Participant fails to provide timely payment of all sums required pursuant to
Section 3.13(a), the Company (or other employer) shall have the right and option, but not the
obligation, to treat such failure as an election by Participant to satisfy all or any portion of
Participant’s required payment obligation pursuant to Section 3.13(a)(ii) or Section 3.13(a)(iii)
above, or any combination of the foregoing as the Company may determine to be appropriate. The
Company shall not be obligated to deliver any certificate representing shares of Stock issuable
with respect to the Restricted Stock Units or Distribution Equivalent Rights to Participant or his
legal representative unless and until Participant or his legal representative shall have paid or
otherwise satisfied in full the amount of all federal, state, local and foreign taxes applicable
with respect to the taxable income of Participant resulting from the grant of the Restricted Stock
Units or Distribution Equivalent Rights, the distribution of the shares of Stock issuable with
respect thereto, or any other taxable event related to the Restricted Stock Units or Distribution
Equivalent Rights.
3.14
Unfunded, Unsecured Obligations
. The obligations of the Company under the Plan
and the Terms shall be unfunded and unsecured, and nothing contained herein shall be construed as
providing for assets to be held in trust or escrow or any other form of segregation of the assets
of the Company for the benefit of Participant or any other person. Participant shall have only the
rights of a general, unsecured creditor of the Company with respect to the Restricted Stock Units,
unless and until shares of Stock shall be distributed to Participant under the terms and conditions
set forth herein.
3.15
Compliance with Internal Revenue Code Section 409A
. This Restricted Stock Units
and Dividend Equivalent Rights are not intended to provide for any deferral of compensation subject
to Code Section 409A and, accordingly, the benefits provided pursuant hereto shall be paid on or
before than the later of: (i) the fifteenth day of the third month following Participant’s first
taxable year in which such benefit is no longer subject to a substantial risk of forfeiture, and
(ii) the fifteenth day of the third month following the first taxable year of the Company in which
such benefit is no longer subject to a substantial risk of forfeiture, in each case, as determined
in accordance with Code Section 409A and any Treasury Regulations and other guidance issued
thereunder.
3.16
Entire Agreement
. The Plan and the Terms constitute the entire agreement of the
parties and supersede in their entirety all prior undertakings and agreements of the Company and
Participant with respect to the subject matter hereof.
A-7
EXHIBIT B TO THE RESTRICTED STOCK UNIT AWARD GRANT NOTICE
ALLERGAN, INC. 2008 INCENTIVE AWARD PLAN
EXHIBIT C TO THE RESTRICTED STOCK UNIT AWARD GRANT NOTICE
ALLERGAN, INC. 2008 INCENTIVE AWARD PLAN PROSPECTUS
Exhibit 10.14
RESTRICTED STOCK UNIT AWARD GRANT NOTICE
Pursuant to the Allergan, Inc. 2008 Incentive Award Plan (the “
Plan
”), Allergan, Inc. (the
“
Company
”) hereby grants to the employee listed below (“
Participant
”) the number of Restricted
Stock Units set forth below (the “
Restricted Stock Units
”). The Restricted Stock Units are subject
to all of the terms and conditions set forth herein, in the Terms and Conditions attached hereto as
Exhibit A
(the “
Restricted Stock Unit Terms
”) and in the Plan, each of which is
incorporated herein by reference. Unless otherwise defined herein, the terms defined in the Plan
shall have the same defined meanings in this Restricted Stock Unit Award Grant Notice (the “
Grant
Notice
”).
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Participant:
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Grant Date:
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Total Number of
Restricted Stock Units:
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Vesting Schedule:
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[To be specified in individual award agreements]
Except as provided in Section 2.3(a) of the
Restricted Stock Unit Terms, in no event shall
any additional Restricted Stock Units vest
following Participant’s Termination of
Employment (as defined in the Restricted Stock
Unit Terms).
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Distribution Schedule:
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The Restricted Stock Units shall be
distributable in accordance with Section 2.4 of
the Restricted Stock Unit Terms.
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All decisions and interpretations of the Administrator arising under the Plan, this Grant
Notice or the Restricted Stock Unit Terms or relating to the Restricted Stock Units shall be
binding, conclusive and final.
ALLERGAN, INC.
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By:
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Print Name:
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Title:
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Address:
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2525 Dupont Drive
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Irvine, California 92612
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Attachments:
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Terms and Conditions (
Exhibit A
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Allergan, Inc. 2008 Incentive Award Plan (
Exhibit B
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Allergan, Inc. 2008 Incentive Award Plan Prospectus (
Exhibit C
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EXHIBIT A TO THE RESTRICTED STOCK UNIT AWARD GRANT NOTICE
TERMS AND CONDITIONS
May 2008
Management Bonus Plan
Pursuant to the Restricted Stock Unit Award Grant Notice (the “
Grant Notice
”) to which these
Terms and Conditions (the “
Terms
”) are attached, Allergan, Inc. (the “
Company
”) granted to the
participant (“
Participant
”
) specified on the Grant Notice a restricted stock unit award under the
Allergan, Inc. 2008 Incentive Award Plan (the “
Plan
”) for the number of restricted stock units
indicated in the Grant Notice (“
Restricted Stock Units
”), subject to the terms and conditions of
the Grant Notice, the Terms and the Plan.
I. GENERAL
1.1
Defined Terms
. Wherever the following terms are used herein they shall have the
meanings specified below, unless the context clearly indicates otherwise. Capitalized terms not
specifically defined herein shall have the meanings specified in the Grant Notice or, if not
defined therein, the Plan.
“
Job Elimination
” means Participant’s Termination of Employment by the Company or any
Subsidiary under circumstances satisfying each of the following conditions, as determined in the
sole and absolute discretion of the Company: (a) Participant’s Termination of Employment results in
or is part of a net headcount reduction of one or more employees; (b) Participant is not offered a
comparable position with the Company, a subsidiary or a successor entity or an affiliate of the
Company or a subsidiary; and (c) the Company provides written notice to Participant prior to his or
her Termination of Employment that it has determined Employee’s Termination of Employment is a “job
elimination.”
“
Termination of Employment
” shall mean the time when the employee-employer relationship
between Participant and the Company or any Subsidiary is terminated for any reason, with or without
cause, including, without limitation, a termination by resignation, discharge, death, disability or
retirement, but excluding terminations where there is a simultaneous reemployment or continuing
employment of Participant by the Company or any Subsidiary. The Administrator, in its discretion,
shall determine the effect of all matters and questions relating to Participant’s Termination of
Employment, including, without limitation, the question of whether such Termination of Employment
resulted from a discharge for cause. For purposes of the Terms, Participant’s employee-employer
relationship shall be deemed to be terminated in the event that the Subsidiary employing
Participant ceases to remain a Subsidiary following any merger, sale of stock or other corporate
transaction or event (including, without limitation, a spin-off).
1.2
Incorporation of Terms of Plan
. The Restricted Stock Units evidenced by the Grant
Notice and the Terms is also subject to the terms and conditions of the Plan, which are
incorporated herein by reference.
II. GRANT, VESTING AND DISTRIBUTION OF RESTRICTED STOCK UNITS
2.1
Grant of Restricted Stock Units
. In consideration of Participant’s past and/or
continued employment with or service to the Company or its Subsidiaries and for other good and
valuable consideration, effective as of the grant date specified on the Grant Notice (the “
Grant
Date
”), the
Company irrevocably grants to Participant an award of the number of Restricted Stock Units
specified on the Grant Notice, subject to the terms and conditions set forth in the Plan, the Grant
Notice and the Terms. Each Restricted Stock Unit represents the right to receive a share of the
Company’s common stock, par value $0.01 per share (“
Stock
”), at the time the Restricted Stock Unit
is available for distribution on a deferred basis in accordance with the terms and conditions set
forth in the Plan and the Terms.
2.2
Vesting of Restricted Stock Units
. The Restricted Stock Units shall vest in
accordance with the vesting schedule set forth in the Grant Notice and Section 2.3 below, or at
such earlier times as are set forth in a written agreement between the Company and Participant.
Unless and until the Restricted Stock Units have vested in accordance with the preceding sentence,
Participant shall have no right to any distribution made with respect to such Restricted Stock
Units. In the event of Participant’s Termination of Employment prior to the vesting of all of the
Restricted Stock Units, any Restricted Stock Units which remain unvested at such time will
terminate automatically and be forfeited without further notice and at no cost to the Company.
2.3
Accelerated Vesting
. Notwithstanding anything to the contrary in Section 2.2 or
the Grant Notice, all or a portion of the Restricted Stock Units shall vest on an accelerated basis
under the following circumstances:
(a) if Participant’s Termination of Employment occurs by reason of Participant’s Job
Elimination and, prior to the expiration of 55 days following the date of Participant’s termination
of Employment or such earlier date as may be specified by the Company, Participant executes and
delivers, and does not revoke, a general waiver and release of all claims against the Company and
its subsidiaries and the employees, directors, agents and affiliates of the Company and its
subsidiaries, in a form acceptable to the Company in its sole and absolute discretion, then a
number of Restricted Stock Units shall become vested upon the date such general waiver and release
of all claims becomes effective and irrevocable, the number of which will be equal to the total
number of Restricted Stock Units specified in the Grant Notice, as adjusted pursuant to Section
11.1 of the Plan, multiplied by a fraction, the numerator of which is the number of months from the
Grant Date until the date of Participant’s Termination of Employment, and the denominator of which
is the number of months during the vesting schedule set forth in the Grant Notice (i.e., the number
of months from the Grant Date until the date Participant would otherwise vest in the Restricted
Stock Units pursuant to Section 2.2 based solely on continued employment);
(b) if Participant’s Termination of Employment occurs by reason of Participant’s death or
permanent and total disability (within the meaning of Section 22(e)(3) of the Internal Revenue Code
of 1986, as amended (the “
Code
”)), then the Restricted Stock Units shall become fully vested
immediately prior to Participant’s Termination of Employment;
(c) if a Change in Control occurs prior to Participant’s Termination of Employment, then the
Restricted Stock Units shall become fully vested immediately prior to the occurrence of such Change
in Control; and
(d) if Participant’s Normal Retirement Eligibility Date occurs prior to Participant’s
Termination of Employment, then the Restricted Stock Units shall become fully vested upon
Participant’s Normal Retirement Eligibility Date.
2.4
Distribution of Stock
.
(a) Subject to the terms and conditions of the Plan and the Terms, the shares of Stock
underlying the Restricted Stock Units shall be distributed to Participant (or in the event of
Participant’s death, to his or her estate) no later than 10 days following the date such Restricted Stock
Units vest under Section 2.2 or Section 2.3 (each vesting occurrence, a “
Distribution Event
”).
A-2
(b) All distributions shall be made by the Company in the form of whole shares of Stock (and
cash in an amount equal to the value of any fractional Restricted Stock Unit, determined based on
the Fair Market Value as of the distribution date).
2.5
Dividend Equivalent Rights
. In consideration of Participant’s past and/or
continued employment with or service to the Company or a Subsidiary and for other good and valuable
consideration, effective as of the Grant Date, the Company irrevocably grants to Participant
Dividend Equivalent Rights (as defined below) with respect to each Restricted Stock Unit that vests
pursuant to Section 2.2 or Section 2.3, subject to the terms and conditions of the Plan and the
Terms. “
Dividend Equivalent Right
” means a right to receive an amount equal to the aggregate
amount of dividends, if any, paid to the Company’s stockholders on one share of Stock where the
record date(s) for such dividends occurred during the period from the Grant Date through and
including the day immediately preceding the date the share of Stock subject to the Restricted Stock
Unit to which such Dividend Equivalent Right relates is distributed to Participant pursuant to
Section 2.4. Each Dividend Equivalent Right shall be paid, if at all, in cash or shares of Stock,
at the Company’s election, at the time the share of Stock subject to the Restricted Stock Unit to
which such Dividend Equivalent Right relates is distributed to Participant pursuant to Section 2.4.
Each Dividend Equivalent Right shall terminate as of the date the share of Stock subject to the
Restricted Stock Unit to which such Dividend Equivalent Right relates is distributed. Dividend
Equivalent Rights shall not be paid to Participant for any Restricted Stock Units that do not vest
pursuant to Section 2.2 or 2.3 above.
2.6
Conditions to Issuance of Stock Certificates
. The shares of Stock deliverable
upon settlement of the Restricted Stock Units, the Dividend Equivalent Rights, or any portion of
either, may be either previously authorized but unissued shares or issued shares which have then
been reacquired by the Company. Such shares shall be fully paid and nonassessable. The Company
shall not be required to issue or deliver any shares of Stock in settlement of the Restricted Stock
Units, the Dividend Equivalent Rights, or any portion of either, prior to fulfillment of all of the
following conditions:
(a) The admission of such shares to listing on all stock exchanges on which such Stock is then
listed;
(b) The completion of any registration or other qualification of such shares under any state
or federal law or under rulings or regulations of the Securities and Exchange Commission or of any
other governmental regulatory body, which the Administrator shall, in its sole and absolute
discretion, deem necessary or advisable;
(c) The obtaining of any approval or other clearance from any state or federal governmental
agency which the Administrator shall, in its sole and absolute discretion, determine to be
necessary or advisable;
(d) The receipt by the Company (or other employer) of full payment of all amounts which, under
federal, state or local tax law, the Company (or other employer) is required to withhold upon
issuance of such shares; and
(e) The lapse of such reasonable period of time following the applicable Distribution Event as
the Administrator may from time to time establish for reasons of administrative convenience.
A-3
2.7
Rights as Stockholder
. The holder of the Restricted Stock Units or Dividend
Equivalent Rights shall not be, nor have any of the rights or privileges of, a stockholder of the
Company in respect of any shares issuable or deliverable upon settlement of the Restricted Stock
Units or Dividend Equivalent Rights, or any part thereof, unless and until such shares shall have
been issued by the Company to such holder (as evidenced by the appropriate entry on the books of
the Company or of a duly authorized transfer agent of the Company).
III. OTHER PROVISIONS
3.1
Administration
. The Administrator shall have the power to interpret the Plan and
the Terms and to adopt such rules for the administration, interpretation and application of the
Plan as are consistent therewith and to interpret, amend or revoke any such rules. All actions
taken and all interpretations and determinations made by the Administrator in good faith shall be
binding, conclusive and final upon Participant, the Company and all other interested persons. No
member of the Administrator shall be personally liable for any action, determination or
interpretation made in good faith with respect to the Plan, the Terms, the Restricted Stock Units
or the Dividend Equivalent Rights. In its sole and absolute discretion, the Board may at any time
and from time to time exercise any and all rights and duties of the Administrator under the Plan
and the Terms, subject to Section 12.2 of the Plan.
3.2
Limited Transferability
.
(a) Subject to Section 3.2(b), the Restricted Stock Units may not be sold, pledged, assigned
or transferred in any manner other than by will or the laws of descent and distribution. Neither
the Restricted Stock Units nor any interest or right therein or part thereof shall be liable for
Participant’s debts, contracts or engagements or the debts, contracts or engagements of
Participant’s successors in interest or shall be subject to disposition by transfer, alienation,
anticipation, pledge, encumbrance, assignment or any other means whether such disposition be
voluntary or involuntary or by operation of law by judgment, levy, attachment, garnishment or any
other legal or equitable proceedings (including bankruptcy), and any attempted disposition thereof
shall be null and void and of no effect, except to the extent that such disposition is permitted by
the preceding sentence.
(b) Notwithstanding any other provision of the Terms, with the consent of the Administrator,
the Restricted Stock Units may be transferred to one or more “Permitted Transferees” (as defined
below), subject to the following terms and conditions:
(i) the Restricted Stock Units shall not be assignable or transferable by the Permitted
Transferee other than by will or the laws of descent and distribution;
(ii) the Restricted Stock Units shall continue to be subject to all the terms and
conditions of the Plan and the Terms, as amended from time to time, as applicable to
Participant (other than the ability to further transfer the Restricted Stock Units); and
(iii) Participant and the Permitted Transferee execute any and all documents requested
by the Company, including, without limitation documents to (A) confirm the status of the
transferee as a Permitted Transferee, (B) satisfy any requirements for an exemption for the
transfer under applicable federal and state securities laws, and (C) evidence the transfer.
“
Permitted Transferee
” means, with respect to Participant, any child, stepchild, grandchild,
parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law,
father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, including adoptive
relationships, any person sharing Participant’s household (other than a tenant or employee), a
trust in which these persons have
more than 50% of the beneficial interest, any other entity in which these persons (or Participant)
own more than 50% of the voting interests, or any other transferee specifically approved by the
Administrator.
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3.3
Restrictive Legends and Stop-Transfer Orders
.
(a) Any share certificate(s) evidencing the shares of Stock issued hereunder shall be endorsed
with any legend(s) that may be required by applicable federal, state or foreign securities laws, to
be placed on the certificate(s) evidencing such shares.
(b) Participant agrees that, in order to ensure compliance with the restrictions referred to
herein, the Company may issue appropriate “stop transfer” instructions to its transfer agent, if
any, and that, if the Company transfers its own securities, it may make appropriate notations to
the same effect in its own records.
(c) The Company shall not be required: (i) to transfer on its books any shares of Stock that
have been sold or otherwise transferred in violation of any of the provisions of the Terms, or (ii)
to treat as owner of such shares of Stock or to accord the right to vote or pay dividends to any
purchaser or other transferee to whom such shares shall have been so transferred.
3.4
No Employment Rights
. Nothing in the Plan or the Terms shall confer upon
Participant any right to continue in the employ or service of the Company or any Subsidiary or
shall interfere with or restrict in any way the rights of the Company and its Subsidiaries, which
rights are hereby expressly reserved, to discharge or terminate Participant’s employment or
services at any time for any reason whatsoever, with or without cause, except to the extent
expressly provided otherwise in a written agreement between the Company or a Subsidiary and
Participant.
3.5
Shares to Be Reserved
. The Company shall at all times prior to the settlement or
forfeiture of the Restricted Stock Units reserve and keep available such number of shares of Stock
as will be sufficient to satisfy the requirements of the Terms.
3.6
Notices
. All notices or other communications required or permitted hereunder
shall be in writing, and shall be deemed duly given only when delivered in person or when sent by
certified mail (return receipt requested) and deposited (with postage prepaid) in a post office or
branch post office regularly maintained by the United States Postal Service, addressed as follows:
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If to the Company:
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Allergan, Inc.
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Attention: General Counsel
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2525 Dupont Drive
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Irvine, California 92612
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If to Participant:
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To Participant’s most recent
address then
on file in the Company’s personnel records.
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By a notice given pursuant to this Section 3.6, either party may thereafter designate a different
address for notices to be given to that party.
3.7
Titles
. Titles are provided herein for convenience only and are not to serve as a
basis for interpretation or construction of the Terms.
3.8
Governing Law; Severability
. The Terms shall be administered, interpreted and
enforced under the laws of the State of Delaware, without regard to conflicts of law principles
thereof. Should any provision of the Terms be determined by a court of law to be illegal or unenforceable, the
other provisions shall nevertheless remain effective and shall remain enforceable.
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3.9
Conformity to Securities Laws
. Participant acknowledges that the Plan is intended
to conform to the extent necessary with all provisions of the Securities Act and the Exchange Act
and any and all regulations and rules promulgated by the Securities and Exchange Commission
thereunder, and state and foreign securities laws and regulations. Notwithstanding anything herein
to the contrary, the Plan shall be administered, and the Restricted Stock Units shall be granted,
only in such a manner as to conform to such laws, rules and regulations. To the extent permitted
by applicable law, the Plan and the Terms shall be deemed amended to the extent necessary to
conform to such laws, rules and regulations.
3.10
Amendments
. To the extent permitted by the Plan, the Terms may be wholly or
partially amended or otherwise modified, suspended or terminated at any time or from time to time
by the Administrator;
provided
, that, except as may otherwise be provided by the Plan, no
termination, amendment, or modification of the Terms shall adversely affect the Restricted Stock
Units in any material way without Participant’s prior written consent. The Terms may not be
modified, suspended or terminated except by an instrument in writing signed by a duly authorized
representative of the Company and, if Participant’s consent is required, by Participant.
3.11
Successors and Assigns
. The Company may assign any of its rights with respect to
the Restricted Stock Units to single or multiple assignees, and the Terms shall inure to the
benefit of the successors and assigns of the Company. Subject to the restrictions on transfer set
forth in Section 3.2, the Terms shall be binding upon Participant and Participant’s heirs,
executors, administrators, successors and assigns.
3.12
Limitations Applicable to Section 16 Persons
. Notwithstanding any other
provision of the Plan or the Terms, if Participant is subject to Section 16 of the Exchange Act,
the Plan, the Restricted Stock Units and the Terms shall be subject to any additional limitations
set forth in any applicable exemptive rule under Section 16 of the Exchange Act (including any
amendment to Rule 16b-3 of the Exchange Act) that are requirements for the application of such
exemptive rule. To the extent permitted by applicable law, the Terms shall be deemed amended to
the extent necessary to conform to such applicable exemptive rule.
3.13
Taxes
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(a) Notwithstanding anything to the contrary in the Terms, the Company shall be entitled to
require payment to the Company or any of its Subsidiaries any sums required by federal, state,
local or foreign tax law to be withheld with respect to the issuance of the Restricted Stock Units
or Distribution Equivalent Rights, the distribution of shares of Stock with respect thereto, or any
other taxable event related to the Restricted Stock Units or Distribution Equivalent Rights. The
Company may permit Participant to make such payment in one or more of the forms specified below:
(i) by cash or check made payable to the Company;
(ii) by the deduction of such amount from other compensation payable to Participant;
(iii) by requesting that the Company withhold a net number of vested shares of Stock
otherwise issuable having a then current Fair Market Value not exceeding the amount
necessary to satisfy the withholding obligation of the Company and its Subsidiaries based on
the minimum applicable statutory withholding rates for federal, state, local and foreign
income tax and payroll tax purposes;
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(iv) tendering vested shares of Stock having a then current Fair Market Value not
exceeding the amount necessary to satisfy the withholding obligation of the Company and its
Subsidiaries based on the minimum applicable statutory withholding rates for federal, state,
local and foreign income tax and payroll tax purposes; or
(v) in any combination of the foregoing.
(b) In the event Participant fails to provide timely payment of all sums required pursuant to
Section 3.13(a), the Company (or other employer) shall have the right and option, but not the
obligation, to treat such failure as an election by Participant to satisfy all or any portion of
Participant’s required payment obligation pursuant to Section 3.13(a)(ii) or Section 3.13(a)(iii)
above, or any combination of the foregoing as the Company may determine to be appropriate. The
Company shall not be obligated to deliver any certificate representing shares of Stock issuable
with respect to the Restricted Stock Units or Distribution Equivalent Rights to Participant or his
legal representative unless and until Participant or his legal representative shall have paid or
otherwise satisfied in full the amount of all federal, state, local and foreign taxes applicable
with respect to the taxable income of Participant resulting from the grant of the Restricted Stock
Units or Distribution Equivalent Rights, the distribution of the shares of Stock issuable with
respect thereto, or any other taxable event related to the Restricted Stock Units or Distribution
Equivalent Rights.
3.14
Unfunded, Unsecured Obligations
. The obligations of the Company under the Plan
and the Terms shall be unfunded and unsecured, and nothing contained herein shall be construed as
providing for assets to be held in trust or escrow or any other form of segregation of the assets
of the Company for the benefit of Participant or any other person. Participant shall have only the
rights of a general, unsecured creditor of the Company with respect to the Restricted Stock Units,
unless and until shares of Stock shall be distributed to Participant under the terms and conditions
set forth herein.
3.15
Compliance with Internal Revenue Code Section 409A
. This Restricted Stock Units
and Dividend Equivalent Rights are not intended to provide for any deferral of compensation subject
to Code Section 409A and, accordingly, the benefits provided pursuant hereto shall be paid on or
before than the later of: (i) the fifteenth day of the third month following Participant’s first
taxable year in which such benefit is no longer subject to a substantial risk of forfeiture, and
(ii) the fifteenth day of the third month following the first taxable year of the Company in which
such benefit is no longer subject to a substantial risk of forfeiture, in each case, as determined
in accordance with Code Section 409A and any Treasury Regulations and other guidance issued
thereunder.
3.16
Entire Agreement
. The Plan and the Terms constitute the entire agreement of the
parties and supersede in their entirety all prior undertakings and agreements of the Company and
Participant with respect to the subject matter hereof.
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EXHIBIT B TO THE RESTRICTED STOCK UNIT AWARD GRANT NOTICE
ALLERGAN, INC. 2008 INCENTIVE AWARD PLAN
EXHIBIT C TO THE RESTRICTED STOCK UNIT AWARD GRANT NOTICE
ALLERGAN, INC. 2008 INCENTIVE AWARD PLAN PROSPECTUS
