**Exhibit 10.1**

 

GENAISSANCEPHARMACEUTICALS, INC.

 

RestrictedStock AgreementGranted Under 2000 Amended and Restated Equity Incentive Plan

 

AGREEMENT made as of this 7th day of January, 2005,between Genaissance Pharmaceuticals, Inc., a Delaware****corporation(the “Company”), and                                     (the “Participant”).

 

For valuable consideration, receipt of which isacknowledged, the parties hereto agree as follows:

 

# 1.                                       Purchase of Shares.

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The Company shall issue and sell to the Participant,and the Participant shall purchase from the Company, subject to the terms andconditions set forth in this Agreement and in the Company’s 2000 Amended andRestated Equity Incentive Plan, as amended (the “Plan”),             shares (the “Shares”) of common stock, $0.001 par value, of the Company (“CommonStock”), at a purchase price of $0.001****pershare.  The aggregate purchase price forthe Shares shall be paid by the Participant by check payable to the order ofthe Company or such other method as may be acceptable to the Company.  Upon receipt by the Company of payment forthe Shares, the Company shall issue to the Participant one or more certificatesin the name of the Participant for that number of Shares purchased by theParticipant.  The Participant agrees thatthe Shares shall be subject to the purchase option set forth in Section 2of this Agreement and the restrictions on transfer set forth in Section 4of this Agreement.

 

# 2.                                       Purchase Option.

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## (a)                                  Inthe event that the Participant ceases to be employed as an employee, officer ordirector of, or consultant or advisor to, the Company for any reason or noreason, with or without cause, including, without limitation, upon the death,disability, termination or retirement of the Participant, prior to February 17,2006, the Company shall, upon the date of such termination (the “TerminationDate”), have the right and option (the “Purchase Option”) for a period of 60days from such date to purchase from the Participant, for a sum of $0.001 pershare (the “Option Price”), some or all of the Unvested Shares (as definedbelow).

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“Unvested Shares” means the total number of Sharesmultiplied by the Applicable Percentage at the time the Purchase Option becomesexercisable by the Company.  The “ApplicablePercentage” shall be (i) 100% during the period ending February 16,2006 and (ii) 0% after February 16, 2006. For purposes of thisAgreement, employment with the Company shall include employment with a parentor subsidiary of the Company, if any.

 

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# 3.                                       Exercise of Purchase Option and Closing.

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## (a)                                  Unlessthe Company notifies the Participant within 60 days from the Termination Datethat it does not intend to exercise its Purchase Option with respect to some orall of the Unvested Shares, the Purchase Option shall be deemed automaticallyexercised by the Company as of the 60th day following suchtermination, provided that the Company may exercise the Purchase Option bydelivering or mailing to the Participant (or his estate), within 60 days afterthe Termination Date, a written notice of exercise of the Purchase Option.  Such notice shall specify the number ofShares to be purchased.  Unless theParticipant is otherwise notified by the Company pursuant to the precedingsentences that the Company does not intend to exercise its Purchase Option asto some or all of the Unvested Shares to which it applies at the time oftermination, execution of this Agreement by the Participant constitutes writtennotice to the Participant of the Company’s intention to exercise its Purchase Optionwith respect to all Unvested Shares to which such Purchase Option applies.

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## (b)                                 Within10 days after (i) delivery to the Participant of the Company’s notice ofthe exercise of the Purchase Option, which supplements the notice providedherein, or (ii) the deemed exercise of the Purchase Option, each pursuantto subsection (a) above, the Participant (or his estate) shall,pursuant to the provisions of the Joint Escrow Instructions referred to in Section 6below, tender to the Company at its principal offices the certificate orcertificates representing the Shares which the Company has elected to purchasein accordance with the terms of this Agreement, duly endorsed in blank or withduly endorsed stock powers attached thereto, all in form suitable for thetransfer of such Shares to the Company. Promptly following its receipt of such certificate or certificates, theCompany shall pay to the Participant the aggregate Option Price for such Shares(provided that any delay in making such payment shall not invalidate theCompany’s exercise of the Purchase Option with respect to such Shares).

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## (c)                                  Afterthe time at which any Shares are required to be delivered to the Company fortransfer to the Company pursuant to subsection (b) above, the Companyshall not pay any dividend to the Participant on account of such Shares orpermit the Participant to exercise any of the privileges or rights of astockholder with respect to such Shares, but shall, in so far as permitted bylaw, treat the Company as the owner of such Shares.

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## (d)                                 TheOption Price may be payable, at the option of the Company, in cancellation ofall or a portion of any outstanding indebtedness of the Participant to theCompany or in cash (by check) or both.

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## (e)                                  TheCompany shall not purchase any fraction of a Share upon exercise of thePurchase Option, and any fraction of a Share resulting from a computation madepursuant to Section 2 of this Agreement shall be rounded to the nearestwhole Share (with any one-half Share being rounded upward).

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## (f)                                    TheCompany may assign its Purchase Option to one or more persons or entities.

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# 4.                                       Restrictions on Transfer.

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## (a)                                  TheParticipant shall not sell, assign, transfer, pledge, hypothecate or otherwisedispose of or encumber, by operation of law or otherwise (collectively “transfer”)any

 

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## Shares, or any interesttherein, that are subject to the Purchase Option, except that the Participantmay transfer such Shares (i) to or for the benefit of any spouse,children, parents, uncles, aunts, siblings, grandchildren and any otherrelatives approved by the Board of Directors or a committee thereof(collectively, “Approved Relatives”) or to a trust established solely for thebenefit of the Participant and/or Approved Relatives, provided that suchShares shall remain subject to this Agreement (including without limitation therestrictions on transfer set forth in this Section 4 and the PurchaseOption) and such permitted transferee shall, as a condition to such transfer,deliver to the Company a written instrument confirming that such transfereeshall be bound by all of the terms and conditions of this Agreement or (ii) aspart of the sale of all or substantially all of the shares of capital stock ofthe Company (including pursuant to a merger or consolidation), providedthat, in accordance with the Plan, the securities or other property received bythe Participant in connection with such transaction shall remain subject tothis Agreement.

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# 5.                                       Agreement in Connection with Public Offering.

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The Participant agrees, in connection with anunderwritten public offering of the Company’s securities pursuant to aregistration statement under the Securities Act, (i) not to sell, makeshort sale of, loan, grant any options for the purchase of, or otherwisedispose of any shares of Common Stock held by the Participant (other than thoseshares included in the offering) without the prior written consent of theCompany or the underwriters managing such underwritten public offering of theCompany’s securities for a period of 180 days from the effective date of suchregistration statement, and (ii) to execute any agreement reflectingclause (i) above as may be requested by the Company or the managingunderwriters at the time of such offering.

 

# 6.                                       Escrow.

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The Participant shall, upon the execution of thisAgreement, execute Joint Escrow Instructions in the form attached to thisAgreement as Exhibit A.  TheJoint Escrow Instructions shall be delivered to the Secretary of the Company,as escrow agent thereunder.  TheParticipant shall deliver to such escrow agent a stock assignment duly endorsedin blank, in the form attached to this Agreement as Exhibit B, andhereby instructs the Company to deliver to such escrow agent, on behalf of theParticipant, the certificate(s) evidencing the Shares issued hereunder.  Such materials shall be held by such escrowagent pursuant to the terms of such Joint Escrow Instructions.

 

# 7.                                       Restrictive Legends.

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All certificates representing Shares shall haveaffixed thereto legends in substantially the following form, in addition to anyother legends that may be required under federal or state securities laws:

 

“Theshares of stock represented by this certificate are subject to the restrictionson transfer and an option to purchase set forth in a certain Restricted StockAgreement between the corporation and the registered owner of these shares (orhis or her successor in

 

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interest),and such Agreement is available for inspection without charge at the office ofthe Secretary of the corporation.”

 

# 8.                                       Provisions of the Plan.

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This Agreement is subject to the provisions of thePlan, a copy of which is furnished to the Participant with this Agreement.

 

# 9.                                       Withholding Taxes; Section 83(b) Election.

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## (a)                                  TheParticipant acknowledges and agrees that the Company has the right to deductfrom payments of any kind otherwise due to the Participant any federal, stateor local taxes of any kind required by law to be withheld with respect to thepurchase of the Shares by the Participant or the lapse of the Purchase Option.

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## (b)                                 TheParticipant acknowledges and agrees that the Company has the right in its solediscretion, in addition to the right granted to the Company pursuant to Section 9(a) hereofand the other rights of the Company herein, to cause certain of the Sharesotherwise due to the Participant to be surrendered by the Participant to theCompany in order to satisfy any federal, state or local taxes of any kindrequired by law to be withheld by the Company with respect to the purchase ofthe Shares by the Participant or the lapse of the Purchase Option.

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## (c)                                  TheParticipant has reviewed with the Participant’s own tax advisors the federal,state, local and foreign tax consequences of this investment and thetransactions contemplated by this Agreement. The Participant is relying solely on such advisors and not on anystatements or representations of the Company or any of its agents.  The Participant understands that theParticipant (and not the Company) shall be responsible for the Participant’sown tax liability that may arise as a result of this investment or thetransactions contemplated by this Agreement. The Participant understands that it may be beneficial in manycircumstances to elect to be taxed at the time the Shares are purchased ratherthan when and as the Company’s Purchase Option expires by filing an electionunder Section 83(b) of the Code with the I.R.S. within 30 days fromthe date of purchase.

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THE PARTICIPANTACKNOWLEDGES THAT IT IS THE PARTICIPANT’S SOLE RESPONSIBILITY AND NOT THECOMPANY’S TO FILE TIMELY THE ELECTION UNDER SECTION 83(b), EVEN IF THEPARTICIPANT REQUESTS THE COMPANY OR ITS REPRESENTATIVES TO MAKE THIS FILING ONTHE PARTICIPANT’S BEHALF.

 

# 10.                                 Miscellaneous.

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## (a)                                  NoRights to Employment.  TheParticipant acknowledges and agrees that the vesting of the Shares pursuant to Section 2hereof is earned only by continuing service as an employee at the will of theCompany (not through the act of being hired or purchasing Shareshereunder).  The Participant furtheracknowledges and agrees that the transactions contemplated hereunder and thevesting schedule set forth herein do not constitute an express or impliedpromise of continued engagement as an employee or consultant for the vestingperiod, for any period, or at all.

 

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## (b)                                 Severability.  The invalidity or unenforceability of anyprovision of this Agreement shall not affect the validity or enforceability ofany other provision of this Agreement, and each otherprovision of this Agreement shall be severable and enforceable to the extentpermitted by law.

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## (c)                                  Waiver.  Any provision for the benefit of the Companycontained in this Agreement may be waived, either generally or in anyparticular instance, by the Board of Directors of the Company or a committeethereof.

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## (d)                                 BindingEffect.  This Agreement shall bebinding upon and inure to the benefit of the Company and the Participant andtheir respective heirs, executors, administrators, legal representatives,successors and assigns, subject to the restrictions on transfer set forth in Section 4of this Agreement.

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## (e)                                  Notice.   All notices required or permitted hereundershall be in writing and deemed effectively given upon personal delivery or fivedays after deposit in the United States Post Office, by registered or certifiedmail, postage prepaid, addressed to the other party hereto at the address shownbeneath his or its respective signature to this Agreement, or at such otheraddress or addresses as either party shall designate to the other in accordancewith this Section 10(e).

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## (f)                                    Pronouns.  Whenever the context may require, anypronouns used in this Agreement shall include the corresponding masculine,feminine or neuter forms, and the singular form of nouns and pronouns shallinclude the plural, and vice versa.

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## (g)                                 EntireAgreement.  This Agreement and thePlan constitute the entire agreement between the parties, and supersedes allprior agreements and understandings, relating to the subject matter of thisAgreement.

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## (h)                                 Amendment.  This Agreement may be amended or modifiedonly by a written instrument executed by both the Company and the Participant.

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## (i)                                     GoverningLaw.  This Agreement shall beconstrued, interpreted and enforced in accordance with the internal laws of theState of Delaware without regard to any applicable conflicts of laws.

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## (j)                                     Participant’sAcknowledgments.  The Participantacknowledges that he or she: (i) has read this Agreement; (ii) has beenrepresented in the preparation, negotiation, and execution of this Agreement bylegal counsel of the Participant’s own choice or has voluntarily declined toseek such counsel; (iii) understands the terms and consequences of thisAgreement; (iv) is fully aware of the legal and binding effect of thisAgreement; and (v) understands that the law firm of Wilmer CutlerPickering Hale and Dorr LLP, is acting as counsel to the Company in connectionwith the transactions contemplated by the Agreement, and is not acting ascounsel for the Participant.

 

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IN WITNESS WHEREOF, the parties hereto have executedthis Agreement as of the day and year first above written.

 
|   | GENAISSANCE  PHARMACEUTICALS, INC. |
|--------|------------------------------------|
|   |                               |
|   | By:                                |   |   |
|   | Name:                              | Ben  D. Kaplan |
|   | Title:                             | Senior  Vice President and Chief Financial  Officer |
|   |                               |
|   |                               |
|   |                               |   |
|   | Participant                        |
|   |                               |
|   | Address:                           |   |   |
|   |                               |   |   |
|        |                                    |  |  |  |  |

 

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Exhibit A

 

GenaissancePharmaceuticals, Inc.

 

Joint Escrow Instructions

 

January 7,2005

 

SecretaryGenaissance Pharmaceuticals, Inc.Five Science ParkNew Haven, CT  06511

 

Dear Sir:

 

As Escrow Agent for Genaissance Pharmaceuticals, Inc.,a Delaware corporation, and its successors in interest under the RestrictedStock Agreement (the “Agreement”) of even date herewith, to which a copy ofthese Joint Escrow Instructions is attached (the “Company”), and theundersigned person (“Holder”), you are hereby authorized and directed to holdthe documents delivered to you pursuant to the terms of the Agreement inaccordance with the following instructions:

 

#### 1.                                       Appointment.  Holder irrevocably authorizes the Company todeposit with you any certificates evidencing Shares (as defined in theAgreement) to be held by you hereunder and any additions and substitutions tosaid Shares.  For purposes of these JointEscrow Instructions, “Shares” shall be deemed to include any additional orsubstitute property.  Holder does herebyirrevocably constitute and appoint you as his attorney-in-fact and agent forthe term of this escrow to execute with respect to such Shares all documentsnecessary or appropriate to make such Shares negotiable and to complete anytransaction herein contemplated.  Subjectto the provisions of this paragraph 1 and the terms of the Agreement,Holder shall exercise all rights and privileges of a stockholder of the Companywhile the Shares are held by you.

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#### 2.                                       Closingof Purchase.

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##### (a)                                  Uponany purchase by the Company of the Shares in connection with (i) theCompany’s notice of the exercise of the Purchase Option or (ii) the deemedexercise of the Purchase Option, each in accordance with the terms of theAgreement, the Company shall give to Holder and you a written notice specifyingthe purchase price for the Shares, as determined pursuant to the Agreement, andthe time for a closing hereunder (the “Closing”) at the principal office of theCompany.  Holder and the Company herebyirrevocably authorize and direct you to close the transaction contemplated bysuch notice in accordance with the terms of said notice.

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##### (b)                                 Atthe Closing, you are directed (i) to date the stock assignment form orforms necessary for the transfer of the Shares, (ii) to fill in on suchform or forms the number of Shares being transferred, and (iii) to deliversame, together with the certificate or certificates

 

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##### evidencingthe Shares to be transferred, to the Company against the simultaneous deliveryto you of the purchase price for the Shares being purchased pursuant to theAgreement.

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#### 3.                                       Withdrawal.  The Holder shall have the right to withdrawfrom this escrow any Shares as to which the Purchase Option (as defined in theAgreement) has terminated or expired.

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#### 4.                                       Dutiesof Escrow Agent.

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##### (a)                                  Yourduties hereunder may be altered, amended, modified or revoked only by a writingsigned by all of the parties hereto.

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##### (b)                                 Youshall be obligated only for the performance of such duties as are specificallyset forth herein and may rely and shall be protected in relying or refrainingfrom acting on any instrument reasonably believed by you to be genuine and tohave been signed or presented by the proper party or parties.  You shall not be personally liable for anyact you may do or omit to do hereunder as Escrow Agent or as attorney-in-factof Holder while acting in good faith and in the exercise of your own goodjudgment, and any act done or omitted by you pursuant to the advice of your ownattorneys shall be conclusive evidence of such good faith.

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##### (c)                                  Youare hereby expressly authorized to disregard any and all warnings given by anyof the parties hereto or by any other person or Company, excepting only ordersor process of courts of law, and are hereby expressly authorized to comply withand obey orders, judgments or decrees of any court.  In case you obey or comply with any suchorder, judgment or decree of any court, you shall not be liable to any of theparties hereto or to any other person, firm or Company by reason of suchcompliance, notwithstanding any such order, judgment or decree beingsubsequently reversed, modified, annulled, set aside, vacated or found to havebeen entered without jurisdiction.

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##### (d)                                 Youshall not be liable in any respect on account of the identity, authority orrights of the parties executing or delivering or purporting to execute ordeliver the Agreement or any documents or papers deposited or called forhereunder.

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##### (e)                                  Youshall be entitled to employ such legal counsel and other experts as you maydeem necessary properly to advise you in connection with your obligationshereunder and may rely upon the advice of such counsel.

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##### (f)                                    Yourrights and responsibilities as Escrow Agent hereunder shall terminate if (i) youcease to be Secretary of the Company or (ii) you resign by written noticeto each party.  In the event of atermination under clause (i), your successor as Secretary shall becomeEscrow Agent hereunder; in the event of a termination under clause (ii),the Company shall appoint a successor Escrow Agent hereunder.

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##### (g)                                 Ifyou reasonably require other or further instruments in connection with theseJoint Escrow Instructions or obligations in respect hereto, the necessaryparties hereto shall join in furnishing such instruments.

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##### (h)                                 Itis understood and agreed that should any dispute arise with respect to thedelivery and/or ownership or right of possession of the securities held by youhereunder, you

 

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##### are authorized anddirected to retain in your possession without liability to anyone all or anypart of said securities until such dispute shall have been settled either bymutual written agreement of the parties concerned or by a final order, decreeor judgment of a court of competent jurisdiction after the time for appeal hasexpired and no appeal has been perfected, but you shall be under no dutywhatsoever to institute or defend any such proceedings.

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##### (i)                                     TheseJoint Escrow Instructions set forth your sole duties with respect to any andall matters pertinent hereto and no implied duties or obligations shall be readinto these Joint Escrow Instructions against you.

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##### (j)                                     TheCompany shall indemnify you and hold you harmless against any and all damages,losses, liabilities, costs, and expenses, including attorneys’ fees anddisbursements, for anything done or omitted to be done by you as Escrow Agentin connection with this Agreement or the performance of your duties hereunder,except such as shall result from your gross negligence or willful misconduct.

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#### 5.                                       Notice.  Any notice required or permitted hereundershall be given in writing and shall be deemed effectively given upon personaldelivery or upon deposit in the United States Post Office, by registered orcertified mail with postage and fees prepaid, addressed to each of the otherparties thereunto entitled at the following addresses, or at such otheraddresses as a party may designate by ten days’ advance written notice to eachof the other parties hereto.

 
| COMPANY:      |   | Notices to the  Company shall be sent to the address set forth in the salutation hereto,  Attn: President |
|---------------|--------|-----------------------------------------------------------------------------------------------------------|
|          |   |                                                                                                      |
| HOLDER:       |   | Notices to  Holder shall be sent to the address set forth below Holder’s signature below.            |
|          |   |                                                                                                      |
| ESCROW AGENT: |   | Notices to the  Escrow Agent shall be sent to the address set forth in the salutation hereto.             |

 

#### 6.                                       Miscellaneous.

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##### (a)                                  Bysigning these Joint Escrow Instructions, you become a party hereto only for thepurpose of said Joint Escrow Instructions, and you do not become a party to theAgreement.

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##### (b)                                 Thisinstrument shall be binding upon and inure to the benefit of the parties heretoand their respective successors and permitted assigns.

 

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|          | Very  truly yours,                      |
|---------------|-----------------------------------------|
|          |                                    |
|          | Genaissance  Pharmaceuticals, Inc. |
|          |                                    |   |
|          | By:                                     |   |   |
|          | Name:                                   | Ben  D. Kaplan |
|          | Title:                                  | Senior  Vice President and Chief Financial Officer |
|          |                                    |
|          |                                    |
|          | HOLDER:                                 |
|          |                                    |
|          |                                    |   |
|          | (Signature)                             |   |
|          |                                    |
|          |                                    |   |
|          | Print Name                              |   |
|          |                                    |
|          | Address:                                |   |   |
|          |                                    |   |   |
|          |                                    |   |
|          | Date Signed:                            |   |   |
| ESCROW AGENT: |                                    |   |
|          |                                    |   |
|          |                                    |   |   |
| By:           | Ben D. Kaplan                           |   |   |
| Title:        | Secretary                               |   |   |
|               |                                         |  |  |  |  |  |  |  |  |  |  |

 

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Exhibit B

 

(STOCK ASSIGNMENT SEPARATE FROM CERTIFICATE)

 

FOR VALUE RECEIVED, I hereby sell, assign and transfer unto                                     (                  )shares of Common Stock, $0.001 par value per share, of GenaissancePharmaceuticals, Inc. (the “Corporation”) standing in my name on the booksof the Corporation represented by Certificate(s) Number                     herewith, and do hereby irrevocably constitute and appoint                                             attorney to transfer the said stock on the books of the Corporation with fullpower of substitution in the premises.

 
|           | Dated: |   |   |
|----------------|--------|--------|--------|
|           |   |
|           |   |
| IN PRESENCE OF |   |
|           |   |
|           |   |

 

NOTICE: The signature(s) to this assignment mustcorrespond with the name as written upon the face of the certificate, in everyparticular, without alteration, enlargement, or any change whatever and must beguaranteed by a commercial bank, trust company or member firm of the Boston,New York or Midwest Stock Exchange.

 

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