EXHIBIT 10.1
EMAGEON INC.
2005 NON-EMPLOYEE DIRECTOR STOCK INCENTIVE PLAN
RESTRICTED STOCK AWARD AGREEMENT
THIS AGREEMENT, made and entered into as of the ____ day of
______________, 200__, by and between EMAGEON INC. ("the "COMPANY") and
______________________ (the "GRANTEE").
WITNESSETH:
WHEREAS, the Company maintains the Emageon Inc. 2005 Non-Employee
Director Stock Incentive Plan (the "PLAN"), and the Grantee has been selected by
the Committee to receive a Restricted Stock Award under the Plan;
NOW, THEREFORE, IT IS AGREED, by and between the Company and the
Grantee, as follows:
1. AWARD OF RESTRICTED STOCK
1.1 The Company hereby grants to the Grantee an award of
_____________ Shares of restricted stock ("RESTRICTED STOCK"), subject to, and
in accordance with, the restrictions, terms and conditions set forth in this
Agreement. The grant date of this award of Restricted Stock is ___________ ____,
200___ ("GRANT DATE").
1.2 This Agreement shall be construed in accordance and consistent
with, and subject to, the provisions of the Plan (the provisions of which are
incorporated herein by reference) and, except as otherwise expressly set forth
herein, the capitalized terms used in this Agreement shall have the same
definitions as set forth in the Plan.
1.3 This Award is conditioned on the Grantee's execution of this
Agreement. If this Agreement is not executed by the Grantee and returned to the
Company within two months of the Grant Date, it may be canceled by the Committee
resulting in the immediate forfeiture of all Shares of Restricted Stock.
2. RESTRICTIONS
2.1 Subject to Section 2.2 below, if the Grantee continues to
serve as a Director or continues to provide services to the Company, as
determined by the Committee, the Grantee shall become vested in all Shares of
the Restricted Stock on the first anniversary of the Grant Date, (the "VESTING
DATE"). On the Vesting Date, Grantee shall own the Shares of Restricted Stock
free and clear of all restrictions imposed by this Agreement.
2.2 If, prior to the Vesting Date, Grantee has his/her service as
a Director terminated by reason of Disability, the Restricted Stock shall become
fully vested and nonforfeitable as of the date of Grantee's Disability. The
Company shall deliver certificate(s) for the Restricted Stock, free and clear of
any restrictions imposed by this Agreement to Grantee (or, in the event of
death, his/her surviving spouse or, if none, to his/her estate) as soon as
practical after his/her date termination for Disability. If, prior to the
Vesting Date, Grantee dies while serving as a Director or Grantee's service as a
Director is terminated for any other reason, by the Grantee or the Company, the
Restricted Stock shall be forfeited.
2.3 The Restricted Stock may not be sold, assigned, transferred,
pledged or otherwise encumbered prior to the date Grantee becomes vested in the
Restricted Stock.
3. STOCK; DIVIDENDS; VOTING
3.1 The stock certificate(s) evidencing the Restricted Stock shall
be registered on the Company's books in the name of the Grantee as of the Grant
Date. The Company or its designee shall retain physical possession or custody of
such stock certificate(s) or shall not issue such certificate(s) until such time
as the Shares of Restricted Stock are vested in accordance with Section 2 and,
if applicable, until the Grantee requests delivery of the certificate(s). While
in its possession, the Company reserves the right to place a legend on the stock
certificate(s) restricting the transferability of such certificates and
referring to the terms and conditions (including forfeiture) of this Agreement
and the Plan.
3.2 During the period the Restricted Stock is not vested, the
Grantee shall be entitled to vote such Restricted Stock. All dividends declared
and paid by the Company on Shares of Restricted Stock in Shares shall be
deferred until the restrictions on the Restricted Stock lapse in accordance with
Section 2. These deferred dividends shall be held by the Company for the
Grantee's account. Upon the forfeiture of the Restricted Stock, any deferred
dividends attributable to such Restricted Stock shall also be forfeited.
Dividends declared and paid by the Company on Restricted Stock in cash shall not
be subject to such restrictions.
3.3 In the event of any adjustments in authorized Shares as
provided in Article 4 of the Plan, the number and class of Shares of Restricted
Stock or other securities that Grantee shall be entitled to pursuant to this
Agreement shall be appropriately adjusted or changed to reflect such change,
provided that any such additional Shares of Restricted Stock or additional or
different shares or securities shall remain subject to the restrictions in this
Agreement.
3.4 The Grantee represents and warrants that he is acquiring the
Restricted Stock for investment purposes only, and not with a view to
distribution thereof. The Grantee is aware that the Restricted Stock may not be
registered under the federal or any state securities laws and that, in addition
to the other restrictions on the Restricted Stock, the shares will not be able
to be transferred unless an exemption from registration is available. By making
this award of Restricted Stock, the Company is not undertaking any obligation to
register the Restricted Stock under any federal or state securities laws.
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4. NO RIGHT TO CONTINUED SERVICE
Nothing in this Agreement or the Plan shall be interpreted or construed
to confer upon the Grantee any right with respect to continuance of service as a
Director by the Company or a Subsidiary, nor shall this Agreement or the Plan
interfere in any way with the right of the Company or a Subsidiary to terminate
at any time the Grantee's service as a Director, subject to Grantee's rights
under this Agreement.
5. TAXES AND WITHHOLDING
The Grantee shall be responsible for all federal, state and local
income and employment taxes payable with respect to this Award of Restricted
Stock. The Grantee shall have the right to make such elections under the
Internal Revenue Code of 1986, as amended, as are available in connection with
this Award of Restricted Stock, including a Section 83(b) election. The Company
and Grantee agree to report the value of the Restricted Stock in a consistent
manner for federal income tax purposes. The Company shall have the right to
retain and withhold from any payment of Restricted Stock the amount of taxes
required by any government to be withheld or otherwise deducted and paid with
respect to such payment. At its discretion, the Company may require Grantee to
reimburse the Company for any such taxes required to be withheld and may
withhold any distribution in whole or in part until the Company is so
reimbursed. In lieu thereof, the Company shall have the right to withhold from
any other cash amounts due to Grantee an amount equal to such taxes required to
be withheld or withhold and cancel (in whole or in part) a number of shares of
Restricted Stock having a market value not less than the amount of such taxes.
6. GRANTEE BOUND BY THE PLAN
The Grantee hereby acknowledges receipt of a copy of the Plan and
agrees to be bound by all the terms and provisions thereof.
7. MODIFICATION OF AGREEMENT
This Agreement may be modified, amended, suspended or terminated, and
any terms or conditions may be waived, but only by a written instrument executed
by the parties hereto.
8. SEVERABILITY
Should any provision of this Agreement be held by a court of competent
jurisdiction to be unenforceable or invalid for any reason, the remaining
provisions of this Agreement shall not be affected by such holding and shall
continue in full force in accordance with their terms.
9. GOVERNING LAW
The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Delaware without giving
effect to the conflicts of laws principles thereof.
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10. SUCCESSORS IN INTEREST
This Agreement shall inure to the benefit of, and be binding upon, the
Company and its successors and assigns, and upon any person acquiring, whether
by merger, consolidation, reorganization, purchase of stock or assets, or
otherwise, all or substantially all of the Company's assets and business. This
Agreement shall inure to the benefit of the Grantee's legal representatives. All
obligations imposed upon the Grantee and all rights granted to the Company under
this Agreement shall be final, binding and conclusive upon the Grantee's heirs,
executors, administrators and successors.
11. RESOLUTION OF DISPUTES
Any dispute or disagreement which may arise under, or as a result of,
or in any way relate to the interpretation, construction or application of this
Agreement shall be determined by the Committee. Any determination made hereunder
shall be final, binding and conclusive on the Grantee and the Company for all
purposes.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first above written.
EMAGEON INC.
By: _________________________________
_____________________________________
GRANTEE:
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