Exhibit 10.8
PHASE III MEDICAL, INC.
RESTRICTED STOCK GRANT AGREEMENT
This Restricted Stock Grant Agreement (the "Agreement"), dated as
of the "Award Date" set forth in the attached Exhibit A, is entered into between
Phase III Medical, Inc., a Delaware corporation (the "Company"), and the
individual identified in Exhibit A (the "Awardee").
WHEREAS, the Company desires to provide the Awardee an incentive
to participate in the success and growth of the Company through the holding of a
proprietatry interest in the Company; and
WHEREAS, to give effect to the foregoing intentions, the Company
desires to grant the Awardee a restricted stock award of shares of the Company's
common stock, par value $0.001 per share (the "Common Stock") pursuant to the
Phase III Medical, Inc. 2003 Equity Participation Plan, as amended (the "Plan");
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth and for other good and valuable consideration, the parties
hereto agree as follows:
1. Grant. The Company hereby grants the Awardee a restricted
stock award (the "Award") with respect to the number of shares of Common Stock
set forth in Exhibit A (such shares being referred to herein as the "Restricted
Shares"). The Award and the Restricted Shares shall be subject to the terms and
conditions set forth in this Agreement and the provisions of the Plan, the terms
of which are incorporated herein by reference. Capitalized terms used but not
otherwise defined herein shall have the meanings as set forth in the Plan.
2. Lapsing Forfeiture Provisions. Subject to the terms of this
Agreement, the Awardee shall forfeit the Restricted Shares to the extent set
forth in Exhibit A immediately upon Awardee's termination of employment,
directorship and/or consultancy with the Company prior to the date(s) set forth
in Exhibit A. Restricted Shares, to the extent forfeited, shall be immediately
returned to the Company.
3. Transfer Restrictions. Prior to the satisfaction of the
conditions set forth in Exhibit A, the Awardee shall not sell, assign, pledge or
otherwise transfer (voluntarily or involuntarily) any of the Restricted Shares.
Upon satisfaction of the conditions set forth in Exhibit A with respect to
Restricted Shares, the transfer restrictions set forth in this Section shall
lapse with respect to the Restricted Shares for which such conditions are
satisfied. As a condition of the grant of this award, Awardee shall be required
to execute a stock power in blank in the form of Exhibit B hereto with respect
to any shares issued pursuant to this Agreement.
4. Adjustment of Shares. Notwithstanding anything contained
herein to the contrary, in the event of any change in the Company's Common Stock
resulting from a corporate transaction including, but not limited to, a
subdivision or consolidation, reorganization, recapitalization, merger, share
split, reverse share split, share distribution, combination of shares or the
payment of a share dividend, the Restricted Shares shall be treated in the same
manner in any such transaction as other Common Stock. Any Common Stock or other
securities received by the Awardee as a result of such transaction with respect
to the Restricted Shares shall be subject to the restrictions and conditions set
forth herein and in the attached Exhibit A.
5. Rights as Stockholder. Except as provided by Section 3 hereof,
the Awardee shall be entitled to all of the rights of a stockholder with respect
to the Restricted Shares as of the Award Date, including, but not limited to,
the right to vote such shares and receive dividends and other distributions
payable with respect to same.
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6. Escrow of Share Certificates. As soon as reasonably
practicable after the Award Date, the Company shall issue stock certificates in
the Awardee's name that correspond to the Restricted Shares (the
"Certificates"), and shall hold such Certificates in escrow for the Awardee's
benefit, properly endorsed for transfer, until such time as the Restricted
Shares are forfeited to the Company or all restrictions thereon lapse. The
Company shall not be liable for any act it may do or fail to do with respect to
the holding of the Certificates in escrow hereunder, provided it acts or fails
to act in good faith and in the exercise of its sound judgment.
7. Legend. The Certificates shall bear the following legend:
THE SHARES OF STOCK REPRESENTED HEREBY ARE SUBJECT TO THE TERMS
AND CONDITIONS (INCLUDING FORFEITURE CONDITIONS AND TRANSFER
RESTRICTIONS) CONTAINED IN A RESTRICTED STOCK AWARD AGREEMENT
BETWEEN PHASE III MEDICAL, INC. AND THE HOLDER AND THE TERMS OF
THE PHASE III MEDICAL, INC. 2003 EQUITY PARTICIPATION PLAN, AS
EACH MAY BE AMENDED FROM TIME TO TIME. A COPY OF SUCH AGREEMENT
IS ON FILE IN THE OFFICE OF THE GENERAL COUNSEL OF PHASE III
MEDICAL, INC.
8. Section 83(b) Election. The Awardee hereby acknowledges that
the Awardee has been informed that, with respect to the Restricted Shares, the
Awardee may file an election with the Internal Revenue Service, within 30 days
of the execution of this Agreement, electing pursuant to Section 83(b) of the
Internal Revenue Code of 1986, as amended, (the "Code") to be taxed currently on
any difference between the purchase price of the Restricted Shares and their
fair market value on the date of purchase. Absent such an election, taxable
income will be measured and recognized by the Awardee at the time or times at
which the forfeiture restrictions on the Restricted Shares lapse. The Awardee is
strongly encouraged to seek the advice of his own tax consultants in connection
with the issuance of the Restricted Shares and the advisability of filing an
election under Section 83(b) of the Code. Upon filing an election under Section
83(b) of the Code, Awardee shall promptly provide a copy of such election to the
Company. A form of Election under Section 83(b) is attached hereto as Exhibit C
for reference.
THE AWARDEE ACKNOWLEDGES THAT IT IS NOT THE COMPANY'S, BUT RATHER
THE AWARDEE'S SOLE RESPONSIBILITY TO FILE THE ELECTION UNDER SECTION 83(b)
TIMELY.
Circular 230 Disclaimer: To ensure compliance with requirements
imposed by the IRS, any U.S. federal tax advice contained in this Agreement
(including any attachments) is not intended or written to be used, and cannot be
used, for the purpose of (i) avoiding tax-related penalties under the Internal
Revenue Code or (ii) promoting, marketing or recommending to another party any
transaction or tax-related matter(s) addressed herein.
9. Government Regulations. Notwithstanding anything contained
herein to the contrary, the Company's obligation to issue or deliver
certificates evidencing the Restricted Shares shall be subject to the terms of
all applicable laws, rules and regulations and to such approvals by any
governmental agencies or national securities exchanges as may be required.
10. Withholding Taxes. The Company shall have the right to
require the Awardee to remit to the Company, or to withhold from amounts payable
to the Awardee, as compensation or otherwise, an amount sufficient to satisfy
all federal, state and local withholding tax requirements (including, without
limitation, any tax resulting from (i) the expiration of restrictions set forth
hereunder that are applicable to any particular Restricted Shares or (ii) an
election made by the Awardee under Section 83(b) of the Code).
11. Investment Purpose. The Awardee agrees not to sell, transfer
or otherwise dispose of such shares unless they are either (1) registered under
the Securities Act of 1933 and all applicable state securities laws, or (2)
exempt from such registration in the opinion of Company counsel, and consents to
the Company's placing of the legend set forth in Section 7 above on the
certificates summarizing such securities law restrictions.
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12. Awardee Representations. The Awardee has reviewed with his
own tax advisors the federal, state, local and foreign tax consequences of the
transactions contemplated by this Agreement. The Awardee is relying solely on
such advisors and not on any statements or representations of the Company or any
of its agents, if any, made to the Awardee. The Awardee understands that the
Awardee (and not the Company) shall be responsible for the Awardee's own tax
liability arising as a result of the transactions contemplated by this
Agreement.
13. Employment. Neither this Agreement nor any action taken
hereunder shall be construed as giving the Awardee any right of continuing
employment by the Company.
14. Notices. Notices or communications to be made hereunder shall
be in writing and shall be delivered in person, by registered mail, by confirmed
facsimile or by a reputable overnight courier service to the Company at its
principal office or to the Awardee at his address contained in the records of
the Company.
15. Governing Law. This Agreement shall be construed under the
laws of the State of New Jersey, without regard to conflict of laws principles.
16. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof,
and supersedes all prior agreements and understandings relating to the subject
matter of this Agreement.
17. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the Company and the Awardee and their respective
permitted successors, assigns, heirs, beneficiaries and representatives. This
Agreement is personal to the Awardee and may not be assigned by the Awardee
without the prior consent of the Company. Any attempted assignment in violation
of this Section shall be null and void.
18. Amendment. This Agreement may be amended or modified only by
a written instrument executed by both the Company and the Awardee.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement or caused their duly authorized officer to execute this Agreement as
of the date first written above.
PHASE III MEDICAL, INC.
By: /S/ Xxxxxxxxx Xxxxx
-------------------
Name: Xxxxxxxxx Xxxxx
Title: EVP
AWARDEE
/S/ Xxxx Xxxxxxx
----------------
Xxxx Xxxxxxx
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EXHIBIT A
1. (a). Awardee's Name: Xxxx Xxxxxxx
-----------------------------------
(b). Awardee's Social Security Number:
-----------------
(c). Award Date: July 20, 2005
---------------------------------------
(d). Number of Restricted Shares Granted: 3,000,000
--------------
(e). Vesting Requirements: The Restricted Shares shall become vested,
and the restrictions applicable to Restricted Shares shall lapse
over a period of two years, as follows:
-----------------------------------------------------------------
Restrictions applicable to the Shall lapse on the following
following Number of Restricted date; provided that the
Shares: Awardee is in the employ of,
is a director of, or is a
consultant to, the Company
on such date:
-----------------------------------------------------------------
1,000,000 July 20, 2005
-----------------------------------------------------------------
1,000,000 July 20, 2006
-----------------------------------------------------------------
1,000,000 July 20, 2007
-----------------------------------------------------------------
Notwithstanding the foregoing, in the event of a complete
liquidation or a merger or consolidation (as set forth in Section
19 of the Plan) while the Awardee is in the employ of, a director
of, or is a consultant to, the Company, the Board of Directors of
the Company may provide written notice to the Awardee that all
non-vested options and Restricted Shares granted under the Plan
shall thereupon be vested and the restrictions applicable to all
Restricted Shares shall thereupon lapse.
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EXHIBIT B
STOCK POWER
FOR VALUE RECEIVED, Xxxx Xxxxxxx hereby sells, assigns, and
transfers unto Phase III Medical, Inc. 2,000,000 shares of common stock of Phase
III Medical, Inc. issued pursuant to, and subject to the terms of, that certain
Restricted Stock Grant Agreement by and between the Company and Xxxx Xxxxxxx,
dated July 20, 2005, standing in his/her name on the books of said corporation
represented by Certificate No. ___ herewith, and does hereby irrevocably
constitute and appoint _____________________ as his attorney to transfer the
said stock on the books of said corporation with full power of substitution in
the premises.
Dated:
--------------------
----------------------------------
Xxxx Xxxxxxx
In the presence of:
------------------------------
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EXHIBIT C
ELECTION UNDER SECTION 83(b)
OF THE INTERNAL REVENUE CODE OF 1986
The undersigned taxpayer hereby makes an election pursuant to Section 83(b)
of the Internal Revenue Code of 1986, as amended, and the Treasury Regulations
thereunder (the "Regulations"), and in connection with this election supplies
the following information:
1. The name, address and taxpayer identification number of the undersigned
are:
Name:
-----------------------------------
Address:
---------------------------------------------------------
Social Security Number: - -
--- -- ----
2. The election is being made with respect to ________ shares of common stock
(the "Stock") of Phase III Medical, Inc., a Delaware corporation (the
"Company").
3. The date on which the Stock was transferred to the undersigned was
____________, 200__. The taxable year for which this election is being made is
calendar year 200__.
4. The property is subject to the following restrictions:
The above-mentioned shares may not be transferred and are subject to
forfeiture under the terms of an agreement between the taxpayer and the
Company. These restrictions lapse upon the satisfaction of certain
conditions contained in such agreement.
Disposition of the Stock is also subject to restrictions imposed under
applicable federal and state securities laws regulating the transfer of
unregistered securities.
5. The fair market value of the Stock at the time of transfer (determined
without regard to any lapse restriction, as defined in ss.1.83-3(i) of the
Regulations) was $___________.
6. The undersigned did not pay any amount for the Stock. Therefore, $______
(the full fair market value of the Stock stated above) is includible in the
undersigned's gross income as compensation for services.
7. A copy of this election has been furnished to the Company as required by
ss.1.83-2(d) of the Regulations.
Dated: ----------------------------
------------------------- Taxpayer signature
INSTRUCTIONS FOR FILING SECTION 83(B) ELECTION
Attached is a form of election under section 83(b) of the Internal Revenue
Code. If you wish to make such an election, you should complete, sign and date
the election and then proceed as follows:
1. Execute three counterparts of your completed election (plus one extra
counterpart for each person other than you, if any who receives property that is
the subject of your election), retaining at least one photocopy for your
records.
2. Send one counterpart to the Internal Revenue Service Center with which you
will file your Federal income tax return for the current year (e.g., Holtsville,
New York for New Jersey residents) via certified mail, return receipt requested.
THE ELECTION SHOULD BE SENT IMMEDIATELY, AS YOU ONLY HAVE 30 DAYS FROM THE
ISSUANCE/PURCHASE/GRANT DATE WITHIN WHICH TO MAKE THE ELECTION - NO WAIVERS,
LATE FILINGS OR EXTENSIONS ARE PERMITTED.
3. Deliver one counterpart of the completed election to the Company for its
files.
4. If anyone other than you (e.g., one of your family members) will receive
property that is the subject of your election, deliver one counterpart of the
completed election to each such person.
5. Attach one counterpart of the completed election to your Federal income tax
return for this year when you file that return next.
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