EXHIBIT 99.8
RESTRICTED STOCK UNIT AGREEMENT
FOR NON-EMPLOYEE DIRECTORS
Non-transferable
GRANT TO
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("Grantee")
by Xxxxx Respiratory Therapeutics, Inc. (the "Company") of
[_______]
restricted stock units convertible into shares of its common stock, par value
$0.01 (the "Restricted Stock Units")
pursuant to and subject to the provisions of the Xxxxx Respiratory Therapeutics,
Inc. Director Compensation Plan (the "Director Compensation Plan"), which is
operated as a subplan of the Xxxxx Respiratory Therapeutics, Inc. 2005 Incentive
Plan (the "Equity Incentive Plan" and, together with the Director Compensation
Plan, the "Plans"), and to the terms and conditions set forth on the following
page.
Unless vesting is accelerated in accordance with the Plans, the Restricted Stock
Units shall vest (become non-forfeitable) on the first annual shareholders
meeting next following the Grant Date; provided that Grantee is a director of
the Company as of that date.
IN WITNESS WHEREOF, Xxxxx Respiratory Therapeutics, Inc. has caused this
Certificate to be executed as of the Grant Date, as indicated below.
XXXXX RESPIRATORY THERAPEUTICS, INC.
By: ___________________________________
Its: Authorized Officer
Grant Date: ___________________________
Accepted by Grantee: __________________
TERMS AND CONDITIONS
1. Grant of Restricted Stock Units. Xxxxx Respiratory Therapeutics, Inc.
(the "Company") hereby grants to the Grantee named on page 1 hereof, subject to
the restrictions and the terms and conditions set forth in the Plans and in this
award certificate (this "Certificate"), the number of restricted stock units
indicated on page 1 hereof (the "Restricted Stock Units") which represent the
right to receive an equal number of Shares of the Company's Stock on the terms
set forth in this Certificate. Capitalized terms used herein and not otherwise
defined shall have the meanings assigned to such terms in the Plans.
2. Vesting of Restricted Stock Units. The Restricted Stock Units have been
credited to a bookkeeping account on behalf of Grantee. The Restricted Stock
Units will vest and become non-forfeitable on the earliest to occur of the
following (the "Vesting Date"):
(a) the first annual shareholders meeting next following the Grant Date;
or
(b) the termination of Grantee's service as a director of the Company
due to death, Disability, or termination without Cause; or
(c) a Change in Control of the Company, if the Restricted Stock Units
are not assumed by the surviving company or equitably converted or
substituted.
If Grantee's service as a director terminates prior to the Vesting Date for any
reason other than as described in (b) or (c) above, Grantee shall forfeit all
right, title and interest in and to the Restricted Stock Units as of the date of
such termination and the Restricted Stock Units will be reconveyed to the
Company without further consideration or any act or action by Grantee. Any
reference herein to Grantee's termination of service shall be interpreted to
mean Grantee's "separation from service" as defined in Code Section 409A and
Treasury regulations and guidance with respect to such law.
3. Conversion to Stock. Unless the Restricted Stock Units are forfeited
prior to the Vesting Date as provided in Paragraph 2 above, the Restricted Stock
Units will be converted on the Vesting Date to Deferred Stock Units, which in
turn shall be converted to actual Shares of Stock on the date that is six (6)
months after the date the Grantee ceases to serve as a director of the Company
in any capacity (the "Conversion Date"). Stock certificates evidencing the
conversion of the Deferred Stock Units into shares of Stock shall be registered
on the books of the Company in the Grantee's name as of the Conversion Date and
delivered to the Grantee as soon as practical thereafter.
4. Dividend Equivalents. If and when dividends or other distributions are
paid with respect to the Stock while the Restricted Stock Units or Deferred
Stock Units are outstanding, the dollar amount or fair market value of such
dividends or distributions with respect to the number of shares of Stock then
underlying the Restricted Stock Units or Deferred Stock Units shall be converted
into additional Restricted Stock Units or Deferred Stock Units in Grantee's
name, based on the Fair Market Value of the Stock as of the date such dividends
or distributions were payable, and such additional Restricted Stock Units or
Deferred Stock Units shall be subject to the same transfer restrictions as apply
to the Restricted Stock Units or Deferred Stock Units with respect to which they
relate. Upon conversion of the Deferred Stock Units into shares of Stock at the
Conversion Date or any applicable deferral termination date, Grantee will obtain
full voting and other rights as a shareholder of the Company.
5. Changes in Capital Structure. The provisions of Article 15 of the
Equity Incentive Plan shall apply to this award and are incorporated herein by
reference. Without limiting the foregoing, in the event the Stock shall be
changed into or exchanged for a different number or class of shares of stock or
securities of the Company or of another company, whether through reorganization,
recapitalization, statutory share exchange, reclassification, stock split-up,
combination of shares, merger or consolidation, or otherwise, there shall be
substituted for each share of Stock then underlying a Restricted Stock Unit or
Deferred Stock Unit subject to this Certificate the number and class of shares
into which each outstanding share of Stock shall be so exchanged.
6. Restrictions on Transfer and Pledge. Restricted Stock Units are not
assignable or transferable. Deferred Stock Units are not assignable or
transferable other than by will or the laws of descent and distribution or
pursuant to a qualified domestic relations order. Neither Restricted Stock Units
nor Deferred Stock Units may be pledged, hypothecated or otherwise encumbered to
or in favor of any party other than the Company or an Affiliate, or be subjected
to any lien, obligation or liability of grantee to any other party other than
the Company or an Affiliate.
7. Limitation of Rights. Neither the Restricted Stock Units nor the
Deferred Stock Units confer to Grantee or Grantee's beneficiary any rights of a
shareholder of the Company unless and until shares of Stock are in fact issued
to such person in connection with the Restricted Stock Units and the Deferred
Stock Units. Nothing in this Certificate shall interfere with or limit in any
way the right of the Company to terminate Grantee's service as a director at any
time, nor confer upon Grantee any right to continue as a director of the
Company.
8. Amendment. The Committee may amend, modify or terminate this
Certificate without approval of Grantee; provided, however, that such amendment,
modification or termination shall not, without Grantee's consent, reduce or
diminish the value of this Award. Notwithstanding anything herein to the
contrary, the Committee may, without Grantee's consent, amend or interpret this
Certificate to the extent necessary to comply with Section 409A of the Code and
Treasury regulations and guidance with respect to such law.
9. Plans Control. The terms contained in the Plans are incorporated into
and made a part of this Certificate and this Certificate shall be governed by
and construed in accordance with the Plans. In the event of any actual or
alleged conflict between the provisions of the Plans and the provisions of this
Certificate, the provisions of the Plans shall be controlling and determinative.
In the event of any actual or alleged conflict between the provisions of the two
Plans, the provisions of the Equity Incentive Plan shall be controlling and
determinative.
10. Successors. This Certificate shall be binding upon any successor of
the Company, in accordance with the terms of this Certificate and the Plans.
11. Severability. If any one or more of the provisions contained in this
Certificate is deemed to be invalid, illegal or unenforceable, the other
provisions of this Certificate will be construed and enforced as if the invalid,
illegal or unenforceable provision had never been included.
12. Notice. Notices and communications under this Certificate must be in
writing and either personally delivered or sent by registered or certified
United States mail, return receipt requested, postage prepaid. Notices to the
Company must be addressed to Xxxxx Respiratory Therapeutics, Inc., 000 Xxxx
Xxxxxx, Xxxxxxx, Xxx Xxxxxx 00000, Attn: Secretary, or any other address
designated by the Company in a written notice to Grantee. Notices to Grantee
will be directed to the address of Grantee then currently on file with the
Company, or at any other address given by Grantee in a written notice to the
Company.
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