ALSIUS CORPORATION
EXHIBIT
99.(d)(2)
ALSIUS
CORPORATION
2006
EQUITY INCENTIVE PLAN
Alsius
Corporation, a Delaware corporation (the "Company"), hereby grants Restricted
Stock Units ("RSUs") to the Holder named below. The terms and
conditions of this RSU award are set forth in this cover sheet, in the attached
Restricted Stock Unit Award Agreement and in the Alsius Corporation 2006 Equity
Incentive Plan (the "Plan").
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Date
of Grant:
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________________,
2008
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Name
of Holder:
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_______________________
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Holder’s
Social Security Number:
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____-____-_____
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Number
of RSUs Awarded:
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______________
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Fair
Market Value of a Share
on
Date of RSU Grant
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$_____.___
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Vesting
Schedule:
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The
RSUs will vest in three equal annual installments following the grant date conditioned on
the Holder providing Continuous Service to the
Company. If a
Holder's Continuous Service is
terminated by the Company without
Cause, the RSUs subject to vesting
during such year will be accelerated on a pro-rated basis through the date
of termination.
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Acceleration
of Vesting after a
Corporate
Transaction if you are then still
in
Continuous Service:
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[FOR
EXECUTIVE OFFICERS: Your unvested RSUs will accelerate in full
upon a "Corporate Transaction" (as defined in the Plan).]
[FOR
ALL OTHER PERSONS: 50% of the then unvested RSUs
will accelerate upon a "Corporate Transaction" (as defined in the
Plan). The balance of the RSUs that are unvested after such
Corporate Transaction will continue to vest on a pro-rata basis in
accordance with the original vesting schedule shown above, unless your
Continuous Service to the Company is terminated by the Company without
Cause, in which case all unvested RSUs will automatically vest upon such
termination.]
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By
signing this cover sheet, you agree to all of the terms and conditions described
in the attached Restricted Stock Unit Award Agreement and in the
Plan. You are also acknowledging receipt of this Agreement and a copy
of the Plan and the Plan prospectus.
Holder:
________________________________________________________________________________________________________________________
(Signature)
Company:
_____________________________________________________________________________________________________________________
(Signature)
Title: _________________________________________________________________________________________________________________________
Attachment
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ALSIUS
CORPORATION
2006
EQUITY INCENTIVE PLAN
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The
Plan and Other Agreements
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The
text of the Plan is incorporated in this Agreement by this
reference. You and the Company agree to execute such further
instruments and to take such further action as may reasonably be necessary
to carry out the intent of this Agreement. Unless otherwise
defined in this Agreement, certain capitalized terms used in this
Agreement are defined in the Plan.
This
Agreement and the Plan constitute the entire understanding between you and
the Company regarding this Award of restricted stock units
("RSUs"). Any prior agreements, commitments or negotiations are
superseded.
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Award
of Restricted Stock Units
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Alsius
Corporation awards you the number of RSUs shown on the cover sheet of this
Agreement. The Award is subject to the terms and conditions of
this Agreement and the Plan.
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Vesting
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Subject
to the limitations contained herein, your RSUs will vest as provided in
the cover sheet to this Agreement, provided that vesting will cease upon
the termination of your Continuous Service.
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Cause
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For
purposes of this Agreement, "Cause" shall be defined to be any of the
following, each as determined in the discretion of the Company's (or its
successor's) Board of Directors or Chief Executive Officer: (i) the
Holder's dereliction of his or her duties, (ii) the Holder's material
violation of Company policy, or (iii) the Holder's conviction of, or
guilty plea to, a crime against the Company or one which reflects
negatively on the reputation of the Company. Notwithstanding
the foregoing, for vice presidents and above, Xxxxxx's Continuous Service
shall not be deemed to have been terminated for "Cause" under (ii) above
unless and until there shall have been delivered to the Holder a copy of a
resolution duly adopted by the affirmative vote of not less than a
majority of the Board then in office at a meeting of the Board called and
held for such purpose, after reasonable notice to the Holder and an
opportunity for the Holder, together with the Holder's counsel (if the
Holder chooses to have counsel present at such meeting), to be heard
before the Board, finding that, in the good faith opinion of the Board,
the Holder had committed an act constituting "Cause" and specifying the
particulars thereof in detail. Nothing herein will limit the
right of the Holder or his beneficiaries to contest the validity or
propriety of any such determination.
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Settlement
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To
the extent an RSU becomes vested and subject to your satisfaction of any
tax withholding obligations as discussed below, each vested RSU will
entitle you to receive one share of common stock of the Company (a
"Share") which will be distributed to you on the applicable vesting
date(s) (or the first business day thereafter if the vesting date is not a
business day) in exchange for such RSU. Issuance of Shares
shall be in complete satisfaction of such vested RSUs. Such
settled RSUs shall be immediately cancelled and no longer outstanding and
you shall have no further rights or entitlements related to those settled
RSUs.
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No
Assignment
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RSUs
shall not be sold, anticipated, assigned, attached, garnished, optioned,
transferred or made subject to any creditor’s process, whether
voluntarily, involuntarily or by operation of law. However,
this shall not preclude a transfer of vested RSUs by will or by the laws
of descent and distribution. In addition, pursuant to Company
procedures, you may designate a beneficiary who will receive any
outstanding vested RSUs in the event of your death.
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Leaves
of Absence
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For
purposes of this Agreement, while you are a common-law employee, your
Continuous Service does not
terminate when you go on a bona fide leave of
absence that was approved by the Company (or its parent, subsidiary or
affiliate) in writing, if the terms of the leave provide for continued
Continuous Service crediting, or when Continuous Service crediting is
required by applicable law. Your Continuous Service terminates
in any event when the approved leave ends, unless you immediately return
to active work.
The
Company determines which leaves count for this purpose, and when your
Continuous Service terminates for all purposes under the
Plan.
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Voting
and Other Rights
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A
Holder of RSUs shall have no rights other than those of a general creditor
of the Company. Subject to the terms of this Agreement, a
Holder of RSUs has none of the rights and privileges of a stockholder of
the Company, including no right to vote or to receive dividends (if
any). Subject to the terms and conditions of this Agreement,
RSUs create no fiduciary duty of the Company to you and only represent an
unfunded and unsecured contractual obligation of the
Company. The RSUs shall not be treated as property or as a
trust fund of any kind.
You,
or your estate or heirs, have no rights as a stockholder of the Company
until a certificate for your Shares has been issued. No
adjustments are made for dividends or other rights if the applicable
record date occurs before your stock certificate is issued, except as
described in the Plan.
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Restrictions
on Issuance
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The
Company will not issue any Shares if the issuance of such Shares at that
time would violate any law or
regulation.
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Taxes
and Withholding
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You
will be solely responsible for payment of any and all applicable taxes
associated with this Award.
The
delivery to you of any Shares underlying vested RSUs will not be permitted
unless and until you have satisfied any withholding or other taxes that
may be due. As a condition of this Award and the settlement of
the vested RSUs hereunder, you must make arrangements with the Company for
the withholding and payment of applicable taxes, if
any.
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Code
Section 409A
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This
Award will be administered and interpreted to comply with Code Section
409A.
Notwithstanding
anything to the contrary, if, upon your "separation from service" (as
defined in Code Section 409A), you are then a Company "specified employee"
(as defined in Code Section 409A), then to the extent necessary to comply
with Code Section 409A, the Company shall defer payment of certain of the
amounts owed to you under this Agreement until the earlier of (i) ten (10)
days after the Company receives notification of your death or (ii) the
first business day of the seventh month following your separation from
service. Any such delayed payments shall be made to you (or
your beneficiaries) without interest.
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No
Retention Rights
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This
Agreement is not an employment agreement and does not give you the right
to be retained in any capacity by the Company (or its parent, subsidiaries
or affiliates). The Company (or its parent, subsidiaries or
affiliates) reserves the right to terminate your Continuous Service at any
time and for any reason.
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Adjustments
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In
the event of a stock split, a stock dividend or a similar change in the
Company stock, the number of outstanding RSUs covered by this Award may be
adjusted (and rounded down to the nearest whole number) pursuant to the
Plan. Your RSUs shall be subject to the terms of the agreement of merger,
liquidation or reorganization in the event the Company is subject to such
corporate activity.
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Plan
Terms Govern
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The
grant of this Award and the settlement of vested RSUs are subject to the
provisions of the Plan and any rules that the Administrator may
prescribe. In the event of any conflict between the terms of
the Plan, the terms of this Agreement, the terms of the Plan shall
control.
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Notice
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Any
notice to be given or delivered to the Company relating to this Agreement
shall be in writing and addressed to the Company at its principal
corporate offices. Any notice to be given or delivered to you
relating to this Agreement shall be in writing and addressed to you at
such address of which you advise the Company in writing. All
notices shall be deemed effective upon personal delivery or upon deposit
in the U.S. mail, postage prepaid and properly addressed to the party to
be notified.
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Applicable
Law
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In
accepting the Award, you agree to comply with all applicable laws,
regulations and rules of governing state and federal governmental agencies
as well as the applicable regulations and rules of any stock exchange on
which the securities of the Company are traded, and any policies as now or
hereafter established by the Company, with regard to the
Award. You acknowledge and agree that you may be required to
disgorge any and all gains and payments under the Award to the extent
required by applicable laws, stock exchange regulations and rules, and the
policies of the Company. This Award shall be construed
and administered as necessary to comply with Section 409A of the
Code. This Award is granted under and governed by the terms and
conditions of this Agreement and the Plan, a copy of which is attached and
made a part of this instrument.
This
Agreement will be interpreted and enforced under the laws of the State of
California.
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By
signing the cover sheet of this Agreement, you agree to all of the terms and
conditions
described
above and in the Plan.
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