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I-STAT CORPORATION
RESTRICTED SHARE AWARD AGREEMENT
WITH
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This Restricted Share Award Agreement (the "Agreement"), dated as of
_________ (the "Award Date") is between i-STAT Corporation, a Delaware
corporation, having its principal place of business at 000 Xxxxxxx Xxxxxx Xxxxx,
Xxxx Xxxxxxx, Xxx Xxxxxx 00000, (the "Company") and ____________ ("Director").
In consideration for service as a member of the Board of Directors of
the Company, the Company desires to award to Director, pursuant to the Company's
Equity Incentive Plan (the "Plan"), shares of the Company's Common Stock, ____
par value per share (the "Common Stock"). Accordingly, the Company and Director
hereby agree as follows:
1. Award of Shares. Subject to the terms and conditions set forth herein and in
the Plan, the Company awards to Director ______________ (____) shares of Common
Stock (the "Award Shares").
2. Forfeiture of Award Shares; Stockholder Rights; Transfer Restrictions.
(a) Termination of Service. If Director ceases to serve as such for any reason
other than death or disability prior to the later of (x) the date that is thirty
(30) days following the Award Date and (y) the date that is the day immediately
preceding the end of the Company's fiscal quarter in which the Award Date occurs
(the "Forfeiture Period"), then Director shall forfeit all of the Award Shares,
whereupon Director shall have no further rights whatsoever with respect to the
Award Shares. From and after the end of the Forfeiture Period the Award Shares
shall no longer be subject to forfeiture.
(b) Death or Disability. If during the Forfeiture Period, Director (x) dies or
(y) becomes disabled (within the meaning of Section 22(e)(3) of the Internal
Revenue Code of 1986, as amended), while he or she is serving as such, then no
Award Shares shall remain subject to forfeiture.
(c) Change in Control. In case, during the Forfeiture Period, (i) of any
consolidation or merger involving the Company, if the persons or entities who
are shareholders of the Company immediately before such merger or consolidation
do not own, directly or indirectly, immediately following such merger or
consolidation, more than fifty percent (50%) of the combined voting power of the
outstanding voting
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securities of the corporation resulting from such merger or consolidation in
substantially the same proportion as their ownership of the shares of Common
Stock immediately before such merger or consolidation; (ii) of any sale, lease,
license, exchange or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the business and/or assets of the
Company or assets representing over 50% of the operating revenue of the Company;
or (iii) any person (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) who was not,
on April 21, 1995, a controlling person (as defined in Rule 405 under the
Securities Act of 1933, as amended) (a "Controlling Person") of the Company
shall become (x) the beneficial owner (within the meaning of Rule 13d-3 under
the Exchange Act) of over 50% of the Company's outstanding Common Stock or the
combined voting power of the Company's then outstanding voting securities
entitled to vote generally or (y) a Controlling Person of the Company, then upon
the occurrence of any such event the Award Shares shall no longer be subject to
forfeiture.
(d) Stock Dividend; Other Events. If, during the Forfeiture Period,
there is (i) any stock dividend, stock split, combination or subdivision or
other change in the character or amount of any of the Company's outstanding
securities or (ii) any consolidation, merger or sale of all or substantially all
of the Company's assets, then, in such event, any and all new, substituted or
additional securities to which Director is entitled by reason of his ownership
of Award Shares which, immediately prior to such event, were subject to
forfeiture, will be immediately subject to the forfeiture provisions of
paragraph (a) of this Section, and shall be included in the term "Award Shares"
for purposes of this Agreement.
(e) Rights As Stockholder. As long as the Award Shares have not been
forfeited pursuant to paragraph (a) of this Section, Director shall have with
respect to such Award Shares, voting, dividend and all other rights of a holder
of Common Stock.
(f) Certificates for Award Shares; Transfer Restrictions. Certificates
representing Award Shares subject to forfeiture pursuant to paragraph (a) of
this Section will be held by the Company until such Award Shares are no longer
subject to forfeiture. Award Shares subject to forfeiture may not be sold,
transferred, pledged or otherwise disposed of (including, but not limited to,
through transfer by gift or donation).
3. Representations of Director; Restrictions on Transfer of Award
Shares. Director represents, warrants and covenants that:
(a) the Award Shares are being acquired by Director for his own
account, for investment only and not with a view to, or for resale in connection
with, any distribution thereof within the meaning of the Securities Act of 1933,
as amended (the "Securities Act") or any rule or regulation thereunder;
(b) Director understands that (i) the Award Shares cannot be sold,
transferred or otherwise disposed of unless they are registered under the
Securities Act or an
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exemption from registration is then available; and (ii) any sale, transfer or
other disposition of the Award Shares must be made in accordance with the
Securities Act and any applicable rules and regulations promulgated pursuant
thereto;
(c) Director acknowledges and agrees that (i) because of his position
with the Company, Director may be deemed to be an "affiliate" thereof (as such
term is defined in Rule 144 promulgated under the Securities Act); (ii) the
resale by an affiliate of the Company of the Award Shares is restricted by law,
notwithstanding any registration of the Award Shares on Form S-8 (or similar
successor form) promulgated under the Securities Act; and (iii) any resale of
the Award Shares by an affiliate of the Company pursuant to said Rule 144 would
be subject to the volume limitations contained in paragraph (e) thereof; and
(d) Director acknowledges that, for purposes of ensuring compliance
with the exemption from the "short swing profits" rules promulgated under the
Exchange Act, no Award Share may be sold prior to the expiration of six months
from the Award Date.
4. Tax Consequences. Director hereby represents that prior to or on the
date hereof, Director has generally been advised of the tax consequences to
Director of receiving the Award Shares and has obtained appropriate legal or tax
advice with respect thereto.
5. Legends. Stock certificates representing the Award Shares may bear
legends reflecting such restrictions as the Company deems appropriate and in its
best interests in accordance with the terms and conditions of this Agreement. In
such event, the Company may refuse to transfer ownership of the Award Shares on
its corporate record books until Director has complied with such restrictions.
In connection with the foregoing, so long as Director remains an affiliate of
the Company within the meaning of Rule 144 under the Securities Act, all stock
certificates representing Award Shares shall have affixed thereto a legend
substantially in the following form, in addition to any other legends required
by applicable state law:
"The shares of stock represented by this
certificate are subject to the volume
limitations of Rule 144(e) promulgated
under the Securities Act of 1933, as
amended."
6. Non-transferability of Award Agreement. This Agreement is personal
and no rights hereunder may be transferred, assigned, pledged or hypothecated by
Director in any way (whether by operation of law or otherwise), nor shall any
such rights be subject to execution, attachment or similar process. Upon any
attempt by Director to transfer, assign, pledge, hypothecate or otherwise
dispose of his rights under this Agreement contrary to the provisions hereof, or
upon the levy of any attachment or similar process
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upon such rights, any such rights shall, at the election of the Company, become
null and void.
7. Delivery of Award Shares. Subject to the terms set forth in Section
2(f) hereof, the Company will make prompt delivery to Director of the Award
Shares, provided that if any law or regulation requires the Company to take any
action with respect to such Award Shares before the issuance thereof, then the
date of delivery of such Award Shares will be extended for the period necessary
to complete such action. No Award Shares will be issued and delivered unless and
until, in the opinion of counsel for the Company, any applicable registration
requirements of the Securities Act, any applicable listing or quotation
requirements of any exchange or quotation system on which stock of the same
class is then listed or quoted, and any other requirements of law or of any
regulatory bodies having jurisdiction over such issuance and delivery shall have
been fully complied with.
8. Withholding Taxes. The Company's obligation to deliver the Award
Shares upon the expiration of the Forfeiture Period or as otherwise provided
herein shall be subject to Director's satisfaction of all applicable federal,
state and local income and other tax withholding requirements.
9. Severability. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, in
whole or in part, in any jurisdiction, the remaining provisions of this
Agreement shall be unaffected thereby and shall remain in full force and effect
to the fullest extent permitted by law in such jurisdiction, and such invalidity
or unenforceability shall have no effect in any other jurisdiction.
10. Miscellaneous; Notices.
(a) This Agreement and any instrument delivered pursuant to this
Agreement shall be governed by and interpreted in accordance with the laws of
the State of New Jersey, without regard to the conflicts of law rules thereof.
(b) Any controversy or claim arising out of or relating to this
Agreement, or any breach thereof, shall be resolved through final and binding
arbitration in accordance with the rules of the American Arbitration Association
then in effect. Judgment upon any arbitration award rendered may be entered in
any court having jurisdiction thereof. The arbitration shall be held in the area
where the Company then has its principal place of business. The arbitration
award may include an award of attorneys' fees and costs.
(c) This Agreement shall extend to, be binding upon and inure to the
benefit of Director and his legal representatives, heirs, successors and assigns
(subject, however, to the limitations set forth in Sections 2 and 6 with respect
to transfer of this Agreement or any rights hereunder or of the Award Shares),
and upon the Company and its successors and assigns, regardless of any change in
the business structure of the
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Company, be it through spinoff, merger, sale of stock, sale of assets or any
other transaction.
(d) This Agreement and the Plan contain the entire agreement of the
parties with respect to the subject matter hereof. No waiver, modification or
change of any provision of this Agreement will be valid unless in writing and
signed by both parties.
(e) The waiver of any breach of any duty, term or condition of this
Agreement shall not be deemed to constitute a waiver of any preceding or
succeeding breach of the same or of any other duty, term or condition of this
Agreement.
(f) All notices pursuant to this Agreement will be in writing and will
be sent by personal delivery, telecopier, electronic mail or by prepaid
registered or certified mail, return receipt requested, addressed to the parties
hereto at the addresses set forth beneath their names on the signature page
hereto or to such other addresses as may hereafter be specified by like notice
in writing by either of the parties, and will be deemed given (i) upon receipt
if by personal delivery, (ii) on the day on which delivered if delivered by
telecopier (with confirmation of receipt to be established by acceptable
protocol), (iii) on the third day after mailing if sent by registered or
certified mail or (iv) when transmitted if delivered by electronic mail (with
satisfactory evidence of transmittal to be established by acceptable protocol).
Copies of all notices shall be sent to: Paul, Hastings, Xxxxxxxx & Xxxxxx LLP,
0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, Attention: Xxxxxxx X.
Xxxxxx, Esq., Telecopier No. 000-000-0000, E-mail Address: xxxxxxxx@xxxx.xxx.
(g) The headings of the sections of this Agreement are inserted for
convenience of reference only and will not be deemed to constitute a part hereof
or to affect the meaning hereof.
(h) This Agreement may be executed in counterparts, each of which will
be deemed an original but all of which will together constitute one and the same
agreement.
[signature page follows this page]
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IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the day and year first above written.
i-STAT CORPORATION
By:
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Name:
Title:
Address:
000 Xxxxxxx Xxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Telecopier No. : 000-000-0000
E-mail address: xxxxxxx@x-XXXX.xxx
Director's Acceptance:
The undersigned hereby accepts the foregoing Agreement and agrees to the
terms and conditions thereof. The undersigned hereby acknowledges receipt of a
copy of the Company's Equity Incentive Plan.
Director
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Name:
Address:
Telecopier No.:
E-mail address:
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