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U.S. RESIDENT (NON-EMPLOYEE DIRECTOR)
i-STAT CORPORATION
STOCK OPTION AWARD AGREEMENT
NON-STATUTORY
1. Grant of Option. As of the date set forth on the signature page of this
Agreement (the "Date of Grant"), i-STAT Corporation, a Delaware corporation (the
"Company"), grants to ____________ (the "Director"), in consideration for
service as a member of the Board of Directors of the Company, an option (the
"Option"), pursuant to the Company's Equity Incentive Plan (the "Plan"), to
purchase up to an aggregate of ________ shares (the "Shares") of Common Stock,
_____ par value per share ("Common Stock"), of the Company at a price of
________ per Share (the "Exercise Price"), purchasable as set forth in and
subject to the terms and conditions of this Agreement and the Plan.
2. Exercise of Option and Provisions for Termination.
(a) Exercisability of Option. The Option may not be exercised prior
to the later of (x) the date that is thirty (30) days following the Date of
Grant and (y) the date that is the day immediately preceding the end of the
Company's fiscal quarter in which the Date of Grant occurs, from and after which
the Option will become fully exercisable.
(b) Expiration Date. Except as otherwise provided in this Agreement,
the Option may not be exercised after the date (hereinafter the "Expiration
Date") that is the fifth anniversary of the Date of Xxxxx. Notwithstanding the
foregoing, if at any time during the six (6) months immediately preceding the
Expiration Date the Director is precluded from selling Shares solely by reason
of the application to the Director of the Company's "Policy Regarding
Confidential Information and Xxxxxxx Xxxxxxx For All Employees and Directors"
(or any similar successor policy), the Expiration Date shall be deemed
automatically extended by a period equal to six (6) months beginning with the
first day during which the Director shall no longer be so precluded.
(c) Exercise Procedure. The Option shall be exercised by the
Director's delivery of written notice of exercise to the chief financial officer
of the
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Company, specifying the number of Shares to be purchased and the aggregate
Exercise Price to be paid therefor and accompanied by payment in full in
accordance with Section 3. Such exercise shall be effective upon receipt by the
chief financial officer of the Company of such written notice together with the
required payment. The Director may purchase less than the total number of Shares
covered hereby, provided that no partial exercise of the Option may be for any
fractional Share or for less than five hundred (500) whole Shares.
(d) Continuous Service Required. Except as otherwise provided in
this Section 2, the Option may not be exercised unless the Director, at the time
he or she exercises the Option, is, and has been at all times since the Date of
Grant of the Option, a director of the Company.
(e) Cessation of Service. If the Director ceases to serve as such
for any reason other than death or disability or removal, as provided in
subsections (f) and (g) below, the right to exercise the Option shall terminate
three months after such cessation (but in no event after the Expiration Date).
If the Director's relationship with the Company changes in a manner that does
not constitute a complete cessation of service with the Company, a Parent
Corporation or a Subsidiary (as such terms are defined in the Plan); for
example, if upon such cessation the Director becomes a consultant to or employee
of the Company or any Parent Corporation or Subsidiary, the Board of Directors
of the Company (or any Committee thereof appointed by the Board pursuant to the
Plan) shall have authority to determine whether or not such change constitutes a
cessation of service for purposes of this paragraph.
(f) Exercise Period Upon Death or Disability. If the Director dies
or becomes disabled (within the meaning of Section 22(e)(3) of the Internal
Revenue Code of 1986, as amended) prior to the Expiration Date, while he or she
is serving as such, or if the Director dies within three months after the
Director ceases to serve as such (other than as the result of removal as
specified in subsection (g) below), then, to the extent the Option was
exercisable prior to such event, the Option shall remain exercisable, for a
period of one year following the date of death or disability of the Director
(but in no event after the Expiration Date), by the Director, the Director's
legal representative (in the event of legal incapacity) or by the person to whom
the Option is transferred by will or the laws of descent and distribution.
Except as otherwise indicated by the context, the term "Director", as used in
this Agreement, shall be deemed to include the estate of the Director, or any
person who acquires the right to exercise the Option by bequest or inheritance
or otherwise by reason of the death of the Director.
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(g) Removal. If the Director, prior to the Expiration Date, ceases
to serve as such because he or she is removed from office, the right to exercise
the Option shall terminate immediately upon such removal.
3. Payment of Exercise Price. Payment of the aggregate Exercise Price for
Shares purchased upon any exercise of the Option shall be made, at the option of
the Director, by delivery to the Company of either (i) cash or a check to the
order of the Company, or (ii) shares of Common Stock, in each case in an amount
equal to the aggregate Exercise Price of such Shares. For purposes of the
preceding sentence, Common Stock shall be valued at its "fair market value" as
defined in the Plan, for which purposes the "Value Date" shall be deemed to be
the effective date of such exercise.
4. Delivery of Shares. The Company shall, upon payment of the aggregate
Exercise Price for the number of Shares purchased and paid for, make prompt
delivery of such Shares to the Director, provided that if any law or regulation
requires the Company to take any action with respect to such Shares before the
issuance thereof, then the date of delivery of such Shares shall be extended for
the period necessary to complete such action. No Shares shall be issued and
delivered upon exercise of the Option unless and until, in the opinion of
counsel for the Company, any applicable registration requirements of the
Securities Act of 1933, as amended (the "Securities Act"), any applicable
listing requirements of any national securities exchange on which stock of the
same class is then listed, and any other requirements of law or of any
regulatory bodies having jurisdiction over such issuance and delivery, shall
have been fully complied with.
5. Non-transferability of Option. Except as provided in subsection (f) of
Section 2 or as otherwise agreed to by the Board of Directors or a committee
thereof appointed pursuant to the Plan, the Option is personal and no rights
granted hereunder may be transferred, assigned, pledged or hypothecated 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 to
transfer, assign, pledge, hypothecate or otherwise dispose of the Option or of
such rights contrary to the provisions hereof, or upon the levy of any
attachment or similar process upon the Option or such rights, the Option and
such rights shall, at the election of the Company, become null and void.
6. Rights as a Shareholder. The Director shall have no rights as a
shareholder with respect to any Shares which may be purchased by exercise of the
Option unless and until a certificate representing such Shares is duly issued
and delivered to the Director. No adjustment shall be made for dividends or
other rights for which the record date is prior to the date such stock
certificate is issued except as provided for in Sections 7 or 8 of this
Agreement.
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7. Recapitalization. If the outstanding shares of Common Stock of the
Company are changed into or exchanged for a different number or kind of shares
or other securities of the Company by reason of any recapitalization,
reclassification, stock split, stock dividend, combination or subdivision,
appropriate adjustment shall be made in the number and kind of Shares with
respect to which the Option shall be exercisable. Such adjustment to the Option
shall be made without change in the total Exercise Price applicable to the
unexercised portion of the Option, but a corresponding adjustment in the
Exercise Price per Share shall be made. No such adjustment shall be made if, in
the opinion of counsel to the Company, stockholder approval thereof is required
to be obtained in order to preserve for optionees under the Plan the benefits
available pursuant to Rule 16b-3 under the Securities Exchange Act of 1934, as
amended, (the "Exchange Act") or any similar or successor rule thereto.
8. Reorganization or Change in Control of the Company.
(a) Reorganization. In case, prior to the Expiration Date, (i) the
Company is merged or consolidated with another corporation and the Company is
not the surviving corporation, (ii) all or substantially all of the assets or
more than 50% of the outstanding voting stock of the Company is acquired by any
other corporation, or (iii) of a reorganization or liquidation of the Company,
the Board of Directors of the Company, or the board of directors of any
corporation assuming the obligations of the Company, shall, as to the Option,
either (x) make appropriate provision for the protection of the Option by the
substitution on an equitable basis of appropriate stock of the Company, or of
the merged, consolidated or otherwise reorganized corporation which will be
issuable in respect of the shares of Common Stock of the Company, provided that
no additional benefits shall be conferred upon the Director as a result of such
substitution, and the excess of the aggregate fair market value of the Shares
subject to the Option immediately after such substitution over the Exercise
Price hereof is not more than the excess of the aggregate fair market value of
the Shares subject to the Option immediately before such substitution over the
Exercise Price hereof, or (y) upon written notice to the Director, provide that
the Option must be exercised within a specified number of days of the date of
such notice or it will be terminated. In any such case, the Board of Directors
may, in its discretion, accelerate the exercise dates of the Option; provided,
however, that paragraph (b) below shall govern acceleration of the
exercisability of the Option with respect to the events described in clauses
(i), (ii) and (iii) of such paragraph.
(b) Change in Control. In case, prior to the time that the Option
becomes exercisable pursuant to Section 2(a), (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
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the combined voting power of the outstanding voting 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 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 Option shall immediately
become exercisable with respect to 100% of the Common Stock subject to the
Option.
9. Withholding Taxes. The Company's obligation to deliver Shares upon the
exercise of the Option shall be subject to the Director's satisfaction of all
applicable federal, state and local income and other tax withholding
requirements.
10. Restrictions on Transfer of Shares, Acknowledgment and Legend.
(a) The Director acknowledges and agrees that (i) because of his
position with the Company, the 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 Shares acquired upon any
exercise of the Option is restricted by law, notwithstanding any registration of
the Shares on Form S-8 (or similar successor form) promulgated under the
Securities Act; (iii) any resale of the 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 (iv) the Director will not sell such Shares in
violation of Rule 144(e) or any other rule or regulation under the Securities
Act. In addition, the Director acknowledges that, for the purposes of ensuring
compliance with the exemption from the "short swing profits" rules promulgated
under the Exchange Act, no Share may be sold prior to the expiration of six
months from the Date of Grant.
(b) Legend on Stock Certificates. So long as the Director remains an
affiliate of the Company, all stock certificates representing Shares issued to
the Director upon exercise of the Option shall have affixed thereto a legend
substantially in the following form, in addition to any other legends required
by applicable state law:
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"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."
By making payment upon exercise of the Option, the Director shall be
deemed to have reaffirmed, as of the date of such payment, the representations
made in this Section 10.
11. 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.
12. Miscellaneous.
(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 Section 5 with respect to the
assignment of the Option or rights herein) and upon the Company and its
successors and assigns, regardless of any change in the business structure of
the Company, be it through spinoff, merger, sale of stock, sale of assets or any
other transaction and shall be construed in a manner that is consistent with the
provisions of the Plan.
(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.
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(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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Date of Grant: i-STAT CORPORATION
____________ By:______________________________
Name:
Title:
000 Xxxxxxx Xxxxxx Xxxxx
Xxxx Xxxxxxx, Xxx Xxxxxx 00000
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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
_____________________________
Name:
Address:
Telecopier No.:
E-mail Address:
