KINETIC CONCEPTS, INC. RESTRICTED STOCK AWARD AGREEMENT
Exhibit
10.39
Award
Number:
Grantee
Name:
KINETIC
CONCEPTS, INC.
2004
EQUITY PLAN
THIS
RESTRICTED STOCK AWARD AGREEMENT (the “Award Agreement”) is made and entered
into as of _______________, 200__ (the “Date of Grant”), by and between Kinetic
Concepts, Inc., a Texas corporation (the “Company”), and
[_________________________] (the “Grantee”). Capitalized terms not
defined herein shall have the meaning ascribed to them in the Company’s 2004
Equity Plan (the “Plan”). Where the context permits, references to
the Company or any of its Subsidiaries or affiliates shall include the
successors to the foregoing.
Pursuant
to the Plan, the Administrator has determined that the Grantee is to be granted
Restricted Stock, subject to the terms and conditions set forth in the Plan and
herein, and hereby grants such Restricted Stock.
1. Grant of Restricted
Stock. The Company hereby grants to the Grantee [_______]
shares of Restricted Stock (the "Award") on the terms and conditions set forth
in this Award Agreement and as otherwise provided in the Plan.
2. Terms and Conditions of
Award. The Award shall be subject to the following terms,
conditions and restrictions:
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(a)
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Restrictions. Restricted
Stock and any interest therein, may not be sold, transferred, pledged,
hypothecated, assigned or otherwise disposed of, except by will or the
laws of descent and distribution, during the Restricted
Period. Any attempt to dispose of any Restricted Stock in
contravention of any such restrictions (the "Restrictions") shall be null
and void and without effect.
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(b)
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Certificate; Restrictive
Legend. The Grantee agrees that any certificate issued
for Restricted Stock prior to the lapse of any outstanding restrictions
relating thereto shall be inscribed with the following
legend:
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THIS
CERTIFICATE AND THE SHARES OF STOCK REPRESENTED HEREBY ARE SUBJECT TO THE TERMS
AND CONDITIONS, INCLUDING FORFEITURE PROVISIONS AND RESTRICTIONS AGAINST
TRANSFER (THE "RESTRICTIONS"), CONTAINED IN THE KINETIC CONCEPTS, INC. 2004
EQUITY PLAN AND THE RESTRICTED STOCK AWARD AGREEMENT ENTERED INTO BETWEEN THE
REGISTERED OWNER AND THE COMPANY. ANY ATTEMPT TO DISPOSE OF THESE
SHARES IN CONTRAVENTION OF THE RESTRICTIONS, INCLUDING BY WAY OF SALE,
ASSIGNMENT, TRANSFER, PLEDGE, HYPOTHECATION OR OTHERWISE, SHALL BE NULL AND VOID
AND WITHOUT EFFECT.
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(c)
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Rights as a
Shareholder. Subject to the restrictions set forth in
the Plan and this Award Agreement, including the Restrictions set forth in
Paragraphs 2(a) and 2(d), during the Restricted Period, the Grantee shall
possess all incidents of ownership with respect to the Restricted Stock
granted hereunder, including the right to receive dividends with respect
to such Restricted Stock (provided however, that any dividends paid in
property other than cash shall be subject to the same restrictions that
apply to the underlying Restricted Stock) and the right to vote such
Restricted Stock.
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(d)
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Lapse of
Restrictions. Except as may otherwise be provided
herein, the Restrictions on transfer set forth in Paragraph 2(a) shall
lapse subject to the terms and conditions and in the manner set forth in
Appendix
A attached hereto.
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Promptly
after each lapse of Restrictions relating to the Restricted Stock without
forfeiture, and provided that the Grantee shall have complied with his or her
obligations under Paragraph 2(f) hereof, the Company shall issue to the Grantee
or the Grantee's personal representative a stock certificate representing a
number of Shares, free of the restrictive legend described in Paragraph 2(b),
equal to the number of Shares of Restricted Stock with respect to which such
restrictions have lapsed. If certificates representing such
Restricted Stock shall have theretofore been delivered to the Grantee, such
certificates shall be returned to the Company, complete with any necessary
signatures or instruments of transfer prior to the issuance by the Company of
such unlegended Shares.
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(e)
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Effect
of Conduct Constituting Cause; Termination of Employment or Service; or
Change in Control.
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(i)
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If
at any time (whether before or after termination of employment or service)
the Administrator determines that the Grantee has engaged in conduct that
would constitute Cause for termination, the Administrator may provide for
the immediate forfeiture of the Award (including any securities, cash or
other property issued upon settlement of the Award), whether or not the
Restrictions on the Shares of Restricted Stock have lapsed. Any
such determination by the Administrator shall be final, conclusive and
binding on all persons.
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(ii)
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If
the Grantee’s employment with or service to the Company, any Subsidiary or
affiliate thereof terminates for any reason, other than by reason of the
Grantee’s death or Disability, during the Restricted Period, the Grantee
shall immediately forfeit any rights to the Shares of Restricted Stock
with respect to which the Restrictions have not lapsed and shall have no
further rights thereto.
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(iii)
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If
the Grantee’s employment with or service to the Company, any Subsidiary or
affiliate thereof terminates by reason of Grantee’s death or Disability
during the Restricted Period, with respect to Restrictions that lapse
based on the passage on time, the Restrictions on all outstanding
Restricted Stock with respect to which the Restrictions have not lapsed
shall immediately lapse and, with respect to Restrictions that lapse based
on attainment of specified performance conditions, the Restrictions on all
outstanding Restricted Stock with respect to which the Restrictions have
not lapsed shall immediately lapse as if the target performance goals were
met.
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(iv)
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Upon
the occurrence of a Change in Control, Restrictions on all outstanding
Restricted Stock shall immediately lapse, unless the Award is either
assumed or an equitable substitution is made therefore. In addition, if
the Grantee’s employment with or service to the Company, any Subsidiary or
affiliate thereof is terminated other than for Cause within 24 months
following a Change in Control, Restrictions on all outstanding Restricted
Stock with respect to which the Restrictions have not lapsed shall
immediately lapse.
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(f)
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Taxes. Pursuant
to Section 14 of the Plan, the Company (or Subsidiary or affiliate, as the
case may be) has the right to require the Grantee to remit to the Company
(or Subsidiary or affiliate, as the case may be) in cash an amount
sufficient to satisfy any federal, state and local tax withholding
requirements related to the Award. With the approval of the
Administrator, the Grantee may satisfy the foregoing requirement by
electing to have the Company withhold from delivery Shares or by
delivering Shares, in each case, having a value equal to the aggregate
required minimum tax withholding to be collected by the Company or any
Subsidiary or affiliate thereof. Such Shares shall be valued at
their Fair Market Value on the date on which the amount of tax to be
withheld is determined.
Fractional share amounts shall be settled in cash.
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The
Grantee shall promptly notify the Company of any election made pursuant to
Section 83(b) of the Code.
3. Adjustments. The
Award and all rights and obligations under this Award Agreement are subject to
Section 5 of the Plan.
4. Notice. Whenever
any notice is required or permitted hereunder, such notice shall be in writing
and shall be given by personal delivery, facsimile, first class mail, certified
or registered with return receipt requested. Any notice required or
permitted to be delivered hereunder shall be deemed to have been duly given on
the date which it is personally delivered or, whether actually received or not,
on the third business day after mailing or 24 hours after transmission by
facsimile to the respective parties named below.
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If to the Company:
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Kinetic
Concepts, Inc.
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Attn.:
Chief Financial Officer
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0000
Xxxxxxx Xxxxx
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Xxx
Xxxxxxx, XX 00000
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Phone:
(000) 000-0000
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Fax:
(000) 000-0000
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If to the
Grantee:
[Name of Grantee]
[Address]
______________________
Facsimile: _____________
Either
party may change such party’s address for notices by duly giving notice pursuant
hereto.
5. Compliance with
Laws.
(a) Shares
shall not be issued pursuant to the Award granted hereunder unless the issuance
and delivery of such Shares pursuant thereto shall comply with all relevant
provisions of law, including, without limitation, the Securities Act of 1933, as
amended, the Exchange Act and the requirements of any stock exchange upon which
the Shares may then be listed, and shall be further subject to the approval of
counsel for the Company with respect to such compliance. The Company
shall be under no obligation to effect the registration pursuant to the
Securities Act of 1933, as amended, of any interests in the Plan or any Shares
to be issued hereunder or to effect similar compliance under any state
laws.
(b) All
certificates for Shares delivered under the Plan shall be subject to such
stock-transfer orders and other restrictions as the Administrator may deem
advisable under the rules, regulations, and other requirements of the Securities
and Exchange Commission, any stock exchange upon which the Shares may then be
listed, and any applicable federal or state securities law, and the
Administrator may cause a legend or legends to be placed on any such
certificates to make appropriate reference to such restrictions. The
Administrator may require, as a condition of the issuance and delivery of
certificates evidencing Shares pursuant to the terms hereof, that the recipient
of such Shares make such agreements and representations as the Administrator, in
its sole discretion, deems necessary or desirable.
6. Protections Against
Violations of Agreement. No purported sale, assignment,
mortgage, hypothecation, transfer, pledge, encumbrance, gift, transfer in trust
(voting or other) or other disposition of, or creation of a security interest in
or lien on, any of the Shares underlying the Award by any holder thereof in
violation of the provisions of this Award Agreement, the Plan or the Articles of
Incorporation or the Bylaws of the Company, will be valid, and the Company will
not transfer any such Shares on its books nor will any such Shares be entitled
to vote, nor will any dividends be paid thereon, unless and until there has been
full compliance with such provisions to the satisfaction of the
Company. The foregoing restrictions are in addition to and not in
lieu of any other remedies, legal or equitable, available to enforce said
provisions.
7. Failure to Enforce Not a
Waiver. The failure of the Company to enforce at any time any
provision of the Award Agreement shall in no way be construed to be a waiver of
such provision or of any other provision hereof.
8. Governing
Law. The Award Agreement shall be governed by and construed
according to the laws of the State of Texas without regard to its principles of
conflict of laws.
9. Incorporation of the
Plan. The Plan, as it exists on the date of the Award
Agreement and as amended from time to time, is hereby incorporated by reference
and made a part hereof, and the Award and this Award Agreement shall be subject
to all terms and conditions of the Plan. In the event of any conflict
between the provisions of the Award Agreement and the provisions of the Plan,
the terms of the Plan shall control, except as expressly stated
otherwise. The term “Section” generally refers to provisions within
the Plan (except where denoted otherwise) and the term “Paragraph” shall refer
to a provision of this Award Agreement.
10. Amendments. This
Award Agreement may be amended or modified at any time, but only by an
instrument in writing signed by each of the parties hereto.
11. Agreement Not a Contract of
Employment. Neither the Plan, the granting of the Award, the
Award Agreement nor any other action taken pursuant to the Plan shall constitute
or be evidence of any agreement or understanding, express or implied, that the
Grantee has a right to continue to be employed by, or to provide services as a
director, consultant or advisor to, the Company, any Subsidiary or affiliate
thereof for any period of time or at any specific rate of
compensation.
12. Authority of the
Administrator. The Administrator shall have full authority to
interpret and construe the terms of the Plan and the Award
Agreement. The determination of the Administrator as to any such
matter of interpretation or construction shall be final, binding and
conclusive.
13. Binding
Effect. The Award Agreement shall apply to and bind the
Grantee and the Company and their respective permitted assignees or transferees,
heirs, legatees, executors, administrators and legal successors.
14. Tax
Representation. The Grantee has reviewed with his or her own
tax advisors the federal, state, local and foreign tax consequences of the
transactions contemplated by this Award Agreement. The Grantee is
relying solely on such advisors and not on any statement or representations of
the Company or any of its agents. The Grantee understands that he or
she (and not the Company) shall be responsible for any tax liability that may
arise as a result of the transactions contemplated by the Award
Agreement.
15. Acceptance. The
Grantee hereby acknowledges receipt of a copy of the Plan and this Award
Agreement. Grantee has read and understands the terms and provisions
thereof, and accepts the Award subject to all the terms and conditions of the
Plan and the Award Agreement.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the parties hereto have executed and delivered the Award
Agreement on the day and year first above written.
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KINETIC
CONCEPTS, INC.
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By:
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Name:
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Title:
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GRANTEE
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Signature:
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Name:
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Address:
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Telephone:
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Social
Security No.:
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DATE OF
GRANT
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NUMBER OF SHARES OF
RESTRICTED STOCK
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SEE
APPENDIX A FOR SCHEDULE OF LAPSE OF
RESTRICTIONS.
