IR BioSciences Holdings, Inc. BONUS STOCK AWARD AGREEMENT
IR
BioSciences Holdings, Inc.
2003
Stock Option, Deferred Stock, Restricted Stock and Bonus Stock
Plan
Pursuant to your Bonus
Stock Grant Notice (“Grant Notice”) and this Bonus Stock Award Agreement, IR BioSciences
Holdings, Inc. (the “Company”) has granted you a Bonus Stock award under
its 2003
Stock Option, Deferred Stock, Restricted Stock and Bonus Stock Plan (the
“Plan”) to receive the number of shares of the Company’s Common Stock indicated
in your Grant Notice (the “Award Shares”) upon the terms and conditions
indicated in your Grant Notice. Defined terms not explicitly defined
in this Bonus Stock Agreement but defined in the Plan shall have the same
definitions as in the Plan.
The
details of your Bonus Stock award are as follows:
1. Vesting. Subject
to the limitations contained herein, your Bonus Stock award will vest as
provided in your Grant Notice, provided that vesting will cease upon the
termination of your Continuous Service.
2. Number
of Shares and Exercise Price. The Award Shares subject to your
Bonus Stock award referenced in your Grant Notice may be adjusted from time to
time for Capitalization Adjustments, as provided in the
Plan.
3. Acquisition
prior to Vesting (“Early Vesting”). If permitted in your Grant
Notice (i.e., the “Vesting Schedule” indicates that “Early Vesting” of your
Bonus Stock award is permitted) and subject to the provisions of your Bonus
Stock award, you may receive at any time that is both (i) during the period of
your Continuous Service and (ii) during the term of your Bonus Stock award, the
Award Shares, including the nonvested portion of your Bonus Stock award; provided,
however, that:
(a) a partial
receipt of the Award Shares shall be deemed to cover first vested Award Shares
and then the earliest vesting installment of unvested Award
Shares;
(b) any Award
Shares so received from installments that have not vested as of the date of
exercise shall be subject to the purchase option in favor of the Company as
described in the Company’s form of Early Exercise Stock Purchase Agreement;
and
(c) you shall
enter into the Company’s form of Early Exercise Stock Purchase Agreement with a
vesting schedule that will result in the same vesting as if no early exercise
had occurred.
4. Whole
Shares and Rights as Stockholder. You may receive only whole
shares of Common Stock under your Bonus Stock award. You shall be
entitled to all of the rights of a stockholder with respect to the Award Shares
including the right to vote such Award Shares and to receive dividends and other
distributions payable with respect to such Award Shares since the Date of
Grant.
5. Securities
Law Compliance. Notwithstanding anything to the contrary
contained herein, you may not receive the Award Shares unless the Award Shares
are then registered under the Securities Act or, if such Award Shares are not
then so registered, the Company has determined that such issuance would be
exempt from the registration requirements of the Securities Act. The
receipt of Award Shares must also comply with other applicable laws and
regulations governing your Bonus Stock award, and you may not receive Award
Shares under your Bonus Stock award if the Company determines that such receipt
would not be in material compliance with such laws and
regulations.
6. Term. You
may not receive Award Shares under your Bonus Stock award before the
commencement of its term or after its term expires. The term of your
Bonus Stock award commences on the Date of Xxxxx and expires upon the earliest
of the following:
(a) three (3)
months after the termination of your Continuous Service for any reason other
than your Disability or death, provided that if during any part of such three
(3) month period your Bonus Stock award is not exercisable solely because of the
condition set forth in the preceding paragraph relating to “Securities Law
Compliance,” your Bonus Stock award shall not expire until the earlier of the
Expiration Date or until it shall have been exercisable for an aggregate period
of three (3) months after the termination of your Continuous
Service;
(b) twelve
(12) months after the termination of your Continuous Service due to your
Disability;
(c) eighteen
(18) months after your death if you die either during your Continuous Service or
within three (3) months after your Continuous Service
terminates;
(d) the
Expiration Date indicated in your Grant Notice; or
(e) the day
before the tenth (10th) anniversary of the Date of Xxxxx.
7. Restrictions
and Forfeiture.
(a) Restrictions. None
of the Award Shares shall be sold shall be sold assigned, transferred, pledged
or otherwise transferred, voluntarily or involuntarily by you except by will or
the laws of descent and distribution or as otherwise provided for
herein.
(b) Lapse
of Restrictions. The restrictions set forth in Section 7(a)
above shall lapse on the ____ anniversary date of the Date of Grant with regard
to ____ of the Award Shares.
(c) Additional
Lapse of Restrictions. The restrictions set forth in Section
7(a) above with respect to the Award Shares, to the extent they have not lapsed
in accordance with Section 7(b) and to the extent not related to shares which
previously have been forfeited to the Company, shall lapse on the first to
happen of (i) the date you attain early retirement age under the Company’s
pension plan, if any, (ii) the termination of your employment with
the Company and its subsidiaries by reason of your disability, (iii) the date of
your death, or (iv) an action by the Board of Directors or the Committee
administering the Plan, in its sole discretion, terminating such
restrictions.
(d) Forfeiture. The
Award Shares shall be forfeited to the Company upon your termination of
employment with the Company and its subsidiaries prior to the date the
restrictions lapse as provided in Section 7(b) above, unless your termination of
employment is by reason of your death or disability.
(e) Other
Arrangements. As a condition to the grant of your Bonus Stock
award, the Company may require you to enter into an arrangement providing for
the payment by you to the Company of any tax withholding obligation of the
Company arising by reason of (i) the receipt of Award Shares under your Bonus
Stock award, (ii) the lapse of any substantial risk of forfeiture to which the
Award Shares are subject at the time of the grant, or (iii) the disposition of
Award Shares acquired upon receipt.
(f) Registration
Offerings. By receiving the Award Shares you agree that the
Company (or a representative of the underwriter(s)) may, in connection with the
first underwritten registration of the offering of any securities of the Company
under the Securities Act, require that you not sell, dispose of, transfer, make
any short sale of, grant any option for the purchase of, or enter into any
hedging or similar transaction with the same economic effect as a sale, the
Award Shares or other securities of the Company held by you, for a period of
time specified by the underwriter(s) (not to exceed one hundred eighty (180)
days) following the effective date of the registration statement of the Company
filed under the Securities Act. You further agree to execute and
deliver such other agreements as may be reasonably requested by the Company
and/or the underwriter(s) that are consistent with the foregoing or that are
necessary to give further effect thereto. In order to enforce the
foregoing covenant, the Company may impose stop-transfer instructions with
respect to the Award Shares until the end of such period.
(g) Limitations. Notwithstanding
anything to the contrary contained herein:
(i) Award
Shares (1) may be tendered in response to a tender offer for a request or
invitation to tenders of greater than 50% of the outstanding Common Stock of the
Company or (2) may be surrendered in a merger, consolidation or share exchange
involving the Company; provided, in each case, that the securities or other
consideration received in exchange thereof shall thereafter be subject to the
restrictions and conditions set forth herein.
(ii)
In the event of any change in the outstanding Common Stock resulting from
a subdivision or consolidation of shares, whether through reorganization,
recapitalization, share split, reverse share split, share distribution or
combination of shares or the payment of a share dividend, the Award Shares shall
be treated in the same manner in any such transaction as other Common
Stock. Any Common Stock or other securities received by you with
respect to the Award Shares in any such transaction shall be subject to the
restrictions and conditions set forth herein.
(h) Certificates
for the Award Shares shall be issued in your name, except as otherwise provided
for herein, and shall be held in escrow by the Company until all restrictions
lapse or such Award Shares are forfeited as provided herein; provided,
however, that the terms of such escrow shall make allowance for the
transactions contemplated by Section 7(g) above. A certificate or certificates
representing Award Shares as to which restrictions have lapsed shall be
delivered to you upon such lapse.
8. Transferability
of Award. Your Bonus Stock award is not transferable, except
by will or by the laws of descent and distribution, and receipt of the Award
Shares may be received during your life only by you. Notwithstanding
the foregoing, by delivering written notice to the Company, in a form
satisfactory to the Company, you may designate a third party who, in the
event of your death, shall thereafter be entitled to receive the Bonus Stock
award.
9. Option not
a Service Contract. Your Bonus Stock award is not an
employment or service contract, and nothing in your Bonus Stock award shall be
deemed to create in any way whatsoever any obligation on your part to continue
in the employ of the Company or an Affiliate, or of the Company or an Affiliate
to continue your employment. In addition, nothing in your Bonus Stock
award shall obligate the Company or an Affiliate, their respective shareholders,
Boards of Directors, Officers or Employees to continue any relationship that you
might have as a Director or Consultant for the Company or an
Affiliate.
10. Withholding
Obligations.
(a) At the
time you receive your Award Shares, in whole or in part, or at any time
thereafter as requested by the Company, you hereby authorize withholding from
payroll and any other amounts payable to you, and otherwise agree to make
adequate provision for, any sums required to satisfy the federal, state, local
and foreign tax withholding obligations of the Company or an Affiliate, if any,
which arise in connection with your Bonus Stock award.
(b) Upon your
request and subject to approval by the Company, in its sole discretion, and
compliance with any applicable conditions or restrictions of law, the Company
may withhold from fully vested Award Shares otherwise issuable to you
under your Bonus Stock award, a number of whole Award Shares having a Fair
Market Value, determined by the Company as of the date of exercise, not in
excess of the minimum amount of tax required to be withheld by
law. If the date of determination of any tax withholding obligation
is deferred to a date later than the date of receipt of Award Shares,
withholding of Award Shares pursuant to the preceding sentence shall not be
permitted unless you make a proper and timely election under Section 83(b) of
the Code, covering the aggregate number of Award Shares acquired upon such
exercise with respect to which such determination is otherwise deferred, to
accelerate the determination of such tax withholding obligation to the date of
receipt of Award Shares. Notwithstanding the filing of such election,
Award Shares shall be withheld solely from fully vested Award Shares determined
as of the date of receipt of Award Shares that are otherwise issuable to you
from the Bonus Stock award. Any adverse consequences to you arising
in connection with such withholding procedure shall be your sole
responsibility.
(c) You may
not receive your Award Shares unless the tax withholding obligations of the
Company and/or any Affiliate are satisfied. Accordingly, you may not
be able to receive your Award Shares when desired even though your Bonus Stock
award is vested, and the Company shall have no obligation to issue a certificate
for such Award Shares or release such Award Shares from any escrow provided for
herein.
11. Notices. Any
notices provided for in your Bonus Stock award or the Plan shall be given in
writing and shall be deemed effectively given upon receipt or, in the case of
notices delivered by mail by the Company to you, five (5) days after deposit in
the United States mail, postage prepaid, addressed to you at the last address
you provided to the Company.
12. Governing
Plan Document. Your Bonus Stock award is subject to all the
provisions of the Plan, the provisions of which are hereby made a part of your
Bonus Stock award, and is further subject to all interpretations, amendments,
rules and regulations which may from time to time be promulgated and adopted
pursuant to the Plan. In the event of any conflict between the
provisions of your Bonus Stock award and those of the Plan, the provisions of
the Plan shall control.
