RESTRICTED STOCK UNIT AWARD AGREEMENT
THIS AGREEMENT ("Agreement"), dated as of [ ], 2008, is between
IntegraMed America, Inc., a Delaware corporation (the "Company"), and [name], an
individual resident of the State of [State] ("Employee"). This Agreement sets
forth the terms and conditions of this restricted stock unit award granted under
the Company's 2007 Long-Term Compensation Plan (the "Plan"). Capitalized terms
that are not defined in this Agreement shall have the meaning ascribed to such
terms in the Plan.
RECITALS
A. The Company wishes to grant to Employee, effective as of the date of
this Agreement, an award of Restricted Stock Units. Each Restricted Stock Unit
represents the right to receive a share of the Company's common stock, par value
$.01 per share (the "Common Stock"), on the terms and subject to the conditions
set forth in this Agreement and the Plan.
B. Employee desires to accept such grant.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms have the meanings
set forth below:
"Award" has the meaning ascribed to such term in Section 2 hereof.
"Board" means the Board of Directors of the Company.
"Change in Control" of the Company means one or more changes in the
aggregate composition of the Company's Board as a result of which individuals,
who, as of the date hereof, constitute the Company's Board (the "Incumbent
Board"), subsequently cease for any reason to constitute at least a majority of
the Company's Board; provided, however, that any individual becoming a director
of the Company subsequent to the date hereof, whose election, or nomination for
election by the Company's stockholders, shall have been approved by a vote of at
least a majority of the directors then constituting the Incumbent Board shall be
considered as though such individual is a member of the Incumbent Board, but
excluding, as a member of the Incumbent Board, any such individual whose initial
assumption of office is in connection with an actual or threatened election
contest relating to the election of the directors of the Company (as such terms
are used in Rule 14a-11 of Regulation 14A under the Securities Exchange Act of
1934, as amended).
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" has the meaning specified in Recital A hereof.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Plan" means the IntegraMed America 2007 Long-Term Compensation Plan,
as amended from time to time.
"Restricted Stock Units" means the right to receive Vested Shares upon
their vesting in accordance with Section 3 below.
"Shares" means, collectively, the shares of Common Stock subject to the
Award, whether or not such shares are Vested Shares.
"Vested Shares" means the Shares with respect to which the Restricted
Stock Units have vested at any particular time.
2. Award. The Company, effective as of the date of this Agreement, hereby grants
to Employee [ ] Restricted Stock Units (the "Award") representing the right to
receive [ ] Vested Shares, subject to the terms and conditions set forth
herein and in the Plan.
3. Vesting.
(a) Subject to the terms and conditions of this Agreement, the Restricted Stock
Units awarded hereunder to Employee shall vest and become the right to receive
Vested Shares [state performance or time based criteria].
(b) Notwithstanding the vesting provisions contained in Section 3(a) above, but
subject to the other terms and conditions set forth herein, if Employee has
been continuously employed by the Company until the date of a Change In
Control of the Company, all of the Restricted Stock Units shall immediately
vest on the date of such Change In Control.
(c) In the event of the disability (within the meaning of Section 22(e)(3) of
the Code) or death of Employee, if Employee has been continuously employed by
the Company until the date of such disability or death, Employee or his estate
shall become immediately vested, as of the date of such disability or death,
in all of the Restricted Stock Units subject to the Award.
(d) Except as provided in Section 3(c), if Employee ceases to be an employee for
any reason prior to the vesting of the Restricted Stock Units pursuant to
Sections 3(a) or 3(b) hereof, Employee's rights to all of the Restricted Stock
Units (and the Shares subject to the Award) not vested on the date that
Employee ceases to be an employee shall be immediately and irrevocably
forfeited and the Employee will retain no rights with respect to the forfeited
units.
4. Additional Restriction on Transfer of Restricted Stock Units.
The Restricted Stock Units cannot be sold, assigned, transferred,
gifted, pledged, hypothecated, or in any manner encumbered or disposed of at any
time prior to delivery of the Shares underlying the Restricted Stock Units after
the Restricted Stock Units have vested pursuant to Section 3 above.
5. Issuance and Custody of Certificate; Representations of Employee.
(a) Subject to the restrictions in this Section 5, upon vesting of the
Restricted Stock Units and following payment of any applicable withholding
taxes pursuant to section 8 of this Agreement, the Company shall promptly
cause to be issued and delivered to Employee a certificate or certificates
evidencing such Vested Shares, free of any restrictive legends and registered
in the name of Employee or in the name of Employee's legal representatives,
beneficiaries or heirs, as the case may be, and shall cause such certificate
or certificates to be delivered to Employee or Employee's legal
representatives, beneficiaries or heirs.
(b) The issuance of any Common Stock in accordance with this Award shall only be
effective at such time that the sale or issuance of Common Stock pursuant to
this Agreement will not violate any state or federal securities or other laws.
(c) At any time after the vesting of the Restricted Stock Units and prior to the
issuance of the Vested Shares, if the issuance of the Vested Shares to the
Employee is prohibited due to limitations under this Section 5, the Company
shall use its reasonable best efforts to remove such limitations, unless such
limitations relate solely to Employee's personal situation. If such
limitations relate solely to Employee's personal situation, the Company will
use its reasonable best efforts to cooperate with the Employee in resolving
such limitation.
6. Rights as Shareholder. Prior to the Restricted Stock Units vesting and
Employee receiving his shares of Common Stock underlying the Restricted Stock
Units pursuant to Section 5 above, Employee shall not have ownership or rights
of ownership of any Common Stock underlying the Restricted Stock Units awarded
hereunder. However, Employee shall be entitled to receive dividend equivalents
on the Restricted Stock Units awarded, whether vested or unvested, when and if
dividends are declared by the Board on the Common Stock, in an amount of cash
per share equal to and on the same payment dates as dividends paid to other
common stockholders of the Company. Dividend equivalents paid before delivery
of the Vested Shares will be treated as compensation income for tax purposes
and will be subject to income and payroll tax withholding by the Company.
7. Distributions and Adjustments. In accordance with Section 3.3 of the Plan,
the Award shall be subject to adjustment in the event that any distribution,
recapitalization, reorganization, merger or other event covered by Section 3.3
of the Plan shall occur.
8. Taxes. In order to provide the Company with the opportunity to claim the
benefit of any income tax deduction which may be available to it in connection
with this restricted stock unit award, and in order to comply with all
applicable federal or state tax laws or regulations, the Company may take such
action as it deems appropriate to insure that, if necessary, all applicable
federal or state income and social security taxes are withheld or collected
from Employee.
9. Employee's Employment. Nothing in this Agreement shall confer upon Employee
any right to continue in the employ of the Company or any of its subsidiaries
or interfere with the right of the Company or its subsidiaries, as the case
may be, to terminate Employee's employment or to increase or decrease
Employee's compensation at any time.
10. Notices. All notices, claims, certificates, requests, demands, and other
communications hereunder shall be in writing and shall be deemed to have been
duly given and delivered if personally delivered or if sent by nationally
recognized overnight courier, by facsimile or by registered or certified mail,
return receipt requested and postage prepaid, addressed as follows:
(a) If to the Company, to it at: 0 Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: Corporate Secretary
(b) If to Employee, to him at such Employee's address as most recently supplied
to the Company and set forth in the Company's records; or
(c) to such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith.
Any such notice or communication shall be deemed to have been received
(i) in the case of personal delivery, on the date of such delivery (or if such
date is not a business day, on the next business day), (ii) in the case of
nationally-recognized overnight courier, on the next business day after the date
sent, (iii) in the case of facsimile transmission, when received (or if not sent
on a business day, on the next business day after the date sent), and (iv) in
the case of mailing, on the third business day following the date on which the
piece of mail containing such communication is posted.
11. Waiver of Breach. The waiver by either party of a breach of any provision of
this Agreement must be in writing and shall not operate or be construed as a
waiver of any other or subsequent breach.
12. Undertaking. Both parties hereby agree to take whatever additional actions
and execute whatever additional documents either party may in their reasonable
judgment deem necessary or advisable in order to carry out or effect one or more
of the obligations or restrictions imposed on the other party under the
provisions of this Agreement.
13. Plan Provisions Control. The Award is made subject to the terms and
provisions of the Plan. In the event that any provision of the Agreement
conflicts with or is inconsistent in any respect with the terms of the Plan, the
terms of the Plan shall control.
14. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without giving effect to
principles of conflicts of laws).
15. Counterparts. This Agreement may be executed in one or more counterparts,
and each such counterpart shall be deemed to be an original, but all such
counterparts together shall constitute but one agreement.
16. Entire Agreement. This Agreement (and the other writings incorporated by
reference herein, including the Plan) constitutes the entire agreement between
the parties with respect to the subject matter hereof and supersedes all prior
or contemporaneous written or oral negotiations, commitments, representations,
and agreements with respect thereto
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
IntegraMed America, Inc.
By:
--------------------------------------
Employee:
--------------------------------------
