ULURU Inc. Restricted Stock Grant Agreement
EXHIBIT
4.4
2006
EQUITY INCENTIVE PLAN
This
Agreement made
this
________ day of __________________, _____, by and between ULURU
Inc., a corporation organized under the laws of the State of Nevada (the
"Company"),
and
the individual identified below, residing at the address there set out
(the
"Employee").
W
I T N E S S E T H T H A T:
Whereas,
the
Employee's association with the Company, or any corporation, partnership,
limited liability company, business trust, or other entity controlling,
controlled by or under common control with the Company ("Affiliates,"
and
each individually an "Affiliate")
is
considered by the Company to be important for the growth of it and its
Affiliates; and
Whereas,
the
Company desires to grant to the Employee shares of the Company's common stock,
par value $0.001 per share (the "Common
Stock"),
pursuant to the Company's 2006 Equity Incentive Plan (the "Plan"),
according to the terms and conditions hereof.
Now,
Therefore,
in
consideration of the promises and mutual covenants herein set forth, and other
good and valuable consideration, receipt of which is hereby acknowledged, the
parties hereto hereby mutually covenant and agree as follows:
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Issuance
of Common Stock
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The
Company hereby grants to the Employee an aggregate of _______________________
(__________) shares of Common Stock in consideration of his performance of
past
services and on the terms and conditions of this Agreement and all other
applicable terms and conditions of the Plan. For purposes of this Agreement,
"Acquired
Shares"
means
all of such shares of Common Stock, together with any shares of stock or other
securities issued in respect of or in replacement for such shares of Common
Stock as a result of a corporate or other action such as a stock dividend,
stock
split, merger, consolidation, reorganization or recapitalization.
Upon
receipt by the Company of a copy of this Agreement duly executed and completed
by the Employee, the Company shall issue in the name of the Employee duly
executed certificates evidencing the Acquired Shares endorsed with the legend
set forth in Section 7.3 hereof. Certificates evidencing Restricted Shares
(as
defined below) shall be held in escrow by the Company as hereinafter
provided.
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Vesting
and Forfeiture of Acquired
Shares
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As
of the
date of this Agreement, ___________ of the Acquired Shares shall be subject
to
the risk of forfeiture in accordance with Section 2.2 hereof (the Acquired
Shares, while and to the extent so subject to the risk of forfeiture pursuant
to
Section 2.2 hereof, are hereafter referred to as "Restricted
Shares").
Restricted Shares shall vest and no longer be subject to the risk of forfeiture
under Section 2.2 hereof in accordance with the provisions of Schedule A
attached
hereto. Restricted Shares which have vested in accordance with the provisions
of
Schedule A
attached
hereto are herein referred to as "Vested
Shares".
Unless
otherwise expressly provided on such Schedule A,
no
Restricted Shares shall become Vested Shares following the date (the Employee's
"Termination
Date"),
reasonably fixed and determined by the Committee, of the voluntary or
involuntary termination of the Employee's employment or other association with
the Company and its Affiliates, for any or no reason whatsoever, including
death
or disability and an entity ceasing to be an Affiliate of the Company;
provided,
however,
that
military or sick leave shall not be deemed a termination of employment or other
association, if it does not exceed the longer of 90 days or the period during
which the Employee's reemployment rights, if any, are guaranteed by statute
or
by contract.
As
of the
Employee's Termination Date, all of the then Restricted Shares shall be
forfeited by the Employee or any Permitted Transferee (as defined in Section
3.1
hereof). As of the Employee's Termination Date, and without requirement of
notice or other action, the Company shall become the legal and beneficial owner
of the then Restricted Shares and all rights and interests therein or relating
thereto, and the Company shall have the right to retain and transfer to its
own
name such Restricted Shares for no consideration whatsoever.
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Restriction
on Transfer
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Subject
to the remaining provisions of this Section 3 and except for the escrow
described in Section 4 hereof, none of the Restricted Shares or any
beneficial interest therein shall be sold, transferred, assigned, pledged,
encumbered or otherwise disposed of in any way at any time (including, without
limitation, by operation of law) other than (i) to the Company or its assignees
or (ii) by will or by the laws of descent and distribution (a "Permitted
Transferee").
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All
Permitted Transferees of Restricted Shares or any beneficial interest therein
shall be required as a condition of such transfer to agree in writing, in form
satisfactory to the Company, that they shall receive and hold such Restricted
Shares or beneficial interest therein subject to the provisions of this
Agreement, including, without limitation, the forfeiture provisions of Section
2
hereof. Any sale, transfer, assignment, pledge, encumbrance or other disposition
of the Restricted Shares other than in accordance with this Section 3 shall
be
void. The Company shall not be required (i) to transfer on its books any
Restricted Shares sold, transferred or otherwise disposed of in violation of
this Section 3 or (ii) to treat as owner of any Restricted Shares, or to pay
dividends in respect of Restricted Shares, to any person purporting to have
acquired Restricted Shares or any beneficial interest therein unless such
Restricted Shares or beneficial interest were acquired in compliance with the
provisions of this Section 3.
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Escrow
of Shares
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All
Restricted Shares granted pursuant to this Agreement shall be held in escrow
by
the Company, as escrow holder ("Escrow
Holder"),
together with a stock power executed in blank by the Employee, until such
Restricted Shares shall either (a) have been forfeited to the Company at the
Employee's Termination Date in accordance with Section 2.2 hereof or (b) have
become Vested Shares and the Employee shall have satisfied the requirements
of
Section 5.1 hereof (relating to tax withholdings) with respect to any taxable
income attributable to such Restricted Shares.
Upon
the
forfeiture of any Restricted Shares to the Company in accordance with Section
2.2 hereof, the Company shall have the right, as Escrow Holder, to take all
steps necessary to accomplish the transfer of such Restricted Shares to it,
including but not limited to presentment of certificates representing such
Restricted Shares, together with a stock power executed by or in the name of
the
Employee appropriately completed by the Escrow Holder, to the Company's transfer
agent with irrevocable instructions to register transfer of such Restricted
Shares into the name of the Company. The Employee hereby appoints the Company,
in its capacity as Escrow Holder, as his irrevocable attorney-in-fact to execute
in his name, acknowledge and deliver all stock powers and other instruments
as
may be necessary or desirable with respect to the Restricted
Shares.
When
any
portion of the Restricted Shares have become Vested Shares, upon the Employee's
request, the Company, as Escrow Holder, shall promptly cause a new certificate
to be issued for such Vested Shares and shall deliver such certificate to the
Employee subject, however, to the Employee's satisfaction of the requirements
of
Section 5.1 hereof (relating to tax withholdings).
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Subject
to the terms hereof, the Employee shall have all the rights of a stockholder
with respect to all Restricted Shares while they are held in escrow, including
without limitation, the right to receive any dividends declared thereon. If,
from time to time during the term of the escrow, there occurs any corporate
or
other action giving rise to substituted or additional securities by reason
of
ownership of Restricted Shares, such substituted or additional securities,
with
the legend required by Section 7.3 hereof if applicable, shall be immediately
subject to this escrow and deposited with the Escrow Holder.
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Tax
Consequences
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It
is
understood by the Company and the Employee that the issuance of the Acquired
Shares hereunder may be deemed compensatory in purpose and in effect and that
as
a result the Company or an Affiliate may be obligated to pay withholding taxes
in respect of such Acquired Shares at the time the Employee becomes subject
to
income taxation as a result of the receipt or vesting of the Acquired Shares
hereunder. In the event that at the time the above-said withholding tax
obligations arise (i) the Employee is no longer in the employ of the Company
or
an Affiliate or (ii) the Employee's other cash compensation from the Company
and
its Affiliates is not sufficient to meet the aforesaid withholding tax
obligation, the Employee hereby agrees to provide the Company or its Affiliate
with an amount sufficient to pay all withholding taxes required to be paid
as
and when such taxes become payable. The Employee agrees that in the event and
to
the extent the Company and its Affiliates determine that they are not obligated
to withhold taxes payable by the Employee with respect to the Acquired Shares
but the Company or any Affiliate is later held liable due to any non-payment
of
taxes on the part of the Employee, the Employee shall indemnify and hold the
Company and its Affiliates harmless from the amount of any payment made by
them
in respect of such liability.
The
Employee hereby agrees to deliver to the Company (and his employing Affiliate,
if applicable) a signed copy of any instrument, letter or other document he
may
execute and file with the Internal Revenue Service evidencing his election
under
Section 83(b)(2) of the Internal Revenue Code of 1986, as amended (the
"Code"),
to
treat his receipt of the Acquired Shares as includible in his gross income
in
the year of receipt. The Employee shall deliver the said copy of any such
instrument of election within five (5) days after the date on which any such
election is required to be made in accordance with the appropriate provisions
of
the Code or applicable Regulations thereunder.
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Compliance
with Law
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6.1. The
Employee represents and warrants, and each Permitted Transferee shall, as a
condition of transfer, represent and warrant, that he is acquiring the Acquired
Shares of his own account for the purpose of investment and not with a view
to,
or for sale in connection with, the distribution of any such Acquired
Shares.
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6.2. The
Employee acknowledges and agrees, and each Permitted Transferee shall, as a
condition of transfer, acknowledge and agree, that neither the Company nor
any
agent of the Company shall be under any obligation to recognize any transfer
of
any of the Acquired Shares if, in the opinion of counsel for the Company, such
transfer would result in violation by the Company of any federal or state law
with respect to the offering, issuance or sale of securities.
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General
Provisions
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This
Agreement shall be governed and enforced in accordance with the terms of the
Plan and the laws of the State of Nevada, without regard to the conflict of
laws
principles thereof, and shall be binding upon the heirs, personal
representatives, executors, administrators, successors and assigns of the
parties.
This
Agreement and the applicable terms of the Plan embody the complete agreement
and
understanding among the parties hereto with respect to the subject matter hereof
and thereof, supersedes and preempts any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way and may only be modified or amended
in
writing signed by the Company and the Employee.
The
certificates representing the Restricted Shares shall be endorsed with the
following legend:
The
transferability of this certificate and the shares represented by this
certificate are subject to the terms and conditions of the ULURU Inc. 2006
Equity Incentive Plan and a Restricted Stock Grant Agreement entered into by
the
registered owner and ULURU Inc. Copies of such Plan and Agreement are on file
in
the offices of ULURU Inc.
The
rights and obligations of each party under this Agreement shall inure to the
benefit of and be binding upon such party's heirs, legal representatives,
successors and permitted assigns. The rights and obligations of the Company
under this Agreement shall be assignable by the Company to any one or more
persons or entities without the consent of the Employee or any other person.
The
rights and obligations of any person other than the Company under this Agreement
may only be assigned with the prior written consent of the Company.
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No
consent to or waiver of any breach or default in the performance of any
obligations hereunder shall be deemed or construed to be a consent to or waiver
of any other breach or default in the performance of any of the same or any
other obligations hereunder. Failure on the part of any party to complain of
any
act or failure to act of any other party or to declare any party in default,
irrespective of the duration of such failure, shall not constitute a waiver
of
rights hereunder and no waiver hereunder shall be effective unless it is in
writing, executed by the party waiving the breach or default
hereunder.
If
any
provision of this Agreement shall be held illegal, invalid or unenforceable,
such illegality, invalidity or unenforceability shall attach only to such
provision and shall not in any manner affect or render illegal, invalid or
unenforceable any other severable provisions of this Agreement.
The
headings in this Agreement are for convenience of identification only, do not
constitute a part hereof, and shall not affect the meaning or construction
hereof.
The
Employee agrees upon request to execute any further documents or instruments
necessary or desirable to carry out the purposes or intent of this
Agreement.
In
case
of any dispute hereunder, the parties will submit to the exclusive jurisdiction
and venue of any court of competent jurisdiction sitting in the county in which
the Company's headquarters in the State of Nevada is located, and will comply
with all requirements necessary to give such court jurisdiction over the parties
and the controversy. Each party hereto, in addition to being entitled to
exercise all rights granted by law including recovery of damages (but subject
to
the remainder of this subsection), will be entitled to specific performance
of
such party's rights under this Agreement. The parties hereto agree that monetary
damages would not be adequate compensation for any loss incurred by reason
of a
breach of the provisions of this Agreement and hereby agree to waive the defense
in any action for specific performance that a remedy at law would be adequate.
EACH PARTY HEREBY WAIVES ANY RIGHT TO A JURY TRIAL AND TO CLAIM OR RECOVER
PUNITIVE DAMAGES. Nothing contained in this Section 7.9 shall be construed
to
limit or otherwise interfere in any respect with the authorities granted the
Committee under the Plan, including without limitation, its sole and exclusive
discretion to interpret the Plan and all awards granted thereunder (including
pursuant to this Agreement).
Nothing
contained in this Agreement shall confer upon the Employee any right with
respect to the continuation of his or her employment or other association with
the Company or any Affiliate, or interfere in any way with the right of the
Company and its Affiliates, subject to the terms of the Employee's separate
employment or consulting agreement, if any, or provision of law or the Company's
articles of incorporation or by-laws to the contrary, at any time to terminate
such employment or consulting agreement or otherwise modify the terms and
conditions of the Employee's employment or association with the Company or
any
of its Affiliates.
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This
Agreement may be executed in one or more counterparts, each of which when
executed shall be deemed an original and all of which, taken together, shall
constitute one and the same instrument. In making proof of this Agreement it
shall not be necessary to produce or account for more than one such
counterpart.
All
capitalized terms used but not defined herein shall have the respective meaning
given such terms in the Plan.
Where
the
context requires, pronouns and modifiers in the masculine, feminine or neuter
gender shall be deemed to refer to or include the other genders.
In
Witness Whereof,
the
parties have duly executed this Agreement under seal as of the month, day and
year first set forth above.
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By:
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Name:
__________________
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Title:
___________________
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EMPLOYEE
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By:
_____________________
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Name:
___________________
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Address:_________________
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Schedule
A
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___________________________
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(Employee
Name)
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___________________________
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(Date
of Agreement)
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___________________________
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(Number
of Acquired Shares)
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This
Schedule A provides for the vesting of the Acquired Shares granted to the
Employee in the Restricted Stock Grant Agreement (the "Agreement")
to
which it is attached.
1. Release
Based on Continued Employment.
At each
anniversary of the date of the Agreement set forth below, that percentage of
the
Acquired Shares set forth below opposite such anniversary shall be released
from
the risk of forfeiture and shall become Vested Shares (as defined in the
Agreement), with any fractions rounded down except on the final
installment:
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Anniversary
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Percentage
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__________
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_________%
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__________
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_________%
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__________
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_________%
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__________
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_________%
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__________
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_________%
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2. Release
On Acquisition or Change of Control.
On the
occurrence of an Acquisition or Change of Control (each as defined below),
100%
of the then Restricted Shares shall become Vested Shares.
As
used
herein, "Acquisition"
shall
mean a merger or consolidation of the Company with or into another person or
the
sale, transfer, or other disposition of all or substantially all of the
Company’s assets to one or more other persons in a single transaction or series
of related transactions, unless securities possessing more than 50% of the
total
combined voting power of the survivor’s or acquirer’s outstanding securities (or
the securities of any parent thereof) are held by a person or persons who held
securities possessing more than 50% of the total combined voting power of the
Company immediately prior to that transaction.
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As
used
herein, "Change
of Control"
shall
mean any of the following transactions:
(a) any
Acquisition, or
(b) any
person or group of persons (within the meaning of Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended and in effect from time to time),
other than the Company or an Affiliate, directly or indirectly acquires
beneficial ownership (determined pursuant to Securities and Exchange Commission
Rule 13d-3 promulgated under the said Exchange Act) of securities
possessing more than 50% of the total combined voting power of the Company's
outstanding securities pursuant to a tender or exchange offer made directly
to
the Company's stockholders that the Board does not recommend such stockholders
to accept, or
(c) over
a
period of 36 consecutive months or less, there is a change in the composition
of
the Board such that a majority of the Board members (rounded up to the next
whole number, if a fraction) ceases, by reason of one or more proxy contests
for
the election of Board members, to be composed of individuals who either
(A) have been Board members continuously since the beginning of that
period, or (B) have been elected or nominated for election as Board members
during such period by at least a majority of the Board members described in
the
preceding clause (A) who were still in office at the time that election or
nomination was approved by the Board.
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