Exhibit 4.8
IR BIOSCIENCES HOLDINGS, INC.
2003 STOCK OPTION, DEFERRED STOCK
AND RESTRICTED STOCK PLAN
RESTRICTED STOCK AWARD AGREEMENT
(SUPER EXECUTIVE)
Participant Name:___________________
This AGREEMENT dated as of the ___ day of _______, ____ between IR
Biosciences Holdings, Inc. a Delaware corporation (the "Company") and
________________ (the "Participant").
RECITALS
WHEREAS, the Company has established the 2003 Stock Option, Deferred Stock
and Restricted Stock Plan (the "Plan") effective as of June 26, 2003 and
WHEREAS, pursuant to the provisions of said Plan, the Administrator has
granted to the Participant by action duly taken on ________ __, 200_, (the
"Award Date") a restricted stock award (the "Restricted Stock Award") based upon
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of services rendered and to be rendered
by the Participant and the mutual promises made herein, the mutual benefits to
be derived therefrom and other good and valuable consideration, the parties
agree as follows:
AGREEMENT
1. Grant. Subject to the terms of this Agreement, the Company grants to
the Participant the following:
Restricted Stock Award:
__________ shares of Common Stock of the Company
(the "Restricted Stock")
Price (optional): $_____________ per share
Release of Company's Repurchase Option Schedule:
Number of Shares Expiration Date of Company's
Repurchase Option
2. Restricted Stock.
(a) Restriction. Subject to the provisions of the Plan, Participant
is not permitted to sell, transfer, pledge or assign the shares of Restricted
Stock during the Restricted Period.
(b) Certificates and Legend. Participant shall be issued a stock
certificate in respect of such shares of Restricted Stock; and such certificate
shall be registered in the name of Participant, and shall bear an appropriate
legend referring to the terms, conditions, and restrictions applicable to such
Restricted Stock Award, substantially in the following form:
"The transferability of this certificate and the shares of stock
represented hereby are subject to the terms and conditions (including
forfeiture) of the IR Biosciences Holdings, Inc. 2003 Stock Option, Deferred
Stock and Restricted Stock Plan and a Restricted Stock Award Agreement entered
into between the registered owner and the Company. Copies of such Plan and
Agreement are on file in the offices the Company."
The stock certificates evidencing such shares shall be held in the
custody of the Company until the restrictions thereon shall have lapsed, and
that, as a condition of any Restricted Stock Award, Participant shall have
delivered a stock power, endorsed in blank, relating to the Stock covered by
such Award, a form of which is attached here to as Exhibit A.
(c) Voting Rights. Except as provided herein, Participant shall have
all of the rights of a shareholder of the Company, including the right to vote
the shares, and the right to receive any dividends thereon during the Restricted
Period.
3. Repurchase Option
(a) In the event of any voluntary or involuntary termination of the
Participant's employment by the Company or Participant, as applicable, for any
or no reason, including death or disability (a "Termination") before all of the
shares of Restricted Stock are released from the Company's repurchase option
(see Section 4 below), the Company shall, upon the date of a Termination (as
reasonably fixed and determined by the Company) have an irrevocable, exclusive
option (the "Repurchase Option") for a period of ninety (90) days from such date
to repurchase all (but not less than all) of the shares of Restricted Stock that
shall constitute the Unreleased Shares (defined herein as any of the shares of
Restricted Stock that have not yet been released from the Repurchase Option) at
such time, at the price paid by the Participant at the time of issuance (the
"Repurchase Price");
(b) The Repurchase Option shall be exercised by the Company by
written notice to the Participant and, at the Company's option, (i) by delivery
to the Participant with such notice of a check in the amount of the purchase
price for the shares of Restricted Stock being repurchased, (ii) by cancellation
by the Company of an amount of the Participant's indebtedness
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to the Company equal to the purchase price for the shares of Restricted Stock
being repurchased, or (iii) by a combination of (i) and (ii) so that the
combined payment and cancellation of indebtedness equals the aggregate Purchase
Price. Upon delivery of such notice and the payment of the purchase price of any
of the ways described above, the Company shall become the legal and beneficial
owner of the shares of Restricted Stock being repurchased and all rights and
interests therein or relating thereto, and the Company shall have the right to
retain and transfer to its own name the number of shares of Restricted Stock
being repurchased by the Company.
(c) Whenever the Company shall have the right to repurchase shares
of Restricted Stock hereunder, the Company may designate and assign one or more
employees, officers, directors, or shareholders of the Company or other persons
or organizations to exercise all or a part of the Company's purchase rights
under this Agreement and purchase all or a part of such shares of Restricted
Stock. If the fair market value of the shares of Restricted Stock to be
repurchased on the date of such designation or assignment (the "Repurchase FMV")
exceeds the aggregate Repurchase Price of such shares of Restricted Stock, then
each such designee or assignee shall pay the Company cash equal the difference
between the Repurchase FMV and the aggregate Repurchase Price of such shares of
Restricted Stock.
4. Release of Shares From Repurchase Option
(a) Shares of Restricted Stock shall be released from Company's
Repurchase Option according to the schedule set forth in Section 1 above;
provided in each case that the Participant has not ceased to be an employee of
the Company prior to the date of any such release, but in which case the
Participant shall get vesting credit for the number of days in the final month
that the Employee is either an employee or director of or a consultant to the
Company.
(b) Notwithstanding anything set forth in Section 4(a) above, in the
event, within twelve (12) months after a Change of Control, the Participant's
employment terminates other than (i) for Cause, (ii) voluntary termination by
the Participant but such resignation is not a result of a "Constructive
Termination", or (iii) death or disability of the Participant, fifty percent
(50%) of the Unreleased Shares shall be released from the Company's Repurchase
Option upon the date of such termination. For the purposes of this agreement,
"Constructive Termination" shall mean Employee's voluntary termination, upon 30
days prior written notice to the Company, following: (A) a material reduction or
change in job duties, responsibilities and requirements inconsistent with
Employee's position with the Company and Employee's prior duties,
responsibilities and requirements; (B) any reduction of Employee's base
compensation (other than in connection with a general decrease in base salaries
for most employees of the successor corporation); or (C) Employee's refusal to
relocate to a facility or location more than 75 miles from the Company's current
location.
For the purposes of the foregoing, a "Change of Control" shall have
the meaning set forth in Section 9(b) of the Plan. For purposes of this
Agreement, "Cause" shall mean (i) a material act of dishonesty in connection
with the Participant's responsibilities as an employee of the Company; (ii) the
Participant's conviction of, or plea of nolo contendere to, a felony or a
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crime involving moral turpitude, (iii) the Participant's gross misconduct which
has a material adverse effect on the Company, or (iv) the Participant's
consistent and willful failure to perform his or her employment duties where
such failure is not cured within 30 days after written notice to Participant by
the Company.
5. Governing Plan. This Agreement hereby incorporates by reference the
Plan and all of the terms and conditions of the Plan as heretofore amended and
as the same may be amended from time to time hereafter in accordance with the
terms thereof, but no such subsequent amendment shall adversely affect
Participant's rights under this Agreement and the Plan except as may be required
by applicable law. Participant expressly acknowledges and agrees that the
provisions of this Agreement are subject to the Plan; the terms of this
Agreement shall in no manner limit or modify the controlling provisions of the
Plan, and in case of any conflict between the provisions of the Plan and this
Agreement, the provisions of the Plan shall be controlling and binding upon the
parties hereto. Participant also hereby expressly acknowledges, represents and
agrees as follows:
(a) Acknowledges receipt of a copy of the Plan, a copy of which is
attached hereto and by reference incorporated herein, and represents that he/she
is familiar with the terms and provisions of said Plan, and hereby accepts this
Agreement subject to all the terms and provisions of said Plan.
(b) Agrees to accept as binding, conclusive and final all decisions
or interpretations of the Administrator upon any questions arising under the
Plan.
(c) Acknowledges that he/she is familiar with Sections of the Plan
regarding the issuance of the Restricted Stock.
6. Representations and Warranties. As a condition to the issuance of any
portion of shares of Restricted Stock the Company may require Participant
receiving such shares to make any representation and/or warranty to the Company
as may, in the judgment of counsel to the Company, be required under any
applicable law or regulation, including but not limited to a representation and
warranty that the shares are being acquired only for investment and without any
present intention to sell or distribute such shares if, in the opinion of
counsel for the Company, such a representation is required under the Securities
Act of 1933 or any other applicable law, regulation or rule of any governmental
agency. Participant hereby represents to the Company that the shares issuable
pursuant to this Agreement are being acquired only for investment and without
any present intention to sell or distribute such securities.
7. No Enlargement of Employee Rights. Nothing in this Agreement shall be
construed to confer upon Participant (if an employee) any right to continued
employment with the Company, any Parent or Subsidiary, or to restrict in any way
the right of the Company, a Subsidiary or Parent to terminate his/her
employment. Participant acknowledges that in the absence of an express written
employment agreement to the contrary, the Company may terminate Participant's
employment with the Company at any time, with or without cause.
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8. Execution and Delivery. Participant acknowledges that Participant shall
have no rights with respect to any Award granted by the Company unless and until
Participant executes an Award Agreement and delivers it to the Company within
sixty days of such award (or such other period as the Participant may specify
after the Award Date).
9. Withholding of Taxes. Participant authorizes the Company to withhold,
in accordance with any applicable law, from any compensation payable to him any
taxes required to be withheld by federal, state or local law as a result of the
grant of Restricted Stock Award.
10. Laws Applicable to Construction. This Agreement shall be construed and
enforced in accordance with the laws of the State of Delaware.
11. Agreement Binding on Successors. The terms of this Agreement shall be
binding upon the executors, administrators, heirs, successors, transferees and
assignees of the Participant.
12. Costs of Litigation. In any action at law or in equity to enforce any
of the provisions or rights under this Agreement or the Plan, the unsuccessful
party to such litigation, as determined by the court in a final judgment or
decree, shall pay the successful party or parties all costs, expenses and
reasonable attorneys' fees incurred by the successful party or parties
(including without limitation costs, expenses end fees on any appeals), and if
the successful party recovers judgment in any such action or proceeding such
costs, expenses and attorneys' fees shall be included as part of the judgment.
13. Necessary Acts. The Participant agrees to perform all acts and execute
and deliver any documents that may be reasonably necessary to carry out the
provisions of this Agreement, including but not limited to all acts and
documents related to compliance with federal and/or state securities laws.
14. Counterparts. For convenience this Agreement may be executed in any
number of identical counterparts, each of which shall be deemed a complete
original in itself and may be introduced in evidence or used for any other
purpose without the production of any other counterparts.
15. Invalid Provisions. In the event that any provision of this Agreement
is found to be invalid or otherwise unenforceable under any applicable law, such
invalidity or unenforceability shall not be construed as rendering any other
provisions contained herein invalid or unenforceable, and all such other
provisions shall be given full force and effect to the same extent as though the
invalid and unenforceable provision was not contained herein.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written. By Participant's execution of this Agreement,
Participant agrees to the terms and conditions hereof and of the Plan.
.
IR BIOSCIENCES HOLDINGS, INC PARTICIPANT
By: ______________________________ ________________________________
Name: (Signature)
Title:
________________________________
(Print Name)
________________________________
(Address)
________________________________
(City, State, Zip Code)
________________________________
(Social Security)
By his or her signature below, the spouse of the Participant, of such
Participant be legally married as of the date of his execution of this
Agreement, acknowledges that he or she has read this Agreement and the Plan and
is familiar with the terms and provisions thereof, and agrees to be bound by all
the terms and conditions of said Agreement and said Plan document.
________________________________________
Spouse
Dated:
____________________________
By his or her signature below the Participant represents that he or
she is not legally married as of the date of execution of this Agreement.
________________________________________
Participant
Dated:__________________________________
EXHIBIT A
STOCK ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, the undersigned hereby sell, assign and transfer unto:
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
_______________________________________________) Shares of the
Stock of the _________________________________________________________________
Corporation standing in ______________ name(s) on the books of said Corporation
represented by certificate(s) No. ______________________________________________
herewith and do hereby irrevocably constitute and appoint_______________________
_______________________________________________________________________ attorney
to transfer the said stock on the books of the within named Corporation with
full power of substitute.
Dated __________________________________ __________________________________
__________________________________
THE SIGNATURE(S) ON THIS ASSIGNMENT MUST CORRESPOND WITH THE
NAME(S) ON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT, OR ANY CHANGE.
