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Exhibit 10.51
Form of Executive Officer Restricted Share Award Agreement
I-STAT CORPORATION
RESTRICTED SHARE AWARD AGREEMENT
WITH
_________________________________
This Restricted Share Award Agreement, (the "Agreement") dated as of
___________, ____, is between i-STAT Corporation, a Delaware corporation, having
its principal place of business at 000 Xxxxxxx Xxxxxx Xxxxx, Xxxx Xxxxxxx, Xxx
Xxxxxx 00000 (the "Company") and [_________________] ("Executive").
In connection with, and in consideration for, services rendered and to
be rendered to the Company by Executive, the Company desires to award to
Executive , pursuant to the Company's Equity Incentive Plan (the "Plan"), shares
of the Company's Common Stock, $.15 par value per share (the "Common Stock").
Accordingly, the Company and Executive hereby agree as follows:
1. Award of Shares. Subject to the terms and conditions set forth herein
and in the Plan, the Company hereby awards to Executive [__________ (____)]
shares of Common Stock (the "Award Shares").
2. Forfeiture of Award Shares.
(a) Voluntary and for Cause Termination. Except as provided in
paragraphs (b) and (c) of this Section 2, if prior to the third anniversary
hereof (the "Forfeiture Period"), either (i) Executive voluntarily terminates
his employment with the Company or (ii) the Company terminates Executive's
employment with the Company for "Cause" (as defined in paragraph (g) below),
then there shall be forfeited by Executive the percentage of Award Shares
specified in the following table (the "Forfeited Shares"), whereupon Executive
shall have no further rights whatsoever with respect to such Forfeited Shares.
Percentage Of
Termination Date Forfeited Shares
---------------- ----------------
Prior to First Anniversary 100%
First Anniversary to before Second Anniversary 80%
Second Anniversary to before Third Anniversary 60%
Third Anniversary and thereafter -0-
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(b) Death or Disability. If during the Forfeiture Period,
Executive (x) dies or (y) becomes Permanently Disabled (as defined in paragraph
(g) below), then the number of Forfeited Shares shall be the number of Award
Shares equal to the lesser of (i) one-half of the Award Shares and (ii) (A) the
Award Shares less (B) that number of Award Shares which bears the same
proportion to all of the Award Shares as the number of days elapsed between the
date of this Agreement and the date of the termination of Executive's employment
for the reasons stated in clauses (x) or (y) above bears to the number of days
between the date of this Agreement and the third anniversary of the date of this
Agreement. Subsequent to the occurrence of either of the events set forth in
clauses (x) or (y) above, any Award Shares which are not forfeited as provided
for in this paragraph (b) shall be subject to no further risk of forfeiture.
(c) Termination Without Cause; Change in Control. If, during the
Forfeiture Period, either (i) the Company terminates the Executive's employment
without Cause or (ii) there occurs a Change in Control (as such term is defined
in the Plan), then no Award Shares shall remain subject to forfeiture.
(d) Stock Dividend; Other Events. If, during the Forfeiture
Period, there is (i) any stock dividend, stock split, combination or subdivision
or other change in the character or amount of any of the Company's outstanding
securities or (ii) any consolidation, merger or sale of all or substantially all
of the Company's assets, then, in such event, any and all new, substituted or
additional securities to which Executive is entitled by reason of his ownership
of Award Shares which, immediately prior to such event, were subject to
forfeiture, will be immediately subject to the forfeiture provisions of
paragraph (a) of this Section, and shall be included in the term "Award Shares"
for purposes of this Agreement.
(e) Rights As Stockholder. As long as Executive's Award Shares
have not been forfeited pursuant to paragraph (a) of this Section, Executive
shall have with respect to such Award Shares, voting, dividend and all other
rights of a holder of Common Stock.
(f) Certificates for Award Shares; Transfer Restrictions.
Certificates representing Award Shares subject to forfeiture pursuant to
paragraph (a) of this Section will be held by the Company until such Award
Shares are no longer subject to forfeiture. Award Shares subject to forfeiture
may not be sold, transferred, pledged or otherwise disposed of (including, but
not limited to, through transfer by gift or donation).
(g) Certain Definitions.
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(i) "Cause" for purposes of this Agreement shall mean with
respect to Executive (A) any felony conviction or admission of guilt, (B) any
breach or nonobservance by Executive of the employee policies or standards of
the Company, (C) any willful, intentional or deliberate disobedience or neglect
by Executive of the lawful and reasonable orders or directions of the Chairman
of the Board or Chief Executive Officer of the Company; provided that the
Executive has been given written notice of such disobedience or neglect and
Executive has failed to cure such disobedience or neglect within a period
reasonable under the circumstances, (D) any willful or deliberate misconduct by
Executive that is materially injurious to the Company, (E) any violation by
Executive of his obligations to the Company of non-disclosure, non-competition
or non-solicitation, or (F) any breach by Executive of any provision of this
Agreement. All determinations of "Cause" under this Agreement will be made
reasonably by the Chief Executive Officer of the Company, in the exercise of his
sole discretion, and will be final and binding upon Executive.
(ii) "Permanently Disabled" for purposes of this Agreement
means Executive's inability to substantially perform his duties and
responsibilities to the Company by reason of any physical or mental incapacity
for a period of 180 consecutive days, or two or more periods of 90 consecutive
days each in any 360-day period.
3. Representations of Executive. Executive represents, warrants
and covenants that:
(a) The Award Shares are being acquired by Executive for his own
account, for investment only and not with a view to, or for sale in connection
with, any distribution in violation of the Securities Act of 1933, as amended
(the "Securities Act") or any rule or regulation thereunder; and
(b) Executive understands that (i) the Award Shares currently are
not, and in the future may not be registered under the Securities Act and are
"restricted securities" within the meaning of Rule 144 under the Securities Act;
(ii) the Award Shares cannot be sold, transferred or otherwise disposed of
unless they are registered under the Securities Act or an exemption from
registration is then available; and (iii) in any event, the exemption from
registration under Rule 144 will not be available for at least one (1) year and
even then will not be available unless a public market then exists for the
Common Stock of the Company, adequate information concerning the Company is then
available to the public, and the other terms and conditions of Rule 144 are
complied with.
4. Tax Consequences. Executive hereby represents that prior to or
on the date hereof, Executive has generally been advised of the tax consequences
to Executive of
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receiving the Award Shares and has obtained appropriate legal or tax advice with
respect thereto.
5. Legends. Stock certificates representing the Award Shares may
bear legends reflecting such restrictions as the Company deems appropriate and
in its best interests in accordance with the terms and conditions of this
Agreement. In such event, the Company may refuse to transfer ownership of the
Award Shares on its corporate record books until Executive has complied with
such restrictions.
6. Non-transferability of Award Agreement. This Agreement is
personal and no rights hereunder may be transferred, assigned, pledged or
hypothecated by Executive in any way (whether by operation of law or otherwise),
nor shall any such rights be subject to execution, attachment or similar
process. Upon any attempt by Executive to transfer, assign, pledge, hypothecate
or otherwise dispose of his rights under this Agreement contrary to the
provisions hereof, or upon the levy of any attachment or similar process upon
such rights, any such rights shall, at the election of the Company, become null
and void.
7. Delivery of Award Shares. Subject to the terms set forth in
Section 2(f) hereof, the Company will make prompt delivery to Executive of the
Award Shares, provided that if any law or regulation requires the Company to
take any action with respect to such Award Shares before the issuance thereof,
then the date of delivery of such Award Shares will be extended for the period
necessary to complete such action. No Award Shares will be issued and delivered
unless and until, in the opinion of counsel for the Company, any applicable
registration requirements of the Securities Act, any applicable listing or
quotation requirements of any exchange or quotation system on which stock of the
same class is then listed or quoted, and any other requirements of law or of any
regulatory bodies having jurisdiction over such issuance and delivery shall have
been fully complied with.
8. No Special Employment Rights. Executive acknowledges that,
subject to the terms of any separate employment agreement to the contrary, his
employment is "at-will," and either the Company or Executive may terminate
Executive's employment at any time with or without "Cause" as defined in
paragraph (g) of Section 2 hereof. Nothing contained in the Plan or this
Agreement will confer upon Executive any right with respect to the continuation
of his employment by the Company (or any Parent Corporation (as defined in the
Plan) or Subsidiary (as defined in the Plan)) or interfere in any way with the
right of the Company (or any Parent Corporation or Subsidiary), subject to the
terms of any separate employment agreement to the contrary, at any time to
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terminate such employment or to increase or decrease the compensation of
Executive from the rate in existence at the time of the stock award.
9. Severability. In the event that any provision or portion of
this Agreement shall be determined to be invalid or unenforceable for any
reason, in whole or in part, in any jurisdiction the remaining provisions of
this Agreement shall be unaffected thereby and shall remain in full force and
effect to the fullest extent permitted by law in such jurisdiction, and such
invalidity or unenforceability shall have no effect in any other jurisdiction.
10. Miscellaneous; Notices.
(a) This Agreement and any instrument delivered pursuant to this
Agreement shall be governed by and interpreted in accordance with the laws of
the State of New Jersey, without regard to the conflicts of law rules thereof.
Each party hereto submits to the venue and jurisdiction of the State courts
sitting in New Jersey as the sole and exclusive forum for any disputes arising
under this Agreement, and further agrees that, in the event of any action or
suit as to any disputes arising under this Agreement between the parties,
service of any process may be made upon the other party by mailing a copy of the
summons and/or complaint to the other party at the address set forth herein and
a party's refusal to accept any such notice shall be equivalent to service. The
parties hereby waive, to the fullest extent that each may effectively do so, all
objections that such party may now or may hereafter acquire to, or any right or
immunity on the grounds of, venue, the inconvenience of the forum or
jurisdiction of such State courts.
(b) This Agreement shall extend to, be binding upon and inure to
the benefit of Executive and his legal representatives, heirs, successors and
assigns (subject, however, to the limitations set forth in Section 6 with
respect to transfer of this Agreement or any rights hereunder), and upon the
Company and its successors and assigns, regardless of any change in the business
structure of the Company, be it through spinoff, merger, sale of stock, sale of
assets or any other transaction.
(c) This Agreement and the Plan contain the entire agreement of
the parties with respect to the subject matter hereof. No waiver, modification
or change of any provision of this Agreement will be valid unless in writing and
signed by both parties.
(d) No value deemed to be received by Executive as a result of the
award of Award Shares hereunder will constitute "earnings" with respect to which
any other Executive benefits of Executive are determined.
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(e) The waiver of any breach of any duty, term or condition of
this Agreement shall not be deemed to constitute a waiver of any preceding or
succeeding breach of the same or of any other duty, term or condition of this
Agreement.
(f) All notices pursuant to this Agreement will be in writing and
will be sent by personal delivery or by prepaid registered or certified mail,
return receipt requested, addressed to the parties hereto at the addresses set
forth beneath their names on the signature page hereto or to such other
addresses as may hereafter be specified by like notice in writing by either of
the parties, and will be deemed given upon receipt if by personal delivery or
upon mailing if sent by registered or certified mail. Copies of all notices
shall be sent to: Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, 0000 Xxxxxxxxxx
Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxx, Esq.
(g) The headings of the sections of this Agreement are inserted
for convenience of reference only and will not be deemed to constitute a part
hereof or to affect the meaning hereof.
(h) This Agreement may be executed in counterparts, each of which
will be deemed an original but all of which will together constitute one and the
same agreement.
[signature page follows this page]
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IN WITNESS WHEREOF, the parties have executed this Agreement
effective as of the day and year first above written.
i-STAT CORPORATION
By:____________________
Name:
Title:
Address:
000 Xxxxxxx Xxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Executive's Acceptance:
The undersigned hereby accepts the foregoing Agreement and agrees
to the terms and conditions thereof. The undersigned hereby acknowledges receipt
of a copy of the Company's Equity Incentive Plan.
Executive
____________________
Name:
Address:
____________________
____________________
____________________
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