Exhibit 10.8
MICROISLET, INC.
STOCK UNITS AGREEMENT
MicroIslet, Inc., a Nevada corporation (the "Company"), hereby awards Stock
Units to the Participant named below. The terms and conditions of the award are
set forth in this cover sheet and in the attached Stock Units Agreement (the
"Agreement").
Date of Award:
Name of Participant:
Number of Stock Units Awarded:
By signing this cover sheet, you agree to all of the terms and conditions
described in the attached Stock Units Agreement.
Participant: ------------------------------------------------------------------
(Signature)
Company:-----------------------------------------------------------------------
(Signature)
Title:----------------------------------------------------------------
Attachment
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MICROISLET, INC.
STOCK UNITS AGREEMENT
Award of Stock Units MicroIslet, Inc. awards you the number of Stock Units
shown on the cover sheet of this Agreement. No cash
consideration shall be required of the Participant in
connection with the grant of the Stock Units. The
award is subject to the terms and conditions of this
Agreement. In connection with this Award, you
acknowledge and agree that the Company has provided
you with access to all material information regarding
the Company. Capitalized terms used in this Agreement
are defined below under the heading "Definitions."
Administration The Plan shall be administered by the Administrator.
Subject to the provisions of the Agreement, the
Administrator shall have the authority, in its
discretion:
(i) to correct administrative errors;
(ii) to construe and interpret the terms of the
Agreement;
(iii) to adopt rules and procedures relating to the
operation and administration of the Agreement to
accommodate the specific requirements of applicable
laws and procedures. Without limiting the generality
of the foregoing, the Administrator is specifically
authorized to adopt the rules and procedures
regarding payments, withholding procedures and
handling of stock certificates;
(iv) to prescribe, amend and rescind rules and
regulations relating to the Agreement;
(v) to modify or amend this award, including, but not
limited to, the acceleration of vesting and/or waiver
of forfeiture restrictions, provided, however, that
any such amendment may not materially impair this
award unless agreed to in writing by the Participant;
(vi) to allow the Participant to satisfy any required
withholding tax amounts by electing to have the
Company withhold from the Shares to be issued
pursuant to this award that number of Shares having a
fair market value equal to the amount required to be
withheld. The fair market value of the Shares to be
withheld shall be determined in such manner and on
such date that the Administrator shall determine or,
in the absence of provision otherwise, on the date
that the amount of tax to be withheld is to be
determined. All elections by the Participant to have
Shares withheld for this purpose shall be made in
such form and under such conditions as the
Administrator may provide;
(vii) to authorize any person to execute on behalf of
the Company any instrument required to effect the
grant of this award;
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(viii) to impose such restrictions, conditions or
limitations as it determines appropriate as to the
timing and manner of any resales by a Participant or
other subsequent transfers by the Participant of any
Shares issued as a result of or under this award,
including, without limitation, (A) restrictions under
an ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy and (B) restrictions as to
the use of a specified brokerage firm for such
resales or other transfers; and
(ix) to make all other determinations deemed
necessary or advisable for administering this award.
All decisions, determinations and interpretations by
the Administrator regarding this award, any rules and
regulations and the terms and conditions of this
award, shall be final and binding on all persons
including the Participant. The Administrator shall
consider such factors as it deems relevant, in its
sole and absolute discretion, to making such
decisions, determinations and interpretations,
including, without limitation, the recommendations or
advice of any officer or other employee of the
Company and such attorneys, consultants and
accountants as it may select.
Indemnification To the maximum extent permitted by applicable law,
the Administrator and its delegates shall be
indemnified and held harmless by the Company against
and from (i) any loss, cost, liability, or expense
that may be imposed upon or reasonably incurred by
him or her in connection with or resulting from any
claim, action, suit, or proceeding to which he or she
may be a party or in which he or she may be involved
by reason of any action taken or failure to act under
this Agreement, and (ii) from any and all amounts
paid by him or her in settlement thereof, with the
Company's approval, or paid by him or her in
satisfaction of any judgment in any such claim,
action, suit, or proceeding against him or her,
provided he or she shall give the Company an
opportunity, at its own expense, to handle and defend
the same before he or she undertakes to handle and
defend it on his or her own behalf. The foregoing
right of indemnification shall not be exclusive of
any other rights of indemnification to which such
persons may be entitled under the Company's Articles
of Incorporation or Bylaws, by contract, as a matter
of law, or otherwise, or under any power that the
Company may have to indemnify them or hold them
harmless.
Vesting As long as you render continuous Service to the
Company, you will become vested in [number of Stock
Units/12] Stock Units on each monthly anniversary of
[insert date Letter of Agreement is executed], with
full vesting of the entire award occurring on the
first anniversary of [insert date Letter of Agreement
is executed]. In the event that your Service ceases
for any reason prior to the first anniversary of the
Date of Award, you will forfeit to the Company
without consideration all of the Stock Units subject
to this award which are unvested on the date Service
ceases.
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Settlement To the extent a Stock Unit becomes vested and subject
to your satisfaction of any tax withholding
obligations (as discussed below) and the provisions
below concerning Suspension of Award, each vested
Stock Unit will entitle you to receive one Share
which will be distributed to you on the earlier of
(i) six months after each of the applicable vesting
date(s) (or the first business day thereafter if the
vesting date is not a business day) or (ii) a Change
in Control, in exchange for such Stock Unit. Issuance
of Shares shall be in complete satisfaction of such
vested Stock Units. Such settled Stock Units shall be
immediately cancelled and no longer outstanding and
you shall have no further rights or entitlements
related to those settled Stock Units.
No Assignment Stock Units shall not be sold, anticipated, assigned,
attached, garnished, optioned, transferred or made
subject to any creditor's process, whether
voluntarily, involuntarily or by operation of law.
However, this shall not preclude a transfer of vested
Stock Units by will or by the laws of descent and
distribution. In addition, pursuant to Company
procedures, you may designate a beneficiary who will
receive any outstanding vested Stock Units in the
event of your death.
Voting and Other Rights The holder of the Stock Units shall have no rights
other than those of a general creditor of the
Company. Subject to the terms of this Agreement, a
holder of outstanding Stock Units has none of the
rights and privileges of a stockholder of the
Company, including no right to vote or to receive
dividends (if any) or dividend equivalents. Subject
to the terms and conditions of this Agreement, Stock
Units create no fiduciary duty of the Company to you
and represent only an unfunded and unsecured
contractual obligation of the Company. The Stock
Units shall not be treated as property or as a trust
fund of any kind.
You, or your estate or heirs, have no rights as a
stockholder of the Company until a certificate for
your Shares has been issued. No adjustments are made
for dividends or other rights if the applicable
record date occurs before your stock certificate is
issued.
Restrictions on The Company will not issue any Shares if the issuance
Issuance of such Shares at that time would violate any law or
regulation.
Taxes and Withholding You will be solely responsible for payment of any and
all applicable taxes associated with this award.
The delivery to you of any Shares underlying vested
Stock Units will not be permitted unless and until
you timely have satisfied any withholding or other
taxes that may be due. Any such tax withholding
obligations may be settled by the Company withholding
and retaining a portion of the Shares from the Shares
that would otherwise be deliverable to you under the
vesting stock units. Such withheld Shares will be
applied to pay the withholding obligation by using
the aggregate fair market value of the withheld
Shares as of the date of vesting. You will be
delivered the net amount of vested Shares after the
Share withholding has been effected and you will not
receive the withheld Shares.
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Code Section 409A This award will be administered and interpreted to
comply with Code Section 409A. The Participant
acknowledges that the Company, in the exercise of its
sole discretion and without the consent of the
Participant, may amend or modify this Agreement in
any manner and delay the issuance of any Shares
issuable pursuant to this Agreement to the minimum
extent necessary to meet the requirements of Section
409A of the Code as amplified by any regulations
promulgated under the Code or guidance from the
Internal Revenue Service as the Company deems
appropriate or advisable.
Notwithstanding anything to the contrary, if, upon
your "separation from service" (as defined in Code
Section 409A), you are then a Company "specified
employee" (as defined in Code Section 409A), then to
the extent necessary to comply with Code Section
409A, the Company shall defer payment of certain of
the amounts owed to you under this Agreement until
the earlier of (i) five (5) days after the Company
receives notification of your death or (ii) the first
business day of the seventh month following your
separation from service. Any such delayed payments
shall be made to you (or your beneficiaries) without
interest.
Restrictions on Resale By signing this Agreement, you agree not to sell any
Shares acquired pursuant to this award at a time when
applicable laws, regulations or Company or
underwriter trading policies prohibit sale.
If the sale of Shares acquired under this award is
not registered under the Securities Act of 1933, as
amended, but an exemption is available which requires
an investment or other representation and warranty,
you shall represent and agree that the Shares being
acquired are being acquired for investment, and not
with a view to the sale or distribution thereof, and
shall make such other representations and warranties
as are deemed necessary or appropriate by the Company
and its counsel.
No Retention Rights This Agreement is not an employment or consulting
agreement and does not give you the right to be
retained in any capacity by the Company. The Company
reserves the right to terminate your Service at any
time and for any reason.
Adjustments If any change in the outstanding Common Stock subject
to this award results from any stock split, reverse
stock split, combination, consolidation, spin-off,
recapitalization, exchange of Shares, or any capital
adjustment or transaction similar to the foregoing or
any distribution to holders of Common Stock other
than regular cash dividends, then (A) the number,
kind and class of Shares covered by this award and
(B) any other affected terms of this award, shall be
proportionally adjusted to prevent dilution or
enlargement of rights. No adjustment shall result in
any fractional Stock Units remaining after the Award
is adjusted and any such fractional amount shall be
settled within 30 days by the Company with cash or
other property.
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Legends All certificates representing the Common Stock issued
under this award may, where applicable, have endorsed
thereon the following legends and any other legend
the Company determines appropriate:
"THE SHARES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE SOLD, PLEDGED, OR OTHERWISE
TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF
UNDER SUCH ACT OR AN OPINION OF COUNSEL, SATISFACTORY
TO THE COMPANY AND ITS COUNSEL, THAT SUCH
REGISTRATION IS NOT REQUIRED."
Notice Any notice to be given or delivered to the Company
relating to this Agreement shall be in writing and
addressed to the Company at its principal corporate
offices. Any notice to be given or delivered to you
relating to this Agreement shall be in writing and
addressed to you at such address of which you advise
the Company in writing. All notices shall be deemed
effective upon personal delivery or upon deposit in
the U.S. mail, postage prepaid and properly addressed
to the party to be notified.
Limitation on Liability The Company and any Affiliate which is in existence
or hereafter comes into existence shall not be liable
to the Participant or any other persons as to:
(a) The Non-Issuance of Shares. The non-issuance or
sale of Shares as to which the Company has been
unable to obtain from any regulatory body having
jurisdiction the authority deemed by the Company's
counsel to be necessary to the lawful issuance and
sale of any shares hereunder; and
(b) Tax Consequences. Any tax consequence expected,
but not realized, by any Participant or other person
due to the receipt, vesting or settlement of this
award.
Unfunded Award This award is unfunded. Although bookkeeping accounts
may be established with respect to this award, any
such accounts will be used merely as a bookkeeping
convenience. The Company shall not be required to
segregate any assets which may at any time be
represented by this award, nor shall this Agreement
be construed as providing for such segregation, nor
shall the Company nor the Administrator be deemed to
be a trustee of stock or cash to be awarded under
this Agreement. Any liability of the Company to the
Participant with respect to this award shall be based
solely upon any contractual obligations which may be
created by the Agreement; no such obligation of the
Company shall be deemed to be secured by any pledge
or other encumbrance on any property of the Company.
Neither the Company nor the Administrator shall be
required to give any security or bond for the
performance of any obligation which may be created by
this Agreement.
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Interpretation and In the event that any provision of this award is
Reformation declared to be illegal, invalid or otherwise
unenforceable by a court of competent jurisdiction,
such provision shall be reformed, if possible, to the
extent necessary to render it legal, valid and
enforceable, or otherwise deleted, and the remainder
of the terms of this award shall not be affected
except to the extent necessary to reform or delete
such illegal, invalid or unenforceable provision.
The terms of the award shall inure to the benefit of
and be binding upon the parties hereto and their
respective permitted heirs, beneficiaries, successors
and assigns.
All questions arising under the award shall be
decided by the Administrator in its total and
absolute discretion. In the event the Participant
believes that a decision by the Administrator with
respect to such person was arbitrary or capricious,
the Participant may request arbitration by
JAMS/Endispute with respect to such decision. The
review by the arbitrator shall be limited to
determining whether the Administrator's decision was
arbitrary or capricious. This arbitration shall be
the sole and exclusive review permitted of the
Administrator's decision, and the Participant shall
as a condition to the receipt of this award be deemed
to explicitly waive any right to judicial review.
Suspension of Award If at any time the Administrator reasonably believes
that the Participant has committed an act of Cause
(which includes a failure to act), the Administrator
may suspend the Participant's right to vesting of the
Stock Units and settlement of vested Shares pending a
determination of whether there was in fact an act of
Cause. If the Administrator determines the
Participant has committed an act of Cause, all of
Participant's outstanding Award shall then terminate
without consideration, and there shall be no further
settlement. Any determination by the Administrator
with respect to the foregoing shall be final,
conclusive and binding on all interested parties.
Cooperation and Other You and the Company agree to execute such further
Agreements instruments and to take such further action as may
reasonably be necessary to carry out the intent of
this Agreement.
This Agreement constitutes the entire understanding
between you and the Company regarding this award of
Stock Units. Any prior agreements, commitments or
negotiations are superseded.
Applicable Law This Agreement will be interpreted and enforced under
the laws of the State of New York. The parties agree
that any suit, action, or proceeding arising out of
or relating to this Agreement shall be brought in a
court of appropriate jurisdiction located in New
York, New York, except those to be submitted to
arbitration as set forth in
"Interpretation/Reformation" above.
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Definitions "Administrator" shall mean the Company's Board, any
Committees or such of their delegates as shall be
administering the Agreement
"Affiliate" shall mean any entity that is directly or
indirectly controlled by the Company or any entity in
which the Company has a significant ownership
interest as determined by the Administrator.
"Award" or "award" shall mean the Stock Units that
are the subject of this Agreement.
"Board" shall mean the Board of Directors of the
Company.
"Cause" shall mean (i) a conviction of the
Participant for a felony crime or the failure of the
Participant to contest prosecution for a felony
crime, or (ii) the Participant's misconduct, fraud,
disloyalty or dishonesty (as such terms may be
defined by the Administrator in its sole discretion),
or (iii) any unauthorized use or disclosure of
confidential information or trade secrets by the
Participant, or (iv) the Participant's negligence,
malfeasance, breach of fiduciary duties, neglect of
duties, or (v) any material violation by the
Participant of a written Company policy or any
material breach by the Participant of a written
agreement with the Company, or (vi) any other act or
omission by a Participant that, in the opinion of the
Administrator, could reasonably be expected to
adversely affect the Company's business, financial
condition, prospects and/or reputation. In each of
the foregoing subclauses (i) through (vi), whether or
not a "Cause" event has occurred will determined by
the Administrator in its sole discretion and the
Administrator's determination shall be conclusive,
final and binding on all persons.
"Change in Control" shall mean any of the following,
unless the Administrator provides otherwise:
(i) any merger or consolidation in which the Company
shall not be the surviving entity (or survives only
as a subsidiary of another entity whose stockholders
did not own all or substantially all of the Common
Stock in substantially the same proportions as
immediately prior to such transaction);
(ii) the sale of all or substantially all of the
Company's assets to any other person or entity (other
than a wholly-owned subsidiary);
(iii) the acquisition of beneficial ownership of a
controlling interest (including, without limitation,
power to vote) in the outstanding shares of Common
Stock by any person or entity (including a "group" as
defined by or under Section 13(d)(3) of the
Securities Exchange Act of 1934 as amended);
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(iv) the dissolution or liquidation of the Company;
(v) a contested election of directors, as a result of
which or in connection with which the persons who
were directors before such election or their nominees
cease to constitute a majority of the Board; or
(vi) any other event specified by the Board or a
Committee, regardless of whether at the time this
Stock Units are granted or thereafter.
Notwithstanding the foregoing, the term "Change in
Control" shall not include (i) any underwritten
public offering of Shares registered under the
Securities Act of 1933, as amended or (ii) any
transaction or series of transactions which does not
constitute a change in effective ownership or control
of the Company or change in ownership of substantial
portion of the Company's assets as such terms are
described under Code Section 409A.
"Code" shall mean the Internal Revenue Code of 1986,
as amended.
"Committee" shall mean a committee of directors
appointed by the Board.
"Common Stock" shall mean the common stock of the
Company.
"Service" shall mean that the Participant is
performing bona fide services to the Company as a
non-employee consultant.
"Share" shall mean one share of the Common Stock.
"Stock Unit" shall mean a bookkeeping entry
representing the equivalent of one Share, as awarded
under this Agreement, payable in Shares. Stock Units
represent an unfunded and unsecured obligation of the
Company.
By signing the cover sheet of this Agreement,
you agree to all of the terms and conditions
described above.
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