Restricted Stock Agreement under the Unilife Corporation 2009 Stock Incentive Plan Grantee: No. of Shares:
Exhibit 10.1
Grant No.: RSA-
Grantee:
No. of Shares:
This
Agreement (the “Agreement”) evidences the
award of [•] restricted shares (each, an “Award
Share,” and collectively, the “Award Shares”) of the common stock of Unilife Corporation, a
Delaware corporation (the “Company”), granted
to you, [•], effective as of (the “Grant
Date”), pursuant to the Unilife Corporation 2009 Stock Incentive Plan (the “Plan”) and conditioned
upon your agreement to the terms described below. All of the provisions of the Plan are expressly
incorporated into this Agreement.
1. Terminology. Unless otherwise provided in this Agreement, capitalized words used
herein are defined in the Glossary at the end of this Agreement.
2. Vesting.
(a) All of the Award Shares are nonvested and forfeitable as of the Grant Date.
[Alternative 1]: (b) So long as your Service with the Company is continuous from the Grant
Date through the applicable date upon which vesting is scheduled to occur, 25% of the Award Shares
will become vested and nonforfeitable on each of the first and second anniversaries of the Grant
Date, and 50% of the Award Shares will become vested and nonforfeitable on the third anniversary of
the Grant Date, such that 100% of the Award Shares will be vested and nonforfeitable as of the
third anniversary of the Grant Date.
[Alternative 2]: (b) So long as your Service with the Company is continuous from the Grant
Date through the applicable date upon which vesting is scheduled to occur, the Award Shares will
become vested and nonforfeitable as follows:
(i) 25% of the Award Shares will become vested and nonforfeitable on the third Trading
Day after the Company’s release of earnings for the fiscal quarter which includes the first
anniversary of the Grant Date;
(ii) 25% of the Award Shares will become vested and nonforfeitable on the third Trading
Day after the Company’s release of earnings for the fiscal quarter which includes the second
anniversary of the Grant Date; and
(iii) 50% of the Award Shares will become vested and nonforfeitable on the third Trading Day
after the Company’s release of earnings for the fiscal quarter which includes the third anniversary
of the Grant Date.
(c) All of the Award Shares, to the extent not earlier forfeited, will become vested and
nonforfeitable immediately before and contingent upon the occurrence of a Change in Control
(notwithstanding whether your Service continues after the Change in Control), upon your death, or
upon your ceasing to be employed by the Company by reason of Disability.
3. Termination of Service.
(a) If your Service with the Company ceases for any reason other than your death, Disability,
or a termination on or after the occurrence of a Change in Control, all Award Shares that are not
then vested and nonforfeitable will be immediately forfeited by you and transferred to the Company
upon such cessation for no consideration. Any accrued dividends attributable to such forfeited
Award Shares shall also be forfeited if and when the Award Shares are forfeited.
(b) You acknowledge and agree that upon the forfeiture of any unvested Award Shares in
accordance with Section 3(a), (i) your right to vote and to receive cash dividends on, and all
other rights, title or interest in, to or with respect to, the forfeited Award Shares shall
automatically, without further act, terminate and (ii) the forfeited Award Shares shall be returned
to the Company. You hereby
irrevocably appoint (which appointment is coupled with an interest) the Company as your agent
and attorney-in-fact to take any necessary or appropriate action to cause the forfeited Award
Shares to be returned to the Company, including without limitation executing and delivering stock
powers and instruments of transfer, making endorsements and/or making, initiating or issuing
instructions or entitlement orders, all in your name and on your behalf. You hereby ratify and
approve all acts done by the Company as such attorney-in-fact. Without limiting the foregoing, you
expressly acknowledge and agree that any transfer agent for the Common Stock of the Company is
fully authorized and protected in relying on, and shall incur no liability in acting on, any
documents, instruments, endorsements, instructions, orders or communications from the Company in
connection with the forfeited Award Shares or the transfer thereof, and that any such transfer
agent is a third party beneficiary of this Agreement.
4. Restrictions on Transfer.
(a) Before an Award Share becomes vested and nonforfeitable, it may not be sold, assigned,
transferred, pledged, hypothecated or disposed of in any way (whether by operation of law or
otherwise), except by will or the laws of descent and distribution, and shall not be subject to
execution, attachment or similar process.
(b) The Company shall be entitled to place a stop transfer order on the Award Shares until
they become vested and nonforfeitable. Any attempt to sell, transfer, pledge, assign or otherwise
alienate or hypothecate any such Award Shares in contravention of the restrictions set forth in
Section 4(a) shall be null and void and without effect. The Company shall not be required to (i)
transfer on its books any Award Shares that have been sold or transferred in contravention of this
Agreement or (ii) treat as the owner of Award Shares, or otherwise accord voting, dividend or
liquidation rights to, any transferee to whom Award Shares have been transferred in contravention
of this Agreement.
5. Stock Certificates. You are reflected as the owner of record of the Award Shares
as of the Grant Date on the Company’s books. The Company or an escrow agent appointed by the
Administrator will hold in escrow the share certificates for safekeeping, or the Company may
otherwise retain the Award Shares in uncertificated book entry form, until the Award Shares become
vested and nonforfeitable and freely transferable. Until the Award Shares become vested and
nonforfeitable, any share certificates representing such shares will include a legend to the effect
that you may not sell, assign, transfer, pledge, or hypothecate the Award Shares. Any cash
dividends that become payable with respect to an unvested Award Share will be accrued and held by
the Company or an escrow agent appointed by the Administrator until the Award Share becomes vested
and will be paid to you within fifteen days after the date on which the related Award Share becomes
vested. After vesting of an Award Share, the Company will continue to retain the Award Share in
uncertificated book entry form. Alternatively, upon your request, the Company will deliver a share
certificate to you or deliver a share electronically or in certificate form to your designated
broker on your behalf, for the vested Award Share.
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6. Tax Withholding; Tax Election.
(a) You hereby agree to make adequate provision for non-US, US Federal, state and local taxes,
including any social tax obligation, required by law to be withheld, if any, which arise in
connection with the grant or vesting of the Award Shares. The Company in its sole discretion may,
but is not obligated to, permit you to satisfy, in whole or in part, any withholding tax
obligation, including any social tax obligation, which may arise in connection with the grant or
vesting of the Award Shares either by electing to have the Company withhold the issuance of, or
redeem, Award Shares (other than unvested Award Shares) or by electing to deliver to the Company
already-owned, fully vested shares of Common Stock of the Company, in either case having a Fair
Market Value equal to the amount necessary to satisfy the statutory minimum withholding amount due.
The Company shall have the right to deduct from any compensation or any other payment of any kind
due you (including withholding the issuance or delivery of shares of Common Stock or redeeming
Award Shares) the amount of any US Federal, state, local or non-US taxes, including any social tax
obligation, required by law to be withheld as a result of the grant or vesting of the Award Shares
in whole or in part; provided, however, that the value of the shares of Common Stock withheld or
redeemed may not exceed the statutory minimum withholding amount required by law. In lieu of such
deduction, the Company may require you to make a cash payment to the Company equal to the amount
required to be withheld. If you do not make provision for the payment of such taxes when
requested, the Company may refuse to issue any Common Stock certificate under this Agreement or may
refuse to remove transfer restrictions on any Award Share until arrangements satisfactory to the
Committee have been made.
(b) You hereby acknowledge that you have been advised by the Company to seek independent tax
advice from your own advisors regarding the availability and advisability of making an election
under Section 83(b) of the Code, and that any such election, if made, must be made within 30 days
of the Grant Date. You expressly acknowledge that you are solely responsible for filing any such
Section 83(b) election with the appropriate governmental authorities, irrespective of the fact that
such election is also delivered to the Company. You may not rely on the Company or any of its
officers, directors or employees for tax or legal advice regarding this award. You acknowledge
that you have sought tax and legal advice from your own advisors regarding this award or have
voluntarily and knowingly foregone such consultation.
7. Adjustments for Corporate Transactions and Other Events.
(a) Stock Dividend, Stock Split and Reverse Stock Split. Upon a stock dividend of, or
stock split or reverse stock split affecting, the Common Stock, the number of Award Shares and the
number of such Award Shares that are nonvested and forfeitable shall, without further action of the
Administrator, be adjusted to reflect such event. The Administrator shall make adjustments, in its
discretion, to address the treatment of fractional shares with respect to the Award Shares as a
result of the stock dividend, stock split or reverse stock split; provided that such adjustments do
not result in the issuance of fractional Award Shares. Adjustments under this Section 7 will be
made by the Administrator, whose determination as to what adjustments, if any, will be made and the
extent thereof will be final, binding and conclusive.
(b) Binding Nature of Agreement. The terms and conditions of this Agreement shall
apply with equal force to any additional and/or substitute securities received by you in exchange
for, or by virtue of your ownership of, the Award Shares, to the same extent as the Award Shares
with respect to which such additional and/or substitute securities are distributed, whether as a
result of any spin-off, stock split-up, stock dividend, stock distribution, other reclassification
of the Common Stock of the Company, or similar event, except as otherwise determined by the
Administrator. If the Award Shares are converted into or exchanged for, or stockholders of the
Company receive by reason of any distribution in total or partial liquidation or pursuant to any
merger of the Company or acquisition of its assets, securities of another entity, or other property
(including cash), then the rights of the Company under this Agreement shall inure to the benefit of
the Company’s successor, and this Agreement shall apply to the securities or other property
(including cash) received upon such conversion, exchange or distribution in the same manner and to
the same extent as the Award Shares.
8. Non-Guarantee of Employment or Service Relationship. Nothing in the Plan or this
Agreement shall alter your employment status or other service relationship with the Company, nor be
construed as a contract of employment or service relationship between the Company and you, or as a
contractual right of you to continue in the employ of, or in a service relationship with, the
Company for any period of time, or as a limitation of the right of the Company to discharge you at
any time with or without cause or notice and whether or not such discharge results in the
forfeiture of any Award Shares or any other adverse effect on your interests under the Plan or this
Agreement.
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9. Rights as Stockholder. Except as otherwise provided in this Agreement with respect
to the nonvested and forfeitable Award Shares and the payment of dividends thereon, you will
possess all incidents of ownership of the Award Shares, including the right to vote the Award
Shares and receive dividends and/or other distributions declared on the Award Shares.
10. The Company’s Rights. The existence of the Award Shares shall not affect in any
way the right or power of the Company or its stockholders to make or authorize any or all
adjustments, recapitalizations, reorganizations or other changes in the Company’s capital structure
or its business, or any merger or consolidation of the Company, or any issue of bonds, debentures,
preferred or other stocks with preference ahead of or convertible into, or otherwise affecting the
Common Stock or the rights thereof, or the dissolution or liquidation of the Company, or any sale
or transfer of all or any part of the Company’s assets or business, or any other corporate act or
proceeding, whether of a similar character or otherwise.
11. Notices. All notices and other communications made or given pursuant to this
Agreement shall be in writing and shall be sufficiently made or given if hand delivered or mailed
by certified mail, addressed to you at the address contained in the records of the Company, or
addressed to the Administrator, care of the Company for the attention of its Corporate Secretary at
its principal executive office or, if the receiving party consents in advance, transmitted and
received via telecopy or via such other electronic transmission mechanism as may be available to
the parties.
12. Entire Agreement. This Agreement contains the entire agreement between the
parties with respect to the Award Shares granted hereunder. Any oral or written agreements,
representations, warranties, written inducements, or other communications made prior to the
execution of this Agreement with respect to the Award Shares granted hereunder shall be void and
ineffective for all purposes.
13. Amendment. This Agreement may be amended from time to time by the Administrator
in its discretion; provided, however, that this Agreement may not be modified in a
manner that would have a materially adverse effect on your rights under this Agreement as
determined in the discretion of the Administrator, except as provided in the Plan or in a written
document signed by each of the parties hereto.
14. Conformity with Plan. This Agreement is intended to conform in all respects with,
and is subject to all applicable provisions of, the Plan. Inconsistencies between this Agreement
and the Plan shall be resolved in accordance with the terms of the Plan. In the event of any
ambiguity in this Agreement or any matters as to which this Agreement is silent, the Plan shall
govern. A copy of the Plan is available upon request to the Administrator.
15. Governing Law. The validity, construction and effect of this Agreement, and of
any determinations or decisions made by the Administrator relating to this Agreement, and the
rights of any and all persons having or claiming to have any interest under this Agreement, shall
be determined exclusively in accordance with the laws of the State of Delaware, without regard to
its provisions concerning the applicability of laws of other jurisdictions. Any suit with respect
hereto will be brought in the federal or state courts in the districts which include the city and
state in which the principal executive offices of the Company are located on the date on which the
suit arises, and you hereby agree and submit to the personal jurisdiction and venue thereof.
16. Headings. The headings in this Agreement are for reference purposes only and
shall not affect the meaning or interpretation of this Agreement.
17. Counterparts. This Agreement may be executed in counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the same instrument.
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18. Electronic Delivery of Documents. By your signing this Agreement, you (i) consent
to the electronic delivery of this Agreement, all information with respect to the Plan and the
Award Shares and any reports of the Company provided generally to the Company’s stockholders; (ii)
acknowledge that you may receive from the Company a paper copy of any documents delivered
electronically at no cost to you by contacting the Company by telephone or in writing; (iii)
further acknowledge that you may revoke your consent to the electronic delivery of documents at any
time by notifying the Company of such revoked consent by telephone, postal service or electronic
mail; and (iv) further acknowledge that you understand that you are not required to consent to
electronic delivery of documents.
19. No Future Entitlement. By your signing this Agreement, you acknowledge and agree
that: (i) the grant of these Award Shares is a one-time benefit which does not create any
contractual or other right to receive future grants of stock, or compensation in lieu of stock
grants, even if stock grants have been granted repeatedly in the past; (ii) all determinations with
respect to any such future grants, including, but not limited to, the times when stock grants shall
be granted, the maximum number of shares subject to each stock grant, and the times or conditions
under which restrictions on such stock grants shall lapse, will be at the sole discretion of the
Administrator; (iii) the value of this stock grant is an extraordinary item of compensation which
is outside the scope of your employment contract, if any; (iv) the value of this stock grant is not
part of normal or expected compensation or salary for any purpose, including, but not limited to,
calculating any termination, severance, resignation, redundancy, end of service payments or similar
payments, or bonuses, long-service awards, pension or retirement benefits; (v) the vesting of these
Award Shares ceases upon termination of employment with the Company or transfer of employment from
the Company, or other cessation of eligibility for any reason, except as may otherwise be
explicitly provided in this Agreement; (vi) the Company does not guarantee any future value of
these Award Shares; and (vii) no claim or entitlement to compensation or damages arises if these
Award Shares do not increase in value and you irrevocably release the Company from any such claim
that does arise.
20. Personal Data. For the exclusive purpose of implementing, administering and
managing this stock grant, you, by signing this Agreement, consent to the collection, receipt, use,
retention and
transfer, in electronic or other form, of your personal data by and among the Company and its
third party vendors. You understand that personal data (including but not limited to, name, home
address, telephone number, employee number, employment status, social security number, tax
identification number, date of birth, nationality, job and payroll location, data for tax
withholding purposes and shares awarded, cancelled, exercised, vested and unvested) may be
transferred to third parties assisting in the implementation, administration and management of this
stock grant and the Plan, and you expressly authorize such transfer as well as the retention, use,
and the subsequent transfer of the data by the recipient(s). You understand that these recipients
may be located in your country or elsewhere, and that the recipient’s country may have different
data privacy laws and protections than your country. You understand that data will be held only as
long as is necessary to implement, administer and manage this stock grant. You understand that you
may, at any time, request a list with the names and addresses of any potential recipients of the
personal data, view data, request additional information about the storage and processing of data,
require any necessary amendments to data or refuse or withdraw the consents herein, in any case
without cost, by contacting in writing the Company’s Secretary. You understand, however, that
refusing or withdrawing your consent may affect your ability to accept a stock grant.
{Glossary begins on next page}
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GLOSSARY
(a) “Administrator” means the Board of Directors of Unilife Corporation or such committee or
committees appointed by the Board to administer the Plan.
(b) “Affiliate” means any entity, whether now or hereafter existing, which controls, is
controlled by, or is under common control with, Unilife Corporation (including, but not limited to,
joint ventures, limited liability companies, and partnerships). For this purpose, “control” shall
mean ownership of 50% or more of the total combined voting power or value of all classes of stock
or interests of the entity, or the power to direct the management and policies of the entity, by
contract or otherwise.
(c) “Change in Control” has the meaning ascribed thereto in the Plan.
(d) “Code” means the Internal Revenue Code of 1986, as amended.
(e) “Company” means Unilife Corporation and its Affiliates, except where the context otherwise
requires. For purposes of determining whether a Change in Control has occurred, Company shall mean
only Unilife Corporation.
(f) “Disability” means any medically determinable physical or mental impairment that is
expected to be permanent in nature and which renders you, in the good faith judgment of the
Administrator, unable to perform the essential duties of your position.
(g) “Service” means your employment with the Company and its Affiliates. Your Service with
the Company and its Affiliates will be considered to have ceased if, immediately after a sale,
merger or other corporate transaction, the trade, business or entity with which you are employed or
otherwise have a service relationship is not Unilife Corporation or its successor, or an Affiliate
of Unilife Corporation or its successor.
(h) “Trading Day” means a day on which the Nasdaq Stock Market or other US established
securities exchange or market on which shares of common stock of Unilife Corporation may be trading
at the time is open for trading of such shares.
(i) “You”; “Your”. You means the recipient of the Award Shares as reflected in the first
paragraph of this Agreement. Whenever the word “you” or “your” is used in any provision of this
Agreement under circumstances where the provision should logically be construed, as determined by
the Administrator, to apply to the estate, personal representative, or beneficiary to whom the
Award Shares may be transferred by will or by the laws of descent and distribution, the words “you”
and “your” shall be deemed to include such person.
{Signature page follows}
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly
authorized officer.
| UNILIFE CORPORATION | ||||||
| By: | ||||||
| Date: | ||||||
The undersigned hereby acknowledges that he/she has carefully read this Agreement and agrees to be
bound by all of the provisions set forth herein. The undersigned also consents to electronic
delivery of all notices or other information with respect to the Award Shares or the Company.
WITNESS:
|
GRANTEE | |||||
| Date: | ||||||
Enclosure: Prospectus for the Unilife Corporation 2009 Stock Incentive Plan
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IMPORTANT US FEDERAL TAX INFORMATION
INSTRUCTIONS REGARDING SECTION 83(b) ELECTIONS
| 1. | The 83(b) Election is irrevocable. The 83(b) Election is a voluntary election that
is available to you. It is your decision whether to file an 83(b) Election. |
| 2. | If you choose to make an 83(b) Election, the 83(b) Election Form must be filed with the
Internal Revenue Service within 30 days of the Grant Date; no exceptions to this deadline are
made. You should send the election to the internal revenue service center located at the
address to which you send your US Federal income tax return (IRS form 1040) based on your
place of residence. The election should be sent via certified mail with return receipt
requested or a delivery service that provides proof of delivery. |
| 3. | You must deliver a copy of the 83(b) Election Form to the Corporate Secretary or other
designated officer of the Company as soon as practicable after you receive proof that the
original was received by the Internal Revenue Service. Irrespective of the fact that a copy
of your 83(b) Election Form is to be delivered to the Company, you remain solely responsible
for properly filing the original with the Internal Revenue Service. |
| 4. | In addition to making the filing under Item 2 above, you must attach a copy of your 83(b)
Election Form to your US Federal tax return for the taxable year that includes the Grant Date.
Applicable state law also may require you to attach a copy of the 83(b) Election Form to any
state income tax returns that you file for that taxable year. |
| 5. | If you make an 83(b) Election and later forfeit the Award Shares, you will not be entitled to
a refund of the taxes paid with respect to the gross income you recognized under the 83(b)
Election. |
| 6. | You must consult your personal tax advisor before making an 83(b) Election. You may
not rely on this information, the Company, or any of the Company’s officers, directors, or
employees for tax or legal advice regarding the Award Shares or the 83(b) Election. The
election form attached to these instructions is intended as a sample only. It must be tailored
to your circumstances and may not be relied upon without consultation with a personal tax
advisor. |
SECTION 83(b) ELECTION FORM
Election Pursuant to Section 83(b) of the Internal Revenue Code to
Include Property in Gross Income in Year of Transfer
Include Property in Gross Income in Year of Transfer
The undersigned hereby makes an election pursuant to Section 83(b) of the Internal Revenue
Code with respect to the property described below and supplies the following information in
accordance with the regulations promulgated thereunder:
1. The name, address, and taxpayer identification number of the undersigned are:
| _______-_______-_______ |
2. The
property with respect to which the election is made is _______ shares of
Common Stock, par value $0.01 per share, of Unilife Corporation, a Delaware corporation (the
“Company”).
3. The date on which the property was transferred was , the date on which the
taxpayer received the property pursuant to a grant of restricted stock.
4. The
taxable year to which this election relates is calendar year 20_______.
5. The property is subject to restrictions in that the property is not transferable and is
subject to a substantial risk of forfeiture until the taxpayer vests in the property. The taxpayer
will vest in the property [DESCRIBE VESTING].
6. The fair market value at the time of transfer (determined without regard to any
restrictions other than restrictions which by their terms will never lapse) of the property with
respect to which this election is being made is $ per share; with a cumulative fair
market value of $ .
7. The taxpayer did not pay any amount for the property transferred.
8. A copy of this statement was furnished to the Corporate Secretary or other designated
officer of the Company. The taxpayer rendered services to Unilife Medical Solutions Limited and
Unilife
Corporation in connection with the transfer of the property with respect to which this
election is being made.
9. This election is made to the same effect, and with the same limitations, for purposes of
any applicable state statute corresponding to Section 83(b) of the Internal Revenue Code.
The undersigned understands that the foregoing election may not be revoked except with the
consent of the Commissioner of Internal Revenue.
Signed:
Date:
Letter for filing §83(b) Election Form
[Date]
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
RETURN RECEIPT REQUESTED
***Please insert the IRS Service Center where you file your US Federal income tax return below.***
Internal Revenue Service Center |
||
| Re: | 83(b) Election of Social Security Number: |
Dear Sir/Madam:
Enclosed is an election under §83(b) of the Internal Revenue Code of 1986, as amended, with
respect to certain shares of stock of Unilife Corporation that were transferred to me on
,
20_______.
Please file this election.
| Sincerely, | ||||
cc: Corporate Secretary of Unilife Corporation