EXHIBIT 10.2
NAME: ____________________
ENDOCARE, INC.
RESTRICTED STOCK UNIT AGREEMENT
UNDER THE
ENDOCARE, INC. 2004 STOCK INCENTIVE PLAN
This Restricted Stock Unit Agreement (the "Agreement") is made effective
the ___ day of _________, 200_ between ENDOCARE, INC. (the "Company", which term
shall include its Related Companies), and ______________ (the "Grantee"), [AN
EMPLOYEE/A DIRECTOR] of the Company, under the following terms and conditions.
The Agreement is issued pursuant to the Endocare, Inc. 2004 Stock Incentive Plan
(the "Plan"). Unless otherwise specifically defined in this Agreement,
capitalized terms used herein have the meanings designated in the Plan.
I
GRANT OF RESTRICTED STOCK UNIT
The Company has, as of _________ ___, 200_ (hereinafter referred to as
the "Date of Grant"), granted to the Grantee Restricted Stock Units with respect
to ________ shares of Common Stock in accordance with the Plan.
II
PERIOD OF RESTRICTION
[TIME-BASED VESTING] The Restricted Stock Units shall vest as follows:
[INSERT VESTING SCHEDULE]. Upon all or a portion of an award of Restricted Stock
Units vesting (the date of each such vesting being a "Vest Date"), one share of
Common Stock shall be issuable for each Restricted Stock Unit that vests on such
Vest Date (the "RSU Shares"). Effective on such date, the Company will transfer
such RSU Shares to the Grantee upon satisfaction of any required tax withholding
obligations. No fractional shares shall be issued with respect to vesting of
Restricted Stock Units. Any fractional portion of Restricted Stock Units shall
be paid to the Grantee in cash, based on the Fair Market Value of the Common
Stock on the applicable Vest Date. Notwithstanding the foregoing, to the extent
permitted by the Administrator in a manner that complies with Section 409A of
the Code, the Grantee may elect to defer delivery of the RSU Shares.
[PERFORMANCE-BASED VESTING] The Restricted Stock Units shall vest as
follows: [INSERT DESCRIPTION OF PERFORMANCE CRITERIA AND WHEN RSUS WILL VEST].
Upon all or a portion of an award of Restricted Stock Units vesting (the date of
each such vesting being a "Vest Date"), one share of Common Stock shall be
issuable for each Restricted Stock Unit that vests on such Vest Date (the "RSU
Shares"). Effective on such date, the Company will transfer such RSU Shares to
the Grantee upon satisfaction of any required tax withholding obligations. No
fractional shares shall be issued with respect to vesting of Restricted Stock
Units. Any fractional portion of Restricted Stock Units shall be paid to the
Grantee in cash, based on the Fair Market Value of the Common Stock on the
1
applicable Vest Date. Notwithstanding the foregoing, to the extent permitted by
the Administrator in a manner that complies with Section 409A of the Code, the
Grantee may elect to defer delivery of the RSU Shares.
III
TERMINATION OF CONTINUOUS SERVICE
Unless otherwise determined by the Administrator in its sole discretion,
in the event that the Grantee's Continuous Service shall cease for any reason
before all or any portion of the Restricted Stock Units have vested, the Grantee
shall immediately forfeit to the Company the unvested Restricted Stock Units,
and no shares of Common Stock shall be issued nor shall any cash be paid with
respect to such Restricted Stock Units.
IV
CHANGE IN CONTROL
Upon a Change in Control or Corporate Transaction that occurs before the
Grantee's Continuous Service has ceased, all Restricted Stock Units shall fully
vest and one share of Common Stock shall be issuable for each Restricted Stock
Unit. Effective on the date of the Change in Control or Corporate Transaction,
the Company will transfer RSU Shares to the Grantee upon satisfaction of any
required tax withholding obligations. No fractional shares shall be issued, and
any fractional portion of Restricted Stock Units shall be paid to the Grantee in
cash, based on the Fair Market Value of the Common Stock on the date of the
Change in Control or Corporate Transaction.
V
TAXES
The Company shall issue the shares of Common Stock underlying the
Grantee's Restricted Stock Units net of the minimum applicable statutory tax
withholding such that a portion of the shares of Common Stock that would
otherwise be issued to the Grantee will be retained by the Company and applied
to defray such tax withholding relating to the issuance of shares underlying the
Grantee's Restricted Stock Units. The Administrator, in its sole discretion, may
unilaterally modify this Section V at any time to the extent necessary or
advisable to avoid accounting treatment that the Administrator, in its sole
discretion, deems unfavorable to the Company.
VI
THE PLAN
The grant of Restricted Stock Units pursuant to this Agreement is
subject to the terms and conditions set forth herein as well as the provisions
of the Plan. In the event of a conflict between the terms of this Agreement and
the Plan, the Plan shall control.
2
VII
NO ASSIGNMENT
Except as specifically provided in the Plan, Restricted Stock Units
granted hereunder may not be sold, transferred, pledged, assigned, exchanged,
encumbered or otherwise alienated or hypothecated until the Restricted Stock
Units have vested and the underlying shares of Common Stock have been issued. In
the event of any violation of this provision, the Restricted Stock Units will be
automatically forfeited to the Company and neither the Grantee nor any other
person shall be entitled to receive any shares of Common Stock or cash in
respect of Restricted Stock Units.
VIII
VOTING RIGHTS
There are no voting rights with respect to any Restricted Stock Units or
the Common Stock issuable in respect of the Restricted Stock Units prior to the
vesting of such Restricted Stock Units and the issuance of Common Stock in
respect thereof, if applicable. Subsequent to the vesting of Restricted Stock
Units and the issuance of shares of Common Stock in respect thereof, if any, the
Grantee may exercise voting rights with respect to such shares of Common Stock,
as a stockholder of the Company, for as long as the Grantee holds such shares.
IX
DIVIDENDS
Prior to vesting of the Restricted Stock Units, subject to the
following, the Grantee shall be entitled to receive all dividends and other
distributions paid with respect to the shares of Common Stock issuable in
respect of such Restricted Stock Units. If the stockholders of the Company
receive dividends paid in cash, in lieu of a cash payment, the Grantee shall
automatically receive additional Restricted Stock Units equal in value to such
cash dividend otherwise payable. For such purposes, the value of the number of
additional Restricted Stock Units to be issued shall be deemed to equal the
number of shares of Common Stock, valued at the Fair Market Value of a share of
Common Stock on the date such dividend is paid, equal in value to such cash
dividend; provided, however that the Company shall not issue fractional
Restricted Stock Units, and any amount that would have otherwise been payable as
a fractional unit shall be paid in cash to the Grantee. If any such dividends or
distributions are paid to the stockholders of the Company in shares of Common
Stock, the Grantee shall receive a number of Restricted Stock Units equal to the
number of shares of Common Stock the Grantee would have received if the
Restricted Stock Units with respect to which the Grantee is receiving the
dividend had already been settled in shares of Common Stock. In each case, any
such additional Restricted Stock Units shall be subject to the same vesting
requirements and restrictions on transferability as the Restricted Stock Units
with respect to which they were distributed.
X
VENUE AND WAIVER OF JURY TRIAL
The Company and the Grantee (the "parties") agree that any suit, action,
or proceeding arising out of or relating to the Plan or this Agreement shall be
brought in the United States
▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ for the Central District of California (or should such court lack
jurisdiction to hear such action, suit or proceeding, in a California state
court in the County of Orange) and that the parties shall submit to the
jurisdiction of such court. The parties irrevocably waive, to the fullest extent
permitted by law, any objection the party may have to the laying of venue for
any such suit, action or proceeding brought in such court. THE PARTIES ALSO
EXPRESSLY WAIVE ANY RIGHT THEY HAVE OR MAY HAVE TO A JURY TRIAL OF ANY SUCH
SUIT, ACTION OR PROCEEDING. If any one or more provisions of this Section X
shall for any reason be held invalid or unenforceable, it is the specific intent
of the parties that such provisions shall be modified to the minimum extent
necessary to make it or its application valid and enforceable.
XI
MISCELLANEOUS
In the event that any provision of this Agreement is 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 this Agreement shall not be affected except to the extent
necessary to reform or delete such illegal, invalid or unenforceable provision.
The captions used in this Agreement are inserted for convenience and
shall not be deemed a part of this Agreement for construction or interpretation.
Except when otherwise indicated by the context, the singular shall include the
plural and the plural shall include the singular. Use of the term "or" is not
intended to be exclusive, unless the context clearly requires otherwise.
Neither the Plan nor this Agreement shall confer upon the Grantee any
right with respect to continuance of employment by the Company, nor shall it
interfere in any way with the Grantee's right, or the Company's right, to
terminate the Grantee's employment at any time.
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective permitted heirs, beneficiaries, successors
and assigns.
The Grantee acknowledges that a copy of the Plan, the Plan prospectus
and a copy of the Company's most recent annual report to its stockholders has
been delivered to the Grantee.
The Plan and this Agreement shall be governed, construed, interpreted
and administered solely in accordance with the laws of the state of California,
without regard to principles of conflicts of law.
As of the date hereof, the Company has an effective registration
statement on file with the Securities and Exchange Commission with respect to
the offer and sale of the Restricted Stock Units and the shares of Common Stock
issuable upon vesting of the Restricted Stock Units. The Company intends to
maintain the effectiveness of this registration statement but has no obligation
to do so. In the event the registration statement ceases to be effective, the
Grantee will not be able to transfer or sell any shares of Common Stock issued
to him or her upon the vesting of the Restricted Stock Units
4
unless exemptions from registration under applicable securities laws are
available. Such exemptions from registration are very limited and might be
unavailable.
All questions arising under the Plan or under this Agreement shall be
decided by the Administrator in its total and absolute discretion. The
resolution of such question or dispute by the Administrator shall be final and
binding on all persons.
IN WITNESS WHEREOF, the Company has caused this Restricted Stock Unit
Agreement to be duly executed by its officers thereunto duly authorized, and the
Grantee has hereunto set his or her hand as of the date first above written.
ENDOCARE, INC.
---------------------------------------------
Grantee Signature
By
---------------------------
Title: Address (please print):
---------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
5