Attached files
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10-Q - FORM 10-Q - ATHERSYS, INC / NEW | c18488e10vq.htm |
EX-32.1 - EXHIBIT 32.1 - ATHERSYS, INC / NEW | c18488exv32w1.htm |
EX-31.1 - EXHIBIT 31.1 - ATHERSYS, INC / NEW | c18488exv31w1.htm |
EX-31.2 - EXHIBIT 31.2 - ATHERSYS, INC / NEW | c18488exv31w2.htm |
EXCEL - IDEA: XBRL DOCUMENT - ATHERSYS, INC / NEW | Financial_Report.xls |
EXHIBIT 10.2
ATHERSYS, INC.
RESTRICTED STOCK UNIT AGREEMENT
RESTRICTED STOCK UNIT AGREEMENT
This Restricted Stock Unit Agreement (Agreement) is made as of , (the Date
of Grant) by and between Athersys, Inc., a Delaware corporation (the Company) and
(Grantee) with respect to the grant of Restricted Stock Units by
the Company to the Grantee pursuant to the Athersys, Inc. Amended and Restated 2007 Long-Term
Incentive Plan (As Amended and Restated effective June 16, 2011) (the Plan). (Capitalized terms
used in this Agreement and not otherwise defined have the meanings assigned to them in the Plan).
The execution of a restricted stock unit agreement substantially in the form hereof has been
authorized by a resolution of the Compensation Committee (the Committee) of the Board of
Directors of the Company (the Board) on July 5, 2011.
In consideration of the Grantees acceptance of the terms and conditions of this Agreement,
and subject to the terms of this Agreement and the Plan, the Company hereby makes the following
grant of Restricted Stock Units to Grantee.
AGREEMENT:
1. Grant of Restricted Stock Units. The Company hereby grants to the Grantee the
number of Restricted Share Units that are shown on the signature page of this Agreement as the
Original Award. Each Restricted Stock Unit shall represent the contingent right to receive one
share of the Companys Common Stock, par value $0.001 per share (Share).
2. Restriction on Transfer. The Restricted Stock Units may not be transferred, sold,
pledged, exchanged, assigned or otherwise encumbered or disposed of by the Grantee. Any purported
transfer, encumbrance or other disposition of the Restricted Stock Units that is in violation of
this Agreement shall be null and void, and the other party to such purported transaction shall not
obtain any rights to or interest in the Restricted Stock Units.
3. Vesting. (a) The Restricted Stock Units will become nonforfeitable and payable to
the Grantee pursuant to Section 6 hereof upon the occurrence of the following:
Amount Nonforfeitable | Date Nonforfeitable | |||||||
% of the Original Award |
||||||||
% of the Original Award |
||||||||
% of the Original Award |
||||||||
All Forfeitable Restricted Stock Units |
||||||||
(b) Notwithstanding the provisions of Section 3(a), all of the Restricted Stock Units subject
to this Agreement will become nonforfeitable and payable to the Grantee pursuant to Section 6
hereof upon any Change in Control that occurs while the Grantee is employed by or serving as a
director of the Company or any Subsidiary.
(c) Notwithstanding the provisions of Section 3(a), all of the Restricted Stock Units subject
to this Agreement will become nonforfeitable and payable to the Grantee pursuant to Section 6
hereof if the Grantee dies or becomes permanently disabled while employed by or serving as a
director of the Company or a Subsidiary after the Date of Grant.
4. Termination of Rights and Forfeiture of Shares. Except for Restricted Stock Units
that have become nonforfeitable pursuant to Section 3, all of the Restricted Stock Units will be
forfeited if the Grantee ceases to be an employee or director of the Company or a Subsidiary at any
time prior to .
5. Dividend, Voting and Other Rights. Grantee shall have no rights of ownership in
the Shares underlying the Restricted Stock Units and shall have no right to vote such Shares until
the date on which the Shares are transferred to Grantee pursuant to Section 6. Any dividends that
may be paid on the Shares underlying the Restricted Stock Units shall be automatically deferred and
reinvested in additional shares of Common Stock. Any additional Restricted Stock Units or shares
of Common Stock or other securities that the Grantee may become entitled to receive under the Plan
pursuant to a stock dividend, stock split, combination of shares, recapitalization, merger,
consolidation, separation or reorganization or any other change in the capital structure of the
Company will be subject to the same restrictions as the Restricted Stock Units or the Shares
underlying the Restricted Stock Units as of the Date of Grant.
6. Payment of Restricted Stock Units. To the extent that Restricted Stock Units become
nonforfeitable pursuant to Section 3 above, Shares underlying such Restricted Stock Units shall be
transferred to Grantee no later than sixty (60) days after the date on which the Restricted Stock
Units become nonforfeitable, except as otherwise provided in Section 11. Notwithstanding the
foregoing, in the case of a Change in Control that occurs as a result of either a sale of the stock
of the Company or a merger, settlement of Restricted Stock Units that become vested upon such
Change of Control will be made in Shares, unless otherwise specified in the definitive agreement
for such Change of Control.
7. Adjustments. The Board (or a committee of the Board) shall make such adjustments
in the number or kind of Restricted Stock Units or Shares covered by this Agreement as the Board
(or a committee of the Board) shall determine is equitably required to prevent dilution or
enlargement of the rights of the Grantee that otherwise would result from (a) any stock dividend,
extraordinary dividend, stock split, combination of shares, recapitalization or other change in the
capital structure of the Company, or (b) any Change in Control, merger, consolidation, spin-off,
split- off, spin-out, split-up, reorganization, partial or complete liquidation or other
distribution of assets, issuance of rights or warrants to purchase securities, or (c) any other
corporate transaction or event having an effect similar to any of the foregoing. Moreover, in the
event of any such transaction or event, the Board (or a committee of the Board), in its discretion,
may provide in substitution for any or all of the Restricted Stock Units or Shares
underlying any or all of the Restricted Stock Units provided for herein such alternative
consideration as it may determine to be equitable in the circumstances.
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8. Compliance with Law. The Company shall make reasonable efforts to comply with all
applicable federal, state and other applicable securities laws; provided, however,
notwithstanding any other provision of this Agreement, the Company will not be obligated to issue
any Restricted Stock Units or Shares pursuant to this Agreement if the issuance thereof would
result in a violation of any such law.
9. Relation to Plan. This Agreement is subject to the terms and conditions of the
Plan. In the event of any inconsistency between the provisions of this Agreement and the Plan, the
Plan shall govern. All terms used herein with initial capital letters and not otherwise defined
herein that are defined in the Plan shall have the meanings assigned to them in the Plan. The
Board (or a committee of the Board) acting pursuant to the Plan, as constituted from time to time,
shall, except as expressly provided otherwise herein, have the right to determine any questions
which arise in connection with the grant of Restricted Stock Units hereunder.
10 Amendments. Any amendment to the Plan shall be deemed to be an amendment to this
Agreement to the extent that the amendment is applicable hereto; provided, however, that no
amendment shall adversely affect the rights of the Grantee under this Agreement without the
Grantees consent.
11 Withholding Taxes. The Grantee shall be liable for any and all U.S. federal, state
and local taxes, or foreign taxes of any kind required by law to be withheld with respect to the
vesting of Restricted Stock Units. When the Restricted Stock Units vest, the Grantee shall
surrender to the Company a sufficient number of whole Shares as necessary to cover the minimum
applicable required withholding taxes and social security contributions related to such vesting.
The value of any fraction of retained Shares not necessary for required withholding shall be
applied to the Grantees federal income tax withholding by the Company generally. Instead of
requiring the Grantee to surrender Shares as described above, the Company may, in its discretion,
(a) require the Grantee to remit to the Company on the date on which the Restricted Stock Units
vest cash in an amount sufficient to satisfy the minimum applicable required withholding taxes and
social security contributions related to such vesting, or (b) deduct from his regular salary
payroll cash, on a payroll date following the date on which the Restricted Stock Units vest, in an
amount sufficient to satisfy such obligations.
In lieu of surrendering Shares to cover the minimum applicable required withholding taxes and
social security contributions, the Grantee may, by providing notice to the Company within 30 days
of the Grant Date (a) elect to remit to the Company on the date on which the Restricted Stock Units
vest cash in an amount sufficient to satisfy such obligations, or (b) request the Company to deduct
from his regular salary payroll cash, on a payroll date following the date on which the Restricted
Stock Units vest, in an amount sufficient to satisfy such obligations, which request the Company
may choose to honor in its sole discretion.
12. Right to Terminate Relationship. No provision of this Agreement will limit in any
way whatsoever any right that the Company or Shareholders may otherwise have to terminate the
employment or directorship of the Grantee at any time.
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13 Relation to Other Benefits. Any economic or other benefit to the Grantee under
this Agreement will not be taken into account in determining any benefits to which the Grantee may
be entitled under any profit-sharing, retirement or other benefit or compensation plan maintained
by the Company or a Subsidiary and will not affect the amount of any insurance coverage available
to any beneficiary under any insurance plan covering employees or non-employee directors of the
Company or a Subsidiary.
14 Severability. In the event that one or more of the provisions of this Agreement
are invalidated for any reason by a court of competent jurisdiction, any provision so invalidated
will be deemed to be separable from the other provisions hereof, and the remaining provisions
hereof will continue to be valid and fully enforceable.
15 Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which together shall constitute one and the
same Agreement.
16 Notices. All notices, consents, requests, approvals, instructions and other
communications provided for herein shall be in writing and validly given or made when delivered, or
on the second succeeding business day after being mailed by registered or certified mail, whichever
is earlier, to the persons entitled or required to receive the same, at the addresses set forth at
the heading of this Agreement or to such other address as either party may designate by like
notice. Notices to the Company shall be addressed to its principal office, attention of the
President.
17 Governing Law. This Agreement is made under, and will be construed in accordance
with, the internal substantive laws of the State of Delaware without regard to conflict of law
principles of such state.
18. Compliance with Section 409A of the Internal Revenue Code. To the extent
applicable, it is intended that this Agreement and the Plan comply with the provisions of Section
409A of the Internal Revenue Code, so that the income inclusion provisions of Section 409A(a)(1) do
not apply to Grantee. This Agreement and the Plan shall be administered in a manner consistent
with this intent.
Executed in the name and on behalf of the Company, at 3201 Carnegie Avenue, Cleveland, Ohio, 44115,
as of the day of , 20 .
ATHERSYS, INC. |
||||
By: | ||||
Name: | ||||
Title: | ||||
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The undersigned Grantee hereby accepts the Restricted Stock Units evidenced by this Restricted
Stock Unit Agreement on the terms and conditions set forth herein and in the Plan.
Dated: , 20
Name: |
Name of Grantee:
|
[name] | |||
Date of Grant: |
||||
Original Award:
|
(number) Restricted Stock Units | |||
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