STOCK AWARD AGREEMENT
THIS STOCK AWARD AGREEMENT (the "Agreement") is made and entered into by
and between DIALYSIS CORPORATION OF AMERICA, a Florida corporation (the
"Company," which term includes its subsidiaries), and
, an individual (the "Participant"), on this day of
June, 2006, pursuant to the Dialysis Corporation of America 1999 Stock
Incentive Plan (the "Plan"). The terms of the Plan are incorporated by
reference and shall be considered to be a part of this Agreement.
Capitalized terms not defined in this Agreement have the meanings given to
them in the Plan.
WHEREAS, the Company desires to grant to the Participant shares of the
Company's common stock, $.01 par value (the "Stock"), and the Participant
desires to be a holder of the Stock, subject to the terms and conditions of
this Agreement.
NOW, THEREFORE, in consideration of the promises, mutual covenants and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto,
intending to be legally bound hereby, agree as follows:
1. Summary of the Award.
* Award date:
* Number of Shares: shares of Stock (the "Shares")
* Vesting schedule:
* Performance criteria:
2. Grant of Common Stock. Subject to the restrictions, forfeiture
provisions and other terms and conditions set forth herein (i) the Company
grants to the Participant Shares, and (ii) the Participant
shall not have and may not exercise any rights or privileges of ownership of
such Shares, including without limitation, voting rights, Transfer (as
defined in Section 4 hereof), directly or indirectly (such as writing options
on the Shares), or the right to receive any dividends in respect thereof
until the Shares, or any portion thereof, have vested in accordance with the
vesting schedule as set forth in Section 3 of this Agreement. The Company
may require the Participant to reimburse the Company for, or the Company may
withhold from any amounts it may owe the Participant, all amounts required by
applicable federal, state and local laws with respect to the issuance and
vesting of the Shares. This Agreement and its grant of Shares is subject to
the terms and conditions of the Plan.
3. Vesting. The Award shall vest in equal increments of % of
the Shares at the end of each year, commencing
through (the "Vesting Dates" or singular,
"Vesting Date"), provided that notwithstanding the length or duration of the
Participant's employment or affiliation with the Company, no Award shall vest
except that the Participant is then employed or affiliated with the Company
on the Vesting Date. Thereafter, the Company will transfer such Shares to
the Participant upon satisfaction of (i) the Vesting Date, the then
employment or affiliation of the Participant with the Company, and (ii) any
tax withholding obligations.
3.1 Acceleration of the vesting and the Vesting Dates will occur
upon a Change in Control as provided in Section 8 of the Plan.
3.2 Termination of employment or other affiliation with the
Company, whether voluntary or involuntary, for any reason (which includes
death or disability) will result in the automatic
termination of the unvested portion of the Award, which unvested portion of
the Award will be automatically and immediately forfeited to the Company
without further notice to the Participant. A transfer of employment services
between or among the Company and its subsidiaries shall not be considered a
termination of employment. Unless the Board or the Committee determines
otherwise, and except as otherwise required by local law, for purposes of
this Award only, any reduction in the Participant's regular hours of
employment to less than 30 hours per week is deemed a termination of
employment with the Company.
3.3 The Participant's rights under the Award, in the event of a
leave of absence or a change in the Participant's regularly scheduled hours
of employment (other than as provided for in Section 3.2 hereof) will be
effected in accordance with the Company's applicable employment practices or
the terms of any agreement between the Participant and the Company; provided
if such leave of absence or other change in employment is ultimately deemed a
termination of employment as determined in the sole discretion of the Board
or the Committee, then such shall be deemed to have occurred at the
commencement of such leave of absence or change in employment.
4. Restriction on Transfer. As indicated, the Participant shall not
have any right in or with respect to any of the Shares issuable under the
Award until that portion of the Shares has vested in accordance with Section
3 of this Agreement. Upon such vesting of the Shares, none of the Shares may
be sold, assigned, transferred, pledged, hypothecated or otherwise disposed
of or encumbered (collectively "Transferred" or in the present tense,
"Transfer") except as provided in Section 10.2 of the Plan (includes (i) by
will or the laws of descent and distribution; and (ii) transfer to immediate
family members, with provides for a written instrument binding such
transferee to this Agreement), and the Participant, upon issuance of the
Shares, shall sign an Investment Letter in the form as attached hereto as
Exhibit A, reflecting the restrictions on Transfer and that the Participant
is acquiring the Shares for investment and not with a view toward
distribution. Absent registration of the Shares under the applicable
securities laws, the Participant may not Transfer the Shares except pursuant
to an applicable exemption from such registration requirements. Such
exemptions are very limited. You agree that any Transfer by you of the
Shares shall comply in all respects with the requirements of all applicable
securities laws, rules and regulations, including, without limitation, the
provisions of the Securities Act of 1933, as amended, the Securities Exchange
Act of 1934, and the respective rules and regulations promulgated thereunder
and any other law, rule or regulation applicable thereto, as such laws,
rules, and regulations may be amended from time to time. The Company shall
not be obligated to either issue the Shares or permit the Transfer of any
Shares if such issuance or Transfer would violate any such requirements.
5. Distributions and Adjustments. If all or any portion of the Shares
vest in Participant subsequent to any change in the number or character of
Shares through a stock split, reverse stock split, or similar
recapitalization such that an adjustment is determined by the Board or
Committee to be appropriate, the Participant shall then receive upon such
vesting the number and type of securities or other consideration which
Participant would have received if the Shares had vested prior to the event
changing the number or character of outstanding Shares. Any such additional
shares of Stock or any other securities of the Company distributed with
respect to the Shares prior to the date the Shares vest shall be subject to
the same restrictions, terms and conditions as the Shares. The Participant
shall not be entitled to any dividends payable with respect to the Shares
which vest subsequent to the Board's declaration of any such dividend.
6. Tax Requirements.
6.1 The Company shall have the power and the right to deduct or
withhold, or require the Participant to remit to the Company, an amount
sufficient to satisfy federal, state and local
taxes required by law or regulation to be withheld with respect to any
taxable event arising as a result of the Plan and this Agreement.
6.2 With respect to tax withholding required upon any taxable event
arising as a result of this Agreement, the Participant may elect, subject to
the approval of the Board or the Committee in its discretion, to satisfy the
withholding requirement, in whole or in part, by having the Company withhold
Shares having a Fair Market Value on the date the tax is to be determined
equal to the statutory total tax which could be imposed on the transaction.
All such elections shall be made in writing, signed by the Participant, and
shall be subject to any restrictions or limitations that the Board or the
Committee in its discretion deems appropriate. Any fraction of a Share
required to satisfy such obligation shall be disregarded and the amount due
shall instead be paid in cash by the Participant.
7. Limitation on Rights; No Right to Future Grants; Extraordinary Item.
By entering into this Agreement and accepting the Award, the Participant
acknowledges that: (a) the grant of the Award is a one-time benefit and does
not create any contractual or other right to receive future grants of awards
or benefits in lieu of awards; (b) all determinations with respect to any
such future grants, including, but not limited to, the times when awards will
be granted, the number of shares of Stock subject to each award, the award
price, if any, and the time or times when each award will be settled, will be
at the sole discretion of the Company; (c) the value of the Award is an
extraordinary item which is outside the scope of the Participant's employment
contract, if any; (d) the Award is not part of normal or expected
compensation for any purpose, including, without limitation, for calculating
any benefits, severance, resignation, termination, end of service payments,
bonuses, long-service awards, pension or retirement benefits or similar
payments; (e) the future value of the Shares subject to the Award is unknown
and cannot be predicted with certainty; (f) neither the Plan, the Award, nor
the issuance of the Shares confers upon the Participant any right to continue
in the employ of, or any other relationship with, the Company, nor do they
limit in any respect the right of the Company to terminate the Participant's
employment or other relationship with the Company at any time; and (g) in the
event that the Participant is not a direct employee of the Company, the grant
of the Award will not be interpreted to form an employment relationship with
the Company.
8. Miscellaneous.
8.1 Any purported Transfer of Shares in breach of any provision of
this Agreement shall be void and ineffectual, and shall not operate to
Transfer any interest or title in the purported transferee.
8.2 Any notice, instruction, authorization, request or demand
required hereunder shall be in writing, and shall be delivered either by
personal delivery, by telegram, telex, telecopy or similar facsimile means,
by certified or registered mail, return receipt requested, or by courier or
delivery service, addressed to the Company at the address indicated beneath
its signature on the execution page of this Agreement, and to the Participant
at his address indicated on the Company's stock records, or at such other
address and number as a party shall have previously designated by written
notice given to the other party in the manner hereinabove set forth. Notices
shall be deemed given when received, if sent by facsimile means (confirmation
of such receipt by confirmed facsimile transmission being deemed receipt of
communications sent by facsimile means); and when delivered and receipted for
(or upon the date of attempted delivery where delivery is refused), if hand-
delivered, sent by express courier or delivery service, or sent by certified
or registered mail, return receipt requested.
8.3 This Agreement may be amended, modified or superseded only by
written instrument executed by the Company and the Participant. Any waiver
of the terms or conditions hereof shall be made only by a written instrument
executed and delivered by the party waiving compliance. Any waiver granted
by the Company shall be effective only if executed and delivered by a duly
authorized executive officer of the Company other than the Participant. The
failure of any party at any time or times
to require performance of any provision hereof shall in no manner affect the
right to enforce the same. No waiver by any party of any term or condition,
or the breach of any term or condition contained in this Agreement, in one or
more instances shall be deemed to be or construed as a further or continuing
waiver of any such condition or breach, or a waiver of any other condition or
the breach of any other term or condition.
8.4 This Agreement shall be governed by the laws of the State of
Florida. The invalidity of any provision of this Agreement shall not affect
any other provision of this Agreement, which shall remain in full force and
effect.
8.5 Subject to the limitations which this Agreement imposes upon
transferability of the Shares, this Agreement shall bind, be enforceable by
and inure to the benefit of the Company and its successors and assigns, and
the Participant, and the Participant's permitted assigns, and upon death,
estate and beneficiaries thereof (whether by will or the laws of descent and
distribution), executors, administrators, agents, legal and personal
representatives.
8.6 This Agreement together with the Plan supersede any and all
other prior understandings and agreements, either oral or in writing, between
the parties with respect to the subject matter hereof, and constitute the
sole and only agreements between the parties with respect to the said subject
matter. All prior negotiations and agreements between the parties with
respect to the subject matter hereof are merged into this Agreement. Each
party to this Agreement acknowledges that no representations, inducements,
promises or agreements, orally or otherwise, have been made by any party or
by anyone acting on behalf of any party, which are not embodied in this
Agreement or the Plan, and that any agreement, statement or promise that is
not contained in this Agreement or the Plan shall not be valid or binding or
of any force or effect.
9. Counterparts. This Agreement may be executed in multiple original
counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the same instrument.
10. Participant's Acknowledgements. The Participant acknowledges
receipt of a copy of the Plan, and represents that he or she is familiar with
the terms and provisions thereof, and hereby accepts this Agreement subject
to all the terms and provisions of the Plan and this Agreement. The
Participant hereby agrees to accept as binding, conclusive and final, all
decisions or interpretations of the Board or the Committee, as appropriate,
upon any questions arising under the Plan or this Agreement.
[signatures on following page]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the date first above written.
COMPANY:
DIALYSIS CORPORATION OF AMERICA
By:----------------------------------
Name:
Title:
Address: 1302 Concourse Drive, Suite
204
Linthicum, MD 21090
Telecopier: (410) 694-0596
Attention: Michael Rowe,
Vice President,
Operations and
COO
PARTICIPANT:
By:-----------------------------------
Name:
Address: