THIS RESTRICTED STOCK UNIT AWARD SHALL NOT BECOME EFFECTIVE UNLESS AND UNTIL IT IS "ACCEPTED" BY YOU IN THE MANNER DESCRIBED BELOW. RESTRICTED STOCK UNIT AWARD NOTICE AND AGREEMENT
THIS
RESTRICTED STOCK UNIT AWARD SHALL NOT BECOME EFFECTIVE UNLESS AND UNTIL IT
IS
"ACCEPTED" BY YOU IN THE MANNER DESCRIBED BELOW.
RESTRICTED
STOCK UNIT AWARD NOTICE AND AGREEMENT
This
Restricted Stock Unit Award Notice and Agreement (this “Agreement”), by and
between DOV Pharmaceutical, Inc., a Delaware corporation with an address as
set
forth on the signature page hereto (the "Company"),
and
___________, a resident of ____________ with an address as set forth on the
signature page hereto (hereinafter “you” or the “Employee”), is made as of the
__ day of _______, 2008, and sets forth the terms and conditions of the award
(the “Award”) of restricted stock units (“RSUs”) granted to you under the
Company’s 2007 Stock Award and Incentive Plan (the “Plan”).
1.
The
Plan.
This
Award is made pursuant to the Plan, the terms and conditions of which are
incorporated by reference into this Agreement. Capitalized terms used in this
Agreement not otherwise defined herein shall be deemed to have the meanings
as
used or defined in the Plan. References in this Agreement to any specific Plan
provision shall not be construed as limiting the applicability of any other
Plan
provision.
2.
Award.
Effective as of the ___day of _________, 2008 (the “Grant Date”), you have been
granted ________ RSUs under the Plan. An RSU is an unfunded and unsecured
promise to deliver (or cause to be delivered) to you, subject to the terms
and
conditions of this Agreement, one (1) share of the Company's Common Stock,
par
value $0.0001 per share (each a “Share” and, collectively, the “Shares”), for
each RSU being settled, subject to payment of applicable withholding taxes,
as
explained in the Plan. Until such delivery, you have only the rights of a
general unsecured creditor, and no rights as a shareholder of the Company.
THIS
AWARD IS CONDITIONED UPON YOUR EXECUTING THIS AGREEMENT AND RETURNING IT TO
THE
COMPANY BY THE DATE SPECIFIED BELOW, AND IS SUBJECT TO ALL TERMS, CONDITIONS
AND
PROVISIONS OF THE PLAN AND THIS AGREEMENT. BY EXECUTING THIS AGREEMENT, YOU
WILL
HAVE CONFIRMED YOUR ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS OF THE PLAN
AS
WELL AS THIS AGREEMENT.
(a)
The
RSUs will convert into Shares on the date or dates of “vesting” as set forth
below in accordance with the requirements of the Plan. RSUs granted hereunder
will be settled by delivery of Shares to you. Such settlement shall occur on
or
after the Vesting Date of each RSU as specified below (each such date, a
“Delivery Date”), except settlement shall be deferred in certain cases if
elected by you pursuant to this Agreement.
|
Vesting
Date
|
Number
of Shares Vested
|
Percentage
of
Total
Grant Vested
|
Settlement
Date
|
|
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While
continued active employment is not required in order to receive delivery of
the
Shares underlying your outstanding RSUs that are vested, all other terms and
conditions of this Agreement shall continue to apply to such RSUs, and failure
to meet such terms and conditions may result in the termination of this Award,
as a result of which no further Shares underlying such vested RSUs will be
delivered.
(b)
(i)
Except as otherwise expressly provided in this Agreement, as soon as reasonably
promptly (but in no case more than thirty (30) business days) after the date
specified as the Settlement Date (or any other date delivery of certificates
representing the Shares is called for hereunder), the Company shall deliver
to
you one or more certificates representing the Shares underlying the number
or
percentage of your then outstanding RSUs with respect to which the Settlement
Date (or other date) has occurred (which number of Shares may be rounded to
avoid fractional Shares).
(ii)
In
the discretion of the Committee, in lieu of all or any portion of the Shares
otherwise deliverable in respect of all or any portion of your RSUs, the Company
may deliver cash, other securities, other Awards or other property, and all
references in this Agreement to deliveries of Shares shall be deemed to include
such deliveries of cash, other securities, other Awards or other
property.
(c)
Notwithstanding any other term of this Agreement, in the event you die prior
to
a Delivery Date, the Shares underlying your then outstanding and vested RSUs
shall be delivered to the representative of your estate as soon as practicable
after the date of death and after such documentation as may be reasonably
requested by the Committee is provided to the Committee. The Committee may
adopt
procedures pursuant to which you may be permitted to specifically bequeath
some
or all of your outstanding RSUs under your will to an organization described
in
Sections 501(c)(3) and 2055(a) of the Code (or such other similar charitable
organization as may be approved by the Committee).
(d)
Settlement of any RSU will
be
deferred in certain cases if and to the extent so elected by Employee in
accordance with the signature page of this Agreement. At any time that RSUs
are
treated as deferred compensation subject to Code Section 409A, (i) settlement
may not be accelerated in the discretion of the Company (except to the extent
permitted under Treas. Reg. § 1.409A-3). Other provisions of this Agreement
notwithstanding, under U.S. federal income tax laws and Treasury Regulations
(and other applicable guidance) as presently in effect or hereafter implemented,
(i) if the timing of any distribution in settlement of RSUs would result in
Employee’s constructive receipt of income relating to the RSUs prior to such
distribution, the date of distribution will be the earliest date after the
specified date of distribution that distribution can be effected without
resulting in such constructive receipt; and (ii) any rights of Employee or
retained authority of the Company with respect to RSUs hereunder shall be
automatically modified and limited to the extent necessary so that Employee
will
not be deemed to be in constructive receipt of income relating to the RSUs
prior
to the distribution and so that Employee shall not be subject to any penalty
under Section 409A. Any elective deferral will be subject to such additional
terms and conditions as the Committee may impose. Please
note that, even if you elect to defer settlement, the Company is required to
withhold from you Medicare taxes at the applicable minimum statutory rate at
such time as the RSUs are no longer subject to a risk of forfeiture upon
voluntary termination.
Such
withholding will be based upon the aggregate Fair Market Value of the Shares
underlying the deferred RSUs at the applicable date and will be deducted from
your salary in most cases in the payroll period that immediately follows the
applicable tax date.
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8
(a)
Unless the Committee in its sole discretion determines otherwise, and except
as
otherwise expressly provided herein, if your employment terminates for any
reason or you otherwise are no longer actively employed with the Company, your
rights in respect of any RSUs that are then outstanding but not yet vested
shall
terminate immediately, such RSUs shall cease to be outstanding and no further
Shares shall be delivered in respect thereof.
(b)
Unless the Committee in its sole discretion determines otherwise, and except
as
provided in Paragraphs 6 and 7, your rights in respect of all of your
outstanding RSUs (whether or not vested) immediately shall terminate, such
RSUs
shall cease to be outstanding and no further Shares shall be delivered in the
event that:
(i)
a
Forfeiture Event shall have occurred and be continuing;
(ii)
you
fail to certify, in accordance with such procedures as may be established by
the
Committee from time to time, that you have complied, or the Committee determines
that you in fact have failed to comply in any material respect, with all the
terms and conditions of the Plan and this Agreement. On each Delivery Date
by
accepting the delivery of Shares you shall be deemed to have represented and
certified at such time that you have complied with all the terms and conditions
of the Plan and this Agreement;
(iii)
the
Committee in its sole discretion determines that you failed to meet, in any
material respect, any obligation you may have under any agreement between you
and the Company, or any agreement entered into in connection with your
employment with the Company, including, without limitation, the Company’s notice
period requirement applicable to you, any offer letter, employment agreement
or
any shareholders’ agreement to which other similarly situated employees of the
Company are a party; or
(vi)
as a
result of any action brought by you, it is determined that any of the terms
or
conditions for delivery of Shares in respect of this Agreement are invalid.
5.
Repayment.
The
provisions of Section 10(a) of the Plan (which requires Award recipients to
repay to the Company amounts delivered to them if the Committee determines
that
all terms and conditions of this Agreement in respect of such delivery were
not
satisfied) shall apply to this Award.
6.
Change
in Control.
Notwithstanding anything to the contrary in this Agreement, in the event a
Change in Control shall occur and within twelve (12) months thereafter the
Company terminates your employment without cause or you terminate your
employment for “good reason” as such term is generally understood, all Shares
underlying your then outstanding RSUs, whether or not vested, shall be deemed
fully vested and delivered.
7.
Dividend
Equivalents.
Each
RSU shall include a Dividend Equivalent right. Accordingly, with respect to
each
of your outstanding RSUs, at or after the time of distribution of any regular
cash dividend paid by DOV in respect of a Share the record date for which occurs
on or after a Delivery Date, you shall be entitled to receive an amount (less
applicable withholding) equal to such regular dividend payment as would have
been made in respect of the Share underlying such outstanding RSU. Payment
in
respect of a Dividend Equivalent right shall be made only with respect to RSUs
that are outstanding on the applicable record date.
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8
(a)
The
delivery of Shares is conditioned on your satisfaction of any applicable
withholding taxes in accordance with Section 11(d) of the Plan. To the extent
permitted by applicable law, the Company, in its sole discretion, may require
you to provide amounts equal to all or a portion of any federal, state, local,
foreign or other tax obligations imposed on you or the Company in connection
with the grant, vesting or delivery of this Award by requiring you to choose
between remitting such amount (i) in cash (or through payroll deduction or
otherwise) or (ii) in the form of proceeds from the Company’s executing a sale
of Shares delivered to you pursuant to this Award. In addition, if you are
an
individual with separate employment contracts (at any time during and/or after
the Company’s fiscal year), the Company may, in its sole discretion, require you
to provide for a reserve in an amount the Company determines is advisable or
necessary in connection with any actual, anticipated or potential tax
consequences related to your separate employment contracts by requiring you
to
choose between remitting such amount (i) in cash (or through payroll deduction
or otherwise) or (ii) in the form of proceeds from the Company’s executing a
sale of Shares delivered to you pursuant to this Award (or any other outstanding
Awards under the Plan). In no event, however, shall any choice you may have
under the preceding two sentences determine, or give you any discretion to
affect, the timing of the delivery of Shares or the timing of payment of tax
obligations.
(b)
Your
rights in respect of your RSUs are conditioned on the receipt to the full
satisfaction of the Committee of any required consents that the Committee may
reasonably determine to be necessary or advisable.
(c)
You
understand and agree that by accepting this Award you have agreed to become
subject to the Company’s policies in effect from time to time and at any time
concerning trading in Stock and hedging or pledging Stock and equity-based
compensation or other awards, and confidential or proprietary information,
and
to effect sales of Shares delivered to you in respect of your RSUs in accordance
with such rules and procedures as may be adopted from time to time with respect
to sales of such Shares (which may include, without limitation, restrictions
relating to the timing of sale requests, the manner in which sales are executed,
pricing method, consolidation or aggregation of orders and volume limits
determined by the Company). In addition, you understand and agree that you
shall
be responsible for all brokerage costs and other fees or expenses associated
with your Award including, without limitation, such brokerage costs and other
fees or expenses in connection with the sale of Shares delivered to you
hereunder.
(d)
Your
participation in the Plan is voluntary. The value of the RSUs is an
extraordinary item of compensation. As such, the RSUs are not part of normal
or
expected compensation for purposes of calculating any severance, resignation,
redundancy, end of service payments, bonuses, long-service awards, pension
or
retirement benefits or similar payments.
(e)
The
RSUs
and the granting thereof shall not constitute or be evidence of any agreement
or
understanding, express or implied, that you have a right to continue as an
officer or employee of the Company for any period of time, or at any particular
rate of compensation. You
acknowledges and agree that the Plan is discretionary in nature and limited
in
duration, and may be amended, cancelled, or terminated by the Committee, in
its
sole discretion, at any time, provided, however that any outstanding RSUs shall
not be materially and adversely affected. The grant of RSUs under the Plan
is a
one-time benefit and does not create any contractual or other right to receive
a
grant of restricted stock RSUs or stock options or benefits in lieu of RSUs
or
stock options in the future. Future grants, if any, will be at the sole
discretion of the Committee, including, but not limited to, the timing of any
grant, the number of RSUs and vesting provisions.
Page
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8
(f)
All
certificates representing non-vested Shares shall have endorsed thereon, in
addition to any other legends required by applicable securities laws, a legend
substantially as follows:
"THE
SALE
OR OTHER TRANSFER OF THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE,
WHETHER VOLUNTARY, INVOLUNTARY, OR BY OPERATION OF LAW, IS SUBJECT TO CERTAIN
RESTRICTIONS ON SALE AND TRANSFER (INCLUDING FORFEITURE) AS SET FORTH IN THE
DOV
PHARMACEUTICAL, INC. 2007 STOCK AWARD AND INCENTIVE PLAN AND IN THE ASSOCIATED
RESTRICTED STOCK UNIT AWARD AGREEMENT, EACH AS AMENDED OR AMENDED AND RESTATED
FROM TIME TO TIME. COPIES OF THE PLAN AND AGREEMENT MAY BE OBTAINED FROM DOV
PHARMACEUTICAL, INC."
10.
Right
of Offset.
The
obligation to deliver Shares under this Agreement is subject to Section 11(f)
of
the Plan, which provides for the Company’s right to offset against such
obligation any outstanding amounts you owe to the Company and any amounts the
Committee deems appropriate pursuant to any tax equalization policy or
agreement.
(a)
Except as set forth in Section 11(b) below, the terms and provisions of this
Agreement may not be modified, amended, renewed, or terminated, nor may any
term, condition or breach of any term or condition be waived, except by a
writing signed by the Company and you. Any waiver of any term, condition or
breach hereof shall not be a waiver of any other term or condition or of the
same term or condition for the future, or of any subsequent breach
(b)
Notwithstanding any other provision of this Agreement, the Committee reserves
the right at any time to amend the terms and conditions set forth in this
Agreement, and the Board may amend the Plan in any respect; provided
that, no
such amendment shall materially and adversely affect your rights and obligations
under this Agreement without your consent; and provided further that the
Committee expressly reserves its rights to amend the Agreement and the Plan
as
described in the Plan. Any amendment of this Agreement shall be in writing
signed by an authorized member of the Committee or a person or persons
designated by the Committee.
12.
Non-transferability.
(a)
Except as otherwise may be provided in this Paragraph 12 or as otherwise may
be
provided by the Committee, the limitations on transferability set forth in
Section 11(b) of the Plan shall apply to this Award. Any purported transfer
or
assignment in violation of the provisions of this paragraph 12 or Section 11(b)
of the Plan shall be null and void. The Committee may adopt procedures pursuant
to which some or
all
recipients of RSUs may transfer some or all of their RSUs through a gift for
no
consideration to any child, stepchild, grandchild, parent, stepparent,
grandparent, spouse, sibling, niece, nephew, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law or sister-in-law, including adoptive
relationships, any person sharing the recipient’s household (other than a tenant
or employee), a trust in which these persons have more than 50% of the
beneficial interest, and any other entity in which these persons (or the
recipient) own more than 50% of the voting interests.
(b)
In
addition to the transfer restrictions referred to above, you recognize that
federal and state securities laws govern and may restrict your right to sell
or
otherwise dispose of the RSUs after vesting. You also understand that local
non-United States laws may also govern your disposition of Shares if you are
located outside of the United States.
Page
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8
13.
Delay
in Payment.
To the
extent required in order to avoid the imposition of any interest and/or
additional tax under Section 409A(a)(1)(B) of the Code, any payments or
deliveries due as a result of your termination of employment with the Company
may be delayed for six months if you are deemed to be a “specified employee” as
defined in Section 409A(a)(2)(i)(B) of the Code.
14.
Notices.
Any
notice or other communication to be made, served or given to the Company under
or pursuant to the terms hereof shall be in writing and shall be addressed
to
the Company at the address set forth on the signature page hereto or as
otherwise requested by the Company, and any notice to be given to you shall
be
in writing and addressed to your address maintained from time to time in the
employment records of the Company or any affiliate, or at such other address
as
either party may hereafter designate in writing to the other. Such notice shall
be sent by personal delivery or by registered or certified mail, return receipt
requested, postage prepaid, or by a nationally known overnight courier (or
internationally known courier if sent from outside of the United States),
providing written proof of delivery. Any notice sent in the manner set forth
above shall be deemed to have been given and received upon receipt if personally
delivered, two (2) days after it has been delivered to a nationally
(internationally) known overnight courier, and three (3) days after it has
been
deposited in the United States mail (or other non-United States
government-sponsored mail system) if sent by mail. If a notice is delivered
otherwise than as set forth above, it shall be deemed to have been given when
received. The substance of any notice shall be deemed to have been fully
acknowledged in the event of refusal of acceptance by the party to whom the
notice is addressed.
15.
Binding
Effect.
This
Agreement shall be binding upon, and shall inure to the benefit of both parties
hereto and their respective permitted successors, assigns, heirs, beneficiaries
and representatives.
16.
Governing
Law and Jurisdiction.
This
Agreement shall be construed and enforced in accordance with the terms of
Section 11(l) of the Plan providing for use of the internal laws of the State
of
New Jersey in the United States; provided,
however,
that,
insofar as the Company is incorporated under the laws of the State of Delaware
in the United States, the General Corporate Law of the State of Delaware (or
any
successor statute) shall govern those matters that apply to the internal
governance of the Company. Furthermore, you hereby irrevocably submit to the
co-exclusive jurisdiction of (i) the Superior Court of New Jersey, and (ii)
the
United States District Court for the District of New Jersey, to resolve any
and
all issues that may arise out of or relate to this Agreement. THE SECURITIES
ISSUED HEREUNDER SHALL BE GOVERNED BY AND IN ACCORDANCE WITH THE SECURITIES
LAWS
OF THE UNITED STATES AND ANY OTHER APPLICABLE LAWS. Each of the parties hereto
further agrees that service of any process, summons, notice or documents by
United States registered mail, return receipt requested, or
internationally-known courier, in accordance with the provisions of Section
14
above, shall be effective service of process for any action, suit or proceeding.
17.
Severability.
Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, but shall be interpreted as if it were written so as to
be
enforceable to the maximum extent permitted by applicable law, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the parties waive any provision of law that renders
any provisions hereof prohibited or unenforceable in any respect.
Page
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8
18.
Entire
Agreement.
This
Agreement, together with the Notice of Grant and the Plan, collectively
constitute the entire agreement and understanding between the parties hereto
with respect to the subject matter hereof and supersede all prior oral or
written agreements and understandings relating to the subject matter hereof.
If
there is any conflict between the provisions of this Agreement and mandatory
provisions of the Plan, the provisions of the Plan shall govern. No statement,
representation, warranty, covenant or agreement not expressly set forth in
this
Agreement or incorporated herein by reference shall affect or be used to
interpret, change or restrict the express terms and provisions of this
Agreement.
19.
Deadline;
Acceptance.
This
Agreement must be executed and delivered to the Company no later than the ___
day of ____, 2008, after which date it shall become null and void. By accepting
this Agreement, you are accepting the Award as set forth in this Agreement
and
agreeing to the terms and conditions hereof, including all provisions of the
Plan. You further acknowledge both that you have received a copy of the Plan
as
well as the fact that a copy of the Plan as filed with the U.S. Securities
and
Exchange Commission is available for your review at any time.
[Signature
page follows]
Page
7 of
8
|
Sincerely,
DOV PHARMACEUTICAL,
INC.
|
||
| |
|
|
| By: | ||
|
|
||
Agreed and Accepted:
|
|
|||
|
Name:
Address:
|
Please
initial only one:
____ I
hereby
elect to have my RSUs settled at the Delivery Dates without further deferral
(this election will apply if no box is checked).
____ I
hereby
elect to defer the settlement of my RSUs until the first business day of the
year
(date
must be after the Stated Vesting Date) (subject to accelerated settlement of
the
deferred RSUs in certain cases upon a Change in Control and earlier settlement
of previously vested RSUs in the event of employee’s termination of employment
for any reason, including retirement).
____ I
hereby
elect to defer the settlement of my RSUs until the termination of my employment
for any reason, including retirement (subject to accelerated settlement in
certain cases upon a Change in Control).
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