Contract
Exhibit 99.2
AMENDED
AND RESTATED 2004 STOCK INCENTIVE PLAN
____________________________
__________________________________
You (the
“Participant”)
are hereby awarded Restricted Shares subject to the terms and conditions set
forth in this Award Agreement (the “Award Agreement” or
“Award”) and in
the Aeolus Pharmaceuticals, Inc. Amended and Restated 2004 Stock Incentive Plan
(“Plan”). A
copy of the Plan is attached as Exhibit A and a
summary of the Plan appears in the Plan Prospectus attached as Exhibit
B. You should carefully review these documents and consult
with your personal financial advisor, in order to fully understand the
implications of this Award Agreement, including your tax
consequences.
By
executing this Award Agreement, you agree to be bound by all of the Plan’s terms
and conditions as if they had been set out verbatim below. In
addition, you recognize and agree that all determinations, interpretations, or
other actions respecting the Plan and this Award Agreement will be made by the
Company’s Board of Directors (the “Board”) or any
Committee or a committee appointed by the Board to administer the Plan, and
shall be final, conclusive and binding on all parties, including you and your
heirs and representatives. Capitalized terms are defined in the Plan
or in this Award Agreement.
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1.
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Specific
Terms. Your Restricted Shares have the following
terms:
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Name
of Participant
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Number
of Shares Subject to Award
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Purchase
Price per Share (if applicable)
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Not
applicable.
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Grant
Date
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Vesting
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[For
time-based vesting][Your Award will vest at the rate of __% on each
of the next ___ anniversaries of the Grant Date; provided that your
employment has not ended before the vesting date; and provided further
that you will become 100% vested in this Award if your employment ends due
to your retirement, your death, or your disability.
[For
event-based vesting][Your Award will vest at the rate of __% upon
[your][the Company’s] achievement of [milestone
to be inserted]; provided that your employment has not ended before
such vesting date; and provided further that you will become 100% vested
in this Award if your employment ends due to your retirement, your death,
or your disability.
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Lifetime
Transfers
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¨ Allowed in
accordance with Section 10(b) of the Plan. ¨ Not
allowed.
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2. Termination
of Employment. Subject to the terms of any Employment
Agreement between you and the Company and/or its subsidiaries then in effect,
this Award shall be canceled and become automatically null and void immediately
after termination of your employment for any reason, but only to the extent you
have not become vested, pursuant to the foregoing terms, on or at the time your
employment ends.
3. Dividends;
Voting Rights. As the owner of record of any Restricted
Shares you qualify to receive pursuant to this Award Agreement, you will be
entitled to receive cash dividends and to vote such Restricted Shares; subject
to the treatment of the Award upon termination of your employment before the
particular record date for determining shareholders of record entitled to the
payment of the cash or Share-based dividends or to vote.
With respect to any dividends that are
paid in Shares between the date of this Award and your receipt of Common Shares
pursuant to a vesting event, such Shares shall be subject to the same vesting
restrictions contained in Section 1 as the Restricted Shares with respect to
which the dividend is paid. When Shares are delivered to you or your
duly-authorized transferee pursuant to the vesting of the Restricted Shares, you
or your duly-authorized transferee shall also be entitled to receive, with
respect to each Common Share delivered, a number of Common Shares equal to the
Share-based dividends which were declared and paid to the holders of Common
Shares between the Grant Date and the date such Common Share is issued to you,
after your interest vests. To the extent that either (i) your
employment ends before vesting of the Restricted Shares subject to this Award or
(ii) your employment does not result in full vesting of this Award, you will
forfeit all Share-based dividends (but not cash dividends) attributable to all
such non-vested Restricted Shares.
4. Issuance
and Vesting of Restricted Shares. The Company will hold all
Restricted Shares in escrow, in book entry form, until vesting
occurs. You will be reflected as the owner of record on the Company’s
books and records of any Restricted Shares credited to you pursuant to this
Award Agreement. If you forfeit any Restricted Shares, they will be
transferred back to the Company. If the Restricted Shares vest, upon
satisfaction of any tax withholding requirements, your Restricted Shares will be
reflected on the Company’s books and records as vested Common
Shares. You may request a physical certificate for your vested Common
Shares, and the Committee, in its discretion, may honor such
request.
5. Section
83(b) Election Notice. If you make an election under Section
83(b) of the Internal Revenue Code of 1986 (the “Code”), as amended, with
respect to the Shares underlying your Restricted Shares (a “Section 83(b)
election”), you agree to provide a copy of such election to the Company
within 10 days after filing that election with the Internal Revenue
Service. Exhibit C contains a
suggested form of Section 83(b) election.
6. Designation
of Beneficiary. Notwithstanding anything to the contrary
contained herein or in the Plan, following the execution of this Award
Agreement, you may expressly designate a death beneficiary (the “Beneficiary”) to your
interest, if any, in this Award and any underling Shares. You shall
designate the Beneficiary by completing and executing a designation of
beneficiary agreement substantially in the form attached hereto as Exhibit D (the “Designation of Death
Beneficiary”) and delivering an executed copy of the Designation of
Beneficiary to the Company. To the extent you do not duly designate a
beneficiary who survives you, your estate will automatically be your
beneficiary.
7. Restrictions
on Transfer of Award. Your rights under this Award Agreement may not be
sold, pledged, or otherwise transferred without the prior written consent of the
Committee except as hereinafter provided. If Section 1 allows you to
make a transfer of the Restricted Shares subject to this Award, you may transfer
the Restricted Shares as follows:
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(i)
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by
instrument to an inter vivos or testamentary trust (or other entity) in
which each beneficiary is a Permitted Transferee, as defined in subsection
(ii) of this Section, or
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(ii)
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by
gift to charitable institutions or by gift or transfer for consideration
to any of the following relatives of yours: any child, xxxxxxxxx,
grandchild, parent, stepparent, grandparent, spouse, former spouse,
domestic partner, xxxxxxx, niece, nephew, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law, or sister-in-law, and shall
include adoptive relationships (each a “Permitted
Transferee”).
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Any
Permitted Transferee of your rights shall succeed and be subject to all of the
terms of this Award Agreement and the Plan.
8. Code
Section 280G. Notwithstanding the other provisions of this Award
Agreement or of the Plan (but subject to any contrary provisions of any separate
unexpired employment or other agreement between you and the Company), in the
event that any issuance of Shares, payment, or benefit (collectively, the
“Payments”) received or to be received by you pursuant to this Award or the Plan
or otherwise would result in a “parachute payment” as described in section 280G
of the Internal Revenue Code of 1986, as amended (or any successor provision),
such Payments shall not, in the aggregate, exceed the maximum amount that may be
paid to you without triggering golden parachute penalties under Section 280G and
related provisions of the Internal Revenue Code, as determined in good faith by
the Company’s independent auditors. The foregoing reduction, however,
shall only apply if it increases the net amount you would realize from Payments,
after payment of income and excise taxes on such Payments. If any
benefits must be reduced hereunder, they shall be cut back in the priority order
designated by the Company. If you receive an amount in excess of the
limit set forth in this section, you shall repay the excess amount to the
Company on demand, with interest at the rate provided for in Internal Revenue
Code Section 1274(b)(2)(B) (or any successor provision). The Company
and you agree to cooperate with each other in connection with any administrative
or judicial proceedings concerning the existence or amount of golden parachute
penalties.
9. Conditions
on Issuance of Shares; Transfer Restrictions. Notwithstanding
any other provision of the Plan or of this Award Agreement: (i) the Committee
may condition your receipt of Shares on your execution of a shareholder
agreement imposing terms generally applicable to other
similarly-situated employee-shareholders; and (ii) any Shares issued pursuant to
this Award Agreement shall be non-transferable except in accordance with Section
11 above, until the first day of the seventh month following the termination of
your employment.
10. [RESERVED]
11. Taxes. Except
to the extent otherwise specifically provided in an employment agreement between
you and the Company, by signing this Award Agreement, you acknowledge that you
shall be solely responsible for the satisfaction of any taxes that may arise
pursuant to this Award, including taxes arising under Internal Revenue Code
Sections 409A (regarding deferred compensation) or 4999 (regarding golden
parachute excise taxes), and that neither the Company nor the Administrator
shall have any obligation whatsoever to pay such taxes or otherwise indemnify or
hold you harmless from any or all of such taxes. The Committee shall
have the sole discretion to interpret the requirements of the Code, including
Section 409A, for purposes of the Plan and this Award Agreement.
12. Notices. Any
notice or communication required or permitted by any provision of this Award
Agreement to be given to you shall be in writing and shall be delivered
electronically, personally, or sent by certified mail, return receipt requested,
addressed to you at the last address that the Company had for you on its
records. Each party may, from time to time, by notice to the other
party hereto, specify a new address for delivery of notices relating to this
Award Agreement. Any such notice shall be deemed to be given as of
the date such notice is personally or electronically delivered or properly
mailed.
13. Binding
Effect. Except as otherwise provided in this Award Agreement
or in the Plan, every covenant, term, and provision of this Award Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, legatees, legal representatives, successors, transferees, and
assigns.
14. Modifications. This
Award Agreement may be modified or amended at any time, in accordance with
Section 22 of the Plan and provided that you must consent in writing to any
modification that adversely and materially affects any rights or obligations
under this Award Agreement (with such an affect being presumed to arise from a
modification that would trigger a violation of Section 409A of the
Code).
15. Headings. Section
and other headings contained in this Award Agreement are for reference purposes
only and are not intended to describe, interpret, define or limit the scope or
intent of this Award Agreement or any provision hereof.
16. Severability. Every
provision of this Award Agreement and of the Plan is intended to be
severable. If any term hereof is illegal or invalid for any reason,
such illegality or invalidity shall not affect the validity or legality of the
remaining terms of this Award Agreement.
17. Counterparts. This
Award Agreement may be executed by the parties hereto in separate counterparts,
each of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute one and the same instrument.
18. Investment
Purposes. By executing this Award, you acknowledge that you
are receiving and will be holding your Restricted Shares for investment purposes
only for your own account, and not with a view to your resale in connection
with, or with your intent to participate directly or indirectly in, any
distribution of such Shares within the meaning of the Securities Act of 1933, as
amended.
19. Plan
Governs. By signing this Award Agreement, you acknowledge that
you have received a copy of the Plan and that your Award Agreement is subject to
all the provisions contained in the Plan, the provisions of which are made a
part of this Award Agreement and your Award is subject to all interpretations,
amendments, rules and regulations which from time to time may be promulgated and
adopted pursuant to the Plan. In the event of a conflict between the
provisions of this Award Agreement and those of the Plan, the provisions of the
Plan shall control.
20. Not a
Contract of Employment. By executing this Award Agreement you
acknowledge and agree that (i) any person who is terminated before full vesting
of an award, such as the one granted to you by this Award, could claim that he
or she was terminated to preclude vesting; (ii) you promise never to make such a
claim; (iii) nothing in this Award Agreement or the Plan confers on you any
right to continue an employment, service or consulting relationship with the
Company, nor shall it affect in any way your right or the Company’s right to
terminate your employment, service, or consulting relationship at any time, with
or without Cause; and (iv) the Company would not have granted this Award to you
but for these acknowledgements and agreements.
21. Securities
Law Restrictions. Regardless of whether the offering and sale
of Shares under the Plan have been registered under the Securities Act of 1933,
as amended (the “Securities Act”), or
have been registered or qualified under the securities laws of any state, the
Company at its discretion may impose restrictions upon the sale, pledge or other
transfer of such Shares (including the placement of appropriate legends on stock
certificates or the imposition of stop-transfer instructions) if, in the
judgment of the Company, such restrictions are necessary or desirable in order
to achieve compliance with the Securities Act or the securities laws of any
state or any other law or to enforce the intent of this Award.
22. Governing
Law. The laws of the State of Delaware shall govern the
validity of this Award Agreement, the construction of its terms, and the
interpretation of the rights and duties of the parties hereto.
23. Employment
Agreement Provision [INCLUDE
IF EMPLOYEE/CONSULTANT
HAS
AN EMPLOYMENT/CONSULTING AGREEMENT
THAT ADDRESSES AWARD VESTING] By executing this
Award, you acknowledge and agree that your rights upon a termination of
employment before full vesting of this Award will be determined under Section
_____ of your employment agreement with the Company and
________________________, dated as of ______________ _____, 20__. If
there is a conflict between this Award Agreement and your employment agreement,
the terms of your employment agreement will control.
BY YOUR
SIGNATURE BELOW, along with the signature of the Company’s representative, you
and the Company agree that the Restricted Shares are awarded under and governed
by the terms and conditions of this Award Agreement and the Plan.
By: _______________________________
Name:
Title:
PARTICIPANT
The
undersigned Participant hereby accepts the terms of this Award Agreement and the
Plan.
By: _________________________________
Name of
Participant: ________________________
EXHIBIT
A
AMENDED
AND RESTATED 2004 STOCK INCENTIVE PLAN
_______________________________
Plan
Document
______________________________
EXHIBIT
B
AMENDED
AND RESTATED 2004 STOCK INCENTIVE PLAN
_______________________________
Plan
Prospectus
______________________________
EXHIBIT
C
AMENDED
AND RESTATED 2004 STOCK INCENTIVE PLAN
_______________________________
Section
83(b) Election Form
______________________________
Attached
is an Internal Revenue Code Section 83(b) Election Form. IF YOU WISH TO MAKE A SECTION 83(b)
ELECTION, YOU MUST DO SO WITHIN 30 DAYS AFTER THE DATE THE RESTRICTED SHARES
COVERED BY THE ELECTION WERE TRANSFERRED TO YOU. In order to
make the election, you must completely fill out the attached form and file one
copy with the Internal Revenue Service office where you file your tax
return. In addition, one copy of the statement also must be submitted
with your income tax return for the taxable year in which you make this
election. Finally, you also must submit a copy of the election form
to the Company within 10 days after filing that election with the Internal
Revenue Service. A Section 83(b) election normally cannot be
revoked.
AMENDED
AND RESTATED 2004 STOCK INCENTIVE PLAN
________________________________________________________
Election
to Include Value of Restricted Shares in Gross Income
in
Year of Transfer Under Internal Revenue Code Section 83(b)
_________________________________________________________
Pursuant
to Section 83(b) of the Internal Revenue Code, I hereby elect within 30 days
after receiving the property described herein to be taxed immediately on its
value specified in item 5 below.
1. My
General Information:
Name: ________________________________
Address: ________________________________
________________________________
S.S.N.
or
T.I.N.: __________________________
2. Description
of the property with respect to which I am making this election:
____________________
shares of ___________ stock of Aeolus Pharmaceuticals, Inc. (the “Restricted
Shares”).
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3.
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The
Restricted Shares were transferred to me on ______________ ___,
20__. This election relates to the 20____ calendar taxable
year.
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4. The
Restricted Shares are subject to the following restrictions:
The
Restricted Shares are forfeitable until they are earned in accordance with
Section 1 of the Aeolus Pharmaceuticals, Inc. Amended and Restated 2004 Stock
Incentive Plan (“Plan”) the Restricted
Share Award Agreement (“Award Agreement”)
made under the Aeolus Pharmaceuticals, Inc. Amended and Restated 2004 Stock
Incentive Plan. The Restricted Shares generally are not transferable
until my interest becomes vested and nonforfeitable, pursuant to the Award
Agreement and the Plan.
5. Fair
market value:
The fair
market value at the time of transfer (determined without regard to any
restrictions other than restrictions which by their terms never will lapse) of
the Restricted Shares with respect to which I am making this election is $_____
per share.
6. Amount
paid for Restricted Shares:
The
amount I paid for the Restricted Shares is $____ per share.
7. Furnishing
statement to employer:
A copy of
this statement has been furnished to my employer, ______________. If
the transferor of the Restricted Shares is not my employer, that entity also has
been furnished with a copy of this statement.
8. Award
Agreement or Plan not affected:
Nothing
contained herein shall be held to change any of the terms or conditions of the
Award Agreement or the Plan.
Dated:
____________ __, 20__.
______________________________
Taxpayer
EXHIBIT
D
AEOLUS
PHARMACEUTICALS, INC.
AMENDED
AND RESTATED 2004 STOCK INCENTIVE PLAN
_________________________________
Designation
of Death Beneficiary
_________________________________
In
connection with the Awards designated below that I have received pursuant to the
Aeolus Pharmaceuticals, Inc. Amended and Restated 2004 Stock Incentive Plan, I
hereby designate the person specified below as the beneficiary upon my death of
my interest in such Awards. This designation shall remain in effect
until revoked in writing by me.
Name of
Beneficiary: _________________________
Address: _________________________
_________________________
_________________________
Social
Security
No.: __________________________
This
beneficiary designation relates to any and all of my rights under the following
Award or Awards:
¨ any
Award that I have received or ever receive under the Plan.
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¨
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the
_________________ Award that I received pursuant to an award agreement
dated _________ __, ____ between myself and the
Company.
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I
understand that this designation operates to entitle the above named
beneficiary, in the event of my death, to any and all of my rights under the
Award(s) designated above from the date this form is delivered to the Company
until such date as this designation is revoked in writing by me, including by
delivery to the Company of a written designation of beneficiary executed by me
on a later date.
Date: ________________________
By: _______________________
Name of
Participant
Sworn to
before me this
____day
of ____________, 20__
___________________________
Notary
Public
County
of _________________
State
of __________________
