JAVELIN PHARMACEUTICALS, INC. DEFERRED STOCK UNIT AGREEMENT
Exhibit 10.3
2005 OMNIBUS STOCK INCENTIVE PLAN
This deferred stock unit agreement (the “Agreement”), dated __________ (the "Grant Date"), is delivered by Javelin Pharmaceuticals, Inc. (the "Company") to ______________ (the "Grantee").
1. Grant of Deferred Stock Units. The Company has established
a DSU Account on the Grantee's behalf under the Javelin Pharmaceuticals, Inc, 2005 Omnibus Stock Incentive Plan (the "Plan"), and credited it with DSUs as provided on Schedule I attached hereto. Unless otherwise defined herein, capitalized terms used in this Agreement shall have the meaning ascribed to such terms in the Plan.
2. Nature of Deferred Stock Unit. The DSUs represent
an unfunded and unsecured promise by the Company to pay amounts in the future in accordance with this Award. The DSUs do not entitle Grantee to vote any Shares or to receive dividends. The DSUs may not be transferred, assigned, hypothecated, pledged, or otherwise encumbered or subjected to any lien, obligation, or liability of the Grantee.
3. Vesting of the DSUs. The DSUs will vest
as provided on Schedule I. Furthermore, in the event of Xxxxxxx's death or disability, the DSUs will become fully vested.
4. Payment of the DSUs. The Company will distribute a
Share to Grantee for each vested DSU credited to Xxxxxxx's DSU Account on the distribution date(s) provided on Schedule I. Notwithstanding the above, if a 409A Change in Control Event occurs as provided in Section 5 of this Agreement, the DSUs will become immediately distributable as provided therein.
5. 409A Change in Control Event. A 409A Change in Control
Event shall mean a change in the effective control of the Company. A change in the effective control of the Company shall occur on the date that either (A) any one person, or more than one person acting as a group (as defined in Treasury Regulation Section 1.409A-3(i)(5)(v)(B)), acquires (or has acquired during the twelve (12) month period ending on the date of the most recent acquisition by such person or persons) ownership of stock of Company possessing [thirty (30%)] percent or more of the total
voting power of the stock of Company; or (B) a majority of members of Company’s Board of Directors is replaced during any twelve (12) month period by Directors whose appointment or election is not endorsed by a majority of the members of the Company’s Board of Directors prior to the date of the appointment or election, provided that this sub-section (B) is inapplicable where a majority shareholder of Company is another corporation.
In the event a Change in Control event or Corporate Transaction occurs which is not a 409A Change in Control Event, all DSUs under this Agreement shall become fully vested immediately. The DSUs will not become distributable (because of the Change in Control event or Corporate Transaction), however, but
will continue to be subject to the distribution dates in Schedule I.
In the event a Change in Control event or Corporate Transaction occurs which is a 409A Change in Control Event, all DSUs under this Agreement shall become fully vested and distributable immediately. The Company will distribute a Share to Grantee for each DSU credited to Xxxxxxx's DSU Account under this Agreement
and in full satisfaction of the DSUs as soon as administratively feasible and in no event later than 60 days from the date of the 409A Change in Control Event.
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6. No Implied Rights. Nothing contained in this
Agreement or in the Plan shall confer upon Grantee any right with respect to the terms of or continuation of Xxxxxxx’s employment with the Company, or to interfere with the right of the Company to terminate Xxxxxxx’s employment at any time, with or without cause.
7. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of Delaware, without regard to conflict of laws provisions.
8. Taxes. The Company does not make any representation
to Grantee, by way of this Agreement or otherwise, with respect to the actual tax consequences of the DSUs granted or any subsequent disposition of the Shares acquired under the DSUs. Xxxxxxx agrees to make appropriate arrangements with the Company for the satisfaction of all federal, state, local, and foreign income and employment tax withholding requirements applicable to the DSUs. Xxxxxxx acknowledges and agrees that the Company may refuse to deliver Shares if such withholding amounts, if required,
are not satisfied.
9. Internal Revenue Code Section 83(b). Pursuant to Section
83(b) of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), the Grantee will not be entitled to make an election to be taxed upon grant of the DSUs.
10. Internal Revenue Code Section 409A. This Agreement
is intended to comply with the requirements of Code Section 409A, and the Agreement shall be interpreted in accordance with such requirements. Notwithstanding any other provisions of this Agreement to the contrary, any payment otherwise due to Grantee upon Xxxxxxx’s termination from employment with the Company shall not be made until and unless such termination from employment constitutes a “Separation from Service”, as such term is defined under Code Section 409A. The
preceding provision shall have no effect on payments otherwise due or payable under this Agreement to Grantee or on Xxxxxxx’s behalf, which are not on account of Xxxxxxx’s termination from employment with the Company, including as a result of Xxxxxxx’s death. Furthermore, if the Company reasonably determines that Grantee is a “Specified Employee” as defined by Code Section 409A, upon termination of Xxxxxxx’s employment for any reason other than death (whether by
resignation or otherwise), no payment may be paid to Grantee earlier than six months after the date of termination of Grantee’s employment if such payment would violate Code Section 409A, and the regulations issued thereunder, and payment shall be made, on the date that is six months and one day after the termination of Grantee’s employment. Each payment made under this agreement shall be designated as a “separate payment” for purposes of Code Section 409A.
11. Agreement Subject to Plan. This
Agreement is made pursuant to the Plan, the terms of which are incorporated herein by reference, and in all respects shall be interpreted in accordance with the Plan. In the event of a conflict between the terms and conditions of the Plan and this Agreement, the terms and conditions of the Plan shall prevail. In the event of any ambiguity in the Agreement or any matters as to which the Agreement is silent, the Plan shall govern including, without limitation, the provisions thereof pursuant
to which the Committee has the power, among others, to (i) interpret the Plan and Awards related thereto, (ii) prescribe, amend and rescind rules and regulations relating to the Plan, and (iii) make all other determinations deemed necessary or advisable for the administration of the Plan. Its determination shall be conclusive and binding upon Grantee, and shall be given the maximum deference permitted by law. Xxxxxxx acknowledges by signing this Agreement that he has received
and reviewed a copy of the Plan.
12. Entire Agreement. This Agreement and the Plan constitute the entire agreement between the Company
and Grantee with respect to the DSUs granted herein.
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The undersigned hereby acknowledges receipt of the foregoing Agreement and a copy of the Plan, and agrees to be bound by all of the terms and conditions herein and therein with respect to the RSUs granted herein.
GRANTEE:
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Signature |
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Print Name |
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Address (Street)
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(City, State, Zip Code)
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Social Security Number
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Dated: |
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SCHEDULE I
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Grant Date: |
__________ |
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Number of RSUs: |
__________ (“Total Units”) |
| Vesting Schedule: |
| Portion of Total Units | Vesting Date |
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Distribution Schedule: |
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| Portion of Total Units | Distribution Date |
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