Exhibit 10.6
RESTRICTED STOCK UNIT AWARD AGREEMENT
THIS AGREEMENT, dated as of _______ __, 2005, is between Enzon
Pharmaceuticals, Inc., a Delaware corporation (the "Company"), and
_________________________, an individual resident of the State of
___________________ ("Employee").
RECITALS
A. The Company wishes to grant to Employee, effective as of the date of
this Agreement, an award of restricted stock units of the Company's common
stock, par value $.01 per share (the "Common Stock"), on the terms and subject
to the conditions set forth in this Agreement and the Company's 2001 Stock
Incentive Plan.
B. Employee desires to accept such grant.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto hereby agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms have the
meanings set forth below:
"Acquiring Person" shall mean any "person" (as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) who or which, together with all Affiliates and Associates of
such person, is the "beneficial owner" (as defined in Rule 13d-3 promulgated
under the Exchange Act), directly or indirectly, of securities of the Company
representing 35% or more of the combined voting power of the Company's then
outstanding securities, but shall not include the Company, or any subsidiary of
the Company.
"Affiliate" and "Associate" shall have the respective meanings ascribed
to such terms in Rule 12b-2 promulgated under the Exchange Act.
"Award" has the meaning ascribed to such term in Section 2 hereof.
"Board" means the Board of Directors of the Company.
A "Change in Control" shall mean:
(a) the public announcement (which, for purposes of this definition,
shall include, without limitation, a report filed pursuant to Section 13(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act") that any
person, entity or "group", within the meaning of Section 13(d)(3) or 14(d)(2) of
the Exchange Act, other than the Company or any of its subsidiaries, has become
the beneficial owner (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 35% or more of the combined voting power of the Company's then
outstanding voting securities in a transaction or series of transactions; or
(b) the "Continuing Directors" (as defined below) cease to constitute a
majority of the Company's Board of Directors; or
(c) the shareholders of the Company approve:
(i) any consolidation or merger of the Company in which the
Company is not the continuing or surviving corporation; or
(ii) any consolidation or merger of the Company following
which either the Company or a corporation that, prior to the merger or
consolidation, was a subsidiary of the Company, shall be the surviving
entity and a majority of the then outstanding voting securities of the
Company (the "Outstanding Company Voting Securities") is owned by a
Person or Persons (as defined in Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended) who were not "beneficial
owners" of a majority of the Outstanding Company Voting Securities
immediately prior to such merger or consolidation;
other than a merger of the Company in which shareholders of
the Company immediately prior to the merger have the same proportionate
ownership of stock of the surviving corporation immediately after the
merger; or
(d) any sale, lease, exchange or other transfer (in one transaction or
a series of related transactions) of all or substantially all of the assets of
the Company; or
(e) any plan of liquidation or dissolution of the Company; or
(f) the majority of the Continuing Directors determine in their sole
and absolute discretion that there has been a change in control of the Company.
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" has the meaning specified in Recital A hereof.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Continuing Director" shall mean any person who is a member of the
Board of Directors of the Company, who, while such a person is a member of the
Board of Directors, is not an Acquiring Person (as hereinafter defined) or an
Affiliate or Associate (as hereinafter defined) of an Acquiring Person, or a
representative of an Acquiring Person or of any such Affiliate or Associate, and
who (A) was a member of the Board of Directors on the date of this Agreement or
(B) subsequently becomes a member of the Board of Directors, if such person's
initial nomination for election or initial election to the Board of Directors is
recommended or approved by a majority of the Continuing Directors.
"Plan" means the Company's 2001 Stock Incentive Plan, as amended from
time to time.
"Restricted Stock Units" means the right to receive Vested Shares upon
their vesting in accordance with Section 3 below.
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"Shares" means, collectively, the shares of Common Stock subject to the
Award, whether or not such shares are Vested Shares.
"Vested Shares" means the Shares with respect to which the Restricted
Stock Units have vested at any particular time.
2. AWARD. The Company, effective as of the date of this Agreement,
hereby grants to Employee _______________ Restricted Stock Units (the "Award")
representing the right to receive ____________ Vested Shares, subject to the
terms and conditions set forth herein and in the Plan.
3. VESTING.
(a) Subject to the terms and conditions of this Agreement, the
Restricted Stock Units awarded hereunder to Employee shall vest and become the
right to receive Vested Shares in accordance with the following schedule:
Percentage or Number of
On Each of the Following Dates Shares that Vest
--------------------------------- -------------------------------
________ __, 200_ __%
________ __, 200_ __%
________ __, 200_ __%
________ __, 200_ __%
(b) Notwithstanding the vesting provisions contained in Section 3(a)
above, but subject to the other terms and conditions set forth herein, if
Employee has been continuously employed by the Company until the date of a
Change In Control of the Company, all of the Restricted Stock Units shall
immediately vest on the date of such Change In Control.
(c) In the event of the disability (within the meaning of Section
22(e)(3) of the Code) or death of Employee, if Employee has been continuously
employed by the Company until the date of such disability or death, Employee or
his estate shall become immediately vested, as of the date of such disability or
death, in all of the Restricted Stock Units subject to the Award.
(d) Except as provided in Section 3(c) and any effective employment agreements
that Employee might have with the Company, if Employee ceases to be an employee
for any reason prior to the vesting of the Restricted Stock Units pursuant to
Sections 3(a) or 3(b) hereof, Employee's rights to all of the Restricted Stock
Units (and the Shares subject to the Award) not vested on the date that Employee
ceases to be an employee shall be immediately and irrevocably forfeited and the
Employee will retain no rights with respect to the forfeited units.
4. ADDITIONAL RESTRICTION ON TRANSFER OF RESTRICTED STOCK UNITS.
The Restricted Stock Units cannot be sold, assigned, transferred,
gifted, pledged, hypothecated, or in any manner encumbered or disposed of at any
time prior to delivery of the Shares underlying the Restricted Stock Units after
the Restricted Stock Units have vested pursuant to Section 3 above.
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5. ISSUANCE AND CUSTODY OF CERTIFICATE; REPRESENTATIONS OF EMPLOYEE.
(a) Subject to the restrictions in this Section 5, upon vesting of the
Restricted Stock Units and following payment of any applicable withholding taxes
pursuant to section 8 of this Agreement, the Company shall promptly cause to be
issued and delivered to Employee a certificate or certificates evidencing such
Vested Shares, free of any restrictive legends and registered in the name of
Employee or in the name of Employee's legal representatives, beneficiaries or
heirs, as the case may be, and shall cause such certificate or certificates to
be delivered to Employee or Employee's legal representatives, beneficiaries or
heirs.
(b) The issuance of any Common Stock in accordance with this Award
shall only be effective at such time that the sale or issuance of Common Stock
pursuant to this Agreement will not violate any state or federal securities or
other laws.
(c) At any time after the vesting of the Restricted Stock Units and
prior to the issuance of the Vested Shares, if the issuance of the Vested Shares
to the Employee is prohibited due to limitations under this Section 5, the
Company shall use its reasonable best efforts to remove such limitations, unless
such limitations relate solely to Employee's personal situation. If such
limitations relate solely to Employee's personal situation, the Company will use
its reasonable best efforts to cooperate with the Employee in resolving such
limitation.
6. RIGHTS AS SHAREHOLDER. Prior to the Restricted Stock Units vesting
and Employee receiving his shares of Common Stock underlying the Restricted
Stock Units pursuant to Section 5 above, Employee shall not have ownership or
rights of ownership of any Common Stock underlying the Restricted Stock Units
awarded hereunder. Employee shall not be entitled to receive dividend
equivalents on the Restricted Stock Units awarded.
7. DISTRIBUTIONS AND ADJUSTMENTS. In accordance with Section 4(C) of
the Plan, the Award shall be subject to adjustment in the event that any
distribution, recapitalization, reorganization, merger or other event covered by
Section 4(C) of the Plan shall occur.
8. TAXES. In order to provide the Company with the opportunity to claim
the benefit of any income tax deduction which may be available to it in
connection with this restricted stock unit award, and in order to comply with
all applicable federal or state tax laws or regulations, the Company may take
such action as it deems appropriate to insure that, if necessary, all applicable
federal or state income and social security taxes are withheld or collected from
Employee.
9. EMPLOYEE'S EMPLOYMENT. Nothing in this Agreement shall confer upon
Employee any right to continue in the employ of the Company or any of its
subsidiaries or interfere with the right of the Company or its subsidiaries, as
the case may be, to terminate Employee's employment or to increase or decrease
Employee's compensation at any time.
10. NOTICES. All notices, claims, certificates, requests, demands, and
other communications hereunder shall be in writing and shall be deemed to have
been duly given and delivered if personally delivered or if sent by nationally
recognized overnight courier, by facsimile or by registered or certified mail,
return receipt requested and postage prepaid, addressed as follows:
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(a) If to the Company, to it at:
Enzon Pharmaceuticals, Inc.
000 Xxxxx 000/000
Xxxxxxxxxxx, Xxx Xxxxxx 00000
Attn: General Counsel
(b) If to Employee, to him at such Employee's address as most recently
supplied to the Company and set forth in the Company's records; or
(c) to such other address as the party to whom notice is to be given
may have furnished to the other party in writing in accordance herewith.
Any such notice or communication shall be deemed to have been received
(i) in the case of personal delivery, on the date of such delivery (or if such
date is not a business day, on the next business day), (ii) in the case of
nationally-recognized overnight courier, on the next business day after the date
sent, (iii) in the case of facsimile transmission, when received (or if not sent
on a business day, on the next business day after the date sent), and (iv) in
the case of mailing, on the third business day following the date on which the
piece of mail containing such communication is posted.
11. WAIVER OF BREACH. The waiver by either party of a breach of any
provision of this Agreement must be in writing and shall not operate or be
construed as a waiver of any other or subsequent breach.
12. UNDERTAKING. Both parties hereby agree to take whatever additional
actions and execute whatever additional documents either party may in their
reasonable judgment deem necessary or advisable in order to carry out or effect
one or more of the obligations or restrictions imposed on the other party under
the provisions of this Agreement.
13. PLAN PROVISIONS CONTROL. The Award is made subject to the terms and
provisions of the Plan. In the event that any provision of the Agreement
conflicts with or is inconsistent in any respect with the terms of the Plan, the
terms of the Plan shall control.
14. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware (without giving effect to
principles of conflicts of laws).
15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and each such counterpart shall be deemed to be an original, but
all such counterparts together shall constitute but one agreement.
16. ENTIRE AGREEMENT. This Agreement (and the other writings
incorporated by reference herein, including the Plan) constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior or contemporaneous written or oral negotiations,
commitments, representations, and agreements with respect thereto.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
ENZON PHARMACEUTICALS, INC.
By:
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Name:
Title:
EMPLOYEE
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Name:
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