Pursuant to the Deferred Issuance Restricted Stock Bonus Grant Notice (Grant Notice
this Deferred Issuance Restricted Stock Bonus Agreement
(collectively, the Award
) and in
consideration of your past services, IDM Pharma
, Inc. (the Company
) has awarded you a deferred
issuance restricted stock bonus under its 2000 Stock Plan (the Plan
) and its 2008 Retention
Compensation Plan and its accompanying Participation Agreement (the Retention Plan) for the
number of shares of the Companys Common Stock subject to the Award as indicated in the Grant
Notice. Your Award is granted to you effective as of the Date of Grant set forth in the Grant
Notice for this Award (the Effective Date
). Capitalized terms not explicitly defined in this
Deferred Issuance Restricted Stock Bonus Agreement
but defined in the Plan or the Retention Plan
shall have the same definitions as in the Plan or Retention Plan.
1. Vesting. Subject to the limitations contained herein, your Award will vest in
accordance with the vesting schedule provided in the Grant Notice, provided that vesting will cease
upon the termination of your Continuous Service. Your Award is also subject to the vesting
acceleration provisions set forth in the Retention Plan.
2. Number of Shares. The number of shares subject to your Award may be adjusted from
time to time for capitalization adjustments, as provided in the Section 12(a) of the Plan.
3. Securities Law Compliance. You may not be issued any shares under your Award
unless the shares are either (i) then registered under the Securities Act or (ii) the Company has
determined that such issuance would be exempt from the registration requirements of the Securities
Act. Your Award must also comply with other applicable laws and regulations governing the Award,
and you will not receive such shares if the Company determines that such receipt would not be in
material compliance with such laws and regulations.
4. Limitations on Transfer. Your Award is not transferable, except by will or by the
laws of descent and distribution. In addition to any other limitation on transfer created by
applicable securities laws, you agree not to assign, hypothecate, donate, encumber or otherwise
dispose of any interest in any of the shares of Common Stock held by you under the Award until the
shares are issued to you in accordance with Section 6 of this Agreement. After the shares have
been issued to you, you are free to assign, hypothecate, donate, encumber or otherwise dispose of
any interest in such shares provided that any such actions are in compliance with the provisions
herein and applicable securities laws.
5. Dividends. You shall be entitled to receive payments equal to any cash dividends
and other distributions paid with respect to a corresponding number of shares covered by your
Award, provided that if any such dividends or distributions are paid in shares, the Fair Market
Value of such shares shall be converted into additional shares covered by the Award, and
further provided that such additional shares shall be subject to the same forfeiture
restrictions and restrictions on transferability as apply to the shares subject to the Award with
respect to which they relate.
(a) Date of Issuance. The Company will issue to you a number of shares of the
Companys Common Stock equal to the number of vested shares subject to your Award, including any
additional shares received pursuant to Section 5 above that relate to those vested shares, on the
earlier of (i) the sixty (60) month anniversary of the Effective Date, (ii) in the event of your
Qualifying Termination that is a separation from service from the Company and its Affiliates for
purposes of Section 409A of the Code, within twenty (20) days following your satisfaction of the
conditions required for an issuance of such vested shares to you as set forth in Section 5(e) the
Retention Plan, or (iii) your death or Disability, as defined below.
(b) Notwithstanding anything to the contrary set forth herein, if at the time the shares would
otherwise be issued to you as a result of your Qualifying Termination, you are subject to the
distribution limitations contained in Code Section 409A applicable to key employees as defined in
Code Section 416(i), share issuances to you as a result of your Qualifying Termination shall not be
made before the date which is six (6) months following the date of your Qualifying Termination, or,
if earlier, the date of your death that occurs within such six (6) month period.
(c) Notwithstanding anything to the contrary set forth herein, if the date of issuance of your
shares would occur on a date during which you are prohibited by Company policy or applicable
securities or exchange rules from trading the stock of the Company, the vested shares shall not be
issued to you until the earlier of (i) the next business date during which trading Company shares
is not prohibited, or (ii) sixty (60) days following the date the shares would otherwise be issued
to you pursuant to this Section 6.
(d) For purposes of this Agreement, Disability means you are (i) unable to engage in any
substantial gainful activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or can be expected to last for a continuous period of not
less than twelve (12) months, or (ii) by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be expected to last for a continuous
period of not less than twelve (12) months, receiving income replacement benefits for a period of
not less than three (3) months under an accident and health plan covering employees of the Company.
6. Restrictive Legends. The shares issued under your Award shall be endorsed with
appropriate legends determined by the Company.
7. Award not a Service Contract. Your Award is not an employment or service
contract, and nothing in your Award shall be deemed to create in any way whatsoever any obligation
on your part to continue in the employ of the Company or an Affiliate, or on the part of the
Company or an Affiliate to continue your employment. In addition, nothing in your Award shall
obligate the Company or an Affiliate, their respective stockholders, boards of directors, Officers
or Employees to continue any relationship that you might have as a Director or Consultant for the
Company or an Affiliate.
8. Withholding Obligations.
(a) On or before the time you receive a distribution of shares pursuant to your Award, or at
any time thereafter as requested by the Company, you hereby authorize withholding from payroll
and/or any other amounts payable to you, and otherwise agree to make adequate provision for any
sums required to satisfy the federal, state, local and foreign tax withholding obligations of the
Company or an Affiliate, if any, which arise in connection with your Award.
(b) Unless the tax withholding obligations of the Company and/or any Affiliate are satisfied,
the Company shall have no obligation to issue a certificate for such shares of Common Stock subject
to your Award.
9. Unsecured Obligation. Your Award is unfunded, and as a holder of a vested Award,
you shall be considered an unsecured creditor of the Company with respect to the Companys
obligation, if any, to issue shares pursuant to this Agreement. You shall not have voting or any
other rights as a stockholder of the Company with respect to the shares purchased pursuant to this
Agreement until such shares are issued to you pursuant to Section 6 of this Agreement. Upon such
issuance, you will obtain full voting and other rights as a stockholder of the Company. Nothing
contained in this Agreement, and no action taken pursuant to its provisions, shall create or be
construed to create a trust of any kind or a fiduciary relationship between you and the Company or
any other person.
10. Notices. Any notices provided for in your Award or the Plan shall be given in
writing and shall be deemed effectively given upon receipt or, in the case of notices delivered by
the Company to you, five (5) days after deposit in the United States mail, postage prepaid,
addressed to you at the last address you provided to the Company.
(a) The rights and obligations of the Company under your Award shall be transferable to any
one or more persons or entities, and all covenants and agreements hereunder shall inure to the
benefit of, and be enforceable by the Companys successors and assigns. Your rights and obligations
under your Award may only be assigned with the prior written consent of the Company.
(b) You agree upon request to execute any further documents or instruments necessary or
desirable in the sole determination of the Company to carry out the purposes or intent of your
(c) You acknowledge and agree that you have reviewed your Award in its entirety, have had an
opportunity to obtain the advice of counsel prior to executing and accepting your Award and fully
understand all provisions of your Award.
12. Governing Plan Document. Your Award is subject to all the provisions of the
Plan, the provisions of which are hereby made a part of your Award, and is further subject to all
interpretations, amendments, rules and regulations which may from time to time be promulgated and
adopted pursuant to the Plan. In the event of any conflict between the provisions of your Award
and those of the Plan, the provisions of the Plan shall control.
13. Severability. If all or any part of this Agreement or the Plan is declared by
any court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity
shall not invalidate any portion of this Agreement or the Plan not declared to be unlawful or
invalid. Any Section of this Agreement (or part of such a Section) so declared to be unlawful or
invalid shall, if possible, be construed in a manner which will give effect to the terms of such
Section or part of a Section to the fullest extent possible while remaining lawful and valid.
14. Effect on Other Employee Benefit Plans. The value of the Award subject to this
Agreement shall not be included as compensation, earnings, salaries, or other similar terms used
when calculating the Employees benefits under any employee benefit plan sponsored by the Company
or any Affiliate, except as such plan otherwise expressly provides. The Company expressly reserves
its rights to amend, modify, or terminate any of the Companys or any Affiliates employee benefit
15. Amendment. This Agreement may not be modified, amended or terminated except by
an instrument in writing, signed by you and by a duly authorized representative of the Company.
Notwithstanding the foregoing, this Agreement may be amended solely by the Board by a writing which
specifically states that it is amending this Agreement, so long as a copy of such amendment is
delivered to you, and provided that no such amendment adversely affecting your rights hereunder may
be made without your written consent. Without limiting the foregoing, the Board reserves the right
to change, by written notice to you, the provisions of this Agreement in any way it may deem
necessary or advisable to carry out the purpose of the grant as a result of any change in
applicable laws or regulations or any future law, regulation, ruling, or judicial decision,
provided that any such change shall be applicable only to rights relating to that portion of the
Award which is then subject to restrictions as provided herein.