DARA BIOSCIENCES, INC. 2008 EMPLOYEE, DIRECTOR AND CONSULTANT STOCK PLAN RESTRICTED STOCK AWARD AGREEMENT
Exhibit 4.5
EMPLOYEE, DIRECTOR AND CONSULTANT STOCK PLAN
RESTRICTED STOCK AWARD AGREEMENT
| GRANTED TO |
GRANT DATE | NUMBER OF RESTRICTED STOCK SHARES | ||
This Restricted Stock Award Agreement and all Exhibits hereto (the “Agreement”) is made between DARA BioSciences, Inc., a Delaware corporation (“DARA”), and you, a director of DARA.
XXXX sponsors the DARA BioSciences, Inc. 2008 Employee, Director and Consultant Stock Plan (the “Plan”). This Agreement represents a Stock Award in the form of shares of restricted stock (“Restricted Stock”). A Prospectus describing the Plan has been delivered to you. The Plan itself is available upon request, and its terms and provisions are incorporated herein by reference. When used herein, the terms which are defined in the Plan shall have the meanings given to them in the Plan, as modified herein (if applicable).
The shares of Restricted Stock (the “Restricted Stock Shares”) covered by this Agreement are being awarded to you subject to the following terms and provisions:
| 1. | Subject to the terms and conditions of the Plan and this Agreement, DARA awards to you the number of Restricted Stock Shares shown above. |
| 2. | By signing this Agreement, you acknowledge having read the Prospectus and agree to be bound by all the terms and conditions of the Plan and this Agreement. |
| 3. | The Restricted Stock covered by this Award shall become earned by, and vested in, you in the amounts and on the dates shown on the enclosed Exhibit A. Until it becomes vested, the Restricted Stock shall be held by DARA and shall be subject to cancellation and forfeiture in accordance with Section 5 below. While the Restricted Stock is held by DARA it may not be sold, transferred, pledged, assigned or otherwise alienated or hypothecated. |
| 4. | You agree that you shall comply with (or provide adequate assurance as to future compliance with) all applicable securities laws and income tax laws as determined by XXXX as a condition precedent to the delivery of any shares of DARA Stock pursuant to this Agreement. In addition, you agree that, upon request, you will furnish a letter agreement providing that (a) you will not distribute or resell any of said shares in violation of the Securities Act of 1933, as amended, (b) you will indemnify and hold DARA harmless against all liability for any such violation and (c) you will accept all liability for any such violation. |
| 5. | You acknowledge and agree that upon the termination of your service as a director of DARA your Restricted Stock will vest or be canceled and forfeited as provided in Exhibit A, and any unvested |
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| Restricted Stock shall be returned to DARA. In order to facilitate the transfer to DARA of any Restricted Stock pursuant to the terms hereof, you shall execute the enclosed stock power (Assignment Separate from Certificate). The stock power may be used by XXXX to transfer any unvested Restricted Stock to DARA upon the termination of your service as a director. You further hereby irrevocably appoint (which appointment is coupled with an interest) XXXX as your agent and attorney-in-fact to take any necessary or appropriate action to cause Restricted Stock to be returned to DARA in accordance with the terms hereof, including without limitation executing and delivering stock powers and instruments of transfer, making endorsements and/or making, initiating or issuing instructions or entitlement orders, all in your name and on your behalf. Without limiting the foregoing, you expressly acknowledge and agree that any transfer agent for the Restricted Stock is fully authorized and protected in relying on, and shall incur no liability in acting on, any documents, instruments, endorsements, instructions, orders or communications from DARA in connection with the Restricted Stock or the transfer thereof, and that any such transfer agent is a third party beneficiary of this Agreement. |
| 6. | By executing and returning a Beneficiary Designation Form, you may designate a beneficiary to receive payment in connection with the Restricted Stock awarded hereunder in the event of your death while in service with XXXX. If you do not designate a beneficiary or if your designated beneficiary does not survive you, then your beneficiary will be your estate. A Beneficiary Designation Form has been included in your Award package and may also be obtained by contacting XXXX at the address in Section 7. |
| 7. | The existence of this Award shall not affect in any way the right or power of DARA or its stockholders to make or authorize any or all adjustments, recapitalizations, reorganizations or other changes in DARA’s capital structure or its business, or any merger or consolidation of DARA, or any issue of bonds, debentures, preferred or prior preference stocks ahead of or convertible into, or otherwise affecting the Stock or the rights thereof, or the dissolution or liquidation of DARA, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise. |
| 8. | DARA may, in its sole discretion, decide to deliver any documents related to this grant or future Awards that may be granted under the Plan by electronic means or request your consent to participate in the Plan by electronic means. You hereby consent to receive such documents by electronic delivery and, if requested, agree to participate in the Plan through an on-line or electronic system established and maintained by DARA or another third party designated by XXXX. |
| 9. | Any notice which either party hereto may be required or permitted to give to the other shall be in writing and may be delivered personally, by intraoffice mail, by fax, by recognized courier service, by electronic mail or other electronic means, or via a postal service, postage prepaid, to DARA at DARA BioSciences, Inc.; 0000 Xxxxx xx Xxxxx Xxxx; Xxxxx 000; Xxxxxxx, XX 00000; or to such other electronic mail or postal address and directed to such person as DARA may notify you from time to time; and to you at your electronic mail or postal address as shown on the records of XXXX from time to time, or at such other electronic mail or postal address as you, by notice to DARA, may designate in writing from time to time. Any such notice shall be deemed to have been given upon the earlier of receipt, one (1) business day following delivery to a recognized courier service or five (5) business days following mailing by registered or certified mail. |
| 10. | Regardless of any action DARA or your employer takes with respect to any or all income tax, payroll tax or other tax-related withholding (“Tax-Related Items”), you acknowledge that the ultimate liability for all Tax-Related Items owed by you is and remains your responsibility and that DARA and/or your employer (a) make no representations or undertakings regarding the treatment of any |
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| Tax-Related Items in connection with any aspect of the grant of Restricted Stock, including the grant and vesting of the Restricted Stock, the subsequent sale of shares acquired upon the vesting of the Restricted Stock and the receipt of any dividends; and (b) do not commit to structure the terms of the grant or any aspect of the Restricted Stock to reduce or eliminate your liability for Tax-Related Items. |
In the event DARA determines that it and/or your employer must withhold any Tax-Related Items as a result of your participation in the Plan, you agree as a condition of the grant of the Restricted Stock to make arrangements satisfactory to DARA and/or your employer to enable it to satisfy all withholding requirements, including, but not limited to, withholding any applicable Tax-Related Items from the pay-out of the Restricted Stock. In addition, you authorize DARA and/or your employer to fulfill its withholding obligations by all legal means, including, but not limited to: withholding Tax-Related Items from your wages, salary or other cash compensation your employer pays to you; withholding Tax-Related Items from the cash proceeds, if any, received upon sale of any shares received upon vesting or in payment for your Restricted Stock; and at the time of payment, withholding shares sufficient to meet minimum withholding obligations for Tax-Related Items. Finally, you shall pay to DARA or your employer any amount of Tax-Related Items that DARA or your employer may be required to withhold as a result of your participation in the Plan or the granting of Restricted Stock that cannot be satisfied by the means previously described. XXXX may refuse to issue and deliver shares upon vesting if you fail to comply with any withholding obligation.
| 11. | XXXX is not by the Plan or this Agreement obligated to continue your service as a director of DARA. You acknowledge that (a) the Plan is discretionary in nature and may be suspended or terminated by DARA at any time, (b) the grant of Restricted Stock is a one-time benefit which does not create any contractual or other right to receive future grants of Restricted Stock, or benefits in lieu of Restricted Stock, (c) all determinations with respect to any such future grants, including, but not limited to, the times when Restricted Stock shall be granted, the amount of Restricted Stock to be granted and when such Restricted Stock shall vest, will be at the sole discretion of DARA, (d) your participation in the Plan is voluntary, (e) the value of the Restricted Stock is an extraordinary item of compensation which is outside the scope of your employment contract, if any, and (f) the Restricted Stock is not part of normal or expected compensation for purposes of calculating any severance, resignation, redundancy, or end of severance payments, bonuses, long-service awards, pension or retirement benefits or similar payments. |
| 12. | You shall have no rights as a stockholder with respect to the Restricted Stock Shares subject to this Agreement until vesting of the Restricted Stock and registration of the shares in DARA’s share register in your name. |
| 13. | The validity, construction and effect of this Agreement are governed by, and subject to, the laws of the State of Delaware and the laws of the United States, as provided in the Plan, without giving effect to the conflict of law principles thereof |
| 14. | Except as provided in the Plan, the terms and provisions of this Agreement may be waived, or consent for the departure therefrom granted, only by written document executed by the party entitled to the benefits of such terms or provisions. No such waiver or consent shall be deemed to be or shall constitute a waiver or consent with respect to any other terms or provisions of this Agreement, whether or not similar. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute a continuing waiver or consent. |
| 15. | By entering into this Agreement, you (a) authorize DARA and its subsidiaries, and any agent of DARA and its subsidiaries administering the Plan or providing Plan recordkeeping services, to disclose to DARA or any of its subsidiaries such information and data as DARA or any such |
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| subsidiary shall request in order to facilitate the award of Restricted Stock and the administration of the Plan; (b) waive any data privacy rights you may have with respect to such information; and (c) authorize DARA and each subsidiary to store and transmit such information in electronic form |
| 16. | In the event any provision of this Agreement shall be held illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining parts of the Agreement, and the Agreement shall be construed and enforced as if the illegal or invalid provision had not been included. This Agreement, together with the Plan, constitutes the final understanding between you and DARA regarding the Restricted Stock. Any prior agreements, commitments or negotiations concerning the Restricted Stock are superseded. No statement, representation, warranty, covenant or agreement not expressly set forth in this Agreement shall affect or be used to interpret, change or restrict the express terms and provisions of this Agreement; provided, however, that in any event this Agreement shall be subject to and governed by the Plan. The terms and provisions of this Agreement may be modified or amended as provided in the Plan. |
IN WITNESS WHEREOF, XXXX has caused this Agreement to be executed by its duly authorized officer, and you have hereunto set your hand, all effective as of the Grant Date listed above.
| DARA BIOSCIENCES, INC. | ||
| By: | ||
| Title: | ||
| By: | [Insert Name of Director] | |
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Exhibit A
EMPLOYEE, DIRECTOR AND CONSULTANT STOCK PLAN
VESTING OF RESTRICTED STOCK
(1) Vesting Schedule. Subject to the provisions of Sections (2) and (3) below, and the terms and conditions set forth in this Agreement, the Restricted Stock granted hereby shall become earned and vested if you remain a director of DARA through each of the vesting dates indicated in the vesting schedule alternative checked below:
| ¨ | Vesting Schedule Alternative 1 (primarily used for initial equity grants) |
| Vesting Date |
Amount of Restricted Stock That Becomes Earned and Vested |
||
| Grant Date |
25 | % | |
| First anniversary of Grant Date |
25 | % | |
| Second anniversary of Grant Date |
25 | % | |
| Third anniversary of Grant Date |
25 | % |
| ¨ | Vesting Schedule Alternative 2 (primarily used for annual equity grants) |
| Vesting Date |
Amount of Restricted Stock That Becomes Earned and Vested |
||
| Grant Date |
100 | % |
(2) Effect of Termination on Vesting. If your service as a director of DARA terminates for any reason, any portion of the Restricted Stock that was not already earned and vested pursuant to Section (1) above as of the date of termination shall terminate and be cancelled and forfeited as of such date.
(3) Change in Control. Notwithstanding anything in Sections (1) and (2) to the contrary, in the event of a Change in Control, the Restricted Stock which would have vested in each vesting installment remaining under this Award shall be immediately vested in accordance with the terms of the Plan unless, prior to the consummation of the Change in Control, the Award has otherwise expired or been terminated pursuant to its terms or the terms of the Plan.
EMPLOYEE, DIRECTOR AND CONSULTANT STOCK PLAN
Beneficiary Designation Form
Please complete this form if you wish to designate a beneficiary for your Shares of Restricted Stock granted under the DARA BioSciences, Inc. 2008 Employee, Director and Consultant Stock Plan (the “Plan”) or if you wish to change your current beneficiary designation. Completed forms should be returned to .
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With respect to any of my Awards of Restricted Stock Shares under the Plan that are outstanding and become payable at the time of my death, I hereby designate the following person or entity as my beneficiary to receive any payments in connection with those Awards in the event of my death.
Designation of Primary Beneficiary. I designate the following as my Primary Beneficiary(ies):
| Name of Beneficiary |
Birthdate |
Address |
Relationship | |||
| __________________________________ | _____________ | _________________________ | ______________ | |||
| __________________________________ | _____________ | _________________________ | ______________ | |||
| __________________________________ | _____________ | _________________________ | ______________ |
Designation of Secondary Beneficiary. I designate the following as my Secondary Beneficiary(ies):
| Name of Beneficiary |
Birthdate |
Address |
Relationship | |||
| __________________________________ | _____________ | _________________________ | ______________ | |||
| __________________________________ | _____________ | _________________________ | ______________ | |||
| __________________________________ | _____________ | _________________________ | ______________ |
Selection of Rule for Deceased Beneficiary. Select either Rule 1 or Rule 2 below by marking with an “X”. The rule selected shall be applied to Primary Beneficiaries and Secondary Beneficiaries separately so that no Secondary Beneficiary (or issue of a Secondary Beneficiary) shall be entitled to a share of the death benefits unless all Primary Beneficiaries fail to survive the Participant and, if Rule 2 is selected, all issue of all Primary Beneficiaries fail to survive the Participant.
| ¨ | Rule 1. The death benefits shall be paid in equal shares to those named Beneficiaries (either Primary or Secondary, as applicable) who survive me. |
| ¨ | Rule 2. The death benefits shall be paid in equal shares to those named Beneficiaries (either Primary or Secondary, as applicable) who survive me and to the surviving issue collectively of each named Beneficiary (either Primary or Secondary, as applicable) who does not survive me but who leaves issue surviving me, with the equal share for such surviving issue of such deceased named Beneficiary to be divided among and paid to such issue on a per stirpes basis. (“Issue” means lineal descendants and includes adopted persons.) |
I understand that I may change this designation at any time by executing a new form and delivering it to . This designation supercedes any prior beneficiary designation made by me with respect to Awards of Restricted Stock Shares granted under the Plan.
Signature of Participant ________________________________________________ Date: _____________________________
Name of Participant (please print): __________________________________________________________________________
Participant’s Person Number: ______________________________________________________________________________
ASSIGNMENT SEPARATE FROM CERTIFICATE
(Stock Power)
FOR VALUE RECEIVED, the undersigned does hereby assign and transfer unto
| Name: | ________________________________ | |
| ________________________________ | ||
| Address: | ________________________________ | |
| ________________________________ | ||
| Social Security or Taxpayer Identification Number: |
________________________________ | |
shares of the Stock of represented by Certificate No(s). xxxxxxxx, standing in the name of the undersigned, and does xxxxxx appoint attorney, with full power of substitution, to transfer said shares on the books of said corporation.
| Signature(s): | ||||||||
| Date: | ||||||||
