Exhibit 10.4
JAVELIN PHARMACEUTICALS,
INC.
2005 OMNIBUS STOCK INCENTIVE
PLAN
RESTRICTED STOCK UNIT
AGREEMENT
This restricted stock unit agreement
(the “Agreement”), dated __________ (the "Grant Date"),
is delivered by Javelin Pharmaceuticals, Inc. (the "Company") to
______________ (the "Grantee").
1. Grant of Restricted
Stock Units . The Company has established a RSU
Account on the Grantee's behalf under the Javelin Pharmaceuticals,
Inc, 2005 Omnibus Stock Incentive Plan (the "Plan"), and credited
it with RSUs 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 Restricted
Stock Unit . The RSUs represent an unfunded and
unsecured promise by the Company to pay amounts in the future in
accordance with this Award. The RSUs do not entitle
Grantee to vote any Shares or to receive dividends. The
RSUs 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
RSUs . The
RSUs will vest as provided on Schedule I. Furthermore,
in the event of Grantee's death or disability, the RSUs will become
fully vested.
4. Payment of the
RSUs . Upon Grantee's satisfaction of the
applicable vesting conditions, the Company will immediately
distribute a Share to Grantee for each RSU credited to Grantee's
RSU Account. In all events the Company shall distribute
Shares to the Grantee in satisfaction of the RSUs no later than
March 15 of the year following the year in which the RSUs
vest.
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 RSUs under this Agreement shall become fully
vested immediately. The RSUs 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 RSUs under this Agreement shall become fully
vested and distributable immediately. The Company will distribute a
Share to Grantee for each RSU credited to Grantee's RSU
