-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, JPPtg9sC576G+dQpUTSJzs2IlvbJsF5ATLC/7ltRIm8cJ2TM2QwmcrWSYTdhNYNl HLstv2LJxwk2qhl+CVNpSg== 0000893220-05-000464.txt : 20050304 0000893220-05-000464.hdr.sgml : 20050304 20050304083727 ACCESSION NUMBER: 0000893220-05-000464 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 20050303 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20050304 DATE AS OF CHANGE: 20050304 FILER: COMPANY DATA: COMPANY CONFORMED NAME: NEOSE TECHNOLOGIES INC CENTRAL INDEX KEY: 0000877902 STANDARD INDUSTRIAL CLASSIFICATION: MEDICINAL CHEMICALS & BOTANICAL PRODUCTS [2833] IRS NUMBER: 133549286 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-27718 FILM NUMBER: 05659652 BUSINESS ADDRESS: STREET 1: 102 WITMER RD CITY: HORSHAM STATE: PA ZIP: 19044 BUSINESS PHONE: 2154415890 MAIL ADDRESS: STREET 1: 102 WITMER ROAD CITY: HORSHAM STATE: PA ZIP: 19044 FORMER COMPANY: FORMER CONFORMED NAME: NEOSE PHARMACEUTICALS INC DATE OF NAME CHANGE: 19950817 8-K 1 w06448e8vk.htm FORM 8-K e8vk
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of Earliest Event Reported): March 3, 2005

Neose Technologies, Inc.

(Exact Name of Issuer as Specified in Charter)
         
Delaware   0-27718   13-3549286
         
(State or Other Jurisdiction of
Incorporation or Organization) 		  (Commission File Number)   (I.R.S. Employer Identification
Number)
     
102 Witmer Road, Horsham, Pennsylvania   19044
     
(Address of Principal Executive Offices)   (Zip Code)

(215) 315-9000

(Registrant’s Telephone Number, Including Area Code)

(Former Name or Former Address, if Changed Since Last Report)

Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

o  Written communications pursuant to Rule 425 under the Securities Act

o  Soliciting material pursuant to Rule 14a-12 under the Exchange Act

o  Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act

o  Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act

 
 

 

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Item 1.01 –Entry Into a Material Definitive Agreement.
Item 9.01. Financial Statements and Exhibits.
Signatures
FORM OF RESTRICTED STOCK UNIT AGREEMENT (CLIFF VESTING)
FORM OF RESTRICTED STOCK UNIT AGREEMENT (QUARTERLY VESTING)
LETTER AGREEMENT DATED MARCH 3, 2005 BY AND BETWEEN NEOSE TECHNOLOGIES, INC AND C. BOYD CLARKE
LETTER AGREEMENT DATED MARCH 3, 2005 BY AND BETWEEN NEOSE TECHNOLOGIES, INC AND JOSEPH J. VILLAFRANCA, PH.D.

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Item 1.01 –Entry Into a Material Definitive Agreement.

Modification of Employee Bonus Program, Salaries, and Directors Compensation

     In order to align the interests of management and stockholders, and as part of a broader program to conserve cash, the Compensation Committee (the “Committee”) of the Board of Directors (the “Board”) of Neose Technologies, Inc. (the “Company”) which administers the Company’s bonus program (the “Program”), has modified the Program for all of its officers and has adjusted salaries to reduce cash payments. The Committee did not change any of the terms of the Program with regard to employees who are not officers. In addition, the form of payment of compensation to the members of the Board has been modified to reduce cash payments.

   Employee Bonus Program

     The Program Prior to Modification

     Under the Program, each employee is eligible to receive a target bonus expressed as a percentage of his or her base salary for the year. For employees with less than one year of service, the bonus will be pro-rated based on the actual base pay earnings during the bonus year.

     In 2004, the target bonus percentage was 50% for the Company’s Executive Vice Presidents and Senior Vice Presidents and 75% for the Company’s Chief Executive Officer. For employees other than the Chief Executive Officer, Executive Vice Presidents and Senior Vice Presidents, the target bonus percentage for 2004 ranged from 2% to 35%, depending on level. The target amount reflects the presumptive bonus payable by the Company if applicable performance objectives are fully achieved. The Committee has the discretion to pay a bonus above or below the target level based on its rating of the Company’s and the employee’s performance relative to objectives.

     Modification of 2004 Bonus Awards for Officers

     At a meeting held on March 3, 2005 (the “Meeting”), the Committee decided that the 2004 bonus award to the Company’s Chief Executive Officer would be paid solely in restricted stock units (“RSUs”), granted at the Meeting, instead of cash, and that 2004 bonus awards to officers (except the Company’s Chief Executive Officer) would be payable 50% in cash and 50% in RSUs, granted at the Meeting. The terms of the RSUs are substantially similar to those contained in the form of Restricted Stock Unit Agreement filed as Exhibit 10.1 to this Current Report on Form 8-K. An RSU is a contractual right to the delivery of shares of the Company’s common stock at a future date. The RSUs will not vest until the first anniversary of the grant, and will not be distributed until 18 months from grant, subject to the occurrence of certain events. The number of RSUs granted for this purpose was determined by dividing the dollar amount of the bonus to be paid in the form of RSUs by $3.90, which was the closing price of the Company’s common stock on March 3, 2005, the date of grant. Employees who are not

 

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officers will receive their 2004 bonus awards entirely in cash in accordance with the existing Program.

     At the Meeting, the Committee approved and granted to the executive officers listed below the following bonus awards for the year ended December 31, 2004 in amounts that reflected the progress made in the Company’s proprietary drug programs, the Company’s partnership activities, and in meeting most of the Company’s operational and financial objectives (amounts are rounded to the nearest dollar or share):

                         
                    RSU Portion  
                    of Bonus  
            Cash Portion     (in # of shares of  
Executive Officer   Total Bonus     of Bonus     common stock)  
C. Boyd Clarke
   $ 253,125       —       64,904  
A. Brian Davis
   $ 55,123     $ 27,562       7,067  
Robert I. Kriebel
   $ 103,500     $ 51,750       13,269  
Debra J. Poul
   $ 97,807     $ 48,904       12,539  
George Vergis
   $ 90,433     $ 45,217       11,594  
Joseph J. Villafranca
   $ 109,368     $ 54,684       14,022  
David A. Zopf
   $ 99,179     $ 49,590       12,715  

     Modified Future Bonus Awards

     The Committee decided at the Meeting that, as part of the larger program to reduce cash consumption, 2005 bonuses for officers will be paid in full by the award of RSUs instead of cash in amounts determined by the Committee. For 2005 only, each officer’s target will be increased by 25% to compensate for the change from cash to RSUs. The reasons for this increase include: the importance of the corporate and individual objectives of the officers to the realization of the Company’s strategy; the elimination of the cash component originally included in the existing Program; the increased risk of loss stemming from delayed vesting; and the general lack of liquidity for officers after distribution of the stock. Thereafter, for future years, barring future action by the Committee, bonuses will be paid in cash. It is expected that any RSUs granted in the future, including 2005 bonuses, will be on terms substantially similar to those contained in the forms of Restricted Stock Unit Agreement filed as Exhibit 10.2 to this Current Report on Form 8-K.

     2005 Bonus Objectives

     Although certain terms of the Program have been changed by the Committee for officers for 2005, bonus calculations for all employees (including officers) will continue to be based upon both corporate and individual objectives. For 2005, the corporate objectives set and approved by the Board are (1) the completion of preclinical development and the submission of an Investigational New Drug application (or equivalent) for the Company’s NE-180 (GlycoPEG-

 

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EPO) and GlycoPEG-GCSF, (2) commencing and completing Phase I clinical trials for NE-180, (3) commencing production scale-up to commercial levels for NE-180, and (4) achieving certain partnership, developmental, operational and financial milestones. For 2005, each employee also has individual objectives that are designed to support the corporate objectives, and vary by department and individual.

     Bonuses will be appropriately reduced if the Company is not successful in meeting its corporate objectives or increased if the Company accomplishes substantially more than its objectives. If the Company does not meet any of its corporate objectives, no bonuses will be awarded. The Committee is responsible for determining if the Company has met its corporate objectives and rating the Company’s performance to determine the amount of bonuses warranted.

     If an employee does not meet or exceed expectations in the performance of his or her individual objectives, the bonus will be either reduced or eliminated, regardless of whether the Company has met its corporate objectives. To determine the bonuses to be awarded, each employee’s performance is rated on an annual basis. Bonuses are then determined by taking into account the individual and corporate performances to objectives. Bonuses, if any, are awarded during the first quarter of the year immediately following the year being measured.

   Adjustment of Officer Base Salaries

     As an additional part of the Company’s cash reduction program, the Committee also decided to reduce the base salary levels of all of the Company’s officers for the period from March 1, 2005 through February 28, 2006 (the “2005 Period”) and set a minimum level of base salary for each of them for the period from March 1, 2006 through February 28, 2007 (the “2006 Period”). The salary for each officer for the 2005 Period will be 10% lower than his or her base salary on February 28, 2005. In connection with these reductions, at the Meeting, the Committee granted to each officer a one-time award of RSUs. The number of RSUs granted for this purpose was determined with reference to the 10% reduction and forgone merit increases, and the closing price of the Company’s common stock on March 3, 2005, the date of grant . The RSUs were granted on terms substantially similar to those contained in the forms of Restricted Stock Unit Agreement filed as Exhibit 10.2 to this Current Report on Form 8-K.

     For the 2006 Period, the Committee intends to set each officer’s base salary at a level no less than 104% of his or her base salary on February 28, 2005. Actual base salary levels for each officer for the 2006 Period and future periods will be determined by the Committee prior to the beginning of each period.

Amendment to Certain Employment Agreements

     The changes to the Program and the adjustment of base salaries described above will constitute amendments to the employment agreement of C. Boyd Clarke, the Company’s President, Chief Executive Officer and Chairman. The amendments are embodied in a letter

 

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agreement by and between the Company and Mr. Clarke dated March 3, 2005. There are no material terms, and no amendments to Mr. Clarke’s employment agreement, contained in the letter agreement other than the changes to the Program and the adjustment of Mr. Clarke’s base salary as described in this Current Report on Form 8-K. The letter agreement is filed with this Current Report on Form 8-K as Exhibit 10.3.

     The changes to the Program and the adjustment of base salaries described above will constitute amendments to the employment agreement of Joseph J. Villafranca, Ph.D., the Company’s Executive Vice President of Pharmaceutical Development and Operations. The amendments are embodied in a letter agreement by and between the Company and Dr. Villafranca dated March 3, 2005. There are no material terms, and no amendments to Dr. Villafranca’s employment agreement, contained in the letter agreement other than the changes to the Program and the adjustment of Dr. Villafranca’s base salary as described in this Current Report on Form 8-K. The letter agreement is filed with this Current Report on Form 8-K as Exhibit 10.4.

Director Compensation

     At the Meeting, the Committee also decided to compensate the Company’s non-employee directors at the same level as in 2004. Each non-employee director is entitled to receive an annual retainer of $14,000. In addition to the annual retainer for being a director, each non-employee director who serves on Board committees will receive the following annual retainers and fees for each meeting attended by the director:

                 
Committee/Position   Retainer     Meeting Fee  
Audit Committee
                
Chair
   $ 8,000     $ 3,000  
Member
   $ 4,000     $ 1,500  
Corporate Governance, Compensation and Scientific Review Committees
                
Chair
   $ 4,000     $ 2,000  
Member
   $ 2,000     $ 1,000  

     One-half of the annual retainer for each director will be paid in RSUs to conserve cash. Each of the annual committee retainers and meeting fees payable to a non-employee director may be satisfied in cash, by the grant of RSUs with respect to a number of shares of the Company’s common stock with a value equal to the amount due (determined with reference to the closing price of the Company’s common stock at or about the date of the grant), or by a combination of cash and RSUs. Except for vesting, which will occur immediately upon grant, it

 

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is expected that any RSUs granted will be on terms substantially similar to those contained in the form of Restricted Stock Unit Agreement filed as Exhibit 10.2 to this Current Report on Form 8-K.

     In addition to the retainers, consistent with the Company’s existing director compensation policy, each non-employee director will receive, as the case may be, an option to purchase 30,000 shares of the Company’s common stock upon initial election to the Board and an additional option to purchase 10,000 shares of the Company’s common stock upon re-election to the Board.

     Directors who are also employees of the Company receive no additional compensation for serving as a director or as a member of any committee of the Board.

Item 9.01. Financial Statements and Exhibits.

(c)   Exhibits.

         
  10.1    
Form of Restricted Stock Unit Agreement (cliff vesting) between Neose Technologies, Inc. and Certain Employees, Officers and Directors.

 
 
  10.2    
Form of Restricted Stock Unit Agreement (quarterly vesting) between Neose Technologies, Inc. and Certain Employees, Officers and Directors.

 
 
  10.3    
Letter Agreement dated March 3, 2005 by and between Neose Technologies, Inc. and C. Boyd Clarke.

 
 
  10.4    
Letter Agreement dated March 3, 2005 by and between Neose Technologies, Inc. and Joseph J. Villafranca, Ph.D.

 

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Signatures

     Pursuant to the requirements of the Securities and Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto duly authorized.
         
  Neose Technologies, Inc.
 		  
Date: March 3, 2005  By:   /s/ A. Brian Davis    
    A. Brian Davis   
    Senior Vice President and Chief Financial
Officer 		  
 

 

EX-10.1 2 w06448exv10w1.txt FORM OF RESTRICTED STOCK UNIT AGREEMENT (CLIFF VESTING) EXHIBIT 10.1 NEOSE TECHNOLOGIES, INC. 2004 EQUITY INCENTIVE PLAN RESTRICTED STOCK UNIT AGREEMENT 1. Grant of Restricted Stock Units. Neose Technologies, Inc. (the "Company") hereby grants to _________________ (the "Grantee") an award of _________ restricted stock units (the "RSUs"), effective as of ___________________ (the "Date of Grant"), subject to the terms and conditions set forth in this Restricted Stock Unit Agreement (the "Agreement"), and in all respects subject to the terms and provisions of the Neose Technologies, Inc. 2004 Equity Incentive Plan (the "Plan") applicable to Restricted Stock Units. Each RSU is equivalent in value to one share of Common Stock and, subject to Sections 2 and 6 below, entitles the Grantee to receive from the Company one share of Common Stock. Unless otherwise defined herein, capitalized terms used but not defined herein shall have the meanings given to them in the Plan. 2. Vesting and Forfeiture of RSUs. The RSUs shall become fully vested on the earliest to occur of (i) the first anniversary of the Date of Grant, provided the Grantee remains in continuous Service to the Company through that anniversary, (ii) the termination by the Company of the Grantee's Service other than for Cause (as defined below) or (iii) a Change in Control; provided, however, that if the Grantee's Service terminates prior to the vesting of the RSUs for any reason other than as described in clause (ii) above, the Grantee will immediately forfeit the RSUs upon that termination of Service. For purposes of this Agreement, "Cause" means fraud, embezzlement, or any other serious criminal conduct that adversely affects the Company committed intentionally by the Grantee in connection with his or her employment or the performance of his or her duties as an officer or director of the Company or the Grantee's conviction of, or plea of guilty or nolo contendere to, any felony. 3. Book Accounts. An unfunded bookkeeping account (the "Account") has been established to reflect the grant of the RSUs to the Grantee. The Account shall be maintained by the Committee. The RSUs are credited to the Account as of the Date of Grant and dividends or other distributions paid with respect to the shares of Common Stock underlying the RSUs shall be credited to the Account and reinvested in RSUs based on the Fair Market Value at that time. All shares of Common Stock distributed to the Grantee pursuant to the Plan and this Agreement shall be debited from the Grantee's Account. 4. Rights as Stockholder. The Grantee shall not have voting or any other rights as a stockholder of the Company with respect to the RSUs. 5. Delivery of Shares. Subject to Section 2 above and Sections 7 and 13 below, stock certificates (the "Certificates") evidencing the conversion of vested RSUs into shares of Common Stock will be issued to the Grantee and registered in the Grantee's name as soon as practicable following the earliest to occur of (i) the date which is 18 months after the Date of Grant, (ii) the date which is six months following the Grantee's separation of service from the Company within the meaning of Section 409A(a)(2)(i) of the Internal Revenue Code, and (iii) a Section 409A Change in Ownership, as defined below. For purposes of this Agreement, a "Section 409A Change in Ownership" occurs upon the occurrence of any of the following: (a) a change in the ownership of the Company, as defined in Q&A 12 of IRS Notice 2005-1, (b) a change in effective control of the Company, as defined in Q&A 13 of IRS Notice 2005-1, or (c) a change in the ownership of a substantial portion of the assets of the Company, as defined in Q&A 14 of IRS Notice 2005-1. Any Certificate distributed pursuant to this Section 5 shall contain any legend as may be required under the Plan and/or applicable law. 6. Adjustments. If the Common Stock, as presently constituted, shall be changed into or exchanged for a different number or kind of shares or other securities of the Company or of another corporation (whether by reason of merger, consolidation, recapitalization, reclassification, stock split, spinoff, combination of shares or otherwise), or if the number of shares of the Common Stock shall be increased through the payment of a stock dividend or other similar event, then, there shall be substituted for or added to each RSU, the number and kind of RSUs, shares of stock or other securities as is appropriate to reflect that event as determined by the Committee in its discretion, subject to Section 3 above and subject to compliance with applicable laws. 7. Withholding of Taxes. The Company reserves the right to withhold, in accordance with any applicable laws, from any consideration payable to the Grantee any taxes required to be withheld by federal, state or local law as a result of the settlement of any RSU pursuant to Section 5 of this Agreement. If the amount of any consideration payable to the Grantee is insufficient to pay such taxes or if no consideration is payable to the Grantee, then upon the request of the Company, the Grantee (or such other person entitled to receive shares upon settlement of the RSUs) shall pay to the Company an amount sufficient for the Company to satisfy any federal, state or local tax withholding requirements the Company may incur as a result of the settlement of the RSUs. Unless otherwise determined by the Board, the minimum required withholding obligation arising in connection with the settlement of the RSUs may, upon the Grantee's request, be settled with shares, including shares that would otherwise be payable to the Grantee in connection with the settlement of the RSUs. 8. Conformity with Plan. This Agreement is subject to, and the Grantee and the Company agree to be bound by, all of the terms and conditions of the Plan as it may be amended from time to time in accordance with the terms thereof. Pursuant to the Plan, the Board is authorized to adopt rules and regulations not inconsistent with the Plan as it shall deem appropriate and proper. A copy of the Plan in its present form is attached hereto and a copy will be available for inspection during business hours by the Grantee or the persons entitled to receive settlement of the Grantee's RSUs at the Company's principal office. 9. NO GUARANTEE OF EMPLOYMENT. THE GRANTEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF RSUS PURSUANT TO SECTION 2 HEREOF IS EARNED ONLY BY CONTINUING SERVICE AS AN EMPLOYEE, CONSULTANT OR DIRECTOR, IN EACH CASE AT THE WILL OF THE COMPANY (AND NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED RSUS HEREUNDER). THE GRANTEE FURTHER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING PROVISIONS SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED SERVICE FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND SHALL NOT INTERFERE WITH THE GRANTEE'S RIGHT OR THE COMPANY'S RIGHT TO TERMINATE THE GRANTEE'S SERVICE AT ANY TIME, WITH OR WITHOUT CAUSE. 10. Amendment or Substitution of RSUs. The terms of the RSUs may be amended from time to time by the Committee in its discretion in any manner that it deems appropriate; provided that, except as otherwise provided in Section 12 of the Plan or as required to ensure compliance with applicable laws, including without limitation compliance with Section 409A of the Internal Revenue Code and any regulations and other guidance issued by the Internal Revenue Service thereunder ("Section 409A of the Code"), no such amendment shall adversely affect in a material manner any of the Grantee's rights under the award without the Grantee's written consent. 11. Unfunded Status of Plan. The Plan is an unfunded arrangement. Any amounts payable under the Plan and this Agreement will be paid from the general assets of the Company. Any person entitled to a payment under the Plan or this Agreement will have the rights of a general creditor of the Company and will not have a claim to any particular asset of the Company. 12. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement. 13. Restrictions/Legal Compliance. Shares will not be distributed to the Grantee pursuant to Section 5 if the issuance of those shares would constitute a violation of any applicable law, including without limitation any securities laws and Section 409A of the Code. In addition, notwithstanding anything in this Agreement to the contrary, if shares would otherwise be deliverable pursuant to Section 5 on a date on which trading in such shares would be prohibited by applicable securities laws, or by any Company insider trading policy intended to facilitate compliance with such laws, then delivery of the shares will be delayed until the earliest date on which trading is permitted under those laws and the terms of any such policy. The Company may also condition the distribution of shares of Common Stock upon the Grantee's execution and delivery of any further documents or instruments deemed necessary or desirable by the Committee, including any representations and warranties. The Company shall not be required to transfer on its books any shares that have been sold or otherwise transferred in violation of the Securities Act of 1933, as amended (the "Securities Act") or any other laws or the provisions of this Agreement. The Grantee represents that the Grantee will be acquiring shares of Common Stock for the Grantee's own account and not on behalf of others. The Grantee understands and acknowledges that federal, state and foreign securities laws govern and restrict the Grantee's right to offer, sell or otherwise dispose of shares of Common Stock issued hereunder unless such offer, sale or other disposition thereof is registered under the Securities Act and state or foreign securities laws, or in the opinion of the Company's counsel, such offer, sale or other disposition is exempt from registration or qualification thereunder. The Grantee agrees that the Grantee will not offer, sell or otherwise dispose of any shares of Common Stock in any manner which would: (i) require the Company to file any registration statement with the Securities and Exchange Commission (or any similar filing under state law) or to amend or supplement any such filing or (ii) violate or cause the Company to violate the Securities Act, the rules and regulations promulgated thereunder or any state or other federal law, or (iii) violate any agreement between the Grantee and the Company, including this Agreement. 14. Entire Agreement; Governing Law. The Plan and this Agreement constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Grantee and the Company with respect to the subject matter hereof. This Agreement is governed by the laws of the Commonwealth of Pennsylvania, without regard to principles of conflict of laws. 15. Notices. Any notice to be given to the Company pursuant to the provisions of the Plan or this Agreement shall be addressed to the Company in care of its Secretary (or such other person as the Company may designate from time to time) at its principal executive office, and any notice to be given to the Grantee will be delivered personally or addressed to the Grantee at the address given beneath the Grantee's signature on this Agreement, or at such other address as the Grantee may hereafter designate in writing to the Company. Any such notice will be deemed duly given on the date and at the time delivered via personal, courier or recognized overnight delivery service or, if sent via telecopier, on the date and at the time telecopied with confirmation of delivery or, if mailed, on the date five days after the date of the mailing (which will be by regular, registered or certified mail). Delivery of a notice by telecopy (with confirmation) will be permitted and will be considered delivery of a notice notwithstanding that it is not an original that is received. IN WITNESS WHEREOF, this Agreement has been executed by the parties on this ___ day of __________, 20__. NEOSE TECHNOLOGIES, INC. By: ________________________ Title: _______________________ CERTIFICATION AND ACKNOWLEDGMENT OF RESTRICTED STOCK UNIT GRANT UNDER NEOSE TECHNOLOGIES, INC. 2004 EQUITY PLAN The Grantee hereby acknowledges receipt of the Restricted Stock Unit Agreement dated ___________ ("Agreement"), and the Neose Technologies, Inc. 2004 Equity Plan ("Plan"), a copy of which is attached to the Agreement, and certifies and represents that he or she has read and is familiar with the terms and provisions of the Agreement and Plan, and hereby accepts the RSUs subject to all of the terms and provisions of the Plan and Agreement. The Grantee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Board or the Committee concerning the Plan and the Agreement. Signature:______________________________ Name: <><> Date: ________________, 2005 Please return this certification to the HR Department within 10 days of receipt. EX-10.2 3 w06448exv10w2.txt FORM OF RESTRICTED STOCK UNIT AGREEMENT (QUARTERLY VESTING) EXHIBIT 10.2 NEOSE TECHNOLOGIES, INC. 2004 EQUITY INCENTIVE PLAN RESTRICTED STOCK UNIT AGREEMENT 1. Grant of Restricted Stock Units. Neose Technologies, Inc. (the "Company") hereby grants to _________________ (the "Grantee") an award of _________ restricted stock units (the "RSUs"), effective as of ___________________ (the "Date of Grant"), subject to the terms and conditions set forth in this Restricted Stock Unit Agreement (the "Agreement"), and in all respects subject to the terms and provisions of the Neose Technologies, Inc. 2004 Equity Incentive Plan (the "Plan") applicable to Restricted Stock Units. Each RSU is equivalent in value to one share of Common Stock and, subject to Sections 2 and 6 below, entitles the Grantee to receive from the Company one share of Common Stock. Unless otherwise defined herein, capitalized terms used but not defined herein shall have the meanings given to them in the Plan. 2. Vesting and Forfeiture of RSUs. Twenty-five percent of the RSUs shall become fully vested on the [last day of each of the third, sixth, ninth and twelfth months ending after the Date of Grant], so long as the Grantee remains in continuous Service to the Company through the applicable date; provided, however that, if, before all of the RSUs are vested, the Company terminates the Grantee's Service other than for Cause (as defined below) or a Change in Control occurs, then 100% of the RSUs shall become fully vested immediately upon such termination or Change in Control, as applicable. If, prior to the vesting of all of the RSUs, the Grantee's Service terminates for any reason other than a termination by the Company without Cause, then the Grantee will immediately forfeit any unvested RSUs upon that termination of Service. For purposes of this Agreement, "Cause" means fraud, embezzlement, or any other serious criminal conduct that adversely affects the Company committed intentionally by the Grantee in connection with his or her employment or the performance of his or her duties as an officer or director of the Company or the Grantee's conviction of, or plea of guilty or nolo contendere to, any felony. 3. Book Accounts. An unfunded bookkeeping account (the "Account") has been established to reflect the grant of the RSUs to the Grantee. The Account shall be maintained by the Committee. The RSUs are credited to the Account as of the Date of Grant and dividends or other distributions paid with respect to the shares of Common Stock underlying the RSUs shall be credited to the Account and reinvested in RSUs based on the Fair Market Value at that time. All shares of Common Stock distributed to the Grantee pursuant to the Plan and this Agreement shall be debited from the Grantee's Account. 4. Rights as Stockholder. The Grantee shall not have voting or any other rights as a stockholder of the Company with respect to the RSUs. 5. Delivery of Shares. Subject to Section 2 above and Sections 7 and 13 below, stock certificates (the "Certificates") evidencing the conversion of vested RSUs into shares of Common Stock will be issued to the Grantee and registered in the Grantee's name as soon as practicable following the earliest to occur of (i) the date which is 18 months after the Date of Grant, (ii) the date which is six months following the Grantee's separation of service from the Company within the meaning of Section 409A(a)(2)(i) of the Internal Revenue Code, and (iii) a Section 409A Change in Ownership, as defined below. For purposes of this Agreement, a "Section 409A Change in Ownership" occurs upon the occurrence of any of the following: (a) a change in the ownership of the Company, as defined in Q&A 12 of IRS Notice 2005-1, (b) a change in effective control of the Company, as defined in Q&A 13 of IRS Notice 2005-1, or (c) a change in the ownership of a substantial portion of the assets of the Company, as defined in Q&A 14 of IRS Notice 2005-1. Any Certificate distributed pursuant to this Section 5 shall contain any legend as may be required under the Plan and/or applicable law. 6. Adjustments. If the Common Stock, as presently constituted, shall be changed into or exchanged for a different number or kind of shares or other securities of the Company or of another corporation (whether by reason of merger, consolidation, recapitalization, reclassification, stock split, spinoff, combination of shares or otherwise), or if the number of shares of the Common Stock shall be increased through the payment of a stock dividend or other similar event, then, there shall be substituted for or added to each RSU, the number and kind of RSUs, shares of stock or other securities as is appropriate to reflect that event as determined by the Committee in its discretion, subject to Section 3 above and subject to compliance with applicable laws. 7. Withholding of Taxes. The Company reserves the right to withhold, in accordance with any applicable laws, from any consideration payable to the Grantee any taxes required to be withheld by federal, state or local law as a result of the settlement of any RSU pursuant to Section 5 of this Agreement. If the amount of any consideration payable to the Grantee is insufficient to pay such taxes or if no consideration is payable to the Grantee, then upon the request of the Company, the Grantee (or such other person entitled to receive shares upon settlement of the RSUs) shall pay to the Company an amount sufficient for the Company to satisfy any federal, state or local tax withholding requirements the Company may incur as a result of the settlement of the RSUs. Unless otherwise determined by the Board, the minimum required withholding obligation arising in connection with the settlement of the RSUs may, upon the Grantee's request, be settled with shares, including shares that would otherwise be payable to the Grantee in connection with the settlement of the RSUs. 8. Conformity with Plan. This Agreement is subject to, and the Grantee and the Company agree to be bound by, all of the terms and conditions of the Plan as it may be amended from time to time in accordance with the terms thereof. Pursuant to the Plan, the Board is authorized to adopt rules and regulations not inconsistent with the Plan as it shall deem appropriate and proper. A copy of the Plan in its present form is attached hereto and a copy will be available for inspection during business hours by the Grantee or the persons entitled to receive settlement of the Grantee's RSUs at the Company's principal office. 9. NO GUARANTEE OF EMPLOYMENT. THE GRANTEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF RSUS PURSUANT TO SECTION 2 HEREOF IS EARNED ONLY BY CONTINUING SERVICE AS AN EMPLOYEE, CONSULTANT OR DIRECTOR, IN EACH CASE AT THE WILL OF THE COMPANY (AND NOT THROUGH THE ACT OF BEING HIRED, BEING GRANTED RSUS HEREUNDER). THE GRANTEE FURTHER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREUNDER AND THE VESTING PROVISIONS SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED SERVICE FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND SHALL NOT INTERFERE WITH THE GRANTEE'S RIGHT OR THE COMPANY'S RIGHT TO TERMINATE THE GRANTEE'S SERVICE AT ANY TIME, WITH OR WITHOUT CAUSE. 10. Amendment or Substitution of RSUs. The terms of the RSUs may be amended from time to time by the Committee in its discretion in any manner that it deems appropriate; provided that, except as otherwise provided in Section 12 of the Plan or as required to ensure compliance with applicable laws, including without limitation compliance with Section 409A of the Internal Revenue Code and any regulations and other guidance issued by the Internal Revenue Service thereunder ("Section 409A of the Code"), no such amendment shall adversely affect in a material manner any of the Grantee's rights under the award without the Grantee's written consent. 11. Unfunded Status of Plan. The Plan is an unfunded arrangement. Any amounts payable under the Plan and this Agreement will be paid from the general assets of the Company. Any person entitled to a payment under the Plan or this Agreement will have the rights of a general creditor of the Company and will not have a claim to any particular asset of the Company. 12. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement. 13. Restrictions/Legal Compliance. Shares will not be distributed to the Grantee pursuant to Section 5 if the issuance of those shares would constitute a violation of any applicable law, including without limitation any securities laws and Section 409A of the Code. In addition, notwithstanding anything in this Agreement to the contrary, if shares would otherwise be deliverable pursuant to Section 5 on a date on which trading in such shares would be prohibited by applicable securities laws, or by any Company insider trading policy intended to facilitate compliance with such laws, then delivery of the shares will be delayed until the earliest date on which trading is permitted under those laws and the terms of any such policy. The Company may also condition the distribution of shares of Common Stock upon the Grantee's execution and delivery of any further documents or instruments deemed necessary or desirable by the Committee, including any representations and warranties. The Company shall not be required to transfer on its books any shares that have been sold or otherwise transferred in violation of the Securities Act of 1933, as amended (the "Securities Act") or any other laws or the provisions of this Agreement. The Grantee represents that the Grantee will be acquiring shares of Common Stock for the Grantee's own account and not on behalf of others. The Grantee understands and acknowledges that federal, state and foreign securities laws govern and restrict the Grantee's right to offer, sell or otherwise dispose of shares of Common Stock issued hereunder unless such offer, sale or other disposition thereof is registered under the Securities Act and state or foreign securities laws, or in the opinion of the Company's counsel, such offer, sale or other disposition is exempt from registration or qualification thereunder. The Grantee agrees that the Grantee will not offer, sell or otherwise dispose of any shares of Common Stock in any manner which would: (i) require the Company to file any registration statement with the Securities and Exchange Commission (or any similar filing under state law) or to amend or supplement any such filing or (ii) violate or cause the Company to violate the Securities Act, the rules and regulations promulgated thereunder or any state or other federal law, or (iii) violate any agreement between the Grantee and the Company, including this Agreement. 14. Entire Agreement; Governing Law. The Plan and this Agreement constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Grantee and the Company with respect to the subject matter hereof. This Agreement is governed by the laws of the Commonwealth of Pennsylvania, without regard to principles of conflict of laws. 15. Notices. Any notice to be given to the Company pursuant to the provisions of the Plan or this Agreement shall be addressed to the Company in care of its Secretary (or such other person as the Company may designate from time to time) at its principal executive office, and any notice to be given to the Grantee will be delivered personally or addressed to the Grantee at the address given beneath the Grantee's signature on this Agreement, or at such other address as the Grantee may hereafter designate in writing to the Company. Any such notice will be deemed duly given on the date and at the time delivered via personal, courier or recognized overnight delivery service or, if sent via telecopier, on the date and at the time telecopied with confirmation of delivery or, if mailed, on the date five days after the date of the mailing (which will be by regular, registered or certified mail). Delivery of a notice by telecopy (with confirmation) will be permitted and will be considered delivery of a notice notwithstanding that it is not an original that is received. IN WITNESS WHEREOF, this Agreement has been executed by the parties on this ___ day of __________, 20__. NEOSE TECHNOLOGIES, INC. By: ________________________ Title: _______________________ CERTIFICATION AND ACKNOWLEDGMENT OF RESTRICTED STOCK UNIT GRANT UNDER NEOSE TECHNOLOGIES, INC. 2004 EQUITY PLAN The Grantee hereby acknowledges receipt of the Restricted Stock Unit Agreement dated ___________ ("Agreement"), and the Neose Technologies, Inc. 2004 Equity Plan ("Plan"), a copy of which is attached to the Agreement, and certifies and represents that he or she has read and is familiar with the terms and provisions of the Agreement and Plan, and hereby accepts the RSUs subject to all of the terms and provisions of the Plan and Agreement. The Grantee hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Board or the Committee concerning the Plan and the Agreement. Signature: _____________________________ Name: <><> Date: ________________, 2005 Please return this certification to the HR Department within 10 days of receipt. EX-10.3 4 w06448exv10w3.txt LETTER AGREEMENT DATED MARCH 3, 2005 BY AND BETWEEN NEOSE TECHNOLOGIES, INC AND C. BOYD CLARKE EXHIBIT 10.3 [Neose Technologies, Inc. Letterhead] March 3, 2005 C. Boyd Clarke President and Chief Executive Officer Neose Technologies, Inc. 102 Witmer Road Horsham PA 19044 Dear Boyd: This letter confirms the recent agreement between you and Neose Technologies, Inc. (the "Company") regarding your compensation from the Company. You and the Company have agreed that your Base Salary, as defined in the Employment Agreement between you and the Company, dated March 29, 2002 (the "Employment Agreement"), for the 12-month period that commenced on March 1, 2005, is $405,000. Effective March 1, 2006, your Base Salary will not be less than $450,000. You and the Company have also agreed any Annual Bonus (as defined in the Employment Agreement) payable to you in respect of 2004 and 2005 will be paid in the form of Restricted Stock Units (as defined in the Company's Equity Incentive Plan (the "Plan")), subject to the terms of the Plan and an award agreement that, in the case of RSUs awarded in respect of a 2004 annual bonus, is substantially in the form attached hereto as Exhibit A, and, in the case of RSUs awarded in respect of a 2005 annual bonus, is substantially in the form attached hereto as Exhibit B. In addition, your bonus target for 2005 only will be 93.75% of the sum of (i) your Base Salary plus (ii) $45,000. In addition, in recognition of the changes to your cash compensation described above, the Company will grant to you, effective today, that number of RSUs as is determined by dividing $45,000 by today's closing price of our stock, subject to the terms of the Plan and an award agreement substantially in the form attached hereto as Exhibit B and subject to your execution of this letter. Your signature below constitutes your written consent to the reduction of your Base Salary and to the payment of your 2004 Annual Bonus and your 2005 Annual Bonus in Restricted Stock Units, each as described above. Therefore, neither the reduction of Base Salary described above nor the payment of your 2004 Annual Bonus and your 2005 in the form of Restricted Stock Units will constitute Good Reason (as defined in the Employment Agreement) for your termination of employment with the Company. Except to the extent modified by this letter, the Employment Agreement continues in full force and effect. Please execute this letter in the space provided below to acknowledge the foregoing agreements. Sincerely, /s/ Debra J. Poul Debra J. Poul Senior Vice President & General Counsel Acknowledged and Agreed: /s/ C. Boyd Clarke - ------------------ C. Boyd Clarke EX-10.4 5 w06448exv10w4.txt LETTER AGREEMENT DATED MARCH 3, 2005 BY AND BETWEEN NEOSE TECHNOLOGIES, INC AND JOSEPH J. VILLAFRANCA, PH.D. EXHIBIT 10.4 [Neose Technologies, Inc. Letterhead] March 3, 2005 Joseph J. Villafranca Executive Vice President, Pharmaceutical Development and Operations Neose Technologies, Inc. 102 Witmer Road Horsham PA 19044 Dear Joe: This letter confirms the recent agreement between you and Neose Technologies, Inc. (the "Company") regarding your compensation from the Company. You and the Company have agreed that your Base Salary, as defined in the Employment Agreement between you and the Company, dated September 12, 2002 (the "Employment Agreement"), for the 12-month period that commenced on March 1, 2005, is $273,420. Effective March 1, 2006, your Base Salary will not be less than $315,952. You and the Company have also agreed that one-half of any Annual Bonus (as defined in the Employment Agreement) payable to you in respect of 2004 and all of any Annual Bonus payable to you in respect of 2005 will be paid in the form of Restricted Stock Units (as defined in the Company's Equity Incentive Plan (the "Plan")), subject to the terms of the Plan and an award agreement that, in the case of RSUs awarded in respect of a 2004 annual bonus, is substantially in the form attached hereto as Exhibit A, and, in the case of RSUs awarded in respect of a 2005 annual bonus, is substantially in the form attached hereto as Exhibit B. In addition, your bonus target for 2005 only will be 62.5% of the sum of (i) your Base Salary plus (ii) $42,532. In addition, in recognition of the changes to your cash compensation described above, the Company will grant to you, effective today, that number of RSUs as is determined by dividing $42,532 by today's closing price of our stock, subject to the terms of the Plan and an award agreement substantially in the form attached hereto as Exhibit B and subject to your execution of this letter. Your signature below constitutes your written consent to the reduction of your Base Salary and to the payment of a portion of your 2004 Annual Bonus and all of your 2005 Annual Bonus in Restricted Stock Units, each as described above. Therefore, neither the reduction of Base Salary described above nor the payment of part of your 2004 Annual Bonus and all of your 2005 in the form of Restricted Stock Units will constitute Good Reason (as defined in the Employment Agreement) for your termination of employment with the Company. Except to the extent modified by this letter, the Employment Agreement continues in full force and effect. Please execute this letter in the space provided below to acknowledge the foregoing agreements. Sincerely, /s/ C. Boyd Clarke C. Boyd Clarke President and Chief Executive Officer Acknowledged and Agreed: /s/ Joseph J. Villafranca - ------------------------- Joseph J. Villafranca -----END PRIVACY-ENHANCED MESSAGE-----