**EXHIBIT 10.112**

 

MEDAREX, INC.

 

THE SECOND 2004 RESTRICTED STOCK UNIT AWARD AND DEFERREDCOMPENSATION PROGRAM UNDER THE MEDAREX, INC.2001 STOCK OPTION PLAN

 

1.             Introduction

 

ThisSecond 2004 Restricted Stock Unit Award and Deferred Compensation Program underthe Medarex, Inc. 2001 Stock Option Plan (the “Program”) is intended to promotethe interests of the Company and its shareholders by paying a portion of theBonus of a Participant in the form of units of measurement relating to thevalue of the Company’s common stock.  TheProgram provides for a matching payment to the Participant upon completion of avesting period.  The purpose of theProgram is to provide a select group of management and highly compensatedemployees of the Company with the option to defer the receipt of portions oftheir compensation payable for services rendered to the Company.  It is intended that the Program will assistin retaining qualified individuals to serve as officers of the Company.

 

2.             Definitions

 

a.             “Base Award” means the portion a Participant’sRestricted Stock Unit Award consisting of the Voluntary Deferral as describedin Section 4(a) hereof.

 

b.             “Board” means the Board of Directors of theCompany.

 

c.             “Bonus” means a Participant’s annual bonusgranted by the Company to a Participant without regard to any decreases as aresult of (i) an election to defer a portion of a bonus under the Program or(ii) an election between benefits or cash provided under a program of theCompany maintained pursuant to Section 401(k) of the Code.

 

d.             “Committee” means the Compensation andOrganization Committee of the Board.

 

e.             “Common Stock” means the common stock, parvalue $.01 per share, of the Company.

 

f.              “Company” means Medarex, Inc., a New Jerseycorporation.

 

g.             “Fair Market Value” as of a given date meansthe average of the high and low sales prices of a share of Common Stock on thetrading day immediately preceding the date as of which Fair Market Value is tobe determined, or in the absence of any reported sales of Common Stock on suchdate, on the first preceding date on which any such sale shall have beenreported.  If the Common Stock is notlisted on any exchange or securities market on the date as of which Fair MarketValue is to be determined, the 

 

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Boardshall determine in good faith the Fair Market Value in whatever manner itconsiders appropriate.

 

h.             “Grant Date” means the date on which aVoluntary Deferral is made pursuant to Section 4(a) hereof.

 

i.              “Matching Contribution” means an additionalcontribution by the Company to a Participant’s Restricted Stock Unit Award,which shall equal the Participant’s Base Award.

 

j.              “Participant” means any employee of theCompany designated by the Committee to be a participant in the Program.

 

k.             “Restricted Stock Unit” means a non-votingunit of measurement based on the Fair Market Value of a share of Common Stock,which entitles a Participant to receive payment in accordance with the terms ofthe Program.

 

l.              “Restricted Stock Unit Account” means a bookaccount maintained by the Company reflecting the Restricted Stock Unitsallocated to a Participant pursuant to Section 4(b) hereof.

 

m.            “Restricted Stock Unit Award” means an awardunder Section 4(b) hereof of Restricted Stock Units.

 

n.             “Voluntary Deferral” means the deferral of upto 50% of a Participant’s Bonus otherwise payable to the Participant in cash,based on the election of the Participant pursuant to Section 4(a) hereof.

 

3.             Administration

 

TheProgram shall be administered by the Committee. The Committee shall have full authority to administer the Program,including the discretionary authority to interpret and construe all provisionsof the Program, to resolve all questions of fact arising under the Program, andto adopt such rules and regulations for administering the Program, as it maydeem necessary or appropriate.  Decisionsof the Committee shall be final and binding on all parties. The Committee maydelegate administrative responsibilities under the Program to appropriateofficers or employees of the Company. All expenses of the Program shall be borne by the Company.

 

4.             Crediting of Restricted Stock Units

 

a.             Voluntary Deferrals

 

AParticipant may elect to defer up to fifty (50%) percent of the Participant’sBonus as a Base Award pursuant to Section 4(b) hereof.  Such Voluntary Deferral shall be made on thebasis of a Participant’s written election stating the 

 

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percentageof the Participant’s Bonus that shall be deferred as a Base Award.  Such election shall be made in the formrequired by the Committee and shall be delivered to the Company no later thanDecember 31 of the year prior to the year in which the Bonus is payable.  Such election shall be irrevocable.

 

b.             Restricted Stock Unit Awards

 

AParticipant shall receive a Restricted Stock Unit Award in respect of theParticipant’s Base Award and the Company’s Matching Contribution.  The Base Award shall be determined bydividing (i) the aggregate dollar amount of the percentage of the Participant’sBonus that is designated by the Participant under Section 4(a) hereof to beconverted into a Restricted Stock Unit Award, by (ii) the Fair Market Value ofthe Common Stock at the time the Bonus is awarded.  The Restricted Stock Unit Award shall consistof the Base Award plus the Company’s Matching Contribution.  Such Restricted Stock Unit Award shall becredited to the Participant’s Restricted Stock Unit Account.

 

c.             Dividend Equivalents

 

Asof any date that cash dividends are paid with respect to the Common Stock fromtime to time, each Restricted Stock Unit Award shall be credited with anadditional number of Restricted Stock Units determined by dividing (i) theaggregate dollar amount of the dividends that would have been paid on thatRestricted Stock Unit Award for such dividend had the underlying RestrictedStock Units been actual Common Stock by (ii) the Fair Market Value of theCommon Stock on the dividend payment date.

 

d.             Certain Adjustments

 

Ifthere shall occur any recapitalization, reclassification, share dividend, sharesplit, reverse share split, or other distribution with respect to the CommonStock, or other change in corporate structure affecting the Common Stock, theCommittee may, in the manner and to the extent that it deems appropriate andequitable to the Participants and consistent with the terms of this Program,cause an adjustment to be made in the Participants’ Restricted Stock UnitAccounts.  It is intended that in makingsuch adjustments, the Committee will seek to put each Participant in the same economicposition the Participant was in prior to the change (but without duplication ofany benefits that may be provided under Section 4(c) hereof).  Except as is expressly provided in thisSection, Participants shall have no rights as a result of any such change inthe Common Stock or other event.

 

5.             Vesting of Restricted Stock Unit Awards

 

Forany given Restricted Stock Unit Award, the Base Award shall be fully vested atall times.  The Matching Contributionshall be 25% vested as of the Grant Date. So long as the Participant remains employed by the Company, and subjectto Section 7 hereof, an additional 25% of the Matching Contribution shall veston each anniversary of the Grant Date until the Matching Contribution is fullyvested.

 

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6.             Distribution of Benefits

 

a.     Subject to Section 7 hereof, a Participantshall be entitled to a benefit under the Program with respect to eachRestricted Stock Unit Award upon the third anniversary of the Grant Date for suchRestricted Stock Unit Award. Notwithstanding the foregoing and subject to Section 7 hereof, aParticipant may, at least twelve (12) months prior to an expected distributiondate, elect to defer such distribution. The election shall be made in writing and in the form required by theCommittee.  Unless deferred as set forthabove, benefits under the Program shall be distributed in a single payment andshall be paid exclusively in the form of Common Stock.

 

b.     Anything herein to the contrary notwithstanding,in the event a Participant’s employment is terminated for any reason prior tothe third anniversary of the Grant Date, all vested benefits shall bedistributed as of the date of such termination.

 

c.     All payments of the benefits under thisProgram shall be made within fifteen (15) days of the date the Participantshall be entitled to receive a benefit hereunder.

 

7.             Termination of Employment

 

a.             In the event a Participant’s employment withthe Company is terminated for Cause, or by reason of such Participant’svoluntary resignation (other than for Good Reason), all unvested benefitshereunder shall be fully and immediately forfeited.  For the avoidance of doubt, termination byreason of the Permanent Disability or death of the Participant shall not be deemedto be “for Cause, or by reason of such Participant’s voluntary resignation”.

 

b.             In the event a Participant’s employment withthe Company is terminated for any reason other than as described in the firstsentence of Section 7(a) above, all of the Participant’s Restricted Stock UnitAwards (including the full Matching Contribution) shall become fully andimmediately vested.

 

c.             As used herein, the term “Cause” shall belimited to actions on the part of the Participant which constitute grossnegligence or willful misconduct in the performance or non-performance of theParticipant’s duties with the Company or a material breach by the Participantof the terms of any employment arrangement entered into between the Participantand the Company, so long as such material breach is not caused by the Company.

 

d.             As used herein the term “Permanent Disability”shall mean the Participant’s absence from work as a result of personal injury,sickness or 

 

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otherdisability for any continuous period of time exceeding one hundred eighty (180)days.

 

e.             As used herein, the term “Good Reason” shallbe mean the following actions by the Company without the Participant’s expresswritten consent:

 

i.      The assignment to the Participant of anyduties or responsibilities that results in a material diminution in theParticipant’s position or function; *provided, however,*that a change in the Participant’s title or reporting relationships shall notprovide the basis for a termination with good reason;

 

ii.     A relocation of the Participant’s businessoffice to a location more than fifty (50) miles from the location at which theParticipant performs duties as of the Grant Date, except for required travel bythe Participant on the Company’s business to an extent substantially consistentwith the Participant’s business travel obligations as of the Grant Date; or

 

iii.    A material breach by the Company of anyprovision of any employment arrangement or any other material agreement betweenthe Participant and the Company concerning the terms and conditions of theParticipant’s employment.

 

8.             Change in Control

 

Anythingherein to the contrary notwithstanding, in the event of a Change in Control ofthe Company as defined under the Company’s 2001 Stock Option Plan, all of aParticipant’s Restricted Stock Unit Awards (including the full MatchingContribution) shall become fully and immediately vested.  In such event, all benefits payable underthis Program shall be distributed within fifteen (15) days of the date of suchChange in Control.

 

9.             Beneficiaries

 

Anypayment required to be made to a Participant hereunder that cannot be made tothe Participant because of his death shall be made to the Participant’sbeneficiary or beneficiaries, subject to applicable law.  Each Participant shall have the right todesignate in writing from time to time a beneficiary or beneficiaries by filinga written notice of such designation with the Committee.  In the event a beneficiary designated by theParticipant does not survive the Participant and no successor beneficiary isselected, or in the event no valid designation has been made, such Participant’sbeneficiary shall be such Participant’s estate.

 

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10.           Unfunded Status

 

TheProgram shall be unfunded, and all benefits payable to Participants under theProgram represent merely unfunded, unsecured promises of the Company to providea benefit to the Participant in the future.

 

11.           Transfers Prohibited

 

Notransfer (other than pursuant to Section 9 hereof) by a Participant of anyright to any payment hereunder, whether voluntary or involuntary, by operationof law or otherwise, and whether by means of alienation by anticipation, sale,transfer, assignment, bankruptcy, pledge, attachment, charge, or encumbrance ofany kind, shall vest the transferee with any interest or right, and any attemptto so alienate, sell, transfer, assign, pledge, attach, charge, or otherwiseencumber any such amount, whether presently or thereafter payable, shall bevoid and of no force or effect.

 

12.           Limitation of Rights

 

Nothingcontained in the Program shall confer upon any Participant any right (i) as ashareholder of the Company or (ii) with respect to the continuation of theParticipant’s status as an employee of the Company.

 

13.           Termination and Amendment

 

TheProgram may be terminated at any time by the Committee and the Program may beamended by the Committee from time to time in any respect; provided, however,that no such termination or amendment may reduce the value of Restricted StockUnits theretofore credited or creditable to a Participant’s Restricted StockUnit Account without the affected Participant’s prior written consent.

 

14.           Withholding Taxes

 

Wherea Participant or other person is entitled to receive a payment pursuant to theProgram, the Company shall withhold, or make suitable arrangements with theParticipant for the payment of, the amount of any taxes that the Company may berequired to withhold before delivery to such Participant or other person ofsuch payment.

 

15.           Choice of Law

 

TheProgram and all rights hereunder shall be subject to and interpreted inaccordance with the laws of the State of New Jersey, without reference to theprinciples of conflicts of laws, and to applicable federal securities laws.

 

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