Unassociated Document


    RESTRICTED
STOCK AWARD AGREEMENT

    


    RESTRICTED STOCK AWARD AGREEMENT (this
“Agreement”)
dated as of September 27, 2010 (the “Effective Date”),
between DISCOVERY LABORATORIES, INC., a Delaware corporation (the “Company”), and
________________ (“Participant”).

    


    WHEREAS, in order to generate an
increased incentive to contribute to the Company’s future success and
prosperity, the Company has agreed to award to Participant ________
(     ) restricted shares of the common stock, par
value $0.001 per share, of the Company (the “Restricted
Stock”).

    


    NOW, THEREFORE, in consideration of the
above premises and the mutual covenants set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:

    


    SECTION 1.    General.

    


    (a)           All
capitalized terms used in this Agreement without definition shall have the
meanings ascribed to them in the Discovery Laboratories, Inc., 2007 Long-Term
Incentive Plan (“the “Plan”).

    


    (b)           The
Award is subject to the terms, conditions and restrictions set forth in this
Agreement, the Notice of Award of Restricted Stock attached hereto as Annex I
(the “Notice”)
and the Plan.  In the event of any inconsistency between the Plan,
this Agreement or the Notice, the terms of the Plan shall control.

    


    SECTION 2.    Award and Vesting of
Restricted Stock.  On the date hereof, the Company hereby
grants to Participant ________ (     ) Shares of
Restricted Stock of the Company.  Subject to the earlier forfeiture of
Restricted Stock as provided in Section 4 below, the Restricted Stock awarded to
Participant shall vest as set forth in the Notice.  If and when the
restrictions set forth in Section 3, below, expire with respect to any Shares of
Restricted Stock in accordance with the terms of this Agreement without
forfeiture of such Shares, and upon the satisfaction of all other applicable
conditions as to such Shares, such Shares shall no longer be considered
Restricted Stock for purposes of this Agreement.

    


    SECTION 3.    Restrictions.  The
Participant shall have all rights and privileges of a stockholder as to the
Restricted Stock, including the right to vote (provided, however, that at the
discretion of the Company and prior to the delivery of vested Shares, the
Participant may be required to execute a stockholders agreement in such form as
shall be determined by the Company) and the right to receive dividends or other
distributions with respect to the Restricted Stock, except that the following
restrictions shall apply:

    


    (a)           Subject
to Section 4, the Restricted Stock shall vest and restrictions shall lapse in
accordance with the vesting schedule set forth on the
Notice.  Participant shall not be entitled to delivery of the
certificate or certificates for Shares of Restricted Stock pursuant to Section 5
hereof until the applicable vesting date and upon the satisfaction of all other
applicable conditions.

    


    (b)           Participant
shall not, without the prior written consent of the Company, offer, transfer,
sell, pledge, assign, hypothecate or otherwise encumber or dispose of any
unvested Shares of Restricted Stock otherwise than by will or by the laws of
descent and distribution.  Any attempt by the Participant (or his or
her estate or personal representative, as the case may be) to offer, transfer,
sell, pledge, assign, hypothecate or otherwise encumber or dispose of unvested
Shares of Restricted Stock or any interest in such Shares in a manner contrary
to the restrictions set forth in this Agreement shall be void and of no
effect.

    


    
      
         

      

      
         

        
          

        

      

      
         

      

       

    

    (c)           all
shares of common stock distributed as a dividend or distribution, if any, with
respect to Shares of Restricted Stock prior to the applicable vesting date shall
be delivered to and held by the Company and subject to the same restrictions as
the Shares of Restricted Stock in respect of which the dividend or distribution
was made.

    


    SECTION 4.    Acceleration; Forfeiture of
Restricted Stock.

    


    (a)           If
Participant’s Service to the Company is terminated due to Participant's death or
Disability, then Participant shall be entitled to the immediate full vesting on
the date of termination of all Shares of Restricted Stock that have not then
vested.  Upon the occurrence of a Corporate Transaction or Change in
Control, all Shares of Restricted Stock that have not then vested are subject to
vesting as of the effective date of such Corporate Transaction or Change in
Control in accordance with the provisions of the Plan including, without
limitation, Section 13 of the Plan.

    


    (b)           If
Participant’s Service to the Company terminates for any reason other than as set
forth in Section 4(a) above, all unvested Shares of Restricted Stock granted
hereunder shall automatically be forfeited as of the date of termination and
reacquired for no additional consideration and without the need for any further
action on behalf of the Company.  In the event of any such forfeiture,
all such forfeited Shares of Restricted Stock shall become the property of the
Company and the certificate(s), if any, representing such Shares of Restricted
Stock shall be returned immediately to the Company.

    


    SECTION 5.    Book Entry Form; Conditions
to Issuance of Certificates; Tax Withholding.

    


    (a)           The
Shares of Restricted Stock will initially be issued in uncertificated form, with
the Shares recorded in the name of the Participant in the books and records of
the Company’s transfer agent with appropriate notations regarding the
restrictions on transfer imposed pursuant to this Agreement.

    


    (b)           Upon
vesting of any Shares of Restricted Stock granted herebyand the satisfaction of
all other applicable conditions, the Company shall (i) cause certificates
representing the vested Shares to be issued to the Participant or (ii) credit
such aggregate number of vested Shares to which Participant is entitled to
Participant’s (or designee's) balance account with the Depository Trust Company
(DTC) through its Deposit / Withdrawal At Custodian (DWAC) system; provided, however, that the
Company shall not be required to issue or deliver any such certificate(s) or
credit for any vested Shares prior to the fulfillment of all of the following
conditions:

    


    
      	
               
      

            	
              1.

            	
              The
      Participant or his legal representative shall pay to the Company the full
      amount of all federal and state withholding or other taxes applicable to
      the taxable income of Participant resulting from the grant of Shares of
      Restricted Stock or the lapse or removal of the
      restrictions.  The Committee shall be authorized, in its sole
      discretion, to establish such rules and procedures relating to the use of
      shares of Common Stock to satisfy tax withholding obligations as it deems
      necessary or appropriate to facilitate and promote the conformity of
      Participant's transactions under the Plan and this Agreement with Rule
      16b-3 under the Securities Exchange Act of 1934, as amended, if such Rule
      is applicable to a transaction by
Participant;

            


    

     

    
      
         

      

      
        2

        
          

        

      

      
         

      

    

     

    
      	
               
      

            	
              2.

            	
              The
      completion of any registration or other qualification of the Shares under
      any state or federal law or under rulings or regulations of the Securities
      and Exchange Commission or other governmental regulatory body, which the
      Committee shall, in its sole and absolute discretion, deem necessary and
      advisable;

            


    

    


    
      	
               
      

            	
              3.

            	
              The
      obtaining of any approval or other clearance from any state or federal
      governmental agency that the Committee shall, in its absolute discretion,
      determine to be necessary or advisable;
and

            


    

    


    
      	
               
      

            	
              4.

            	
              The
      lapse of any such reasonable period of time following the date the
      restrictions lapse as the Committee may from time to time establish for
      reasons of administrative
convenience.

            


    

    


    (c)           On
or before the issuance of the stock certificate or certificates representing the
vested Shares of Restricted Stock, the Participant shall deliver to the Company
stock powers endorsed in blank relating to such Shares of the Restricted Stock,
in a form provided by the Company. Participant irrevocably appoints the Company
and each of its officers, employees and agents as his true and lawful attorneys
with power (i) to sign in Participant's name and on Participant's behalf stock
certificates and stock powers covering the Restricted Stock and such other
documents and instruments as the Committee deems necessary or desirable to carry
out the terms of this Agreement and (ii) to take such other action as the
Committee deems necessary or desirable to effectuate the terms of this
Agreement. This power, being coupled with an interest, is
irrevocable.  Participant agrees to execute such other stock powers
and documents as may be reasonably requested from time to time by the Committee
to effectuate the terms of this Agreement.

    


    (d)           The
stock certificate or certificates for the Restricted Stock shall be subject to
such stop-transfer orders and other restrictions as the Company may deem
advisable under the rules, regulations, and other requirements of the Securities
and Exchange Commission, any stock exchange or securities association upon which
the Common Stock is then listed, and any applicable federal or state securities
law, and the Company may cause a legend or legends to be placed on such
certificate or certificates to make appropriate reference to such
restrictions.

    


    SECTION 6.    Representations and
Warranties.

    


    (a)           Participant
hereby represents to the Company that Participant has read in their entirety and
fully understands the provisions of this Agreement and the Plan, has had an
opportunity to obtain the advice of counsel prior to executing this Agreement,
and fully understands all provisions of this Agreement and the Plan, and the
Participant acknowledges that Participant is relying solely on his or her own
advisors and not on any statements or representations of the Company or any of
its agents with respect to the tax consequences of this
Award.  Participant understands that Participant (and not the Company)
shall be responsible for Participant’s own tax liability that may arise as
result of the transactions contemplated by this
Agreement.  Participant understands that Section 83 of the Code, taxes
as ordinary income the fair market value, as defined by the Code, of the Shares
of Restricted Stock as of the date they become “substantially vested” within the
meaning of Section 1.83-3(b) of the regulations promulgated pursuant to Code
Section 83.  Participant understands that Participant may elect to be
taxed at the time the shares of Restricted Stock are granted, rather than at the
time, if any, that they become substantially vested, by filing an election under
Section 83(b) of the Code with the Internal Revenue Service within 30 days from
the date of grant.

    


    
      
         

      

      
        3

        
          

        

      

      
         

      

       

    

    (b)           Participant
acknowledges and agrees that the vesting of shares pursuant to this Agreement is
earned only through his or her continued and satisfactory service to the Company
and not through the award of Restricted Stock hereunder.

    


    (c)           Participant
acknowledges and agrees that this Agreement is not a contract of employment and
that nothing in this Agreement shall confer upon Participant any right with
respect to continuation of service to the Company, nor shall it interfere in any
way with his or her right or the Company’s right to terminate Participant’s
service to the Company at any time, with or without cause.

    


    (d)           Participant
hereby accepts this Restricted Stock Award Agreement subject to all of the terms
and provisions hereof.

    


    (e)           Participant
acknowledges that, as a condition to the vesting of the Restricted Shares, the
representations and warranties of this Section 6 shall be true and correct as of
the vesting date or the date of receipt of any distributions with respect to the
Restricted Stock, as applicable, as if they had been made on such date with
respect to vested Shares of Restricted Stock or any such other distributions, as
applicable.

    


    SECTION 7.    Notices.  Any
notice required to be given or delivered to the Company under the terms of this
Agreement shall be in writing and addressed to the Company at 2600 Kelly Road,
Suite 100, Warrington, Pennsylvania 18976, Attention: Legal Department, or to
such other address as shall be provided in writing to
Participant.  Any notice required to be given or delivered to
Participant shall be in writing and addressed to the most recent address of
Participant, as set forth in the books and records of the
Company.  All notices shall be deemed effective one day after being
sent by Federal Express or similar overnight delivery or three days after being
mailed registered or certified mail, postage prepaid, and properly addressed to
the party to be notified.

    


    SECTION 8.    Miscellaneous.

    


    (a)           Assignment; Binding
Agreement.  This Agreement shall be binding upon and inure to
the benefit of the heirs and representatives of the Participant and the assigns
and successors of the Company, but neither this Agreement nor any rights
hereunder shall be assignable or otherwise subject to hypothecation by the
Participant.

    


    (b)           Entire Agreement;
Amendment.  This Agreement represents the entire agreement of
the parties with respect to the subject matter hereof, except that the
provisions of the Plan are incorporated in this Agreement in their
entirety.  In the event of any conflict between the provisions of this
Agreement and the Plan, the provisions of the Plan shall control. This Agreement
may be amended by the Committee without the consent of the Participant except in
the case of an amendment adverse to the Participant (except as may be permitted
under Section 16(b) of the Plan), in which case the Participant's consent shall
be required.

    


    (c)           Counterparts.  This
Agreement may be signed in one or more counterparts, all of which shall be
considered one and the same agreement.

    


    
      
         

      

      
        4

        
          

        

      

      
         

      

       

    

    (d)           Governing
Law.  This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to the
conflicts of laws principles of such state.

    


    (e)           Severability.  Whenever
possible, each provision in this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of this
Agreement shall be held to be prohibited by or invalid under applicable law,
then (a) such provision shall be deemed amended to accomplish the objectives of
the provision as originally written to the fullest extent permitted by law and
(b) all other provisions of this Agreement shall remain in full force and
effect.

    


    (f)           Conformity to Securities
Laws.  The Participant acknowledges that the Plan and this
Agreement are intended to conform to the extent necessary with all provisions of
the Securities Act of 1933, as amended, and the Exchange Act, and any and all
regulations and rules promulgated thereunder by the Securities and Exchange
Commission, including without limitation Rule 16b-3 under the Exchange Act.
Notwithstanding anything herein to the contrary, the Plan shall be administered,
and the Awards are granted, only in such a manner as to conform to such laws,
rules and regulations. To the extent permitted by applicable law, the Plan and
this Agreement shall be deemed amended to the extent necessary to conform to
such laws, rules and regulations.

    


    (g)           Limitations Applicable to
Section 16 Persons.  Notwithstanding any other provision of the
Plan or this Agreement, if Participant is subject to Section 16 of the Exchange
Act, the Plan and this Agreement shall be subject to any additional limitations
set forth in any applicable exemptive rule under Section 16 of the Exchange Act
(including any amendment to Rule 16b-3 of the Exchange Act) that are
requirements for the application of such exemptive rule. To the extent permitted
by applicable law, this Agreement shall be deemed amended to the extent
necessary to conform to such applicable exemptive rule.

    


    (h)           No Right To Continued
Employment Or Participation; Effect On Other Plans.  This
Agreement shall not confer upon the Participant any right with respect to
continued employment by the Company, a subsidiary or affiliate, nor shall it
interfere in any way with the right of the Company a subsidiary or affiliate to
terminate the Participant's employment at any time.  Payments received
by the Participant pursuant to this Agreement shall not be included in the
determination of benefits under any pension, group insurance or other benefit
plan of the Company or any subsidiaries or affiliate in which the Participant
may be enrolled or for which the Participant may become eligible, except as may
be provided under the terms of such plans or determined by the Company’s board
of directors.

    


    (i)           No Strict
Construction.  No rule of strict construction shall be implied
against the Company, the Committee or any other person in the interpretation of
any of the terms of the Plan, this Agreement or any rule or procedure
established by the Committee.

    


    (j)           Use of the Word
"Participant".  Wherever the word "Participant" is used in any
provision of this Agreement under circumstances where the provision should
logically be construed to apply to the executors, the administrators, or the
person or persons to whom the Restricted Stock may be transferred by will or the
laws of descent and distribution, the word "Participant" shall be deemed to
include such person or persons.

    


    (k)           Further
Assurances.  The Participant agrees, upon demand of the Company
or the Committee, to do all acts and execute, deliver and perform all additional
documents, instruments and agreements (including, without limitation, stock
powers with respect to shares of Common Stock issued as a dividend or
distribution on Restricted Stock) which may be reasonably required by the
Company or the Committee, as the case may be, to implement the provisions and
purposes of this Agreement and the Plan.

    


    
      
         

      

      
        5

        
          

        

      

      
         

      

       

    

    IN WITNESS WHEREOF, the parties hereto
have entered into this Agreement as of the date first above
written.


    


    
      
        	 	 	 
	 	      
                [Participant]

              	 
	 	 	 
	 	DISCOVERY
      LABORATORIES, INC.	 
	 	 	 	 
	
                 

              	
                By:
      

              	/s/ 	 
	 	 	Name:  John
      Cooper	 
	 	 	Title:    President
      and CFO	 
	 	 	 	 


      

      
        
           

        

        
          6

          
            

          

        

        
           

        

      

    

    


    STOCK
POWER


    


    ASSIGNMENT
SEPARATE

    FROM
CERTIFICATE

    


    FOR VALUE RECEIVED, the undersigned
hereby sells, assigns and transfers unto _____________________, ________
(     ) restricted shares of Common Stock of DISCOVERY
LABORATORIES, INC. standing in the undersigned’s name on the books of said
Company, represented by the within Certificate No. ___, and hereby irrevocably
constitutes and appoints _______________________ attorney to transfer the said
shares on the books of the within named Company with full power of substitution
in the premises.

    


    
      
        	 	 	 	 	 	 
	Dated
      	
                 

              	 	 	
                [Participant]

              	 


      

    

    
       

      
         

      

      
        7

        
          

        

      

      
         

      

    

     

    ANNEX
I

     

    DISCOVERY
LABORATORIES, INC.

    NOTICE OF AWARD OF
RESTRICTED STOCK

     

    Pursuant
to the Discovery Laboratories, Inc. 2007 Long-Term Incentive Plan (the “Plan”),
notice is hereby given of the following grant of restricted shares of the Common
Stock, par value $0.001 per share, of Discovery Laboratories, Inc. (the “Corporation”):

     

    Participant:

     

    Award
Date:

     

    Number of Shares of
Restricted Stock:

     

    Vesting Schedule and
Date: In addition to the rights of Participant to vesting of this grant
under the Restricted Stock Award Agreement and the Plan, Participant shall
acquire a vested interest in the Restricted Stock covered by this Notice on the
date of the earliest to occur of the following events:

     

    (i) the
second anniversary of the date of grant;

     

    (ii) the
date of issuance by the United States Food and Drug Administration (FDA) of a
marketing approval with respect to the Corporation’s New Drug Application (NDA)
for Surfaxin® for the
prevention of respiratory distress syndrome (RDS) in premature infants;
or

     

    (iii) the
effective date of a strategic alliance, collaboration agreement or other similar
arrangement between the Corporation and one or more third parties providing for
the support for the development and/or commercialization of one or more of the
Corporation’s lead research and development programs – Surfaxin, Surfaxin LSTM or
Aerosurf®. The
determination of whether a transaction meets the requirements of this vesting
event shall be solely within the discretion of the Board of Directors of the
Corporation, and evidenced by a resolution adopted at any time after the date of
grant;

     

    Provided, further,
that on such date Participant shall be actively providing Service to the
Corporation.  In no event shall any additional Shares of Restricted
Stock vest after Participant’s termination of Service.

     

    Participant
understands and agrees to be bound by the terms set forth in the related
Restricted Stock Award Agreement.  Participant understands and agrees
that the Shares of Restricted Stock are granted subject to and in accordance
with the terms of the Plan.

     

    Definitions. All
capitalized terms used and not otherwise defined in this Notice shall have the
meaning assigned to them in the Restricted Stock Award Agreement.

     

    


    
      	
              DATED:

            	 
      	 
      
	
              DISCOVERY
      LABORATORIES, INC.

            	 
      	
              PARTICIPANT

            
	
              By:   _______________________________

            	 
      	
              _______________________________

            
	
              John
      Cooper

              President
      and CFO

            	 
      	
               [____________]