Exhibit
10.46


 


Form of Director
Deferred Stock Unit Agreement


 


IKARIA, INC.


 


Director Deferred Stock Unit Agreement


Amended and Restated 2010 Long Term Incentive Plan


 


NOTICE OF GRANT


 


This
Deferred Stock Unit Agreement (this “Agreement”) is made as of the
Agreement Date between Ikaria, Inc. (the “Company”), a Delaware
corporation, and the Participant.


 


I.              Agreement Date


 


Date:


 


II.            Participant Information


 


Participant:


Participant Address:


 


III.           Grant Information


 


Grant Date:


Deferred Stock Units:


 


IV.           Vesting Table


 


	
  Vesting Date

  	
   

  	
  DSUs that Vest

  	
   

  
	
  First anniversary of the Grant Date

  	
   

  	
  100

  	
  %

  



 


This
Agreement includes this Notice of Grant and the following Exhibits, which are
expressly incorporated by reference in their entirety herein:


 


Exhibit A
— General Terms and Conditions


Exhibit B
— Amended and Restated 2010 Long Term Incentive Plan


 


IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Agreement Date.


 


	
  IKARIA,
  INC.

  	
   

  	
  PARTICIPANT

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Name:

  
	
  Title:

  	
   

  	
   

  



 


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Director Deferred Stock Unit Agreement


Amended and Restated 2010 Long Term Incentive Plan


 


EXHIBIT A


 


GENERAL TERMS AND CONDITIONS


 


For
valuable consideration, receipt of which is acknowledged, the parties hereto
agree as follows:


 


1.                                       Grant of DSUs; Condition of Grant.


 


Grant of DSUs.  In consideration of services
rendered to the Company by the Participant, the Company has granted to the
Participant, subject to the terms and conditions set forth in this Agreement
and in the Company’s Amended and Restated 2010 Long Term Incentive Plan (the “Plan”),
an award of Deferred Stock Units (the “DSUs”),
representing an award of the number of DSUs (the “Share Number”) set
forth in the Notice of Grant that forms part of this Agreement (the “Notice
of Grant”).  The DSUs entitle the
Participant to receive, subject to the vesting of the DSUs described in Section 2
below and at the time set forth in Section 3 below, one share of common
stock, $0.01 par value per share, of the Company (the “Common Stock”)
for each DSU that vests and any related Dividend Equivalents (as defined
below).  The shares of Common Stock that
are issuable upon vesting of the DSUs are referred to in this Agreement as the “Shares.”


 


2.                                       Vesting of the DSUs.


 


(a)                                  Vesting of the DSUs.  Subject to the other provisions of this Section 2,
the DSUs shall vest in accordance with the Vesting Table set forth in the
Notice of Grant (the “Vesting Table”).


 


(b)                                 Change in Control.  Upon a “change in control event” with respect
to the Company within the meaning of Section 409A of the Internal Revenue
Code and the guidance issued thereunder (“Section 409A”), the
vesting of the DSUs shall accelerate in full. 
Such event is referred to herein as a “Section 409A Change in
Control”.


 


(c)                                  Service Termination.


 


(1)                                  Termination of the Participant.  Except to the
extent specifically otherwise provided in another agreement between the
Particpant and the Company or in Section 2(c)(2) below, upon the
termination of the Participant’s service to the Company as a director,
employee, officer or advisor for any reason or no reason, all DSUs that
have not vested pursuant to Section 2(a) or Section 2(b) shall
be automatically forfeited as of such termination.


 


(2)                                  Death.  Upon the death of the Participant, the
vesting of the DSUs shall accelerate in full.


 


(3)                                  Termination for Cause.  Notwithstanding anything herein to the
contrary, in the event that the Participant is terminated for Cause, any DSUs
that have vested 


 


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shall be forfeited and no
Shares or Dividend Equivalents shall be issued pursuant to Sections 3 and 4,
respectively, to the Participant.  If the
Participant is party to an employment or severance agreement with the Company
that contains a definition of “cause” for termination of service, “Cause” shall
have the meaning ascribed to such term in such agreement.  Otherwise, “Cause” shall mean (i) Participant’s
willful failure substantially to perform his or her duties and responsibilities
to the Company or deliberate violation of a Company policy; (ii) Participant’s
commission of any act of fraud, embezzlement, dishonesty or any other willful
misconduct that has caused or is reasonably expected to result in material
injury to the Company; (iii) unauthorized use or disclosure by Participant
of any proprietary information or trade secrets of the Company or any other
party to whom the Participant owes an obligation of nondisclosure as a result
of his or her relationship with the Company; or (iv) Participant’s willful
breach of any of his or her obligations under any written agreement or covenant
with the Company (including, without limitation, breach by the Participant of
any provision of any employment, consulting, advisory, nondisclosure,
non-competition or other similar agreement between the Participant and the
Company), as determined by the Board, which determination shall be conclusive.


 


(4)                                  Service with Affiliated or Successor Companies.  For purposes of this Agreement,
service to the Company shall include service with a parent or subsidiary of the
Company (each as defined under the Plan), or any successor to the Company.


 


3.                                       Issuance of Shares.


 


(a)                                  The Shares that are subject to vested DSUs shall be issued to the
Participant (or his or her estate, if applicable) or to the broker designated
by the Participant (or his or her estate, if applicable), in certificated or
uncertificated form, on the earliest to occur of:


 


(1)                                  The Participant’s “separation from service” from the Company within the
meaning of Section 409A;


 


(2)                                  The Participant’s “disability” within the meaning of Section 409A;


 


(3)                                  The Participant’s death; and


 


(4)                                  A Section 409A Change in Control.


 


(b)                                 In no event shall the Company or the Participant have any right to
accelerate or defer issuance of the Shares to a time or event other than as set
forth in Section 3(a) unless permitted or required by Section 409A.


 


(c)                                  Only if the Participant is a “specified employee” of the Company (within
the meaning of Section 409A) and such Shares are issued to the Participant
as a result of his or her separation from service (within the meaning of Section 409A),
the delivery of the Shares shall be delayed until the date that is the earlier
of (1) six months and one day after the date of the separation from service
and (2) the date of the Participant’s death.


 


(d)                                 Except as set forth in Section 4, the Participant shall have no
rights as a stockholder of the Company with respect to the Shares of Common
Stock underlying the DSUs, including no voting rights, until such time as the
Shares, if any, are issued to the Participant pursuant to this Section 3.


 


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4.                                       Dividends.  An amount equal to any dividends or other
distributions that are declared and paid by the Company with respect to the
number of Shares of Common Stock underlying the vested portion of the DSUs (“Dividend
Equivalents”) shall be credited to an account for the Participant and such
Dividend Equivalents shall be settled, in the discretion of the Board, in
either cash or shares of Common Stock having a value equal to the amount of
such account, at the time that the Shares are delivered to the Participant
pursuant to Section 3(a) of this Agreement.


 


5.                                       Withholding Taxes.


 


(a)                                  Participant acknowledges that he or she has reviewed with his or her own
tax advisors the federal, state, local and foreign tax consequences of this
investment and the actions contemplated by this Agreement.  Participant affirms that he or she is relying
solely on such advisors and not on any statements or representations of the
Company or any of its agents.


 


(b)                                 The Company’s obligation to issue Shares to Participant pursuant to Section 3
shall be subject to Participant’s satisfaction of all applicable income tax
(including federal, state and local taxes), social insurance, payroll tax, or
other tax related withholding requirements associated with or related to the
grant, vesting or delivery of the Shares (“Withholding Taxes”).


 


6.                                       Restrictions on Transfer.  Neither the DSUs nor any interest therein may
be sold, assigned, transferred, pledged or otherwise encumbered by the
Participant, either voluntarily or by operation of law, except by will or the
laws of descent and distribution.  The
terms of this Agreement shall be binding upon the executors, administrators,
heirs, successors and assigns of the Participant.


 


7.                                       Effect of Transaction.


 


(a)                                  In connection with a Transaction (as defined in the Plan), the Board of
Directors or a designated committee thereof (the “Committee”) may take any one
or more of the following actions with respect to the DSUs on such terms as the
Committee determines (except to the extent specifically otherwise provided in
another agreement between the Company and the Participant):  (i) provide that outstanding DSUs shall
become vested upon such Transaction, (ii) provide that the DSUs shall be
assumed, or substantially equivalent DSUs shall be substituted, by the
acquiring or succeeding corporation (or an affiliate thereof), (iii) in
the event of a Transaction under the terms of which holders of Common Stock
will receive upon consummation thereof a cash payment for each share
surrendered in the Transaction (the “Acquisition Price”), provide for a
cash payment to Participant with respect to each DSU held by a Participant, to
be paid at the time set forth in Section 3(a), in an amount equal to (A) the
number of DSUs vested upon or immediately prior to such Transaction multiplied
by (B) the excess of (I) the Acquisition Price over (II) any
applicable tax withholdings, in exchange for the termination of such Award,
(iv) provide that, in connection with a liquidation or dissolution of the
Company, the DSUs shall convert into the right to receive, at the time set
forth in Section 3(a), the liquidation proceeds (if applicable, net of any
applicable tax withholdings), (v) any other action permitted under the
Plan and (vi) any combination of the foregoing.  In taking any of the actions permitted under
this Section 7(a), the Board shall not be obligated by the Plan or this 


 


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Agreement to treat all Awards
under the Plan, all Awards held by Participant, or all Awards of the same type,
identically.


 


(b)                                 Notwithstanding the terms of Section 7(a), (i) if the
Transaction constitutes a Section 409A Change in Control, then no
assumption or substitution shall be permitted pursuant to Section 7(a)(ii) and
instead the Shares with respect to any vested DSUs shall be issued to the
Participant upon such Transaction consistent with Section 3(a) of this
Agreement; and (ii) the Committee may only undertake the actions set forth
in clauses (i), (iii), (iv) or (v) of Section 7(a) if the
Transaction constitutes a Section 409A Change in Control and/ or such
action is permitted or required by Section 409A of the Code; if the
Transaction is not a Section 409A Change in Control or such action is not
permitted or required by Section 409A of the Code, and the acquiring or
succeeding corporation does not assume or substitute the DSUs pursuant to
clause (ii) of Section 7(a), then the unvested DSUs shall terminate
immediately prior to the consummation of the Transaction without any payment in
exchange therefor.


 


(c)                                  For purposes of Section 7(a)(ii), the DSU shall be considered
assumed if, following consummation of the Transaction, such award confers the
right to receive pursuant to the terms of such award, for each share of Common
Stock subject to the DSU immediately prior to the consummation of the
Transaction, the consideration (whether cash, securities or other property)
received as a result of the Transaction by holders of Common Stock for each
share of Common Stock held immediately prior to the consummation of the
Transaction (and if holders were offered a choice of consideration, the type of
consideration chosen by the holders of a majority of the outstanding shares of
Common Stock); provided, however, that if the
consideration received as a result of the Transaction is not solely common
stock of the acquiring or succeeding corporation (or an affiliate thereof), the
Company may, with the consent of the acquiring or succeeding corporation,
provide for the consideration to be received upon the exercise or settlement of
the award to consist solely of such number of shares of common stock of the
acquiring or succeeding corporation (or an affiliate thereof) that the
Committee determined to be equivalent in value (as of the date of such
determination or another date specified by the Committee) to the per share
consideration received by holders of outstanding shares of Common Stock as a
result of the Transaction.


 


8.                                       Miscellaneous.


 


(a)                                  No Rights to Service.  The Participant acknowledges and agrees that
the grant of the DSUs and their vesting pursuant to Section 2 do not
constitute an express or implied promise of a continued service relationship
for the vesting period of the DSUs, or for any period.


 


(b)                                 Section 409A.  This Agreement is intended to comply with the
requirements of Section 409A and shall be construed consistently
therewith.  In any event, the Company
makes no representations or warranties and will have no liability to the
Participant or to any other person, if any of the provisions of or payments
under this Agreement are determined to constitute nonqualified deferred
compensation subject to Section 409A but that do not satisfy the
requirements of that Section. 
Notwithstanding anything herein to the contrary, the rights provided for
under this Agreement shall constitute an unfunded and unsecured promise of the
Company.


 


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(c)                                  Entire Agreement.  This Agreement and the Plan constitute the
entire agreement between the parties, and supersede all prior agreements and
understandings, relating to the subject matter of this Agreement.  In the event of a conflict between the terms
and provisions of the Plan and the terms and provisions of this Agreement, the
Plan terms and provisions shall prevail.


 


(d)                                 Governing Law.  This Agreement shall be construed,
interpreted and enforced in accordance with the internal laws of the State of
Delaware, without regard to any applicable conflict of law principles.


 


(e)                                  Interpretation.  The interpretation and construction of any
terms or conditions of the Plan or this Agreement by the Committee shall be
final and conclusive.


 


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EXHIBIT B


 


AMENDED AND RESTATED 2010 LONG TERM INCENTIVE PLAN


 


See
Amended and Restated 2010 Long Term Incentive Plan of Ikaria, Inc., filed as Exhibit
10.3 to Ikaria, Inc.’s Amendment No. 1 to Registration Statement on Form S-1, filed
with the Securities and Exchange Commission on August 17, 2010.


 


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