exv10w4






Exhibit 10.4





o      Participant’s Copy




o      Company’s Copy




Biodel Inc.

2010 Stock Incentive Plan

Restricted Stock Unit Agreement



To                     :




          Biodel Inc. (the “Company”) has granted you (the “Grant”) on                                         , 20___
restricted stock units as set forth on Exhibit A to this Agreement (the “RSUs”) under its 2010
Stock Incentive Plan (the “Plan”), subject to the Vesting Schedule specified on Exhibit A.




          The Grant is subject in all respects to the applicable provisions of the Plan. This Agreement
does not cover all of the rules that apply to the Grant under the Plan, and the Plan defines any
capitalized terms in this Agreement that this Agreement does not define.




          In addition to the Plan’s terms and restrictions, the following terms and restrictions apply:




	 	 	 

	Vesting Schedule

	 	The Grant becomes nonforfeitable (“Vested”) as to some or all of the RSUs only as provided on Exhibit A.
	 
	 	 
	Distribution Date

	 	You will receive a distribution of shares (the “Shares”) of Company common stock (“Common Stock”) equivalent
to your Vested RSUs on the date determined under Exhibit A (the “Distribution Date”), subject to any
overriding provisions in the Plan.
	 
	 	 
	Limited Status

	 	You understand and agree that the Company will not consider you a shareholder for any purpose with respect to
the Shares, unless and until the Shares have been issued to you on the Distribution Date. You will receive
dividend equivalents with respect to the RSUs, measured using the Shares they represent and beginning as the
RSUs become Vested, with the amounts payable with or promptly after payment to shareholders of the dividends,
but, in any event, no later than March 15 of the year following the year in which such dividends are
declared.
	 
	 	 
	Voting

	 	RSUs cannot be voted. You may not vote the Shares unless and until the Shares are distributed to you.
	 
	 	 
	Restrictions 


and 


Forfeiture

	 	You may not sell, assign, pledge, encumber, or otherwise transfer any
interest (“Transfer”) in the Shares until the Shares are distributed to you.
Any attempted Transfer that precedes the Distribution Date is invalid.
	 
	 	 
	 

	 	Unless the Administrator determines otherwise at any time or Exhibit A
provides otherwise, if your service with the Company terminates for any
reason before all of your RSUs are Vested, then you will forfeit such
unvested RSUs (and the Shares to which they relate) to the extent that such
RSUs do not otherwise Vest as a result of the termination. The forfeited
RSUs will then immediately revert to the Company. You will receive no
payment for RSUs that you forfeit.
	 
	 	 
	Additional 

Conditions

	 	The Company may postpone issuing and delivering any Shares for so
long as the Company determines to be advisable to satisfy the following:
	to Receipt
	 	 






	 	 	 	 	 

	 

	 	 	 	its completing or amending any securities registration or qualification of the Shares or its or your
satisfying any exemption from registration under any Federal or state law, rule, or regulation;






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	 	 	 	its receiving proof it considers satisfactory that a person or entity seeking to receive the Shares after
your death is entitled to do so;
	 
	 	 	 	 
	 

	 	 	 	your complying with any requests for representations under the Grant and the Plan; and
	 
	 	 	 	 
	 

	 	 	 	its or your complying with any federal, state, or local tax withholding obligations.






	 	 	 

	Taxes and
Withholding

	 	The RSUs provide tax deferral, meaning that they are not taxable to you
until you actually receive Shares on or around the Distribution Date. You will then owe taxes at ordinary income
tax rates as of the Distribution Date at the Shares’ value.
	 
	 	 
	 

	 	The Company is required to withhold (in cash from salary or other amounts
owed you) the applicable percentage of the value of the Shares on the
Distribution Date, regardless of whether you sell them. If the Company does
not choose to do so, you agree to arrange for payment of the withholding
taxes and/or confirm that the Company is arranging for appropriate
withholding. 
	 
	 	 
	Representations 

from You

	 	If the Vesting provisions of your RSU grant are satisfied and you receive
Shares at a time when the Company does not have a current
registration statement (generally on Form S-8) under the Act that covers issuances of Shares to you, you must
comply with the following before the Company will release the Shares to you. You must:






	 	 	 	 	 

	 

	 	 	 	represent to the Company, in a manner satisfactory to the Company’s counsel, that you are acquiring
the Shares for your own account and not with a view to reselling or distributing the Shares; and
	 
	 

	 	 	 	agree that you will not sell, transfer, or otherwise dispose of the Shares unless:







a registration statement under the Act is effective at the time of disposition with respect to
the Shares you propose to sell, transfer, or otherwise dispose of; or





the Company has received an opinion of counsel or other information and representations it
considers satisfactory to the effect that, because of Rule 144 under the Act or otherwise, no registration
under the Act is required.



	 	 	 

	Additional 

Restriction

	 	You will not receive the Shares if issuing the Shares would violate any
applicable federal or state securities laws or other laws or regulations.
	 
	 	 
	No Effect on 

Employment 

or Other 

Relationship

	 	Nothing in this Agreement restricts the Company’s rights or those of any
of its affiliates to terminate your employment or other relationship at any
time, with or without cause. The termination of your relationship, whether
by the Company or any of its affiliates or otherwise, and regardless of the reason for such termination, has
the consequences provided for under the Plan and any applicable employment or severance agreement or plan.
	 
	 	 
	No Effect on 

Running Business

	 	You understand and agree that the existence of the RSU will not affect in
any way the right or power of the Company or its stockholders to make or authorize any adjustments,
recapitalizations, reorganizations, or other changes in the Company’s capital structure or its business, or
any merger or consolidation of the Company, or any issuance of bonds, debentures, preferred or other stock,
with preference ahead of or convertible into, or otherwise affecting the Company’s common stock or the rights
thereof, or the dissolution or liquidation of






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	 	the Company, or any sale or transfer of all or any part of its
assets or business, or any other corporate act or proceeding, whether or not of a similar character to those
described above.
	 
	 	 
	Section 409A

	 	This Agreement is intended to comply with the requirements of Section 409A of the Internal Revenue Code and
must be construed consistently with that section. Notwithstanding anything in the Plan or this Agreement to
the contrary, if the
Vested portion is increased in connection with your “separation from
service” within the meaning of Section 409A, as determined by the Company),
other than due to death, and if (x) you are then a “specified employee”
within the meaning of Section 409A at the time of such separation from
service (as determined by the Company, by which determination you agree you
are bound) and (y) the payment under such accelerated RSUs will result in
the imposition of additional tax under Section 409A if paid to you within
the six month period following your separation from service, then the
payment under such accelerated RSUs will not be made until the earlier of
(i) the date six months and one day following the date of your separation
from service or (ii) the 10th day after your date of death.
Neither the Company nor you shall have the right to accelerate or defer the
delivery of any such payments or benefits except to the extent specifically
permitted or required by Section 409A. In any event, the Company makes no
representation or warranty and shall have no liability to you or any other
person, if any provisions of or payments under this Agreement are determined
to constitute deferred compensation subject to Code Section 409A but not to
satisfy the conditions of that section.
	 
	 	 
	Unsecured 

Creditor

	 	This Agreement creates a contractual obligation on the part of the
Company to make payment under the RSUs credited to your account at the
time provided for in this Agreement. Neither you nor any other party claiming an
interest in deferred compensation hereunder shall have any interest whatsoever in
any specific assets of the Company. Your right to receive payments hereunder is
that of an unsecured general creditor of Company.
	 
	 	 
	Governing Law

	 	The laws of the State of Delaware will govern all matters relating
to this Agreement, without regard to the principles of conflict of laws.
	 
	 	 
	Notices

	 	Any notice you give to the Company must follow the procedures then in
effect. If no other procedures apply, you must send your notice in writing by
hand or by mail to the office of the Company’s Secretary. If mailed, you should
address it to the Company’s Secretary at the Company’s then corporate
headquarters, unless the Company directs participants to send notices to another
corporate department or to a third party administrator or specifies another
method of transmitting notice. The Company and the Administrator will address
any notices to you at your office or home address as reflected on the Company’s
personnel or other business records. You and the Company may change the address
for notice by like notice to the other, and the Company can also change the
address for notice by general announcements to participants.
	 
	 	 
	Plan Governs

	 	Wherever a conflict may arise between the terms of this Agreement and
the terms of the Plan, the terms of the Plan will control.






	 	 	 	 	 	 	 

	 	 	Biodel Inc.	 	 
	 
	 	 	 	 	 	 
	Date:                                  

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 






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ACKNOWLEDGMENT




          I acknowledge I received a copy of the Plan. I represent that I have read and am familiar
with the Plan’s terms. I accept the Grant subject to all of the terms and provisions of this
Agreement and of the Plan under which the Grant is made, as the Plan may be amended in accordance
with its terms. I agree to accept as binding, conclusive, and final all decisions or
interpretations of the Administrator concerning any questions arising under the Plan with respect
to the Grant.




	 	 	 	 	 	 	 	 	 

	Date:
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 

	 	 	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 	 	 





          No one may sell, transfer, or distribute the securities covered by the Grant without an
effective registration statement relating thereto or an opinion of counsel satisfactory to the
Company or other information and representations satisfactory to the Company that such registration
is not required.




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Biodel Inc.

2010 Stock Incentive Plan

Restricted Stock Unit




Exhibit A



Recipient Information:




	 	 	 	 	 

	Name:
	 	 	 	 
	 

	 	 

	 	 
	Signature: X
	 	 	 	 
	 

	 	 

	 	 






Grant Information:




	 	 	 	 	 	 	 

	RSUs:                                         

	 	Date of Grant:	 	 	 	 
	 

	 	 	 	 

	 	 






	 	 	 

	Vesting Schedule

	 	The Grant is Vested as to                      of the
RSUs on each of the next                      anniversaries of
the Date of Grant (each a “Vesting Date”), assuming
you remain a service provider to the Company
through those dates.
	 
	 	 
	 

	 	Any RSUs that would have Vested in the 12
months following your death or Disability will Vest
instead upon your death or Disability.
	 
	 	 
	 

	 	If a Change of Control occurs before at
least 50% of your original number of RSUs have
Vested, an additional number of RSUs will Vest upon
closing of the Change of Control such that you will
be Vested, cumulatively, in 50% of your RSUs, with
payment of any such additional RSUs subject to the
Section 409A provisions in the agreement to which
this Exhibit is attached. In addition, if your
employment ends on or within 12 months following
the closing of a Change of Control because (i) the
Company terminates your employment without Cause
(as defined below and not on death or Disability)
or (ii) you resign for Good Reason (as defined
below), any then unvested RSUs will Vest on your
cessation of employment.
	 
	 	 
	Grant Expiration Rules

	 	You will forfeit any unvested portions of the Grant
immediately when you cease to be employed by (or a
member of the Board of) the Company.
	 
	 	 
	Distribution Date

	 	Your Distribution Date for any then Vested
RSUs will be the earliest of the following:






	 	 	 	 	 

	 

	 	 	 	Your Separation from Service (as defined under Code Section
409A),
	 
	 	 	 	 
	 

	 	 	 	A Change in Control (subject to the provisions on Section
409A in the agreement), or
	 
	 	 	 	 
	 

	 	 	 	a date to be determined by the Company between January 1 and
March 15 of the year following the year in which portions of
the RSUs Vest.






	 	 	 

	 

	 	Any RSUs that Vest after the Distribution Date (and have not been
forfeited on termination of employment) will have a Distribution Date
as soon as practicable after each Vesting Date but, in any event, no
later than 30 days thereafter. The Distribution Date may be revised
as provided in the Plan in the event of certain events involving the
ownership of the Company.






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Definitions




	 	 	 

	          Cause

	 	For purposes solely of this Grant, termination of your employment will be for
“Cause” if it is for any of the following:
	 
	 	 
	 

	 	(a)   Your refusal to carry out any of
your material lawful duties or any directions or instructions of
the Board or senior management of the Company that are
reasonably consistent with those duties;

	 
	 	 
	 

	 	(b)   Your failure to perform
satisfactorily any of your lawful duties that are consistent
with duties for any similarly situated individual or any
directions or instructions of the Board or senior management
that are consistent with those duties, as long as you have been
given notice and have failed to correct any such failure within
10 days thereafter (unless any such correction by its nature
cannot be done in 10 days, in which event you will have a
reasonable time to correct the failure) and provided further
that the Company shall have no such obligation to give notice
and you will have no such opportunity to correct failures more
than two times in any 12 calendar month period;

	 
	 	 
	 

	 	(c)   Your violation of a local, state
or federal law involving the commission of a crime, other than
minor traffic violations, or any other criminal act involving
moral turpitude;

	 
	 	 
	 

	 	(d)   Your gross negligence, willful
misconduct, or breach of your duty to the Company involving
self-dealing or personal profit;

	 
	 	 
	 

	 	(e)   Your current abuse of alcohol or
controlled substances; deception, fraud, misrepresentation or
dishonesty; or any incident materially compromising your
reputation or ability to represent the Company with investors,
customers or the public; or

	 
	 	 
	 

	 	(f)    Your other material violation of
any provision of any employment, retention, severance, or change
in control agreement covering you not described in (a) or (b)
above, subject to the same notice and opportunity-to-correct
provisions as are set forth in (b) above.

	 
	 	 
	Disability

	 	For the purposes solely of this Grant, “Disability” means your
inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period
of not less than 12 months. You shall not be deemed to have a
Disability until proof of the existence thereof shall have
been furnished to the Board of Directors in such form and
manner, and at such times, as the Board of Directors may
require. Any determination by the Board of Directors that you
do or do not have a Disability shall be final and binding upon
you and the Company.
	 
	 	 
	Good Reason

	 	For purposes solely of this Grant, your resignation will be
for “Good Reason” if it is for any of the following without
your consent:
	 
	 	 
	 

	 	(a)   A material reduction of your
annual base salary, regardless of any change in your duties or
responsibilities;







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	 	(b)   Any material diminution in your
position, authority, duties or responsibilities or any other
action by the Company that results in a material diminution in
such position, authority, duties or responsibilities, excluding
for this purpose an isolated and inadvertent action not taken in
bad faith and that is remedied by the Company within 10 days
after the Company has received notice of such action from you,
provided that this clause (b) will only apply to you if a
substantially comparable provision also
exists in an employment, retention, severance, or change in
control agreement covering you;

	 
	 	 
	 

	 	(c)   The Company’s requiring you to be
based at any office or location more than 50 miles from the
location of your then assigned worksite; or

	 
	 	 
	 

	 	(d)   Any other material violation by
the Company of any provision of an employment agreement or other
agreement under which you are providing services to the Company.

	 
	 	 
	 

	 	Notwithstanding the foregoing, no basis for a termination for Good
Reason will be deemed to exist unless you notify the Company in
writing of any event in (a) through (d) above within 90 days of the
first occurrence of such event and the Company or its successor fails
to cure any such event within 30 days after receipt of the notice.
Furthermore, your termination of employment for Good Reason must
occur no later than one year following the initial existence of such
condition.






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