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FORM OF INCENTIVE STOCK OPTION AGREEMENT
THIS INCENTIVE STOCK OPTION
AGREEMENT is entered into and effective as of this
____ day of ____________, ______ (the “Date
of Grant”), by and between BioSante Pharmaceuticals,
Inc. (the “Company”) and
_________________ (the
“Optionee”).
A. The
Company has adopted the BioSante Pharmaceuticals, Inc. 2008
Stock Incentive Plan (the “Plan”) authorizing the
Board of Directors (the “Board”) of the Company,
or a committee as provided for in the Plan (the Board or such
a committee to be referred to as the
“Committee”), to grant incentive stock options to
employees of the Company and its Subsidiaries (as defined in
the Plan).
B. The
Company desires to give the Optionee an inducement to acquire
a proprietary interest in the Company and an added incentive
to advance the interests of the Company by granting to the
Optionee an option to purchase shares of common stock of the
Company pursuant to the Plan.
Accordingly, the parties
agree as follows:
1.
Grant of Option .
The Company hereby grants
to the Optionee the right, privilege, and option (the
“Option”) to purchase _______________ (______)
shares (the “Option Shares”) of the
Company’s common stock, $0.0001 par value (the
“Common Stock”), according to the terms and
subject to the conditions hereinafter set forth and as set
forth in the Plan. Subject to Section 9 of this
Agreement, the Option is intended to be an “incentive
stock option,” as that term is used in Section 422 of
the Internal Revenue Code of 1986, as amended (the
“Code”).
2.
Option Exercise Price .
The per share price to be
paid by Optionee in the event of an exercise of the Option
will be $______, which represents 100% of the Fair Market
Value of a share of Common Stock on the Date of Grant, as
determined in accordance with the Plan.
3.
Duration of Option and Time of Exercise .
3.1
Initial Period of Exercisability . The Option
will become exercisable with respect to the Option Shares
[immediately/in _____ installments]. [The following
table sets forth the initial dates of exercisability of each
installment and the number of Option Shares as to which this Option
will become exercisable on such dates:
Exercisability
Available for
Exercise
___________________ _______
___________________ _______
___________________ _______
___________________ _______]
[The
foregoing rights to exercise this Option will be cumulative
with respect to the Option Shares becoming exercisable on each
such date.] In no event will this Option be
exercisable after, and this Option will become void and expire
as to all unexercised Option Shares at 5:00 p.m. Lincolnshire,
Illinois time on ______________________ (the
“Time of Termination”).
3.2
Termination of
Employment .
(a)
Termination Due to Death, Disability or Retirement
. In the event the Optionee’s employment with the
Company and all Subsidiaries is terminated by reason of death,
Disability or Retirement, this Option will remain exercisable, to
the extent exercisable as of the date of such termination, for a
period of one year after such termination (but in no event after
the Time of Termination).
(b)
Termination for Reasons Other Than Death, Disability or
Retirement . In the event that the
Optionee’s employment with the Company and all Subsidiaries
is terminated for any reason other than death, Disability or
Retirement, or the Optionee is in the employ of a Subsidiary and
the Subsidiary ceases to be a Subsidiary of the Company (unless the
Optionee continues in the employ of the Company or another
Subsidiary), all rights of the Optionee under the Plan and this
Agreement will immediately terminate without notice of any kind,
and this Option will no longer be exercisable; provided, however,
that if such termination is due to any reason other than
termination by the Company or any Subsidiary for
“cause” (as defined in the Plan), this Option will
remain exercisable to the extent exercisable as of such termination
for a period of three months after such termination (but in no
event after the Time of Termination).
(c)
Breach of Employment, Consulting, Confidentiality or Non-Compete
Agreements . Notwithstanding anything in this
Agreement to the contrary and in addition to the rights of the
Committee under Section 12.4 of the Plan, in the event that the
Optionee materially breaches the terms of any employment,
consulting, confidentiality or non-compete agreement entered into
with the Company or any Subsidiary (including an employment,
consulting, confidentiality or non-compete agreement made in
connection with the grant of the Option), whether such breach
occurs before or after termination of the Optionee’s
employment with the Company or any Subsidiary, the Committee in its
sole discretion may require the Optionee to surrender shares of
Common Stock received, and to disgorge any profits (however defined
by the Committee), made or realized by the Optionee in connection
with this Option or any shares issued upon the exercise or vesting
of this Option.
3.3
Change in Control . If a Change in Control (as
defined in the Plan) of the Company occurs, this Option will become
immediately exercisable in full and will remain exercisable until
the Time of Termination. In addition, if a Change in
Control of the Company occurs, the Committee, in its sole
discretion and without the consent of the Optionee, may determine
that the Optionee will receive, with respect to some or all of the
Option Shares, as of the effective date of any such Change in
Control of the Company, cash in an amount equal to the excess of
the Fair Market Value (as defined in the Plan) of such Option
Shares immediately prior to the effective date of such Change in
Control of the Company over the option exercise price per share of
this Option (or, in the event that there is no excess, that this
Option will be terminated).
4.
Manner of Option Exercise .
4.1
Notice . This Option may be exercised by the
Optionee in whole or in part from time to time, subject to the
conditions contained in the Plan and in this Agreement, by
delivery, in person, by facsimile or electronic transmission or
through the mail, to the Company at its principal executive office
in Lincolnshire, Illinois, of a written notice of
exercise. Such notice must be in a form satisfactory to
the Committee, must identify the Option, must specify the number of
Option Shares with respect to which the Option is being exercised,
and must be signed by the person or persons so exercising the
Option. Such notice must be accompanied by payment in
full of the total purchase price of the Option Shares
purchased. In the event that the Option is being
exercised, as provided by the Plan and Section 3.2 above, by any
person or persons other than the Optionee, the notice must be
accompanied by appropriate proof of right of such person or persons
to exercise the Option. As soon as practicable after the
effective exercise of the Option, the Optionee will be recorded on
the stock transfer books of the Company as the owner of the Option
Shares pu
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