FORM OF NON-STATUTORY STOCK OPTION AGREEMENT
(Non-Employee Director)
THIS NON-STATUTORY 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 non-statutory stock
options to, among other individuals, non-employee directors
of the Company (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. The Option is not 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 [in full
on the one-year anniversary of the Date of Grant/in four annual
installments 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 Service as a Director .
(a)
Termination Due to Death, Disability or Retirement
. In the event the Optionee’s service as a
director of the Company 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 service as a director of the Company is terminated
for any reason other than death, Disability or Retirement, 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 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 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 consulting,
confidentiality or non-compete agreement entered into with the
Company or any Subsidiary (including a 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 service 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
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