Exhibit 10.36
ENZON PHARMACEUTICALS, INC.
2001 INCENTIVE STOCK
PLAN
NON-QUALIFIED STOCK
OPTION
Terms and Conditions
1. Grant of Option . The Company hereby grants Employee the right
and option (the “Option”) to purchase all or any part
of an aggregate of the number of shares of the Company’s
common stock, par value $0.01 per share (the “Common
Stock”) set forth on the Notice of Grant of Award, at the
price per share set forth on the Notice of Grant of Award (the
“Exercise Price”) on the terms and conditions set forth
in these Terms and Conditions and in the Plan. It is understood and
agreed that the Exercise Price is the per share Fair Market Value
(as defined in the Plan) of such shares on the date of these Terms
and Conditions. The Option is not intended to be an Incentive Stock
Option within the meaning of Section 422 of the Internal Revenue
Code of 1986, as amended (the “Code”). The Option is
issued pursuant to the Plan and is subject to its terms. A copy of
the Plan has been furnished to Employee. Employee hereby confirms
he/she has received and thoroughly read the Plan. The Company
invites and encourages Employee to contact any member of the
Company’s Human Resources Department with any questions
he/she may have regarding the Plan or these Terms and
Conditions.
2. Expiration. The Option shall terminate at the close of
business on the termination date set forth on the Notice of Grant
of Award or earlier as is prescribed herein. Employee shall not
have any of the rights of a shareholder with respect to the shares
subject to the Option until such shares shall be issued to Employee
upon the proper exercise of the Option.
3. Vesting of Option Rights
. Except as otherwise provided in
Section 5 of these Terms and Conditions, the Option shall become
exercisable in portions in accordance with the schedule set forth
on the Notice of Grant of Award, provided the Employee is employed
by the Company on the vesting date in question.
4. Exercise of Option after Termination of
Employment . The Option
shall terminate and may no longer be exercised if Employee ceases
to be employed by the Company or its subsidiaries, except
that:
(a) If
Employee’s employment shall be terminated for any reason,
voluntary or involuntary, other than for Cause (as defined in
Section 6(d) hereof) or Employee’s death or disability
(within the meaning of Code Section 22(e)(3)), Employee may at any
time within a period of 12 months after such termination exercise
the Option to the extent the Option was exercisable by Employee on
the date of the termination of Employee’s
employment.
(b) If
Employee’s employment is terminated for Cause, the Option
shall be terminated as of the date of termination of
Employee’s employment.
(c) If
Employee shall die while the Option is still exercisable according
to its terms, or if employment is terminated because Employee has
become disabled (within the meaning of Code Section 22(e)(3)) while
in the employ of the Company, and Employee shall not have fully
exercised the Option, such Option may be exercised at any time
within 12 months after the latter of Employee’s death or date
of termination of employment for
disability by Employee, by
his/her personal representatives or administrators, or by his/her
guardians, as applicable, or by any person or persons to whom the
Option is transferred by will or the applicable laws of descent and
distribution, to the extent of the full number of shares Employee
was entitled to purchase under the Option on the date of death or,
if earlier, date of termination for such disability.
(d) Notwithstanding the above, in no case may the
Option be exercised to any extent by anyone after the termination
date of the Option.
5.
Acceleration of Exercisability Upon Change in
Control.
(a) Notwithstanding any installment or delayed
exercise provision contained in these Terms and Conditions that
would result in the Option becoming exercisable in full or in part
at a later date, upon the occurrence of a “Change in
Control” (as defined in Section 6(a) hereof) during the time
Employee is employed by the Company, then all or any portion of the
Option which has not vested in accordance with the terms of Section
3 of these Terms and Conditions as of the effective date of such
Change in Control (the “Non-Vested Portion”) shall vest
immediately prior to such effective date and the Option will
continue to remain exercisable in accordance with the terms
herein.
(b) if the
Option is continued pursuant to Section 5(a) or 10(e) hereof, and
the shares of Common Stock issuable upon exercise of the Option (to
the extent the Continuing Directors have not elected either of the
determinations in Section 5(c) hereof) are replaced with other
equity securities, such other securities must be registered under
the Securities Act of 1933 and be freely transferable under all
applicable federal and state securities laws and regulations. In
such event, the number of shares issuable upon exercise of the
Option shall be determined by using the exchange ratio used for
other outstanding shares of the Company’s Common Stock in
connection with the Change in Control, or if there is no such
ratio, an exchange ratio to be determined by the Continuing
Directors, and the exercise price per share shall be adjusted
accordingly so as to preserve the same economic value in the Option
as existed prior to the Change in Control. Also in the event of any
such Change in Control, all references herein to the Common Stock
shall thereafter be deemed to refer to the replacement equity
securities issuable upon exercise of the Option, references to the
Company shall thereafter be deemed to refer to the issuer of such
replacement securities, and all other terms of the Option shall
continue in effect except as and to the extent modified by this
Section 5(b).
(c) Notwithstanding any contrary provision in these
Terms and Conditions or in the Plan, if a Change in Control shall
occur, the Continuing Directors in their sole discretion, and
without the consent of Employee, (i) may determine that Employee
shall receive, in lieu of some or all of the shares of Common Stock
subject to the Option, as of the effective date of any such Change
in Control, cash in an amount equal to the excess of the Fair
Market Value of such shares on the effective date of such Change in
Control over the Exercise Price, subject to any applicable
withholding for income or payroll taxes and/or (ii) terminate the
Option to the extent it is not exercised as of the date of any such
Change in Control (in which event, the holder of the Option shall
be provided a reasonable opportunity to exercise all or any portion
of the Option prior to the effective date of the Change in
Control).
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6. Definitions . For purposes of these Terms and Conditions,
the following terms shall have the definitions set forth
below:
(a) “Change in
Control” shall mean:
(i) the public announcement
(which, for purposes of this definition, shall include, without
limitation, a report filed pursuant to Section 13(d) of the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”) that any person, entity or “group”, within
the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act,
other than the Company or any of its subsidiaries, has become the
beneficial owner (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 35% or more of the combined voting power
of the Company’s then outstanding voting securities in a
transaction or series of transactions; or
(ii) the “Continuing Directors” (as
defined below) cease to constitute a majority of the
Company’s Board of Directors; or
(iii) the shareholders of the
Company approve:
(A) any consolidation or merger
of the Company in which the Company is not the continuing or
surviving corporation; or
(B) any consolidation or merger
of the Company follow
