NON-QUALIFIED STOCK OPTION AGREEMENT
THIS
NON-QUALIFIED STOCK OPTION AGREEMENT (“
Agreement ”)
is made and entered into as of the __ day of ______, 200_
(the
“Grant Date” )
between
Lev Pharmaceuticals, Inc. ,
a Delaware corporation having a principal place of business at 675
Third Avenue, Suite 2200, New York, New York 10017 (“
Corporation ”),
and
___________ (“
Holder ”),
with respect to the following facts:
The
Corporation’s Board of Directors has determined that it
is in the best interests of the Corporation and its
stockholders to grant the option provided for herein to the
Holder. The parties agree as follows:
1. OPTION GRANTED. Corporation
grants to Holder an option ” (the
“Option” )
to purchase the number of shares of $.01 par value common stock of
Corporation (the
“Common Stock” )
at a purchase price as described in
Appendix “A .
2. TIME OF EXERCISE OF OPTION. Holder
may exercise the Option at any time as described in
Appendix “A” ,
and from time to time until termination of the Option as provided
in Paragraph 11 of this Agreement.
3. METHOD OF EXERCISE. The
Holder shall exercise the Option by delivery to the Corporation at
its principal place of business, of (i) a written notice of
exercise signed by the person or persons exercising the Option
specifying the number of Options being exercised; and (ii) a
certified or cashier’s check in payment of the Option
purchase price in U.S. dollars; or (iii) full payment in shares of
Corporation’s Common Stock held for the requisite period
necessary to avoid a change to Corporation’s reported
earnings and valued at fair market value as determined pursuant to
Section 2.17 of the Corporation’s 2004 Omnibus Incentive
Compensation Plan (the “Plan”); or (iv) through a
cashless exercise program implemented by the Corporation’s
Board of Directors. Promptly upon receipt of such notice of
exercise and the appropriate consideration, the Corporation will
deliver or cause to be delivered to Holder stock certificate(s)
representing the number of shares of the Corporation’s Common
Stock purchased in accordance with the provisions of this Agreement
and during Holder’s lifetime, duly registered in the name of
the Holder and, at the Holder’s election, his or her
spouse.
4. CAPITAL ADJUSTMENTS.
(a)
The
existence of the Option shall not affect in any way the right or
power of Corporation or its stockholders to make or authorize any
or all adjustments, recapitalizations, reorganizations, or other
changes in Corporation’s capital structure or its business,
or any merger or consolidation of Corporation or any issue of
bonds, debentures, preferred stock having a preference to or
affecting Corporation’s common stock or of any rights
thereof, or the issuance of any securities convertible into any
such common stock or of any rights, options, or warrants to
purchase any common stock, or the dissolution or liquidation of
Corporation, any sale or transfer of all or any part of its assets
or business, or any other act or proceeding of Corporation, whether
of a similar character or otherwise.
(b) The
securities with respect to which the Option is granted are shares
of Common Stock of the Corporation as presently constituted, but if
and whenever, prior to the delivery by Corporation of all the
shares of the common stock with respect to which the Option is
granted, Corporation shall effect a subdivision or consolidation of
shares or other capital readjustment, the payment of a stock
dividend, or other increase or reduction of the number of shares of
such common stock outstanding without receiving compensation
therefore in money, services, or property, the number of shares of
such common stock then remaining subject to the Option shall (a) in
the event of an increase in the number of outstanding shares of
such common stock, be proportionately increased, and the cash
consideration payable per share of such common stock shall be
proportionately reduced; and (b) in the event of a reduction in the
number of outstanding shares of such common stock, be
proportionately reduced, and the cash consideration payable per
share of such common stock shall be proportionately
increased.
5. MERGER AND CONSOLIDATION. In
the event of a merger of one or more corporations with and into
Corporation or any consolidation of Corporation and one or more
corporations, subject to the terms and conditions of Section 17 of
the Plan, this Option may be assumed or an equivalent option may be
substituted by such surviving corporation or a parent or subsidiary
of such surviving corporation.
6. INVESTMENT UNDERTAKING. The
Holder will hold the Option and the rights constituent thereto for
investment and not with an intention of distribution, and upon
exercise will deliver a letter confirming the Holder’s
nondistributive intent with respect to the shares of
Corporation’s Common Stock received as a result of the
exercise of the Option.
7. REPRESENTATIONS OF CORPORATION. During
such time as the Option remains outstanding and unexpired,
Corporation will reserve for issuance, upon the exercise of the
Option, the number of shares of Corporation’s Common Stock
that are subject to the Option. The shares of Corporation’s
Common Stock subject to the Option, when issued, shall be fully
paid and nonasessable. Corporation will pay, when due and payable,
any and all taxes or fees that may be payable by Corporation with
respect to the grant of the Option or the issuance of any shares of
Corporation’s Common Stock or certificates therefore subject
to the Option. This does not include, however, any federal, state
or other personal income tax payable by Holder because of (i) the
grant of the Option; (ii) the issuance of any share of the
Corporation’s Common Stock upon exercise thereof; or (iii)
any subsequent disposition of such shares, which shall remain the
obligation of Holder.
8. WITHOLDING TAXES. If
Corporation determine
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