PHARMATHENE, INC. 2007 LONG-TERM INCENTIVE PLAN FORM OF GRANT OF NONQUALIFIED STOCK OPTION

 

 

 

 

Date of Grant:

 

THIS NONQUALIFIED STOCK OPTION GRANT (this “Grant”), dated as of the above date (the “Date of Grant”), is made by PharmAthene, Inc., a Delaware corporation (the “Company”) to ___________ (the “Participant”), who is an employee of the Company.

 

WHEREAS, the Company’s Board of Directors (the “Board”) has adopted and the shareholders have approved the 2007 Long-Term Incentive Plan (the “Plan”); and

 

WHEREAS, the Plan provides for the granting of stock options by the Board, which may act through a committee of the Board (the “Committee”), to key employees of the Company to purchase shares of the common stock of the Company, $0.0001 par value per share (the “Common Stock”), in accordance with the terms and provisions thereof; and

 

WHEREAS, the Board considers the Participant to be a person who is eligible for a grant of stock options under the Plan, and has determined that it would be in the best interest of the Company to grant the nonqualified stock options documented herein;

 

NOW, THEREFORE, the parties hereto, intending to be legally bound hereby, agree as follows:

 

 

Subject to the terms and conditions set forth herein, the Company hereby grants to the Participant, as of the Date of Grant, an option to purchase up to ________ shares of Common Stock at an exercise price of $_____ per share.  It is the intention of the Company and Participant that the Option shall be granted with an exercise price at least equal to the fair market value of the Common Stock on the Date of Grant.  The exercise price of the Option shall be deemed modified as of the Date of Grant to the extent necessary for the exercise price to be at least equal to the fair market value of the Common Stock on the Date of Grant.  The option granted hereunder is referred to as the “Option”, and the shares of Common Stock purchasable upon exercise of the Option are sometimes referred to herein as the “Option Shares.”  The Option is intended by the Company to be, and shall be treated as, a “nonqualified” stock option, and not an “incentive stock option” as such term is defined in Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”).

2.

Vesting of Options.

 

Subject to such further limitations as are provided herein or by law or by Company policy, the Option shall vest and become exercisable in the following manner: (i) 25% of the total grant outlined in paragraph 1 vests on the one year anniversary Date of Grant; (ii) from the one year anniversary Date of Grant 25% will vest on a yearly basis for a period of three years from that anniversary date, if the Participant is then employed by the Company.  Such right to exercise shall be cumulative.  Options which have not vested shall not be exercisable.

 

3.

Termination of Option.

 

(a)           The Option and all rights with respect thereto hereunder, to the extent not previously exercised, shall terminate and become null and void after the expiration of ten years from the date of Grant (the “Option Term”).

 

(b)           Upon the Participant’s ceasing for any reason to be employed by the Company (such occurrence being a “termination of the Participant’s employment”), the Option, to the extent not previously vested and exercised, shall terminate and thereafter become null and void [90] days after termination of the Participant’s employment, except in a case where the termination of the Participant’s employment is as a result of death or Disability, as such term is defined in the Plan, or is for cause, as determined by the Company.  Upon a termination of the Participant’s employment as a result of death or Disability, the Option may be exercised for [one year] following the date of such termination of employment, but only to the extent that the Option was vested and exercisable on such date of death or Disability.  In the event of termination for cause, the Option shall be immediately canceled and shall not be exercisable.  In no event, however, shall any such exercise period extend beyond the Option Term.

 

(c)           In the event of the death of the Participant, the Option may be exercised by the Participant’s legal representative, but only to the extent that the Option was vested and would otherwise have been exercisable by the Participant.

 

(d)           A transfer of the Participant’s employment between the Company and any parent or subsidiary of the Company (as such terms are defined in Section 424 of the Code), or between a parent and/or any subsidiaries of the Company, shall be deemed not to be a termination of the Participant’s employment.  [Except as otherwise provided by the Board, termination of employment by reason of a sale of any subsidiary or division of the Company shall not be treated as a termination of the Participant’s employment for purposes of this Agreement.]

 

 

(a)           The Participant may exercise the Option with respect to all or any part of the number Option Shares then vested and exercisable hereunder by giving the Secretary of the Company written notice of the Participant’s intent to exercise at least two business days in advance of such exercise.  The notice of exercise shall specify the number of Option Shares as to which the Option is to be exercised and the date and manner of exercise thereof, unless an earlier time shall have been mutually agreed upon.

(b)           Full payment by the Participant of the purchase price for the Option Shares purchased shall be made (i) in cash, on or before the exercise date specified in the notice of exercise, which may be evidenced by a cashier’s or certified check or by wire transfer of immediately available funds; (ii) by delivering shares of Common Stock having a fair market value on the date of payment equal to the amount of the exercise price, but only to the extent such exercise of an Option would not result in an adverse accounting charge to the Company for financial accounting purposes with respect to the shares used to pay the exercise price unless otherwise determined by the Board; or (iii) subject to approval by the Board, by a combination of the foregoing.

 

(c)           On the exercise date specified in the Participant’s notice or as soon thereafter as is practicable, the Company shall cause to be delivered to the Participant a certificate or certificates for the Option Shares then being purchased upon full payment for such Option Shares.  The obligation of the Company to deliver such certificate or certificates shall, however, be subject to the condition that if at any time the Board shall determine, in its sole discretion, that the listing, registration or qualification of the Option or the Common Stock upon any securities exchange or national market system or under any state or federal securities laws, or the consent or approval of any governmental regulatory body, is necessary or desirable as a condition of, or in connection with, the Option or the issuance or purchase of the Option Shares, the Option may not be exercised in whole or in part unless such listing, registration, qualification, consent or approval shall have been effected or obtained free of any conditions not acceptable to the Board.

 

(d)           If the Participant fails to pay for any of the Option Shares specified in such notice or fails to accept delivery thereof, the Participant’s right to purchase such Option Shares may be terminated by the Company.  The date specified in the Participant’s notice as the date of exercise shall be deemed to be the date of the Option exercise, provided that payment in full for the Option Shares to be purchased upon such exercise shall have been received by such date.

 

(e)           Notwithstanding anything to the contrary contained herein, the Option is not exercisable until all of the following events occur and during the following periods of time:  (i) until the Plan pursuant to which the Option is granted is approved by the stockholders of the Company in the manner prescribed by the Code and the regulations promulgated thereunder, or (ii) during any period of time in which the Company deems that the exercisability of the Option or the offer to sell or sale of any or all of the Option Shares may violate a federal, state, local or securities exchange or national market system rule, regulation or law, or may cause the Company to be legally obligated to issue or sell more shares than the Company is legally entitled to issue or sell.

 

           [In the event of a Change of Control Event, as defined in the Plan, either (i) the Option shall remain effective by its terms; or (ii) the Option shall be assumed by an employer of the Participant (or a parent or subsidiary of such employer) in connection with the Change of Control Event, or the employer (or parent or subsidiary) shall substitute a new option for the Option, provided that such assumption or substitution shall be on such terms that the excess aggregate value of the Option Shares immediately after the assumption or substitution over the aggregate price of the Option is not more than such excess immediately before the assumption or substitution; or (iii) if neither of (i) or (ii) apply (or will apply immediately following the Change of Control Event), the Option shall become fully vested and exercisable immediately preceding the Change of Control Event.  If the Option is continued and remains effective, or is assumed or substituted pursuant to clauses (i) or (ii) of this Section 5, and the Participant’s employment terminates within one year following the date of the Change of Control Event for any reason other than on account of cause, the Option shall become fully vested and shall remain exercisable for 90 days after such termination of employment.]

 

 

Neither the Participant nor any personal representative of the Participant shall be, or shall have any of the rights and privileges of, a stockholder of the Company with respect to any shares of Common Stock purchasable or issuable upon the exercise of the Option, in whole or in part, prior to the date of exercise of the Option and the issuance and sale of the Option Shares.

 

 

During the Participant’s lifetime, the Option hereunder shall be exercisable only by the Participant or any guardian or legal representative of the Participant, and the Option shall not be transferable except by will or the laws of descent and distribution and in accordance with Section 3 hereof, or as otherwise permitted under this Section 7.  The Option shall not be subject to attachment or other similar process.  The Option may be transferred by the Participant to (i) the ex-spouse of the Participant pursuant to the terms of a domestic relations order, (ii) the spouse, children or grandchildren of the Participant (“Immediate Family Members”), (iii) a trust or trusts for the exclusive benefit of such Immediate Family Members, or (iv) a partnership or limited liability company in which such Immediate Family Members are the only partners or members, and there may be no consideration for any such transfer.  No transfer shall be effective to bind the Company unless the Company shall have been furnished with written notice of such transfer together with such other documents regarding the transfer as the Board shall request.  In the event of any attempt by the Participant to alienate, assign, pledge, hypothecate or otherwise dispose of the Option, except as provided for herein, or the levy of any attachment, execution of similar process upon the rights or interest hereby conferred, the Company may terminate the Option by notice to the Participant and it shall thereupon become null and void.

 

 

Neither the granting of the Option nor its exercise shall be construed as conferring upon the Participant any right with respect to continuance of employment with the Company.  Except as may otherwise be limited by a written employment agreement between the Company and the Participant, the right of the Company to terminate the Participant’s employment at any time (whether by dismissal, discharge, retirement or otherwise) is specifically reserved by the Company, and is hereby acknowledged by the Participant.

9.           Amendment of Option.

 

           The Option may be amended by the Board at any time if:  (i) the Board determines, in its sole discretion, that amendment is necessary or advisable in light of any addition to or change in the Code or in the regulations promulgated thereunder, or any state or federal securities law or other law or regulation, which change occurs after the Date of Grant and its terms applies to the Option or (ii) other than in the circumstances described in (i) above, with the consent of the Participant.

 

 

If, on the date of any exercise of the Option, the Common Stock to be purchased pursuant to such exercise has not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and under applicable state securities laws, the following provisions shall be applicable for so long as such registration has not occurred:

 

(a)           Participant hereby agrees, warrants and represents that he will acquire the Common Stock to be issued upon exercise of the Option for his or her own account and for investment purposes only, and not with a view to, or in connection with, any resale or other distribution of any such shares, except as permitted herein.  Participant further agrees that he or she will not at any time make any offer, sale, transfer, pledge or other disposition of such Common Stock to be issued upon exercise of the Option without an effective registration statement under the Securities Act and under any applicable state securities laws or an opinion of counsel acceptable to the Company to the effect that the proposed transaction will be exempt from such registration.  Participant shall execute such instruments, representations, acknowledgments and agreements as the Company may, in its sole discretion, deem advisable to avoid any violation of federal, state, local or securities exchange or national market system rule, regulation or law.

 

(b)           Any certificates for Common Stock issued to the Participant upon exercise of the Option shall bear the following legend:

 

“The shares represented by this certificate have not been registered under the Securities Act of 1933, as amended, or under applicable state securities laws.  The shares have been acquired for investment and may not be offered, sold, transferred, pledged or otherwise disposed of without an effective registration statement under the Securities Act of 1933, as amended, and under any applicable state securities laws or an opinion of counsel acceptable to the Company that the proposed transaction will be exempt from such registration.”

 

(c)           The foregoing legend shall be removed upon registration of any such legended shares under the Securities Act and under any applicable state laws or upon receipt of an opinion of counsel acceptable to the Company that such registration is not required.

 

 

The issuance of this Option and any Option Shares shall be subject to any stockholders’ agreement or other restrictions on sale or other disposition of the Option Shares as the Company may require.  As a condition of exercise of any Option, the Participant shall join in any stockholders’ agreement if not already a party thereto.

 

Any notice required to be made to the Company hereunder shall be sent to it, by certified or registered mail or by overnight courier or by hand delivery, to: PharmAthene, Inc.,  One Park Place, Suite 450, Annapolis, Maryland 21401,  Attn:  Corporate Secretary.  Any notice required to be made to the Participant hereunder shall be sent to him or her, by certified or registered mail or by overnight courier or by hand delivery, at the then current address shown on the payroll records of the Company or the Employer.  Any notice shall be deemed to be duly given when sent if properly sent in accordance with this Section 12.

 

 

The Option is granted pursuant to the terms of the Plan, the terms of which are incorporated herein by reference, and the Option shall in all respects be interpreted in accordance with the Plan.  In the event of any conflict between the terms of the Grant and the terms of the Plan in effect on the date hereof, the terms of the Plan shall govern.  The Board shall interpret and construe the Plan and this instrument, and its interpretations and determinations shall be conclusive and binding on the parties hereto and any other person claiming an interest hereunder or thereunder.

 

 

The validity, construction, interpretation and effect of this instrument shall exclusively be governed by and determined in accordance with the law of the State of Delaware, except to the extent preempted by federal law, which shall govern to such extent.

 

IN WITNESS WHEREOF, the Company and Participant have executed this Nonqualified Stock Option Grant, effective as of the Date of Grant.