CLEVELAND BIOLABS, INC. EQUITY INCENTIVE PLAN FORM OF NON-QUALIFIED STOCK OPTION AGREEMENT
Exhibit
99.3
CLEVELAND
BIOLABS, INC.
FORM
OF NON-QUALIFIED STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT (the
"Agreement"),
dated as of ______________ ____, _________, (the “Grant Date”) by and between
Cleveland BioLabs, Inc. (the "Company"), having an
address at 00 Xxxx Xx., Xxxxxxx, XX 00000 and _________________ (the "Grantee"), having an
address at ________________________________.
In accordance with Section 4 of the
Cleveland BioLabs, Inc. Equity Incentive Plan, as amended and restated effective
April 29, 2008, and as further amended by the First Amendment thereto effective
June 8, 2010 (the "Plan"), and subject
to the terms of the Plan and this Agreement, the Company hereby grants to the
Grantee an option (the "Option") to purchase
all or any part of an aggregate of ____________ shares (the “Shares”) of common
stock, $.005 par value per share, of the Company (the “Stock”). The
Option granted hereby is not intended to
constitute an Incentive Stock Option, within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code").
To evidence the Option and to set forth
its terms, the Company and the Grantee agree as follows:
1. Confirmation of
Grant. The Company hereby evidences the Option granted to the
Grantee as of ______________ ____, _________, the date of the grant of the
Option by the Company’s Compensation Committee of the Board of Directors (the
“Committee”). The
Option is a Non-Qualified Option and is not intended to be an "incentive stock
option" within the meaning of Section 422 of the Code.
2. Number of
Shares. This Option shall be for an aggregate of ____________
Shares (subject to adjustment as provided in Section 3 of the
Plan).
3. Exercise
Price. The exercise price shall be $_____ per Share (the
"Exercise
Price") (subject to adjustment as provided in Section 3 of the
Plan). The Exercise Price reflects 100% of the Fair Market Value of
one Share of Stock on the Grant Date as calculated under the
Plan. The total Exercise Price for all Shares subject to the Option
is $____________ (subject to adjustment as provided in Section 3 of the
Plan).
4. Term and Exercisability of
the Option. The Option shall expire on ______________ ____,
_________, [Insert 10 year
anniversary of grant date] and, except as otherwise provided herein, may
be exercised prior to its expiration at such times and for such number of whole
Shares as follows:
[Insert vesting
provisions.]
Notwithstanding the foregoing
provisions of this Paragraph 4, and, except as otherwise provided herein, any
portion of the Option which is not otherwise exercisable at the time of the
Grantee's termination of employment (or provision of services, if applicable)
with the Company and its Affiliates shall not become exercisable after such
termination.
5. Exercise of
Option. On or after the date any portion of the Option becomes
exercisable, but prior to the expiration of the Option in accordance with
Paragraph 4 above, the portion of the Option which has become exercisable may be
exercised in whole or in part by the Grantee (or, pursuant to Section 6 hereof,
his or her permitted successor) upon delivery of the following to the
Company:
(a) a written
notice of exercise which identifies this Agreement and states the number of
Shares then being purchased; and
(b) any
combination of cash (or by certified or bank check), and/or (i) shares of
unrestricted Stock as meet the requirements in the Plan then owned by the
Grantee in an amount having a combined Fair Market Value on the exercise date
equal to the aggregate Exercise Price of the Shares then being purchased using
such unrestricted Stock, (ii) certification of ownership of shares of mature
Stock owned by the Grantee to the satisfaction of the Administrator for later
delivery to the Company as specified by the Company, or (iii) unless otherwise
prohibited by law for either the Company or the Grantee, an irrevocable
authorization of a third party to sell Shares of Stock acquired upon the
exercise of the Option and remit to the Company a sufficient portion of the sale
proceeds to pay the entire exercise price and any tax withholdings resulting
from such exercise.
Notwithstanding the foregoing, the
Grantee (or any permitted successor) shall take whatever additional actions,
including, without limitation, the furnishing of an opinion of counsel, and
execute whatever additional documents the Company may, in its sole discretion,
deem necessary or advisable in order to carry out or effect one or more of the
obligations or restrictions imposed by the Plan, this Agreement or applicable
law.
No Shares shall be issued upon exercise
of the Option until full payment has been made. Upon satisfaction of
the conditions and requirements of this Paragraph 5, the Company shall deliver
to the Grantee (or his or her permitted successor) a certificate or certificates
for the number of Shares in respect of which the Option shall have been
exercised (less the number of Shares, if any, utilized in the payment of the
Exercise Price in a cashless exercise as permitted under the Plan and the
Agreement). Upon exercise of the Option (or a portion thereof), the
Company shall have a reasonable time to issue the Stock for which the Option has
been exercised, and the Grantee shall not be treated as a stockholder for any
purposes whatsoever prior to such issuance. No adjustment shall be
made for cash dividends or other rights for which the record date is prior to
the date such Stock is recorded as issued and transferred in the Company’s
official stockholder records, except as otherwise provided in the Plan or the
Agreement.
6. Limitation Upon
Transfer. This Option and all rights granted hereunder shall
not be transferred by the Grantee, other than to a Family Member (provided the
transfer is a gift without consideration and there is no subsequent transfer
other than by will or the laws of decent and distribution), or by will or by the
laws of descent and distribution, shall not otherwise be assigned, pledged or
hypothecated in any way, and shall not be subject to execution, attachment or
similar process. Upon any attempt to transfer this Option, other than
as provided above, or to assign, pledge or hypothecate or otherwise dispose of
this Option or of any rights granted hereunder contrary to the provisions
hereof, or upon the levy of any attachment or similar process upon this Option
or such rights, this Option and such rights shall immediately become null and
void. The Option shall be exercised during the Grantee's lifetime
only by the Grantee or by the Grantee's guardian or the Grantee’s legal
representative.
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7. Termination of Employment or
Provision of Services by Death or Disability. If the Grantee’s
employment with or provision of services for the Company and its Affiliates
terminates by death or Disability, the Option shall become exercisable in full
for a period of one year from the date of such death or Disability or until the
expiration of the stated term of such Option, whichever period is
shorter.
8. Termination of Employment or
Provision of Services by Retirement. If the Grantee’s
employment with or provision of services for the Company and its Affiliates
terminates by Retirement, the Option shall become exercisable in full for a
period of three years from the date of such termination or until the expiration
of the stated term of such Option, whichever period is shorter.
9. Involuntary Termination of
Employment or Provision of Services for Cause. If the
Grantee's employment with or provision of services for the Company and its
Affiliates terminates for Cause, vesting of all outstanding Options held by the
Grantee covered hereunder shall thereupon terminate and all Options held by the
Grantee covered hereunder shall thereupon terminate.
10. Involuntary Termination of
Employment or Provision of Services Without Cause. If the Grantee’s
employment with or provision of services for the Company and its Affiliates
terminates involuntarily for any reason other than death, Disability, Retirement
or Cause, the Option held by the Grantee covered hereunder may thereafter be
exercised, to the extent it was exercisable at the time of termination, for a
period of 30 days from the date of such termination of employment or provision
of services or until the expiration of the stated term of such Option, whichever
period is shorter. Notwithstanding the foregoing, to the extent the
Option is unvested or unexercisable at the date of termination, the Option shall
thereupon terminate.
11. Other Termination of
Employment or Provision of Services. If the Grantee’s
employment with or provision of services for the Company and its Affiliates is
terminated by the Grantee for any reason other than death, Disability or
Retirement, the Option may thereafter be exercised, to the extent it was
exercisable at the time of termination, for a period of 30 days from the date of
such termination of employment or provision of services or until the expiration
of the stated term of such Option, whichever period is
shorter. Notwithstanding the foregoing, to the extent the Option is
unvested or unexercisable at the date of termination, the Option shall thereupon
terminate.
12. Tolling. Notwithstanding
the foregoing, to the extent permitted under Section 409A of the Code, the
exercise period following a termination described in Sections (7), (8), (10) or
(11) above shall be tolled for any applicable window/blackout period
restrictions under the Company’s xxxxxxx xxxxxxx policy.
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13. Change in
Control. Upon a Change in Control the Options not then
vested and exercisable shall become fully vested and exercisable and shall be
otherwise subject to the Plan.
14. Effect of Amendment of
Plan. No discontinuation, modification, or amendment of the
Plan may, without the express written consent of the Grantee, adversely affect
the rights of the Grantee under this Option, except as expressly provided under
the Plan.
This Agreement may be amended as
provided under the Plan, but except as provided thereunder shall not adversely
affect Grantee’s rights hereunder without Grantee’s consent.
15. No Limitation on Rights of
the Company. The grant of this Option shall not in any way
affect the right or power of the Company to make adjustments, reclassifications,
or changes in its capital or business structure or to merge, consolidate,
dissolve, liquidate, sell, or transfer all or any part of its business or
assets.
16. Rights as a
Stockholder. The Grantee shall have the rights of a
stockholder with respect to the Shares covered by the Option only upon becoming
the holder of record of those Shares.
17. Compliance with Applicable
Law. Notwithstanding anything herein to the contrary, the
Company shall not be obligated to cause to be issued or delivered any
certificates for Shares pursuant to the exercise of the Option, unless and until
the Company is advised by its counsel that the issuance and delivery of such
certificates is in compliance with all applicable laws, regulations of
governmental authority, and the requirements of any exchange upon which Shares
are traded. The Company shall in no event be obligated to register
any securities pursuant to the Securities Act of 1933 (as now in effect or as
hereafter amended) or to take any other action in order to cause the issuance
and delivery of such certificates to comply with any such law, regulation or
requirement. The Company may require, as a condition of the issuance
and delivery of such certificates and in order to ensure compliance with such
laws, regulations, and requirements, that the Grantee make such covenants,
agreements, and representations as the Company, in its sole discretion,
considers necessary or desirable.
18. No Obligation to Exercise
Option. The granting of the Option shall impose no obligation
upon the Grantee to exercise the Option.
19. Agreement Not a Contract of
Employment or Other Relationship. This Agreement is not a
contract of employment, and the terms of employment of the Grantee or other
relationship of the Grantee with the Company or any of its subsidiaries or
affiliates shall not be affected in any way by this Agreement except as
specifically provided herein. The execution of this Agreement shall
not be construed as conferring any legal rights upon the Grantee for a
continuation of an employment or other relationship with the Company or any of
its subsidiaries or affiliates, nor shall it interfere with the right of the
Company or any of its subsidiaries or affiliates to discharge the Grantee and to
treat him or her without regard to the effect which such treatment might have
upon him or her as a Grantee.
20. Tax
Consequences. The Company makes no representations or
warranties with respect to the tax consequences of the grant or exercise of the
Option and the disposition of the Shares obtained thereby. A Grantee should consult his or her
own tax advisor for information concerning the tax consequences of the grant and
exercise of the Option.
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21. Notices. Any
notice or other communication required or permitted hereunder shall be in
writing and shall be delivered personally or sent by certified, registered, or
express mail, postage prepaid, return receipt requested, or by a reputable
overnight delivery service. Any such notice shall be deemed given
when received by the intended recipient.
22. Governing
Law. Except to the extent preempted by Federal law, this
Agreement shall be construed and enforced in accordance with, and governed by,
the laws of the State of Delaware without regard to the principles thereof
relating to the conflicts of laws.
23. Receipt of
Plan. The Grantee acknowledges receipt of a copy of the Plan,
and represents that the Grantee is familiar with the terms and provisions
thereof, and hereby accepts this Option subject to all the terms and provisions
of this Agreement and of the Plan. The Grantee hereby agrees to
accept as binding, conclusive and final all decisions or interpretations of the
Administrator, the Company, its Board of Directors or the Committee upon any
questions arising under this Agreement or the Plan.
24. Definitions. All
capitalized terms not otherwise defined herein shall have the meanings set forth
in the Plan.
25. Other Terms and
Conditions. The foregoing does not modify or amend any terms
of the Plan. To the extent any provisions of the Agreement are
inconsistent or in conflict with any terms or provisions of the Plan, the Plan
shall govern.
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IN WITNESS WHEREOF, this Agreement has
been duly executed as of ______________ ____, _________.
Cleveland
BioLabs, Inc.
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By:
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Name: | |||
Title: | |||
Participant
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By: | |||
Name: |
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