FORM OF NONQUALIFIED STOCK OPTION AGREEMENT UNDER THE PHARMION CORPORATION
Exhibit 99.(d)(2)
UNDER THE
PHARMION CORPORATION
2000 STOCK INCENTIVE PLAN
THIS AGREEMENT is made effective as of [Date] by and
between Pharmion Corporation, a Delaware corporation (the
“Company”), and [Optionee] (the
“Optionee”).
W I T N E S S E T H:
WHEREAS, the Optionee is now employed by the Company, and the
Company desires to have the Optionee remain in such employment
and to afford the Optionee the opportunity to acquire ownership
of the Company’s common stock, par value $0.001 per
share (the “Stock”), so that the Optionee may have a
direct proprietary interest in the Company’s success;
NOW, THEREFORE, in consideration of the covenants and agreements
herein contained, the parties hereto hereby agree as follows:
1. Grant of New Options. Subject to the terms
and conditions set forth herein and in the Company’s 2000
Stock Incentive Plan, as amended (the “Plan”), the
Company hereby grants to the Optionee, during the period
commencing on the date of this Agreement (the “Grant
Date”) and ending seven years from the date hereof (the
“Termination Date”), the right and option (the right
to purchase any one share of Stock hereunder being an
“Option”) to purchase from the Company, at a price of
$[ ]
per share (the “Exercise Price”), an aggregate of
[ ] shares
of Stock (the “Options”).
2. Limitations on Exercise of Options.
Subject to early expiration of the Options upon a termination of
employment with the Company as set forth in Section 3 below
and compliance with the terms and conditions set forth herein,
the Options may be exercised only after they vest and only with
respect to whole shares. The Options shall vest as follows: in
quarterly installments over a period of three (3) years
from the Grant Date, except that (i) no vesting will occur
until six (6) months following the Grant Date, at which
time one-sixth (1/6) of the Options will vest, and
(ii) each installment will round up to the nearest whole
option, with the last installment consisting of any remaining
unvested options.
3. Termination of Employment. (a) If,
prior to the Termination Date, the Optionee shall cease to be
employed by the Company by reason of termination by the Company
without Cause (as defined in the Plan), Disability (as defined
in the Plan), retirement pursuant to the retirement policies of
the Company or voluntary termination with the written consent of
the Company (each a “Normal Termination”), then
(i) all vesting with respect to the Options shall cease,
(ii) all unvested Options shall expire as of the date of
such Normal Termination, and (iii) the Options that were
vested as of the date of such Normal Termination shall remain
exercisable until the earlier of the Termination Date or the
date that is three (3) months after the date of such Normal
Termination.
(b) If the Optionee shall cease to be employed by the
Company prior to the Termination Date by reason of death or
shall die during the three-month period in Section 3(a)
above, then (i) all vesting with respect to the Options
shall cease, (ii) all unvested Options (to the extent not
already expired) shall expire as of the date of death, and
(iii) all Options that were vested as of the date of death
shall remain exercisable by the executor or administrator of the
estate of the Optionee or the person or persons to whom the
Options shall have been validly transferred by the executor or
administrator pursuant to will or the laws of descent and
distribution (as applicable) until the earlier of the
Termination Date or the date that is twelve (12) months
after the date of death.
(c) If the Optionee shall cease to be employed by the
Company for any reason other than as set forth in
Sections 3(a) and (b) above, the Options (whether
vested or unvested) shall expire immediately upon such cessation
of employment.
(d) After the expiration of any exercise period described
in either of paragraphs 3(a), 3(b) or 3(c) hereof, the
Options shall terminate together with all of the Optionee’s
rights hereunder, to the extent not previously exercised.
4. Method of Exercising Option. (a) The
Optionee may exercise any or all of the vested Options
(representing whole shares only) by delivering to the Company a
written notice signed by the Optionee stating the number of
Options that the Optionee has elected to exercise at that time
and full payment of the purchase price of the shares to be
thereby purchased from the Company. Payment of the purchase
price of the shares may be made by cash or a certified or bank
cashier’s check payable to the order of the Company, or by
such other means as shall be acceptable to the Company in its
discretion.
(b) At the time of exercise, the Optionee shall pay to the
Company such amount as the Company deems necessary to satisfy
its obligation, if any, to withhold Federal, state or local
income or other taxes incurred by reason of the exercise or the
transfer of shares thereupon. Unless the tax withholding
obligations of the Company and/or any Affiliate are satisfied,
the Company shall have no obligation to issue shares pursuant to
such exercise.
5. Issuance of Shares. As promptly as
practical after receipt of such written notification and full
payment of such purchase price and any required income tax
withholding amount, the Company shall issue or transfer to the
Optionee the number of shares with respect to which Options have
been so exercised, and shall deliver to the Optionee a
certificate or certificates therefor, registered in the
Optionee’s name.
6. Company; Optionee. (a) The term
“Company” as used in this Agreement with reference to
employment or service shall include the Company and its
subsidiaries. The term “subsidiary” as used in this
Agreement shall mean any subsidiary of the Company as defined in
Section 424(f) of the Code.
(b) Whenever the word “Optionee” is used in any
provision of this Agreement under circumstances where the
provision should logically be construed to apply to the
executors, the administrators, or the person or persons to whom
the Options may be transferred by will or by the laws of descent
and distribution, the word “Optionee” shall be deemed
to include such person or persons.
7. Non-Transferability. The Options are not
transferable by the Optionee otherwise than by will or the laws
of descent and distribution and are exercisable during the
Optionee’s lifetime only by the Optionee. No assignment or
transfer of the Options, or of the rights represented thereby,
whether voluntary or involuntary, by operation of law or
otherwise (except by will or the laws of descent and
distribution), shall vest in the assignee or transferee any
interest or right herein whatsoever, but immediately upon such
assignment or transfer the Options shall terminate and become of
no further effect.
8. Nonqualified Stock Options. The Options
granted hereunder are not intended to be incentive stock options
within the meaning of Section 422 of the Code.
9. Rights as Stockholder. The Optionee or a
transferee of the Options shall have no rights as a stockholder
with respect to any share covered by the Options until the
Optionee shall have become the holder of record of such share,
and no adjustment shall be made for dividends or distributions
or other rights in respect of such share for which the record
date is prior to the date upon which the Optionee shall become
the holder of record thereof.
10. Compliance with Law. Notwithstanding any
of the provisions hereof, the Optionee hereby agrees that the
Optionee will not exercise the Options, and that the Company
will not be obligated to issue or transfer any shares to the
Optionee hereunder, if the exercise hereof or the issuance or
transfer of such shares shall constitute a violation by the
Optionee or the Company of any provisions of any law or
regulation of any governmental authority. Any determination in
this connection by the Board of Directors shall be final,
binding and conclusive. The Company shall in no event be obliged
to register any securities pursuant to the Securities Act of
1933 (as now in effect or as hereafter amended) or to take any
other affirmative action in order to cause the exercise of the
Options or the issuance or transfer of shares pursuant thereto
to comply with any law or regulation or any governmental
authority.
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11. Notice. Every notice or other
communication relating to this Agreement shall be in writing,
and shall be mailed to or delivered to the party for whom it is
intended at such address as may from time to time be designated
by it in a notice mailed or delivered to the other party as
herein provided, provided that, unless and until some other
address be so designated, all notices or communications by the
Optionee to the Company shall be mailed or delivered to the
Company at its principal executive office, and all notices or
communications by the Company to the Optionee may be given to
the Optionee personally or may be mailed to the Optionee at the
Optionee’s last known address, as reflected in the
Company’s records.
12. Binding Effect. Subject to Section 6
hereof, this Agreement shall be binding upon the heirs,
executors, administrators and successors of the parties hereto.
13. Governing Law. This Agreement shall be
construed and interpreted in accordance with the laws of the
state of Colorado, without regard to the principles of conflicts
of law thereof.
14. Plan. The terms and provisions of the
Plan are incorporated herein by reference. In the event of a
conflict or inconsistency between discretionary terms and
provisions of the Plan and the express provisions of this
Agreement, this Agreement shall govern and control. In all other
instances of conflicts or inconsistencies or omissions, the
terms and provisions of the Plan shall govern and control.
* * *
(This will be accepted or rejected in E*Trade by electronic
signature during the grant process as a condition to receiving
an award under the Plan).
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