NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT ("Agreement") is made and entered into
in duplicate this 1st day of November, 2004 between LEV Pharmaceuticals, Inc., a
Delaware corporation having a principal place of business at 000 Xxxx 00xx
Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000 ("Corporation"), and Xxxxxx Xxxxxx,
00 Xxxxxxxxxx Xxxx, Xxxxxx, XX 00000 ("Holder"), with respect to the following
facts:
Pursuant and subject to the Corporation's 2004 Omnibus Incentive Compensation
Plan, a copy of which is furnished to the Holder with a copy of this Agreement
and the provisions of which, by this reference, are made a part of this
Agreement as though specified completely and specifically verbatim in this
Agreement (the "Plan"), 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 to purchase the number
of shares of $.01 par value common stock of Corporation at a purchase price as
described in Appendix "A" (the "Option").
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; or (iii) full payment in shares of
Corporation's $.00001 par value 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 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 $.01
par value 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 the
$.01 par value common stock of 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, the 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 $.01 par value 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 $.01 par value
common stock that are subject to the Option. The shares of Corporation's $.01
par value 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 $.01 par value of 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 $.01 par 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 determines that it is required to withhold
federal, state, or local tax as a result of the exercise of the Option, Holder,
as a condition to the exercise of the Option, shall make arrangements
satisfactory to the Corporation to enable it to satisfy such withholding
requirements.
9. COMMITTEE DETERMINATION FINAL. The interpretation of the Plan and this
Agreement, including any inconsistency between the two documents, shall be
reserved to and made by the Committee of the Board of Directors of Corporation
provided for in the Plan. The Committee's determinations shall be final as
between the parties hereto, unless otherwise determined by the Board of
Directors of Corporation.
10. TRANSFER OF OPTION. During Holder's lifetime, the Option shall be
exercisable only by Holder. The Option shall not be transferable by Holder,
other than by the laws of descent and distribution upon Holder's death.
11. TERMINATION OF OPTION. The Option shall terminate at 5:00 P.M. Eastern time
on the date which is described in Appendix "A."
12. RIGHTS AS SHAREHOLDER. Holder will not be deemed to be a holder of any
shares of Corporation's $.01 par value common stock pursuant to the exercise of
the Option until Holder pays the purchase price therefore and a stock
certificate is delivered to Holder for those shares. No adjustment shall be made
for dividends or other rights for which the record date is prior to the date
such exercise and full payment for the optioned shares.
13. GOVERNING LAW. This Agreement is granted and delivered in the State of
Delaware and is intended to be construed and enforced under the laws thereof.
IN WITNESS THEREOF, the parties have made and entered into this Agreement in
duplicate on the date specified in its preamble.
CORPORATION
LEV Pharmaceuticals, Inc.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
HOLDER
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
APPENDIX "A"
Holder Name: Xxxxxx Xxxxxx
Number of Options Granted: 1,427,500
Option Price: $0.30 per share
Vesting Commencement Date: All options are vested as of November 1, 2004
Option Expiration Date: November 1, 2014
