EXHIBIT 4.18
FORM OF PEREGRINE PHARMACEUTICALS, INC.
2002 NON-QUALIFIED STOCK OPTION PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
NON-QUALIFIED STOCK OPTION AGREEMENT (the "Agreement") dated as of
____________, 2002, between PEREGRINE PHARMACEUTICALS, INC., a Delaware
corporation (collectively with its direct and indirect subsidiaries, the
"Company"), and ________, an employee of the Company ("Optionee" or
"Participant").
The Company's Board of Directors or Option Committee (in either case,
the "Committee") has determined that the objectives of the Peregrine
Pharmaceuticals, Inc. 2002 Non-Qualified Stock Option Plan (the "Plan") will be
furthered by granting to Optionee options pursuant to the Plan. Any capitalized
terms not otherwise defined in this Agreement shall have the meaning ascribed to
them in the Plan.
In consideration of the foregoing and of the mutual undertakings set
forth in this Agreement, the Company and Optionee agree as follows:
1. GRANT OF OPTION.
(a) The Company hereby grants to Optionee options (the
"Options") to purchase Shares of Common Stock of the Company (the
"Shares") at a purchase price of ___ per Share. The Options shall not
qualify as incentive stock options as described under Section 422 of
the Internal Revenue Code.
(b) For purposes of this Agreement, the term "Cause" means the
Participant's (I) embezzlement, fraud or any conduct related to the
performance of the Participant's duties for the Company that
constitutes a crime, (II) unauthorized disclosure of confidential
information or breach of any confidentiality or non-disclosure
agreement with the Company or any of its Subsidiaries, (III) willful
and habitual breach of duties, after notice to the Participant
affording the Participant a reasonable opportunity to cure, or (IV)
breach or violation of any statutory or common law duty of loyalty to
the Company or the Company's Affiliates.
2. EXERCISABILITY. Subject to the further terms of this Agreement, the Options
shall vest and become exercisable in accordance with Schedule 1 hereto. Unless
earlier terminated pursuant to the provisions of the Plan or paragraph 5 of this
Agreement, the unexercised portion of the Options shall expire and cease to be
exercisable at midnight ten (10) years from the date of this Agreement. This
Agreement shall not confer upon Optionee any right with respect to continuation
of her/his employment or consulting relationship with the Company, nor shall it
interfere with or affect in any manner the right or power of the Company, or a
parent or subsidiary of the Company, to terminate any agreement with Optionee in
accordance with the terms thereof.
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3. METHOD OF EXERCISE. The Options or any part of them may be exercised only by
the giving of written notice to the Company in substantially the form annexed
hereto as Schedule 2 hereto, or on such other form and in such other manner as
the Committee shall prescribe from time to time. Such written notice must be
accompanied by payment of the full purchase price for the number of Shares with
respect to which the Options are being exercised. Such payment may be made by
one or a combination of the following methods: (i) by a check acceptable to the
Company; or (ii) by such other method as the Committee may authorize including,
in the discretion of the Committee, the recourse promissory note of the
Optionee. The date of exercise of the Options shall be the date on which written
notice of exercise is hand delivered to the Company, during normal business
hours, at its address as provided in Section 7 of this Agreement, or, if mailed,
the date on which it is postmarked, provided such notice is actually received.
4. OPTIONEE'S REPRESENTATIONS. As a condition to the exercise of an Option, the
Company may require Optionee to make any representation and warranty to the
Company as may be required by any applicable law or regulation.
5. TERMINATION OF EMPLOYMENT; DEATH. Upon termination of Optionee's employment
with or status as a consultant to, the Company for any reason, the Options will
immediately terminate and expire, except as provided in paragraphs (a) or (b) of
this Section 5.
(a) If Optionee resigns as an employee of, or consultant to,
the Company with the Company's prior written consent, or if the Company
terminates Optionee's employment by the Company without Cause (as
defined herein), the Option will be exercisable but only to the extent
it was exercisable at the time of such termination or resignation and
only until the earlier of the expiration date of the Option, determined
pursuant to Section 2 of this Agreement, or the expiration of three (3)
months following such termination or resignation.
(b) If Optionee dies or becomes Permanently Disabled while
employed by, or rendering services as a consultant to, the Company or
after Optionee's employment or status as a consultant to the Company
terminates but during a period in which the Option is exercisable
pursuant to paragraph (a) of this Section 5, the Option will be
exercisable but only to the extent it was exercisable at the time of
death and only until the earlier of the expiration date of the Option,
determined pursuant to Section 2 of this Agreement, or the expiration
of twelve (12) months following the date of Optionee's death.
6. PLAN PROVISIONS TO PREVAIL. This Agreement is subject to all of the terms and
provisions of the Plan. Without limiting the generality of the foregoing, by
entering into this Agreement Optionee agrees that no member of the Committee
shall be liable for any action or determination made in good faith with respect
to the Plan or any award thereunder or this Agreement. In the event that there
is any inconsistency between the provisions of this Agreement and of the Plan,
the provisions of the Plan shall govern.
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7. NOTICES. Any notice to be given to the Company hereunder shall be in writing
and shall be addressed to Paul Lytle, Corporate Secretary, or at such other
address as the Company may hereafter designate to Optionee by notice as provided
in this Section 7. Any notice to be given to Optionee hereunder shall be
addressed to Optionee at the address set forth beneath her/his signature hereto,
or at such other address as Optionee may hereafter designate to the Company by
notice as provided herein. A notice shall be deemed to have been duly given when
personally delivered or mailed by registered or certified mail to the party
entitled to receive it.
8. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and the successors and assigns of the Company and
to the extent consistent with Section 5 of this Agreement and with the Plan, the
heirs and personal representatives of Optionee.
9. GOVERNING LAW. This Agreement shall be interpreted, construed and
administered in accordance with the laws of the State of California as they
apply to contracts made, delivered and performed in the State of California. Any
dispute arising hereunder shall be resolved by binding arbitration before the
American Arbitration Association under its Commercial Arbitration Rules, before
a single arbitrator in Orange County, California. The parties will mutually
determine the arbitrator from a list of arbitrators obtained from the American
Arbitration Association office located in Orange County, California. If the
parties are unable to agree on the arbitrator, the arbitrator will be selected
by the American Arbitration Association with a preference for selecting a
retired federal district judge or state superior court judge as the arbitrator.
10. WITHHOLDING. Upon exercise, the Optionee hereby agrees to promptly provide
the necessary tax withholding, if applicable, in the Committee's view, pursuant
to Section 15 of the Plan.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first written above.
PEREGRINE PHARMACEUTICALS, INC.
BY:________________________________
OPTIONEE:
__________________________________
SIGNATURE
Name:___________________________
Social Security Number:____________
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SCHEDULE 1 TO NON-QUALIFIED STOCK OPTION AGREEMENT
PURSUANT TO PEREGRINE PHARMACEUTICALS, INC.
2002 NON-QUALIFIED STOCK OPTION PLAN
(This Schedule 1 shall be incorporated by reference and become a part of the
Option Agreement between the Company and the Optionee.)
I. NON-QUALIFIED STOCK OPTIONS: Non-qualified stock options generally give rise
to ordinary compensation income for the Optionee when the option is exercised.
The Company may require the Optionee to make arrangements for the payment of
withholding taxes by the Company if the Optionee is an employee of the Company
at the time of the exercise of the Non-qualified stock option.
Date of Grant:
--------------------------------------------------
Earliest Exercise Date:
--------------------------------------------------
Exercise Price:
--------------------------------------------------
Number of Shares:
--------------------------------------------------
Vesting Schedule:
--------------------------------------------------
Expiration Date:
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GOVERNING LAW; RESOLUTION OF DISPUTES. This Agreement has been
made, executed and delivered in, and the interpretation, performance and
enforcement hereof shall be governed by and construed under the laws of the
State of California. Any dispute arising hereunder shall be resolved by binding
arbitration before the American Arbitration Association under its Commercial
Arbitration Rules, before a single arbitrator in Orange County, California The
parties will mutually determine the arbitrator from a list of arbitrators
obtained from the American Arbitration Association office located in Orange
County, California. If the parties are unable to agree on the arbitrator, the
arbitrator will be selected by the American Arbitration Association with a
preference for selecting a retired federal district judge or state superior
court judge as the arbitrator.
I have read the Peregrine Pharmaceuticals, Inc. 2002
Non-Qualified Stock Option Plan, the terms of which are incorporated herein. As
Optionee, I hereby acknowledge that as of the date of the Options referenced
above, it sets forth the entire understanding between the undersigned Optionee
and the Company and its Affiliates regarding the Options and supersedes all
prior oral and written agreements on that subject with the exception of (i) the
options and any other stock awards previously granted and delivered to the
undersigned under stock award plans of the Company, and (ii) the following
agreements only:
NONE
----
(Initial)
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OTHER
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IN WITNESS WHEREOF, this Non-Qualified Stock Option Agreement
pursuant to the Peregrine Pharmaceuticals, Inc. 2002 Non-Qualified Stock Option
Plan has been delivered by the parties hereto.
Date: "Optionee"
------------------
------------------------------------
Name
-------------------------------
Address
-----------------------------
Social Security Number
--------------
The Company hereby agrees to all the terms
of the Agreement.
Peregrine Pharmaceuticals, Inc.
By:
-----------------------------------------------------------
Name:
---------------------------------------------------------
Title:
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SCHEDULE 2
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PEREGRINE PHARMACEUTICALS, INC.
EXERCISE NOTICE
Peregrine Pharmaceuticals, Inc.
14272 Franklin Avenue, Suite 100
Tustin, CA 92780
Attn: Paul Lytle
1. EXERCISE OF OPTION.
Effective as of today, ________,_________ the undersigned ("Optionee")
hereby elects to exercise Optionee's Options to purchase shares of Common Stock
(the "Shares") of Peregrine Pharmaceuticals, Inc. (the "Company") under and
pursuant to the Non-Qualified Stock Option Agreement dated as of _________ (the
"Option Agreement") between the Company and Optionee pursuant to the Option
Agreement.
2. RIGHTS AS SHAREHOLDER
(i) Until the certificate evidencing the Shares is issued (as evidenced
by the appropriate entry on the stock ownership register of the Company
or of a duly authorized transfer agent of the Company), no right to
receive distributions or any other rights as a shareholder shall exist
with respect to the Shares, notwithstanding the exercise of the Option.
The Company shall issue (or cause to be issued) such certificate
promptly upon exercise of the Option.
(ii) Upon issuance of the certificate, Optionee shall enjoy rights as a
shareholder of Common Stock until such time as Optionee disposes of the
Shares or the Company.
3. GOVERNING LAW; SEVERABILITY. This Notice shall be governed by and
construed in accordance with the laws of the State of California
excluding that body of law pertaining to conflicts of law. Should any
provision of this Notice be determined by a court of law to be illegal
or unenforceable, the other provisions shall nevertheless remain
effective and shall remain enforceable. Any dispute arising hereunder
shall be resolved by binding arbitration before the American
Arbitration Association under its Commercial Arbitration Rules, before
a single arbitrator in Orange County. The parties will mutually
determine the arbitrator from a list of arbitrators obtained from the
American Arbitration Association office located in Orange County. If
the parties are unable to agree on the arbitrator, the arbitrator will
be selected by the American Arbitration Association with a preference
for selecting a retired federal district judge or state superior court
judge as the arbitrator.
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4. NOTICES. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery or
upon deposit in the United States mail by certified mail, with postage
and fees prepaid, addressed to the other party at its address as shown
below beneath its signature, or to such other address as such party may
designate in writing from time to time to the other party.
5. FURTHER INSTRUMENTS. The parties agree to execute such further
instruments and to take such further action as may be reasonably
necessary to carry out the purposes and intent of this Notice.
6. DELIVERY OF PAYMENT. Optionee herewith delivers to the Company the full
purchase price for the Shares as set forth in paragraph 1 of the Option
Agreement.
7. ENTIRE AGREEMENT. The Option Agreement is incorporated herein by
reference. This Notice, the Option Agreement and the Plan constitute
the entire agreement of the parties and supersede in their entirety all
prior undertakings and agreements of the Company and Optionee with
respect to the subject matter hereof. In the event of a conflict or
discrepancy between the terms of this Agreement and the Peregrine
Pharmaceuticals, Inc. 2002 Non-Qualified Stock Option Plan (the
"Plan"), the terms of the Plan shall control.
8. REPRESENTATIVES OF OPTIONEE. Optionee acknowledges that Optionee has
received, read and understood the Option Agreement and this Notice and
agrees to abide by and be bound by the terms and conditions of the
Option Agreement and this Notice.
Submitted by: Accepted by:
OPTIONEE: PEREGRINE PHARMACEUTICALS, INC.
By:_________________________ By:_______________________________
Name:_______________________
Address:____________________
____________________________
____________________________
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