exv10w3






Exhibit 10.3




FORM OF

NONQUALIFIED STOCK OPTION AGREEMENT




Under the Emisphere Technologies, Inc.

2007 Stock Award and Incentive Plan



     THIS AGREEMENT dated as of the ___ day of ___ 20[___], between Emisphere Technologies, Inc., a
Delaware Corporation (the “Company”), and ___(the “Optionee”).



W I T N E S S E T H:




     In consideration of the mutual promises and covenants made herein and the mutual benefits to
be derived herefrom, the parties hereto agree as follows:



     1. Grant of Stock Option.



     Subject to the provisions of this Agreement and to the provisions of the Emisphere
Technologies, Inc. 2007 Stock Award and Incentive Plan (the “Plan”), the Company hereby grants to
the Optionee as of [DATE] (the “Grant Date”) the right and option (the “Stock Option”) to purchase
[NUMBER] shares of common stock of the Company, par value $.01 per share (“Common Stock”), at the
exercise price of [$] per share, the closing price of the Common Stock on [DATE]. The Stock Option
shall be a Nonqualified Stock Option. Unless earlier terminated pursuant to the terms of this
Agreement, the Stock Option shall expire on the tenth anniversary of the date hereof. Capitalized
terms not defined herein shall have the meaning set forth in the Plan.



     2. Exercisability of the Stock Option.



     (a) Vesting. Subject to remaining employed by the Company through the following dates, the
Stock Option shall become vested and exercisable with respect to:



	 	 	 	 	 
	 	 	% OF GRANT (OR NUMBER OF SHARES)
	DATE	 	VESTED
	[INSERT DATE]

	 	 	25	%
	[INSERT DATE]

	 	 	25	%
	[INSERT DATE]

	 	 	25	%
	[INSERT DATE]

	 	 	25	%






 








 




Upon the Optionee’s termination of employment for any reason, the portion of the Stock Option that
is not vested as of such date, in accordance with the foregoing provisions of this Section 2, shall
cease vesting and terminate immediately.



          (b) Acceleration upon Change in Control. In the event of a Change in Control, any unvested
portions of this Stock Option shall immediately vest and remain exercisable for the remainder of
the originally scheduled term. For the purposes of this Agreement, a “Change in Control” means:
(a) the acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), other than any
individual, entity or group which, as of the date of this Agreement, beneficially owns more than
ten percent (10%) of the then outstanding shares of common stock of the Company (the “Outstanding
Company Common Stock”), of beneficial ownership (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) of 50% or more of the then Outstanding Company Common Stock; provided, however,
that any acquisition by the Company or its subsidiaries, or any employee benefit plan (or related
trust) of the Company or its subsidiaries of 50% or more of Outstanding Company Common Stock shall
not constitute a Change in Control; and provided, further, that any acquisition by an entity with
respect to which, following such acquisition, more than 50% of the then outstanding equity
interests of such entity, is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial owners of the Outstanding
Company Common Stock immediately prior to such acquisition of the Outstanding Company Common Stock,
shall not constitute a Change in Control; or (b) the consummation of (i) a reorganization, merger
or consolidation (any of the foregoing, a “Merger”), in each case, with respect to which all or
substantially all of the individuals and entities who were the beneficial owners of the Outstanding
Company Common Stock immediately prior to such Merger do not, following such Merger, beneficially
own, directly or indirectly, more than 50% of the then outstanding shares of common stock of the
corporation resulting from Merger, or (ii) the sale or other disposition of all or substantially
all of the assets of the Company, excluding (a) a sale or other disposition of assets to a
subsidiary of the Company; and (b) a sale or other disposition of assets to any individual, entity
or group which, as of the date of this Agreement, beneficially owns more than ten percent (10%) of
the then Outstanding Company Common Stock.




     3. Method of Exercise of the Stock Option.



          (a) The portion of the Stock Option as to which the Optionee is vested shall be exercisable
by delivery to the Company of a written or electronic notice stating the number of whole shares to
be purchased pursuant to this Agreement and accompanied by payment of the full purchase price of
the shares of Common Stock to be purchased. Fractional share interests shall be disregarded except
that they may be accumulated.




          (b) The exercise price of the Stock Option shall be paid: (i) in cash or by certified check
or bank draft payable to the order of the Company; (ii) by exchange of shares of unrestricted
Common Stock of the Company already owned by the Optionee (that have been held by the Optionee for
six (6) months prior to exercise or which were acquired in the open market) and having an aggregate
Fair Market Value equal to the aggregate purchase price, provided, that the Optionee represents and
warrants to the




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Company that the Optionee has held the shares of Common Stock free and clear of liens and
encumbrances and has held the shares for at least six (6) months prior to exercise or that such
shares were acquired in the open market; (iii) by delivering, along with a properly executed
exercise notice to the Company, a copy of irrevocable instructions to a broker to deliver promptly
to the Company the aggregate exercise price and, if requested by the Optionee, the amount of any
applicable federal, state, local or foreign withholding taxes required to be withheld by the
Company, provided, however, that such exercise may be implemented solely under a program or
arrangement established and approved by the Company with a brokerage firm selected by the Company;
(iv) by any other procedure approved by the Committee, or by a combination of the foregoing.




     4. Termination of Employment and/or Service Other Than Due to Death or Disability.



          (a) Except as provided in Section 4(b) below with regard to the Optionee’s termination of
employment and/or service for cause or following an event that would be grounds for a termination
of employment and/or service for cause and Section 5 below with regard to the Optionee’s
termination of employment and/or service due to death or Disability, in the event of the
Optionee’s termination of employment and/or service, the portion of the Stock Option, if any, which
is exercisable at the time of such termination may be exercised prior to the first to occur of (a)
the expiration of the ninety day (90) period which commences on the date of termination or (b) the
expiration date of the Stock Option.




          (b) In the event of the Optionee’s termination of employment and/or service for Cause, the
Optionee’s entire Stock Option (whether or not vested) shall be forfeited and canceled in its
entirety upon such termination of employment and/or service. If the Optionee has executed an
employment, consulting or similar service agreement, the definition of “cause” contained therein,
if any, shall govern. If there is no definition of “cause” in the governing employment, consulting
or similar service agreement or the Optionee does not have an employment, consulting or similar
service agreement, then the definition of cause shall be conduct by the Optionee, as determined in
the sole discretion of the Company’s Board of Directors, involving one or more of the following:
(a) gross misconduct or inadequate performance by the Optionee which is injurious to the Company;
or (b) the commission of an act of embezzlement, fraud or theft, which results in economic loss,
damage or injury to the Company; or (c) the unauthorized disclosure of any trade secret or
confidential information of the Company; or (d) the commission of an act which constitutes unfair
competition with the Company or which induces any customer or prospective customer of the Company
to breach a contract with the Company or to decline to do business with the Company; or (e) the
indictment or conviction of the Optionee for a felony or a serious misdemeanor; or (f) the failure
by the Optionee to perform in any material respect his or her employment, duties and obligations.




          (c) Nothing in this Agreement or the Plan shall confer upon the Optionee any right to
continue in the employ and/or service of the Company or any of its
subsidiaries or affiliates or interfere in any way with the right of the Company or any




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such
subsidiaries or affiliates to terminate the Optionee’s employment and/or service at any time.




     5. Death or Disability of Optionee.



     In the event of the Optionee’s termination of employment and/or service due to death (or, in
the event of the Optionee’s death following termination of employment and/or service while the
Stock Option remains exercisable) the portion of the Stock Option, if any, which is exercisable at
the time of death may be exercised by the Optionee’s estate or by a person who acquired the right
to exercise such Stock Option by bequest or inheritance or otherwise by reason of the death of the
Optionee at any time prior to the first to occur of (a) twelve (12) months after the date of death
or (b) the expiration date of the Stock Option. In the event of the Optionee’s termination of
employment and/or service due to long term disability, the portion of the Stock Option, if any,
which is exercisable at the time of such termination of employment and/or service due to Disability
for long term disability may be exercised by the Optionee or the Optionee’s guardian or legal
representative at any time prior to the first to occur of (a) twelve (12) months after such
termination of employment and/or service or (b) the expiration date of the Stock Option.



     6. Nontransferability of the Stock Option.



     The Stock Option is non-transferable by the Optionee other than by will or the laws of descent
and distribution or pursuant to a qualified domestic relations order, and the Stock Option may be
exercised, during the lifetime of the Optionee, only by the Optionee or by the Optionee’s guardian
or legal representative or any transferee described above.



     7. Rights as a Stockholder.



     An Optionee or a transferee of the Stock Option shall have no rights as a stockholder with
respect to any shares covered by such Stock Option until the date when his or her purchase is
entered upon the records of the duly authorized transfer agent of the Company. No adjustment shall
be made for dividends (ordinary or extraordinary, whether in cash, securities or other property) or
distribution of other rights for which the record date is prior to the date a stock certificate is
issued, except as provided in the Plan.



     8. Adjustment in the Event of Change in Stock.



     In accordance with Section 10(c) of the Plan, in the event of any change in Corporate
capitalization (including, but not limited to, a change in the number of shares of Common Stock
outstanding), and the number and kind of shares subject to the Stock Option and/or the exercise
price per share will be adjusted. The determination of the Committee regarding any adjustment will
be final and conclusive.



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     9. No Guarantee of Continued Service.



     OPTIONEE ACKNOWLEDGES AND AGREES THAT THE VESTING OF SHARES PURSUANT TO THE VESTING SCHEDULE
HEREOF IS EARNED ONLY BY CONTINUING THE EMPLOYMENT OR BUSINESS RELATIONSHIP AT THE WILL OF THE
COMPANY (NOT THROUGH THE ACT OF BEING ENGAGED, BEING GRANTED THIS OPTION OR ACQUIRING SHARES
HEREUNDER). OPTIONEE FURTHER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT, THE TRANSACTIONS
CONTEMPLATED HEREUNDER AND THE VESTING SCHEDULE SET FORTH HEREIN DO NOT CONSTITUTE AN EXPRESS OR
IMPLIED PROMISE OF CONTINUED EMPLOYMENT FOR THE VESTING PERIOD, FOR ANY PERIOD, OR AT ALL, AND
SHALL NOT INTERFERE IN ANY WAY WITH OPTIONEE’S RIGHT OR THE COMPANY’S RIGHT TO TERMINATE THE
RELATIONSHIP AT ANY TIME, WITH OR WITHOUT CAUSE.



     10. Other Restrictions.



     The exercise of the Stock Option shall be subject to the requirement that, if at any time the
Committee shall determine that (i) the listing, registration or qualification of the shares of
Common Stock subject or related thereto upon any securities exchange or under any state or federal
law, or (ii) the consent or approval of any government regulatory body or (iii) an agreement by the
Optionee with respect to the disposition of shares of Common Stock is necessary or desirable as a
condition of, or in connection with, such exercise or the delivery or purchase of shares pursuant
thereto, then in any such event, such exercise shall not be effective unless such listing,
registration, qualification, consent, or approval or agreement shall have been effected or obtained
free of any conditions not acceptable to the Committee.



     The Company may, but will in no event be obligated to, register any securities issuable upon
the exercise of all or any portion of the Stock Option 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 Stock Option or the issuance of shares pursuant thereto to comply with any law
or regulation of any governmental authority. The certificates representing shares issued to
Optionee hereunder shall bear such legends as Company determines appropriate referring to
restrictions on the transfer of such shares imposed by this Agreement and such other legends as are
required or appropriate under applicable law.



     11. Taxes and Withholding.



     No later than the date of exercise of the Stock Option granted hereunder, the Optionee shall
pay to the Company or make arrangements satisfactory to the Committee regarding payment of any
federal, state or local taxes of any kind required by law to be withheld upon the exercise of such
Stock Option and the Company shall, to the extent permitted or required by law, have the right to
deduct from any payment of any kind
otherwise due to the Optionee, federal, state and local taxes of any kind required by law to be
withheld upon the exercise of such Stock Option. The Optionee should consult with



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a tax advisor
before exercising this Option or disposing of the Shares to obtain advice as to the consequences of
such exercise or disposition.




     12. Notices.



     All notices and other communications under this Agreement shall be in writing and shall be
given by hand delivery to the other party or by facsimile, overnight courier, or registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:



     If to the Optionee, at the address set forth on the signature page hereto.



     If to the Company:


Attn: Michael R. Garone, Chief Financial Officer

Emisphere Technologies, Inc.

240 Cedar Knolls Road, Suite 200

Cedar Knolls, NJ 07927

Telephone: (973) 532-8000

Facsimile: (973) 532-8121




     or to such other address or facsimile number as any party shall have furnished to the other in
writing in accordance with this Section 12. Notice and communications shall be effective when
actually received by the addressee.



     13. Effect of Agreement.



     Except as otherwise provided hereunder, this Agreement shall be binding upon and shall inure
to the benefit of any successor or successors of the Company, and to any transferee or successor of
the Optionee pursuant to Section 6.



     14. Laws Applicable to Construction.



     The interpretation, performance and enforcement of this Agreement shall be governed by the
laws of the State of Delaware without reference to principles of conflict of laws, as applied to
contracts executed in and performed wholly within the State of Delaware.



     15. Severability.



     The invalidity or enforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement. If the final judgment of a
court of competent jurisdiction declares that any provision of this Agreement is invalid or
unenforceable, the parties hereto agree that the court making the determination of invalidity or
unenforceability shall have the power, and is hereby
directed, to reduce the scope, duration or area of the provision, to delete specific words or
phrases and to replace any invalid or unenforceable provision with a provision that is



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valid and enforceable and that comes closest to expressing the intention of the invalid or
unenforceable provision and this Agreement shall be enforceable as so modified.




     16. Conflicts and Interpretation.



     This Agreement is subject to all the terms, conditions and provisions of the Plan. In the
event of any conflict between this Agreement and the Plan, the Plan shall control. In the event of
any ambiguity in this Agreement, any term which is not defined in this Agreement, or any matters as
to which this Agreement is silent, the Plan shall govern including, without limitation, the
provisions thereof pursuant to which the Committee has the power, among others, to (i) interpret
the Plan, (ii) prescribe, amend and rescind rules and regulations relating to the Plan and (iii)
make all other determinations deemed necessary or advisable for the administration of the Plan.



     17. Headings.



     The headings of Sections herein are included solely for convenience of reference and shall not
affect the meaning or interpretation of any of the provisions of this Agreement.



     18. Amendment.



     This Agreement may not be modified, amended or waived except by an instrument in writing
signed by both parties hereto. The waiver by either party of compliance with any provision of this
Agreement shall not operate or be construed as a waiver of any other provision of this Agreement,
or of any subsequent breach by such party of a provision of this Agreement.



     19. Term.



     The term of this Agreement is ten years from the Grant Date, unless terminated prior to such
date in accordance with the provisions herein.



     20. Counterparts.



     This Agreement may be executed in counterparts, which together shall constitute one and the
same original.



[signature page follows]




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     IN WITNESS WHEREOF, as of the date first above written, the Company has caused this Agreement
to be executed on its behalf by a duly authorized officer and the Optionee has hereunto set the
Optionee’s hand.



	 	 	 	 	 
	 	 	EMISPHERE TECHNOLOGIES, INC.

 	 
	 	  	 	 
	 	 	By:  	 	 
	 	 	Title:  	 	 
	 
	 	 	OPTIONEE:

 	 
	 	  	 	 
	 	 	[Name of Optionee] 	 
	 
	 	 	Address: 	 
	 




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