EX-10.12






Exhibit 10.12




OSI PHARMACEUTICALS, INC.




AMENDED AND RESTATED STOCK INCENTIVE PLAN




NON-QUALIFIED STOCK OPTION AGREEMENT




     THIS NON-QUALIFIED STOCK OPTION AGREEMENT (this “Agreement”), by and between OSI
PHARMACEUTICALS, INC., a Delaware corporation (the “Company”) and [EXECUTIVE OFFICER] (the
“Optionee”), an employee of the Company, is entered into as of the date set forth beneath the
Optionee’s name below.



     Pursuant to the OSI Pharmaceuticals, Inc. Amended and Restated Stock Incentive Plan, as
amended (the “Plan”), the Compensation Committee of the Board of Directors of the Company (the
“Committee”) approved on [INSERT DATE OF GRANT] (the “Grant Date”) the grant to the Optionee of a
non-qualified stock option to purchase shares of the Company’s common stock, par value $.01 per
share (the “Common Stock”), as hereinafter set forth. The option granted herein is not intended to
qualify as an “incentive stock option” as defined in Section 422 of the Internal Revenue Code of
1986, as amended.



W I T N E S S E T H:




     1. Grant. On the Grant Date, the Company granted to the Optionee an option (the
“Option”) to purchase on the terms and conditions set forth herein and in the Plan all or any part
of an aggregate of [INSERT NUMBER OF SHARES] shares of Common Stock (the “Option Shares”), at the
purchase price of $[INSERT GRANT PRICE] per share (the “Option Price”).



     2. Vesting. Subject to the terms and conditions of this Agreement and the Plan, the
Optionee shall have the cumulative right to exercise the Option over a three year period, with
one-third of the Option Shares becoming exercisable on each of the third, fourth and fifth
anniversaries of the Grant Date, with any fractional number of Option Shares that would otherwise
become exercisable as of any such anniversary rounded to a whole integer as determined in the
discretion of the Committee.



     3. Term. The Option shall terminate in all events at 5:00 p.m. (local New York, New
York time) on [INSERT DATE IMMEDIATELY PRIOR TO SEVENTH ANNIVERSARY OF THE GRANT DATE] (the
“Termination Date”), unless sooner terminated as provided in Subparagraphs (a) or (b) below.



          (a) Termination of Employment or Service. The Option shall terminate and shall no
longer be exercisable ninety (90) days after the Optionee’s employment (or service as an officer or
consultant) with the Company and any parent or subsidiary of the Company terminates, unless such
termination of employment or service was caused by the Optionee’s



 









 





death or Retirement (as defined in the Plan). The death or Retirement of the Optionee shall not affect
the remaining term of the Option. Following a termination of employment or service (including due
to death or Retirement), the Optionee (or the Optionee’s heirs or personal representatives if
Optionee is deceased) may, during the remaining term of the Option, purchase any remaining Option
Shares which could have been purchased on the date Optionee’s employment or service was terminated,
but may not purchase any Option Shares which would otherwise have first become purchasable
following such termination of employment or service.




          (b) Sale or Reorganization. As provided in Section 6(h) of the Plan, if the Company
is merged or consolidated with another corporation, or if the property or stock of the Company is
acquired by another corporation, or if there is a separation, reorganization or liquidation of the
Company, the Board of Directors of the Company may, in its discretion, give Optionee a written
notice that the Option will terminate thirty (30) days after the date of such written notice. In
any such case, the Option will become immediately exercisable in full, notwithstanding Paragraph 2
above.



     4. Method of Exercise and Payment.



          (a) Method of Exercise. The Option shall be exercised through the Company’s
broker-assisted stock option program (the “Broker Program”) in accordance with the terms and
conditions of the Broker Program as may be in effect from time to time.



          (b) Taxes. It shall be a condition to the performance of the Company’s obligation to
issue or transfer Option Shares upon the exercise of the Option that the Optionee remit an amount
sufficient to satisfy any federal, state and/or local tax withholding requirements arising in
connection with the exercise of the Option or the issuance of Option Shares, other than stock
transfer taxes, in each case in accordance with the terms and conditions of the Broker Program as
may be in effect from time to time. If the Company for any reason does not require the Optionee to
make a payment sufficient to satisfy such withholding requirements, any tax withholding payments
made by the Company to any federal, state or local tax authority with respect to the exercise of
the Option shall constitute a personal obligation of the Optionee to the Company, payable upon
demand or, at the option of the Company, by deduction from future compensation payable to the
Optionee.



          (c) Partial Exercise. To the extent otherwise exercisable, the Option may be
exercised in whole or in part, except that the Option may in no event be exercised with respect to
fractional shares.



     5. Transfers. The Option is not transferable by the Optionee otherwise than by will
or pursuant to the laws of descent and distribution in the event of the Optionee’s death, in which
event the Option may be exercised by the heirs or legal representatives of the Optionee. The
Option may be exercised during the lifetime of the Optionee only by the Optionee. Any attempt at
assignment, transfer, pledge or disposition of the Option contrary to the provisions hereof or the
levy of any execution, attachment or similar process upon the Option shall be null and void and
without effect. Any exercise of the Option by a person other than the Optionee shall be
accompanied by appropriate proofs of the right of such person to exercise the Option.



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     6. Adjustments on Changes in Common Stock. In the event that dividends payable in
Common Stock during any fiscal year of the Company exceed in the aggregate five percent (5%) of the
Common Stock issued and outstanding at the beginning of the year, or in the event there is during
any fiscal year of the Company one or more splits, subdivisions or combinations of shares of Common
Stock resulting in an increase or decrease by more than five percent (5%) of the shares of Common
Stock outstanding at the beginning of the year, the number of Option Shares deliverable upon the
exercise thereafter of the Option shall be increased or decreased proportionately, as the case may
be, without change in the aggregate purchase price payable upon exercise of the Option. Common
Stock dividends, splits, subdivisions or combinations during any fiscal year which do not exceed in
the aggregate five percent (5%) of the Common Stock issued and outstanding at the beginning of such
year shall not result in any adjustment under the Option. All adjustments shall be made as of the
day such action necessitating such adjustment becomes effective.



     7. Legal Requirements.



          (a) Listing Requirements. If at any time the Board of Directors shall determine, in
its discretion, that the listing, registration, or qualification of any of the Option Shares upon
any securities exchange or under any state or federal law, or the consent or approval of any
governmental regulatory body, is necessary or desirable as a condition of, or in connection with,
the granting of the Option or the issue, transfer or purchase of Option Shares hereunder, the
Option may not be exercised in whole or in part unless such listing, registration, qualification,
consent, or approval shall have been effected or obtained free of any conditions not acceptable to
the Board of Directors.



          (b) Securities Laws. The Company shall not be obligated to sell or issue any Option
Shares in any manner in contravention of the Securities Act of 1933, as amended, or any state
securities law. The Board of Directors or the Committee may, at any time, require, as a condition
to the exercise of the Option, the representation or agreement of the Optionee to the effect that
the Option Shares issuable upon exercise of the Option are acquired by the Optionee for investment
purposes and not with a view to the resale or distribution thereof, and may require such other
representations and documents as may be required to comply with applicable securities laws.



     8. Administration. The Option has been granted pursuant to, and is subject to the
terms and provisions of, the Plan. All terms used herein which are defined in the Plan and not
otherwise defined herein shall have the same meanings as in the Plan. To the extent that the
provisions hereof conflict with those of the Plan, the provisions of the Plan shall control. All
decisions or interpretations made by the Committee (as designated under the Plan) regarding any
issue or question arising under the Option or the Plan shall be final, binding and conclusive on
the Company and the Optionee.



     9. Rights as Stockholder. The Optionee shall have none of the rights of a stockholder
with respect to the Option Shares unless and until such Option Shares shall be issued to the
Optionee upon the exercise of the Option. Except as provided in Paragraph 6 above, no
adjustments shall be made for dividends or other rights for which the record date is prior to
the date the stock certificate is issued.



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     10. Continued Employment or Service. Nothing contained herein or in the Plan shall
confer any right to continue in the employ or service of the Company or any parent or subsidiary of
the Company or interfere in any way with the right of the Company or any parent or subsidiary of
the Company to terminate the employment, services, responsibilities or duties of the Optionee at
any time for any reason whatsoever.



     11. Sale of Option Shares. Unless otherwise provided by the Committee, no Option
Shares acquired upon exercise of the Option may be sold or otherwise disposed of by the Optionee
within six months from the Grant Date.



     12. Notices. Any notice to be given to the Company hereunder shall be delivered
personally to the Secretary of the Company or mailed or delivered to the Company at its principal
executive office, addressed to the attention of the Secretary, and any notice to be given to the
Optionee hereunder shall be delivered personally or mailed or delivered to the Optionee at the
address then appearing on the records of the Company. Such addresses may be changed at any time by
notice from one party to the other. Notices given hereunder shall be in writing, and shall be
deemed to have been duly given upon delivery thereof, if personally delivered, or three days after
being deposited in the United States mail, registered or certified mail, properly addressed, with
proper postage and fees prepaid, or one day after being deposited with a delivery service
guaranteeing overnight delivery, properly addressed, with fees paid by the sender.



     13. Governing Law. This Agreement will be interpreted and enforced under the laws of
the State of New York, other than any conflicts or choice of law rule or principle that might
otherwise refer construction or interpretation of this Agreement to the substantive law of another
jurisdiction. The parties will submit any dispute or claim arising under this Agreement to the
exclusive jurisdiction of the U.S. federal or New York state courts within the New York counties of
New York, Nassau, or Suffolk, and the parties hereby submit to, and waive any objection to,
personal jurisdiction and venue in such courts for such purpose.



     14. Binding Effect. This agreement shall be binding upon and inure to the benefit of
the parties hereto, including the successors and assigns of the Company and the heirs and personal
representatives of the Optionee.



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     15. Counterparts. This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.


IN WITNESS WHEREOF, the parties hereto have entered into this Non-Qualified Stock Option Agreement
as of the date set forth below.




	 	 	 	 	 
	 	OSI PHARMACEUTICALS, INC.	 
	 
	 	 	 
	 	Name:	 
	 	Title:	 
	 	 	 
	 
	 	ACCEPTED BY (OPTIONEE):	 
	 
	 	 	 
	 	Name: [EMPLOYEE NAME]	 
	 	 	 
	 	Date:	 




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