Exhibit
10.4


 


FORM
OF NONQUALIFIED STOCK OPTION AGREEMENT


 


MYMD
PHARMACEUTICALS, INC.


2021
EQUITY INCENTIVE PLAN


 


1.       Grant
of Option. Pursuant to the MyMD Pharmaceuticals, Inc. 2021 Equity Incentive Plan (the “Plan”) for
Employees, Contractors, and Outside Directors of MyMD Pharmaceuticals, Inc., a New Jersey corporation (the “Company”),
the Company grants to


 


 



(the
“Participant”)


 


an
option (the “Stock Option”) to purchase a total of ___________________ (__________) full shares of Common
Stock of the Company (the “Optioned Shares”) at an “Option Price” equal to
$________ per share (being the Fair Market Value per share of the Common Stock on the Date of Grant).


 


The
“Date of Grant” of this Stock Option is _________________, 20__. The “Option Period”
shall commence on the Date of Grant and shall expire on the date immediately preceding the tenth (10th) anniversary
of the Date of Grant, unless terminated earlier in accordance with Section 4 below. The Stock Option is a Nonqualified
Stock Option that is intended to comply with the provisions governing nonqualified stock options under the final Treasury Regulations
issued on April 17, 2007, in order to exempt this Stock Option from application of Section 409A of the Code.


 


2.       Subject
to Plan. The Stock Option and its exercise are subject to the terms and conditions of the Plan, and the terms of the Plan
shall control to the extent not otherwise inconsistent with the provisions of this Nonqualified Stock Option Agreement (this “Agreement”).
The capitalized terms used herein that are defined in the Plan shall have the same meanings assigned to them in the Plan. The
Stock Option is subject to any rules promulgated pursuant to the Plan by the Board or the Committee, as applicable, and communicated
to the Participant in writing.


 


3.       Vesting;
Time of Exercise. Except as specifically provided in this Agreement and subject to certain restrictions and conditions set
forth in the Plan, the Optioned Shares shall be vested, and the Stock Option shall be exercisable as follows: [TO BE UPDATED
WITH SPECIFIC VESTING TERMS]:


 


a.       _______________________
of the total Optioned Shares shall vest and that portion of the Stock Option shall become exercisable on __________________, provided
the Participant is employed by (or, if the Participant is a Contractor or an Outside Director, is providing services to) the Company
or a Subsidiary on that date.


 


b.       _______________________
of the total Optioned Shares shall vest and that portion of the Stock Option shall become exercisable on __________________, provided
the Participant is employed by (or, if the Participant is a Contractor or an Outside Director, is providing services to) the Company
or a Subsidiary on that date.


 


c.       _______________________
of the total Optioned Shares shall vest and that portion of the Stock Option shall become exercisable on __________________, provided
the Participant is employed by (or, if the Participant is a Contractor or an Outside Director, is providing services to) the Company
or a Subsidiary on that date.


 



    	 



    	 



    

 


d.       _______________________
of the total Optioned Shares shall vest and that portion of the Stock Option shall become exercisable on __________________, provided
the Participant is employed by (or, if the Participant is a Contractor or an Outside Director, is providing services to) the Company
or a Subsidiary on that date.


 


[Notwithstanding
the foregoing, in the event that (i) a Change in Control occurs or (ii) the Participant incurs a Termination of Service due to
his death or Total and Permanent Disability, then immediately prior to the effective date of such Change in Control or qualifying
Termination of Service, the total Optioned Shares not previously vested shall thereupon immediately become vested, and this Stock
Option shall become fully exercisable, if not previously so exercisable.]


 


4.       Term;
Forfeiture.


 


a.       Except
as otherwise provided in this Agreement, to the extent the unexercised portion of the Stock Option relates to Optioned Shares
that are not vested on the date of the Participant’s Termination of Service, the Stock Option will be terminated on that
date. The unexercised portion of the Stock Option that relates to Optioned Shares which are vested on such date will terminate
at the first of the following to occur:


 


i.       5
p.m. on the date the Option Period terminates;


 


ii.       5
p.m. on the date which is twelve (12) months following the date of the Participant’s Termination of Service due to death
or Total and Permanent Disability;


 


iii.       immediately
upon the Participant’s Termination of Service by the Company for Cause (as defined herein);


 


iv.       5
p.m. on the date which is three (3) months following the date of the Participant’s Termination of Service for any reason
not otherwise specified in this Section 4.a.; or


 


v.       5
p.m. on the date the Company causes any portion of the Stock Option to be forfeited pursuant to Section 7 hereof.


 


b.       For
purposes hereof, “Cause” shall have the meaning ascribed to such term in any employment, consulting,
or other service agreement in effect by and between the Company and the Participant; provided, however, that at any time there
is no such agreement in effect, or if such agreement does not define such term, the term “Cause” shall
mean (i) a material breach or material default (including, without limitation, any material dereliction of duty) by the Participant
of any agreement between the Participant and the Company or policy of the Company, or a continuing failure by the Participant
to follow the direction of a duly authorized representative of the Company; (ii) gross negligence, willful misfeasance, or breach
of fiduciary duty to the Company by the Participant; (iii) the commission by the Participant of an act of fraud, embezzlement,
dishonesty, or any felony or other crime of moral turpitude in connection with the Participant’s duties to the Company;
(iv) conviction of the Participant of a felony or any other crime that would materially and adversely affect: (A) the business
reputation of the Company or (B) the performance of the Participant’s duties to the Company; or (v) the Participant’s
refusal to perform or intentional disregard of, the Participant’s duties and responsibilities to the Company. Any determination
of whether Cause exists shall be made by the Committee in its sole discretion.


 




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5.       Who
May Exercise. Subject to the terms and conditions set forth in Sections 3 and 4 above, during the lifetime of the Participant,
the Stock Option may be exercised only by the Participant, or by the Participant’s guardian or personal or legal representative.
If the Participant’s Termination of Service is due to his death prior to the dates specified in Section 4.a. hereof,
and the Participant has not exercised the Stock Option as to the maximum number of vested Optioned Shares as set forth in Section
3 hereof as of the date of death, the following persons may exercise the exercisable portion of the Stock Option on behalf
of the Participant at any time prior to the earliest of the dates specified in Section 4.a. hereof: the personal representative
of his estate or the person who acquired the right to exercise the Stock Option by bequest or inheritance or by reason of the
death of the Participant, provided that the Stock Option shall remain subject to the other terms of this Agreement, the Plan,
and all Applicable Laws, rules, and regulations.


 


6.       No
Fractional Shares. The Stock Option may be exercised only with respect to full shares, and no fractional share of stock shall
be issued.


 


7.       Manner
of Exercise. Subject to such administrative regulations as the Committee may from time to time adopt, the Stock Option may
be exercised by the delivery of an Exercise Notice to the Committee, and the Exercise Date for the Optioned Shares being exercised
shall be at least three (3) days after giving the Exercise Notice to the Committee unless an earlier time shall have been mutually
agreed upon. On the Exercise Date, the Participant shall deliver to the Company consideration with a value equal to the total
Option Price of the shares to be purchased, payable as follows: (a) cash, check, bank draft, or money order payable to the order
of the Company; (b) if the Company, in its sole discretion, so consents in writing, Common Stock (including Restricted Stock)
owned by the Participant on the Exercise Date, valued at its Fair Market Value on the Exercise Date, and which the Participant
has not acquired from the Company within six (6) months prior to the Exercise Date; (c) if the Company, in its sole discretion,
so consents in writing, by delivery (including by FAX) to the Company or its designated agent of an executed irrevocable option
exercise form together with irrevocable instructions from the Participant to a broker or dealer, reasonably acceptable to the
Company, to sell certain of the shares of Common Stock purchased upon exercise of the Stock Option or to pledge such shares as
collateral for a loan and promptly deliver to the Company the amount of sale or loan proceeds necessary to pay such purchase price;
(d) by requesting the Company to withhold the number of shares otherwise deliverable upon exercise of the Stock Option by the
number of shares of Common Stock having an aggregate Fair Market Value equal to the aggregate Option Price at the time of exercise
(i.e., a cashless net exercise), and/or (e) in any other form of valid consideration that is acceptable to the Committee
in its sole discretion. In the event that shares of Restricted Stock are tendered as consideration for the exercise of a Stock
Option, a number of shares of Common Stock issued upon the exercise of the Stock Option equal to the number of shares of Restricted
Stock used as consideration therefor shall be subject to the same restrictions and provisions as the Restricted Stock so tendered.


 


Upon
payment of all amounts due from the Participant, the Company shall cause the Common Stock then being purchased to be electronically
registered in the Participant’s name (or the name of the person exercising the Participant’s Stock Option in the event
of the Participant’s death), promptly after the Exercise Date. The Company shall not issue certificates for Common Stock
unless the Participant (or the person exercising the Participant’s Stock Option in the event of the Participant’s
death) requests delivery of the certificates for the Common Stock in writing and in accordance with the procedures established
by the Committee. The Company shall deliver the certificates as soon as administratively practicable following the Company’s
receipt of the written request from the Participant (or the person exercising the Participant’s Stock Option in the event
of the Participant’s death) for delivery of the certificates.


 


The
obligation of the Company to register or deliver such shares of Common Stock shall, however, be subject to the condition that,
if at any time the Company shall determine in its discretion that the listing, registration, or qualification of the Stock Option
or the Common Stock upon any securities exchange or inter-dealer quotation system or under any state or federal law, or the consent
or approval of any governmental regulatory body, is necessary as a condition of, or in connection with, the Stock Option or the
issuance or purchase of shares of Common Stock thereunder, then the Stock 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
reasonably acceptable to the Committee.


 




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If
the Participant fails to pay for any of the Optioned Shares specified in such notice or fails to accept delivery thereof, that
portion of the Participant’s Stock Option and the right to purchase such Optioned Shares may be forfeited by the Participant.


 


8.       Nonassignability.
The Stock Option is not assignable or transferable by the Participant except by will or by the laws of descent and distribution.


 


9.       Rights
as Shareholder. The Participant will have no rights as a shareholder with respect to any of the Optioned Shares until the
issuance of a certificate or certificates to the Participant or the registration of such shares in the Participant’s name
for the shares of Common Stock. The Optioned Shares shall be subject to the terms and conditions of this Agreement. Except as
otherwise provided in Section 10 hereof, no adjustment shall be made for dividends or other rights for which the record
date is prior to the issuance of such certificate or certificates. The Participant, by his execution of this Agreement, agrees
to execute any documents requested by the Company in connection with the issuance of the shares of Common Stock.


 


10.       Adjustment
of Number of Optioned Shares and Related Matters. The number of shares of Common Stock covered by the Stock Option, and the
Option Prices thereof, shall be subject to adjustment in accordance with Articles 11 - 13 of the Plan.


 


11.       Nonqualified
Stock Option. The Stock Option shall not be treated as an Incentive Stock Option.


 


12.       Voting.
The Participant, as record holder of some or all of the Optioned Shares following exercise of this Stock Option, has the exclusive
right to vote, or consent with respect to, such Optioned Shares until such time as the Optioned Shares are transferred in accordance
with this Agreement; provided, however, that this Section shall not create any voting right where the holders of such Optioned
Shares otherwise have no such right.


 


13.       Specific
Performance. The parties acknowledge that remedies at law will be inadequate remedies for breach of this Agreement and consequently
agree that this Agreement shall be enforceable by specific performance. The remedy of specific performance shall be cumulative
of all of the rights and remedies at law or in equity of the parties under this Agreement.


 


14.       Participant’s
Representations. Notwithstanding any of the provisions hereof, the Participant hereby agrees that he will not exercise the
Stock Option granted hereby, and that the Company will not be obligated to issue any shares to the Participant hereunder, if the
exercise thereof or the issuance of such shares shall constitute a violation by the Participant or the Company of any provision
of any law or regulation of any governmental authority. Any determination in this connection by the Company shall be final, binding,
and conclusive. The obligations of the Company and the rights of the Participant are subject to all Applicable Laws, rules, and
regulations.


 


15.       Investment
Representation. Unless the shares of Common Stock are issued to the Participant in a transaction registered under applicable
federal and state securities laws, by his execution hereof, the Participant represents and warrants to the Company that all Common
Stock which may be purchased hereunder will be acquired by the Participant for investment purposes for his own account and not
with any intent for resale or distribution in violation of federal or state securities laws. Unless the Common Stock is issued
to him in a transaction registered under the applicable federal and state securities laws, all certificates issued with respect
to the Common Stock shall bear an appropriate restrictive investment legend and shall be held indefinitely, unless they are subsequently
registered under the applicable federal and state securities laws or the Participant obtains an opinion of counsel, in form and
substance satisfactory to the Company and its counsel, that such registration is not required.


 




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16.       Legend.
The following legend shall be placed on all certificates representing Optioned Shares:


 


“The
shares evidenced by this certificate are subject to a Stock Option Agreement containing certain rights and limitations on transfer.
A copy of that agreement is on file at the principal place of business or the registered office of the Company, and a copy may
be obtained without charge upon written request to the Company at its principal place of business or its registered office.”


 


All
Optioned Shares and shares into which Optioned Shares may be converted owned by the Participant shall be subject to the terms
of this Agreement and shall be represented by a certificate or certificates bearing the foregoing legend.


 


17.       Participant’s
Acknowledgments. The Participant acknowledges that a copy of the Plan has been made available for his review by the Company
and represents that he is familiar with the terms and provisions thereof, and hereby accepts this Stock Option subject to all
the terms and provisions thereof. The Participant hereby agrees to accept as binding, conclusive, and final all decisions or interpretations
of the Committee or the Board, as appropriate, upon any questions arising under the Plan or this Agreement.


 


18.       Law
Governing. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of New Jersey
(excluding any conflict of laws rule or principle of New Jersey law that might refer the governance, construction, or interpretation
of this Agreement to the laws of another state).


 


19.       No
Right to Continue Service or Employment. Nothing herein shall be construed to confer upon the Participant the right to continue
in the employ or to provide services to the Company or any Subsidiary, whether as an Employee, Contractor, or Outside Director,
or to interfere with or restrict in any way the right of the Company or any Subsidiary to discharge the Participant as an Employee,
Contractor, or Outside Director at any time.


 


20.       Legal
Construction. In the event that any one or more of the terms, provisions, or agreements that are contained in this Agreement
shall be held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect for any reason, the
invalid, illegal, or unenforceable term, provision, or agreement shall not affect any other term, provision, or agreement that
is contained in this Agreement, and this Agreement shall be construed in all respects as if the invalid, illegal, or unenforceable
term, provision, or agreement had never been contained herein.


 


21.       Covenants
and Agreements as Independent Agreements. Each of the covenants and agreements that is set forth in this Agreement shall be
construed as a covenant and agreement independent of any other provision of this Agreement. The existence of any claim or cause
of action of the Participant against the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense
to the enforcement by the Company of the covenants and agreements that are set forth in this Agreement.


 




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22.       Entire
Agreement. This Agreement together with the Plan supersede any and all other prior understandings and agreements, either oral
or in writing, between the parties with respect to the subject matter hereof and constitute the sole and only agreements between
the parties with respect to the said subject matter. All prior negotiations and agreements between the parties with respect to
the subject matter hereof are merged into this Agreement. Each party to this Agreement acknowledges that no representations, inducements,
promises, or agreements, orally or otherwise, have been made by any party or by anyone acting on behalf of any party, which are
not embodied in this Agreement or the Plan and that any agreement, statement, or promise that is not contained in this Agreement
or the Plan shall not be valid or binding or of any force or effect.


 


23.       Parties
Bound. The terms, provisions, and agreements that are contained in this Agreement shall apply to, be binding upon, and inure
to the benefit of the parties and their respective heirs, executors, administrators, legal representatives, and permitted successors
and assigns, subject to the limitation on assignment expressly set forth herein.


 


24.       Modification.
No change or modification of this Agreement shall be valid or binding upon the parties unless the change or modification is in
writing and signed by the parties; provided, however, that the Company may change or modify this Agreement without the Participant’s
consent or signature if the Company determines, in its sole discretion, that such change or modification is necessary for purposes
of compliance with or exemption from the requirements of Section 409A of the Code or any regulations or other guidance issued
thereunder. Notwithstanding the preceding sentence, the Company may amend the Plan to the extent permitted by the Plan.


 


25.       Headings.
The headings that are used in this Agreement are used for reference and convenience purposes only and do not constitute substantive
matters to be considered in construing the terms and provisions of this Agreement.


 


26.       Gender
and Number. Words of any gender used in this Agreement shall be held and construed to include any other gender, and words
in the singular number shall be held to include the plural, and vice versa, unless the context requires otherwise.


 


27.       Notice.
Any notice required or permitted to be delivered hereunder shall be deemed to be delivered only when actually received by the
Company or by the Participant, as the case may be, at the addresses set forth below, or at such other addresses as they have theretofore
specified by written notice delivered in accordance herewith:


 


	 	a.	Notice
    to the Company shall be addressed and delivered as follows:	 
	 	 	 	 
	 	 	MyMD
    Pharmaceuticals, Inc.	 
	 		___________________________
    	 
	 	 	___________________________	 
	 	 	Attn:_______________________	 
	 	 	Fax:________________________	 



 


	 	b.	Notice
to the Participant shall be addressed and delivered as set forth on the signature page.



 




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28.
Tax Requirements. The Participant is hereby advised to consult immediately with his own tax advisor regarding the tax
consequences of this Agreement. The Company or, if applicable, any Subsidiary (for purposes of this Section 28, the
term “Company” shall be deemed to include any applicable Subsidiary), shall have the right to deduct
from all amounts paid in cash or other form in connection with the Plan and this Agreement, any federal, state, local, or other
taxes required by law to be withheld in connection with this Award. The Company may, in its sole discretion, also require the
Participant receiving shares of Common Stock issued under the Plan to pay the Company the amount of any taxes that the Company
is required to withhold in connection with the Participant’s income arising with respect to this Award. Such payments shall
be required to be made when requested by the Company and may be required to be made prior to the delivery of any certificate representing
shares of Common Stock. Such payment may be made by (a) the delivery of cash to the Company in an amount that equals or exceeds
(to avoid the issuance of fractional shares under (c) below) the required tax withholding obligations of the Company; (b) if the
Company, in its sole discretion, so consents in writing, the actual delivery by the exercising Participant to the Company of shares
of Common Stock that the Participant has not acquired from the Company within six (6) months prior to the date of exercise, which
shares so delivered have an aggregate Fair Market Value that equals or exceeds (to avoid the issuance of fractional shares under
(c) below) the required tax withholding payment; (c) if the Company, in its sole discretion, so consents in writing, the Company’s
withholding of a number of shares to be delivered upon the exercise of the Stock Option, which shares so withheld have an aggregate
Fair Market Value that equals (but does not exceed) the required tax withholding payment; or (d) any combination of (a), (b),
or (c). The Company may, in its sole discretion, withhold any such taxes from any other cash remuneration otherwise paid by the
Company to the Participant.


 


[Remainder of Page Intentionally Left Blank;


Signature Page Follows.]


 




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IN
WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly authorized officer, and the Participant, to
evidence his consent and approval of all the terms hereof, has duly executed this Agreement, as of the date specified in Section
1 hereof.


 	 	COMPANY:
	 	MYMD
    PHARMACEUTICALS, INC.
	 	
	 	By:	                                
	 	Name:	
		Title:	

	 
	 	

                                                   PARTICIPANT:

	 	 
	 	
	 	Signature
	 	 	 
	 	Name:	                    
	 	Address:
    	
	 	 	




 




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