Exhibit 10.4


 


NONQUALIFIED STOCK OPTION AGREEMENT


 


NEPHROS, INC.


2015 EQUITY INCENTIVE PLAN


 


THIS AGREEMENT, made
effective as of this   ____ day of ____________, 20__, by and between Nephros, Inc., a Delaware corporation (the “Company”),
and _________________ (“Participant”).


 


W I T N E S S E T H:


 


WHEREAS, Participant
on the date hereof is an Employee, Director of, or Consultant to the Company or one of its Subsidiaries; and


 


WHEREAS, the Company
wishes to grant a nonqualified stock option to Participant to purchase shares of the Company’s Common Stock pursuant to the
Company’s 2015 Equity Incentive Plan (the “Plan”); and


 


WHEREAS, the Administrator
of the Plan has authorized the grant of a nonqualified stock option to Participant and has determined that, as of the effective
date of this Agreement, the fair market value of the Company’s Common Stock is $            per share;


 


NOW, THEREFORE, in
consideration of the premises and of the mutual covenants herein contained, the parties hereto agree as follows:


 


1.Grant of Option.
The Company hereby grants to Participant on the date set forth above (the “Date of Grant”), the right and option (the
“Option”) to purchase all or portions of an aggregate of   (   ) shares of Common Stock at a per share
price of $  on the terms and conditions set forth herein, and subject to adjustment pursuant to Section 16 of the Plan.
This Option is a nonqualified stock option and will not be treated as an incentive stock option, as defined under Section 422,
or any successor provision, of the Internal Revenue Code of 1986, as amended (the “Code”), and the regulations thereunder.


 


2.Duration and Exercisability.


 


a.General. The term
during which this Option may be exercised shall terminate at the close of business on       , 20__, except as otherwise
provided in Paragraphs 2(b) through 2(e) below. This Option shall become exercisable according to the following schedule:


 


[INSERT VESTING SCHEDULE]


 


Once the Option becomes exercisable to
the extent of one hundred percent (100%) of the aggregate number of shares specified in Paragraph 1, Participant may continue to
exercise this Option under the terms and conditions of this Agreement until the termination of the Option as provided herein. If,
upon an exercise of this Option, Participant does not purchase the full number of shares which Participant is then entitled to
purchase, Participant may purchase upon any subsequent exercise prior to this Option’s termination such previously unpurchased
shares in addition to those Participant is otherwise entitled to purchase.


 






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b.Termination of Employment
or Service Relationship for Cause. If Participant ceases to be [an Employee] [a Consultant] [a Director] of the
Company or any Subsidiary for Cause, as defined below, the unexercised portion of this Option shall immediately expire, and all
rights of Participant under this Option shall be forfeited.


 


For purposes of this
Section 2, “Cause” shall mean (i) the conviction of Participant for the commission of any felony, (ii) the commission
by Participant of any crime involving moral turpitude (e.g., larceny, embezzlement) which results in harm to the business,
reputation, prospects or financial condition of the Company or any Affiliate, or (iii) a disciplinary discharge pursuant to the
terms of the Company’s management handbooks or policies as in effect at the time.


 


c.Termination of Employment
or Service Relationship (other than for Cause, Disability or Death). If Participant ceases to be [an Employee] [a Consultant]
[a Director] of the Company or any Subsidiary for any reason other than for Cause, disability or death, this Option shall completely
terminate on the earlier of: (i) the close of business on the three-month anniversary date of the Participant’s termination;
and (ii) the expiration date of this Option stated in Paragraph 2(a) above. In such period following the Participant’s termination,
this Option shall be exercisable only to the extent the Option was exercisable on the vesting date immediately preceding such termination
but had not previously been exercised. To the extent this Option was not exercisable upon such termination, or if Participant does
not exercise the Option within the time specified in this Paragraph 2(c), all rights of Participant under this Option shall be
forfeited.


 


d.Disability. If
Participant ceases to be [an Employee] [a Consultant] [a Director] of the Company or any Subsidiary because of disability
(as defined in Code Section 22(e), or any successor provision), this Option shall terminate on the earlier of: (i) the close of
business on the twelve-month anniversary date of the Participant’s termination; and (ii) the expiration date of this Option
stated in Paragraph 2(a) above. In such period following the Participant’s termination, this Option shall be exercisable
only to the extent the Option was exercisable on the vesting date immediately preceding such termination but had not previously
been exercised. To the extent this Option was not exercisable upon such termination, or if Participant does not exercise the Option
within the time specified in this Paragraph 2(d), all rights of Participant under this Option shall be forfeited.


 


e.Death. In the event
of Participant’s death, this Option shall terminate on the earlier of: (i) the close of business on the twelve-month anniversary
of the date of Participant’s death; and (ii) the expiration date of this Option stated in Paragraph 2(a) above. In such period
following Participant’s death, this Option may be exercised by the person or persons to whom Participant’s rights under
this Option shall have passed by Participant’s will or by the laws of descent and distribution only to the extent the Option
was exercisable on the vesting date immediately preceding the date of Participant’s death, but had not previously been exercised.
To the extent this Option was not exercisable upon the date of Participant’s death, or if such person or persons fail to
exercise this Option within the time specified in this Paragraph 2(e), all rights under this Option shall be forfeited.


 






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3.Manner of Exercise.


 


a.General. The Option
may be exercised only by Participant (or other proper party in the event of death or incapacity), subject to the conditions of
the Plan and subject to such other administrative rules as the Administrator may deem advisable, by delivering within the option
period written notice of exercise to the Company at its principal office. The notice shall state the number of shares as to which
the Option is being exercised and shall be accompanied by payment in full of the option price for all shares designated in the
notice. The exercise of the Option shall be deemed effective upon receipt of such notice by the Company and upon payment that complies
with the terms of the Plan and this Agreement. The Option may be exercised with respect to any number or all of the shares as to
which it can then be exercised and, if partially exercised, may be so exercised as to the unexercised shares any number of times
during the option period as provided herein.


 


b.Form of Payment.
Subject to the approval of the Administrator, payment of the exercise price by Participant may be (i) in cash, or with a personal
check or certified check, (ii) by the transfer from the Participant to the Company of previously acquired unencumbered shares of
Common Stock, (iii) through the withholding of shares of Common Stock from the number of shares otherwise issuable upon the exercise
of the Option (e.g., a net share settlement), (iv) through broker-assisted cashless exercise if such exercise complies with
applicable securities laws and any insider trading policy of the Company, (v) such other form of payment as may be authorized by
the Administrator, or (vi) by a combination thereof. In the event the Participant elects to pay the exercise price in whole or
in part with previously acquired shares of Common Stock or through a net share settlement, the then-current Fair Market Value of
the Common Stock delivered or withheld shall equal the total exercise price for the shares being purchased in such manner. For
purposes of this Agreement, “previously acquired shares of Common Stock” means shares of Common Stock which the Participant
has owned for at least six (6) months prior to the exercise of the option (or for such period of time, if any, required by applicable
accounting principles).


 


c.Stock Transfer Records.
As soon as practicable after the effective exercise of all or any part of the Option, Participant shall be recorded on the stock
transfer books of the Company as the owner of the shares purchased, and the Company shall deliver to Participant one or more duly
issued stock certificates evidencing such ownership, or, if requested by the Participant and permitted by the Company’s governing
documents, its designated agent, and applicable law, shall cause the purchased shares to be issued in book-entry form. All requisite
original issue or transfer documentary stamp taxes shall be paid by the Company.


 





 






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4.General Provisions.


 


a.Employment or Other Relationship;
Rights as Stockholder. This Agreement shall not confer on Participant any right with respect to the continuance of employment
or any other relationship with the Company or any of its Subsidiaries, nor will it interfere in any way with the right of the Company
to terminate such employment or relationship. Nothing in this Agreement shall be construed as creating an employment or service
contract for any specified term between Participant and the Company or any Affiliate. Participant shall have no rights as a stockholder
with respect to shares subject to this Option until such shares have been issued to Participant (or, if permitted, a book entry
made) upon exercise of this Option. No adjustment shall be made for dividends (ordinary or extraordinary, whether in cash, securities
or other property), distributions or other rights for which the record date is prior to the date such shares are issued, except
as provided in Section 15 of the Plan.


 


b.280G Limitations.
Notwithstanding anything in the Plan, this Agreement or in any other agreement, plan, contract or understanding entered into from
time to time between Participant and the Company or any of its Subsidiaries to the contrary (except an agreement that expressly
modifies or excludes the application of this Paragraph 4(b)), the exercisability of this Option shall not be accelerated
in connection with a Change of Control to the extent that such acceleration, taking into account all other rights, payments and
benefits to which Participant is entitled under any other plan or agreement, would  constitute a "parachute payment"
or an "excess parachute payment" for purposes of Code Sections 280G and 4999, or any successor provisions, and the
regulations issued thereunder; provided, however, that the Administrator, in its sole discretion and in accordance with applicable
law, may modify or exclude the application of this Paragraph 4(b).


 


c.Securities Law Compliance.
The exercise of all or any parts of this Option shall only be effective at such time the Company and its counsel shall have determined
that the issuance and delivery of Common Stock pursuant to such exercise will not violate any state or federal securities or other
laws. If the issuance of such shares upon exercise is not registered under a then-currently effective registration statement under
the Securities Act of 1933, as amended, the Participant may be required by the Company, as a condition of the effectiveness of
any exercise of this Option, to give any written assurances that are necessary or desirable in the opinion of the Company and its
counsel to ensure the issuance complies with applicable securities laws, including that all Common Stock to be acquired pursuant
to such exercise shall be held, until such time that such Common Stock is registered and freely tradable under applicable state
and federal securities laws, for Participant’s own account without a view to any further distribution thereof; that the certificates
(or, if permitted, book entries) for such shares shall bear an appropriate legend or notation to that effect; and that such shares
will be not transferred or disposed of except in compliance with applicable state and federal securities laws.


 


d.Extension of Expiration
Date.  In the event that the exercise of this Option would be prohibited solely because the issuance of shares of
Common Stock pursuant to the Option would violate applicable securities laws, the Administrator may, in its sole discretion and
in accordance with Code Section 409A and the regulations, notices and other guidance of general applicability thereunder, permit
the expiration of the Option to be tolled during such time as its exercise is so prohibited; provided, however, that
the expiration date may not thereby be extended more than 30 days after the date the exercise first would no longer violate applicable
securities laws.


 






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e.Mergers, Recapitalizations,
Stock Splits, Etc. Except as otherwise specifically provided in any employment, change of control, severance or similar
agreement executed by the Participant and the Company, pursuant and subject to Section 15 of the Plan, certain changes in the number
or character of the Common Stock of the Company (through sale, merger, consolidation, exchange, reorganization, divestiture (including
a spin-off), liquidation, recapitalization, stock split, stock dividend or otherwise) shall result in an adjustment, reduction
or enlargement, as appropriate, in Participant’s rights with respect to any unexercised portion of the Option (i.e.,
Participant shall have such “anti-dilution” rights under the Option with respect to such events, but, subject to the
Administrator’s discretion, shall not have “preemptive” rights).


 


f.Shares Reserved.
The Company shall at all times during the term of this Agreement reserve and keep available such number of shares as will be sufficient
to satisfy the requirements of this Agreement.


 


g.Withholding
Taxes. To permit the Company to comply with all applicable federal and state income tax laws or regulations, the Company
may take such action as it deems appropriate to ensure that, if necessary, all applicable federal and state payroll, income, or
other taxes are withheld from any amounts payable by the Company to the Participant. If the Company is unable to withhold such
federal and state taxes, for whatever reason, the Participant hereby agrees to pay to the Company an amount equal to the amount
the Company would otherwise be required to withhold under federal or state law. Subject to such rules as the Administrator may
adopt, the Administrator may, in its sole discretion, permit Participant to satisfy such withholding tax obligations, in whole
or in part by: (i) delivering shares of Common Stock, or (ii) electing to have the Company withhold shares of Common Stock otherwise
issuable to the Participant as a result of the exercise of the Option. In either case, such shares shall have a Fair Market Value,
as of the date the amount of tax to be withheld is determined under applicable tax law, equal to the statutory minimum amount required
to be withheld for tax purposes. The Participant’s request to deliver shares or to have shares withheld for purposes of such
withholding tax obligations shall be made on or before the date that triggers such obligations, or, if later, the date that the
amount of tax to be withheld is determined under applicable tax law, and shall be irrevocable on such date if approved by the Administrator.
Participant’s request shall comply with such rules as the Administrator may adopt to assure compliance with Rule 16b-3, if
applicable.


 


h.Nontransferability.
Unless otherwise permitted by the Administrator in its sole discretion, during the lifetime of Participant, the Option shall be
exercisable only by Participant or by the Participant’s guardian or other legal representative, and shall not be assignable
or transferable by Participant, in whole or in part, other than by will or by the laws of descent and distribution.


 


i.2015 Equity Incentive Plan.
The Option evidenced by this Agreement is granted pursuant to the Plan, a copy of which Plan has been made available to Participant
and is hereby incorporated into this Agreement. This Agreement is subject to and in all respects limited and conditioned as provided
in the Plan. All capitalized terms in this Agreement not defined herein shall have the meanings ascribed to them in the Plan. The
Plan governs this Option and, in the event of any questions as to the construction of this Agreement or in the event of a conflict
between the Plan and this Agreement, the Plan shall govern, except as the Plan otherwise provides.


 






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j.Lockup Period Limitation.
Participant agrees that in the event the Company advises the Participant that it plans an underwritten public offering of its Common
Stock in compliance with the Securities Act of 1933, as amended, the Participant will execute any lock-up agreement the Company
and the underwriter(s) deem necessary or appropriate, in their sole discretion, in connection with such public offering.


 


k.Blue Sky Limitation.
Notwithstanding anything in this Agreement to the contrary, in the event the Company makes any public offering of its securities
and it is determined that it is necessary to reduce the number of issued but unexercised stock purchase rights so as to comply
with any state securities or Blue Sky law limitations with respect thereto, and such determination is affirmed by the Board of
Directors, unless the Board of Directors determines otherwise, (i) the exercisability of this Option and the date on which this
Option must be exercised shall be accelerated, provided that the Company agrees to give Participant 15 days’ prior written
notice of such acceleration, and (ii) any portion of this Option or any other option granted to Participant pursuant to the Plan
which is not exercised prior to or contemporaneously with such public offering shall be canceled. Notice shall be deemed given
when delivered personally or when deposited in the United States mail, first class postage prepaid and addressed to Participant
at the address of Participant on file with the Company.


 


l.Affiliates. Participant
agrees that, if Participant is an “affiliate” of the Company or any Affiliate (as defined in applicable legal and accounting
principles) at the time of a Change of Control (as defined in Section 1(f) of the Plan), Participant will comply with all requirements
of Rule 145 of the Securities Act of 1933, as amended, and the requirements of such other applicable legal or accounting principles,
and will execute any documents necessary to ensure such compliance.


 


m.Stock Legend. The
Administrator may require that the certificates (or, if permitted, book entries) for any shares of Common Stock purchased by Participant
(or, in the case of death, Participant’s successors) shall bear an appropriate legend or notation to reflect the restrictions
of Paragraph 4(c) and Paragraphs 4(j) through 4(l) of this Agreement; provided, however, that failure to so endorse any of such
certificates shall not render invalid or inapplicable Paragraph 4(c) or Paragraphs 4(j) through 4(l).


 


n.Scope of Agreement.
This Agreement shall bind and inure to the benefit of the Company and its successors and assigns and Participant and any successor
or successors of Participant permitted by Paragraph 2 or Paragraph 4(h) above. This Award is expressly subject to all terms and
conditions contained in the Plan and in this Agreement, and Participant’s failure to execute this Agreement shall not relieve
Participant from complying with such terms and conditions.


 






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o.Choice of Law.
The law of the state of Delaware shall govern all questions concerning the construction, validity, and interpretation of this Plan,
without regard to that state’s conflict of laws rules.


 


p.Severability. In
the event that any provision of this Plan shall be held illegal or invalid for any reason, such illegality or invalidity shall
not affect the remaining provisions of this Plan, and the Plan shall be construed and enforced as if the illegal or invalid provision
had not been included.


 


q.Arbitration. Any
dispute arising out of or relating to this Agreement or the alleged breach of it, or the making of this Agreement, including claims
of fraud in the inducement, shall be discussed between the disputing parties in a good faith effort to arrive at a mutual settlement
of any such controversy. If, notwithstanding, such dispute cannot be resolved, such dispute shall be settled by binding arbitration.
Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator shall
be a retired state or federal judge or an attorney who has practiced securities or business litigation for at least 10 years. If
the parties cannot agree on an arbitrator within 20 days, any party may request that the chief judge of the District Court of [_______]
County, select an arbitrator. Arbitration will be conducted pursuant to the provisions of this Agreement, and the commercial arbitration
rules of the American Arbitration Association, unless such rules are inconsistent with the provisions of this Agreement. Limited
civil discovery shall be permitted for the production of documents and taking of depositions. Unresolved discovery disputes may
be brought to the attention of the arbitrator who may dispose of such dispute. The arbitrator shall have the authority to award
any remedy or relief that a court of this state could order or grant; provided, however, that punitive or exemplary damages shall
not be awarded. The arbitrator may award to the prevailing party, if any, as determined by the arbitrator, all of its costs and
fees, including the arbitrator’s fees, administrative fees, travel expenses, out-of-pocket expenses and reasonable attorneys’
fees. Unless otherwise agreed by the parties, the place of any arbitration proceedings shall be [___________] County, [_____________].


 


***Signature Page Follows***


 




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ACCORDINGLY, the parties
hereto have caused this Agreement to be executed on the day and year first above written.


 








	 	NEPHROS, INC.
	 	 	 
	 	By: 	 
	 	Its: 	 
	 	 	 
	 	 
	 	Participant




  


[Nonqualified Stock Option Agreement
Signature Page]


  




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