1
EXHIBIT 10.18
NORTHWEST BIOTHERAPEUTICS, INC.
2001 NONEMPLOYEE DIRECTOR STOCK INCENTIVE PLAN
1. PURPOSES OF THE PLAN. The purposes of this 2001 Nonemployee Director
Stock Incentive Plan (the "Plan") are to promote the long-term success of
Northwest Biotherapeutics, Inc. (the "Company") by creating a long-term
mutuality of interests between the nonemployee directors and stockholders of the
Company, to provide an additional inducement for such directors to remain with
the Company, and to provide a means through which the Company may attract able
persons to serve as directors of the Company.
2. ADMINISTRATION.
a. The Plan shall be administered by the Compensation Committee
(the "Committee") of the Board of Directors of the Company (the "Board").
b. The Committee shall interpret the Plan and prescribe such
rules, regulations and procedures in connection with the operations of the Plan
as it shall deem to be necessary and advisable for the administration of the
Plan consistent with the purposes of the Plan. All questions of interpretation
and application of the Plan, or as to stock options granted under the Plan,
shall be subject to the determination of the Committee, which shall be final and
binding.
c. Notwithstanding the above, the selection of the directors to
whom stock options are to be granted, the timing of such grants, the number of
shares subject to any stock option, the exercise price of any stock option, the
periods during which any stock option may be exercised and the term of any stock
option shall be as hereinafter provided, and the Committee shall have no
discretion as to such matters.
3. SHARES AVAILABLE UNDER THE PLAN. The aggregate number of shares which
may be issued and as to which grants of stock options may be made under the Plan
is 200,000 shares of the common stock of the Company (without taking into effect
any split of such shares), $0.001 par value (the "Common Stock"), subject to
adjustment and substitution as set forth in Section 6. If any stock option
granted under the Plan is canceled by mutual consent or terminates or expires
for any reason without having been exercised in full, the number of shares
subject to such option shall again be available for purposes of the Plan. The
shares which may be issued under the Plan may be authorized but unissued shares,
treasury shares, or both.
4. GRANT OF STOCK OPTIONS. On the third business day following the day
of each annual meeting of the stockholders of the Company, commencing in 2002,
each person who is then a member of the Board and who is not then an employee of
the Company or any of its subsidiaries and is not then an independent consultant
(other than in his or her capacity as a member of the Board) to the Company or
any of its subsidiaries (collectively a "Nonemployee Director") shall be
granted, automatically and without further action by the Board or the Committee,
a "nonstatutory
2
stock option" (i.e., a stock option which does not qualify under Section 422 or
423 of the Internal Revenue Code of 1986 (the "Code")) to purchase five thousand
(5,000) shares of Common Stock, subject to adjustment and substitution as set
forth in Section 6. If the number of shares then remaining available for the
grant of stock options under the Plan at any time is not sufficient for each
Nonemployee Director then eligible to be granted an option for five thousand
(5,000) shares (or the number of adjusted or substituted shares pursuant to
Section 6), then each such Nonemployee Director shall be granted an option for a
number of whole shares equal to the number of shares then remaining available
divided by the number of Nonemployee Directors then eligible for grant of an
option in accordance with this Section 4, disregarding any fractions of a share.
5. TERMS AND CONDITIONS OF STOCK OPTIONS. Stock options granted under
the Plan shall be subject to the following terms and conditions:
a. The purchase price at which each stock option may be
exercised (the "Option Price") shall be one hundred percent (100%) of the fair
market value of the shares of Common Stock covered by the stock option on the
date of grant, determined as provided in Section 5.g.
b. The Option Price shall be paid in full upon exercise, in cash
in United States dollars (including check, bank draft or money order); provided,
however, that in lieu of such cash the person exercising the stock option may
pay the Option Price in whole or in part by delivering to the Company shares of
the Common Stock having a fair market value on the date of exercise of the stock
option, determined as provided in Section 5.g, equal to the Option Price for the
shares being purchased; except that (i) any portion of the Option Price
representing a fraction of a share shall in any event be paid in cash, and (ii)
no shares of the Common Stock which have been held for less than six months may
be delivered in payment of the Option Price of a stock option. Delivery of
shares may also be accomplished through the effective transfer to the Company of
shares held by a broker or other agent. The Company will also cooperate with any
person exercising a stock option who participates in a cashless exercise program
of a broker or other agent under which all or part of the shares received upon
exercise of the stock option are sold through the broker or other agent or under
which the broker or other agent make a loan to such person. Notwithstanding the
foregoing, the exercise of the stock option shall not be deemed to occur and no
shares of Common Stock will be issued by the Company upon exercise of the stock
option until the Company has received payment of the Option Price in full. The
date of exercise of a stock option shall be determined under procedures
established by the Committee, and as of the date of exercise, the person
exercising the stock option shall be considered for all purposes to be the owner
of the shares of Common Stock with respect to which the stock option has been
exercised. Payment of the Option Price with shares shall not increase the number
of shares of the Common Stock which may be issued under the Plan as provided in
Section 3.
c. No stock option shall be exercisable during the first six
months of its term except in case of death as provided in Section 5.e. Subject
to the preceding sentence and subject to Section 5.e, which provides for earlier
termination of a stock option under certain circumstances, each stock option
shall be exercisable for ten years from the date of grant and not thereafter. A
stock option to the extent exercisable at any time may be exercised in whole or
in part.
2
3
d. No stock option shall be transferable by the grantee
otherwise than by will, or if the grantee dies intestate, by the laws of descent
and distribution of the state of domicile of the grantee at the time of death.
e. If a grantee ceases to be a director of the Company for any
reason, any outstanding stock options held by the grantee shall be exercisable
according to the following provisions:
(i) If a grantee ceases to be a director of the Company
for any reason other than resignation, removal for cause, or death, any
outstanding stock option held by such grantee shall be exercisable by
the grantee (but only if exercisable by the grantee immediately prior to
ceasing to be director) at any time prior to the expiration date of such
stock option or within three years after the date the grantee ceases to
be a director, whichever is the shorter period;
(ii) If during his term of office as a director a
grantee resigns from the Board or is removed from office for cause, any
outstanding stock option held by the grantee which is not exercisable by
the grantee immediately prior to resignation or removal shall terminate
as of the date of resignation or removal, and any outstanding stock
option held by the grantee which is exercisable by the grantee
immediately prior to resignation or removal shall be exercisable by the
grantee at any time prior to the expiration date of such stock option or
within three months after the date of resignation or removal of the
grantee, whichever is the shorter period;
(iii) Following the death of a grantee during service as
a director of the Company, any outstanding stock option held by the
grantee at the time of death (whether or not exercisable by the grantee
immediately prior to death) shall be exercisable by the person entitled
to do so under the will of the grantee, or, if the grantee shall fail to
make testamentary disposition of the stock option or shall die
intestate, by the legal representative of the grantee at any time prior
to the expiration date of such stock option or within three years after
the date of death of the grantee, whichever is the shorter period; and
(iv) Following the death of a grantee after ceasing to
be a director and during a period when a stock option is exercisable
under clause (ii) above, the stock option shall be exercisable by such
person entitled to do so under the will of the grantee or by such legal
representative at any time prior to the expiration date of the stock
option or within one year after the date of death, whichever is the
shorter period.
A stock option held by a grantee who has ceased to be a director of the
Company shall terminate upon the expiration of the applicable exercise period,
if any, specified in this Section 5.e.
f. All stock options shall be confirmed by an agreement, or an
amendment thereto, which shall be executed on behalf of the Company by the Chief
Executive Officer (if other than the President), the President or any Vice
President and by the grantee.
3
4
g. Fair market value of the Common Stock shall be the mean
between the following prices, as applicable, for the date as of which fair
market value is to be determined, as quoted in The Wall Street Journal (or in
such other reliable publication as the Committee, in its discretion, may
determine to rely upon): (i) if the Common Stock is listed on the New York Stock
Exchange, the highest and lowest sales prices per share of the Common Stock as
quoted in the NYSE-Composite Transactions listing for such date, (ii) if the
Common Stock is not listed on such exchange, the highest and lowest sales prices
per share of the Common Stock for such date on (or on any composite index
including) the principal United States securities exchange registered under the
1934 Act on which the Common Stock is listed, or (iii) if the Common Stock is
not listed on any such exchange, the highest and lowest sales prices per share
of the Common Stock for such date on the National Association of Securities
Dealers Automated Quotations System or any successor system then in use
("NASDAQ"). If there are no such sale price quotations for the date as of which
fair market value is to be determined but there are such sale price quotations
within a reasonable period both before and after such date, then fair market
value shall be determined by taking a weighted average of the means between the
highest and lowest sales prices per share of the Common Stock as so quoted on
the nearest date before and the nearest date after the date as of which fair
market value is to be determined. The average should be weighted inversely by
the respective numbers of trading days between the selling dates and the date as
of which fair market value is to be determined. If there are no such sale price
quotations on or within a reasonable period both before and after the date as of
which fair market value is to be determined, then fair market value of the
Common Stock shall be the mean between the bona fide bid and asked prices per
share of Common Stock as so quoted for such date on NASDAQ, or if none, the
weighted average of the means between such bona fide bid and asked prices on the
nearest trading date before and the nearest trading date after the date as of
which fair market value is to be determined, if both such dates are within a
reasonable period. The average is to be determined in the manner described above
in this Section 5.g. If the fair market value of the Common Stock cannot be
determined on the basis previously set forth in this Section 5.g for the date as
of which fair market value is to be determined, the Committee shall in good
faith determine the fair market value of the Common Stock on such date. Fair
market value shall be determined without regard to any restriction other than a
restriction which, by its terms, will never lapse.
h. The obligation of the Company to issue shares of the Common
Stock under the Plan shall be subject to (i) the effectiveness of a registration
statement under the Securities Act of 1933, as amended, with respect to such
shares, if deemed necessary or appropriate by counsel for the Company, (ii) the
condition that the shares shall have been listed (or authorized for listing upon
official notice of issuance) upon each stock exchange, if any, on which the
Common Stock may then be listed and (iii) all other applicable laws,
regulations, rules and orders which may then be in effect.
Subject to the foregoing provision of this Section 5 and the other
provisions of the Plan, any stock option granted under the Plan shall be subject
to such restrictions and other terms and conditions, if any, as shall be
determined, in its discretion, by the Committee and set forth in the agreement
referred to in Section 5.f, or an amendment thereto.
6. ADJUSTMENT AND SUBSTITUTION OF SHARES. If a dividend or other
distribution shall be declared upon the Common Stock payable in shares of the
Common Stock, then (i) the number of shares of the Common Stock set forth in
Section 4, (ii) the number of shares of the Common Stock
4
5
then subject to any outstanding stock options, and (iii) the number of shares of
the Common Stock which may be issued under the Plan but are not then subject to
outstanding stock options on the date fixed for determining the stockholders
entitled to receive such stock dividend or distribution, shall be adjusted by
adding thereto the number of shares of the Common Stock which would have been
distributable thereon if such shares had been outstanding on such date.
If the outstanding shares of the Common Stock shall be changed into or
exchangeable for a different number or kind of shares of stock or other
securities of the Company or another Company, whether through reorganization,
reclassification, recapitalization, stock split up, combination of shares,
merger or consolidation, then there shall be substituted for each share of the
Common Stock set forth in Section 4, for each share of the Common Stock subject
to any then outstanding stock option and for each share of the Common Stock
which may be issued under the Plan but which is not then subject to any
outstanding stock option, the number and kind of shares of stock or other
securities into which each outstanding share of the Common Stock shall be so
changed or for which each such share shall be exchangeable.
In case of any adjustment or substitution as provided for in the first
two paragraphs of this Section 6, the aggregate Option Price for all shares
subject to each then outstanding stock option prior to such adjustment or
substitution shall be the aggregate Option Price for all shares of stock or
other securities (including any fraction) to which such shares shall have been
adjusted or which shall have been substituted for such shares. Any new Option
Price per share shall be carried to at least three decimal places with the last
decimal place rounded upwards to the nearest whole number.
If the outstanding Common Stock shall be changed in value by reason of
any spin-off, split off or split up, or dividend in partial liquidation,
dividend in property other than cash or extraordinary distribution to holders of
the Common Stock, the Committee shall make any adjustments to any then
outstanding stock option which it determines are equitably required to prevent
dilution or enlargement of the rights of grantees which would otherwise result
from any such transaction.
No adjustment or substitution provided for in this Section 6 shall
require the Company to issue or sell a fraction of a share or other security.
Accordingly, all fractional shares or other securities which result from any
such adjustment or substitution shall be eliminated and not carried forward to
any subsequent adjustment or substitution.
Except as provided in this Section 6, a grantee shall have no rights by
reason of any issue by the Company of stock of any class or securities
convertible into stock of any class, any subdivision or consolidation of shares
of stock of any class, the payment of any stock dividend or any other increase
or decrease in the number of shares of stock of any class.
7. EFFECT OF THE PLAN ON THE RIGHTS OF COMPANY AND SHAREHOLDERS. Nothing
in the Plan, in any stock option granted under the Plan, or in any stock option
agreement shall confer any right to any person to continue as a director of the
Company or interfere in any way with the rights of the stockholders of the
Company or the Board to elect and remove directors.
5
6
8. AMENDMENT AND TERMINATION. The right to amend or to terminate the
Plan at any time are hereby specifically reserved to the Board; provided that no
such termination shall terminate any outstanding stock options granted under the
Plan; and provided further that no amendment of the Plan shall be made without
shareholder approval if shareholder approval of the amendment is at the time
required for stock options under the Plan to qualify for any exemption from
Section 16(b) of the 1934 Act provided by Rule 16b-3, or any successor rule, or
by the rules of any stock exchange on which the Common Stock may then be listed.
No amendment or termination of the Plan shall, without the written consent of
the holder of a stock option theretofore awarded under the Plan, adversely
affect the rights of such holder with respect thereto.
6