EXHIBIT 10.1
Non-Employee Director Stock Option
Miravant Medical Technologies Stock Compensation Plan
MIRAVANT MEDICAL TECHNOLOGIES
STOCK COMPENSATION PLAN
NON-EMPLOYEE DIRECTOR OPTION AGREEMENT
THIS NON-EMPLOYEE DIRECTOR STOCK OPTION (the "Option") is made and
entered into at Santa Barbara, California, on the date hereinafter set forth by
and between Miravant Medical Technologies, a Delaware corporation, hereinafter
called the "Company", and the person whose name is set forth on the signature
page hereof, hereinafter called the "Optionee", who is a member of the Board of
Directors of the Company and is not an employee of the Company or one of its
subsidiaries.
WHEREAS:
A. The Board of Directors of the Company (the "Board") adopted on May
17, 1996 and amended and restated effective March 3, 1997, with subsequent
stockholder approval, the Miravant Medical Technologies 1996 Stock Compensation
Plan (the "Plan");
B. The Plan provides for the granting of mandatory Nonqualified Stock
Options ("NQSOs") by a committee to be appointed by the Board (the "Plan
Administrators") to Directors of the Company who are not employees of the
Company or one of its subsidiaries to purchase shares of the Common Stock of the
Company, par value $0.01 (the "Stock"), in accordance with the terms and
provisions of the Plan; and
C. The Plan Administrators consider the Optionee to be a person who is
eligible for a grant of compensatory options under the Plan and have determined
that it would be in the best interest of the Company to grant a NQSO as
documented herein.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. GRANT OF OPTION. Subject to the terms and conditions of the Plan and
as hereinafter set forth, the Company, with the approval and at the direction of
the Plan Administrators, hereby grants to the Optionee, as of the Date of Grant
set forth on the signature page hereof (the "Automatic Grant Date"), an option
to purchase SEVEN THOUSAND FIVE HUNDRED (7,500) shares of Stock at a price per
share set forth on the signature page hereof which shall be determined pursuant
to Section 11 hereof (the "Fair Market Value"). Such NQSO is hereinafter
referred to as the "Option" and the shares of stock purchasable upon exercise of
the Option are hereinafter referred to as the "Option Shares". The Option is not
intended by the parties hereto to be, or to be treated as, an incentive stock
option, as such term is defined under Section 422 of the Internal Revenue Code
of 1986.
2. VESTING OF OPTION. The Option will become 100% exercisable on grant
date.
3. EXERCISE OF OPTIONS.
(a). Except as provided in Section 4 hereof, the Optionee may
exercise the Option with respect to all or any part of the number of Option
Shares at anytime on or after the Automatic Grant Date by properly completing
and delivering to the Company at its principal office an exercise form
prescribed by the Plan Administrators and attached hereto as Exhibit 1,
specifying the number of Options Shares as to which the Option is to be
exercised and the date of exercise thereof. No NQSO may be exercised for a
fraction of a share of Stock.
(b). The purchase price of the Option Shares purchased shall
be paid in full, along with any applicable federal, state and local taxes due,
in cash or by certified cashier's check payable to the order of the Company or,
with prior written consent of the Plan Administrators, by shares of Stock or by
the surrender of all or part of an Award (including the NQSO being exercised),
or in other property, rights or credits deemed acceptable by the Plan
Administrators or, if permitted by the Plan Administrators, by a combination of
the foregoing, at the time of exercise of the NQSO. If any portion of the
purchase price is paid in shares of Stock, those shares shall be tendered at
their then Fair Market Value as determined by the Plan Administrators in
accordance with Section 22 of Article I of the Plan. Payment in shares of Stock
includes the automatic application of shares of Stock received upon the exercise
of an NQSO or other option or Award to satisfy the exercise price for additional
NQSOs.
(c). On the exercise date specified in the Optionee's notice
or as soon as thereafter practicable, the Company shall cause to be delivered to
the Optionee a certificate or certificates for the Option Shares then being
purchased upon full payment for such Option Shares; provided, however, that the
time of such delivery may be postponed by the Company for such period as may be
required for it, with reasonable diligence, to comply with any requirements of
any state or federal agency or any securities exchange.
(d). The obligation of the Company to deliver Stock hereunder
shall be subject to the condition that, if at any time the Plan Administrators
determine in their sole discretion that the listing, registration or
qualification of the Option or 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 Option or the issuance or purchase of the Option Shares thereunder,
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 Plan Administrators.
(e). If the Optionee fails to pay for any of the Option Shares
specified in such notice of exercise or fails to accept delivery thereof, the
Optionee's right to purchase such Option Shares may be terminated by the
Company. The date specified in the Optionee's notice as the date of exercise
shall be deemed the date of exercise of the Option, provided that payment in
full for the Option Shares to be purchased upon such exercise shall have been
received by such date.
4. TERMINATION OF OPTION. Except as herein otherwise stated, this
Option, to the extent not theretofore exercised, shall terminate forthwith on
the earliest of the following:
(a). Ninety (90) days from the date on which the Optionee is
no longer a Director of the Company, for any reason other than death, the Option
shall immediately terminate and be of no further force and effect.
(b). If the Optionee dies while a Director of the Company or
any subsidiary, or within three (3) months after ceasing to be a Director of the
Company, the Option shall expire six (6) months after the date of death, but in
no event later than the expiration date specified in subparagraph (c) hereof.
During the six (6) month period, the Option may be exercised, to the extent that
it remains unexercised on the date of death, by the person or persons whom the
Optionee's rights under the Option shall pass by will or by laws of descent and
distribution and pursuant to Article I, Section 19 of the Plan.
(c). Ten (10) years from the Automatic Date of Grant.
5. ADJUSTMENTS. If the outstanding shares of Stock are increased,
decreased, changed into, or exchanged for a different number or kind of shares
or securities through merger, consolidation, combination, exchange of shares,
other reorganization, recapitalization, reclassification, stock dividend, stock
split or reverse stock split or other similar corporate transaction or event,
then: (i) the number and kind of shares which may thereafter be delivered in
connection with the Option; and (ii) the exercise price, grant price or purchase
price relating to the Option shall be proportionately and equitably adjusted by
the Plan Administrators, provided, however, that no such adjustment shall give
the Optionee any additional benefits under the Option. Any such adjustment made
by the Plan Administrators will be final and binding.
6. CHANGE OF CONTROL. If a Change of Control (as defined below) occurs
prior to vesting or settlement of the Option, then from and after the
Acceleration Date (as defined below), all outstanding and unexercised Options
shall be exercisable in full, whether or not otherwise exercisable and
certificates representing such Option Shares shall be delivered to the Optionee
no later than the fifth day following the Acceleration Date.
As defined herein, "Change of Control" shall mean the occurrence of any
of the following: (i) any "person" or "group" (as such term is used in Sections
13(d) and 14(d)(2) of the Securities and Exchange Act of 1934, as amended (the
"Exchange Act")), other than the Company, a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or a company owned,
directly or indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company), is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing 20% or more of the
total combined voting power represented by the Company's then outstanding voting
securities; or (ii) during any period of two consecutive years, individuals who
at the beginning of such period constitute the Board and any new director (other
than a director designated by a person who has entered into an agreement with
the Company to effect a transaction described in clause (i), (iii) or (iv) of
this definition) whose election by the Board or nomination for election by the
Company's stockholders was approved by a vote of at least two-thirds (2/3) of
the directors who either were directors at the beginning of the two-year period
or whose election or nomination for election was previously so approved, cease
for any reason to constitute a majority thereof; (iii) any Reorganization as
defined below; or (iv) the stockholders of the Company adopt a plan of complete
liquidation of the Company.
The term "Reorganization" as used herein shall mean: (i) the approval
by the stockholders of the Company of any statutory merger, consolidation or
share exchange to which the Company is a party as a result of which the persons
who were stockholders of the Company immediately prior to the effective date of
such Reorganization shall have beneficial ownership of less than fifty percent
(50%) of the total combined voting power in the election of directors of the
surviving corporation following the effective date of such Reorganization; or
(ii) the approval by stockholders of an agreement for the sale or disposition by
the Company of all or substantially all of the assets of the Company.
For purposes of this definition of Reorganization, the term "sale or
disposition by the Company of all or substantially all of the assets of the
Company" shall mean a sale or other disposition transaction or series of related
transactions involving assets of the Company or any subsidiary thereof
(including the stock of any direct or indirect subsidiary of the Company) in
which the value of the assets or stock being sold or otherwise disposed of (as
measured by the purchase price being paid therefor or by such other method as
the Board of Directors of the Company determines is appropriate in a case where
there is no readily ascertainable purchase price) constitutes more than
two-thirds of the fair market value of the Company (as hereinafter defined). For
purposes of the preceding sentence, the "fair market value of the Company" shall
be the aggregate market value of the outstanding shares of Stock (on a fully
diluted basis) plus the aggregate market value of the Company's other
outstanding equity securities. The aggregate market value of the shares of Stock
shall be determined by multiplying the number of shares of Stock (on a fully
diluted basis) outstanding on the date of the execution and delivery of a
definitive agreement with respect to the transaction or series of related
transactions (the "Transaction Date") by the average closing price of the Stock
for the ten (10) trading days immediately preceding the Transaction Date. The
aggregate market value of any other equity securities of the Company shall be
determined in a manner similar to that prescribed in the immediately preceding
sentence for determining the aggregate market value of the shares of Stock or by
such other method as the Board shall determine is appropriate.
As defined herein, "Acceleration Date" shall mean the earliest date on
which any of the following events shall have first occurred: (i) the acquisition
described in clause (i) of the definition of Change of Control above; (ii) the
change in the composition of the Board of Directors of the Company described in
clause (ii) above; or (iii) the stockholder approval or adoption described in
clauses (iii) and (iv) above.
7. TRANSFERABILITY OF OPTION. During the lifetime of the Optionee, only
the Optionee (or such Optionee's legal representative) may exercise the Option;
provided, however, that the Plan Administrators may, in their sole discretion,
permit transfers of the Option for estate planning purposes if and to the extent
such transfers do not (a) cause the Optionee to lose the benefit of the
exemption under Rule 16b-3 relating to such Awards or (b) violate other rules or
regulations of the Securities and Exchange Commission (the "SEC") or the
Internal Revenue Service or (c) materially increase the cost of the Company's
compliance with such rules or regulations, including but not limited to, any
additional registration statements that the Company would be required to file
with the SEC if such transfer were allowed. The Option may not be sold, pledged,
assigned, transferred in any manner (except as provided above or elsewhere
herein), exchanged or otherwise encumbered or made subject to any creditor's
process, whether voluntarily, involuntarily or by operation of law, and any
attempt to do so shall be of no effect.
8. RIGHTS PRIOR TO EXERCISE OF OPTION. The Optionee shall have none of
the rights or privileges of a stockholder of the Company in respect of the
Option or any Option Shares issuable pursuant to the Option until certificates
representing the Option Shares have been issued and delivered. No Option Shares
shall be required to be issued and delivered upon any exercise of the Option
unless and until all of the requirements of law and of all regulatory agencies
having jurisdiction over the issuance and delivery of the securities shall have
been fully complied with.
9. COMPLIANCE WITH SECURITIES LAWS. Shares of Stock shall not be issued
with respect to the Option, unless the exercise of the Option and the issuance
and delivery of the Option Shares pursuant thereto shall comply with all
applicable provisions of foreign, state and federal law including, without
limitation, the Securities Act of 1933, as amended, and the Exchange Act, and
the rules and regulations promulgated thereunder, and the requirements of any
stock exchange upon which shares of Stock may then be listed. The Plan
Administrators may require the Optionee to furnish evidence satisfactory to the
Company, including a written and signed representation letter and consent to be
bound by any transfer restriction imposed by law, legend, condition or
otherwise, that the Option Shares are being purchased only for investment and
without any present intention to sell or distribute the Option Shares in
violation of any state or federal law, rule or regulation, if required by the
Company. Further, the Optionee shall consent to the imposition of a legend on
the Option Shares issued under the Option and the imposition of stop-transfer
instructions restricting their transferability as may be required by the Plan
Administrators in their discretion to ensure compliance with such laws.
10. CONTINUED EMPLOYMENT. Nothing in the Plan or in the Option granted
hereunder shall confer upon any Optionee any right to serve on the Board of
Directors of the Company. In the discretion of the Plan Administrators, the
Optionee may also be required to agree to non-competition, non-disclosure,
non-solicitation or any other terms or provisions not inconsistent with the Plan
in consideration of the grant of the Option.
11. FAIR MARKET VALUE. As used herein, "Fair Market Value" shall be the
fair market value determined by the Plan Administrators on the basis of such
factors as they deem appropriate; provided, however, that Fair Market Value on
any day shall be deemed to be, if the Common Stock is traded on a national
securities exchange or the Nasdaq National Market, the closing price (or, if no
reported sale takes place on such day, the arithmetic mean of the reported bid
and asked prices) of the Common Stock on such day on the principal such exchange
or market, or, if the stock is reported on the composite tape, the closing price
as reported on the composite tape. In each case, the Plan Administrators'
determination of Fair Market Value in accordance with the Code shall be
conclusive.
12. WITHHOLDING. The grant or exercise of the Option or the sale and
issuance of any Option Shares to be purchased under the Option are subject to
the condition that if, at any time, the Company shall determine in its sole
discretion, that the satisfaction of withholding tax or other withholding
liabilities under any state or federal law is necessary or desirable as a
condition of, or in connection with, such grant or exercise or the delivery or
purchase of shares pursuant thereto, then in such event, the grant or exercise
of the Option or the sale and issuance of any Option Shares to be purchased
shall not be effective unless such withholding shall have been effected or
obtained in a manner acceptable to the Company. At the Plan Administrator's sole
and complete discretion, the Company may, from time to time unilaterally
withhold or voluntarily accept shares of Stock already issued to the Optionee
and/or stock subject to an Award as defined in the Plan as the source of payment
for such liabilities.
13. BINDING EFFECT; AMENDMENT. The Option shall be binding upon the
heirs, executors, administrators and successors of the parties hereto. The
Option may be amended by the Plan Administrators at any time (i) if the Plan
Administrators determine, in their sole discretion, that amendment is necessary
or advisable in the light of any addition to or change in the Code or in the
regulations issued thereunder, or any federal or state securities law or other
law or regulation, which change occurs after the Date of Grant and by its terms
applies to the Option; or (ii) other than in the circumstances described in
clause (i) above, with the written consent of the Optionee.
14. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered personally or by certified mail, return receipt requested, to the
Company's and the Optionee's addresses as set forth on the signature page
hereof.
15. INCORPORATION OF PLAN BY REFERENCE. The Option is granted pursuant
to the terms of the Miravant Medical Technologies 1996 Stock Compensation Plan,
the terms of which are incorporated herein by reference and the Option shall, in
all respects, be interpreted in accordance with the Plan. A copy of the Plan has
been given to the Optionee and the Optionee agrees to be bound by the Plan. The
Plan Administrators shall interpret and construe the Plan and the Option, and
their interpretations and determinations shall be conclusive and binding on the
parties hereto and any other person claiming an interest hereunder, with respect
to any issue arising hereunder or thereunder. In case of any conflict in the
terms of the Plan, or between the Plan and the Option agreement, the provisions
in Article III of the Plan shall control those in a different Article and the
provisions of the Plan shall control those in the Option agreement.
16. CHOICE OF LAW AND VENUE. The Option, Plan and all related documents
shall be governed by, and construed in accordance with, the laws of the State of
California (except to the extent the provisions of Delaware corporate law may be
applicable). Acceptance of the Option shall be deemed to constitute consent to
the jurisdiction and venue of the Superior Court of Santa Barbara County,
California and the United States District Court of the Central District of
California for all purposes in connection with any suit, action or other
proceeding relating to such Option, including the enforcement of any rights
under the Plan or any agreement or other document, and shall be deemed to
constitute consent to any process or notice of motion in connection with such
proceeding being served by certified or registered mail or personal service
within or without the State of California, provided a reasonable time for
appearance is allowed.
17. RESALE LIMITATIONS. Not withstanding anything to the contrary
contained herein, (a) the amount of Stock which may be sold, from time to time,
by the Optionee, upon exercise of this Option and together with all other sales
of Stock for the account of the Optionee in any week, shall not exceed 1.0% of
the average weekly trading volume of the Stock as reported by the Nasdaq
National Market for the prior sixty (60) days, and (b) the ask price of such
sale shall not be lower than the higher of (i) the highest independent current
bid or offer quotation or (ii) the last independent sale price, provided,
however, that the Plan Administrators may, in their sole discretion, permit a
greater amount of Stock to be sold in any given week.
SIGNATURES ON NEXT PAGE
IN WITNESS WHEREOF, the Company has caused its duly authorized officers
to execute this Nonqualified Stock Option Agreement and the Optionee has placed
his or her signature hereon, effective as of the Automatic Grant Date.
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THE OPTION: OPTION #
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Optionee: Automatic Grant Date:
Number of Option Shares: Option Price Per Share: $ PER SHARE
Vesting: 100% AT DATE OF GRANT
The "Company"
Miravant Medical Technologies
By: _________________________________________
Gary S. Kledzik, Ph.D.
Title CEO and Chairman
Address: 7408 Hollister Avenue
Santa Barbara, California 93117
805/685-9880
ACCEPTED AND AGREED TO:
The "Optionee"
Signature: ___________________________________________
Address: ___________________________________________
___________________________________________
Social Security #: _____________________________________
Exhibit 1
Notice of Exercise of Stock Option
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SECTION 1: PERSONAL DATA
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1. Name: ________________________________________ 3. SSN: _____________________
2. Address for Stock Record: 4. Phone extension: ________
______________________________________________ 5. Company: ________________
______________________________________________
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SECTION II: STATEMENT OF INTENT TO EXERCISE
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6. I would like to exercise the following shares of Miravant Medical
Technologies Common Stock:
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Option Plan Option # Date of Grant Option Price # of Shares
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SECTION III: PAYMENT OF OPTION PURCHASE PRICE AND TAXES
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7. I understand that for Non-Qualified Stock Option Exercises I am required to
pay withholding taxes on the gain as measured by the difference between the
option purchase price and the fair market value of the shares on the date
of exercise.
Check one:
___ I will submit to Miravant Medical Technologies a cashiers check in payment.
___ I will wire funds to Miravant Medical Technologies in payment.
___ I authorize my stock broker to send payment to Miravant Medical Technologies
in the form of a wire or a check on my behalf out of the net proceeds from a
same-day-sale or partial sale transaction for the option price and applicable
taxes owed. Complete and attach the Company's Securities Trading Report Form to
obtain prior approval for the shares to be sold .
Brokers name ____________________________________
Firm ____________________________________
Address ____________________________________
Phone/FAX ____________________________________
Account # ____________________________________
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SECTION IV: ADMINISTRATIVE INSTRUCTIONS
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8. If this transaction is an option exercise only or a partial sale of the
options being exercised, please indicate how the certificate(s) for unsold
shares should be issued:
Name certificate(s) should be issued to: ______________________________________
Issue certificate(s) as follows: ___ certificate for ________________ shares
___ certificate for ________________ shares
Mailing address for certificate(s) if different than Stock Record address:
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9. Signature: _____________________________ Date:__________________
Verified and Approved by: ___________________ Date:__________________
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