Exhibit 99.8
AUTOMATIC OPTION GRANT
MATRIX PHARMACEUTICAL, INC.
NON-STATUTORY STOCK OPTION AGREEMENT
AGREEMENT made this ________ day of ____________, 199_ by and
between Matrix Pharmaceutical, Inc., a corporation organized and existing under
the laws of the State of Delaware (the "Company"), and _________________________
(the "Optionee").
WITNESSETH:
RECITALS
A. The Company's Board of Directors (the "Board") has adopted
the Company's 1991 Director Stock Option Plan (the "Plan") for the purpose of
providing an equity incentive for individuals to serve as non-employee members
of the Board.
B. Optionee is a non-employee Board member who is entitled to
receive an option to acquire shares of the Company's common stock, par value
$0.01 per share (the "Common Stock"), pursuant to the automatic option grant
program implemented for non-employee Board members under the Plan. This
Agreement is executed pursuant to, and is intended to carry out the purposes of,
the Plan in connection with the automatic option grant made to such Optionee
thereunder.
C. The granted option is intended to be a non-statutory stock
option which does not satisfy the requirements of Section 422 of the Internal
Revenue Code.
D. For purposes of this Agreement, the following definitions
shall be in effect:
Board Member: The Optionee shall be deemed to be a Board Member
for so long as such individual continues to serve as a member of the
Company's Board of Directors (the "Board") or as a member of the board
of directors of any Parent or Subsidiary Corporation.
Fair Market Value: The Fair Market Value per share of Common Stock
on any date in question shall be determined in accordance with the
following provisions:
(i) If the Common Stock is not at the time listed or admitted to
trading on any stock exchange but is traded on the Nasdaq National Market,
then the Fair Market Value shall be the closing selling price per share of
Common Stock on the date in question, as such price is reported by the
National Association of Securities Dealers, Inc. on the Nasdaq National
Market or any successor system. If there is no reported closing selling
price for the Common Stock on the date in question, then the closing
selling price on the last preceding date for which such quotation exists
shall be determinative of Fair Market Value.
(ii) If the Common Stock is at the time listed or admitted to
trading on any stock exchange, then the Fair Market Value shall be the
closing selling price per share of Common Stock on the date in question on
the stock exchange serving as the primary market for the Common Stock, as
such price is officially quoted on such exchange. If there is no reported
sale of Common Stock on such exchange on the date in question, then the
Fair Market Value shall be the closing selling price on the exchange on the
last preceding date for which such quotation exists.
Parent Corporation: A corporation shall be deemed to be a Parent
Corporation if it is one of the corporations (other than the Company) in an
unbroken chain of corporations ending with the Company, provided each such
corporation (other than the Company) owns, at the time of determination,
stock possessing fifty percent (50%) or more of the total combined voting
power of all classes of stock in one of the other corporations in such
chain.
Subsidiary Corporation: A corporation shall be deemed to be a
Subsidiary Corporation if it is one of the corporations (other than the
Company) in an unbroken chain of corporations beginning with the Company,
provided each such corporation (other than the last corporation in the
unbroken chain) owns, at the time of determination, stock possessing fifty
percent (50%) or more of the total combined voting power of all classes of
stock in one of the other corporations in such chain.
TERMS
1. Grant of Option. On ____________, 199_ (the "Grant Date"),
there is hereby automatically granted to Optionee, pursuant to the provisions of
the Plan, a stock option to purchase up to 3,000 shares of Common Stock (the
"Option Shares") upon the terms and conditions set forth in this Agreement and
in the Plan, and such terms and conditions of the Plan are hereby incorporated
into this Agreement by reference and made a part hereof as if expressly included
in this Agreement. The Option Shares shall be purchasable in accordance with
such terms and conditions at the option exercise price of $__________ per share
(the "Option Price").
2.
2. Option Term. This option shall have a term of ten (10)
years measured from the Grant Date and shall accordingly expire at the close of
business on _______________________, 200_ (the "Expiration Date"), unless sooner
terminated in accordance with Paragraph 7A or 7C of this Agreement.
3. Limited Transferability. This option, together with the
special stock appreciation right under Paragraph 7C, may, in connection with
Optionee's estate plan, be assigned in whole or in part during Optionee's
lifetime to one or more members of Optionee's immediate family or to a trust
established exclusively for one or more such family members. The assigned
portion may only be exercised by the person or persons who acquire a proprietary
interest in the option pursuant to the assignment. The terms applicable to the
assigned portion shall be the same as those in effect for the option immediately
prior to such assignment. Any other attempt to assign, pledge, transfer,
hypothecate or otherwise dispose of this option or the special stock
appreciation right during Optionee's lifetime, and any levy of execution,
attachment or similar process on this option or such stock appreciation right
shall be null and void. Should the Optionee die while holding this option, then
this option shall be transferred in accordance with Optionee's will or the laws
of inheritance and distribution.
4. Exercisability. This option shall become exercisable in
accordance with the terms of attached Exhibit I. Once this option becomes
exercisable for one or more Option Shares in accordance with Exhibit I, those
Option Shares shall accumulate, and this option shall remain exercisable for the
accumulated Option Shares until the Expiration Date or sooner termination of the
option term under Paragraph 7A or 7C.
5. Cessation of Board Membership. Should the Optionee cease to
serve as a Board Member while this option is outstanding, then the following
provisions shall become applicable:
(i) Should the Optionee's service as a Board
Member terminate for any reason other than death while this option is
outstanding, then Optionee shall have until the Expiration Date of the
option term to exercise this option for any Option Shares for which
this option is exercisable on the date of such cessation of Board
service. However, this option shall, immediately upon the Optionee's
cessation of service as a Board Member, terminate and cease to be
outstanding with respect to any Option Shares for which this option is
not otherwise at that time exercisable in accordance with the
provisions of this Agreement.
(ii) Should the Optionee die while serving as a
Board Member, then the personal representative of the Optionee's
estate (or the person or persons to whom the option is transferred
pursuant to the Optionee's will or in accordance with the laws of
inheritance) shall have the
3.
right to exercise this option for any or all of the Option Shares at
the time subject to such option. Such right shall lapse, and this
option shall cease to be exercisable, upon the Expiration Date of the
option term.
(iii) In no event may this option be exercised for
any Option Shares after the specified Expiration Date of the option
term or the sooner termination of this option under Paragraph 7A or
7C.
6. Adjustment in Option Shares.
A. In the event any change is made to the Common Stock
issuable under the Plan by reason of any stock split, stock dividend,
combination of shares, exchange of shares or other change affecting the
outstanding Common Stock as a class without receipt of consideration,
appropriate adjustments shall automatically be made to the number and/or class
of securities subject to this option and the Option Price payable per share in
order to reflect such transaction and thereby preclude the dilution or
enlargement of benefits hereunder.
B. If this option is assumed in connection with a Corporate
Transaction under Paragraph 7, then this option shall, immediately after such
Corporate Transaction, be appropriately adjusted to apply and pertain to the
number and class of securities which would have been issued to Optionee in the
consummation of such Corporate Transaction had this option been exercised
immediately prior to such Corporate Transaction. Appropriate adjustments shall
also be made to the Option Price payable per share, provided the aggregate
Option Price shall remain the same.
7. Corporate Transaction/Change in Control/Hostile
Take-Over.
A. In the event of any of the following transactions (a
"Corporate Transaction"):
(i) a merger or acquisition in which the Company
is not the surviving entity, except for a transaction the principal
purpose of which is to change the State of the Company's
incorporation, or
(ii) a sale of all or substantially all of the
Corporation's assets in complete liquidation or dissolution of the
Corporation; or
(iii) any reverse merger in which the Company is
the surviving entity but in which all of the Company's outstanding
voting stock is transferred to the acquiring entity or its
wholly-owned subsidiary;
4.
the exercisability of this option shall automatically
accelerate so that such option shall, immediately prior to the specified
effective date for the Corporate Transaction, become fully exercisable with
respect to all the Option Shares at the time subject to this option and may be
exercised for all or any portion of such shares. Immediately following the
consummation of the Corporate Transaction, this option shall terminate and cease
to be outstanding, except to the extent assumed by the successor corporation or
its parent company.
B. In connection with any Change in Control of the Company,
the exercisability of this option shall automatically accelerate so that such
option shall, immediately prior to the specified effective date for the Change
in Control, become fully exercisable with respect to all the Option Shares at
the time subject to this option and may be exercised for all or any portion of
such shares. The option as so accelerated shall remain exercisable until the
expiration or sooner termination of the option term. For purposes of this
Agreement, a Change in Control shall be deemed to occur in the event:
(i) any person or related group of persons (other
than the Company or a person that directly or indirectly controls, is
controlled by, or is under common control with, the Company) directly
or indirectly acquires beneficial ownership (within the meaning of
Rule 13d-3 of the Securities Exchange Act of 1934, as amended) of
securities possessing more than forty percent (40%) of the total
combined voting power of the Company's outstanding securities pursuant
to a tender or exchange offer made directly to the Company's
stockholders; or
(ii) there is a change in the composition of the
Board over a period of twenty-four (24) consecutive months or less
such that a majority of the Board members ceases, by reason of one or
more proxy contests for the election of Board members, to be comprised
of individuals who either (A) have been Board members continuously
since the beginning of such period or (B) have been elected or
nominated for election as Board members during such period by at least
two-thirds of the Board members described in clause (A) who were still
in office at the time such election or nomination was approved by the
Board.
C. Should a Hostile Take-Over of the Company occur at any time
while this option is outstanding, then this option shall automatically be
cancelled upon the effective date of such Hostile Take-Over in exchange for a
cash distribution from the Company. Such distribution shall be in an amount
equal to the excess of (i) the Take-Over Price of the shares of Common Stock at
the time subject to this option (whether or not the option is at the time
otherwise exercisable for such shares) over the aggregate Option Price payable
for such shares. The cash distribution shall be made within five (5) days
following the effective date of the Hostile Take-Over, and no approval of the
Board shall be required
5.
in connection with such cancellation and distribution. For purposes of this
Paragraph 7C, the following definitional provisions shall be in effect:
A Hostile Take-Over shall be deemed to occur in the event
(i) any person or related group of persons (other than the Company or
a person that directly or indirectly controls, is controlled by, or is
under common control with, the Company) acquires ownership of
securities possessing more than forty percent (40%) of the total
combined voting power of the Company's outstanding securities pursuant
to a tender or exchange offer made directly to the Company's
stockholders which the Board does not recommend such stockholders to
accept.
The Take-Over Price per share shall be deemed to be equal
to the greater of (a) the Fair Market Value per share of Common Stock
on the date of the option cancellation or (b) the highest reported
price per share paid by the acquiring entity in effecting the Hostile
Take-Over.
D. This Agreement shall not in any way affect the right of the
Company to adjust, reclassify, reorganize or otherwise make changes in its
capital or business structure or to merge, consolidate, dissolve, liquidate or
sell or transfer all or any part of its business or assets.
8. Privilege of Stock Ownership. Optionee shall not have any
stockholder rights with respect to the Option Shares until such individual shall
have exercised the option, paid the Option Price for the purchased shares and
been issued a stock certificate for such shares.
9. Manner of Exercising Option.
A. In order to exercise this option for one or more Option
Shares for which this option is at the time exercisable, Optionee (or in the
case of exercise after Optionee's death, the Optionee's executor, administrator,
heir or legatee, as the case may be) must take the following actions:
(i) Execute and deliver to the Secretary of the
Company a written notice of exercise (the "Exercise Notice") in
substantially the form of Exhibit II attached hereto.
(ii) Pay the aggregate Option Price for the
purchased shares in one or more of the following alternative forms:
- full payment in cash or check made
payable to the Company's order;
6.
- full payment in shares of Common Stock
held by the Optionee for the requisite period necessary to avoid
a charge to the Company's earnings for financial reporting
purposes and valued at Fair Market Value on the Exercise Date;
- full payment in a combination of
shares of Common Stock held for the requisite period necessary to
avoid a charge to the Company's earnings for financial reporting
purposes and valued at Fair Market Value on the Exercise Date and
cash or check; or
- full payment through a sale and
remittance procedure pursuant to which the Optionee (a) shall
provide irrevocable instructions to a Company-designated
brokerage firm to effect the immediate sale of the purchased
shares and remit to the Company, out of the sale proceeds
available on the settlement date, sufficient funds to cover the
aggregate exercise price payable for the purchased shares and (b)
shall concurrently provide directives to the Company to deliver
certificates for the purchased shares directly to such brokerage
firm in order to complete the sale transaction.
(iii) Furnish to the Company appropriate
documentation that the person or persons exercising the option (if
other than Optionee) have the right to exercise this option.
B. For purposes of this Agreement, the Exercise Date shall be
the date on which the Exercise Notice shall have been delivered to the Company.
Except to the extent the sale and remittance procedure specified above may be
utilized in connection with the exercise of this option, payment of the Option
Price for the purchased shares must accompany such notice.
C. As soon as practical after the exercise of this option in
accordance with the provisions of this Agreement, the Company shall mail or
deliver to or on behalf of the Optionee (or any other person or persons
exercising this option) a stock certificate representing the purchased shares.
D. In no event may this option be exercised for any fractional
shares.
10. Legality of Issuance. The Company shall not be obligated
to sell or issue any Option Shares pursuant to this Agreement if such sale or
issuance might, in the opinion of the Company and the Company's counsel,
constitute a violation by the Company of any applicable law or regulation.
7.
11. Binding Effect. Subject to the limitations set forth in
Paragraph 3 of this Agreement, this Agreement shall be binding upon and inure to
the benefit of the executors, administrators, heirs, legal representatives, and
successors and assigns of the parties hereto; provided, however, that Optionee
may not assign any of Optionee's rights under this Agreement other than as
permitted under Paragraph 3.
12. No Impairment of Rights. Nothing in this Agreement or in
the Plan shall be deemed to impair or otherwise restrict the rights of the
Company or its stockholders to remove the Optionee from the Board at any time
pursuant to the provisions of applicable law.
13. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California applicable to
contracts entered into and wholly to be performed within the State of California
by California residents.
14. Notices. All notices and other communications under this
Agreement shall be in writing. Unless and until the Optionee is notified in
writing to the contrary, all notices, communications and documents directed to
the Company shall, if not personally delivered, be mailed to the Company at the
following address:
Matrix Pharmaceutical, Inc.
00000 Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Unless and until the Company is notified in writing to the
contrary, all notices, communications and documents intended for the Optionee
shall, if not personally delivered, be mailed to Optionee's last known address
as shown on the Company's books. Notices and communications shall be mailed by
registered mail, return receipt requested, postage prepaid. All mailings and
deliveries related to this Agreement shall be deemed received only when actually
received, unless properly mailed by registered mail, return receipt requested,
in which event they shall be deemed received two days after the date of mailing.
15. Construction. This Agreement and the option evidenced
hereby are issued pursuant to the automatic grant program for non-employee Board
Members in effect under the Plan and shall be subject to the express terms and
provisions of the Plan applicable to such automatic grants.
8.
IN WITNESS WHEREOF, Matrix Pharmaceutical, Inc. has caused
this Agreement to be executed on its behalf by its duly-authorized officer and
the Optionee has executed this Agreement, all on the day and year first above
written.
MATRIX PHARMACEUTICAL, INC.
By:____________________________________
Title:_________________________________
_______________________________________
OPTIONEE
Address:_______________________________
_______________________________________
9.
EXHIBIT I
EXERCISE SCHEDULE
The option shall become exercisable in accordance with the
following terms and conditions, provided the Optionee continues in service as a
Board Member.
The option shall become exercisable for all of the Option
Shares one (1) year after the Grant Date, provided the Optionee
attends all of the regularly-scheduled Board meetings held during that
one-year period. To the extent that the Optionee attends less than all
of such meetings, this option shall lapse as to the number of Option
Shares determined by multiplying the total number of Option Shares by
a fraction, the numerator of which is the number of such meetings not
attended by the Optionee during the applicable one-year period and the
denominator of which is the total number of such meetings held during
that period. Any Option Shares as to which this option so lapses shall
no longer be subject to such option or otherwise available for
purchase by the Optionee.
In no event shall this option become exercisable for any
additional Option Shares following the date the Optionee ceases to serve as a
Board Member.
EXHIBIT II
NOTICE OF EXERCISE OF STOCK OPTION
I hereby notify Matrix Pharmaceutical, Inc. (the "Company")
that I elect to purchase _______________ shares of the Company's Common Stock
(the "Purchased Shares") pursuant to that certain option (the "Option") granted
to me on to purchase up to 3,000 shares of such Common Stock at an option price
of $ _________________ per share (the "Option Price").
Concurrently with the delivery of this Exercise Notice to the
Secretary of the Company, I shall hereby pay to the Company the Option Price for
the Purchased Shares in accordance with the provisions of my agreement with the
Company evidencing the Option and shall deliver whatever additional documents
may be required by such agreement as a condition for exercise. Alternatively, I
may utilize the special broker-dealer sale and remittance procedure specified in
my agreement to effect the payment of the Option Price for the Purchased Shares.
_________________________ ________________________________
Date Optionee
Address: ________________________________
________________________________
Print name in exact manner
it is to appear on the
stock certificate: ________________________________
________________________________
Address to which certificate
is to be sent, if different
from address above: ________________________________
________________________________
Social Security Number: ________________________________
