Exhibit 10.14
PHOTOGEN TECHNOLOGIES, INC.
INCENTIVE STOCK OPTION AWARD AGREEMENT
THIS AWARD AGREEMENT ("Agreement") is made effective as of July 23,
1999, by and between Photogen Technologies, Inc., a Nevada corporation (the
"Company"), and Xxxxxx X. Xxxx, Ph.D., M.D. (the "Optionee").
W I T N E S S E T H:
WHEREAS, the Company, through its Compensation Committee (the
"Committee"), desires to grant to the Optionee an incentive stock option
pursuant to its 1998 Long Term Incentive Compensation Plan (the "Plan") to
purchase shares of the Company's common stock, par value $.001 per share (the
"Common Stock").
NOW, THEREFORE, the parties hereto, intending to be legally bound,
agree as follows:
1. GRANT OF OPTION AND TAX CONSEQUENCES. Subject to the terms and
conditions of this Agreement and the Plan, a copy of which has been delivered to
the Optionee, the Company hereby grants to the Optionee the right and option to
purchase from the Company all or part of an aggregate of 750,000 shares of
Common Stock (the "Option"). The per share exercise price at which the shares
subject to Option may be purchased by Optionee shall be $9-3/8, which price
equals the closing sale price of the Common Stock as reported by the National
Association of Securities Dealers in the over-the-counter "bulletin board" the
date of grant of this Option. This Option is intended to qualify as an Incentive
Stock Option within the meaning of Section 422A of the Internal Revenue Code of
1986, as amended (the "Code") (except to the extent limited by Section 422(d) of
the Code, in which case such portion of the Option that does not qualify as an
Incentive Stock Option under Section 422(a) shall be a Non-Qualified Stock
Option). Optionee should seek advice from his or her tax advisor concerning the
Federal and State income tax consequences of the Options and disposition of the
Common Stock following exercise.
2. TIME OF EXERCISE. The Option will vest in accordance with, and
Optionee's right to exercise this Option shall be subject to, the following:
150,000 shares covered by the Option will vest and may first be
exercised on the following schedule: a total of 50,000 shares will vest
and may first be exercised on the first anniversary date of this
Agreement, 50,000 additional shares will vest and may first be
exercised on the second anniversary date of this Agreement, and 50,000
additional shares will vest and may first be exercised on the third
anniversary date of this Agreement.
75,000 shares covered by the Option will vest and may first be
exercised on the date the Company (or its subsidiary Photogen, Inc.)
acquires Optionee's U.S. Patents 5,114,703 and 5,496,536 and related
foreign patents from Alliance Pharmaceutical Corp. (by assignment or
license satisfactory to the Company) or the Company demonstrates to its
satisfaction that the inventions described in those patents can be
practiced by the Company without obtaining an assignment or
satisfactory license covering the inventions in those patents from
Alliance.
50,000 shares covered by the Option will vest and may first be
exercised on the date the Company (or Photogen, Inc.) first files an
investigational new drug application ("IND") regarding lymphography
agents with the U.S. Food & Drug Administration ("FDA") or with
equivalent regulatory agencies in other countries.
75,000 shares covered by the Option will vest and may first be
exercised on the date the Company (or Photogen, Inc.) first files a new
drug application ("NDA") regarding lymphography agents with the FDA or
with equivalent regulatory agencies in other countries.
100,000 shares covered by the Option will vest and may first be
exercised on the date the FDA or with equivalent regulatory agencies in
other countries grants the Company (or Photogen, Inc.) approval to
market a lymphography agent.
40,000 shares covered by the Option will vest and may first be
exercised on the date the Company (or Photogen, Inc.) demonstrates to
its satisfaction the efficacy in animal models of an appropriate
radiosensitizer used with the invention and technology described in
Massachusetts General Hospital's patent application no. 09/183,166
filed with the U.S. Patent and Trademark Office on October 29, 1998 and
entitled "Enhanced Radiation Therapy" (the "MGH Patent Application").
10,000 shares covered by the Option will best and may first be
exercised on the date the Company (or Photogen, Inc.) receives a notice
of allowance from the U.S. Patent and Trademark Office covering, in the
Company's judgment, a material portion of the claims in its patent
application no. 09 216 787.
75,000 shares covered by the Option will vest and may first be
exercised on the date the Company (or Photogen, Inc.) first files an
IND regarding the invention described in the MGH Patent Application
with the FDA or with equivalent regulatory agencies in other countries.
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75,000 shares covered by the Option will vest and may first be
exercised on the date the Company (or Photogen, Inc.) first files an
NDA regarding the invention in the MGH Patent Application with the FDA
or with equivalent regulatory agencies in other countries.
100,000 shares covered by the Option will vest and may first be
exercised on the date the FDA or with equivalent regulatory agencies in
other countries grants the Company (or Photogen, Inc.) approval to
market a product that practices the invention in the MGH Patent
Application.
Subject to Section 5, below, the right to exercise this Option shall in all
events expire at the close of business on the tenth anniversary of the date of
this Agreement, unless such right expires and terminates sooner in accordance
with this Agreement and the Plan. The Optionee's right to exercise this Option
shall be accelerated as provided in paragraph 9 below and as may be provided by
action of the Committee.
3. ISO PROVISIONS.
(a) Optionee represents and warrants to the Company that
Optionee does not own, directly or by reason of the applicable attribution rules
in Code Section 424(d) and related Treasury Regulations, more than 10% of the
total combined voting power of all classes of share capital of the Company or an
Affiliate.
(b) Optionee understands and agrees that Code Section 422(d)
provides that to the extent the Fair Market Value of stock with respect to which
incentive stock options are exercisable for the first time (and thereby vest)
during any calendar year (under the Plan and any other incentive stock option
plan of the Company or an Affiliate) exceeds $100,000, such options will be
non-qualified stock options. Accordingly, Optionee agrees that to the extent
this Option first becomes exercisable in any year with respect to stock whose
Fair Market Value exceeds $100,000, the remaining portion of the Option that
first becomes exercisable in that year shall be a Non-Qualified Stock Option.
(c) Optionee agrees to notify the Company in writing
immediately after Optionee makes a Disqualifying Disposition of any shares
acquired pursuant to the exercise of the Option. A "Disqualifying Disposition"
is any disposition (including any sale) of such shares before the later of (i)
two years after the date the Optionee was granted the Option hereunder, or (ii)
one year after the date the Optionee acquired shares by exercising any part of
the Option. If the Participant has died before such stock is sold, these holding
period requirements do not apply and no Disqualifying Disposition can occur
thereafter.
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4. METHOD OF EXERCISE AND PAYMENT FOR SHARES. This Option shall be
exercised by written notice directed to the Company at its principal office,
specifying the number of shares to be acquired upon such exercise and indicating
that the exercise is being paid for (i) in cash or (ii) if applicable, by a
commitment by a broker-dealer to pay to the Company that portion of any sale
proceeds receivable by the Optionee upon the exercise of the Option and sale of
underlying shares. Full payment for the shares to be purchased on exercise shall
accompany the notice. The Option may be exercised by the designated beneficiary
or legal representative of Optionee in accordance with Section 8 of the Plan.
5. TERMINATION OF OPTION. Optionee is a party to that certain
Employment Agreement with the Company dated as of July 1, 1999 (the "Employment
Agreement"). Section 9 of the Employment Agreement provides that the Employment
Agreement and Optionee's employment by the Company may be terminated upon the
occurrence of certain events. The effective date of the termination under the
Employment Agreement is referred to herein as the "Effective Date." The Options
subject to this Agreement will terminate in accordance with the following
provisions if the Employment Agreement terminates:
(a) If the Employment Agreement is terminated pursuant to
Sections 9(b)(i)(1) or (2) or Section 9(b)(iii) thereof, all Options that not
were not vested before the Effective Date and all vested Options that Optionee
does not exercise before the Effective Date shall terminate as of the Effective
Date.
(b) If the Employment Agreement is terminated pursuant to
Section 9(b)(i)(3) thereof, Optionee (or his estate or personal representative)
will have 12 months after the Effective Date to exercise any Options that vested
in accordance with this Agreement before the Effective Date. All Options that
were not vested before the Effective Date shall terminate as of the Effective
Date and all vested Options that Optionee does not exercise within such 12-month
period shall terminate as of the end of such 12-month period.
(c) If the Employment Agreement is terminated pursuant to
Section 9(ii) thereof, Optionee will have 90 days after the Effective Date to
exercise any Options that vested in accordance with this Agreement before the
Effective Date. All Options that were not vested before the Effective Date shall
terminate as of the Effective Date and all vested Options that Optionee does not
exercise within such 90-day period shall terminate as of the end of such 90-day
period.
Upon a termination of employment related to a Change in Control or any other
reason, Options shall be treated in the manner set forth in Sections 6.7 and 10
of the Plan. Further, to the extent it has not been previously exercised (and
regardless of whether it has vested), this Option shall terminate in the event
Optionee breaches any contractual, statutory or common law duty to the Company
or its Affiliates to maintain the confidentiality of proprietary information or
trade secrets, to refrain from
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competing with the Company or its Affiliates, or to assign inventions and
similar developments to the Company or its Affiliates.
6. ADJUSTMENT. The Committee shall make adjustments to the aggregate
number and kind of shares or other securities subject to this Option and in the
purchase price of this Option to reflect any change in the capitalization of the
Company as contemplated in Section 4.2 of the Plan.
7. OPTION NON-ASSIGNABLE AND NON-TRANSFERABLE. This Option and all
rights hereunder shall be non-assignable and non-transferable other than by will
or the laws of descent and distribution and shall be exercisable during the
Optionee's lifetime only by the Optionee or the Optionee's guardian or legal
representative. The Plan and this Agreement shall be binding upon the Optionee
and any permitted successors and assigns.
8. LIMITATION OF RIGHTS.
(a) No Rights as an Employee. Nothing in this Agreement or the
Plan shall be deemed to: create or affect any contract of employment between the
Optionee and Company or an Affiliate; prevent the Company or an Affiliate from
terminating Optionee's employment; give Optionee a right to be retained in
employment by the Company or any Affiliate for any period of time; confer on any
person any right to be selected as a Participant under the Plan or the right to
any other compensation, remuneration or benefits (except to the extent expressly
set forth in this Agreement).
(b) No Rights as a Stockholder. The Optionee shall have no
rights as a stockholder with respect to the shares covered by this Option until
the date the Optionee tenders full payment of the exercise price for the portion
of the Option being exercised and the issuance of a stock certificate therefor,
and no adjustment will be made for any dividends or other rights for which the
record date is prior to the date such certificate is issued.
9. CHANGE OF CONTROL. Upon the occurrence of a Change of Control as
defined in the Plan, all of the Options shall become immediately exercisable as
provided in Section 10.1 of the Plan.
10. STOCK LEGEND. The Optionee hereby represents and warrants to the
Company that upon exercise of any portion of the Option hereunder that the
Optionee will be acquiring such shares for his or her own account, for
investment and not with a view to, or for the sale in connection with, the
distribution of any such shares. The Optionee hereby agrees that the following
legend shall be endorsed upon the certificates evidencing the Optionee's shares
issued pursuant to the exercise of this Option:
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The shares evidenced by this certificate have not been
registered under the Securities Act of 1933, as amended, or
under state securities laws to the extent applicable. The
shares may not be sold, offered for sale, or otherwise
transferred in the absence of an effective registration
statement under said Act (and any registration or
qualification as may be required under such state laws) or an
opinion of counsel satisfactory to the Company and its counsel
that such registration or qualification is not required.
11. PLAN GOVERNS. The Optionee acknowledges that he or she has received
and reviewed a copy of the Company's Plan and acknowledges that the Award and
this Agreement are subject to all the terms and provisions of the Plan which are
applicable to Incentive Stock Options. All capitalized terms not otherwise
defined in this Agreement shall have the meanings given to them in the Plan. In
the event of any inconsistency between the term of this Agreement and the Plan,
the terms of the Plan (all of which are incorporated in this Agreement by
reference) shall prevail; provided, however, that the provisions of Section 5
hereof and Section 9 of the Employment Agreement shall prevail over any
conflicting provisions of Sections 2.6 or 6.8 of the Plan (it being agreed that
the conflicting provisions of Sections 2.6 and 6.8 of the Plan shall not be
applicable to this Agreement).
IN WITNESS WHEREOF, the Company has caused this Agreement to
be signed by its President, and the Optionee has affixed his or her signature
hereto on the date set forth above.
/s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxx, Ph.D., M.D., Optionee
Photogen Technologies, Inc.
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx, President
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