Exhibit 10.1
CELL THERAPEUTICS,
INC.
2007 EQUITY INCENTIVE
PLAN
Effective as of June 20, 2003
and amended and restated as of August 24, 2009
SECTION 1
BACKGROUND AND
PURPOSE
1.1 Background . The Plan
permits the grant of Nonqualified Stock Options, Incentive Stock
Options, SARs, Restricted Stock, Restricted Stock Units and Cash
Awards.
1.2 Purpose of the Plan . The
Plan is intended to attract, motivate, and retain
(a) employees of the Company and its Affiliates,
(b) consultants who provide significant services to the
Company and its Affiliates, and (c) directors of the Company
who are employees of neither the Company nor any Affiliate. The
Plan also is designed to encourage stock ownership by Participants,
thereby aligning their interests with those of the Company’s
shareholders.
SECTION 2
DEFINITIONS
The following words and phrases
shall have the following meanings unless a different meaning is
plainly required by the context:
2.1 “ 1934 Act ”
means the Securities Exchange Act of 1934, as amended. Reference to
a specific section of the 1934 Act or regulation thereunder shall
include such section or regulation, any valid regulation
promulgated under such section, and any comparable provision of any
future legislation or regulation amending, supplementing or
superseding such section or regulation.
2.2 “ Affiliate ”
means any corporation or any other entity (including, but not
limited to, partnerships and joint ventures) controlling,
controlled by, or under common control with the Company.
2.3 “ Affiliated SAR
” means an SAR that is granted in connection with a related
Option, and which automatically will be deemed to be exercised at
the same time that the related Option is exercised.
2.4 “ Annual Revenue
” means the Company’s or a business unit’s net
sales for the Fiscal Year, determined in accordance with generally
accepted accounting principles; provided, however, that prior to
the Fiscal Year, the Committee shall determine whether any
significant item(s) shall be excluded or included from the
calculation of Annual Revenue with respect to one or more
Participants.
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2.5 “ Award ”
means, individually or collectively, a grant under the Plan of
Nonqualified Stock Options, Incentive Stock Options, SARs,
Restricted Stock, Restricted Stock Units or Cash Awards.
2.6 “ Award Agreement
” means the written agreement setting forth the terms and
provisions applicable to each Award granted under the
Plan.
2.7 “ Board ” or
“ Board of Directors ” means the Board of
Directors of the Company.
2.8 “ Cash Award
” means the right to receive cash as described in
Section 8.
2.9 “ Cash Position
” means the Company’s level of cash, cash equivalents
and securities available-for-sale.
2.10 “ Change in
Control ” means the occurrence of any of the following
events:
(a) Any “person” (as
such term is used in Sections 13(d) and 14(d) of the Exchange Act)
becomes the “beneficial owner” (as defined in Rule 13d
3 of the Exchange Act), directly or indirectly, of securities of
the Company representing fifty percent (50%) or more of the
total voting power represented by the Company’s then
outstanding voting securities;
(b) The consummation of the sale or
disposition by the Company of all or substantially all of the
Company’s assets;
(c) A change in the composition of
the Board occurring within a two-year period, as a result of which
fewer than a majority of the directors are Incumbent Directors.
“Incumbent Directors” means directors who either
(A) are Directors as of the effective date of the Plan, or
(B) are elected, or nominated for election, to the Board with
the affirmative votes of at least a majority of the Directors at
the time of such election or nomination (but will not include an
individual whose election or nomination is in connection with an
actual or threatened proxy contest relating to the election of
directors to the Company); or
(d) The consummation of a merger or
consolidation of the Company with any other corporation, other than
a merger or consolidation which would result in the voting
securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity or
its parent) at least fifty percent (50%) of the total voting
power represented by the voting securities of the Company or such
surviving entity or its parent outstanding immediately after such
merger or consolidation.
2.11 “ Code ”
means the Internal Revenue Code of 1986, as amended. Reference to a
specific section of the Code or regulation thereunder shall include
such section or regulation, any valid regulation promulgated under
such section, and any comparable provision of any future
legislation or regulation amending, supplementing or superseding
such section or regulation.
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2.12 “ Committee
” means the Board or a committee appointed by the Board
(pursuant to Section 3.1) to administer the Plan.
2.13 “ Company ”
means Cell Therapeutics, Inc., a Washington corporation, or any
successor thereto. With respect to the definitions of the
Performance Goals, the Committee may determine that
“Company” means Cell Therapeutics, Inc. and its
consolidated subsidiaries.
2.14 “ Consultant
” means any consultant, independent contractor, or other
person who provides significant services to the Company or its
Affiliates, but who is neither an Employee nor a
Director.
2.15 “ Director ”
means any individual who is a member of the Board of Directors of
the Company.
2.16 “ Disability
” means a permanent and total disability within the meaning
of Section 22(e)(3) of the Code, provided that in the case of
Awards other than Incentive Stock Options, the Committee in its
discretion may determine whether a permanent and total disability
exists in accordance with uniform and non-discriminatory standards
adopted by the Committee from time to time.
2.17 “ Earnings Per
Share ” means as to any Fiscal Year, the Company’s
or a business unit’s Net Income, divided by a weighted
average number of common shares outstanding and dilutive common
equivalent shares deemed outstanding, determined in accordance with
generally accepted accounting principles.
2.18 “ Employee ”
means any employee of the Company or of an Affiliate, whether such
employee is so employed at the time the Plan is adopted or becomes
so employed subsequent to the adoption of the Plan.
2.19 “ Exercise Price
” means the price at which a Share may be purchased by a
Participant pursuant to the exercise of an Option.
2.20 “ Fair Market
Value ” means the last quoted per share selling price for
Shares on the NASDAQ Global Market on the relevant date, or if
there were no sales on such date, the closing bid on the relevant
date. If there are neither bids nor sales on the relevant date,
then the Fair Market Value shall mean the arithmetic mean of the
highest and lowest quoted selling prices on the last market trading
day before the relevant date, as determined by the Committee. In
any instance where the relevant date falls on a weekend day, a date
the NASDAQ Global Market is closed for trading or any other
non-trading day, Fair Market Value shall mean the last quoted per
share selling price on the last market trading day before the
relevant date. If there are neither bids nor sales on the last
market trading day before the relevant date, then the Fair Market
Value shall mean the arithmetic mean of the highest and lowest
quoted selling prices on the most recent market trading day before
the relevant date. Notwithstanding the preceding, for federal,
state, and local income tax reporting purposes, Fair Market Value
shall be determined by the Committee (or its delegate) in
accordance with uniform and nondiscriminatory standards adopted by
it from time to time. If Shares are not traded on any established
stock exchange or quoted on a national market system and are not
quoted by a recognized securities dealer, the Committee (following
guidelines established by the Board or Committee) will determine
Fair Market Value in good faith.
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2.21 “ Fiscal Year
” means the fiscal year of the Company.
2.22 “ Freestanding SAR
” means a SAR that is granted independently of any
Option.
2.23 “ Grant Date
” means, with respect to an Award, the date that the Award
was granted.
2.24 “ Incentive Stock
Option ” means an Option to purchase Shares which is
designated as an Incentive Stock Option and is intended to meet the
requirements of Section 422 of the Code.
2.25 “ Individual
Objectives ” means as to a Participant, the objective and
measurable goals set by a “management by objectives”
process and approved by the Committee (in its
discretion).
2.26 “ Misconduct
” means, at any time within (a) the term of an Option
granted hereunder, (b) within one (1) year after a
Participant’s Termination of Service, or (c) within one
(1) year after exercise of any portion of an Option granted
hereunder, whichever is the latest, the commission of any act in
competition with any activity of the Company (or any Affiliate) or
any act contrary or harmful to the interests of the Company (or any
Affiliate), including, but not limited to: (a) conviction of a
felony or crime involving moral turpitude or dishonesty,
(b) violation of Company (or any Affiliate) policies,
(c) accepting employment with or serving as a consultant,
advisor or in any other capacity to an entity that is in
competition with or acting against the interests of the Company (or
any Affiliate), including employing or recruiting any present,
former or future employee of the Company (or any Affiliate),
(d) misuse of any trade or business secrets or confidential,
secret, privileged, or non-public information relating to the
Company’s (or any Affiliate’s) business or breach of
the Company’s Confidentiality Agreement, or
(e) participating in a hostile takeover attempt of the
Company. The foregoing definition shall not be deemed to be
inclusive of all acts or omissions that the Company (or any
Affiliate) may consider as Misconduct for purposes of the
Plan.
2.27 “ Net Income
” means as to any Fiscal Year, the income after taxes of the
Company for the Fiscal Year determined in accordance with generally
accepted accounting principles, provided that prior to the Fiscal
Year, the Committee shall determine whether any significant item(s)
shall be included or excluded from the calculation of Net Income
with respect to one or more Participants.
2.28 “ Nonemployee
Director ” means a Director who is an employee of neither
the Company nor of any Affiliate.
2.29 “ Nonqualified Stock
Option ” means an option to purchase Shares which is not
intended to be an Incentive Stock Option.
2.30 “ Operating Cash
Flow ” means the Company’s or a business
unit’s sum of Net Income plus depreciation and amortization
less capital expenditures plus changes in working
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capital comprised of accounts receivable,
inventories, other current assets, trade accounts payable, accrued
expenses, product warranty, advance payments from customers and
long-term accrued expenses, determined in accordance with generally
acceptable accounting principles.
2.31 “ Operating Income
” means the Company’s or a business unit’s income
from operations but excluding any unusual items, determined in
accordance with generally accepted accounting
principles.
2.32 “ Option ”
means an Incentive Stock Option or a Nonqualified Stock
Option.
2.33 “ Participant
” means an Employee, Consultant, or Nonemployee Director who
has an outstanding Award.
2.34 “ Performance
Goals ” means the goal(s) (or combined goal(s))
determined by the Committee (in its discretion) to be applicable to
a Participant with respect to an Award. As determined by the
Committee, the Performance Goals applicable to an Award may provide
for a targeted level or levels of achievement using one or more of
the following measures: (a) Annual Revenue, (b) Cash
Position, (c) Earnings Per Share, (d) Individual
Objectives, (e) Net Income, (f) Operating Cash Flow,
(g) Operating Income, (h) Return on Assets,
(i) Return on Equity, (j) Return on Sales, and
(k) Total Shareholder Return. The Performance Goals may differ
from Participant to Participant and from Award to Award.
2.35 “ Period of
Restriction ” means the period during which the transfer
of Restricted Stock is subject to restrictions and therefore, the
Shares subject to the Restricted Stock grant are subject to a
substantial risk of forfeiture. With respect to Restricted Stock
granted pursuant to Section 7, such restrictions may be based
on the passage of time, the achievement of target levels of
performance, or the occurrence of other events as determined by the
Committee, in its discretion.
2.36 “ Plan ”
means the Cell Therapeutics, Inc. 2007 Equity Incentive Plan, as
set forth in this instrument and as hereafter amended from time to
time.
2.37 “ Restricted Stock
” means an Award granted to a Participant pursuant to
Section 7, including an award or issuance of Shares or
Restricted Stock Units.
2.38 “ Restricted Stock
Units ” means a bookkeeping entry representing an amount
equivalent to the Fair Market Value of one Share (or a fraction or
multiple of such value), payable in cash, property or Shares.
Restricted Stock Units represent an unfunded and unsecured
obligation of the Company, except as otherwise provided for by the
Committee.
2.39 “ Return on Assets
” means the percentage equal to the Company’s or a
business unit’s Operating Income before incentive
compensation, divided by average net Company or business unit, as
applicable, assets, determined in accordance with generally
accepted accounting principles.
2.40 “ Return on Equity
” means the percentage equal to the Company’s Net
Income divided by average shareholder’s equity, determined in
accordance with generally accepted accounting
principles.
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2.41 “ Return on Sales
” means the percentage equal to the Company’s or a
business unit’s Operating Income before incentive
compensation, divided by the Company’s or the business
unit’s, as applicable, revenue, determined in accordance with
generally