exv10w1



 






Exhibit 10.1




PHARMION CORPORATION

AMENDED AND RESTATED

2001 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN




          1.     Purpose. The Amended and Restated 2001 Non-Employee Director Stock Option Plan
(the “Plan”) is intended to promote the interests of Pharmion Corporation (the “Company”) by
providing equity-based compensation as an inducement to obtain and retain the services of qualified
persons who are neither employees nor officers of the Company to serve as members of the Board of
Directors of the Company (the “Board”) which compensation is tied directly to shareholder return.
Effective as of April 1, 2005, the Plan amends and restates the Company’s Amended and Restated 2001
Non-Employee Director Stock Option Plan (which was reapproved by the stockholders of the Company on
September 23, 2003), which amended and restated the Company’s 2001 Non-Employee Director Stock
Option Plan (the “Original Plan”). The stockholders of the Company approved an amendment to
increase the number of shares of Stock that may be offered under the Plan by an additional 100,000
shares on June 1, 2005, from 375,000 shares to 475,000 shares. The expiration date of the Plan,
after which no awards may be granted hereunder, shall be September 23, 2013; provided,
however, that the administration of the Plan shall continue in effect until all matters
relating to the payment of Awards previously granted have been settled.



          2.     Rights to be Granted. Options give an optionee the right for a specified time
period to purchase a specified number of shares of common stock, par value $0.001, of the Company
(the “Stock”). Options granted under the Plan are not intended to be “incentive stock options”
within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”).



          3.     Available Shares. Subject to Section 13 hereof, the aggregate number of shares of
Stock reserved and available for issuance pursuant to awards granted under the Plan is 475,000
shares, as increased annually on the date of each annual meeting of the Company’s stockholders
following an IPO (as defined below) by an amount of shares equal to the lesser of (i) 50,000 shares
of Stock or (ii) such lesser number of shares as determined by the Board. Shares subject to the
Plan are authorized but unissued shares or shares that were once issued and subsequently reacquired
by the Company. If any options granted under the Plan are surrendered before exercise or lapse
without exercise, in whole or in part, the shares reserved therefor revert to and continue to be
available for grant under the Plan.



          4.     Administration. The Plan shall be administered by the Board or the Compensation
Committee of the Board or such other committee of the Board comprising of at least two people as
the Board may appoint to administer the Plan (the entity administering the plan from time to time
is hereafter referred to as the “Committee”). The Committee shall have the power to construe the
Plan, to determine all questions thereunder, and to adopt and amend such rules and regulations for
the administration of the Plan as it may deem desirable.



 









 





          5.     Award Agreement. Each award granted under the provisions of the Plan shall be
evidenced by an award agreement, in such form as may be approved by the Committee, which agreement
shall be duly executed and delivered on behalf of the Company and by the individual to whom such
award is granted. Each agreement shall contain such terms, provisions, and conditions not
inconsistent with the Plan as may be determined by the Committee.



          6.     Eligibility and Limitations. Awards may be granted pursuant to the Plan only to
non-employee members of the Board (each, a “Non-Employee Director”).



          7.     Option Price. The exercise price of the Stock covered by the automatic grant of an
option pursuant to Section 8 shall be the “Fair Market Value” of the Stock on the date of grant.
For purposes of the Plan, the Fair Market Value of the Stock as of any date means (i) if the Stock
is listed on a national securities exchange, the closing price on the primary exchange with which
the Stock is listed and traded on the date prior to such date, or, if there is no such sale on that
date, then on the last preceding date on which such a sale was reported; (ii) if the Stock is not
listed on any national securities exchange but is quoted in the NASDAQ National Market System on a
last sale basis, the closing price reported on the date prior to such date, or, if there is no such
sale on that date, then on the last preceding date on which a sale was reported; (iii) if the Stock
is not listed on a national securities exchange nor quoted in the NASDAQ National Market System on
a last sale basis, the amount determined by the Committee to be the fair market value based upon a
good faith attempt to value the Stock accurately and computed in accordance with applicable
regulations of the Internal Revenue Service; or (iv) notwithstanding clauses (i) — (iii) above,
with respect to options granted as of the consummation of an initial public offering (an “IPO”),
the price at which Stock is initially offered to the public in such IPO.



          8.     Automatic Grant of Options.



               (a)     Catch-Up Grants. Prior to February 11, 2003, pursuant to the terms of the Original Plan,
each Non-Employee Director received an initial grant (an “Original Plan Option”) of an option to
purchase 12,500 (adjusted to take into account the 1 for 4 reverse stock split effective as of
September 25, 2003 (the “Reverse Split”)) shares of Stock either on April 17, 2001, the date of the
adoption of the Original Plan (the “Original Effective Date”), or upon such other date that an
individual became a Non-Employee Director (the date upon which such grant was made, the “Original
Grant Date”). Effective as of February 11, 2003, each Non-Employee Director who has received an
Original Plan Option, other than any Non-Employee Director who has received an option to purchase
shares of Stock pursuant to a consulting or similar arrangement with the Company, shall be
automatically granted, without further action by the Committee, an option to purchase 12,500
(adjusted for the Reverse Split) shares of Stock (a “Catch-Up Option”).



               (b)     Initial Grant. Unless action is taken by the Committee to reduce such number, in the
event an individual who was not a Non-Employee Director on February 11, 2003 subsequently becomes a
Non-Employee Director, such Non-Employee Director shall be automatically granted, on the date upon
which such individual first becomes a Non-Employee Director, without further action by the
Committee, an option to purchase 25,000 shares of Stock.



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               (c)     Annual Grant. Prior to February 11, 2003, pursuant to the terms of the Original Plan, on
the first anniversary of the Original Effective Date, each Non-Employee Director on such date
received a grant of an option to purchase 1,250 (adjusted for the Reverse Split) shares of Stock.
Unless action is taken by the Committee to reduce such number, commencing on the second anniversary
of the Original Effective Date, each year, on the anniversary of the Original Effective Date (or,
if an IPO has occurred, the date of the Company’s Annual Meeting of Stockholders), each
Non-Employee Director shall be automatically granted on such date, without further action by the
Committee, an option to purchase 5,000 shares of Stock.



          9.     Period of Option. The options granted hereunder shall expire on a date which is
ten (10) years after the date of grant of the options.



          10.     Exercise of Option. Options shall be exercised by the delivery to the Company at
its principal office or at such other address as may be established by the Committee of written
notice of the number of shares of Stock with respect to which the option is being exercised
accompanied by payment in full of the purchase price of such shares. Unless otherwise determined
by the Committee at the time of grant, payment for such shares may be made in cash or by bank check
(acceptable to the Committee) or, in the discretion of the Committee, (i) in shares of Stock
(valued at the Fair Market Value at the time the Option is exercised) having in the aggregate a
value equal to the aggregate exercise price, which either (a) have been held by the Non-Employee
Director for at least six-months, or (b) were acquired from a person other than the Company, (ii)
in other property having a Fair Market Value on the date of exercise equal to the aggregate
exercise price, or (iii) following the date of an IPO, by delivering to the Committee a copy of
irrevocable instructions to a stockbroker to deliver promptly to the Company an amount of sale or
loan proceeds sufficient to pay the aggregate exercise price; provided, however, that the Company
shall not directly or indirectly, extend or maintain credit, or arrange for the extension of
credit, in the form of a personal loan to or for any Non-Employee Director under (iii) above, or
otherwise, in violation of Section 402 of the Sarbanes-Oxley Act of 2002.



          11.     Exercisability and Vesting of Shares; Non-Transferability of Options.



               (a)     Exercisability. Options automatically granted under the Plan pursuant to Section 8 shall
be immediately exercisable and shall vest in accordance with the applicable vesting provisions
contained in subsection (b) hereof. In the event an optionee elects to exercise an option granted
pursuant to Section 8 which is partially or wholly nonvested, the Stock received in respect of the
nonvested portion of the option (the “Special Restricted Stock”) shall initially be nonvested and
subject to repurchase by the Company upon an optionee’s ceasing to be a member of the Board for any
reason, at the exercise price paid per share, with the Special Restricted Stock vesting, and the
Company’s repurchase right on such Special Restricted Stock lapsing, on the same date or dates that
such nonvested portion of the option would otherwise have vested (had it remained unexercised) in
accordance with subsection (ii) and (iii) of subsection 11(b) hereof; provided, however, that in no
event shall any additional shares of Special Restricted Stock vest after the optionee’s cessation
from service as a Non-Employee Director.



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               (b)     Vesting.



                    (i)     Each Original Plan Option and each Catch-Up Option shall vest as to 25% on the Original
Grant Date, and the remainder shall vest ratably on each of the first three anniversaries of the
Original Grant Date.



                    (ii)     Each initial grant of options pursuant to Section 8(b) which is granted at any time on or
after February 11, 2003 shall vest ratably on each of the first four anniversaries of the date of
grant of such options.



                    (iii)     Each annual grant of options described in Section 8(c) hereof shall vest 100% on the
first anniversary of the date of grant of such options.



               (c)     Legend on Certificates. The certificates representing shares of Stock acquired under the
Plan shall carry such appropriate legend, and such written instructions shall be given to the
Company’s transfer agent, as may be deemed necessary or advisable by the Committee or counsel to
the Company.



               (d)     Non-Transferability. Unless otherwise determined by the Committee, either at the time of
grant or prior to the time of transfer, options granted pursuant to the Plan shall not be
assignable or transferable other than by will or the laws of descent and distribution, and shall be
exercisable during an optionee’s lifetime only by him.



          12.     Termination of Option Rights. (a) In the event an optionee ceases to be a member
of the Board for any reason, all unvested options shall be forfeited back to the Company and any
then unexercised options granted to such optionee which were exercisable at the time the optionee
ceased to be a member of the Board may be exercised until the earlier of the last day of the option
term or the date that is three months after the date of such termination as a Board member.



               (b)     In addition to the Company’s right to repurchase Special Restricted Stock as described in
Section 11(a), at any time prior to an IPO, in the event an optionee ceases to be a member of the
Board for any reason, the Committee may, in its discretion, and on terms it considers appropriate,
require an optionee, or the executors or administrators of an optionee’s estate, to sell back to
the Company all shares of Stock (other than Special Restricted Stock) at a price equal to the Fair
Market Value at the time of repurchase.



          13.     Adjustments Upon Changes in Capitalization and other Matters.



               (a)     Awards granted under the Plan, any agreements evidencing such awards and the maximum
number of shares of Stock subject to all awards under the Plan may be subject to adjustment or
substitution, as determined by the Committee in its sole discretion, as to the number, price or
kind of a share of Stock or other consideration subject to such awards or as otherwise determined
by the Committee to be equitable (i) in the event of changes in the outstanding Stock or in the
capital structure of the Company by reason of stock dividends, stock splits, reverse stock splits,
recapitalizations, reorganizations, mergers, consolidations, combinations, exchanges, or other
relevant changes in capitalization occurring after the date of grant of any such option or (ii) in
the event of any change in applicable laws or any change in



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circumstances which results in or would result in any substantial dilution or enlargement of
the rights granted to, or available for, participants in the Plan, or (iii) for any other reason
which the Committee, in its sole discretion, determines otherwise warrants equitable adjustment
because it interferes with the intended operation of the Plan. The Company shall give each
participant notice of an adjustment hereunder and, upon notice, such adjustment shall be conclusive
and binding for all purposes.




               (b)     Notwithstanding the above, in the event of any of the following:



                    (i)     the Company is merged or consolidated with another corporation or entity such that after
such merger or consolidation the Company is not the surviving entity or the ultimate parent of the
surviving entity;



                    (ii)     all or substantially all of the assets of the Company or the Stock are acquired by
another person or entity;



                    (iii)     the reorganization or liquidation of the Company; or



                    (iv)     the Company shall enter into a written agreement to undergo an event described in clauses
(i), (ii) or (iii) above,



then the Committee may, in its discretion and upon at least 10 days advance notice to the affected
persons, cancel any outstanding options and pay to the holders thereof, in cash or Stock, the value
of such options based upon the price per share of Stock received or to be received by other
shareholders of the Company in the event. The terms of this Section 13 may be varied by the
Committee in any particular option agreement.



          14.     Compliance with the Law.



               (a)     The Company is relieved from any liability for the nonissuance or non-transfer or any
delay in issuance or transfer of any shares of Stock subject to award under the Plan which results
from the inability of the Company to obtain, or any delay in obtaining from any regulatory body
having jurisdiction, all requisite authority to issue or transfer shares of Stock of the Company
upon exercise of the options under the Plan or shares of Stock issued as a result of such exercise
of the options, if counsel for the Company deems such authority necessary for lawful issuance or
transfer of any such shares. Appropriate legends may be placed on the stock certificates
evidencing shares issued pursuant to any award to reflect such transfer restrictions.



               (b)     Each award granted under the Plan is subject to the requirement that if at any time the
Committee determines, in its discretion, that the listing, registration or qualification of shares
of Stock issuable pursuant to an award is required by any securities exchange or under any state or
Federal law, or that the consent or approval of any governmental regulatory body is necessary or
desirable as a condition of, or in connection with, the grant of an award or the issuance of shares
of Stock pursuant to an award, no shares of Stock shall be issued, in whole or in part, unless such
listing, registration, qualification, consent or approval has been effected or obtained free of any
conditions or with such conditions as are acceptable to the Committee.



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          15.     Representation of Optionee. The Company may require the optionee to deliver
written warranties and representations upon exercise of the option that are necessary to show
compliance with federal and state securities laws including to the effect that a purchase of shares
under the option is made for investment and not with a view to their distribution (as that term is
used in the Securities Act of 1933).



          16.     Termination and Amendment of Plan. The Board may at any time terminate the Plan
or make such modification or amendment thereof as it deems advisable. Termination or any
modification or amendment of the Plan shall not, without consent of a participant, affect his
rights under an option previously granted to him.



*                    *                    *



As adopted by the Board of Directors of Pharmion Corporation as of February 11, 2003, as amended
and restated as of February 11, 2003, September 23, 2003 and April 1, 2005.




	 	 	 	 	 
	 	 	 
	By:  	/s/ Patrick J. Mahaffy
 	 	 
	Title:  	President and Chief Executive Officer 	 	 
	 	 	 	 
	 	 




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