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EXHIBIT 10.30
XXXX CORPORATION
1996 STOCK OPTION PLAN
[NONQUALIFIED] [INCENTIVE] STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT (the "Agreement"), dated as of
_____________, 1996, between Xxxx Corporation, a Delaware corporation (the
"Company"), and the individual whose name appears on the signature page hereof
(the "Grantee"), who is a key employee, officer or an Eligible Director (as
defined in Section 6(a) of the Plan) of the Company or an Affiliate (as defined
in Section 1 of the Plan), or a consultant or advisor who the Committee (as
defined in Section 3 of the Plan) has determined provides substantial and
important services (as limited in Section 6(a) of the Plan) to the Company.
In accordance with the terms of the Xxxx Corporation 1996
Stock Option Plan (the "Plan"), the Company hereby grants to the Grantee [a
nonqualified] [an incentive] stock option (the "Option") to purchase all or any
part of an aggregate of ________(1) shares of common stock, $.01 par value per
share ("Common Stock"), of the Company.
To evidence the Option and to set forth its terms and
conditions, the Company and the Grantee hereby agree as follows:
1. Confirmation of Grant. The Company hereby evidences and confirms its
grant of the Option to the Grantee on the date of this Agreement.
2. Number of Shares. The Option shall be for an aggregate of ________
shares of Common Stock.
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(1) For a grant to an Independent Director under Section 6(k) of the Plan,
insert 1,250 shares of Common Stock.
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3. Exercise Price. The exercise price shall be $________ per share of
Common Stock for a total of $__________.
4. Medium and Time of Payment.
(a) The exercise price shall be paid in United States dollars
and in cash or by certified or cashier's check payable to the order of the
Company at the time of purchase.
[(b) The exercise price or any portion thereof, may be paid
with: (i) Common Stock acquired through the exercise of an option granted by the
Company which Common Stock has been held by the Grantee for at least one year,
or any other Common Stock already owned by, and in the possession of, the
Grantee; or (ii) any combination of cash, certified or cashier's check, and
Common Stock meeting the requirements of clause (i) above.(2)]
(c) Any withholding tax, up to the minimum withholding requirement for
supplemental wages, shall be paid with shares of Common Stock issuable to the
Grantee upon exercise of the Option.
(d) Shares of Common Stock used to satisfy [the exercise price of the
Option and/or (3)] any minimum required withholding tax shall be valued at
their fair market value as determined by the Committee as of the date of
exercise.
(e) Payment in full of the exercise price is required prior to the
issuance of any shares of Common Stock pursuant to the Option.
5. Term, Vesting and Exercise of the Option.
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(2) Use this language if the Grantee may pay all or any portion of the exercise
price with shares of Common Stock already owned by the Grantee.
(3) Use this language if the Grantee may pay all or any portion of the exercise
price with shares of Common Stock already owned by the Grantee.
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(a) The Option shall expire ten years from the date of this Agreement.
(b) The Option shall vest on the earlier of: (i)
____________________(4), or (ii) the Grantee's [retirement,(5)] death or
disability, as defined herein.
(c) The Option shall become exercisable on the earlier of: (i)
___________________(6), or (ii) the Grantee's [retirement,(7)] death or
disability, as defined herein.
(d) Notwithstanding anything contained herein to the contrary,
the right (whether or not vested) of a Grantee to exercise the Option shall be
forfeited if the Committee determines, in its sole discretion, that (i) the
Grantee has entered into a business or employment which is detrimentally
competitive with the Company or substantially injurious to the Company's
financial interests; (ii) the Grantee has been discharged from employment with
the Company or an Affiliate for Cause; or (iii) the Grantee performed acts of
willful malfeasance or gross negligence in a matter of material importance to
the Company or an Affiliate. For purposes of this Section, "Cause" shall have
the meaning set forth in any unexpired employment or severance agreement between
the Grantee and the Company and/or an Affiliate, and, in the absence of any such
agreement, shall mean (i) the willful and continued failure of the Grantee to
substantially perform his or her duties with or for the Company or an Affiliate,
(ii) the engaging by the Grantee in conduct which is significantly injurious
to the Company or an Affiliate, monetarily or otherwise, (iii) the Grantee's
conviction of
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(4) For a grant to an Independent Director under Section 6(k)
of the Plan, insert the date which is the third anniversary of the date of the
Agreement.
(5) Use this language if the Option will vest upon retirement.
(6) For a grant to an Independent Director under Section 6(k) of the
Plan, insert the date which is the third anniversary of the date of the
Agreement.
(7) Use this language if the Option will become exercisable upon retirement.
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a felony, (iv) the Grantee's abuse of illegal drugs or other controlled
substances or (v) the Grantee's habitual intoxication. For purposes of this
Section, unless otherwise defined in the Grantee's employment or severance
agreement, an act or omission is "willful" if such act or omission was knowingly
done, or knowingly omitted to be done, by the Grantee not in good faith and
without reasonable belief that such act or omission was in the best interest of
the Company or an Affiliate.
(e) The Option may be exercised by written notice to the
Company indicating the number of shares of Common Stock being purchased. Such
notice shall be signed by the Grantee and shall be accompanied by full payment
of the exercise price. When the Option becomes vested and exercisable, it may be
exercisable in whole at any time or in part from time to time as to any or all
full shares of Common Stock under the Option. Notwithstanding the foregoing, the
Option may not be exercised for fewer than 100 shares at any one time or fewer
than all remaining shares if fewer than 100 shares of Common Stock may be
purchased under the Option.
6. Termination of Employment. A Grantee's right to exercise
the Option after termination of his or her employment shall be only as follows:
(i) Retirement. If the Grantee has a termination of
employment by reason of retirement, he or she may within thirteen
months following such termination (but not later than the date on which
the Option would otherwise expire), exercise any Option that had vested
and was exercisable on the date of his or her retirement. However, in
the event of his or her death prior to the end of the thirteen-month
period after his or her retirement, his or her estate shall have the
right to exercise any Option that had vested and was exercisable on
the date the Grantee retired within thirteen months following the
Grantee's termination of employment (but not later than the date on
which the Option would otherwise expire). If the
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Grantee has a termination of employment by reason of retirement, and
if such termination of employment does not constitute a vesting event
under Section 5, the Grantee shall forfeit the Option to the extent
that it was not vested and exercisable on the date of his or her
termination of employment.
(ii) Death. If a Grantee dies while employed by the
Company or an Affiliate, the Option shall vest and become exercisable
upon death and his or her estate shall have the right for a period of
thirteen months following the date of such death (but not later than
the date on which the Option would otherwise expire) to exercise the
Option.
(iii) Disability. If a Grantee has a termination of
employment due to disability, as defined in Code Section 22(e)(3), the
Option shall vest and become exercisable upon his or her termination of
employment due to disability and he or she shall have the right for a
period of thirteen months following the date of such termination of
employment (but not later than the date on which the Option would
otherwise expire) to exercise the Option.
(iv) Other Reasons. Except as provided under Section
5(d) hereof, if a Grantee has a termination of employment due to any
reason other than those provided above under "Retirement", "Death", or
"Disability", the Grantee or his or her estate (in the event of his or
her death after such termination) (a) may exercise the Option to the
extent that it was vested and exercisable on the date of his or her
termination of employment within the 30-day period following such
termination (but not later than the date on which the Option would
otherwise expire) and (b) shall forfeit the Option to the extent that
it was not vested and exercisable on the date of his or her termination
of employment.
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(v) Independent Directors. An Option received by an
Independent Director of the Company pursuant to Section 6(k) of the
Plan shall vest and become exercisable in accordance with Section 5
hereof regardless of such Grantee's continued service as a member of
the Board of Directors.
For purposes of this Section:
(i) "Termination of employment" shall mean the
termination of a Grantee's employment with the Company or an Affiliate.
A Grantee employed by a subsidiary shall also be deemed to have a
termination of employment if the subsidiary ceases to be an Affiliate
of the Company, and the Grantee does not immediately thereafter become
an employee of the Company or another Affiliate. A Grantee who is a
consultant or advisor shall be considered to have terminated employment
when substantial and important services, as determined by the
Committee, are no longer provided to the Company by the Grantee.
(ii) "Retirement" shall mean termination of
employment on or after attaining the age established by the Company as
the normal retirement age in any unexpired employment agreement between
the Grantee and the Company and/or an Affiliate, or, in the absence of
such an agreement, the normal retirement age under the
defined benefit tax-qualified retirement plan or, if none, the defined
contribution tax-qualified retirement plan, sponsored by the Company or
an Affiliate in which the Grantee participates.
(iii) A Grantee's "estate" shall mean his or her
legal representatives upon his or her death or any person who acquires
the right to exercise the Option by reason of the Grantee's death. The
Committee may in its discretion require the transferee of a Grantee to
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supply it with written notice of the Grantee's death, a copy of the
will or such other evidence as the Committee deems necessary to
establish the validity of the transfer of the Option.
7. Transferability of Option and Stock Acquired Upon Exercise
of Option. The Option shall be transferable only by will or the laws of descent
and distribution and shall be exercisable during the Grantee's lifetime only by
the Grantee or by the guardian or legal representative of the Grantee. The
Committee may, in its discretion, require the Grantee's guardian or legal
representative to supply it with such evidence as the Committee deems necessary
to establish the authority of the guardian or legal representative to exercise
the Option on behalf of the Grantee. Except as limited by applicable securities
laws and the provisions of Section 8 hereof, shares of Common Stock acquired
upon exercise of the Option shall be freely transferable.
8. Securities Law Requirements.
(a) If required by the Company, the notice of exercise of the
Option shall be accompanied by the Grantee's written representation: (i) that
the stock being acquired is purchased for investment and not for resale or with
a view to the distribution thereof; (ii) acknowledging that such stock has not
been registered under the Securities Act of 1933, as amended (the "1933 Act");
and (iii) agreeing that such stock may not be sold or transferred unless either
there is an effective Registration Statement for it under the 1933 Act, or in
the opinion of counsel for the Company, such sale or transfer is not in
violation of the 1933 Act.
(b) This Option not shall be exercisable in whole or in part,
nor shall the Company be obligated to sell any shares of Common Stock subject to
such Option, if such exercise and sale may, in the opinion of counsel for the
Company, violate the 1933 Act (or other federal or state statutes having similar
requirements), as it may be in effect at that time.
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(c) The Option is subject to the further requirement that, if
at any time the Committee shall determine in its discretion that the listing or
qualification of the shares of Common Stock subject to such Option under any
securities exchange requirements or under any applicable law, or the consent or
approval of any governmental regulatory body, is necessary as a condition of, or
in connection with, the granting of such Option or the issuance of shares
thereunder, such Option may not be exercised in whole or in part, unless such
listing, qualification, consent or approval shall have been effected or obtained
free of any conditions not acceptable to the Committee.
(d) No person who acquires shares of Common Stock pursuant to
this Agreement may, during any period of time that such person is an affiliate
of the Company, within the meaning of the rules and regulations of the
Securities and Exchange Commission under the 1933 Act, sell such shares of
Common Stock, unless such offer and sale is made pursuant to (i) an effective
registration statement under the 1933 Act, which is current and includes the
shares to be sold, or (ii) an appropriate exemption from the registration
requirements of the 1933 Act, such as that set forth in Rule 144 promulgated
under the 1933 Act.
(e) With respect to individuals subject to Section 16 of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), transactions under
this Agreement are intended to comply with all applicable conditions of Rule
16b-3, or its successors under the 1934 Act. To the extent any provision of the
Agreement or action by the Committee fails to so comply, the Committee may
determine, to the extent permitted by law, that such provision or action shall
be null and void.
9. No Obligation to Exercise Option. The granting of the
Option shall impose no obligation upon the Grantee (or upon a transferee of a
Grantee) to exercise the Option.
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10. No Limitation on Rights of the Company. The grant of the
Option shall not in any way affect the right or power of the Company to make
adjustments, reclassification, or changes in its capital or business structure,
or to merge, consolidate, dissolve, liquidate, sell or transfer all or any part
of its business or assets.
11. Plan and Agreement Not a Contract of Employment. Neither
the Plan nor this Agreement is a contract of employment, and no terms of
employment of the Grantee shall be affected in any way by the Plan, this
Agreement or related instruments except as specifically provided therein.
Neither the establishment of the Plan nor this Agreement shall be construed as
conferring any legal rights upon the Grantee for a continuation of employment,
nor shall it interfere with the right of the Company or any Affiliate to
discharge the Grantee and to treat him or her without regard to the effect that
such treatment might have upon him or her as the holder of the Option.
12. Grantee to Have No Rights as a Stockholder. The Grantee
shall not have any rights as a stockholder with respect to any shares of Common
Stock subject to the Option prior to the date on which he or she is recorded as
the holder of such shares on the records of the Company. The Grantee shall not
have the rights of a stockholder until he or she has paid in full the exercise
price.
13. Notice. Any notice or other communication required or
permitted hereunder shall be in writing and shall be delivered personally, or
sent by certified, registered or express mail, postage prepaid. Any such notice
shall be deemed given when so delivered personally or, if mailed, three days
after the date of deposit in the United States mail, in the case of the Company
to 21557 Xxxxxxxxx Xxxx, X. X. Xxx 0000, Xxxxxxxxxx, Xxxxxxxx, 00000-0000,
Attention: Xxxxx X. Xxxxxxxxxxxx and, in the case of the Grantee, to its address
set forth on the signature page hereto
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or, in each case, to such other address as may be designated in a notice given
in accordance with this Section.
14. Governing Law. This Agreement shall be construed and
enforced in accordance with, and governed by, the laws of the State of Delaware,
determined without regard to its conflict of law rules.
15. Plan Document Controls. The rights herein granted are in
all respects subject to the provisions set forth in the Plan to the same extent
and with the same effect as if set forth fully herein. In the event that the
terms of this Agreement conflict with the terms of the Plan document, the Plan
document shall control.
[signature page follows]
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IN WITNESS WHEREOF, the Company and the Grantee have duly
executed this Agreement as of the date first written above.
XXXX CORPORATION
By: __________________________________
Its: _________________________________
______________________________________
[Grantee's Signature]
Grantee's Name and Address for notices
hereunder:
______________________________________
______________________________________
______________________________________
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