EMCORE CORPORATION INCENTIVE STOCK OPTION AWARD AGREEMENT
Exhibit
(d)(2)
EMCORE
CORPORATION
This
Incentive Stock Option Award Agreement (this “Agreement”), dated «GrantDate», is made between
EMCORE Corporation (the “Company”) and «FirstName» «LastName» (the
“Optionee”). All capitalized terms used herein that are not defined
herein shall have the respective meanings given to such terms in the EMCORE
Corporation 2000 Stock Option Plan (the “Plan”).
W I T N E
S S E T H :
1. Grant of
Option. Pursuant to the provisions of the Plan, the Company
hereby grants to the Optionee, subject to the terms and conditions of the Plan
and subject further to the terms and conditions herein set forth, the right and
option to purchase from the Company all or any part of an aggregate of «optionsgranted»
shares of the common stock of the Company, without par value (the “Stock”), at a
per share purchase price equal to $«grantprice»
(the “Option”), such Option to be exercisable as hereinafter
provided. The Option shall be treated as an “incentive stock option,”
as defined in Section 422 of the Code.
2. Terms and
Conditions. It is understood and agreed that the Option
evidenced hereby is subject to the following terms and conditions:
(a) Expiration
Date. The Option shall expire ten (10) years after the date
indicated above.
(b) Exercise of
Option. (i) Subject to the other terms of this
Agreement and the Plan, the Option may be exercised on or after the dates
indicated below as to that percentage of the total shares of Stock subject to
the Option as set forth below opposite each such date, plus any shares of Stock
as to which the Option could have been exercised previously, but was not so
exercised.
|
Date
|
Percentage
|
|
«vest1»
|
25%
|
|
«vest2»
|
25%
|
|
«vest3»
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25%
|
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«vest4»
|
25%
|
(ii) Any
exercise of all or any part of the Option shall be accompanied by Notice to the
Company specifying the number of shares of Stock as to which the Option is being
exercised. Upon the valid exercise of all or any part of the Option,
a certificate (or certificates) for the number of shares of Stock with respect
to which the Option is exercised shall be issued in the name of the Optionee,
subject to the other terms and conditions of this Agreement and the
Plan. Notation of any partial exercise shall be made by the Company
on Schedule I
attached hereto.
(c) Consideration. At
the time of any exercise of the Option, the purchase price of the shares of
Stock as to which the Option shall be exercised shall be paid to the Company in
(i) in United States dollars by personal check, bank draft or money order; (ii)
if permitted by applicable law and approved by the Committee, with Stock, duly
endorsed for transfer to the Company, already owned by the Optionee (or by the
Optionee and his spouse jointly) for at least six (6) months prior to the tender
thereof and not used for another such exercise during such six (6) month period,
having a total Fair Market Value on the date of such exercise of the Option,
equal to such purchase price of such shares of Stock; (iii) if permitted by
applicable law, in accordance with a cashless exercise or broker-assisted
exercise procedure approved by the Committee permitting the Optionee to
authorize a broker or dealer to sell shares of Stock (or a sufficient portion of
such shares) that may be acquired upon exercise of the Option and pay to the
Company in cash a portion of the sale proceeds equal to such purchase price of
the shares of Stock for which the Option is so exercised and any taxes required
to be paid as a result of such exercise; or (iv) a combination of the
consideration provided for in the foregoing clauses (i) through
(iii).
(d) Exercise Upon Death,
Disability or Termination of Employment. The Option shall
terminate upon the termination, for any reason, of the Optionee’s employment
with the Company or a Subsidiary, and no shares of Stock may thereafter be
purchased under the Option, except as follows:
(i) In
the event of the death of the Optionee while an employee of the Company or a
Subsidiary, the Option, to the extent exercisable in accordance with Section
2(b) hereof or the Plan at the time of his death, may be exercised after the
Optionee’s death by his designated beneficiary, his heir, the legal
representative of the Optionee’s estate or the legatee of the Optionee under his
last will until the earlier to occur of the second anniversary of the Optionee’s
death and the stated expiration date of the Option.
(ii) If
the Optionee’s employment with the Company or a Subsidiary shall terminate by
reason of permanent disability (as defined in the last sentence of this Section
2(d)(ii)), the Option, to the extent exercisable in accordance with Section 2(b)
hereof or the Plan upon such termination of employment, may be exercised after
such termination until the earlier to occur of the first anniversary of such
termination and the stated expiration date of the Option. For
purposes of this Agreement, “permanent disability” shall mean “permanent and
total disability” as set forth in Section 22(e)(3) of the Code and an inability
to perform duties and services as an employee of the Company or a Subsidiary by
reason of a medically determinable physical or mental impairment, supported by
medical evidence, which can be expected to last for a continuous period of not
less than eight months, as determined by the Committee in its good faith
discretion.
(iii) If
the Company or a Subsidiary terminates the Optionee’s employment with the
Company or such Subsidiary or the Optionee voluntarily terminates his employment
with the Company or a Subsidiary, and, in either case, such termination is not
“for cause” (as determined by the Committee in its good faith discretion), the
Option, to the extent exercisable in accordance with Section 2(b) hereof or the
Plan upon such termination of employment, may be exercised after such
termination until the earlier to occur of the expiration of ninety (90) days
following such termination and the stated expiration date of the
Option.
(iv) If
the Optionee dies during the one (1) year or ninety (90) day period following
termination of his employment specified in paragraphs (ii) or (iii) of this
Section 2(d), the Option, to the extent the Option would have been exercisable
pursuant to such applicable paragraph (ii) or (iii) as of the date of the
Optionee’s death, may be exercised after the Optionee’s death by his designated
beneficiary, his heir, the legal representative of his estate or the legatee of
the Optionee under his last will until the earlier to occur of the second
anniversary of the Optionee’s death and the stated expiration date of the
Option.
(v) If
the Optionee’s employment is terminated by the Company or a Subsidiary “for
cause” or the Optionee’s employment with the Company or a Subsidiary terminates
under any circumstances not otherwise described in this Section 2(d), the Option
shall automatically, without any further action required by the Company,
terminate on the date of such termination of employment and shall cease to
thereafter be exercisable with respect to any shares of Stock.
(e) Nontransferability. The
Option shall not be transferable otherwise than by will or the laws of descent
and distribution, and is exercisable, during the lifetime of the Optionee, only
by him; provided that
the Option may be exercised after the Optionee’s death by
the beneficiary most recently named by the Optionee in a written
designation thereof filed by the Optionee with the Company, in accordance with
the Plan.
(f) Withholding
Taxes. At the time of receipt of Stock upon the exercise of
all or any part of the Option, the Optionee shall be required to pay to the
Company in cash (or make other arrangements, in accordance with Section 9 of the
Plan, for the satisfaction of) any taxes of any kind required by law to be
withheld with respect to such Stock; provided, however, such tax withholding
obligations may be met, in whole or in part, pursuant to procedures, if any,
approved by the Committee in its discretion and in accordance with applicable
law, by (i) the withholding by the Company of Stock otherwise deliverable to the
Optionee pursuant to the Option with a Fair Market Value on the date of such
exercise equal to such tax liability (provided, however, that the amount of
any Stock so withheld shall not exceed the amount necessary to satisfy required
Federal, state, local and foreign withholding obligations using the minimum
statutory rate) and/or (ii) tendering to the Company Stock, duly endorsed for
transfer to the Company, owned by the Optionee (or by the Optionee and his
spouse jointly) and acquired more than six (6) months prior to such tender with
a Fair Market Value on the date of such exercise equal to such tax
liability. In no event shall Stock be delivered to the Optionee until
the Optionee has paid to the Company in cash, or made arrangements satisfactory
to the Company regarding the payment of, the amount of any taxes of any kind
required by law to be withheld with respect to the Stock subject to the Option,
and the Company shall have the right to deduct any such taxes from any payment
of any kind otherwise due to the Optionee.
(g) No Rights as
Stockholder. The Optionee shall not become the beneficial
owner of the shares of Stock subject to the Option, nor have any rights to
dividends or other rights as a shareholder with respect to any such shares,
until the Optionee has exercised the Option in accordance with the provisions
hereof and of the Plan.
(h) No Right to Continued
Employment. The Option shall not confer upon the Optionee any
right to be retained in the service of the Company or a Subsidiary, nor restrict
in any way the right of the Company or any Subsidiary, which right is hereby
expressly reserved, to terminate his employment at any time with or without
cause.
(i) Inconsistency with
Plan. Notwithstanding any provision herein to the contrary,
the Option provides the Optionee with no greater rights or claims than are
specifically provided for under the Plan. If and to the extent that
any provision contained in this Agreement is inconsistent with the Plan, the
Plan shall govern.
(j) Compliance with Laws and
Regulations. The Option and the obligation of the Company to
sell and deliver shares of Stock hereunder shall be subject in all respects to
(i) all applicable Federal and state laws, rules and regulations and (ii) any
registration, qualification, approvals or other requirements imposed by any
government or regulatory agency or body which the Board shall, in its sole
discretion, determine to be necessary or applicable. Moreover, the
Option may not be exercised if its exercise, or the receipt of shares of Stock
pursuant thereto, would be contrary to applicable law.
3. Investment
Representation. If at the time of exercise of all or part of
the Option the Stock is not registered under the Securities Act and/or there is
no current prospectus in effect under the Securities Act with respect to the
Stock, the Optionee shall execute, prior to the issuance of any shares of Stock
to the Optionee by the Company, an agreement (in such form as the Committee may
specify) in which the Optionee, among other things, represents, warrants and
agrees that the Optionee is purchasing or acquiring the shares acquired under
this Agreement for the Optionee’s own account, for investment only and not with
a view to the resale or distribution thereof, that the Optionee has knowledge
and experience in financial and business matters, that the Optionee is capable
of evaluating the merits and risks of owning any shares of Stock purchased or
acquired under this Agreement, that the Optionee is a person who is able to bear
the economic risk of such ownership and that any subsequent offer for sale or
distribution of any of such shares shall be made only pursuant to (i) a
registration statement on an appropriate form under the Securities Act, which
registration statement has become effective and is current with regard to the
shares being offered or sold, or (ii) a specific exemption from the registration
requirements of the Securities Act, it being understood that to the extent any
such exemption is claimed, the Optionee shall, prior to any offer for sale or
sale of such shares, obtain a prior favorable written opinion, in form and
substance satisfactory to the Committee, from counsel for or approved by the
Committee, as to the applicability of such exemption thereto.
4. Optionee Bound by
Plan. The Optionee hereby acknowledges receipt of a copy of
the Plan and agrees to be bound by all of the terms and provisions thereof,
including the terms and provisions adopted after the granting of the Option but
prior to the complete exercise hereof, subject to the last paragraph of Section
14 of the Plan as in effect on the date hereof.
5. Notices. Any
notice hereunder shall be in accordance with the Plan, and, if to the Company,
shall be in accordance with the Plan, and, if to the Optionee, shall be
addressed to him at the address set forth below his signature hereon, subject to
the right of either party to designate at any time hereafter in writing some
other address.
6. Governing
Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of New
Jersey applicable to contracts executed and to be performed entirely within such
state, without regard to the conflict of law provisions thereof.
7. Modification. Except
as otherwise permitted by the Plan, this Agreement may not be modified or
amended, nor may any provision hereof be waived, in any way except in writing
signed by the party against whom enforcement thereof is sought.
8. Counterparts. This
Agreement has been executed in two counterparts, each of which shall constitute
one and the same instrument.
IN
WITNESS WHEREOF, EMCORE Corporation has caused this Agreement to be executed by
a duly authorized officer and the Optionee has executed this Agreement, both as
of the day and year first above written.
EMCORE
Corporation
Date:
______________ By__________________________
Name:
Title:
Date:
______________ _____________________________
«FirstName»
«LastName»
Address: ______________________
______________________
______________________
Schedule
I
NOTATIONS
AS TO PARTIAL EXERCISE
|
Date
of Exercise
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Number
of Share of Stock Purchased
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Balance
of Shares of Stock on Option
|
Authorized
Signature
|
Notation
Date
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