Exhibit 10.24
MICRON HOLDINGS, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
(Performance-Vesting)
THIS AGREEMENT (the "Agreement"), is made effective as of the ___ day of
May, 2004 (the "Date of Grant"), between Micron Holdings, Inc., a Delaware
corporation (the "Company"), and _____________ (the "Participant"):
R E C I T A L S:
WHEREAS, the Company has adopted the Micron Holdings, Inc. 2004 Stock
Option Plan (the "Plan"), which Plan is incorporated herein by reference and
made a part of this Agreement. Capitalized terms not otherwise defined herein
shall have the meanings given thereto in the Plan; and
WHEREAS, the Committee has determined that it would be in the best
interests of the Company and its shareholders to grant the Option to the
Participant pursuant to the Plan and the terms set forth herein.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the parties agree as follows:
1. Grant of the Option. The Company hereby grants to the Participant
the right and option (the "Option") to purchase, on the terms and conditions
hereinafter set forth, all or any part of an aggregate of __________ Shares,
subject to adjustment as set forth in the Plan. The purchase price of the Shares
subject to the Option shall be $_____ per Share (the "Option Price").
2. Vesting.
(a) Subject to the earlier termination or cancellation of the
Option as set forth herein, the Option shall vest and become exercisable upon
the earliest to occur of (i) a Transaction, (ii) a Qualified IPO in which the
TRP Parties and the GSCP Parties (as each of these capitalized terms is defined
in the Stockholders' Agreement) participate (either concurrently or as a
secondary sale), (iii) a sale by the TRP Parties and the GSCP Parties of at
least 50% of the Shares held by them in the aggregate or (iv) a recapitalization
of the Company (each of (i), (ii), (iii) or (iv), an "Exit Event"), but, in the
case of any such Exit Event, only if such action achieves at least a 20% IRR
(calculated in accordance with Exhibit A) to the TRP Parties and the GSCP
Parties Amount on a fully diluted basis. If an Exit Event occurs that does not
result in a 20% IRR to the TRP Parties and the GSCP Parties Amount on a fully
diluted basis, the Option shall, immediately prior to such Exit Event, be
automatically cancelled without payment of consideration therefor.
(b) If the Participant's Employment is terminated by the Company
for Cause, as defined in Section 3(b) below, the Option shall, whether or not
vested, be automatically canceled without payment of consideration therefor.
(c) If the Participant's Employment with the Company terminates
for any reason other than Cause, the Option shall, if then unvested, be canceled
by the Company without payment of consideration therefor, and if the Option is
then vested, it shall remain exercisable for the period set forth in Section
3(a).
3. Exercise of Option.
(a) Period of Exercise. Subject to the provisions of the Plan and
this Agreement, the Participant may exercise the Option, to the extent then
vested, at any time prior to the earliest to occur of:
(i) the tenth anniversary of the Date of Grant;
(ii) one year following the date of the Participant's
termination of Employment due to death or Disability; and
(iii) 90 days following the date of the Participant's
termination of Employment by the Company without Cause (other than due to
Disability) or due to the Participant's resignation for any reason (including
normal or early retirement).
(b) Definitions. For purposes of this Agreement:
(i) "Cause" shall mean (A) the Participant's continued
failure to perform the Participant's duties (other than as a result of the
Participant's Disability or permitted leave of absence) for a period of 10 days
following written notice by the Company to the Participant of such failure, (B)
material dishonesty in the performance of the Participant's duties, (C) the
Participant's conviction of, or plea of nolo contendere to, (x) a felony (other
than a traffic violation) or (y) any crime (whether or not a felony) involving
dishonesty, fraud, embezzlement or breach of trust, (D) the Participant's
willful act or omission which is injurious to the financial condition or
business reputation of the Company or its Affiliates or (E) the Participant's
material breach of any employment agreement with the Company to which the
Participant is a party or any noncompetition, confidentiality or intellectual
property agreements or covenants relating to the Company or its Affiliates to
which the Participant is a party or by which the Participant is otherwise bound;
and
(ii) "Disability" shall mean (i) the Participant's
"disability" as determined under the long-term disability plan in which the
Participant participates, or (ii) if there is no such plan, the Participant's
physical or mental incapacitation that makes the Participant unable, for a
period of six months in any twelve-month period, to perform the Participant's
duties.
(c) Method of Exercise.
(i) Subject to Section 3(a), the Option may be exercised by
delivering to the Company at its principal office written notice of intent so to
exercise; provided that the
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Option may be exercised with respect to whole Shares only. Such notice shall
specify the number of Shares for which the Option is being exercised (the
"Purchased Shares") and shall be accompanied by payment in full of the Option
Price in cash or by check or wire transfer, provided, however, that with the
consent of the Committee, payment of such aggregate exercise price may instead
be made, in whole or in part, by (i) the delivery to the Company of a
certificate or certificates representing Shares, duly endorsed or accompanied by
a duly executed stock power, which delivery effectively transfers to the Company
good and valid title to such shares, free and clear of any pledge, commitment,
lien, claim or other encumbrance (such shares to be valued on the basis of the
aggregate Fair Market Value thereof on the date of such exercise), or (ii) by a
reduction in the number of Purchased Shares to be issued upon such exercise
having a Fair Market Value on the date of exercise equal to the aggregate
exercise price in respect of the Purchased Shares, provided that the Company is
not then prohibited from purchasing or acquiring such Shares. The Participant
shall not have any rights to dividends or other rights of a stockholder with
respect to Shares subject to the Option until the Participant has given written
notice of exercise of the Option, paid in full for such Shares and, if
applicable, has satisfied any other conditions imposed by the Committee or
pursuant to the Plan or this Agreement.
(ii) Notwithstanding any other provision of the Plan or this
Agreement to the contrary, the Option may not be exercised prior to the
completion of any registration or qualification of the Option or the Shares
under applicable state and federal securities or other laws, or under any ruling
or regulation of any governmental body or national securities exchange that the
Committee shall in its sole discretion determine to be necessary or advisable,
unless an exemption to such registration or qualification is available and
satisfied.
(iii) Upon the Company's determination that the Option has
been validly exercised as to any of the Shares, the Company shall issue
certificates in the Participant's name for such Shares.
(iv) In the event of the Participant's death, the Option
shall, if then vested, remain exercisable by the Participant's executor or
administrator, or the person or persons to whom the Participant's rights under
this Agreement shall pass by will or by the laws of descent and distribution as
the case may be, to the extent set forth in Section 3(a) (and the term
"Participant" shall be deemed to include such heir or legatee). Any such heir or
legatee of the Participant shall take rights herein granted subject to the terms
and conditions hereof.
(v) In consideration of the grant of this Option, the
Participant agrees that, as a condition to the exercise of any option to
purchase Shares (whether this Option or any other option), the Participant
shall, with respect to such Shares, become a party to a stockholders' agreement
in the form then being used by the Company.
4. No Right to Continued Employment; No Claims to Compensation.
(a) The granting of the Option evidenced hereby and this Agreement
shall impose no obligation on the Company or any Affiliate to continue the
Employment of the Participant and shall not lessen or affect the Company's or
its Affiliates' right to terminate the Employment of such Participant.
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(b) In consideration of the grant of the Option, the Participant
acknowledges and agrees that the Participant has no claims relating to periods
prior to the Date of Grant against the Company or any of its subsidiaries or
Affiliates (or the predecessors of any of the foregoing) for unpaid cash
compensation, other than (i) payment of unpaid base salary earned since the most
recently ended payroll date and (ii) reimbursement of unreimbursed business
expenses, any and all such claims (other than those contemplated by clause (i)
or (ii)) being hereby waived.
5. Legend on Certificates. The certificates representing the Shares
purchased by exercise of the Option shall be subject to such stop transfer
orders and other restrictions as the Committee may deem advisable under the Plan
or the rules, regulations, and other requirements of the Securities and Exchange
Commission, any stock exchange upon which such Shares are listed, and any
applicable Federal or state laws, and the Committee may cause a legend or
legends to be put on any such certificates to make appropriate reference to such
restrictions.
6. Transferability. The Option may not be assigned, alienated, pledged,
attached, sold or otherwise transferred or encumbered by the Participant
otherwise than by will or by the laws of descent and distribution, and any such
purported assignment, alienation, pledge, attachment, sale, transfer or
encumbrance shall be void and unenforceable against the Company or any
Affiliate; provided that the designation of a beneficiary shall not constitute
an assignment, alienation, pledge, attachment, sale, transfer or encumbrance. No
such permitted transfer of the Option to heirs or legatees of the Participant
shall be effective to bind the Company unless the Committee shall have been
furnished with written notice thereof and a copy of such evidence as the
Committee may deem necessary to establish the validity of the transfer and the
acceptance by the transferee or transferees of the terms and conditions hereof.
During the Participant's lifetime, the Option is exercisable only by the
Participant.
7. Withholding. The Participant shall be required to pay to the Company
or any Affiliate, and the Company shall have the right and is hereby authorized
to withhold, any applicable withholding taxes in respect of the Option, its
exercise or any payment or transfer under, or with respect to, the Option and to
take such other action as may be necessary in the opinion of the Committee to
satisfy all obligations for the payment of such withholding taxes.
8. Securities Laws. Upon the acquisition of any Shares pursuant to the
exercise of the Option, the Participant will make or enter into such written
representations, warranties and agreements as the Committee may reasonably
request in order to comply with applicable securities laws or with this
Agreement.
9. Notices. Any notice necessary under this Agreement shall be
addressed to the Company in care of its Secretary at the principal executive
office of the Company and to the Participant at the address appearing in the
personnel records of the Company for the Participant or to either party hereto
at such other address as either party may hereafter designate in writing to the
other. Any such notice shall be deemed effective upon receipt thereof by the
addressee.
10. Choice of Law. This agreement shall be governed by and construed in
accordance with the laws of the state of Delaware without regard to principles
of conflicts of laws.
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11. Option Subject to Plan. By entering into this Agreement, the
Participant agrees and acknowledges that the Participant has received and read a
copy of the Plan. The Option is subject to the Plan. The terms and provisions of
the Plan, as it may be amended from time to time, are hereby incorporated herein
by reference. In the event of a conflict between any term or provision contained
herein and a term or provision of the Plan, the applicable terms and provisions
of the Plan will govern and prevail.
12. Signature in Counterparts. This Agreement may be signed in
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
effective as of the Date of Grant.
MICRON HOLDINGS, INC.
By:_______________________________________
Name:
Title:
Agreed and acknowledged as
of the date first above written:
_____________________________________
Participant's Name
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Exhibit A
In connection with an Exit Event, the Committee shall perform the following
calculations:
Step 1) The Committee shall determine (i) the aggregate
proceeds, including any cash, securities, partnership or limited liability
company interests or other rights or property, that the TRP Parties and the GSCP
Parties will receive in respect of their investment in the Company as a result
of the transaction or transactions resulting in the Exit Event and (ii) the
value of the remaining portion of their investment in the Company not disposed
of in the transaction or transactions resulting in the Exit Event, implied by
the value of the actual proceeds received as a result of the transaction or
transactions resulting in the Exit Event (and treating such remaining portion as
proceeds), in each case net of (a) any fees, costs or expenses incurred or paid
by them and (b) any other payments required to be made by them, in each case in
connection with the Exit Event (the "Net Transaction Proceeds").
Step 2) The Committee shall also determine the sum of all
other proceeds (excluding any Net Transaction Proceeds) received by the TRP
Parties and the GSCP Parties in respect of their investment in the Company, net
of (a) any fees, costs or expenses incurred or paid by them and (b) any other
payments made by them, in each case on or prior to the occurrence of the Exit
Event in connection with the receipt of those proceeds (the "Net Historical
Proceeds" and together with the Net Transaction Proceeds, the "Net Proceeds").
Step 3) The Committee shall then determine whether the amount
by which the Net Proceeds in excess of the aggregate capital contributions made
by the TRP Parties and the GSCP Parties to the Company on or prior to the Exit
Event achieved an IRR (as of the consummation of the Exit Event) of at least 20%
with respect to the investment in the Company by each of them (a "20% IRR").
The amount of "proceeds" received by the TRP Parties and the GSCP Parties shall
be (a) in the case of cash received by them, the amount of such cash and (b) in
the case of securities, partnership or limited liability company interests or
other rights or property ("non-cash proceeds"), the fair market value of such
non-cash proceeds as determined by the Committee.
In the event that one or more of the TRP Parties or the GSCP Parties transfers
its or their interests prior to the occurrence of an Exit Event, the above
calculations shall be calculated assuming it or they had not transferred such
interests, had received all distributions and had made all contributions, in
each case applicable to such interests subsequent to such transfer.
For purposes of this Exhibit A, "IRR" shall mean, with respect to an investment,
the discount rate at which the net present value of all capital in-flows
relating to such investment is equal to the net present value of all cash
out-flows (whether from operating cash flow or capital transaction proceeds)
from such investment. The TRP Parties and the GSCP Parties shall be deemed to
have received a specified IRR in connection with an Exit Event with respect to
capital contributions to the Company if, in connection with or prior to the Exit
Event, they receive a return of all of such capital contributions made by them
plus a cumulative return on such capital contributions at the specified rate per
annum, compounded monthly, calculated commencing on
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the date on which such capital contributions are made and compounded monthly to
the extent not paid on a current basis, taking into account the timing and
amounts of all previous distributions made by the Company to them and the timing
and amounts of all previous capital contributions made to the Company by them.
In the event of an Exit Event that does not result in the disposition by the TRP
Parties and the GSCP Parties of all of the interests in the Company held by
them, IRR shall be determined on a hypothetical basis as if such a disposition
had occurred, as described in Step 1. Any cash funding of the Company by the TRP
Parties and the GSCP Parties, regardless of form (equity, debt or otherwise),
shall be taken into account for purposes of calculating IRR.
All determinations by the Committee hereunder shall be determined in good faith.
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