EXHIBIT 10.3
BRIGHT HORIZONS FAMILY SOLUTIONS, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
(DIRECTOR)
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (this "Agreement") is made and
entered into as of this _____ day of _______________, 20___ (the "Grant Date"),
by and between Bright Horizons Family Solutions, Inc., a Delaware corporation
(together with its Subsidiaries and Affiliates, the "Company"), and
__________________ (the "Optionee"). Capitalized terms not otherwise defined
herein shall have the meaning ascribed to such terms in the Bright Horizons
Family Solutions, Inc. 2006 Equity and Incentive Plan (the "Plan").
WHEREAS, the Company has adopted the Plan, which permits the issuance of
stock options for the purchase of shares of the common stock, par value $0.01
per share, of the Company (the "Shares"); and
WHEREAS, the Company desires to afford the Optionee an opportunity to
purchase Shares as hereinafter provided in accordance with the provisions of the
Plan;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, intending to be legally
bound hereby, agree as follows:
1. Grant of Option.
(a) The Company grants as of the date of this Agreement the right and
option (the "Option") to purchase __________ Shares, in whole or in part (the
"Option Stock"), at an exercise price of ___________________________________ and
No/100 Dollars ($_________) per Share, on the terms and conditions set forth in
this Agreement and subject to all provisions of the Plan. The Optionee, holder
or beneficiary of the Option shall not have any of the rights of a shareholder
with respect to the Option Stock until such person has become a holder of such
Shares by the due exercise of the Option and payment of the Option Payment (as
defined in Section 3 below) in accordance with this Agreement.
(b) The Option shall be a non-qualified stock option. In order to
provide the Company with the opportunity to claim the benefit of any income tax
deduction which may be available to it upon the exercise of the Option, and in
order to comply with all applicable federal or state tax laws or regulations,
the Company may take such action as it deems appropriate to insure that, if
necessary, all applicable federal, state or other taxes are withheld or
collected from the Optionee.
2. Exercise of Option. Except as provided herein and subject to such other
exceptions as may be determined by the Committee in its discretion, this Option
shall become vested and exercisable with respect to [______] percent (____%) of
the Option Stock granted hereby on [each of] the [_______] anniversary[ies] of
the date hereof if and only if Optionee has continuously
provided services as a director of the Company from the date of this Agreement
through and including such respective anniversary.
(a) Death, Disability or Retirement. Notwithstanding the above, each
outstanding Option shall vest in full upon the event of Optionee's death,
Disability or Retirement. If Optionee elects Early Retirement (as defined
below), this Option shall vest as though Optionee had elected Retirement,
provided that the Optionee's Early Retirement is with the consent of the Board.
Notwithstanding any accelerated vesting on account of Grantee's Retirement or
Early Retirement, the Option will not become exercisable until the third
anniversary of the Grant Date. "Early Retirement" means retirement, with the
express consent of the Company at or before the time of such retirement, from
active service as a director of the Company provided the Optionee has reached
the age of fifty (50) and has served on the Board for at least fifteen (15)
years at the time of such retirement. For purposes of this Agreement, the
Optionee is "Disabled" under circumstances set forth in the Plan or if Optionee
otherwise is permanently unable to perform the essential duties of the
Optionee's occupation.
(b) Change in Control. Notwithstanding the foregoing, if, within one
year following a Change in Control, Optionee's service as a director of the
Company (or its successor) is terminated by reason of (i) death; (ii)
Disability; (iii) Retirement or Early Retirement; (iv) for Good Reason by the
Optionee; or (v) involuntary termination by the Company for any reason other
than for Cause, this Option shall automatically become vested and exercisable
with respect to all Option Stock awarded hereunder immediately prior to such
termination.
3. Manner of Exercise. The Option may be exercised in whole or in part at
any time within the period permitted hereunder for the exercise of the Option,
with respect to whole Shares only, by serving written notice of intent to
exercise the Option delivered to the Company at its principal office (or to the
Company's designated agent), stating the number of Shares to be purchased, the
person or persons in whose name the Shares are to be registered and each such
person's address and social security number. Such notice shall not be effective
unless accompanied by payment in full of the Option Price for the number of
Shares with respect to which the Option is then being exercised (the "Option
Payment") and cash equal to the required withholding taxes (if any). The Option
Payment shall be made in cash or cash equivalents or in whole Shares that have
been held by the Optionee for at least six (6) months prior to the date of
exercise valued at the Shares' Fair Market Value on the date of exercise (or
next succeeding trading date if the date of exercise is not a trading date) or
the actual sales price of such Shares, together with any applicable withholding
taxes, or by a combination of such cash (or cash equivalents) and Shares. The
Optionee shall not be entitled to tender Shares pursuant to successive,
substantially simultaneous exercises of the Option or any other stock option of
the Company. Subject to applicable securities laws, the Optionee may also
exercise the Option by delivering a notice of exercise of the Option and by
simultaneously selling the Shares of Option Stock thereby acquired pursuant to a
brokerage or similar agreement approved in advance by proper officers of the
Company, using the proceeds of such sale as payment of the Option Payment,
together with any applicable withholding taxes. For purposes of this Agreement,
"Fair Market Value" means the closing sales price of the Shares on the NASDAQ
National Market or the actual sales price of such Shares.
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4. Termination of Option. The Option will expire seven (7) years from the
date of grant of the Option (the "Term") with respect to any then unexercised
portion thereof, unless terminated earlier as set forth below:
(a) Termination by Death. If the Optionee's service as a director of
the Company terminates by reason of death, or if the Optionee dies within three
(3) months after termination of such service for any reason other than Cause,
this Option may thereafter be exercised by the legal representative of the
estate or by the legatee of the Optionee under the will of the Optionee, for a
period of one (1) year from the date of death or until the expiration of the
Term of the Option, whichever period is the shorter.
(b) Termination by Reason of Disability. If the Optionee's service as
a director of the Company terminates by reason of Disability, this Option may
thereafter be exercised by the Optionee or personal representative or guardian
of the Optionee, as applicable, for a period of three (3) years from the date of
such termination of service or until the expiration of the Term of the Option,
whichever period is the shorter.
(c) Termination by Retirement or Early Retirement. If Optionee's
service as a director of the Company terminates by reason of Retirement or Early
Retirement, this Option may be exercised by the Optionee during the period
beginning on the later of the date of such termination of services or the date
on which the Option becomes exercisable, and ending on the earlier of one year
thereafter or at the expiration of the Term of the Option.
(d) Termination for Cause. If the Optionee's service as a director of
the Company is terminated for Cause, this Option shall terminate immediately and
become void and of no effect.
(e) Other Termination. If the Optionee's service as a director of the
Company is terminated for any reason other than for Cause, death, Disability or
Retirement or Early Retirement, this Option may be exercised, to the extent the
Option was exercisable at the time of such termination, by the Optionee for a
period of three (3) months from the date of such termination of service or the
expiration of the Term of the Option, whichever period is the shorter.
5. No Right to Continued Service. The grant of the Option shall not be
construed as giving Optionee the right to be retained as a director of the
Company.
6. Adjustment to Option Stock. The Board shall make adjustments in the
terms and conditions of, and the criteria included in, this Option in
recognition of unusual or nonrecurring events (including, without limitation,
the events described in Section 4.2 of the Plan) affecting the Company or the
financial statements of the Company or of changes in applicable laws,
regulations or accounting principles, whenever the Board determines that such
adjustments are appropriate in order to prevent dilution or enlargement of the
benefits or potential benefits intended to be made available under the Plan.
7. Amendments to Option. Subject to the restrictions contained in the Plan,
the Board may waive any conditions or rights under, amend any terms of, or
alter, suspend, discontinue, cancel or terminate, the Option, prospectively or
retroactively; provided that any such waiver, amendment, alteration, suspension,
discontinuance, cancellation or termination that would adversely
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affect the rights of the Optionee or any holder or beneficiary of the Option
shall not to that extent be effective without the consent of the Optionee,
holder or beneficiary affected.
8. Limited Transferability. During the Optionee's lifetime this Option can
be exercised only by the Optionee, except as otherwise provided in Section 4(a)
above or in this Section 8. This Option may not be assigned, alienated, pledged,
attached, sold or otherwise transferred or encumbered by Optionee other than (i)
to a Permitted Transferee or (ii) by will or the laws of descent and
distribution. Any attempt to otherwise transfer this Option shall be void. No
transfer of this Option by the Optionee by will or by laws of descent and
distribution shall be effective to bind the Company unless the Company shall
have been furnished with written notice thereof and an authenticated copy of the
will and/or such other evidence as the Board may deem necessary or appropriate
to establish the validity of the transfer. Any transfer of this Option by the
Optionee to a Permitted Transferee must be for no consideration and, after the
transfer, the Permitted Transferee shall have the sole responsibility for
determining whether and when to exercise the Option. A Permitted Transferee may
not transfer any such Option other than by will or the laws of descent and
distribution. For purposes of this Agreement, "Permitted Transferee" means the
Optionee's Immediate Family, a Permitted Trust or a partnership of which the
only partners are members of the Optionee's Immediate Family. For purposes of
this Agreement, "Immediate Family" means the Optionee's children and
grandchildren, including adopted children and grandchildren, stepchildren,
parents, stepparents, grandparents, spouse, former spouse (but in such case only
at the direction of a court order), siblings (including half brothers and
sisters), father-in-law, mother-in-law, daughters-in-law and sons-in-law. For
purposes of this Agreement, a "Permitted Trust" means a trust solely for the
benefit of the Optionee or Optionee's Immediate Family.
9. Reservation of Shares. At all times during the term of this Option, the
Company shall use its best efforts to reserve and keep available such number of
Shares as shall be sufficient to satisfy the requirements of this Agreement.
10. Plan Governs. The Optionee hereby acknowledges receipt of a copy of the
Plan and agrees to be bound by all the terms and provisions thereof. The terms
of this Agreement are governed by the terms of the Plan, and in the case of any
inconsistency between the terms of this Agreement and the terms of the Plan, the
terms of the Plan shall govern.
11. Severability. If any provision of this Agreement is, or becomes, or is
deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to any
Person or the Award, or would disqualify the Plan or Award under any laws deemed
applicable by the Board, such provision shall be construed or deemed amended to
conform to the applicable laws, or if it cannot be construed or deemed amended
without, in the determination of the Board, materially altering the intent of
the Plan or the Award, such provision shall be stricken as to such jurisdiction,
Person or Award, and the remainder of the Plan and Award shall remain in full
force and effect.
12. Notices. All notices required to be given under this Option shall be
deemed to be received if delivered or mailed as provided for herein to the
parties at the following addresses, or to such other address as either party may
provide in writing from time to time.
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To the Company: Bright Horizons Family Solutions, Inc.
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Corporate Secretary
To the Optionee: The address then maintained with respect to the Optionee
in the Company's records.
13. Governing Law. The validity, construction and effect of this Agreement
shall be determined in accordance with the laws of the State of Delaware without
giving effect to conflicts of laws principles.
14. Resolution of Disputes. Any dispute or disagreement which may arise
under, or as a result of, or in any way related to, the interpretation,
construction or application of this Agreement shall be determined by the Board.
Any determination made hereunder shall be final, binding and conclusive on the
Optionee and the Company for all purposes.
15. Successors in Interest. This Agreement shall insure to the benefit of
and be binding upon any successor to the Company. This Agreement shall insure to
the benefit of the Optionee's legal representative and assignees. All
obligations imposed upon the Optionee and all rights granted to the Company
under this Agreement shall be binding upon the Optionee's heirs, executors,
administrator, successors and assignees.
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IN WITNESS WHEREOF, the parties have caused this Non-Qualified Stock Option
Agreement to be duly executed effective as of the day and year first above
written.
BRIGHT HORIZONS FAMILY SOLUTIONS, INC.
By:
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Optionee:
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Please Print
Optionee:
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Signature
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