Exhibit 4.2
NEWPORT CORPORATION
NONQUALIFIED STOCK OPTION AGREEMENT
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1. Option Grant.
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1.1 Grant. This Nonqualified Stock Option Agreement (the "Agreement")
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sets forth the terms of the agreement between Newport Corporation, a Nevada
corporation (the "Company"), and the individual specified as the "Grantee"
(referred to herein as, the "Optionee") in the Stock Option Grant Notice for
Grant No. _____ (the "Notice") pursuant to and in accordance with the Company's
2001 Stock Incentive Plan (the "Plan"). This Agreement is made in connection
with the Company's award to Optionee of his or her right to purchase shares of
its common stock under the Plan as set forth in the Notice, and the Stock Option
Grant Letter relating to Grant No. ____ (the "Grant Letter"). This Agreement
shall be effective as of the Date of Grant specified in the Notice.
1.2 Nonqualified Option. This Option is not intended to qualify as an
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"incentive stock option" as defined in Section 422 of the Internal Revenue Code
of l986, as amended (the "Code"), but is intended to constitute a nonqualified
stock option.
2. Vesting of Option. The right to exercise this Option shall vest in
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accordance with the vesting schedule set forth in the Grant Letter. This Option
is exercisable from time to time in whole or in part as to any vested
installment at the Option Price.
No additional Shares shall vest after the date of termination of Optionee's
"Continuous Employment" (as defined in Section 3.2 below), but the Option shall
continue to be exercisable in accordance with Section 3.1 below with respect to
that number of Shares that have vested as of the date of termination of
Optionee's Continuous Employment.
3. Term of Option.
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3.1 Expiration, Disability, Death or Other Employment Termination. The
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right of the Optionee to exercise this Option shall terminate upon the first to
occur of the following:
(a) the expiration of ten (10) years from the date of this
Agreement;
(b) the expiration of three (3) months from the date of termination
of Optionee's Continuous Service if such termination occurs for any reason other
than permanent disability, death or cause; provided, however, that if Optionee
dies during such three-month period the provisions of Section 3(d) below shall
apply;
(c) immediately on the date of termination of Optionee's Continuous
Service if such termination occurs for cause;
(d) the expiration of one (1) year from the date of termination of
Optionee's Continuous Service if such termination is due to permanent disability
of the Optionee (as defined in Section 22(e)(3) of the Code);
(e) the expiration of one (1) year from the date of termination of
Optionee's Continuous Service if such termination is due to Optionee's death or
if death occurs during the three-month period following termination of
Optionee's Continuous Service pursuant to Section 3(b) above; or
(f) upon the consummation of a "Change in Control" (as
defined in Section 9), unless otherwise provided pursuant to Section 9 below.
3.2 Continuous Service. As used herein, the term "Continuous
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Service" means (i) employment by either the Company or any parent or subsidiary
corporation of the Company, or by a corporation or a parent or subsidiary of a
corporation issuing or assuming a stock option in a transaction to which Section
424(a) of the Code applies, which is uninterrupted except for vacations, illness
(except for permanent disability, as defined in Section 22(e)(3) of the Code),
or leaves of absence which are approved in writing by the Company or any of such
other employer corporations, if applicable, (ii) service as a member of the
Board of Directors of the Company until Optionee resigns, is removed from
office, or Optionee's term of office expires and he or she is not reelected, or
(iii) so long as Optionee is engaged as a consultant or service provider to the
Company or other corporation referred to in clause (i) above. Changes in
Optionee's status among the alternatives set forth in the foregoing clauses (i),
(ii) and/or (iii) shall not be deemed to terminate Optionee's Continuous
Service.
4. Cancellation And Rescission. The Plan Administrator may
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cancel, rescind, suspend, withhold or otherwise limit or restrict all or any
portion of this Options at any time if Optionee is not in compliance with all
applicable provisions of this Agreement and the Plan, or if Optionee engages in
any "Adverse Activity." For purposes of this Section 4, "Adverse Activity" shall
include: (i) the rendering of services for any organization or engaging directly
or indirectly in any business which is or becomes competitive with the Company,
or which organization or business, or the rendering of services to such
organization or business, is or becomes otherwise prejudicial to or in conflict
with the interests of the Company; (ii) the disclosure to anyone outside the
Company, or the use in other than the Company's business, without prior written
authorization from the Company, of any confidential information or material
relating to the business of the Company, acquired by Optionee either during or
after employment with the Company; (iii) the failure or refusal to disclose
promptly and to assign to the Company in accordance with the Company's policies
and any agreement in effect between the Company and the Optionee pertaining to
confidentiality and/or ownership of intellectual property all right, title and
interest in any invention or idea, patentable or not, made or conceived by
Optionee during employment by the Company, relating in any manner to the actual
or anticipated business, research or development work of the Company; (iv)
activity that results in termination of the Optionee's employment for cause; (v)
a material violation of any rules, policies, procedures or guidelines of the
Company; or (vi) any attempt directly or indirectly to induce any employee of
the Company to be employed or perform services elsewhere or any attempt directly
or indirectly to solicit the trade or business of any current or prospective
customer, supplier or partner of the Company.
5. Exercise of Option. Subject to Section 4 above, on or after
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the vesting of any portion of this Option in accordance with Sections 2 or 9
hereof, and until termination of the right to exercise this Option in accordance
with Section 3.1 above, the portion of this Option which has vested may be
exercised in whole or in part by the Optionee (or, after his or her death, by
the person designated in Section 6 below) upon delivery of the following to the
Company at its principal executive offices:
5.1 a written notice of exercise which identifies this
Agreement (including the Grant Number listed in the first paragraph of Section 1
above) and states the number of Shares then being purchased (but no fractional
Shares may be purchased);
5.2 payment of the Exercise Price by: (i) cash; (ii) check;
(iii) the surrender of shares of Common Stock owned by Optionee (provided that
shares acquired pursuant to the exercise of options granted by the Company must
have been held by the Optionee for the requisite period
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necessary to avoid a charge to the Company's earnings for financial reporting
purposes), which surrendered shares shall be valued at Fair Market Value as of
the date of such exercise; (iv) provided that a public market for the Common
Stock exists, a "same day sale" commitment from the Optionee and an NASD Dealer
whereby the Optionee irrevocably elects to exercise the Option and to sell a
portion of the shares so purchased to pay for the Option Price and whereby the
NASD Dealer irrevocably commits upon receipt of such shares to forward the
Option Price directly to the Company; (v) provided that a public market for the
Common Stock exists, a "margin" commitment from the Optionee and an NASD Dealer
whereby the Optionee irrevocably elects to exercise the Option and to pledge the
shares so purchased to the NASD Dealer in a margin account as security for a
loan from the NASD Dealer in the amount of the Option Price, and whereby the
NASD Dealer irrevocably commits upon receipt of such shares to forward the
Option Price directly to the Company; or (vi) any combination of the foregoing
methods of payment or Such other form of lawful consideration as the
Administrator may approve from time to time under the provisions of Section 5.3
of the Plan;
5.3 a check or cash in the amount reasonably requested by the
Company to satisfy the Company's withholding obligations under federal, state or
other applicable tax laws with respect to the taxable income, if any, recognized
by the Optionee in connection with the exercise of this Option (unless the
Company and Optionee shall have made other arrangements for deductions or
withholding from Optionee's wages, bonus or other compensation payable to
Optionee, or by the withholding of Shares issuable upon exercise of this Option
or the delivery of Shares owned by the Optionee in accordance with Section 11.1
of the Plan, provided such arrangements satisfy the requirements of applicable
tax laws);
5.4 a letter, if requested by the Company, in such form and
substance as the Company may require, setting forth the investment intent of the
Optionee, or person designated in Section 6 below, as the case may be; and
5.5 in accordance with Section 10.2 of the Plan, certification
by the Optionee in a manner acceptable to the Company that he or she is in
compliance with the terms and conditions of the Plan and this Agreement. In the
event Optionee fails to comply with the provisions of paragraphs (i)-(vi) of
Section 10.1 of the Plan prior to, or during the six (6) months after, any
exercise, payment or delivery pursuant to this Option, such exercise, payment or
delivery may be rescinded within two (2) years thereafter. In the event of any
such rescission, Optionee shall pay to the Company the amount of any gain
realized or payment received as a result of the exercise, payment or delivery,
in such manner and on such terms and conditions as may be required, and the
Company shall be entitled to set-off against the amount of any such gain any
amount owed to the Participant by the Company.
6. Death of Optionee; No Assignment. Unless otherwise authorized
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by the Administrator in its sole discretion pursuant to Section 5.7 of the Plan,
the rights of the Optionee under this Agreement may not be assigned or
transferred except by will or by the laws of descent and distribution, and may
be exercised during the lifetime of the Optionee only by such Optionee. Any
attempt to sell, pledge, assign, hypothecate, transfer or dispose of this Option
in contravention of this Agreement or the Plan shall be void and shall have no
effect. If the Optionee's Continuous Service terminates as a result of his or
her death, and provided Optionee's rights hereunder shall have vested pursuant
to Section 2 hereof, Optionee's legal representative, his or her legatee, or the
person who acquired the right to exercise this Option by reason of the death of
the Optionee (individually, a "Successor") shall succeed to the Optionee's
rights and obligations under this Agreement. After the death of the Optionee,
only a Successor may exercise this Option.
7. Representation of Optionee. Optionee acknowledges receipt of
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a copy of the Plan and understands that all rights and obligations connected
with this Option are set forth in this
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Agreement, Notice, Grant Letter and the Plan. Optionee further acknowledges
receipt of the prospectus pertaining to the Plan.
8. Adjustments Upon Changes in Capital Structure. In the event that
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the outstanding shares of Common Stock of the Company are hereafter increased or
decreased or changed into or exchanged for a different number or kind of shares
or other securities of the Company by reason of a recapitalization, stock split,
combination of shares, reclassification, stock dividend or other change in the
capital structure of the Company, then appropriate adjustment shall be made by
the Administrator to the number of Shares subject to the unexercised portion of
this Option and to the Exercise Price per share, in order to preserve, as nearly
as practical, but not to increase, the benefits of the Optionee under this
Option, in accordance with the provisions of Section 4.2 of the Plan.
9. Change in Control. In the event of a Change in Control (as defined
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in Section 2.4 of the Plan):
9.1 The right to exercise this Option shall accelerate
automatically and vest in full (notwithstanding the provisions of Section 2
above) effective as of immediately prior to the consummation of the Change in
Control unless this Option is to be assumed by the acquiring or successor entity
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(or parent thereof) or a new option or New Incentives are to be issued in
exchange therefor, as provided in subsection (b) below. If vesting of this
Option will accelerate pursuant to the preceding sentence, the Administrator in
its discretion may provide, in connection with the Change in Control
transaction, for the purchase or exchange of this Option for an amount of cash
or other property having a value equal to the difference (or "spread") between:
(x) the value of the cash or other property that the Optionee would have
received pursuant to the Change in Control transaction in exchange for the
shares issuable upon exercise of this Option had this Option been exercised
immediately prior to the Change in Control, and (y) the Exercise Price of this
Option.
9.2 The vesting of this Option shall not accelerate if and to the
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extent that: (i) this Option (including the unvested portion thereof) is to be
assumed by the acquiring or successor entity (or parent thereof) or a new option
of comparable value is to be issued in exchange therefor pursuant to the terms
of the Change in Control transaction, or (ii) this Option (including the
unvested portion thereof) is to be replaced by the acquiring or successor entity
(or parent thereof) with other incentives under a new incentive program ("New
Incentives") containing such terms and provisions as the Administrator in its
discretion may consider equitable. If this Option is assumed, or if a new option
of comparable value is issued in exchange therefor, then this Option or the new
option shall be appropriately adjusted, concurrently with the Change in Control,
to apply to the number and class of securities or other property that the
Optionee would have received pursuant to the Change in Control transaction in
exchange for the shares issuable upon exercise of this Option had this Option
been exercised immediately prior to the Change in Control, and appropriate
adjustment also shall be made to the Exercise Price such that the aggregate
Exercise Price of this Option or the new option shall remain the same as nearly
as practicable.
9.3 If the provisions of subsection (b) above apply, then this
Option, the new option or the New Incentives shall not accelerate but shall
continue to vest in accordance with the provisions of Section 2 hereof and shall
continue in effect for the remainder of the term of this Option in accordance
with the provisions of Section 3.1 hereof.
10. No Employment or Service Contract Created. Neither the granting
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of this Option nor the exercise hereof shall beconstrued as granting to the
Optionee any right with respect to continuance of Optionee's employment by or
service to the Company or any of its subsidiaries. The right of the Company or
any of its subsidiaries to terminate at will the Optionee's employment or
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service at any time (whether by dismissal, discharge or otherwise), with or
without cause, is specifically reserved.
11. Rights as Shareholder. The Optionee (or transferee of this option
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by will or by the laws of descent and distribution) shall have no rights as a
shareholder with respect to any Shares covered by this Option until such person
has duly exercised this Option, paid the Exercise Price and become a holder of
record of the Shares purchased.
12. "Market Stand-Off" Agreement. Optionee agrees that, if requested by
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the Company or the managing underwriter of any proposed public offering of the
Company's securities, Optionee will not sell or otherwise transfer or dispose of
any Shares held by Optionee without the prior written consent of the Company or
such underwriter, as the case may be, during such period of time, not to exceed
180 days following the effective date of the registration statement filed by the
Company with respect to such offering, as the Company or the underwriter may
specify.
13. Interpretation. This Option is granted pursuant to the terms of the
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Plan, and shall in all respects be interpreted in accordance therewith. The
Administrator shall interpret and construe this Option and the Plan, and any
action, decision, interpretation or determination made in good faith by the
Administrator shall be final and binding on the Company and the Optionee. As
used in this Agreement, the term "Administrator" shall refer to the committee of
the Board of Directors of the Company appointed to administer the Plan, and if
no such committee has been appointed, the term Administrator shall mean the
Board of Directors.
14. Limitation of Liability for Nonissuance. During the term of the
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Plan, the Company agrees at all times to reserve and keep available, and to use
its reasonable best efforts to obtain from any regulatory body having
jurisdiction any requisite authority in order to issue and sell, such number of
shares of its Common Stock as shall be sufficient to satisfy its obligations
hereunder and the requirements of the Plan. Inability of the Company to obtain,
from any regulatory body having jurisdiction, authority deemed by the Company's
counsel to be necessary for the lawful issuance and sale of any shares of its
Common Stock hereunder and under the Plan shall relieve the Company of any
liability in respect of the nonissuance or sale of such shares as to which such
requisite authority shall not have been obtained.
15. Notices. Any notice, demand or request required or permitted to be
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given under this Agreement shall be in writing and shall be deemed given when
delivered personally or three (3) days after being deposited in the United
States mail, as certified or registered mail, with postage prepaid, and
addressed, if to the Company, at its principal place of business, Attention: the
Chief Financial Officer, and if to the Optionee, at his or her most recent
address as shown in the employment or stock records of the Company.
16. Governing Law. The validity, construction, interpretation, and
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effect of this Option shall be governed by and determined in accordance with the
laws of the State of California.
17. Severability. Should any provision or portion of this Agreement be
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held to be unenforceable or invalid for any reason, the remaining provisions and
portions of this Agreement shall be unaffected by such holding.
18. Attorneys' Fees. If any party shall bring an action in law or
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equity against another to enforce or interpret any of the terms, covenants and
provisions of this Agreement, the prevailing party in such action shall be
entitled to recover from the other party reasonable attorneys' fees and any
expert witness fees.
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19. Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original and all of which
together shall be deemed one instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
NEWPORT CORPORATION "OPTIONEE"
By:
___________________________________ _________________________________
Xxxxxxx X. Xxxxxxx (Signature)
Vice President and
Chief Financial Officer _________________________________
(Type or print name)
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NOTICE OF EXERCISE OF STOCK OPTION
AND INVESTMENT REPRESENTATIONS
Newport Corporation
0000 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Ladies and Gentlemen:
I hereby exercise my right to purchase shares of Common Stock (the
"Shares") of Newport Corporation (the "Company") pursuant to the Nonqualified
Stock Option Agreement dated __________, 200_ (the "Agreement"), granted to me
under the Company's 2001 Stock Incentive Plan. The number of shares that I am
purchasing at this time, and the total Exercise Price, are set forth below. I
shall also pay such amount reasonably requested by the Company to satisfy the
Company's withholding obligations under federal, state or other applicable tax
laws with respect to the taxable income, if any, recognized by me in connection
with the exercise of this Option(the "Withholding Amount").
Number of Shares purchased hereby: ____________________________
Exercise Price per Share: $___________________________
Total Exercise Price: $___________________________
Payment of the total Exercise Price set forth above and the Withholding
Amount is being made concurrently herewith in the following form (see Section
5.2 of the Agreement):
___ Cash
___ Check
___ Surrender of shares of Common Stock owned by me
___ "Same day sale" commitment
___ "Margin" commitment
In connection with the exercise of my option, I hereby represent to the
Company and/or agree that:
1. I acknowledge receipt of all information as I deem necessary and
appropriate to enable me to evaluate the merits and risks of my investment in
the Shares, including information concerning the business and financial
condition of the Company, and that I have had the opportunity to discuss such
information with, and ask questions of, an officer of the Company. I am an
investor of sufficient sophistication and experience to make an informed
investment decision regarding my purchase of the Shares, and I am able to bear
the economic risk of an investment in the Shares.
2. I hereby certify that I am in compliance with the terms and
conditions of the Plan (including without limitation Section 10.2 thereof) and
this Agreement. I agree that in the event I fail to comply with the provisions
of paragraphs (i)-(vi) of Section 10.1 of the Plan prior to, or during the six
(6) months after the date hereof, the Company may rescind this exercise within
two (2) years
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thereafter, and I shall, at the Company's option, pay to the Company the amount
of any gain realized or payment received as a result of this exercise and the
sale of the Shares, and the Company shall be entitled to set-off against the
amount of any such gain any amount owed to me by the Company.
3. I understand and agree that, in the event the registration
statement covering the 2001 Stock Incentive Plan is not effective on the date
hereof,
(a) the certificate(s) evidencing the Shares will bear legends
substantially in the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933; THEY HAVE BEEN
ACQUIRED BY THE HOLDER FOR INVESTMENT AND MAY NOT BE PLEDGED,
HYPOTHECATED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT
AS MAY BE AUTHORIZED UNDER THE SECURITIES ACT OF 1933, AND THE
RULES AND REGULATIONS PROMULGATED THEREUNDER."
(b) the Shares must be held indefinitely unless they are
subsequently registered under the Securities Act or an exemption from
such registration is available, and further recognize that the Company
is under no obligation to register the Shares or to comply with any
exemption from such registration;
(c) Rule 144 under the Securities Act (an exemption under which
securities may be sold without registration under the Securities Act if
the Shares have been held for at least one year) may not be available,
and in the case of securities to which said Rule is not applicable,
compliance with some other exemption under the Securities Act will be
required; and
(d) I will not dispose of any interest in the Shares unless and
until (i) I shall have notified the Company of the proposed
disposition; (ii) I shall have furnished the Company with such
investment representations as the Company may reasonably request, and
an opinion of counsel to the effect that such disposition will not
require registration under the Securities Act, and (iii) such opinion
of counsel shall have been concurred in by the Company's counsel.
Dated: __________, 200_ Signature: __________________
Name:________________________
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