Exhibit 10.1
BAYCORP HOLDINGS, LTD.
NON-STATUTORY STOCK OPTION AGREEMENT
1. Grant of Option. BayCorp Holdings, Ltd., a New
Hampshire corporation (the "Company"), hereby grants to Xxxxxx X.
Xxxxxxx (the "Optionee") an option, pursuant to the Company's
2001 Non-Statutory Stock Option Plan (the "Plan"), to purchase an
aggregate of 10,000 shares of Common Stock ("Common Stock") of
the Company at a price of $14.45 per share, purchasable as set
forth in and subject to the terms and conditions of this option
and the Plan. Except where the context otherwise requires, the
term "Company" shall include the parent and all present and
future subsidiaries of the Company as defined in Sections 424(e)
and 424(f) of the Internal Revenue Code of 1986, as amended or
replaced from time to time (the "Code").
2. Non-Statutory Stock Option. This option is not intended
to qualify as an incentive stock option within the meaning of
Section 422 of the Code.
3. Exercise of Option and Provisions for Termination.
(a) Exercise Period. Except as otherwise
provided in this Agreement, this option may be exercised prior to
the seventh anniversary of the date of grant (hereinafter the
"Expiration Date") in full. This option may not be exercised at
any time on or after the Expiration Date, except as otherwise
provided in Section 3(e) below.
(b) Exercise Procedure. Subject to the
conditions set forth in this Agreement, this option shall be
exercised by the Optionee's delivery of written notice of
exercise to the Treasurer of the Company, specifying the number
of shares to be purchased and the purchase price to be paid
therefor and accompanied by payment in full in accordance with
Section 4. Such exercise shall be effective upon receipt by the
Treasurer of the Company of such written notice together with the
required payment. The Optionee may purchase less than the number
of shares covered hereby, provided that no partial exercise of
this option may be for any fractional share or for fewer than ten
whole shares.
(c) Continuous Relationship with the Company
Required. Except as otherwise provided in this Section 3, this
option may not be exercised unless the Optionee, at the time he
or she exercises this option, is, and has been at all times since
the date of grant of this option, an employee, officer or
director of, or consultant or advisor to, the Company (an
"Eligible Optionee").
(d) Termination of Relationship with the Company.
If the Optionee ceases to be an Eligible Optionee for any reason,
then, except as provided in paragraphs (e) and (f) below, the
right to exercise this option shall terminate 12 months after
such cessation (but in no event after the Expiration Date),
provided that this option shall be exercisable only to the extent
that the Optionee was entitled to exercise this option on the
date of such cessation. Notwithstanding the foregoing, if the
Optionee, prior to the Expiration Date, materially violates the
non-competition or confidentiality provisions of any employment
contract, confidentiality and nondisclosure
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agreement or other agreement between the Optionee and the
Company, the right to exercise this option shall terminate
immediately upon written notice to the Optionee from the Company
describing such violation.
(e) Exercise Period Upon Death or Disability. If
the Optionee dies or becomes disabled (within the meaning of
Section 22(e)(3) of the Code) prior to the Expiration Date while
he or she is an Eligible Optionee, or if the Optionee dies within
three months after the Optionee ceases to be an Eligible Optionee
(other than as the result of a termination of such relationship
by the Company for "cause" as specified in paragraph (f) below),
this option shall be exercisable, within the period of 12 months
following the date of death or disability of the Optionee
(whether or not such exercise occurs before the Expiration Date),
by the Optionee or by the person to whom this option is
transferred by will or the laws of descent and distribution,
provide that this option shall be exercisable only to the extent
that this option was exercisable by the Optionee on the date of
his or her death or disability. Except as otherwise indicated by
the context, the term "Optionee", as used in this option, shall
be deemed to include the estate of the Optionee or any person who
acquires the right to exercise this option by bequest or
inheritance or otherwise by reason of the death of the Optionee.
(f) Discharge for Cause. If the Optionee, prior
to the Expiration Date, is discharged by the Company for "cause"
(as defined below), the right to exercise this option shall
terminate immediately upon such cessation of employment. "Cause"
shall mean willful misconduct by the Optionee or willful failure
to perform his or her responsibilities in the best interests of
the Company (including, without limitation, breach by the
Optionee of any provision of any employment, consulting,
advisory, nondisclosure, non-competition or other similar
agreement between the Optionee and the Company), as determined by
the Company, which determination shall be conclusive. The
Optionee shall be considered to have been discharged "for cause"
if the Company determines, within 30 days after the Optionee's
resignation, that discharge for cause was warranted.
4. Payment of Purchase Price.
(a) Method of Payment. Payment of the purchase
price for shares purchased upon exercise of this option shall be
made (i) by delivery to the Company of cash or a check to the
order of the Company in an amount equal to the purchase price of
such shares, (ii) subject to the consent of the Company, by
delivery to the Company of shares of Common Stock of the Company
then owned by the Optionee having a fair market value equal in
amount to the purchase price of such shares, (iii) by any other
means which the Board of Directors determines are consistent with
the purpose of the Plan and with applicable laws and regulations
(including, without limitation, the provisions of Rule 16b-3
under the Securities Exchange Act of 1934 and Regulation T
promulgated by the Federal Reserve Board), or (iv) by any
combination of such methods of payment.
(b) Valuation of Shares or Other Non-Cash
Consideration Tendered in Payment of Purchase Price. For the
purposes hereof, the fair market value of any share of the
Company's Common Stock or other non-cash consideration which may
be delivered to the Company in exercise of this option shall be
determined in good faith by the Board of Directors of the
Company.
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(c) Delivery of Shares Tendered in Payment of
Purchase Price. If the Optionee exercises this option by
delivery of shares of Common Stock of the Company, the
certificate or certificates representing the shares of Common
Stock of the Company to be delivered shall be duly executed in
blank by the Optionee or shall be accompanied by a stock power
duly executed in blank suitable for purposes of transferring such
shares to the Company. Fractional shares of Common Stock of the
Company will not be accepted in payment of the purchase price of
shares acquired upon exercise of this option.
(d) Restrictions on Use of Option Stock.
Notwithstanding the foregoing, no shares of Common Stock of the
Company may be tendered in payment of the purchase price of
shares purchased upon exercise of this option if the shares to be
so tendered were acquired within twelve (12) months before the
date of such tender, through the exercise of an option granted
under the Plan or any other stock option or restricted stock plan
of the Company.
5. Delivery of Shares; Compliance With Securities Laws,
Etc.
(a) General. The Company shall, upon payment of
the option price for the number of shares purchased and paid for,
make prompt delivery of such shares to the Optionee, provided
that if any law or regulation requires the Company to take any
action with respect to such shares before the issuance thereof,
then the date of delivery of such shares shall be extended for
the period necessary to complete such action.
(b) Listing, Qualification, Etc. This option
shall be subject to the requirement that if, at any time, counsel
to the Company shall determine that the listing, registration or
qualification of the shares subject hereto upon any securities
exchange or under any state or federal law, or the consent or
approval of any governmental or regulatory body, or that the
disclosure of non-public information or the satisfaction of any
other condition is necessary as a condition of, or in connection
with, the issuance or purchase of shares hereunder, this option
may not be exercised, in whole or in part, unless such listing,
registration, qualification, consent or approval, disclosure or
satisfaction of such other condition shall have been effected or
obtained on terms acceptable to the Board of Directors. Nothing
herein shall be deemed to require the Company to apply for,
effect or obtain such listing, registration, qualification or
disclosure, or to satisfy such other condition.
6. Nontransferability of Option. This option is personal
and no rights granted hereunder may be transferred, assigned,
pledged or hypothecated in any way (whether by operation of law
or otherwise) nor shall any such rights be subject to execution,
attachment or similar process, except that this option may be
transferred (i) by will or the laws of descent and distribution
or (ii) pursuant to a qualified domestic relations order as
defined in Section 414(p) of the Code. Upon any attempt to
transfer, assign, pledge, hypothecate or otherwise dispose of
this option or of such rights contrary to the provisions hereof,
or upon the levy of any attachment or similar process upon this
option or such rights, this option and such rights shall, at the
election of the Company, become null and void.
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7. No Special Employment or Similar Rights. Nothing
contained in the Plan or this option shall be construed or deemed
by any person under any
circumstances to bind the Company to continue the employment or
other relationship of the Optionee with the Company for the
period within which this option may be exercised.
8. Rights as a Shareholder. The Optionee shall have no
rights as a shareholder with respect to any shares which may be
purchased by exercise of this option (including, without
limitation, any rights to receive dividends or non-cash
distributions with respect to such shares) unless and until a
certificate representing such shares is duly issued and delivered
to the Optionee. No adjustment shall be made for dividends or
other rights for which the record date is prior to the date such
stock certificate is issued.
9. Adjustment Provisions.
(a) General. If, through or as a result of any
merger, consolidation, sale of all or substantially all of the
assets of the Company, reorganization, recapitalization,
reclassification, stock dividend, stock split, reverse stock
split or other similar transaction, (i) the outstanding shares of
Common Stock are increased or decreased or are exchanged for a
different number or kind of shares or other securities of the
Company, or (ii) additional shares or new or different shares or
other securities of the Company or other non-cash assets are
distributed with respect to such shares of Common Stock or other
securities, the Optionee shall, with respect to this option or
any unexercised portion hereof, be entitled to the rights and
benefits, and be subject to the limitations, set forth in Section
14(a) of the Plan.
(b) Board Authority to Make Adjustments. Any
adjustments under this Section 9 will be made by the Board of
Directors, whose determination as to what adjustments, if any,
will be made and the extent thereof will be final, binding and
conclusive. No fractional shares will be issued pursuant to this
option on account of any such adjustments.
10. Mergers, Consolidation, Distributions, Liquidations
Etc. In the event of a merger or consolidation or sale of all or
substantially all of the assets of the Company in which
outstanding shares of Common Stock are exchanged for securities,
cash or other property of any other corporation or business
entity, or in the event of a liquidation of the Company, prior to
the Expiration Date or termination of this option, the Optionee
shall, with respect to this option or any unexercised portion
hereof, be entitled to the rights and benefits, and be subject to
the limitations, set forth in Section 15(a) of the Plan.
11. Withholding Taxes. The Company's obligation to deliver
shares upon the exercise of this option shall be subject to the
Optionee's satisfaction of all applicable federal, state and
local income and employment tax withholding requirements.
12. Investment Representations; Legends.
(a) Representations. The Optionee represents,
warrants and covenants that:
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(i) Any shares purchased upon exercise of
this option shall be acquired for the Optionee's account for
investment only, and not with a view to, or for sale in
connection with, any distribution of the shares in violation of
the Securities Act of 1933 (the "Securities Act"), or any rule or
regulation under the Securities Act.
(ii) The Optionee has had such opportunity
as he or she has deemed adequate to obtain from representatives
of the Company such information as is necessary to permit the
Optionee to evaluate the merits and risks of his or her
investment in the Company.
(iii) The Optionee is able to bear the
economic risk of holding such shares acquired pursuant to the
exercise of this option for an indefinite period.
(iv) The Optionee understands that (A) the
shares acquired pursuant to the exercise of this option will not
be registered under the Securities Act and are "restricted
securities" within the meaning of Rule 144 under the Securities
Act; (B) such shares cannot be sold, transferred or otherwise
disposed of unless they are subsequently registered under the
Securities Act or an exemption from registration is then
available; (C) in any event, an exemption from registration under
Rule 144 or otherwise under the Securities Act not be available
for at least two years and even then will not be available unless
a public market then exists for the Common Stock, adequate
information concerning the Company is then available to the
public, and other terms and conditions of Rule 144 are complied
with; and (D) there is now no registration statement on file with
the Securities and Exchange Commission with respect to any stock
of the Company and the Company has no obligation or current
intention to register any shares acquired pursuant to the
exercise of this option under the Securities Act.
(v) The Optionee agrees that, if the
Company offers any of its Common Stock for sale pursuant to a
registration statement under the Securities Act, the Optionee
will not, without the prior written consent of the Company,
offer, sell, contract to sell or otherwise dispose of, directly
or indirectly (a "Disposition"), any shares purchased upon
exercise of this option for a period of 90 days after the
effective date of such registration statement.
By making payment upon exercise of this option, the Optionee
shall be deemed to have reaffirmed, as of the date of such
payment, the representations made in this Section 12.
(b) Legends on Stock Certificate. All stock
certificates representing shares of Common Stock issued to the
Optionee upon exercise of this option shall have affixed thereto
legends substantially in the following forms, in addition to any
other legends required by applicable state law;
"The shares of stock represented by this
certificate may not be transferred, sold or
otherwise disposed of in the absence of an
effective registration statement with respect
to the shares evidenced by this certificate,
filed and made effective under the Securities
Act of 1933, or an opinion of counsel
satisfactory to the Company to the effect
that registration under such Act is not
required."
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"The shares of stock represented by this
certificate are subject to certain
restrictions on transfer contained in an
Option Agreement, a copy of which will be
furnished upon request by the issuer."
13. Miscellaneous.
(a) Except as provided herein, this option may
not be amended or otherwise modified unless evidenced in writing
and signed by the Company and the Optionee.
(b) All notices under this option shall be
mailed or delivered by hand to the parties at their respective
addresses set forth beneath their names below or at such other
address as may be designated in -writing by either of the parties
to one another.
(c) This option shall be governed by and
construed in accordance with the laws of the State of New
Hampshire.
Date of Grant: BAYCORP HOLDINGS, LTD.
July 10, 2003
By: /s/ Xxxxx X. Xxxxxx Xx.
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Name: Xxxxx X. Xxxxxx Xx.
Title: President
Address: One Xxx Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
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OPTIONEE'S ACCEPTANCE
The undersigned hereby accepts the foregoing option and
agrees to the terms and conditions thereof. The undersigned
hereby acknowledges receipt of a copy of the Company's 2001 Non-
Statutory Stock Option Plan.
OPTIONEE
/s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Address: 00 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
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