EXHIBIT
99.02
FORM OF
AMENDED XXXXXXX EDUCATION, INC.
1996
STOCK OPTION PLAN
NONQUALIFIED STOCK OPTION AGREEMENT FOR
EMPLOYEE
Xxxxxxx Education, Inc., a Maryland corporation
(the "Corporation"), hereby grants an option
to purchase shares of its common stock, $.01 par value, (the
"Stock") to the optionee named below. The
terms and conditions of the option are set forth in this cover sheet,
in the attachment and in the Corporation's Amended 1996 Stock
Option Plan (the
"Plan").
|
|
|
|
|
|
|
| Grant
Date: |
|
|
| Expiration
Date: |
|
subject to special provisions for termination of Service
as described in the attachment and Plan. |
| Name of
Optionee: |
|
|
| Number of
Shares Covered by
Option: |
|
|
| Option Price
per Share: |
|
$ |
| Vesting
Schedule: |
|
This option will vest in its entirety on the fourth
anniversary of the Grant Date; subject to special provisions for Change
of Control or termination of Service as described in the attachment and
Plan. |
|
By signing this cover sheet you agree
to all of the terms and conditions described in the attached Agreement
and in the Plan, a copy of which is also attached. IN PARTICULAR,
YOU ACKNOWLEDGE THAT THIS OPTION GRANT CONSTITUTES CONSIDERATION FOR
YOUR ACCEPTANCE OF THE NON-COMPETITION PROVISIONS CONTAINED IN THE
ATTACHED AGREEMENT. You acknowledge that you have carefully
reviewed the Plan, and agree that the Plan will control in the event
any provision of this Agreement or the attachment should appear to be
inconsistent.
Optionee:
(Signature)
Corporation:
(Signature)
Title:
Attachments
This is not a stock
certificate or a negotiable instrument.
AMENDED XXXXXXX EDUCATION, INC.
1996
STOCK OPTION PLAN
NONQUALIFIED STOCK OPTION
AGREEMENT
|
|
|
| Nonqualified Stock
Option |
|
This option is not intended to be an incentive stock
option under Section 422 of the Internal Revenue Code and will be
interpreted accordingly. |
|
|
|
|
|
|
| Defined
Terms |
|
For purposes of this
option: |
|
|
|
|
|
|
|
|
"Service" means service
as an employee, officer, director or consultant to the Corporation. A
change in your position or duties shall not result in interrupted or
terminated Service, so long as such you continue to be an employee,
officer, director of or consultant to the
Corporation. |
|
|
|
|
|
|
|
|
"Disability" means
the inability to perform the duties of one's position with the
Corporation by reason of a medically determined physical or mental
impairment which has existed for a continuous period of at least 26
weeks and which, in the judgment of a physician who certifies to such
judgment, is expected to be of indefinite duration or to result in
imminent death. |
|
|
|
|
|
|
|
|
"Change in
Control" of the Corporation means the occurrence of any of
the following after the Grant
Date: |
|
|
|
|
|
|
|
|
(a) The acquisition by any
individual, entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) (a
"Person") of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of more than
50% of either: (i) the then-outstanding shares of the
Corporation's Stock ("Common Stock") or
(ii) the combined voting power of the then-outstanding voting
securities of the Corporation entitled to vote generally in the
election of directors ("Voting Stock");
provided, however, that for purposes of this subsection (a), the
following acquisitions shall not constitute a Change in Control: (1)
any acquisition directly from the Corporation, (2) any acquisition by
the Corporation, (3) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Corporation or any
subsidiary of the Corporation, or (4) any acquisition by any Person
pursuant to a transaction which complies with clauses (i), (ii) and
(iii) of subsection (c) of this section;
or |
|
|
|
|
|
|
|
|
(b) Individuals who constitute the
Board of the Corporation as of the Grant Date (the
"Incumbent Board") cease for any reason
(other than death or disability) to constitute at least a majority of
the Board; provided, however, that any individual becoming a director
subsequent to the date hereof whose election, or nomination for
election by the Corporation's shareholders, was approved by a
vote of at least a majority of the directors then comprising the
Incumbent Board (either by a specific vote or by approval of the
|
|
|
|
2
|
|
|
|
|
proxy statement of the corporation in which
such person is named as a nominee for director, without objection to
such nomination) shall be considered as though such individual were a
member of the Incumbent Board, but excluding for this purpose any such
individual whose initial assumption of office occurs as a result of an
actual or threatened election contest (within the meaning of Rule
14a-11 of the Exchange Act) with respect to the election or removal of
directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board or any of the
Investors; or |
|
|
|
|
|
|
|
|
(c) Consummation of a
reorganization, merger or consolidation or sale or other disposition of
all or substantially all of the assets of the Corporation with or to
any Person other than a person under the control of one or more of the
Investors (a "Business Combination"), in each
case, unless, following such Business Combination, (i) all or
substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Common Stock and Voting Stock
of the Corporation immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 50% of,
respectively, the then-outstanding shares of common stock and the
combined voting power of the then-outstanding voting securities
entitled to vote generally in the election of directors, as the case
may be, of the entity resulting from such Business Combination
(including, without limitation, an entity which as a result of such
transaction owns the Corporation or all or substantially all of the
Corporation's assets either directly or through one or more
subsidiaries) in substantially the same proportions relative to each
other as their ownership, immediately prior to such Business
Combination, of the Common Stock and Voting Stock of the Corporation,
as the case may be, (ii) no Person (excluding any entity resulting from
such Business Combination or any employee benefit plan (or related
trust) sponsored or maintained by the Corporation or such entity
resulting from such Business Combination) beneficially owns, directly
or indirectly, more than 50% of, respectively, the
then-outstanding shares of common stock of the entity resulting from
such Business Combination, or the combined voting power of the
then-outstanding voting securities of such corporation except to the
extent that such ownership existed prior to the Business Combination
and (iii) at least a majority of the members of the board of directors
of the corporation resulting from such Business Combination were
members of the Incumbent Board at the time of the execution of the
initial agreement, or of the action of the Board providing for such
Business Combination; or |
|
|
|
|
|
|
|
|
(d) Approval by
the shareholders of the Corporation of a complete liquidation or
dissolution of the
Corporation. |
|
|
|
|
|
|
| Vesting |
|
This option is only
exercisable before it expires and then only with respect to the vested
portion of the option. Subject to |
|
|
|
3
|
|
|
|
|
the preceding sentence, you may exercise this
option, in whole or in part, to purchase a whole number of vested
shares not less than 100 shares, unless the number of shares purchased
is the total number available for purchase under the option, by
following the procedures set forth in the Plan and below in this
Agreement. |
|
|
|
|
|
|
|
|
Your right to purchase shares of Stock under
this option vests as to the total number of shares covered by this
option, as shown on the cover sheet (the "Option
Shares"), on the fourth anniversary of the Grant
Date. |
|
|
|
|
|
|
|
|
Notwithstanding the vesting schedule in the preceding
paragraph, the Option Shares shall become fully vested upon the
occurrence of a Change in Control of the Corporation or upon your Death
or Disability. |
|
|
|
|
|
|
|
|
No additional shares of Stock will vest
after your Service has terminated for any
reason. |
|
|
|
|
|
|
| Term |
|
Your option will expire in
any event at the close of business at Corporation headquarters on the
day before the 8th anniversary of the Grant Date, as shown on the cover
sheet. Your option will expire earlier if your Service terminates, as
described below. |
|
|
|
|
|
|
| Termination of
Service |
|
If your Service terminates for any reason other
than your death or Disability, then if unvested as of the date of
termination of Service, your option will immediately expire, and if
vested as of the date of termination of Service, your option will
expire at the close of business at Corporation headquarters twelve (12)
months after such termination date. |
|
|
|
|
|
|
| Death or
Disability |
|
If your Service terminates because of your
death, then your option will immediately become fully vested and your
option will expire at the close of business at Corporation headquarters
on the date twelve (12) months after the date of death. During that
twelve month period, your estate or heirs may exercise your vested
option. |
|
|
|
|
|
|
|
|
If your Service terminates because of your
Disability, then your option will immediately become fully vested, and
your option will expire at the close of business at Corporation
headquarters on the date twelve (12) months after the date of such
termination. During that twelve-month period, you or your legal
representative may exercise your vested
option. |
|
|
|
|
|
|
| Notice of Exercise |
|
When you wish
to exercise this option, you must notify the Corporation by filing the
proper "Notice of Exercise" form at the
address given on the form. Your notice must specify how many shares you
wish to purchase (in increments of at least 100 shares). Your notice
must also specify how your shares of Stock should be registered (in
your name only or in your and your spouse's names as joint
tenants with right of survivorship). The notice will be effective when
it is received by the Corporation. |
|
|
|
4
|
|
|
|
|
If someone else wants to exercise this
option after your death, that person must prove to the
Corporation's satisfaction that he or she is legally entitled to
do so. |
|
|
|
|
|
|
| Form of Payment |
|
When you submit
your notice of exercise, you must include payment of the option price
and withholding taxes for the shares you are purchasing. Payment may be
made in one (or a combination) of the following
forms: |
|
|
|
|
|
|
|
|
|
• |
Cash, your personal check, a
cashier's check, a money order or another cash equivalent
acceptable to the Corporation. |
|
|
|
|
|
|
|
|
|
• |
Shares of
Stock of the Corporation which have already been owned by you for more
than six months and which are surrendered to the Corporation. The value
of the shares, determined as of the effective date of the option
exercise, will be applied to the option
price. |
|
|
|
|
|
|
|
|
|
• |
By delivery (on a form prescribed by
the Corporation) of an irrevocable direction to a licensed securities
broker acceptable to the Corporation to sell Stock of the Corporation
and to deliver all or part of the sale proceeds to the Corporation in
payment of the aggregate option price and any withholding
taxes. |
|
|
|
|
|
|
| Transfer of Option |
|
During your
lifetime, only you (or, in the event of your legal incapacity or
incompetency, your guardian or legal representative) may exercise the
option. You cannot transfer or assign this option. For instance, you
may not sell this option or use it as security for a loan. If you
attempt to do any of these things, this option will immediately become
invalid. You may, however, dispose of this option in your will or it
may be transferred upon your death by the laws of descent and
distribution. |
|
|
|
|
|
|
|
|
Regardless of any marital property settlement
agreement, the Corporation is not obligated to honor a notice of
exercise from your spouse, nor is the Corporation obligated to
recognize your spouse's interest in your option in any other
way. |
|
|
|
|
|
|
| Retention Rights |
|
Neither your
option nor this Agreement give you the right to be retained by the
Corporation (or any Subsidiaries) in any capacity, subject to
applicable legal requirements or contractual provisions, the
Corporation (and any Subsidiaries) reserve the right to terminate your
Service at any time and for any reason. |
|
|
|
|
|
|
| Shareholder
Rights |
|
You, or your estate or heirs, have no rights as a
shareholder of the Corporation until a certificate for your
option's shares has been issued following proper exercise and
payment therefore. No adjustments are made for dividends or other
rights if the applicable record date occurs before your stock
certificate is issued, except as described in the
Plan. |
|
|
|
5
|
|
|
| Non-Competition |
|
During
the period you are providing Services to the Corporation and for a
period of one year thereafter, you shall not take actions in
competition with the Corporation in any state or similar jurisdiction
in which the Corporation conducts a material amount of its business.
Unless otherwise specified in an employment or other agreement between
the Corporation and you, you take actions in competition with the
Corporation if you: |
|
|
|
|
|
|
|
|
|
• |
Fail to keep strictly
confidential all confidential business information disclosed by the
Corporation to you, or which is obtained by you or otherwise disclosed
to you in connection with performing Services for the Corporation, or
use any such confidential information for any purpose other than
performing Services for the Corporation; provided, however, that the
foregoing shall not apply to information which (1) at the time of
disclosure to you is already a matter of public knowledge, (2) after
disclosure to you becomes a matter of public knowledge, except by your
breach of this provision , (3) was already in your possession at the
time of disclosure and does not solely constitute specific and detailed
information regarding the Corporation (it being acknowledged that you
possessed extensive industry experience and general knowledge of the
education sector prior to joining the Corporation); or (4) which is
required to be disclosed by law or regulation
; |
|
|
|
|
|
|
|
|
|
• |
Enter into any employment, consulting or
similar relationships with third parties which will result in a direct
and material conflict of interest with the Corporation's
business; |
|
|
|
|
|
|
|
|
|
• |
Act in any managerial capacity for
or acquire an ownership interest in (except a minority interest of
5% or less acquired for investment purposes in a company whose
stock is traded on a public exchange) any person or entity that is a
direct and material competitor of the
Corporation; |
|
|
|
|
|
|
|
|
|
• |
Without the written consent of
the Corporation, solicit or direct anyone else to solicit any officer
or key employee of the Corporation (y) to terminate his or her
employment or other relationship with the Corporation or (z) to seek or
accept employment with you or any third party; provided that the
foregoing shall exclude actions which are the result of persons
responding to general advertisements and do not involve any
solicitation on your part. |
|
|
|
|
|
|
|
|
You acknowledge and agree that
any material breach by you of any of the provisions of this Section
(the "Restrictive Covenants") would result in
irreparable injury and damage for which money damages would not provide
an adequate remedy. Therefore, if you materially breach, or threaten to
materially breach, any of the Restrictive Covenants, the Corporation
and its affiliates shall have the right to have the |
|
|
|
6
|
|
|
|
|
Restrictive Covenants specifically enforced
(without posting bond and without the need to prove damages) by any
court having equity jurisdiction, including, without limitation, the
right to an entry against you of restraining orders and injunctions
(preliminary, mandatory, temporary and permanent) against violations,
threatened or actual, and whether or not then continuing, of such
covenants. This right and remedy shall be in addition to, and not in
lieu of, any other rights and remedies available to the Corporation and
its affiliates under law or in equity (including, without limitation,
the recovery of damages). In addition, in the event of such a material
breach of the Restrictive Covenants the Corporation shall have the
right to cause a forfeiture of your rights under this option agreement,
including the right to cause: (i) a forfeiture of this option
agreement, and (ii) with respect to the period commencing on the date
of your termination of Service with the Corporation and ending twelve
(12) months following such termination of Service (A) a forfeiture of
any net gain recognized by you upon the exercise of this option
agreement or (B) a forfeiture of any Stock acquired by you upon the
exercise of this option agreement (but in such event the Corporation
will repay you the option exercise price without
interest). |
|
|
|
|
|
|
| Adjustments |
|
In the event of a
stock split, a stock dividend or a similar change in the Stock of the
Corporation, the number of shares covered by this option and the option
price per share shall be adjusted appropriately (and rounded down to
the nearest whole number) if required pursuant to the Plan. Your option
shall be subject to the terms of the agreement of merger, liquidation
or reorganization in the event the Corporation is subject to such
corporate activity. |
|
|
|
|
|
|
| Applicable Law |
|
This
Agreement will be interpreted and enforced under the laws of the State
of Maryland, other than any conflicts or choice of law rule or
principle that might otherwise refer construction or interpretation of
this Agreement to the substantive law of another
jurisdiction. |
|
|
|
|
|
|
| The Plan |
|
The text of the
Plan is incorporated in this Agreement by reference. Certain
capitalized terms used in this Agreement are defined in the Plan, and
have the meaning set forth in the Plan. |
|
|
|
|
|
|
|
|
This Agreement and
the Plan constitute the entire understanding between you and the
Corporation regarding this option. Any prior agreements, commitments or
negotiations concerning this option are
superseded. |
|
|
|
|
|
|
| Consent to Electronic
Delivery |
|
The Corporation may choose to deliver certain
informational materials relating to the Plan in electronic form. By
accepting this option grant you agree that the Corporation may deliver
the Plan prospectus and the Corporation's annual report to you in
an electronic format. If at any time you would prefer |
|
|
|
7
|
|
|
|
|
to receive paper copies of these documents, as
you are entitled to, the Corporation would be pleased to provide
copies. Please contact the General Counsel of the Corporation to
request paper copies of these
documents. |
|
|
|
|
|
| |
By signing the cover sheet
of this Agreement, you agree to all of the terms andconditions
described above and in the Plan. |
8
