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EXHIBIT 10.19
DATA DOCUMENTS INCORPORATED
AMENDED AND RESTATED 1995 STOCK INCENTIVE PLAN
INCENTIVE STOCK OPTION AGREEMENT
This Stock Option Agreement ("Agreement") is made and entered
into as of the Date of Grant indicated below by and between Data Documents
Incorporated, a Delaware corporation (the "Company"), and the person named below
as Grantee.
WHEREAS, Grantee is an employee or consultant of the Company
and/or one or more of its subsidiaries; and
WHEREAS, pursuant to the Company's Amended and Restated 1995
Stock Incentive Plan (the "Plan"), the committee of the Board of Directors of
the Company administering the Plan (the "Committee") has approved the grant to
Grantee of an option to purchase shares of the common stock, par value $0.001
per share, of the Company (the "Common Stock"), on the terms and conditions set
forth herein;
NOW, THEREFORE, in consideration of the foregoing recitals and
the covenants set forth herein, the parties hereto hereby agree as follows:
1. Grant of Option; Certain Terms and Conditions. The Company
hereby grants to Grantee, and Grantee hereby accepts, as of the Date of Grant,
an option to purchase the number of shares of Common Stock indicated below (the
"Option Shares") at the Exercise Price per share indicated below, which option
shall expire at 5:00 o'clock p.m., Nebraska time, on the Expiration Date
indicated below and shall be subject to all of the terms and conditions set
forth in this Agreement (the "Option"). On each anniversary of the Date of
Grant, the Option shall become exercisable to purchase, and shall vest with
respect to, that number of Option Shares (rounded to the nearest whole share)
equal to the total number of Option Shares multiplied by the Annual Vesting Rate
indicated below.
Grantee: _____________________________
Date of Grant: _____________________________
Number of shares purchasable: _____________________________
Exercise Price per share: $_____________________________
Expiration Date: _____________________________
Annual Vesting Rate: ____________________________%
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The Option is intended to qualify as an incentive stock option (an "Incentive
Stock Option") under Section 422 of the Internal Revenue Code (the "Code") and
consequently:
(a) the Expiration Date shall not be more than 10 years
after the Date of Grant and the Exercise Price per share shall not be
less than the Fair Market Value (as defined in the Plan) per share on
the Date of Grant; provided, however, that if, on the Date of Grant,
Grantee owns (after application of the family and other attribution
rules of Section 425(d) of the Code) more than 10% of the total combined
voting power of all classes of stock of the Company or of its parent or
subsidiary corporations, then the Expiration Date shall not be more than
five years after the Date of Grant and the Exercise Price per share
shall not be less than 110% of the Fair Market Value per share on the
Date of Grant; and
(b) the aggregate Fair Market Value (determined as of the
date such options are granted) of the shares of Common Stock with
respect to which Incentive Stock Options are exercisable for the first
time by Grantee during any calendar year (under the Plan and all other
stock option plans of the Company and its parent and subsidiary
corporations) shall not exceed $100,000.
2. Acceleration and Termination of Option.
(a) Termination of Employment.
(i) Termination Within One Year After Change of Control.
In the event that Grantee shall cease to be an employee of the Company
or any of its subsidiaries (such event shall be referred to herein as
the "Termination" of Grantee's "Employment") for any reason, or for no
reason, within one year after a Change of Control (as hereinafter
defined), then (A) the portion of the Option that has not vested on or
prior to the date of such Termination of Employment shall fully vest on
such date and (B) the Option shall terminate upon the earlier of the
Expiration Date or the first anniversary of the date of such Termination
of Employment. "Change of Control" shall mean the first to occur of the
following events:
(X) any date upon which the directors of the Company who
were last nominated by the Board of Directors (the "Board") for
election as directors cease to constitute a majority of the
directors of the Company;
(Y) the date of the first public announcement that any
person or entity, together with all Affiliates and Associates (as
such capitalized terms are defined in Rule 12b-2 promulgated
under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) of such person or entity, shall have become the
Beneficial Owner (as defined in Rule 13d-3 promulgated under the
Exchange Act) of voting securities of the Company representing
25% or more of the voting power of the Company (a "25%
Stockholder"); provided, however, that the terms "person" and
"entity," as used in this clause (Y), shall not include (1) the
Company or
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any of its subsidiaries, (2) any employee benefit plan of the
Company or any of its subsidiaries, (3) any entity holding voting
securities of the Company for or pursuant to the terms of any
such plan, (4) any person or entity if the transaction that
resulted in such person or entity becoming a 25% Stockholder was
approved in advance by the Board or (5) any person or entity who
was a 25% Stockholder on the date of adoption of the Plan by the
Board; or
(Z) a reorganization, merger or consolidation of the
Company (other than a reorganization, merger or consolidation the
sole purpose of which is to change the Company's domicile solely
within the United States) the consummation of which results in
the outstanding securities of any class then subject to the
Option being exchanged for or converted into cash, property
and/or a different kind of securities.
(ii) Retirement. If Grantee's Employment is Terminated by
reason of Grantee's retirement in accordance with the Company's
then-current retirement policy ("Retirement"), and a Change of Control
shall not have occurred within one year prior thereto, then (A) the
portion of the Option that has not vested on or prior to the date of
such Retirement shall terminate on such date and (B) the remaining
vested portion of the Option shall terminate 90 days after the date of
such Termination of Employment.
(iii) Death or Permanent Disability. If Grantee's
Employment is Terminated by reason of the death or Permanent Disability
(as hereinafter defined) of Grantee, and a Change of Control shall not
have occurred within one year prior thereto, then (A) the portion of the
Option that has not vested on or prior to the date of such Termination
of Employment shall terminate on such date and (B) the remaining vested
portion of the Option shall terminate upon the earlier of the Expiration
Date or the first anniversary of the date of such Termination of
Employment. "Permanent Disability" shall mean the inability to engage in
any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or
that has lasted or can be expected to last for a continuous period of
not less than 12 months. Grantee shall not be deemed to have a Permanent
Disability until proof of the existence thereof shall have been
furnished to the Board in such form and manner, and at such times, as
the Board may require. Any determination by the Board that Grantee does
or does not have a Permanent Disability shall be final and binding upon
the Company and Grantee.
(iv) Other Termination. If Grantee's Employment is
Terminated for no reason, or for any reason other than Retirement, death
or Permanent Disability, and a Change of Control shall not have occurred
within one year prior thereto, then the Option shall terminate upon the
date of such Termination of Employment.
(b) Death Following Termination of Employment. Notwithstanding
anything to the contrary in this Agreement, if Grantee shall die at any time
after the Termination of his or her Employment and prior to the Expiration Date,
then (i) the portion of the Option that has not
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vested on or prior to the date of such death shall terminate on such date and
(ii) the remaining vested portion of the Option shall terminate on the earlier
of the Expiration Date or the first anniversary of the date of such death.
(c) Other Events Causing Acceleration of Option.
(i) Notwithstanding the other terms of this Option, this Option
shall become fully exercisable with respect to all Shares covered hereby upon
the first to occur of the following:
(A) the date of dissemination to the stockholders of the
Company of a proxy statement seeking stockholder approval of a
reorganization, merger or consolidation of the Company as a result of
which the outstanding securities of the class then subject to the Plan
are exchanged for or converted into cash, property and/or securities not
issued by the Company, unless such reorganization, merger or
consolidation shall have been affirmatively recommended to the
stockholders of the Company by the Board;
(B) the first date upon which the directors of the
Company who were last nominated by the Board for election as directors
shall cease to constitute a majority of the authorized number of
directors of the Company; or
(C) the date of dissemination to the stockholders of the
Company of a proxy statement disclosing a change of control (as defined
by the Company) of the Company.
(ii) The Committee, in its sole discretion, may accelerate the
exercisability of the Option at any time and for any reason.
(d) Other Events Causing Termination of Option. Notwithstanding
anything to the contrary in this Agreement, the Option shall terminate upon the
consummation of any of the following events, or, if later, the thirtieth day
following the first date upon which such event shall have been approved by both
the Board and the stockholders of the Company:
(i) the dissolution or liquidation of the Company; or
(ii) a sale of substantially all of the property and assets
of the Company, unless the terms of such sale shall provide
otherwise;
provided that in connection with such transaction the
Company shall pay to Optionee in cash an amount equal to the
excess of the fair market value (on the date of the applicable
corporate transaction) of the Option Shares subject to the
then-unexercised portion of the Option over the exercise price of
such portion of the Option, or, in the event of a sale of
substantially all of the property and assets of the Company, the
acquiring corporation has granted substitute options to purchase
it shares on such terms and conditions as shall substantially
preserve the rights and economic benefits of the Option.
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3. Adjustments. Subject to the relevant provisions of the Plan,
in the event that the outstanding securities of the class then subject to the
Option are increased, decreased or exchanged for or converted into cash,
property and/or a different number or kind of securities, or cash, property
and/or securities are distributed in respect of such outstanding securities, in
either case as a result of a reorganization, merger, consolidation,
recapitalization, reclassification, dividend (other than a regular, quarterly
cash dividend) or other distribution, stock split, reverse stock split or the
like, or in the event that substantially all of the property and assets of the
Company are sold, then, unless such event shall cause the Option to terminate
pursuant to Section 2(d) hereof, the Committee shall make appropriate and
proportionate adjustments in the number and type of shares or other securities
or cash or other property that may thereafter be acquired upon the exercise of
the Option; provided, however, that any such adjustments in the Option shall be
made without changing the aggregate Exercise Price of the then unexercised
portion of the Option; provided, further, that no adjustment shall be made to
the number of Option Shares that may be acquired pursuant to the Option or to
the extent such adjustment would result in the Option being treated as other
than an Incentive Stock Option or to the extent the Committee determines that
such adjustment would result in the disallowance of a federal income tax
deduction for compensation attributable to the Option by causing such
compensation to be other than Performance-Based Compensation (as defined in
Section 162(m) of the Code and the regulations related thereto).
4. Exercise.
(a) The Option shall be exercisable during Grantee's lifetime
only by Grantee or by his or her guardian or legal representative, and after
Grantee's death only by the person or entity entitled to do so under Grantee's
last will and testament or applicable intestate law. The Option may only be
exercised by the delivery to the Company of a written notice of such exercise,
which notice shall specify the number of Option Shares to be purchased (the
"Purchased Shares") and the aggregate Exercise Price for such shares (the
"Exercise Notice"), together with payment in full of such aggregate Exercise
Price in cash or by check payable to the Company; provided, however, that
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 of Common Stock, duly endorsed or accompanied by a duly
executed stock powers, 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 (as defined in the Plan) thereof on the date of such
exercise), provided that the Company is not then prohibited from purchasing or
acquiring such shares of Common Stock or (ii) having Option Shares otherwise
issuable under the Option withheld by the Company (such shares to be valued on
the basis of the aggregate Fair Market Value thereof on the date of such
exercise).
5. Payment of Withholding Taxes. If the Company becomes obligated
to withhold an amount on account of any tax imposed as a result of the exercise
of the Option, including, without limitation, any federal, state, local or other
income tax, or any F.I.C.A., state disability insurance tax or other employment
tax, then Grantee shall, on the first day upon which the Company becomes
obligated to pay such amount to the appropriate taxing authority, pay
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such amount to the Company in any manner permitted in Section 4 hereof for
payment of the Exercise Price.
6. Notices. All notices and other communications required or
permitted to be given pursuant to this Agreement shall be in writing and shall
be deemed given if delivered personally or five days after mailing by certified
or registered mail, postage prepaid, return receipt requested, to the Company at
0000 Xxxxx 00xx Xxxxxx, Xxxxx, Xxxxxxxx 00000, Attention: Chief Financial
Officer, or to Grantee at the address set forth beneath his or her signature on
the signature page hereto, or at such other addresses as they may designate by
written notice in the manner aforesaid.
7. Stock Exchange Requirements; Applicable Laws. Notwithstanding
anything to the contrary in this Agreement, no shares of stock purchased upon
exercise of the Option, and no certificate representing all or any part of such
shares, shall be issued or delivered if (a) such shares have not been admitted
to listing upon official notice of issuance on each stock exchange upon which
shares of that class are then listed or (b) in the opinion of counsel to the
Company, such issuance or delivery would cause the Company to be in violation of
or to incur liability under any federal, state or other securities law, or any
requirement of any stock exchange listing agreement to which the Company is a
party, or any other requirement of law or of any administrative or regulatory
body having jurisdiction over the Company.
8. Nontransferability. Neither the Option nor any interest
therein may be sold, assigned, conveyed, gifted, pledged, hypothecated or
otherwise transferred in any manner other than by will or the laws of descent
and distribution
9. Plan. The Option is granted pursuant to the Plan, as in effect
on the Date of Grant, and is subject to all the terms and conditions of the
Plan, as the same may be amended from time to time; provided, however, that no
such amendment shall deprive Grantee, without his or her consent, of the Option
or of any of Grantee's rights under this Agreement. The interpretation and
construction by the Committee of the Plan, this Agreement, the Option and such
rules and regulations as may be adopted by the Committee for the purpose of
administering the Plan shall be final and binding upon Grantee. Until the Option
shall expire, terminate or be exercised in full, the Company shall, upon written
request therefor, send a copy of the Plan, in its then-current form, to Grantee
or any other person or entity then entitled to exercise the Option.
10. Stockholder Rights. No person or entity shall be entitled to
vote, receive dividends or be deemed for any purpose the holder of any Option
Shares until the Option shall have been duly exercised to purchase such Option
Shares in accordance with the provisions of this Agreement.
11. Employment Rights. No provision of this Agreement or of the
Option granted hereunder shall (a) confer upon Grantee any right to continue in
the employ of the Company or any of its subsidiaries, (b) affect the right of
the Company and each of its subsidiaries to terminate the employment of Grantee,
with or without cause, or (c) confer upon Grantee any right to participate in
any employee welfare or benefit plan or other program of the Company or any of
its subsidiaries other than the Plan. GRANTEE HEREBY ACKNOWLEDGES AND AGREES
THAT THE COMPANY AND EACH OF ITS SUBSIDIARIES MAY TERMINATE THE EMPLOYMENT OF
GRANTEE AT ANY TIME AND FOR ANY REASON, OR FOR NO REASON, UNLESS GRANTEE AND THE
COMPANY
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OR SUCH SUBSIDIARY ARE PARTIES TO A WRITTEN EMPLOYMENT AGREEMENT THAT EXPRESSLY
PROVIDES OTHERWISE.
12. Governing Law. This Agreement and the
Option granted hereunder shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware without reference to choice
or conflict of law principles.
IN WITNESS WHEREOF, the Company and Grantee have duly executed
this Agreement as of the Date of Grant.
DATA DOCUMENTS INCORPORATED
By:_____________________________
Name:___________________________
Title:__________________________
GRANTEE:
________________________________
Signature
________________________________
Xxxxxx Xxxxxxx
________________________________
City, State and Zip Code
________________________________
Social Security Number
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