EXHIBIT 4.6
INCENTIVE STOCK OPTION AGREEMENT
CELLSTAR CORPORATION
1993 AMENDED AND RESTATED LONG-TERM INCENTIVE PLAN
This Stock Option Agreement (this "Agreement") is entered into by and
between CellStar Corporation, a Delaware corporation (the "Company"), and
__________________ (the "Optionee"), an employee of the Company. The Company
and the Optionee agree as follows:
1. Grant of Option. Pursuant to the CellStar Corporation 1993 Amended
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and Restated Long-Term Incentive Plan (the "Plan") and a duly adopted resolution
of the Committee, the Company grants to the Optionee an option (the "Stock
Option") to purchase from the Company a total of ______ shares (the "Optioned
Shares") of Common Stock of the Company at $________ per share (being the Fair
Market Value per share of Common Stock on the Date of Grant), in the amounts,
during the periods, and upon the terms and conditions set forth in this
Agreement and in the Plan. The Date of Grant of this Stock Option is
_________________. This Stock Option is intended to qualify as an "incentive
stock option" within the meaning of Section 422 of the Code.
2. Interpretation. This Stock Option and its exercise are subject to the
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terms and conditions of the Plan, which terms and conditions are incorporated
herein by reference; however, unless specifically permitted by the Committee,
the terms of the Plan shall not be considered an enlargement of any benefits
under this Agreement. Capitalized terms used and not otherwise defined herein
shall have the meanings assigned to them in the Plan. This Stock Option is
subject to any rules promulgated pursuant to the Plan by the Board or the
Committee and communicated to the Optionee in writing.
3. Vesting; Time of Exercise. Except as specifically provided in this
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Agreement and subject to certain restrictions and conditions set forth in the
Plan, this Stock Option may be exercised, in whole or in part, in accordance
with the following schedule:
Percentage
Exercisable Period
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0% Immediately
25% On and after the first anniversary of the Date of Grant
50% On and after the second anniversary of the Date of Grant
75% On and after the third anniversary of the Date of Grant
100% On and after the fourth anniversary of the Date of Grant
The unexercised portion of this Stock Option from one annual period may be
carried over to a subsequent annual period or periods, and the right of the
Optionee to exercise the Stock Option
as to such unexercised portion shall continue for the entire term. In no event
may the Stock Option be exercised in whole or in part, however, after the
expiration of the term set forth in Section 4 below.
4. Term; Rights in Event of Termination of Employment. This Stock
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Option, and all unexercised Optioned Shares granted to the Optionee hereunder,
will terminate and be forfeited at the first of the following to occur:
(a) 5 p.m. on _________________;
(b) 5 p.m. on the date which is twelve (12) months following the
Optionee's termination of employment due to death or Total and Permanent
Disability;
(c) 5 p.m. on the date which is three (3) months following the
Optionee's termination of employment due to Retirement; or
(d) 5 p.m. on the 30th day after the day of any other termination of
employment.
In the event of the Optionee's termination of employment under subsections
(b),(c) or (d) above, the Stock Option will be exercisable, for the periods
indicated, only to the extent that it has vested (pursuant to Section 3 above)
as of the date of termination of employment.
5. Who May Exercise. Subject to the terms and conditions set forth in
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Sections 3 and 4 above and the following sentence, during the lifetime of the
Optionee, this Stock Option may be exercised only by the Optionee. If the
Optionee's employment terminates as a result of death or Total and Permanent
Disability prior to the termination date specified in Section 4(a) hereof, the
following persons may exercise this Stock Option (to the extent it is
exercisable on the date of termination of employment) on behalf of the Optionee
at any time prior to the earlier of the dates specified in Sections 4(a) or (b)
hereof: (i) if the Optionee's employment is terminated due to Total and
Permanent Disability, the legal representative of the Optionee; or (ii) if the
Optionee dies, the personal representative of his estate, or the person who
acquires the right to exercise this Stock Option by bequest or inheritance or by
reason of the death of the Optionee; provided that this Stock Option shall
remain subject to the other terms of this Agreement, the Plan, and applicable
laws, rules, and regulations.
6. Restrictions. This Stock Option may be exercised only with respect to
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full shares, and no fractional share of stock shall be issued.
7. Manner of Exercise. Subject to such administrative regulations as the
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Board or the Committee may from time to time adopt, this Stock Option may be
exercised by the delivery to the Company of (i) written notice setting forth the
number of shares of Common Stock with respect to which the Stock Option is to be
exercised and the date of exercise thereof (the "Exercise Date"), which shall be
at least three (3) days after giving such notice, unless an earlier time shall
have been mutually agreed upon; and (ii) consideration with a value equal to the
total Option Exercise Price
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for the shares to be purchased, payable as follows: (a) cash, certified check,
bank draft, or money order payable to the order of the Company, (b) Common Stock
(including Restricted Stock), valued at its Fair Market Value on the Exercise
Date, (c) by delivery (including by FAX) to the Company or its designated agent
of an executed irrevocable option exercise form together with irrevocable
instructions from the Optionee to a broker or dealer, reasonably acceptable to
the Company, to sell certain of the shares of Common Stock purchased upon
exercise of the Stock Option or to pledge such shares as collateral for a loan
and promptly deliver to the Company the amount of sale or loan proceeds
necessary to pay such Option Exercise Price and/or (d) in any other form of
valid consideration that is acceptable to the Committee in its sole discretion;
provided that, with respect to a cashless exercise of the Stock Option (in
accordance with clause (c) above), the Stock Option will be deemed exercised on
the date of sale of the shares of Common Stock received upon exercise. In the
event that shares of Restricted Stock are tendered as consideration for the
exercise of the Stock Option, a number of shares of Common Stock issued upon the
exercise of the Stock Option, equal to the number of shares of Restricted Stock
used as consideration therefor, shall be subject to the same restrictions as the
Restricted Stock so submitted.
Upon payment of all amounts due from the Optionee, the Company shall cause
certificates for the Optioned Shares then being purchased to be delivered to the
Optionee (or the person exercising the Optionee's Stock Option in the event of
his death) at its principal business office (or other mutually agreed upon
location) within ten (10) business days after the Exercise Date. The obligation
of the Company to deliver shares of Common Stock shall, however, be subject to
the condition that if at any time the Board or the Committee shall determine in
its discretion that the listing, registration, or qualification of the Stock
Option or the Optioned Shares upon any securities exchange or under any state or
federal law, or the consent or approval of any governmental regulatory body, is
necessary or desirable as a condition of, or in connection with, the Stock
Option or the issuance or purchase of shares of Common Stock thereunder, then
the Stock Option may not be exercised in whole or in part unless such listing,
registration, qualification, consent, or approval shall have been effected or
obtained free of any conditions not acceptable to the Committee.
If the Optionee fails to pay for any of the Optioned Shares specified in
such notice or fails to accept delivery thereof, then the Optionee's right to
purchase such Optioned Shares may be terminated by the Company.
8. Disqualifying Disposition. In the event that Common Stock acquired
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upon exercise of this Stock Option is disposed of by the Optionee prior to the
expiration of either two years from the Date of Grant of such Stock Option or
one year from the transfer of shares to the Optionee pursuant to the exercise of
such Stock Option, such Optionee shall notify the Company in writing within
thirty (30) days after such disposition of the date and terms of such
disposition.
9 Non-Assignability. This Stock Option is not assignable or
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transferable by the Optionee except by will or by the laws of descent and
distribution.
10. Rights as Stockholder. The Optionee will have no rights as a
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stockholder with respect to any shares covered by this Stock Option until the
issuance of a certificate or certificates to the
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Optionee for the shares. Except as otherwise provided in Section 11 hereof, no
adjustment shall be made for dividends or other rights for which the record date
is prior to the issuance of such certificate or certificates.
11. Adjustment of Number of Shares and Related Matters. The number of
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shares of Common Stock covered by this Stock Option, and the Option Exercise
Price thereof, shall be subject to adjustment in accordance with Article 12 of
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the Plan.
12. Optionee's Representations. Notwithstanding any of the provisions
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hereof, the Optionee hereby agrees that he or she will not exercise this Stock
Option, and that the Company will not be obligated to issue any shares to the
Optionee hereunder, if the exercise thereof or the issuance of such shares shall
constitute a violation by the Optionee or the Company of any provision of any
law or regulation of any governmental authority. Any determination in this
connection by the Board or the Committee shall be final, binding, and
conclusive. The obligations of the Company and the rights of the Optionee are
subject to all applicable laws, rules and regulations.
13. Investment Representation. Unless the Common Stock is issued to the
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Optionee in a transaction registered under applicable federal and state
securities laws, by his or her execution hereof, the Optionee represents and
warrants to the Company that all Common Stock which may be purchased hereunder
will be acquired by the Optionee for investment purposes for his or her own
account and not with any intent for resale or distribution in violation of
federal or state securities laws. Unless the Common Stock is issued to the
Optionee in a transaction registered under the applicable federal and state
securities laws, all certificates issued with respect to the Common Stock shall
bear an appropriate restrictive investment legend.
14. Optionee's Acknowledgments. The Optionee acknowledges receipt of a
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copy of the Plan and represents that he or she is familiar with the terms and
provisions thereof, and hereby accepts this Option subject to all the terms and
provisions thereof. The Optionee hereby agrees to accept as binding, conclusive,
and final all decisions or interpretations of the Board or the Committee upon
any questions arising under the Plan or this Agreement.
15. Law Governing. This Agreement shall be governed by, construed, and
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enforced in accordance with the laws of the State of Texas (excluding any
conflict of laws rule or principle of Texas law that might refer the governance,
construction, or interpretation of this agreement to the laws of another state).
16. No Right to Continued Employment. Nothing herein shall be construed
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to confer upon the Optionee the right to continue in the employment of the
Company or any Subsidiary or interfere with or restrict in any way the right of
the Company or any Subsidiary to discharge the Optionee at any time (subject to
any contract rights of the Optionee).
17. Legal Construction. In the event that any one or more of the terms,
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provisions, or agreements that are contained in this Agreement shall be held by
a Court of competent jurisdiction to be invalid, illegal, or unenforceable in
any respect for any reason, the invalid, illegal, or
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unenforceable term, provision, or agreement shall not affect any other term,
provision, or agreement that is contained in this Agreement and this Agreement
shall be construed in all respects as if the invalid, illegal, or unenforceable
term, provision, or agreement had never been contained herein.
18. Covenants and Agreements as Independent Agreements. Each of the
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covenants and agreements that is set forth in this Agreement shall be construed
as a covenant and agreement independent of any other provision of this
Agreement. The existence of any claim or cause of action of the Optionee
against the Company, whether predicated on this Agreement or otherwise, shall
not constitute a defense to the enforcement by the Company of the covenants and
agreements that are set forth in this Agreement.
19. Entire Agreement. This Agreement, together with the Plan, supersedes
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any and all other prior understandings and agreements, either oral or in
writing, between the parties with respect to the subject matter hereof and
constitutes the sole and only agreement between the parties with respect to the
said subject matter. All prior negotiations and agreements between the parties
with respect to the subject matter hereof are merged into this Agreement. Each
party to this Agreement acknowledges that no representations, inducements,
promises, or agreements, oral or otherwise, have been made by any party or by
anyone acting on behalf of any party, which are not embodied in this Agreement
or the Plan and that any agreement, statement or promise that is not contained
in this Agreement or the Plan shall not be valid or binding or of any force or
effect.
20. Parties Bound. The terms, provisions, representations, warranties,
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covenants, and agreements that are contained in this Agreement shall apply to,
be binding upon, and inure to the benefit of the parties and their respective
heirs, executors, administrators, legal representatives, and permitted
successors and assigns.
21. Modification. No change or modification of this Agreement shall be
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valid or binding upon the parties unless the change or modification is in
writing and signed by the parties. Notwithstanding the preceding sentence, the
Company may amend the Plan to the extent permitted in the Plan.
22. Headings. The headings that are used in this Agreement are used for
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reference and convenience purposes only and do not constitute substantive
matters to be considered in construing the terms and provisions of this
Agreement.
23. Gender and Number. Words of any gender used in this Agreement shall
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be held and construed to include any other gender, and words in the singular
number shall be held to include the plural, and vice versa, unless the context
requires otherwise.
24. Notice. Any notice required or permitted to be delivered hereunder
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shall be deemed to be delivered only when actually received by the Company or by
the Optionee, as the case may be, at the addresses set forth below, or at such
other addresses as they have theretofore specified by written notice delivered
in accordance herewith:
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(A) Notice to the Company shall be addressed and delivered as
follows:
CELLSTAR CORPORATION
0000 XXXXXXXXXX XXXXX
XXXXXXXXXX, XXXXX 00000
ATTENTION: GENERAL COUNSEL
(B) Notice to the Optionee shall be addressed and delivered as
follows:
[Name of Optionee]
________________________________________
________________________________________
________________________________________
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its duly authorized officer, and the Optionee, to evidence his or her consent
and approval of all the terms hereof, has duly executed this Agreement, as of
the ____ day of ___________, 19___.
CELLSTAR CORPORATION
By:
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Name:
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Title:
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OPTIONEE
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[Name of Optionee]
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