EXHIBIT 10(b)
TECH-SYM CORPORATION
INCENTIVE STOCK OPTION
AND STOCK APPRECIATION RIGHT AGREEMENT
AGREEMENT made effective the ___ day of _______, 199_, (the "Grant
Date") between TECH-SYM CORPORATION, a Nevada corporation (the "Company"), and
Optionee ("Optionee").
To carry out the purposes of the Tech-Sym Corporation 1990 Stock
Option Plan, as amended, to which this Agreement is expressly subject and a copy
of which is attached hereto as EXHIBIT "A", by affording Optionee the
opportunity to purchase shares of Common Stock, par value $.10 per share, of the
Company ("Stock"), and in consideration of the mutual agreements and other
matters set forth herein and in the Plan, the Company and Optionee hereby agree
as follows:
1. GRANT OF OPTION. The Company hereby grants to the Optionee the
right and option (the "Option") to purchase all or any part of an aggregate of
-Shares~- shares of Stock, on the terms and conditions set forth herein and in
the Plan. It is intended that the Option qualify as an "incentive stock option"
within the meaning of Section 422A of the Internal Revenue Code of 1986, as
amended (the "Code").
2. GRANT OF SAR. The Company also hereby grants the Optionee a stock
appreciation right ("SAR") entitling the Optionee to surrender (upon the terms
and conditions hereinafter set forth, including the consent of the Committee
with respect to any such exercise) to the Company unexercised the Option granted
pursuant to this Agreement, or any portion thereof, and to receive from the
Company in exchange therefor cash, Stock or a combination thereof (as determined
in the discretion of the Committee) having an aggregate value equal to the
excess of the Market Value Per Share on the date of exercise over the Market
Value Per Share on the Grant Date (such amount herein referred to as the
"Spread"), multiplied by the total number of shares of Stock for which the SAR
is exercised.
3. EXERCISE PRICE. The exercise price of the Option shall be $_____
per share.
4. EXERCISE OF OPTION.
(a) Subject to the further provisions of this Agreement, the Option
granted pursuant to this Agreement shall not become exercisable until after one
year following the date hereof and thereafter may be exercised upon the
following terms:
(i) after such one year, this Option shall be exercisable for
any number of shares up to and including, but not in excess of, 20% of the
aggregate number of shares subject to this Option;
(ii) after one and one-half years, this Option shall be
exercisable for any number of shares up to and including but not in excess
of, 40% of the aggregate number of shares subject to this Option;
(iii) after two years, this Option shall be exercisable for
any number of shares up to and including, but not in excess of, 60% of the
aggregate number of shares subject to this Option;
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(iv) after two and one-half years, this Option shall be
exercisable for any number of shares up to and including, but not in
excess of, 80% of the aggregate number of shares subject to this Option;
and
(v) after three years, this Option shall be fully exercisable.
(b) Subject to the earlier expiration of the Option as herein
provided and subject to the terms and conditions contained herein, the Option
may be exercised by written notice (which complies in all respects with the
provisions of this Agreement) to the Company at its principal executive office
addressed to the attention of the Secretary of the Company, identifying the
Option and specifying the number of shares that the Optionee decides to
purchase, such exercise to be effective at the time of receipt of such written
notice at the Company's principal executive office during normal business hours.
The notice shall not be considered to be properly given unless accompanied by
all documentation deemed appropriate by the Committee to reflect exercise of the
Option and compliance with all applicable laws, rules and regulations.
(c) The vesting and exercisability of the Option shall be subject to
acceleration on the terms and conditions stated in Section 8 of the Plan, which
relate to a "Change in Control" of the Company (as defined in the Plan).
(d) Notwithstanding anything herein to the contrary, in no event
shall the Option, or any part thereof, be exercisable after the tenth
anniversary of the Grant Date.
5. EXERCISE OF SAR.
(a) The SAR granted pursuant to this Agreement may be exercised,
subject to the following limitations set forth herein, as the Optionee may from
time to time elect in whole or in part; provided, however, that subject to the
terms and conditions stated in Section 8 of the Plan, the SAR may only be
exercised (i) at such time or times and to such extent as the underlying Option
may be exercised, (ii) only upon consent of the Committee and (iii) only when
there is a positive Spread; and provided further that the Committee shall be
entitled to elect to settle the Company's obligation, or any portion thereof,
arising out of the permitted exercise of the SAR, by the payment of cash, Stock
or a combination thereof having an aggregate value equal to the Spread on the
date of exercise, but no fractional shares shall be issuable. The SAR granted
pursuant to this Agreement shall expire at such time as the Option expires.
(b) The SAR granted herein may be exercised by the Optionee by
giving a written request to the Secretary of the Company identifying the SAR and
specifying the part of the related Option being surrendered. The request shall
not be considered to be given unless accompanied by all documentation deemed
appropriate by the Committee to reflect exercise of the SAR and compliance with
all applicable laws, rules and regulations. The Committee shall within fifteen
days of the delivery of such request give notice to the Optionee of approval or
disapproval of the request. If the request is approved, payment shall be made
not more than twenty days from delivery of the request. If the request is
disapproved, the request shall be considered null and void. The request may be
withdrawn at any time by the Optionee prior to its being acted upon by the
Committee by giving written notice of such withdrawal to the Secretary of the
Company.
6. PAYMENT OF OPTION EXERCISE PRICE. Upon exercise of an Option, the
full option exercise price for the shares with respect to which the Option is
being exercised shall be payable to the Company (i) in cash or by check payable
and acceptable to the Company or (ii) subject to the approval of the Committee,
(a) by tendering to the Company shares of Stock owned by the Optionee having an
aggregate Market Value Per Share as of the date of exercise
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and tender that is not greater than the full Option exercise price for the
shares with respect to which the Option is being exercised and by paying any
remaining amount of the Option exercise price as provided in (i) above (provided
that the Committee may, upon confirming that the Optionee owns the number of
shares being tendered, authorize the issuance of a new certificate for the
number of shares being acquired pursuant to the exercise of the Option less the
number of shares being tendered upon the exercise and return to the Optionee (or
not require surrender of) the certificate for the shares being tendered upon the
exercise) or (b) by the Optionee delivering to the Company a properly executed
exercise notice together with irrevocable instructions to a broker to promptly
deliver to the Company cash or a check payable and acceptable to the Company to
pay the option exercise price; provided that in the event the Optionee chooses
to pay the Option exercise as provided in (ii)(b) above, the Optionee and the
broker shall comply with such procedures and enter into such agreements of
indemnity and other agreements as the Committee shall prescribe as a condition
of such payment procedure. Payment instructions will be received subject to
collection.
7. NON-TRANSFERABILITY. The Option and SAR may not be transferred by
Optionee separately or otherwise than by will or the laws of descent and
distribution.
8. TERMINATION OF EMPLOYMENT.
(a) If the Optionee's employment with the Company and its
Subsidiaries is terminated for reasons other than (i) retirement with the
consent of the Company or the individual's employing Subsidiary, as the case may
be, ("retirement"), (ii) permanent disability or (iii) death, the Option and/or
SAR shall be exercisable by him, subject to Section 4(d) above, only within
three months after such termination and only to the extent the Option was
exercisable on the date of termination of employment.
(b) If, however, any termination of employment is due to retirement
or permanent disability, the Option and/or SAR shall be exercisable by the
Optionee in full at any time, subject to Section 4(d) above, after such
termination of employment.
(c) If the Optionee shall die while entitled to exercise the Option
and/or SAR, the Optionee's estate, personal representative or beneficiary, as
the case may be, shall have the right subject to the provisions of Section 4(d)
above, to exercise the Option or SAR at any time within 12 months after the date
of the Optionee's death, to the extent that the Optionee was entitled to
exercise the same on the day immediately prior to the Optionee's death.
(d) Except as provided above in this Section 8, to the extent the
Option and SAR is not exercisable on such termination of employment, the Option
and SAR, or applicable portion thereof, shall be terminated and forfeited in
full.
9. WITHHOLDING OF TAX. Any cash payment under this Agreement shall
be reduced by any amounts required to be withheld or paid with respect thereto
under all present or future federal, state and local tax and other laws and
regulations that may be in effect as of the date of each such payment ("Tax
Amounts"). Any issuance of Stock pursuant to the exercise of the Option or SAR
under this Agreement shall not be made until appropriate arrangements have been
made for the payment of any amounts that may be required to be withheld or paid
with respect thereto. Such arrangements may, at the discretion of the Committee,
include allowing the Optionee to tender to the Company shares of Stock owned by
Optionee, or to request the Company to withhold a portion of the shares of Stock
being acquired pursuant to the exercise or otherwise distributed to Optionee,
which have a Market Value Per Share as of the date of such exercise, tender or
withholding that is not greater than the sum of all Tax Amounts, together with
payment of any remaining portion of all Tax Amounts in cash or by check payable
and acceptable to the Company. Payment instruments will be received subject to
collection.
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10. SECURITIES MATTERS. The Option and SAR granted herein shall be
subject to the requirement that, if at any time the Board shall determine, in
its discretion, that the listing, registration or qualification of the shares
subject to such Option 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 issue or
purchase of shares hereunder, such Option and SAR 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 reasonably
acceptable to the Board.
11. EMPLOYMENT RELATIONSHIP. For purposes of this Agreement, the
Optionee shall be considered to be in the employment of the Company as long as
the Optionee remains an employee of either the Company, a parent or subsidiary
corporation (as defined in Section 425 of the Code) of the Company, or a
corporation or a parent or subsidiary of such corporation assuming or
substituting a new agreement for this Agreement. Any question as to whether and
when there has been a termination of such employment, for purposes of this
Agreement, and the cause of such termination, for purposes of this Agreement,
shall be determined by the Committee, and its determination shall be final.
Nothing herein shall give the Optionee any right to continued employment or
affect in any manner the right of the Company or any Subsidiary or parent
corporation to terminate the employment of the Optionee.
12. BINDING EFFECT. This Agreement shall be binding upon and inure
to the benefit of any successors to the Company and all persons lawfully
claiming under the Optionee. This Agreement and all actions taken shall be
governed by and constructed in accordance with the laws of the State of Texas.
In the event of conflict between this Agreement and the Plan, the terms of the
Plan shall control. All undefined capitalized terms used herein shall have the
meaning assigned to them in the Plan. The Committee shall have authority to
construe the terms of this Agreement, and the Committee's determinations shall
be final and binding on the Optionee and the Company.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed and the Optionee has executed this Agreement as of the day and year
first above written.
By:____________________
Chairman and President
OPTIONEE
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Optionee
