EXHIBIT 4.3
DUPONT PHOTOMASKS, INC.
1997 STOCK OPTION AND RESTRICTED STOCK PLAN
NON-QUALIFIED STOCK OPTION
AGREEMENT
This document sets forth the Non-qualified Stock Option Terms And
Conditions (hereinafter "T&Cs") effective as of July 28, 1997, by and between
DUPONT PHOTOMASKS, INC., a Company organized under the laws of Delaware (the
"Company"), and ________________ an individual (the "Grantee");
BACKGROUND
The Company's Board of Directors and stockholders have approved the
Company's 1997 Stock Option and Restricted Stock Plan (the "Plan"), which
provides for the grant of options to purchase the common stock, par value $.01,
of the Company ("Common Stock") (a) to provide greater incentive for employees
of the Company who are or will be primarily responsible for the growth and
success of the business to exert their best efforts on behalf of the Company,
and (b) to further the identity of interests of such employees with those of
the Company stockholders generally by encouraging them to acquire stock
ownership in the Company.
The Board of Directors or its committee has selected the Grantee to
participate in the Plan and has granted the stock option described in these
T&Cs to the Grantee pursuant to the following terms and conditions:
1. GRANT OF OPTION. Subject to the terms and conditions set forth in the Plan
and hereinafter, the Company hereby grants to the Grantee a nonqualified option
(the "Option") to purchase all or any part of an aggregate number of _______
shares of Common Stock (such shares, as increased or decreased in accordance
with Section 7 hereof, being referred to hereinafter as the "Option Shares") at
an exercise price of $______ per share (hereinafter the "Exercise Price").
2. OPTION EXERCISE PERIOD. The Option shall be first vested and exercisable as
to twenty-five percent (25%) of the Option Shares on _________, and shall
become vested and exercisable as to an additional twenty-five percent (25%) of
the Option Shares upon the expiration of each additional year thereafter until
___________, at which time the Option shall be vested and exercisable in full.
The Option shall expire and terminate as to any Option Shares not purchased by
the Grantee on or before ______________ (the "Expiration Date"), subject to
earlier termination as set forth herein.
3. METHOD OF EXERCISING THE OPTION. The Company has retained a Plan
Administrator to administer the Plan. The Option shall be exercised by the
Grantee delivering to the Plan Administrator such authorization to Plan
Administrator as required to process a cash or
cashless exercise. The minimum number of options you may exercise at any one
time is twenty (20) shares.
4. TRANSFERABILITY. The Option shall not be transferable or assignable, in
whole or in part, except as otherwise provided in these T&Cs. The Option shall
be exercisable (i) only by the Grantee during his lifetime, or (ii) in the
event of his death, by his heirs, representatives, distributees, or legatees in
accordance with his will or the laws of descent and distribution.
5. TAX WITHHOLDING. Any provision of these T&Cs to the contrary
notwithstanding, the Company may take such steps as it deems necessary or
desirable for the withholding of any taxes that are required by laws or
regulations of any governmental authority, (federal, state or local, domestic
or foreign) to withhold taxes in connection with any of the Options subject
hereto.
6. NO RIGHTS AS STOCKHOLDER. The Grantee shall not have any rights as a
stockholder with respect to any of the Option Shares until the date of issuance
by the Company to the Grantee of a stock certificate representing such Option
Shares. Except as otherwise provided in Section 9 hereof, the Grantee shall not
be entitled to any dividends, cash or otherwise, or any adjustment of the
Option Shares for such dividends, if the record date therefor is prior to the
date of issuance of such stock certificate. Upon valid exercise of the Option
by the Grantee, the Company agrees to cause a valid stock certificate for the
number of Option Shares then purchased to be issued and delivered to the
Grantee within five (5) business days thereafter.
7. CORPORATE PROCEEDINGS OF THE COMPANY.
(a) The existence of the Option shall not affect in any way the right or
power of the Company or its officers, directors and shareholders, as the case
may be, to (i) make or authorize any adjustments, recapitalizations,
reorganizations or other changes in the capital structure or business of the
Company, (ii) participate in any merger or consolidation of the Company, (iii)
issue any Common Stock, bonds, debentures, preferred or prior preference stock
or any other securities affecting the Common Stock or the rights of holders
thereof, (iv) dissolve or liquidate the Company, (v) sell or transfer all or
any part of the assets or business of the Company, or (vi) perform any other
corporate act or proceedings, whether of a similar character or otherwise.
(b) If the Company merges into or with or consolidates with (such events
collectively referred herein as a "Merger") any corporation or corporations and
is not the surviving corporation, or the Company becomes a wholly-owned
subsidiary of any corporation, then the surviving or parent corporation may
assume the Option or substitute a new option of the surviving or parent
corporation for the Option; provided, however, that the excess of the aggregate
fair market value of the securities subject to the Option immediately after
such assumption, or the new option immediately after such substitution, over
the aggregate Exercise Price of such shares must be, based upon a good faith
determination by the Board of Directors of the Company, not less than the
excess of the aggregate fair market value of the
Common Stock subject to the Option immediately before such substitution or
assumption over the aggregate Exercise Price of such Common Stock.
(c) In the event that the surviving or parent corporation does not utilize
the provisions of (b) above, or in the event of a dissolution or liquidation of
the Company, the Company shall cause written notice of such Merger or
dissolution or liquidation (and the material terms and conditions thereof) to
be delivered to the Grantee at least ten (10) days prior to the proposed
effective date (the "Effective Date") of such event. The Grantee shall be
entitled to exercise the Option until the Effective Date. To the extent that
the Merger or liquidation is consummated after the Effective Date, the Option
shall terminate and the Company shall have no further obligations of any type
hereunder. The provisions of this paragraph shall not apply to any merger or
reorganization, the principal purpose of which is to change the jurisdiction of
the domicile of the Company.
(d) If, while the Option is outstanding, the Company shall effect a
subdivision or consolidation of the shares of Common Stock or other capital
readjustment, the payment of a common stock dividend, or other increase or
reduction of the number of shares of Common Stock outstanding, without
receiving compensation therefor in money, services or property, then (i) in the
event of an increase in the number of shares of Common Stock outstanding, the
number of Option Shares shall be proportionately increased, and the per share
Exercise Price shall be proportionately reduced, and (ii) in the event of a
reduction in the number of shares of Common Stock outstanding, the number of
Option Shares shall be proportionately reduced, and the per share Exercise
Price shall be proportionately increased. No fractional share of Common Stock
shall be issued upon any such exercise and the Exercise Price shall be
appropriately reduced on account of any fractional share not issued.
(e) The issuance by the Company of shares of stock of any class of
securities convertible into shares of stock of any class, including Common
Stock, for cash, property, labor or services rendered, either upon direct sale
or upon the exercise of rights, options, or warrants to subscribe therefor, or
upon conversion of shares or obligations of the Company convertible into such
shares or other securities, shall not affect, and no adjustment by reason
thereof shall be made with respect to, the number of Option Shares or the
Exercise Price.
8. REGISTRATION RIGHTS. The Grantee shall have no registration rights with
respect to the Option Shares.
9. TERMINATION.
(a) If the Grantee for any reason whatsoever, ceases to be employed by the
Company or a plan company, the Grantee will forfeit all rights to and under the
unvested portion of the Option. (This forfeiture shall not occur in the case
of death, retirement by separation from service from the Company or a plan
company at age 62 or greater with five (5) years service, or termination by the
Company or a plan company due to divestiture or lack of work.)
(b) In the event that the Grantee dies, retires or is terminated, whichever
shall first occur, and such death occurs more than six (6) months after the
date of these T&Cs or such retirement or termination occurs more than one (1)
year after the date of these T&Cs, and prior to such time the Grantee was
employed at all times from the date of this Agreement until the date of such
death, retirement or termination, the Option will become immediately
exercisable in full. The Option may be exercised by Grantee or a legatee or
legatees of the Grantee under the Grantee's will, or by the Grantee's personal
representatives or distributees, at any time within three (3) years after the
date of death, retirement or termination, or the Expiration Date, whichever is
earlier, and if not so exercised, the Option shall thereupon terminate.
Nothing in (a) or (b) shall extend the time for exercising the Option
granted pursuant to these T&Cs beyond the Expiration Date.
10. PLAN INCORPORATED. The Grantee accepts the Option granted herein subject
to all the provisions of the Plan, which are incorporated herein.
11. EMPLOYMENT RELATIONSHIP. The rights and obligations arising under these
T&Cs are not intended to and do not affect the employment relationship that
otherwise exists between the Company and the Grantee, whether such employment
relationship is at will or defined by an employment contract. Moreover, these
T&Cs are not intended to and do not amend any existing employment contract
between the Company and the Grantee; to the extent there is a conflict between
these T&Cs and such an employment contract, the employment contract shall
govern and take priority.
12. TRANSFERABILITY; BINDING EFFECT. The Option shall be transferable only as
set forth in Section 4. Subject to the foregoing, all covenants, terms,
agreements and conditions of this Agreement shall be binding upon, inure to the
benefit of, and be enforceable by, the Company and the Grantee and their
respective successors and assigns.
13. APPLICABLE LAW. THE INTERPRETATION, PERFORMANCE AND ENFORCEMENT OF THESE
T&Cs SHALL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT REFERENCE
TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
14. ENTIRE AGREEMENT. These T&Cs embody the entire agreement and understanding
between the Company and the Grantee relating to the subject matter hereof.
Xxxxx X. Xxxx
Executive Vice President
Chief Financial Officer
