Exhibit 10.13
XXXXXXXXXXXXX.XXX
1999 NON-EMPLOYEE DIRECTOR STOCK INCENTIVE PLAN
Non-qualified Stock Option Agreement
This Agreement is by and between XxxxxxxXxxxxx.xxx, Inc. (the
"Company") and _____________, (the "Optionee"), effective as of
_________________.
W I T N E S S E T H:
1. GRANT OF OPTION. Pursuant to the provisions of the XxxxxxxXxxxxx.xxx 1999
Non-Employee Director Stock Incentive Plan (the "Plan"), effective as of the
date hereof, the Company hereby grants to the Optionee, subject to the terms and
conditions of the Plan and subject further to the terms and conditions herein,
the right and option to purchase from the Company all or any part of an
aggregate of _____ shares of the common stock ($.01 par value) of the Company
("Common Shares"), at the purchase price equal to ____ per share, being the fair
market value of the Common Shares as of the date hereof, such option to be
exercised as hereinafter provided. It is intended that the option evidenced
hereby constitute a non-qualified stock option.
2. TERMS AND CONDITIONS. In addition to the terms and conditions contained in
the Plan, it is understood and agreed that the option evidenced hereby is
subject to the following additional terms and conditions:
(a) EXPIRATION DATE. The option shall expire on the 8th anniversary of
the date hereof.
(b) PERIOD OF EXERCISE. Subject to the other terms of this Agreement
regarding the exercisability of this option, this option shall become
exercisable at the rate of ____ Common Shares per _______ over a period of
_______ years from the date hereof commencing _________________ and continuing
on the ________________ day of each ________ thereafter, such that the entire
option shall be fully vested as of ___________________.
(c) EXERCISE OF OPTION. This option shall be exercised by submitting a
written notice to the Committee appointed pursuant to Section 2 of the Plan (the
"Committee") signed by the Optionee and specifying the number of Common Shares
as to which the option is being exercised. Such notice shall be accompanied by
the payment of the full option price for such shares, or shall fix a date (not
more than ten business days from the date of such notice) for the payment of the
full option price of the shares being purchased. Payment shall be made (i) in
cash (including personal check), (ii) by the delivery to the Company of Common
Shares already owned by the Optionee (which shall be valued for this purpose at
the fair market value on the date of transfer to the Company as determined by
the Committee), (iii) at the discretion of the Committee, the delivery of a
promissory note of the Optionee to the Company, payable upon such terms as are
specified by the Committee, or (iv) any combination of the above. A certificate
or certificates for the Common Shares of the Company purchased through the
exercise of an option shall be issued in regular course after the exercise of
the option and payment therefore.
(d) EXERCISE OF OPTION FOLLOWING TERMINATION OF SERVICE. In the event
of termination of a Optionee's continuous service as a director for any reason
other than disability or death, such Optionee may, but only within three (3)
months after the date of such termination (but in no event later than the
expiration date of the term of such option as set forth SECTION 2(a)), exercise
his or her option to the extent that the Optionee was entitled to exercise it at
the date of such termination or to such other extent as may be determined by the
Committee. If the Optionee should die within three (3) months after the date of
such termination, the Optionee's estate or the person who acquired the right to
exercise the option by bequest or inheritance may exercise the option to the
extent that the Optionee was entitled to exercise it at the date of such
termination within twelve (12) months of the Optionee's date of death, but in no
event later than the expiration date set forth in SECTION 2(a).
(e) DISABILITY OF OPTIONEE. In the event of termination of an
Optionee's continuous service as a director as a result of disability, such
Optionee may, within 12 months of the date of such termination (but in no event
later than the expiration date of the term of such option as set forth in
SECTION 2(a)), exercise an option to the extent that the Optionee was entitled
to exercise it at the date of such termination. To the extent that the Optionee
is not entitled to exercise the option at the date of termination, or if the
Optionee does not exercise the option to the extent so entitled within the time
specified herein, the option shall terminate. For purposes hereof, "disability"
means that an Optionee is unable to serve as a director by reason of any
medically determinable physical or mental impairment. An Optionee will not be
considered to have incurred a disability unless he or she furnishes proof of
such condition sufficient to satisfy the Committee in its sole discretion.
(f) DEATH OF OPTIONEE. In the event of death of an Optionee, an option
may be exercised at any time within 12 months following the date of death (but
in no event later than the expiration date of the term of such option as set
forth in SECTION 2(a), by the Optionee's estate or by a person who acquired the
right to exercise the option by bequest or inheritance, but only to the extent
that the Optionee was entitled to exercise it at the date of death. If, at the
time of death, the Optionee was not entitled to exercise the entire option, the
shares covered by the unexercisable portion of the option shall immediately
revert to the Plan. If, after death, the Optionee's estate or a person who
acquired the right to exercise the option by bequest or inheritance does not
exercise the option within the time specified herein, the option shall
terminate.
(g) NON-TRANSFERABILITY. Each option and all rights thereunder shall be
exercisable during the Optionee's lifetime only by the Optionee and shall be
non-assignable and non-transferable by the Optionee except, in the event of the
Optionee's death, by will or by the laws of descent and distribution; provided,
however, that such option may be gifted to a family member or a trust for the
benefit of a family member. For purposes of this Section, "family member" means
a spouse, parent, child, grandchild, step-child or step-grandchild. In the event
the death of an Optionee occurs, the representative or representatives of his
estate, or the person or persons who acquired (by bequest or inheritance) the
rights to exercise his options may exercise such options in whole or in part
prior to the expiration of the applicable exercise period, as specified in
SECTION 2(d) or 2(f) above.
(h) CHANGES IN THE COMPANY'S CAPITAL STRUCTURE. The existence of
outstanding options shall not affect in any way the right or ability of the
Company or its stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's capital
structure or its business, or any merger or consolidation of the Company, or any
issue of bonds, debentures, preferred or prior preference stock ahead of or
affecting the Common Shares or the rights hereof, or the dissolution or
liquidation of the Company, or any sale or transfer of all or any part of its
assets or business or substantially all of the outstanding stock of the Company,
or any other corporate act or proceeding, whether of a similar character or
otherwise.
If the Company shall effect a subdivision, consolidation or
reclassification of shares or other capital readjustment or recapitalization,
the payment of a stock dividend, or other increase or reduction of the number of
shares of the voting shares outstanding, without receiving compensation therefor
in money, services or property, then the number, class, and per share price of
Common Shares shall be appropriately adjusted in such a manner as to entitle an
Optionee to receive upon exercise of an option, for the same aggregate cash
consideration, the same total number and class of shares as he would have
received as a result of the event requiring the adjustment.
If the Company is merged into or consolidated with another corporation,
regardless of whether or not the Company is the surviving corporation, or if the
Company is liquidated, or sells or otherwise disposes of substantially all of
its assets or substantially all of the stock of the Company while this option
remains outstanding, unless the Board determines otherwise, all outstanding
options shall expire as of the effective date of any such merger, consolidation,
liquidation, sale, or other disposition, provided that (x) notice of such
merger, consolidation, liquidation, sale or other disposition shall be given to
such Optionee at least 30 days prior to the effective date of such merger,
consolidation, liquidation, sale or other disposition and (y) an Optionee shall
have the right to exercise an option to the extent that the same is then
exercisable during the 30 day period preceding the effective date of such
merger, consolidation, liquidation, sale or other disposition.
Except as hereinbefore expressly provided, the issue by the Company of
shares of stock of any class, for cash or property, or for labor or services,
either upon direct sale or upon the exercise of rights 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 or price of Common
Shares then subject to outstanding options.
(i) MODIFICATION OR CANCELLATION OF OPTION. The Committee shall have
the authority to effect, at any time and from time to time, with the consent of
the affected Optionee or Optionees, the modification of the terms of any option
agreement (subject to the limitations hereof), including the acceleration of the
exercisability of any option for any reason including a change in the control or
ownership of the Company, or the cancellation of any or all outstanding options
granted under this Plan. In substitution for canceled options, the Committee may
grant new
options (subject to the limitations hereof) covering the same or different
numbers of Common Shares at an option price per share in all events not less
than fair market value on the date of the new grant.
(j) NO RIGHTS AS STOCKHOLDER. The Optionee shall have no rights as a
stockholder with respect to any Common Shares subject to this option prior to
the date of issuance to him of a certificate or certificates for such shares.
(k) COMPLIANCE WITH LAW AND REGULATIONS. This option and the obligation
of the Company to sell and deliver shares hereunder shall be subject to all
applicable federal and state laws, rules and regulations and to such approvals
by any government or regulatory agency as may be required. The Company shall not
be required to issue or deliver any certificates for shares of Common Shares
prior to (i) the listing of such shares on any stock exchange on which the
Common Shares may then be listed, and (ii) the completion of any registration or
qualification of such shares under any federal or state law, or any rule or
regulation of any government body which the Company shall, in its sole
discretion, determine to be necessary or advisable. Moreover, this option may
not be exercised if its exercise, or the receipt of Common Shares pursuant
thereto, would be contrary to applicable law.
3. OPTIONEE BOUND BY PLAN. The Optionee hereby agrees to be bound by all the
terms and provisions of the Plan, a copy of which is available upon request to
the Committee.
4. WITHHOLDING TAXES. Optionee acknowledges and agrees that the Company and its
subsidiaries have the right to deduct from payments of any kind otherwise due to
Optionee any federal, state or local taxes of any kind required by law to be
withheld with respect to the exercise of this option hereunder.
5. NOTICES. Any notice hereunder to the Company shall be addressed to it at its
principal business office, 0000 Xxxxx 00, Xxxx, Xxx Xxxxxx 00000; Attention:
Board of Directors, and any notice hereunder to the Optionee shall be sent to
the address reflected on the records of the Company, subject to the right of
either party to designate at any time hereafter in writing some other address.
6. DELAWARE LAW TO GOVERN. This Agreement shall be construed and administered in
accordance with and governed by the laws of the State of Delaware.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer and the Optionee has executed this
Agreement as of the date above written.
XxxxxxxXxxxxx.xxx, Inc.
By:
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Title: President
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[Optionee]
