Exhibit 10 (a)(3)(B)
FORM OF
STOCK OPTION AGREEMENT
PURSUANT TO
XXXXX EQUITY, INC.
1996 STOCK OPTION PLAN
THIS AGREEMENT, entered into as of the 9th day of December, 1996, (the
"Date of Grant"), by and between XXXXX EQUITY, INC., (referred to herein as the
"Company" which definition sometimes includes its subsidiaries), a Florida
corporation, with its principal office at 0000 Xxxxxxxxx Xxxxxx Xxxxx,
Xxxxxxxxxxxx, Xxxxxxx 00000; and ______________ (the "Employee"), who resides at
_____________________________________________________________________.
WHEREAS, the Company has employed the Employee as a key employee of the
Company and considers it desirable and in its best interest that the Employee be
given an inducement to acquire a proprietary interest in the Company and an
added incentive to advance the interests of the Company in the form of options
to purchase common stock of the Company; and
WHEREAS, the Option Committee (the "Committee") of the Board of Directors
(the "Board") of the Company, at a duly constituted meeting held on the Date of
Grant, pursuant to the provisions of the Company's 1996 Stock Option Plan
adopted by the Board on November 19, 1996, (the "Plan"), granted the Employee
the option (the "Option") described herein and so notified the Employee; and
WHEREAS, the Option is a non-statutory type option and not an Incentive
Stock Option as contemplated under Section 422A of the Internal Revenue Code of
1986;
NOW, therefore, in consideration of the mutual covenants contained in this
contract, the parties agree as follows:
1. AGREEMENT
This Agreement contains all the terms and conditions of the Option
granted to the Employee by the Company on the Date of Grant.
2. AMOUNT AND PRICE
The Company, subject to the terms, definitions and provisions of this
Agreement, grants to the Employee the Option to purchase __________ shares of
common stock of the Company, par value $.01 per share (the "Common Stock"), at a
price of $15.375 per share, such price being at least 100% of the fair market
value of the stock on the Date of Grant.
3. HOW EXERCISABLE
(a) The Employee shall exercise the Option by written notice to the
Company, which notice shall specify the number of shares to be purchased and the
date of exercise (the "Date of Exercise") which Date shall not be more than
seven (7) days after the day of the mailing of such notice. On or before the
Date of Exercise, a certified, cashier's or such other check, acceptable to the
Company, cash or, at the Employee's election, shares of the Company's Common
Stock, previously acquired at least six (6) months prior to the Date of Exercise
and currently owned by the Employee, equal in fair market value to the full
payment of the Option price for such shares shall be delivered to the Company at
the office designated in this Agreement; and until such payment, the Employee
shall have no rights in the optioned stock. In the event of any failure to take
and pay by certified, cashier's or such other check, acceptable to the Company,
cash or shares previously acquired shares at least six (6) months prior to the
Date of Exercise, for the number of shares specified in the notice of election
on the date stated therein, the Option shall become inoperative and lapse as to
such number of shares, but shall continue with respect to any remaining shares
subject to the Option as to which notice of exercise has not yet been made.
(b) Within fifteen days after the Date of Exercise, the Company shall
deliver, or cause to be delivered, to the Employee stock certificates for the
number of shares with respect to which the Option is being exercised, if the
Company has received the certification described in Section 9 of this Agreement.
Delivery of the shares may be made at the office of the Company or at the
offices of a transfer agent appointed for transfer of the shares of the Company,
as the Company shall determine. Shares shall be registered in the name of the
Employee or his or her personal representative, as the case may be. Neither an
Employee nor his or her personal representative shall have any of the rights of
a shareholder until the shares are issued as herein provided.
Anything herein to the contrary notwithstanding, if any laws or any
regulation of the Securities and Exchange Commission or of any other body having
jurisdiction shall require the Company or the Employee to take any action in
connection with the shares specified in a notice of election before such shares
can be delivered to such Employee, then the date stated therein for the delivery
of the shares shall be postponed until the fifth business day next following the
completion of such action.
4. WHEN EXERCISABLE
The option may not be exercised prior to six months after the Date of
Grant. Thereafter, the Option shall be exercisable on a cumulative basis as
follows:
% Exercisable Date Exercisable
20% One (1) year after Date of Grant
40% Two (2) years after Date of Grant
60% Three (3) years after Date of Grant
80% Four (4) years after Date of Grant
100% Five (5) years after Date of Grant
Terminates Ten (10) years after Date of Grant
(or such earlier date as provided
otherwise herein)
In the event the Employee dies or becomes totally disabled after the
effective date of the Plan, at any time after having been granted an Option, the
Options granted to the Employee shall immediately become fully exercisable by
his or her estate or heirs in the case of death for the time period specified in
Section 6(b) of this Agreement and by the Employee or the Employee's legal
guardian in the case of total disability for the full Option period specified in
the first paragraph of this Section 4.
5. TRANSFER
The Option shall not be assigned, pledged or hypothecated in any way,
shall not be subject to execution and shall not be transferable by the Employee
otherwise than by will and the laws of descent and distribution. During the
lifetime of the Employee, the Option shall be exercisable only by the Employee,
except as set forth in Section 4 and Section 6(b) of this Agreement.
6. TERMINATION OF OPTIONS
(a) In the event of termination of the employment of the Employee for
any cause, other than death, retirement, or total disability of the Employee,
whether by reason of resignation or discharge, the Option shall terminate
immediately; provided, however, that with the consent of the Committee, which
shall be a matter of its sole discretion, such Employee (if the Employee shall
voluntarily terminate the Employee's employment with the Company) may, within
ninety (90) days immediately following such voluntary termination of employment
and subject to the provisions of Section 4 of this Agreement, exercise any
unexercised Option which could have been exercised on the day of such voluntary
termination.
(b) The Option shall terminate twelve (12) months from the date of the
Employee's death, provided the Employee at the time of his death was in the
employ of the Company or retired from such employment, either as the result of
age or total disability, as determined by the Company's Employee Policy Manual,
(notwithstanding Section 4 of this Agreement). In such event, the Employee's
personal representative(s) may exercise any unexercised Option which the
Employee held at the time of the Employee's death, provided that such exercise
must be accomplished prior to the expiration of such Option as provided by
Section 4 of this Agreement and within the twelve-month period after the date of
the Employee's death.
(c) Retirement, either as the result of age or total disability as
determined in accordance with the Company's Employee Policy Manual, shall not
cause an early termination of the Option.
7. RECAPITALIZATION AND REORGANIZATION
(a) If any change is made in the stock subject to the Plan by reason
of stock dividends, a stock split-up, a reverse stock split, or other
recapitalization or reclassification of the Company's stock, appropriate action
shall be taken by the Committee as to the number of shares and price per share
of the stock subject to the Plan or to any Option granted under the Plan in
order to prevent dilution.
(b) In the case of a spin-off, merger or other corporate transaction
to which Section 425(a) of the Internal Revenue Code of 1986, as amended,
applies, the Company and the spun- off corporation or surviving corporation, as
the case may be, shall assume, without cost to any Employee, all Options
outstanding under the Plan or issue equivalent new Options and the Board shall
take any appropriate action required to effectuate the intent of this Section
7(b).
(c) In the case of a reorganization, merger, consolidation or
spin-off of the Company while any unexercised part of any Option granted
hereunder remains outstanding, there shall be substituted for the shares subject
to the unexercised portions of the Option, an appropriate number of shares of
each class of stock or other securities of the reorganized or merged or
consolidated or spun-off entity which were distributed to the shareholders of
the Company in respect of the Common Stock; provided, however, that all such
Options may be cancelled by the Company as of the effective date of any such
reorganization, merger, consolidation or spin-off or of any dissolution or
liquidation of the Company, by action of the Committee, by giving notice to the
Employee or his or her personal representative(s) or legal guardian(s) of its
intention to do so and by permitting, during the 30-day period immediately
preceding the effective date of any such event, the exercise in whole or in part
of the Option, without regard to any installment provisions hereof, but subject
to any other limitation on the exercise of the Option in effect on the Date of
Exercise.
(d)The Committee may make such additional adjustments in the price and
number of shares subject to Options as it deems appropriate to prevent dilution
on account of any issuance of shares of the Company's Common Stock in a merger
or similar corporate transaction.
8. AMENDMENT OR TERMINATION OF THE PLAN
No modification, termination, or suspension of the Plan shall
adversely affect any right acquired by an Employee under the terms of this
Agreement, if the Option is granted before the date of such termination,
suspension or modification unless the Employee shall consent; provided, however,
it shall be conclusively presumed that any adjustment or changes in
capitalization as provided in Section 7 hereof does not adversely affect the
Option.
9. SECURITIES REGISTRATION
Prior to the delivery of a certificate(s) representing the shares
specified on any notice of election to exercise any Option, the Employee or the
Employee's personal representative(s) or legal guardian(s) shall certify to the
Company in the form attached hereto and marked Exhibit "A" that such Employee or
personal representative(s) or legal guardian(s) will receive and hold the shares
for investment and not with a view to resale or distribution thereof to the
public, if in the opinion of the counsel of the Company such certification is
necessary or desirable to comply with Federal or state securities laws.
The Company shall not be required, upon the exercise of the Option,
to issue or deliver any shares of stock prior to: (a) the authorization of such
shares for listing on any stock exchange on which the Company's Common Stock may
then be listed, and (b) the completion of such registration or other
qualification as the Company shall determine to be necessary or desirable. The
Company may at any time prepare and file, at its own expense and without the
consent of the Employee, a registration statement under the Securities Act of
1933, as such law may then be in effect, with respect to all or any shares
subject to the Option or reserved for or transferred under this Agreement,
either separately or together with other Common Stock or other securities of the
Company. In such event, the Employee or personal representative(s) or legal
guardian(s) who shall have given the certification referred to in the first
sentence of this Section 9 shall be determined to be released therefrom upon the
effective date of such registration statement. Nothing in this Agreement or in
the Plan shall give the Employee the right to request the Company to prepare or
file such a registration statement at any time.
10. WITHHOLDING
With respect to any amount the Employee must recognize as
compensation for income tax purposes, the Company agrees to file the necessary
payroll tax returns to governmental agencies, to remit timely to such agencies
the necessary minimum payroll taxes and employee withholding taxes, and to file
timely the required calendar year-end payroll information returns to the
applicable governmental agencies and the Employee. The Employee agrees to timely
provide the Company with the funds necessary to meet the minimum withholding
requirements (including FICA and Federal Withholding Taxes) of applicable
governmental agencies at the time(s) such taxes must be paid. Notwithstanding
any other provision of this Plan to the contrary, any exercise of any Option
granted under this Plan is contingent upon the Employee providing to the Company
the funds necessary to meet the minimum withholding requirements described
herein and the Company shall not be required, upon the exercise of any Option,
to issue or deliver any shares of stock prior to the Employee providing to the
Company the funds necessary to meet such minimum withholding requirements.
11. CONTINUED EMPLOYMENT
The Employee shall have no right to continue in the employ of the
Company solely by reason of the grant, acceptance or exercise of the Option or
by the terms of this Agreement.
12. STOCKHOLDER RIGHTS
The Employee shall not have any rights of a stockholder by virtue of
the Option except with respect to shares actually issued to him or her and the
issuance of shares shall confer no retroactive right to dividends or other
distribution.
13. EFFECTIVE DATE
The Plan, as adopted by the Board, became effective on November 19,
1996.
14. LAWS GOVERNING
The Option shall be construed and shall take effect in accordance
with the laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
XXXXX EQUITY, INC.
(Corporate Seal) By: ____________________________
President
Attest:____________________________
Secretary
Witnesses:
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Employee
