EXHIBIT 4.5
XXXXXXX CORPORATION
FORM OF NON-QUALIFIED STOCK OPTION AGREEMENT
NONQUALIFIED STOCK OPTION AGREEMENT dated as of _______, 2000,
between XXXXXXX CORPORATION, a Delaware corporation (the
"Corporation"), and ___________ an employee of the Corporation or
one of its subsidiaries (the "Holder").
WHEREAS, the Corporation desires, by affording the Holder
an opportunity to purchase shares of the Corporation's Common Stock as
hereinafter provided, to carry out the purposes of the Corporation's 2000
Stock Incentive Plan (the "Plan");
WHEREAS, the Management Resources and Compensation
Committee of the Board of Directors of the Corporation (the "Committee") has
duly made all determinations necessary or appropriate to the grant hereof;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants hereinafter set forth and for other good and valuable
consideration, receipt of which is hereby acknowledged, the parties hereto
have agreed, and do hereby agree, as follows:
1. The Corporation hereby irrevocably grants to the Holder, as
a matter of separate agreement and not in lieu of salary or any other
compensation for services, the right and option (the "Option"), to purchase
_______ shares of Common Stock of the Corporation on the terms and conditions
herein set forth.
2. For each of said shares purchased, the Holder shall pay to
the Corporation $______per share (the "Option Price").
3. Subject to the provisions of paragraphs 7, 8 and 9 hereof,
this Option shall be for a term of ten years from the date hereof and shall
become exercisable as to one-third of the shares covered by this Option on
the first anniversary hereof, as to two-thirds of the shares covered by this
Option on the second anniversary hereof (reduced by such number of shares as
may have theretofore been purchased hereunder after the first anniversary),
and as to all shares covered by this Option and not theretofore purchased on
the third anniversary hereof. The Corporation shall not be required to issue
any fractional shares upon exercise of this Option, and any fractional
interests resulting from the calculation of the number of shares in respect
of which this Option may be exercised prior to the third anniversary hereof
shall be rounded down to the nearest whole share. Except as provided in
paragraphs 6, 7, 8 and 9 hereof, this Option may not be exercised unless the
Holder shall, at the time of exercise, be an employee of the Corporation or
one of its "subsidiaries", as defined in the Plan.
4. This Option may be exercised only by one or more notices in
writing of the Holder's intent to exercise this Option, accompanied by
payment by check to the Corporation in
an amount equal to the aggregate Option Price of the total number of whole
shares then being purchased. Unless otherwise specified by the Corporation,
each such notice and check shall be delivered to Xxxxxx X. Xxxxxx, Manager of
Administrative Services, at the principal office of the Corporation or, at
the risk of the Holder, mailed to said Xxxxxx X. Xxxxxx at said office.
5. Following the exercise of this Option, the Corporation
will advise the Holder of the applicable Federal, state and FICA taxes
required to be withheld by reason of such exercise. Thereupon, the Holder
shall forthwith deliver to the Corporation a check payable to the Corporation
or the subsidiary of the Corporation which employs the Holder, as the case
may be, representing said taxes.
6. Except as otherwise provided in this paragraph 6, this
Option is not transferable by the Holder otherwise than by will or the laws
of descent and distribution and may be exercised, during the lifetime of the
Holder, only by the Holder. Notwithstanding anything herein which would
otherwise limit the transferability of this Option, this Option may be
transferred by the Holder to (i) the spouse, children or grandchildren of the
Holder ("Immediate Family Members"); (ii) a trust or trusts for the exclusive
benefit of such Immediate Family Members; (iii) a Revocable Living Trust; or
(iv) a partnership in which such Immediate Family Members are the only
partners, in any case provided that (x) there is no consideration for any
such transfer and (y) subsequent transfers of transferred Options shall be
prohibited except transfers to those persons or entities to which the Holder
could have transferred this Option or transfers otherwise in accordance with
this Option. Following transfer, this Option shall continue to be subject to
the same terms and conditions as were applicable immediately prior to
transfer, except that the term "Holder", for purposes of any permitted
exercise of this Option, shall be deemed to refer to the transferee, it being
understood that the events of termination of employment and death following
termination of employment set forth in paragraphs 7, 8 and 9 hereof shall
continue to be applied with respect to the original Holder, following which
this Option shall be exercisable by the transferee only to the extent, and
for the periods specified in, such paragraphs. The Corporation disclaims any
obligation to provide notice to a transferee of circumstances (including,
without limitation, termination of employment of the original Holder) which
may result in early termination of this Option.
7. In the event of the termination of employment of the
Holder with the Corporation or one of its subsidiaries, other than by reason
of Retirement (as defined in the Plan) or death, the Holder may exercise this
Option at any time within three months (or one year, if the Holder is
permanently and totally disabled within the meaning of Section 22(e)(3) of
the Federal Internal Revenue Code) after such termination of employment, but
only if and to the extent this Option was exercisable at the date of
termination, and in no event after the date on which this Option would
otherwise terminate; provided, however, if such termination of employment is
for cause or a voluntary termination on the part of the Holder without the
written consent of the Corporation, then this Agreement shall be of no
further force or effect and all rights of the Holder under this Option shall
thereupon cease.
8. In the event of the termination of employment of the
Holder with the Corporation or one of its subsidiaries by reason of
Retirement, then all shares subject to this
Option shall be fully exercisable, and this Option shall be exercisable by
the Holder at any time up to and including (but not after) the date on which
this Option would otherwise terminate.
9. In the event of the death of the Holder (i) while
employed by the Corporation or one of its subsidiaries or after Retirement,
(ii) within three months after termination of the Holder's employment (other
than a termination by reason of permanent and total disability within the
meaning of Section 22(e)(3) of the Federal Internal Revenue Code), or (iii)
within one year after termination of the Holder's employment by reason of
such disability, then all shares subject to this Option shall be fully
exercisable and this Option may be exercised by the legatees under the last
will of the Holder, or by the personal representatives or distributees of the
Holder, at any time within a period of one year after the Holder's death, but
in no event after the date on which this Option would otherwise terminate.
10. If, prior to the termination of this Option, the number
of outstanding shares of Common Stock of the Corporation shall be increased
or decreased by reason of a stock split, stock dividend, reverse stock split
or combination thereof, then the number of shares at the time subject to this
Option, the number of shares reserved for issuance pursuant to exercise
hereof, and the Option Price per share shall be proportionately adjusted
without any change in the aggregate Option Price therefor.
11. If, prior to the termination of this Option, the
outstanding shares of Common Stock of the Corporation shall be affected by
any change other than those specifically mentioned in the preceding paragraph
(e.g., by reason of a spin-off, split-up, recapitalization, merger,
consolidation, combination or exchange of shares), then the aggregate number
and class of shares thereafter subject to this Option and the Option Price
thereof, and the number and class of shares reserved for issuance pursuant to
exercise hereof, may be appropriately adjusted in such manner as the
Committee shall in its sole discretion determine to be equitable and
consistent with the purposes of the Plan. Such determination shall be
conclusive for all purposes of this Option.
12. This Option and each and every obligation of the
Corporation hereunder are subject to the requirement that if at any time the
Corporation shall determine, upon advice of counsel, that the listing,
registration, or qualification of the shares covered hereby 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 granting of this Option or the
purchase of shares hereunder, this Option may not be exercised in whole or in
part unless and until such listing, registration, qualification, consent or
approval shall have been effected or obtained free of any conditions not
acceptable to the Board of Directors of the Corporation.
13. In the event of a "change in control" or a "Pooling
Transaction", as those terms are defined in the Plan, the Holder shall have
all of the rights specified in Paragraph 10(B) and, if applicable, Paragraph
10(D) of the Plan.
14. Nothing herein contained shall confer on the Holder any
right to continue in the employment of the Corporation or any of its
subsidiaries or interfere in any way with the
right of the Corporation or any subsidiary to terminate the Holder's
employment at any time; confer on the Holder any of the rights of a
shareholder with respect to any of the shares subject to this Option until
such shares shall be issued upon the exercise of this Option; affect the
Holder's right to participate in and receive benefits under and in accordance
with the provisions of any pension, profit-sharing, insurance, or other
employee benefit plan or program of the Corporation or any of its
subsidiaries; or limit or otherwise affect the right of the Board of
Directors of the Corporation (subject to any required approval by the
shareholders) at any time or from time to time to alter, amend, suspend or
discontinue the Plan and the rules for its administration; provided, however,
that no termination or amendment of the Plan may, without the consent of the
Holder, adversely affect the Holder's rights under this Option.
IN WITNESS WHEREOF, this Nonqualified Stock Option Agreement
has been duly executed by the Corporation and the Holder as of the day and
year first above written.
XXXXXXX CORPORATION
By: ________________________________
Senior Vice President
--------------------------------
Holder
