Form of Non-Qualified Stock Option Agreement for Directors
Exhibit
10.1
Form
of Non-Qualified Stock Option Agreement for Directors
XXX.XXX,
INC.
1. Grant
of Option.
XXX.XXX,
INC., a Delaware corporation (the “Company”), hereby grants to [NAME OF
DIRECTOR] (the “Participant”), an option, pursuant to the Company’s Amended and
Restated 2001 Stock Option and Incentive Plan (the “Plan”), to purchase an
aggregate of _______________ shares of Common Stock, par value $.0005 per share
(“Common Stock”), of the Company at a price of $______ per share, purchasable as
set forth in and subject to the terms and conditions of this option agreement
and the Plan. The original date of grant of this option is ___________, and is
hereinafter referred to as the “Original Grant Date,” and the date ending one
hundred and twenty (120) months thereafter is herein referred to as the “Tenth
Anniversary Date.”
2. Exercise
of Option and Provisions for Termination.
(a) Except as
otherwise provided herein and subject to the right of cumulation provided
herein, this option may be exercised, prior to the Tenth Anniversary Date, as to
not more than the following number of shares of Common Stock covered by this
option during the respective periods set forth as follows: (i) none of the
shares of Common Stock covered by this option prior to _____________, (ii)
2.77777% of the shares of Common Stock covered by this option from and after
__________________, and (iii) an additional 2.77777% of the shares of Common
Stock covered by this option on each monthly anniversary of the Original Grant
Date thereafter, until fully vested, provided, however, that in the event there
is no corresponding monthly anniversary date in any given month, such additional
amount shall vest on the last day of such month (i.e., February 29 would
correspond to January 31).
Notwithstanding
anything herein to the contrary, in the event of a Change-in-Control (as defined
in Section 11(b) of the Plan), any portion of the option granted to the
Participant hereunder which would otherwise vest or become exercisable solely
with the passage of time and the Participant’s continued service as a director
of the Company, shall immediately vest and become fully exercisable.
The right
of exercise provided herein shall be cumulative so that if the option is not
exercised to the maximum extent permissible during any period, it shall be
exercisable, in whole or in part, with respect to all shares not so purchased at
any time during any subsequent period prior to the expiration or termination of
this option.
This
option may not be exercised at any time after the Tenth Anniversary
Date.
(b) Subject
to the conditions hereof, this option shall be exercisable by the Participant
giving written notice of exercise to the Company, specifying the number of
shares to be purchased and the purchase price to be paid therefor and
accompanied by payment in accordance with Section 3 hereof. Such exercise shall
be effective upon receipt by the Treasurer of the Company of the written notice
together with the required payment. The Participant shall be entitled to
purchase less than the number of shares covered hereby, provided that no partial
exercise of this option shall be for less than 10 whole shares.
(c)
Subject
to the provisions of Section 11 of the Plan, if the Participant ceases service
as a director of the Company, for any reason, including retirement but other
than death, this option shall immediately terminate; provided,
however, that
any portion of this option which was otherwise exercisable on the date of
termination of the Participant’s service to the Company may be exercised within
the three-month period following the date on which the Participant ceased to so
serve, but in no event after the Tenth Anniversary Date. Any such exercise may
be made only to the extent of the number of shares subject to this option which
are purchasable upon the date of such termination of service to the Company. If
the Participant dies during such three-month period, this option shall be
exercisable by the Participant’s personal representatives, heirs or legatees to
the same extent and during the same period that the Participant could have
exercised this option upon the date of his or her
death.
(d)
If the
Participant dies while serving as a director of the
Company, this option shall be exercisable, by the Participant’s personal
representatives, heirs or legatees, to the same extent that the Participant
could have exercised this option on the date of his or her death. This option or
any unexercised portion hereof shall terminate unless so exercised prior to the
earlier of the expiration of six months from the date of such death or ten years
and one month from the date of its grant.
3. Payment
of Purchase Price.
(a) Payment
of the purchase price for shares purchased upon exercise of this option shall be
made by one or any combination of the following forms of payment:
| (i) |
by
delivery to the Company of cash or check payable to the order of the
Company in an amount equal to the purchase price of such shares;
|
|
(ii) |
if
the Participant elects and the Company permits, subject to Section
3(b) below,
by delivery of shares of Common Stock of the Company having a fair market
value equal in amount to the purchase price of such shares;
or |
|
(iii)
|
if
the Participant elects and the Company permits, and the Common Stock is
then traded on a national securities exchange or on the Nasdaq National
Market (or successor trading system), by delivery of an irrevocable and
unconditional undertaking, satisfactory in form and substance to the
Company, by a creditworthy broker to deliver promptly to the Company
sufficient funds to pay the exercise price, or delivery by the Participant
to the Company of a copy of irrevocable and unconditional instructions,
satisfactory in form and substance to the Company, to a creditworthy
broker to deliver promptly to the Company cash or a check sufficient to
pay the exercise price. |
(b) If
Section 3(a)(ii) is applicable, and if the Participant delivers Common Stock
held by the Participant (“Old Stock”) to the Company in full or partial payment
of the exercise price and the Old Stock so delivered is subject to restrictions
or limitations imposed by agreement between the Participant and the Company, an
equivalent number of shares of Common Stock issued upon exercise of this option
shall be subject to all restrictions and limitations applicable to the Old Stock
to the extent that the Participant paid for the option shares by delivery of Old
Stock, in addition to any restrictions or limitations imposed by this Agreement.
Notwithstanding the foregoing, the Participant may not pay any part of the
exercise price hereof by transferring Common Stock to the Company unless such
Common Stock has been owned by the Participant free of any substantial risk of
forfeiture for at least six months.
ii
(c) For the
purposes of Section 3(a)(ii) hereof, the fair market value of any share of the
Company’s Common Stock to be delivered to the Company in exercise of this option
shall be determined as of the last business day for which such prices or quotes
are available prior to the date of exercise and shall mean (i) the last reported
sale price (on that date) of the Common Stock on the principal national
securities exchange on which the Common Stock is traded, if the Common Stock is
then traded on a national securities exchange; (ii) the last reported sale price
(on that date) of the Common Stock on the Nasdaq National Market (or successor
trading system), if the Common Stock is not then traded on a national securities
exchange; or (iii) if the stock is not then traded on a national securities
exchange or listed on the Nasdaq National Market (or successor trading system),
the fair market value as determined in good faith by the Board of Directors of
the Company, in accordance with the terms of the Plan.
(d) If the
Participant elects to exercise options by delivery of shares of Common Stock of
the Company, the certificate or certificates representing the shares of Common
Stock of the Company to be delivered shall be duly executed in blank by the
Participant or shall be accompanied by a stock power duly executed in blank
suitable for purposes of transferring such shares to the Company. Fractional
shares of Common Stock of the Company will not be accepted in payment of the
purchase price of shares acquired upon exercise of this option.
4. Delivery
of Shares.
The
Company shall, upon payment of the purchase price for the number of shares
purchased and paid for, make prompt delivery of such shares to the Participant,
provided that if any law or regulation requires the Company to take any action
with respect to such shares before the issuance thereof, then the date of
delivery of such shares shall be extended for the period necessary to complete
such action. No shares shall be issued and delivered upon exercise of any option
unless and until, in the opinion of counsel for the Company, any applicable
registration requirements of the Securities Act of 1933, any applicable listing
requirements of any national securities exchange or market on which stock of the
same class is then listed, and any other requirements of law or of any
regulatory bodies having jurisdiction over such issuance and delivery, shall
have been fully complied with.
5. Non-transferability
of Option.
Except as
provided in Section 2(c) and Section 2(d) hereof, this option is personal and no
rights granted hereunder shall be transferred, assigned, pledged or hypothecated
in any way (whether by operation of law or otherwise) nor shall any such rights
be subject to execution, attachment or similar process. Upon any attempt to
transfer, assign, pledge, hypothecate or otherwise dispose of this option or of
such rights contrary to the provisions hereof, or upon the levy of any
attachment or similar process upon this option or such rights, this option and
such rights shall become null and void.
iii
6. No
Special Rights.
Nothing
contained in the Plan or this Agreement shall be construed or deemed by any
person under any circumstances to bind the Company or any of its subsidiaries or
the Company’s Board of Directors, or any persons or parties holding voting
rights with respect to the election of directors of the Company to continue the
services of the Participant as a director of the Company or any of its
subsidiaries for the period within which this option may be exercised. However,
during the period of the Participant’s service as a director to the Company or
any of its subsidiaries, the Participant shall render diligently and faithfully
the director duties required by the Participant by applicable law on behalf of
the Company and its subsidiaries and shall at no time take any action which
directly or indirectly would be inconsistent with the best interests of the
Company or of its subsidiaries.
7. Rights
as a Stockholder.
The
Participant shall have no rights as a stockholder with respect to any shares
which may be purchased by exercise of this option unless and until a certificate
or certificates representing such shares are duly issued and delivered to the
Participant. Except as otherwise expressly provided in the Plan, no adjustment
shall be made for dividends or other rights for which the record date is prior
to the date such stock certificate is issued.
8. Recapitalization.
In the
event that dividends are payable in shares of Common Stock or in the event there
are splits, sub-divisions or combinations of shares of Common Stock subsequent
to the date hereof, the number of shares subject to this option shall be
increased or decreased proportionately, as the case may be, and the number of
shares deliverable upon the exercise thereafter of this option shall be
increased or decreased proportionately, as the case may be, without change in
the aggregate purchase price.
9. Reorganization.
In case
the Company is merged or consolidated with another corporation or entity and the
Company is not the surviving corporation, or in case the property or stock of
the Company is acquired by any other corporation, or in case of a reorganization
or liquidation of the Company, prior to the termination or expiration of this
option, the Participant shall, with respect to this option or any unexercised
portion thereof, be entitled to the rights and benefits, and be subject to the
limitations, set forth in Section 11 of the Plan and Section 2
hereof.
10.
Withholding
Taxes.
Whenever
shares are to be issued upon exercise of this option, the Company shall have the
right to require the Participant to remit to the Company an amount sufficient to
satisfy any federal, state and local withholding tax requirements prior to the
delivery of any certificate or certificates for such shares.
11.
Miscellaneous.
(a) Except as
provided herein, this Agreement may not be amended or otherwise modified unless
evidenced in writing and signed by the Company and the Participant.
(b) All
notices under this Agreement shall be mailed or delivered by hand to the parties
at their respective addresses set forth beneath their names below or at such
other address as may be designated in writing by either of the parties to one
another.
iv
(c) This
Agreement shall be governed by and construed in accordance with the laws of the
State of Connecticut.
| Dated: | XXX.XXX, INC. | |
| |
|
|
| By: | ||
|
|
Name: | |
| Title | ||
| Address: 000 Xxxx Xxxxx Xxxxx | ||
| Xxx Xxxxx, Xxxxxxxxxxx 00000 | ||
v
PARTICIPANT’S
ACCEPTANCE
The
undersigned hereby accepts the foregoing option and agrees to the terms and
conditions thereof.
| PARTICIPANT | ||
| |
|
|
|
Signature | ||
|
Address: | ||
|
| ||
vi
