EXHIBIT 10.28
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INCENTIVE STOCK OPTION AGREEMENT
UNDER THE BORON, XXXXXX & ASSOCIATES, INC.
AMENDED AND RESTATED
1996 STOCK OPTION AND GRANT PLAN
NAME OF OPTIONEE: Xxxxxxx X. XxXxxxxx
NO. OF OPTION SHARES: 50,000 Shares of Common Stock
GRANT DATE: November 10, 1997
FINAL EXPIRATION DATE: November 10, 2007
OPTION EXERCISE PRICE/SHARE: $22.00
Pursuant to the Boron, XxXxxx & Associates, Inc. Amended and Restated 1996
Stock Option and Grant Plan (the "Plan"), Boron, XxXxxx & Associates, Inc., a
Delaware corporation (the "Company"), hereby grants to the person named above
(the "Optionee"), who is an officer or full-time employee of the Company or any
of its subsidiaries, an option (the "Stock Option") to purchase on or prior to
the expiration date specified above (the "Expiration Date") all or any part of
the number of shares of Common Stock, par value $0.01 per share ("Common
Stock"), of the Company indicated above (the "Option Shares"), at the per share
option exercise price specified above, subject to the terms and conditions set
forth in this Incentive Stock Option Agreement (the "Agreement") and in the
Plan. This Stock Option is intended to qualify as an "incentive stock option"
as defined in Section 422(b) of the Internal Revenue Code of 1986, as amended
from time to time (the "Code"). To the extent that any portion of the Stock
Option does not so qualify, it shall be deemed a non-qualified stock
option. All capitalized terms used herein and not otherwise defined shall have
the respective meanings set forth in the Plan.
1. VESTING AND EXERCISABILITY.
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(a) No portion of this Stock Option may be exercised until such
portion shall have vested.
(b) Except as set forth below and in Section 6, and subject to the
determination of the Compensation Committee of the Board of Directors of the
Company or the Board of Directors of the Company, as applicable (the
"Committee"), in its sole discretion to accelerate the vesting schedule
hereunder, this Stock Option shall be vested and exercisable with respect to the
following number of Option Shares on the date indicated:
Incremental (Aggregate Number)
Of Option Shares Exercisable* Vesting Date
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1. 12,500 shares (12,500) November 10, 1998
2. 12,500 shares (25,000) November 10, 1999
3. 12,500 shares (37,500) November 10, 2000
4. 12,500 shares (50,000) November 10, 2001
(c) In the event that the Optionee's Service Relationship (as
hereinafter defined) with the Company and its subsidiaries terminates for any
reason or under any circumstances, including the Optionee's resignation,
retirement or termination by the Company, upon the Optionee's death or
disability, or for any other reason, regardless of the circumstances thereof,
this Stock Option shall no longer vest or become exercisable with
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* Subject to Section 5.
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respect to any Option Shares not vested as of the date of such termination from
and after the date of such termination, and this Stock Option may thereafter be
exercised, to the extent it was vested and exercisable on such date of such
termination, until the Expiration Date contemplated by Section 1(d), except as
the Committee may otherwise determine. For purposes hereof, a "Service
Relationship" shall mean any relationship as an employee, part-time employee or
consultant of the Company or any subsidiary of the Company such that, for
example, a Service Relationship shall be deemed to continue without interruption
in the event the Optionee's status changes from full-time employee to part-time
employee or consultant.
(d) Once any portion of this Stock Option becomes vested and
exercisable, it shall continue to be exercisable by the Optionee or his or her
successors as contemplated herein at any time or times prior to the earlier of
(i) the date which is 12 months following the date on which the Optionee's
Service Relationship with the Company and its subsidiaries terminates due to
death or disability or for three months following the date on which the
Optionee's Service Relationship with the Company terminates if the termination
is due to any other reason or (ii) the date which is ten years after the Grant
Date first above written, subject to the provisions hereof, including, without
limitation, Section 6 hereof which provides for the termination of unexercised
options upon completion of certain transactions as described therein (the
"Expiration Date").
(e) It is understood and intended that this Stock Option shall qualify
as an "incentive stock option" as defined in Section 422 of the Code.
Accordingly, the Optionee understands that in order to obtain the benefits of an
incentive stock option under Section 422
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of the Code, no sale or other disposition may be made of any Option Shares
within the one-year period beginning on the day after the day of the transfer of
such Option Shares to him or her, nor within the two-year period beginning on
the day after the grant of this Stock Option. If the Optionee disposes (whether
by sale, gift, transfer or otherwise) of any such Option Shares within either of
these periods, he or she will notify the Company within thirty (30) days after
such disposition. The Optionee also agrees to provide the Company with any
information concerning any such dispositions required by the Company for tax
purposes.
2. EXERCISE OF STOCK OPTION.
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(a) The Optionee may exercise only vested portions of this Stock
Option and only in the following manner: Prior to the Expiration Date (subject
to Section 6), the Optionee may deliver a Stock Option Exercise Notice (an
"Exercise Notice") in the form of Appendix A hereto indicating his or her
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election to purchase some or all of the Option Shares with respect to which this
Stock Option has vested at the time of such notice. Such notice shall specify
the number of Option Shares to be purchased.
Payment of the purchase price for the Option Shares may be made by one or
more of the following methods: (a) in cash, by certified or bank check or other
instrument acceptable to the Option Committee; or (b) either (i) in the form of
shares of Common Stock that are not then subject to restrictions under any
Company plan and that have been held by the Optionee for at least six months, if
permitted by the Committee in its discretion; or (ii) by the Optionee delivering
to the Company a properly executed Exercise Notice together with irrevocable
instructions to a broker to promptly deliver to the Company cash or a check
payable and acceptable to the Company to pay the option purchase price, provided
that in the event the
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Optionee chooses to pay the option purchase price as so provided, the Optionee
and the broker shall comply with such procedures and enter into such agreements
of indemnity and other agreements as the Committee shall prescribe as a
condition of such payment procedure, or (c) a combination of (a), (b)(i) and
(b)(ii) above. Payment instruments will be received subject to collection.
(b) Certificates for the Option Shares so purchased will be issued and
delivered to the Optionee upon compliance to the satisfaction of the Committee
with all requirements under applicable laws or regulations in connection with
such issuance. Until the Optionee shall have complied with the requirements
hereof and of the Plan, the Company shall be under no obligation to issue the
Option Shares subject to this Stock Option, and the determination of the
Committee as to such compliance shall be final and binding on the Optionee. The
Optionee shall not be deemed to be the holder of, or to have any of the rights
of a holder with respect to, any shares of stock subject to this Stock Option
unless and until this Stock Option shall have been exercised pursuant to the
terms hereof, the Company shall have issued and delivered the Option Shares to
the Optionee, and the Optionee's name shall have been entered as a stockholder
of record on the books of the Company. Thereupon, the Optionee shall have full
dividend and other ownership rights with respect to such Option Shares, subject
to the terms of this Agreement.
(c) Notwithstanding any other provision hereof or of the Plan, no
portion of this Stock Option shall be exercisable after the Expiration Date,
including or after such date as is contemplated by Section 6 hereof.
3. INCORPORATION OF PLAN. Notwithstanding anything herein to the
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contrary, this
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Stock Option shall be subject to and governed by all the terms and conditions of
the Plan.
4. TRANSFERABILITY. This Agreement is personal to the Optionee and is
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not transferable by the Optionee in any manner other than by will or by the laws
of descent and distribution. This Stock Option may be exercised during the
Optionee's lifetime only by the Optionee. The Optionee may elect to designate a
beneficiary by providing written notice of the name of such beneficiary to the
Company, and may revoke or change such designation at any time by filing written
notice of revocation or change with the Company; such beneficiary may exercise
the Optionee's Stock Option in the event of the Optionee's death to the extent
provided herein. If the Optionee does not designate a beneficiary, or if the
designated beneficiary predeceases the Optionee, the personal representative of
the Optionee may exercise this Stock Option to the extent provided herein in the
event of the Optionee's death.
5. ADJUSTMENT UPON CHANGES IN CAPITALIZATION. The shares of stock
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covered by this Stock Option are shares of Common Stock of the Company. Subject
to Section 6 hereof, if the shares of Common Stock as a whole are increased,
decreased, changed or converted into or exchanged for a different number or kind
of shares or securities of the Company, whether through merger or consolidation,
reorganization, recapitalization, reclassification, stock dividend, stock split,
combination of shares, exchange of shares, change in corporate structure or the
like, an appropriate and proportionate adjustment shall be made in the number
and kind of shares and in the per share exercise price of shares subject to any
unexercised portion of this Stock Option. In the event of any such adjustment
in this Stock Option, the Optionee thereafter shall have the right to purchase
the number of shares under this Stock Option at the per share price, as so
adjusted, which the Optionee could purchase at the total purchase price
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applicable to this Stock Option immediately prior to such adjustment.
Adjustments under this Section 5 shall be determined by the Committee of the
Company, whose determination as to what adjustment shall be made, and the extent
thereof, shall be conclusive. No fractional shares of Common Stock shall be
issued under the Plan resulting from any such adjustment, but the Company in its
discretion may make a cash payment in lieu of fractional shares.
6. EFFECT OF CERTAIN TRANSACTIONS. In the case of (a) the dissolution or
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liquidation of the Company; (b) the sale of all or substantially all of the
assets of the Company and its subsidiaries to another person or entity; (c) a
merger, reorganization or consolidation in which the holders of the Company's
outstanding voting power immediately prior to such transaction do not own a
majority of the outstanding voting power of the surviving or resulting entity
immediately upon completion of such transaction; (d) the sale of the outstanding
stock of the Company to an unrelated person or entity; or (e) any other
transaction or series of transactions where the owners of the Company's
outstanding voting power immediately prior to such transaction do not own a
majority of the outstanding voting power of the surviving or resulting entity
immediately upon completion of such transaction, this Stock Option shall no
longer vest except as the Committee may determine in its sole discretion and in
any case this Stock Option (with respect to both vested and unvested Stock
Options) shall terminate on the effective date of (or, if relevant, the record
date for determining stockholders entitled to participate in) such transaction,
unless provision is made in such transaction in the sole discretion of the
parties thereto for the assumption of this Stock Option or the substitution for
this Stock Option of a new stock option of the successor person or entity or a
parent or subsidiary thereof, with such adjustment as to the number and kind of
shares and the per share exercise price as such parties
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shall agree to, and (in the case of an assumption) with references to the
Company deemed to refer to such successor entity. In the event of any
transaction which will result in such termination, the Company shall give to the
Optionee written notice thereof at least fifteen (15) days prior to the
effective date of such transaction or the record date on which stockholders of
the Company entitled to participate in such transaction shall be determined,
whichever comes first. Until the earlier to occur of such effective date or
record date, the Optionee may exercise any vested portion of this Stock Option,
but after such effective date or record date, as the case may be, the Optionee
may not exercise this Stock Option unless it is assumed or substituted by the
successor as provided above.
7. WITHHOLDING TAXES. The Optionee shall, not later than the date as of
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which the exercise of this Stock Option becomes a taxable event for federal
income tax purposes, pay to the Company or make arrangements satisfactory to the
Committee for payment of any federal, state and local taxes required by law to
be withheld on account of such taxable event. Subject to approval by the
Committee, the Optionee may elect to have such tax withholding obligation
satisfied, in whole or in part, by authorizing the Company to withhold from
shares of Common Stock to be issued or transferring to the Company, a number of
shares of Common Stock with an aggregate Fair Market Value that would satisfy
the withholding amount due. For purposes of this Section 7 "Fair Market Value"
on any given date means the last reported sale price at which Common Stock is
traded on such date or, if no Common Stock is traded on such date, the next
preceding date on which Common Stock was traded, as reflected on the principal
stock exchange or, if applicable, any other national stock exchange on which the
Common Stock is traded or admitted to trading. The Optionee acknowledges and
agrees that the
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Company or any subsidiary of the Company has the right to deduct from payments
of any kind otherwise due to the Optionee, or from the Option Shares to be
issued in respect of an exercise of this Stock Option, any federal, state or
local taxes of any kind required by law to be withheld with respect to the
issuance of Option Shares to the Optionee.
8. MISCELLANEOUS PROVISIONS.
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(A) EQUITABLE RELIEF. The parties hereto agree and declare that legal
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remedies may be inadequate to enforce the provisions of this Agreement and that
equitable relief, including specific performance and injunctive relief, may be
used to enforce the provisions of this Agreement.
(B) CHANGE AND MODIFICATIONS. This Agreement may not be orally
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changed, modified or terminated, nor shall any oral waiver of any of its terms
be effective. This Agreement may be changed, modified or terminated only by an
agreement in writing signed by the Company and the Optionee.
(C) GOVERNING LAW. This Agreement shall be governed by and construed
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in accordance with the laws of the State of Delaware.
(D) HEADINGS. The headings are intended only for convenience in
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finding the subject matter and do not constitute part of the text of this
Agreement and shall not be considered in the interpretation of this Agreement.
(E) SAVING CLAUSE. If any provision(s) of this Agreement shall be
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determined to be illegal or unenforceable, such determination shall in no manner
affect the legality or enforceability of any other provision hereof.
(F) NOTICES. All notices, requests, consents and other communications
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shall
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be in writing and be deemed given when delivered personally, by telex or
facsimile transmission or when received if mailed by first class registered or
certified mail, postage prepaid. Notices to the Company or the Optionee shall be
addressed as set forth underneath their signatures below, or to such other
address or addresses as may have been furnished by such party in writing to the
other.
(G) BENEFIT AND BINDING EFFECT. This Agreement shall be binding upon
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and shall inure to the benefit of the parties hereto, their respective
successors, permitted assigns, and legal representatives. The Company has the
right to assign this Agreement, and such assignee shall become entitled to all
the rights of the Company hereunder to the extent of such assignment.
(H) COUNTERPARTS. For the convenience of the parties and to
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facilitate execution, this Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same document.
[Remainder of Page Intentionally Left Blank]
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The foregoing Agreement is hereby accepted and the terms and conditions
thereof hereby agreed to by the undersigned as of the date first above written.
BORON, XxXXXX & ASSOCIATES, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Title: Chief Operating Officer
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Address: BORON, XxXXXX & ASSOCIATES, INC.
Attention: President
00-00 Xxxxx 000 Xxxxx
Xxxx Xxxx, Xxx Xxxxxx 00000
OPTIONEE:
/s/ Xxxxxxx X. XxXxxxxx
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Optionee's Address:
___________________
___________________
DESIGNATED BENEFICIARY:
___________________________________________
Beneficiary's Address:
___________________
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APPENDIX A
STOCK OPTION EXERCISE NOTICE
Boron, XxXxxx & Associates, Inc.
Attention: Chief Financial Officer
00-00 Xxxxx 000 Xxxxx
Xxxx Xxxx, Xxx Xxxxxx 00000
Dear Sirs:
Pursuant to the terms of my stock option agreement dated ____________ (the
"Agreement") under the Boron, XxXxxx & Associates, Inc. Amended and Restated
1996 Stock Option and Grant Plan, I, [INSERT NAME] ___________________, hereby
[CIRCLE ONE] partially/fully exercise such option by including herein payment in
the amount of $_______ representing the purchase price for [FILL IN NUMBER OF
OPTION SHARES] __________ Option Shares. I have chosen the following form(s) of
payment:
[_] 1. Cash
[_] 2. Certified or Bank Check payable to Boron, XxXxxx & Associates,
Inc.
[_] 3. Other (as described in the Agreement (please describe))
______________.
Sincerely yours,
________________________________________
Please Print Name
________________________________________
Signature
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