XXXXXX HOLDING CORPORATION
NONQUALIFIED STOCK OPTION AGREEMENT
Option Agreement Number: NSO -___
Date of Grant/Award:
---------------------------
Name of Optionee:
---------------------------
Optionee's Social Security Number: ___-__-____
Vesting Dates:
---------------------------
Expiration Date:
---------------------------
1. Grant of Option.
(a) Pursuant to the 2005 Stock Option Plan (the "Plan") of Xxxxxx
Holding Corporation (the "Company"), a Stock Option (the "Option"), dated as of
the Date of Grant/Award set forth above (the "Grant Date"), is hereby granted to
the above-named Optionee. The award of this Option (the "Award") conveys to the
Optionee the right to purchase from the Company up to __________ shares of
common stock (the "Common Stock") at an exercise price of $________ per share
(the "Option Shares").
(b) The Option awarded hereunder is intended to be a nonqualified stock
option and is specifically not intended to be treated as an Incentive Stock
Option as such term is defined under Section 422 of the Code.
2. Vesting. The Option Shares will vest and expire in accordance with
the following vesting schedule:
--------------------------- ----------------------- --------------------
Shares Full Vest Date Expiration Date
--------------------------- ----------------------- --------------------
3. Exercise of Option.
(a) The Option may be exercised with respect to all or any part of the
number of vested Option Shares by the giving of written notice ("Notice") of the
intent to exercise to the Company. The Notice shall specify the exercise date
and the number of Option Shares as to which the Option is to be exercised.
(b) Full payment, in cash, of the Option exercise price shall be made
on or before the exercise date specified in the Notice. Such full payment having
occurred on or before the exercise date specified in the Notice, or as soon
thereafter as is practicable, the Company shall cause to be delivered to the
Optionee a certificate or certificates for the Option Shares then being
purchased. If the Optionee fails to pay for any of the Option Shares specified
in the Notice, or fails to accept delivery of Option Shares, the Optionee's
right to purchase such Option Shares may be terminated by the Company.
(c) The Administrator (as defined below), in its absolute and sole
discretion, may authorize any one or more of the following additional methods of
payment of the Option exercise price:
(i) Delivery by the Optionee of shares of Common Stock
previously owned by the Optionee for all or part of the Option exercise price,
provided, that, subject to Section 6.2 of the Plan, the Fair Market Value of
such shares being delivered is equal on the date of exercise to the Option
exercise price, or such portion thereof as the Optionee is authorized to pay by
delivery of such stock; or
(ii) Through the surrender of shares of Common Stock then
issuable upon the exercise of the Option, provided, that, subject to Section 6.2
of the Plan, the Fair Market Value of such shares is equal on the date of
exercise to the Option exercise price, or such portion thereof as the Optionee
is authorized to pay by surrender of such stock.
(d) During the Optionee's lifetime, the Option granted hereunder shall
be exercisable only by the Optionee.
4. Expiration Date. To the extent not previously exercised, the Option
and all rights with respect thereto, shall terminate and become null and void
upon the Expiration Date shown above.
5. Fractional Shares. No fractional shares of Common Stock will be
issued upon the exercise of this Option.
6. Definitions. Whenever used herein, the following terms shall have
their respective meanings set forth below:
(a) "Administrator" shall have the meaning defined in Section 4 of the
Plan.
(b) "Agreement" means this Nonqualified Stock Option Agreement (NSO
Number __), dated as of .
(c) "Code" means the Internal Revenue Code of 1986, as amended, and any
applicable regulations promulgated thereunder.
(d) "Fair Market Value" means
(i) the closing price of shares of Common Stock of the Company
or other securities of the Company on the date before the date the value is to
be determined on the principal recognized securities exchange or recognized
securities market on which such stock is reported, but if selling prices are not
reported, its fair market value shall be the mean between the high bid and low
asked prices for such stock on the date before the date the value is to be
determined (or if there are no quoted prices for such date, then for the last
preceding business day on which there were quoted prices).
2
(ii) In the absence of an established market for the stock,
the fair market value thereof shall be determined in good faith by the
Administrator, with reference to the Company's net worth, prospective earning
power, dividend-paying capacity, and other relevant factors, including goodwill
of the Company, the economic outlook in the Company's industry, the Company's
position in the industry, the Company's management, and the values of stock of
other corporations in the same or similar line of business.
7. Termination. The Option may be exercised at any time or from time to
time prior to the Expiration Date in accordance with the vesting schedule set
forth above (the "Option Term"). The Option Term is not contingent upon the
continued service of the Optionee with the Company. The Option shall be
exercisable after the Optionee's termination of association with the Company
until the Expiration Date.
8. Changes in Capital Structure; Corporate Transactions.
(a) In the event of a stock split, reverse stock split, stock dividend,
or recapitalization, combination or reclassification or similar change in the
capital structure of the Company, appropriate adjustments shall be made by the
Board of Directors of the Company (the "Board") in (i) the number and class of
shares of stock subject to the Plan and each Option outstanding under the Plan,
and (ii) the exercise price per share of any outstanding Option.
(b) In the event of the proposed dissolution or liquidation of the
Company, the Administrator shall notify the Optionee at least 30 days prior to
such proposed action. To the extent not previously exercised, the Option shall
terminate immediately prior to the consummation of such proposed action;
provided, however, that the Administrator, in its sole discretion, may permit
the exercise of the Option prior to its termination, even if such Option was not
otherwise exercisable.
(c) In the event of a merger or consolidation of the Company with or
into another corporation or entity in which the Company does not survive, or in
the event of a sale of all or substantially all of the assets of the Company in
which the shareholders of the Company receive securities of the acquiring entity
or an affiliate thereof, the Option shall be assumed or equivalent options shall
be substituted by the successor corporation (or other entity) or a parent or
subsidiary of such successor corporation (or other entity); provided, however,
that if such successor does not agree to assume the Options or to substitute
equivalent options therefor, the Administrator, in its sole discretion, may
permit the exercise of the Option prior to consummation of such event, even if
such Option were not otherwise exercisable.
(d) The grant of Awards under the Plan shall in no way affect the right
of the Company to adjust, reclassify, reorganize or otherwise change its capital
or business structure or to merge, consolidate, dissolve, liquidate or sell or
transfer all or any part of its business or assets.
3
9. Stockholder Rights. Until the date a stock certificate is issued to
the Optionee, the Optionee shall have no rights as a stockholder with respect to
the Option Shares, and no adjustments shall be made for dividends of any kind or
nature, distributions, or other rights for which the record date is prior to the
date such stock certificate is issued.
10. Stock Certificate. Until the Option Shares are registered, each
certificate representing the Option Shares shall be stamped or otherwise
imprinted with a legend substantially in the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR IF APPLICABLE, STATE
SECURITIES LAWS. THESE SHARES MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH SECURITIES ACT AND APPLICABLE STATE LAWS OR
COMPLIANCE WITH AN APPLICABLE EXEMPTION THEREFROM, SUCH COMPLIANCE, AT
THE OPTION OF THE COMPANY, TO BE EVIDENCED BY AN OPINION OF COUNSEL
REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED
11. No Transfer or Assignment.
(a) Neither (i) this Agreement, (ii) any of the rights, benefits,
duties or obligations hereunder, nor (iii) the Option Shares, may be transferred
or assigned without the prior written consent of the Company.
(b) Notwithstanding the foregoing, the Option Shares may be
transferable (i) by will or by the laws of descent and distribution, in the case
of the death of the Optionee, or (ii) pursuant to a qualified domestic relations
order.
12. Amendment. The Company may unilaterally amend the Award at any time
if the Company determines, in its sole discretion that amendment is necessary or
advisable in light of any applicable addition to or change in the Code, any
regulations issued thereunder, or any federal or state securities law or other
applicable law or regulation.
13. Acknowledgement. The Optionee acknowledges having received and read
a copy of this Agreement and the Plan and agrees to comply with the Plan and all
laws, rules and regulations applicable to the Award and to the sale or other
disposition of the Common Stock of the Company received.
14. Entire Agreement. This Agreement contains the entire understanding
between the parties. No other representations or covenants have induced either
party to execute this Agreement, and this Agreement supersedes all prior
understandings among the parties hereto with respect to the subject matter
contained herein.
4
15. Notices. Any notice to the Company provided for in this Agreement
shall be addressed to it in care of its Secretary at its executive offices
located at 000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000, and any
notice to the Optionee shall be addressed to the Optionee at the address
currently shown on the records of the Company. Any notice shall be deemed duly
given if and when properly addressed and posted by registered or certified mail,
postage prepaid.
16. Severability. If any provision of this Agreement is held to be
illegal or invalid for any reason, the remaining provisions are to remain in
full force and effect and are to be construed and enforced in accordance with
the purposes of this Agreement as if the illegal or invalid provision or
provisions did not exist.
17. Headings. The section headings of this Agreement are for
convenience of reference only and do not form a part of the terms of this
Agreement.
IN WITNESS WHEREOF, the Company has caused its duly authorized officer
to execute this Nonqualified Stock Option Agreement, and the Optionee has placed
his or her signature hereon, effective as of the Grant Date.
XXXXXX HOLDING CORPORATION
By: ________________________________
Name:
Title:
ACCEPTED AND AGREED TO:
------------------------------------
Name:
Optionee
5
