EXHIBIT 10.44
STOCK OPTION AGREEMENT (the "Agreement"), dated as of
____________, 199__, between Gulfstream Aerospace Corporation, a Delaware
corporation (together with its successors the "Corporation"), and
_______________ (the "Optionee").
1. Grant of Option.
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1.1 The Corporation hereby grants to the Optionee the right
and option (the "Option") to purchase all or any part of an aggregate of
______ whole shares of Common Stock, par value $.01 per share, of the
Corporation (the "Common Stock") (such number being subject to adjustment
as provided in Section 8 hereof) on the terms and conditions set forth in
this Agreement and in the Corporation's Stock Option Plan (the "Plan"), a
copy of which has previously been provided to the Optionee.
1.2 This Option is not intended to qualify as an Incentive
Stock Option within the meaning of Section 422 of the Code.
1.3 Except as otherwise defined herein, capitalized terms
used in this Agreement shall have the same definitions as set forth in the
Plan.
2. Purchase Price. The price at which the Optionee shall be
entitled to purchase shares of Common Stock upon the exercise of this
Option shall be $____ per share (such price being subject to adjustment as
provided in Section 8 hereof) (the "Option Price").
3. Duration of Option. The Option shall be exercisable to the
extent and in the manner provided herein for a period of 10 years from the
date hereof; provided, however, that the Option may be earlier terminated
as provided in Section 4, Section 6, Section 7 or Section 9 hereof.
4. Exercisability of Options.
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(a) Subject to the provisions of this Agreement and the
Plan, the Option shall be exercisable in accordance with the following
schedule:
(i) on or after _______, ____ but before __________,
_______, the Option may be exercised to acquire up to
one-third of the total number of shares of Common Stock
which may be purchased pursuant to the Option as set forth
in Section 1.1 hereof, less any shares previously acquired
pursuant to the Option;
(ii) on or after ___________, ____ but before _______,
_____, the Option may be exercised to acquire up to
two-thirds of the total number of shares of Common Stock
which may be purchased pursuant to the Option as set forth
in Section 1.1, less any shares previously acquired pursuant
to the Option; and
(iii) on or after ___________, _____ but before the
expiration of the term of the Option, the Option may be
exercised to acquire up to 100% of the total number of
shares of Common Stock which may be purchased pursuant to
the Option as set forth in Section 1.1, less any shares
previously acquired pursuant to the Option.
(b) Except in the case of a Terminating Event (as
hereinafter defined) occurring within six months following the date hereof,
the Corporation shall give the Optionee 10 days' written notice (or, if not
practicable, such shorter notice as may be practicable) prior to the
anticipated date of the consummation of a Terminating Event (as hereinafter
defined), and the Optionee shall be permitted to exercise the Option for a
period of 5 days (or such shorter period as the Committee shall determine
and so notify the Optionee) after the date of such notice of the
Terminating Event. In the case of a Terminating Event other than a
Terminating Event occurring within six months following the date hereof,
the Option may be exercised, in whole or in part, for the full amount of
the shares of Common Stock covered thereby (less the number of shares
previously issued to the Optionee upon exercise of the Option), whether or
not the Option was otherwise so exercisable on the date such notice was
given. In the event the Terminating Event is not consummated, the Option
will be deemed not to have been exercised and shall be exercisable
thereafter only to the extent it would have been exercisable if no such
notice had been given. In lieu of permitting the Optionee to exercise the
Option in the event of a Terminating Event, the Committee, in its sole
discretion, may instead cause the Corporation to redeem the unexercised
portion of the Option pursuant to Section 9 hereof.
For purposes hereof, the term "Terminating Event" shall mean the
consummation of any of the following transactions: (i) any merger or
consolidation of the Corporation with or into another corporation (other
than a merger or consolidation in which the Corporation is the surviving
corporation and which does not result in any capital reorganization or
reclassification or other change of the then outstanding shares of Common
Stock), or (ii) the liquidation or dissolution of the Corporation, or (iii)
the sale or other disposition to any person (other than a subsidiary or an
Affiliate of the Corporation) of all or substantially all of the assets of
the Corporation pursuant to a plan of liquidation or otherwise.
Subject to the provisions of Section 9 hereof, the Option shall
be canceled simultaneously with the consummation of a Terminating Event to
the extent that the Option has not theretofore been exercised.
(c) Notwithstanding the foregoing Section 4(a) of this
Agreement, in the event of a Change in Control (as defined in Exhibit A
attached hereto) that occurs more than six months following the date
hereof, the Option shall become immediately and fully exercisable.
5. Manner of Exercise and Payment.
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5.1 Notice of Exercise. Subject to the terms and conditions
of this Agreement and the Plan, the Option may be exercised by delivery of
written notice to the Committee, at the Corporation's principal office (or
such other address as the Corporation may from time to time notify the
Optionee in writing). Such notice shall state that the Optionee is electing
to exercise the Option and the number of shares of Common Stock in respect
of which the Option is being exercised and shall be signed by the Optionee
or by any guardian, executor, administrator or other legal representative
(each, a "Legal Representative"). The Corporation may require proof
satisfactory to it as to the right of such person to exercise the Option.
5.2 Deliveries. The notice of exercise described in Section
5.1 hereof shall be accompanied by (a) the full purchase price for the
shares in respect of which the Option is being exercised, such purchase
price to be paid by certified or bank check payable to the order of the
Corporation or cash by wire transfer to an account designated by the
Corporation. Not less than 250 shares of Common Stock may be purchased at
any one time upon the exercise of an Option, unless the number of shares of
Common Stock so purchased constitutes the total number of shares of Common
Stock then purchasable under the Option.
5.3 Issuance of Shares. Upon receipt of notice of exercise,
full payment for the shares of Common Stock in respect of which the Option
is being exercised, and subject to Section 10 of the Plan, the Corporation
shall take such action as may be necessary under applicable law to effect
the issuance to the Optionee of the number of shares of Common Stock as to
which such exercise was effective.
5.4 Stockholder Rights. 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 Common Stock subject to the Option until: (a) the Option
shall have been exercised pursuant to the terms of this Agreement and the
Optionee shall have paid the full purchase price for the number of shares
in respect of which the Option was exercised and any withholding taxes due
in connection with such exercise, (b) the Corporation shall have issued the
shares to the Optionee, and (c) the Optionee's name shall have been entered
as a stockholder of record on the books of the Corporation. Upon the
occurrence of all of the foregoing events, the Optionee shall have full
voting and other ownership rights with respect to such shares.
6. Certain Restrictions.
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6.1 No Sale or Transfer. The Optionee shall not sell,
transfer, assign, exchange, pledge, encumber or otherwise dispose of the
Option, in whole or in part, except in accordance with the provisions of
this Agreement.
6.2 Employment Termination. Except (i) as provided in this
Section 6.2 or (ii) as may be agreed between the Committee and the
Optionee, if the Optionee shall no longer be employed on a full-time basis
by either the Corporation or any of its subsidiaries, or ceases to serve as
a director of the Corporation or any of its subsidiaries, for any reason
whatsoever (including by reason of death, permanent disability or
adjudicated incompetency) ("Terminated" or a "Termination"), irrespective
of whether the Optionee receives, in connection with the Termination, any
severance or other payment from the Corporation or any of its subsidiaries
under any employment agreement or otherwise (such Optionee being referred
to herein as a "Terminated Optionee"), the portion of the Option that was
not exercisable immediately prior to the Optionee's Termination shall
terminate and shall be of no further force and effect from and after the
date of such Termination. Following a Termination, the Optionee may
exercise the portion of the Option which was exercisable immediately prior
to the date of the Optionee's Termination (the "Exercisable Portion of the
Option") or any portion thereof on one occasion during the 90-day period
following the date of Termination, but in no event after the expiration of
the term of the Option. To the extent the Terminated Optionee does not so
exercise the Exercisable Portion of the Option, the Exercisable Portion of
the Option shall terminate and shall be of no force and effect.
7. Prohibited Activities.
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7.1 Prohibition Against Certain Activities. The Optionee
agrees that (a) he will not at any time during his employment (other than
in the course of his employment) with the Corporation or any Affiliate
thereof, or after any Termination, directly or indirectly disclose or
furnish to any other person or use for his own or any other person's
account any confidential or proprietary knowledge or any other information
which is not a matter of public knowledge obtained during the course of his
employment with, or other performance of services for (including service as
a director of), the Corporation or any Affiliate thereof or any predecessor
of any of the foregoing, no matter from where or in what manner the
Optionee may have acquired such knowledge or information, and he shall
retain all such knowledge and information in trust for the benefit of the
Corporation, its Affiliates and the successors and assigns of any of them,
(b) if he is Terminated, he will not for three years following the
Termination directly or indirectly solicit for employment, including,
without limitation, recommending to any subsequent employer the
solicitation for employment of, any person who at the time of the
solicitation is employed by the Corporation or any Affiliate thereof, (c)
he will not at any time during his employment with, or performance of
services for (including service as a director of), the Corporation or any
Affiliate thereof or any predecessor of any of the foregoing, or after any
Termination, publish any statement or make any statement (under
circumstances reasonably likely to become public or that he might
reasonably expect to become public) critical of the Corporation or any
Affiliate of the Corporation, or in any way adversely affecting or
otherwise maligning the business or reputation of any of the foregoing, and
(d) he will not breach the provisions of Section 6.1 hereof (any activity
described in clause (a), (b), (c) or (d) of this Section 7.1 being herein
referred to as a "Prohibited Activity").
7.2 Right to Terminate Option. The Optionee understands that
the Corporation is granting to the Optionee an option to purchase shares of
Common Stock hereunder to reward the Optionee for the Optionee's future
efforts and loyalty to the Corporation and its Affiliates by giving the
Optionee the opportunity to participate in the potential future
appreciation of the Corporation. Accordingly, (a) if the Optionee engages
in any Prohibited Activity, or (b) if, at any time during the Optionee's
employment with the Corporation or any Affiliate or during the three years
following the Optionee's Termination, the Optionee engages in any
Competitive Activity (as hereinafter defined), or (c) if, at any time
(whether during the Optionee's employment or after any Termination), the
Optionee is convicted of a crime against the Corporation or any of its
Affiliates, then, in addition to any other rights and remedies available to
the Corporation, the Corporation shall be entitled, at its option, to
terminate the Option, which shall then be of no further force and effect.
The term "Competitive Activity" shall mean engaging in any of the following
activities: (i) serving as a director of any person (other than the
Corporation or any of its subsidiaries) that competes either directly or
indirectly through one or more Affiliates with any of the businesses
conducted by the Corporation or any of its Affiliates (a "Competitor"),
(ii) directly or indirectly through one or more intermediaries (X)
controlling any Competitor or (Y) owning any equity or debt interests in
any Competitor (other than equity or debt interests which are publicly
traded and do not exceed 2% of the particular class of interests
outstanding) (it being understood that, if interests in any Competitor are
owned by an investment vehicle or other entity in which the Optionee owns
an equity interest, a portion of the interests in such Competitor owned by
such entity shall be attributed to the Optionee, such portion determined by
applying the percentage of the equity interest in such entity owned by the
Optionee to the interests in such Competitor owned by such entity), (iii)
directly or indirectly soliciting, diverting, taking away, appropriating or
otherwise interfering with any of the customers or suppliers of the
Corporation or any Affiliate of the Corporation of which the Optionee owns
shares of capital stock or any other equity interest or (iv) employment by
(including serving as an officer or director of) or providing consulting
services to any Competitor. For purposes of this Section 7.2, the term
"control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of any
Competitor, whether through the ownership of equity interests, by contract
or otherwise.
8. Adjustments. In the event that the outstanding shares of
Common Stock are changed into or exchanged for a different number or kind
of shares of stock or other securities of the Corporation, whether through
merger, consolidation, reorganization, recapitalization, stock dividend,
stock split-up or other substitution of securities of the Corporation, the
Committee shall make appropriate adjustments to the number and class of
shares of stock subject to this Option and the Option Price for such
shares. The Committee's adjustment shall be final and binding for all
purposes of the Plan and this Agreement. No adjustment provided for in this
Section 8 shall require the Corporation to issue a fractional share, and
the total adjustment with respect to this Agreement shall be limited
accordingly.
9. Terminating Events.
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(a) Upon the effective date of any Terminating Event, any
unexercised portion of this Option shall terminate unless provision shall
be made in writing in connection with such Terminating Event for the
continuance of the Plan and such unexercised portion of the Option and for
the assumption of such unexercised portion of this Option by a Successor
Corporation or for the substitution for such unexercised portion of this
Option of new options covering shares of such Successor Corporation with
appropriate adjustments as to number and kind of shares and prices of
shares subject to such new options; provided, however, that in connection
with a Terminating Event involving the merger, consolidation or liquidation
of the Corporation, the Committee may, in its sole discretion, authorize
the redemption of the unexercised portion of the Option for a consideration
per share of Common Stock issuable upon exercise of the unexercised portion
of the Option equal to the excess of (i) the consideration payable per
share of Common Stock in connection with such Terminating Event, adjusted
as if all outstanding options and warrants had been exercised prior to the
consummation of such Terminating Event, over (ii) the Option Price. In the
event that provision for continuance of the Plan is made in writing in
connection with a Terminating Event, the unexercised portion of this Option
or the new options substituted therefor shall continue in the manner and
under the terms provided in the Plan and this Agreement and in such
writing.
(b) In the event of a redemption pursuant to this Section 9,
the Optionee shall be responsible for and shall be obligated to pay a
proportionate amount (determined as if the Optionee were a holder of the
number of shares of Common Stock which would have been issuable upon
exercise of the portion of the Option redeemed pursuant to this Section 9)
of the expenses, liabilities or obligations incurred or to be incurred by
the stockholders of the Corporation in connection with such Terminating
Event (including, without limitation, the fees and expenses of investment
bankers, legal counsel and other outside advisors and experts retained by
or on behalf of the stockholders of the Corporation in connection with the
Terminating Event, amounts payable in respect of indemnification claims,
amounts paid into escrow and amounts payable in respect of post-closing
adjustments to the purchase price).
10. No Right to Continued Employment. This Option shall not
confer upon the Optionee any right with respect to continuance of
employment by the Corporation or any Affiliate, nor shall it interfere in
any way with the right of the Corporation or any Affiliate to terminate the
Optionee's employment at any time.
11. Withholding. The Corporation shall have the right to deduct
from any amounts payable under this Agreement any taxes or other amounts
required by applicable law to be withheld.
12. Optionee Bound by Plan; Entire Agreement. The Optionee hereby
acknowledges receipt of a copy of the Plan and agrees to be bound by all
the terms and provisions thereof. This Agreement and the Plan constitute
the entire agreement, and supersede all prior agreements and
understandings, oral and written, between the parties hereto with respect
to the subject matter hereof.
13. Execution of Agreement; Modification of Agreement. This
Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original and which together shall constitute one
and the same instrument. This Agreement may be modified, amended, suspended
or terminated by the parties hereto; provided, that the Corporation may
modify, amend, suspend or terminate this Agreement without any further
action by the Optionee if such modification, amendment, suspension or
termination does not adversely affect the Optionee's rights hereunder. Any
terms, covenants, representations or conditions may be waived by the
parties hereto, but only in a writing signed by the party which is entitled
to the benefits of such waived term, covenant, representation or condition.
14. Severability. Should any provision of this Agreement be held
by a court to be unenforceable or invalid for any reason, the remaining
provisions of this Agreement shall not be affected by such holding and
shall continue in full force in accordance with their terms.
15. Acknowledgment. By signing this Agreement, the Optionee
acknowledges that he has reviewed the Plan and this Agreement and
understands his rights and obligations thereunder and hereunder. The
Optionee also acknowledges that he has been provided with such information
concerning the Corporation, the Plan and this Agreement as he and his
advisors have requested.
16. Successors in Interest. This Agreement shall inure to the
benefit of and be binding upon each successor of the Corporation. All
obligations imposed upon the Optionee and all rights granted to the
Corporation under this Agreement shall be binding upon the Optionee's
heirs, executors, administrators and successors.
17. Headings. The headings and captions contained herein are for
convenience only and shall not control or affect the meaning or
construction of any provision hereof.
18. Resolution of Disputes. Any dispute or disagreement which may
arise under, or as a result of, or which may in any way relate to, the
interpretation, construction or application of this Agreement shall be
determined by the Committee. Any determination made hereunder shall be
final and binding for all purposes.
19. Governing Law. This Agreement and the rights and obligations
of the parties hereto shall be governed by, and construed in accordance
with, the laws of the State of New York without giving effect to the
principles of conflicts of laws thereof.
GULFSTREAM AEROSPACE CORPORATION
By:
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Title:
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Optionee
The undersigned acknowledges that the undersigned has read the
foregoing Agreement between Gulfstream Aerospace Corporation and the
undersigned's spouse and the Stock Option Plan, understands that the
undersigned's spouse has been granted an option to acquire shares of
Gulfstream Aerospace Corporation Common Stock, which option is subject to
certain restrictions reflected in such Agreement and such Plan and agrees
to be bound by the foregoing Agreement and such Plan.
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Optionee's Spouse
Exhibit A
Definition of "Change in Control"
For purposes of this Agreement, a "Change in Control" shall mean
the occurrence of any of the following:
(a) An acquisition (other than directly from the
Corporation) of any voting securities of the Corporation (the "Voting
Securities") by any "Person" (as the term person is used for purposes of
Section 13(d) or 14(d) of the Securities Exchange Act of 1934 (the
"Exchange Act")), immediately after which such Person has "Beneficial
Ownership" (within the meaning of Rule 13d-3 promulgated under the Exchange
Act) of fifty percent (50%) or more of the then outstanding Common Stock or
the combined voting power of the Corporation's then outstanding Voting
Securities; provided, however, in determining whether a Change in Control
has occurred, Common Stock or Voting Securities which are acquired in a
"Non-Control Acquisition" (as hereinafter defined) shall not constitute an
acquisition which would cause a Change in Control. A "Non-Control
Acquisition" shall mean an acquisition by (i) an employee benefit plan (or
a trust forming a part thereof) maintained by (A) the Corporation or (B)
any corporation or other Person of which a majority of its voting power or
its voting equity securities or equity interest is owned, directly or
indirectly, by the Corporation (for purposes of this definition, a
"Subsidiary"), (ii) the Corporation or its Subsidiaries, (iii) the FL & Co.
Companies, the direct or indirect partners of any of the FL & Co.
Companies, and any Affiliates of any of the foregoing, or (iv) any Person
in connection with a "Non-Control Transaction" (as hereinafter defined);
(b) The individuals who, as of the date the Option is
granted, are members of the Board of Directors of the Corporation (the
"Incumbent Board"), cease for any reason to constitute at least two-thirds
of the members of the Board of Directors of the Corporation; provided,
however, that if the election, or nomination for election by the
Corporation's common stockholders, of any new director was approved by a
vote of at least two-thirds of the Incumbent Board, such new director
shall, for purposes of this Plan, be considered as a member of the
Incumbent Board; provided further, however, that no individual shall be
considered a member of the Incumbent Board if such individual initially
assumed office as a result of either an actual or threatened "Election
Contest" (as described in Rule 14a-11 promulgated under the Exchange Act)
or other actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board of Directors of the Corporation (a
"Proxy Contest") including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest; or
(c) The consummation of a merger, consolidation or
reorganization with or into the Corporation or in which securities of the
Corporation are issued, unless such merger, consolidation or reorganization
is a "Non-Control Transaction." A "Non-Control Transaction" shall mean a
merger, consolidation or reorganization with or into the Corporation or in
which securities of the Corporation are issued where the individuals who
were members of the Incumbent Board immediately prior to the execution of
the agreement providing for such merger, consolidation or reorganization
constitute at least a majority of the members of the board of directors of
the Surviving Corporation, or a corporation beneficially directly or
indirectly owning a majority of the voting securities of the Surviving
Corporation.
Notwithstanding the foregoing, a Change in Control shall not be deemed to
occur solely because any Person (the "Subject Person") acquired Beneficial
Ownership of more than the permitted amount of the then outstanding Common
Stock or Voting Securities as a result of the acquisition of Common Stock
or Voting Securities by the Corporation which, by reducing the number of
Common Stock or Voting Securities then outstanding, increases the
proportional number of shares Beneficially Owned by the Subject Persons,
provided that if a Change in Control would occur (but for the operation of
this sentence) as a result of the acquisition of Common Stock or Voting
Securities by the Corporation, and after such share acquisition by the
Corporation, the Subject Person becomes the Beneficial Owner of any
additional Common Stock or Voting Securities which increases the percentage
of the then outstanding Common Stock or Voting Securities Beneficially
Owned by the Subject Person, then a Change in Control shall occur.
