Exhibit 10.15
FORM OF NONQUALIFIED STOCK OPTION AGREEMENT
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This AGREEMENT (the "Agreement") is made as of ____________ (the "Date of
Grant") by and between xxx.xxx inc., a Delaware corporation (the "Company"), and
__________________ (the "Optionee").
1. Grant of Stock Option. Subject to and upon the terms, conditions, and
restrictions set forth in this Agreement and in the Company's 1999 Equity
Incentive Plan (the "Plan"), the Company hereby grants to the Optionee as of the
Date of Grant a stock option (the "Option") to purchase _____________ Common
Shares (the "Optioned Shares"). The Option may be exercised from time to time in
accordance with the terms of this Agreement. The price at which the Optioned
Shares may be purchased pursuant to this Option shall be _____________ per share
subject to adjustment as hereinafter provided (the "Option Price"). The Option
is intended to be a nonqualified stock option and shall not be treated as an
"incentive stock option" within the meaning of that term under Section 422 of
the Code.
2. Term of Option. The term of the Option shall commence on the Date of
Grant and, unless earlier terminated in accordance with Section 6 hereof, shall
expire ten (10) years from the Date of Grant.
3. Right to Exercise. Subject to the expiration or earlier termination of
the Option, on each anniversary of the Date of Grant the number of Optioned
Shares equal to __________ percent (___%) multiplied by the initial number of
Optioned Shares specified in this Agreement shall become exercisable on a
cumulative basis until the Option is fully exercisable. To the extent the Option
is exercisable, it may be exercised in whole or in part. In no event shall the
Optionee be entitled to acquire a fraction of one Optioned Share pursuant to
this Option. The Optionee shall be entitled to the privileges of ownership with
respect to Optioned Shares purchased and delivered to the Optionee upon the
exercise of all or part of this Option.
4. Option Nontransferable. (a) The Option granted hereby shall be neither
transferable nor assignable by the Optionee other than by will or by the laws of
descent and distribution and may be exercised, during the lifetime of the
Optionee, only by the Optionee, or in the event of his or her legal incapacity,
by his or her guardian or legal representative acting on behalf of the Optionee
in a fiduciary capacity under state law and court supervision.
(b) Notwithstanding the provisions of Section 4(a), the Option granted
hereby shall be transferable by the Optionee, without payment of consideration
therefor by the transferee, to any one or more members of the Optionee's
Immediate Family (or to one or more trusts established solely for the benefit of
one or more members of the Optionee's Immediately Family or to one or more
partnerships in which the only partners are members of the Optionee's Immediate
Family); provided, however, that (i) no such transfer shall be effective unless
reasonable prior notice thereof is delivered to the Company and such transfer is
thereafter effected in accordance with any terms and conditions that shall have
been made applicable to the Company or the Board and (ii) any such transferee
shall be subject to the same terms and conditions hereunder as the Optionee.
5. Notice of Exercise; Payment. To the extent then exercisable, the Option
may be exercised by written notice to the Company stating the number of Optioned
Shares for which the Option is being exercised and the intended manner of
payment. Payment equal to the aggregate Option Price of the Optioned Shares for
which the Option is being exercised shall be tendered in full with the notice of
exercise to the Company in cash in the form of currency or check or other cash
equivalent acceptable to the Company. The Optionee may also tender the Option
Price by (a) the actual or constructive transfer to the Company of
nonforfeitable, nonrestricted Common Shares that have been owned by the Optionee
for (i) more than one year prior to the date of exercise and for more than two
years from the date on which the option was granted, if they were originally
acquired by the Optionee pursuant to the exercise of an incentive stock option,
within the meaning of Section 422 of the Code or (ii) more than six months prior
to the date of exercise, if they were originally acquired by the Optionee other
than pursuant to the exercise of an incentive stock option, or (b) by any
combination of the foregoing methods of payment, including a partial tender in
cash and a partial tender in nonforfeitable, nonrestricted Common Shares. Within
ten days thereafter, the Company shall direct the due issuance of the Optioned
Shares so purchased. Nonforfeitable, nonrestricted Common Shares that are
transferred by the Optionee in payment of all or any part of the Option Price
shall be valued on the basis of their Fair Market Value per Common Share. The
requirement of payment in cash shall be deemed satisfied if the Optionee makes
arrangements that are satisfactory to the Company with a bank or broker that is
a member of the National Association of Securities Dealers, Inc. to sell on the
exercise date a sufficient number of Optioned Shares that are being purchased
pursuant to the exercise, so that the net proceeds of the sale transaction will
at least equal the amount of the aggregate Option Price plus payment of any
applicable withholding taxes, and pursuant to which the bank or broker
undertakes to deliver to the Company the amount of the aggregate Option Price
plus payment of any applicable withholding taxes on a date satisfactory to the
Company, but not later than the date on which the sale transaction will settle
in the ordinary course of business. As a further condition precedent to the
exercise of this Option, the Optionee shall comply with all regulations and
requirements of any regulatory authority having control of, or supervision over,
the issuance of Common Shares and in connection therewith shall execute any
documents that the Board shall in its sole discretion deem necessary or
advisable. The date of the Optionee's written notice shall be the exercise date.
6. Termination of Agreement. This Agreement and the Option granted hereby
shall terminate automatically and without further notice on the earliest of the
following dates:
(a) 90 days after the Optionee's death or permanent and total
disability, if the Optionee dies or becomes permanently and totally disabled
while in the employ of the Company or during the 30-day period specified in
Section 6(c);
(b) 90 days after the Optionee's retirement under a retirement plan of
the Company or one of its Subsidiaries at or after the earliest voluntary
retirement age provided for in such retirement plan or retirement at any earlier
age with the consent of the Board;
(c) Except as provided on a case-by-case basis, 30 calendar days after
the Optionee ceases to be an employee of the Company and its Subsidiaries for
any reason other than as described in Section 6(a) or 6(b) hereof; or
(d) Ten years from the Date of Grant.
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In the event that the Optionee's employment is terminated for cause, the
Agreement shall terminate at the time of such termination notwithstanding any
other provision of this Agreement. For purposes of this provision, "cause" shall
mean the Optionee shall have committed prior to termination of employment any of
the following acts:
(i) fraud, misappropriation, embezzlement, dishonesty or other
similar act of misconduct by the Optionee against the Company or any of its
subsidiaries or affiliates, the Optionee's willful misconduct with respect
to the business and affairs of the Company or any of its subsidiaries or
affiliates;
(ii) intentional wrongful damage to material assets of the
Company;
(iii) intentional wrongful disclosure of material confidential
information of the Company;
(iv) intentional wrongful engagement in any competitive activity
that would constitute a material breach of the duty of loyalty;
(v) intentional breach of any stated material policy of the
Company;
(vi) the Optionee's conviction of or plea of guilty or nolo
contendre to a felony or crime involving moral turpitude.
This Agreement shall not be exercisable for any number of Optioned Shares in
excess of the number of Optioned Shares for which this Agreement is then
exercisable, pursuant to Sections 3 and 7 hereof, on the date of termination of
employment. For the purposes of this Agreement, the continuous employment of the
Optionee with the Company shall not be deemed to have been interrupted, and the
Optionee shall not be deemed to have ceased to be an employee of the Company, by
reason of the transfer of his or her employment among the Company and its
Subsidiaries or a leave of absence of not more than _____ (__) days approved by
the Board. For the purposes of this Agreement, "permanent and total disability"
shall be defined by Section 22(e)(3) of the Code.
7. Acceleration of Option. The Option granted hereby shall become
immediately exercisable in full in the event of (a) a Change in Control, (b) the
Optionee's permanent and total disability if the Optionee becomes permanently
and totally disabled while an employee of the Company or one of its
Subsidiaries, or (c) the death of the Optionee if such death occurs while the
Optionee is employed by the Company or one of its Subsidiaries.
8. No Employment Contract. Nothing contained in this Agreement shall confer
upon the Optionee any right with respect to continuance of employment by the
Company, nor limit or affect in any manner the right of the Company to terminate
the employment or adjust the compensation of the Optionee.
9. Taxes and Withholding. To the extent that the Company shall be required
to withhold any federal, state, local or foreign taxes in connection with the
exercise of the Option, and the amounts available to the Company for such
withholding are insufficient, it shall be a condition to the exercise of the
Option that the Optionee shall pay such taxes or make provisions
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that are satisfactory to the Company for the payment thereof. The Optionee may
elect to satisfy all or any part of any such withholding obligation by (a)
surrendering to the Company a portion of the Optioned Shares that are issued or
transferred to the Optionee upon the exercise of the Option, and the Optioned
Shares so surrendered by the Optionee shall be credited against any such
withholding obligation at the Fair Market Value per Common Share of such shares
on the date of such surrender or (b) utilizing the bank or broker assistance
arrangement provided in Section 5. The Company will pay any and all issue and
other taxes in the nature thereof which may be payable by the Company in respect
of any issue or delivery upon a purchase pursuant to this Option.
10. Compliance with Law. The Company shall make reasonable efforts to
comply with all applicable federal and state securities laws; provided, however,
notwithstanding any other provision of this Agreement, the Option shall not be
exercisable if the exercise thereof would result in a violation of any such law.
11. Adjustments. The Board may make or provide for such adjustments in
the number of Optioned Shares covered by this Option, in the Option Price
applicable to such Option, and in the kind of shares covered thereby, as the
Board, in its sole discretion, exercised in good faith, may determine is
equitably required to prevent dilution or enlargement of the Optionee's rights
that otherwise would result from (a) any stock dividend, stock split,
combination of shares, recapitalization, or other change in the capital
structure of the Company, (b) any merger, consolidation, spin-off, split-off,
spin-out, split-up, reorganization, partial or complete liquidation, or other
distribution of assets or issuance of rights or warrants to purchase securities,
or (c) any other corporate transaction or event having an effect similar to any
of the foregoing. In the event of any such transaction or event, the Board, in
its discretion, may provide in substitution for this Option such alternative
consideration as it may determine to be equitable in the circumstances and may
require in connection therewith the surrender of this Option.
12. Availability of Common Shares. The Company shall at all times until
the expiration of the Option reserve and keep available, either in its treasury
or out of its authorized but unissued Common Shares, the full number of Optioned
Shares deliverable upon the exercise of this Option.
13. Amendments. Any amendment to the Plan shall be deemed to be an
amendment to this Agreement to the extent that the amendment is applicable
hereto; provided, however, that no amendment shall adversely affect the rights
of the Optionee under this Agreement without the Optionee's consent.
14. Severability. In the event that one or more of the provisions of this
Agreement shall be invalidated for any reason by a court of competent
jurisdiction, any provision so invalidated shall be deemed to be separable from
the other provisions hereof, and the remaining provisions hereof shall continue
to be valid and fully enforceable.
15. Relation to Plan; Interpretation. This Agreement is subject to the
terms and conditions of the Plan. In the event of any inconsistency between the
provisions of this Agreement and the Plan, the Plan shall govern. Capitalized
terms used herein without definition shall have the meanings assigned to them in
the Plan. The Board acting pursuant to the Plan, as constituted from time to
time, shall, except as expressly provided otherwise herein, have the right
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to determine any questions which arise in connection with this Option or its
exercise. Any reference herein to a provision of a statute, rule or regulation
shall also include any successor provision thereto.
16. Successors and Assigns. Without limiting Section 4 hereof, the
provisions of this Agreement shall inure to the benefit of, and be binding upon,
the successors, administrators, heirs, legal representatives and assigns of the
Optionee, and the successors and assigns of the Company.
17. Governing Law. The interpretation, performance, and enforcement of
this Agreement shall be governed by the laws of the State of Delaware, without
giving effect to the principles of conflict of laws thereof.
18. Notices. Any notice to the Company provided for herein shall be in
writing to the Company, marked Attention: ___________________________________,
and any notice to the Optionee shall be addressed to the Optionee at his or her
address on file with the Company. Except as otherwise provided herein, any
written notice shall be deemed to be duly given if and when delivered personally
or deposited in the United States mail, first class certified or registered
mail, postage and fees prepaid, return receipt requested, and addressed as
aforesaid. Any party may change the address to which notices are to be given
hereunder by written notice to the other party as herein specified (provided
that for this purpose any mailed notice shall be deemed given on the third
business day following deposit of the same in the United States mail).
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed on
its behalf by its duly authorized officer and Optionee has also executed this
Agreement in duplicate, as of the day and year first above written.
xxx.xxx inc.
By:____________________________________
_______________________________________
Optionee
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