EXHIBIT 10.6
BAYCORP HOLDINGS, LTD.
NON-STATUTORY STOCK OPTION AGREEMENT
1. Grant of Option. BayCorp Holdings, Ltd., a New Hampshire
corporation (the "Company"), hereby grants to Director (see
Schedule of Director Grants that follows) an option, pursuant to
the Company's 2001 Non-Statutory Stock Option Plan (the "Plan"),
to purchase an aggregate of 10,000 shares of Common Stock ("Common
Stock") of the Company at a price of $14.45 per share,
purchasable as set forth in and subject to the terms and
conditions of this option and the Plan. Except where the context
otherwise requires, the term "Company" shall include the parent
and all present and future subsidiaries of the Company as defined
in Sections 424(e) and 424(f) of the Internal Revenue Code of
1986, as amended or replaced from time to time (the "Code").
2. Non-Statutory Stock Option. This option is not intended to
qualify as an incentive stock option within the meaning of Section
422 of the Code.
3. Exercise of Option and Provisions for Termination.
(a) Exercise Period. Except as otherwise provided in this
Agreement, this option may be exercised prior to the seventh
anniversary of the date of grant (hereinafter the "Expiration
Date") in full. This option may not be exercised at any time on
or after the Expiration Date, except as otherwise provided in
Section 3(e) below.
(b) Exercise Procedure. Subject to the conditions set forth
in this Agreement, this option shall be exercised by the
Optionee's delivery of written notice of exercise to the Treasurer
of the Company, specifying the number of shares to be purchased
and the purchase price to be paid therefor and accompanied by
payment in full in accordance with Section 4. Such exercise shall
be effective upon receipt by the Treasurer of the Company of such
written notice together with the required payment. The Optionee
may purchase less than the number of shares covered hereby,
provided that no partial exercise of this option may be for any
fractional share or for fewer than ten whole shares.
(c) Continuous Relationship with the Company Required.
Except as otherwise provided in this Section 3, this option may
not be exercised unless the Optionee, at the time he or she
exercises this option, is, and has been at all times since the
date of grant of this option, an employee, officer or director of,
or consultant or advisor to, the Company (an "Eligible Optionee").
(d) Termination of Relationship with the Company. If the
Optionee ceases to be an Eligible Optionee for any reason, then,
except as provided in paragraphs (e) and (f) below, the right to
exercise this option shall terminate 12 months after such
cessation (but in no event after the Expiration Date), provided
that this option shall be exercisable only to the extent that the
Optionee was entitled to exercise this option on the date of such
cessation. Notwithstanding the foregoing, if the Optionee, prior
to the Expiration Date, materially violates the non-competition or
confidentiality provisions of any employment contract,
confidentiality and nondisclosure agreement or other agreement
between the Optionee and the Company, the right to exercise this
option shall terminate immediately upon written notice to the
Optionee from the Company describing such violation.
(e) Exercise Period Upon Death or Disability. If the
Optionee dies or becomes disabled (within the meaning of Section
22(e)(3) of the Code) prior to the Expiration Date while he or she
is an Eligible Optionee, or if the Optionee dies within three
months after the Optionee ceases to be an Eligible Optionee (other
than as the result of a termination of such relationship by the
Company for "cause" as specified in paragraph (f) below), this
option shall be exercisable, within the period of 12 months
following the date of death or disability of the Optionee (whether
or not such exercise occurs before the Expiration Date), by the
Optionee or by the person to whom this option is transferred by
will or the laws of descent and distribution, provide that this
option shall be exercisable only to the extent that this option
was exercisable by the Optionee on the date of his or her death or
disability. Except as otherwise indicated by the context, the term
"Optionee", as used in this option, shall be deemed to include the
estate of the Optionee or any person who acquires the right to
exercise this option by bequest or inheritance or otherwise by
reason of the death of the Optionee.
(f) Discharge for Cause. If the Optionee, prior to the
Expiration Date, is discharged by the Company for "cause" (as
defined below), the right to exercise this option shall terminate
immediately upon such cessation of employment. "Cause" shall mean
willful misconduct by the Optionee or willful failure to perform
his or her responsibilities in the best interests of the Company
(including, without limitation, breach by the Optionee of any
provision of any employment, consulting, advisory, nondisclosure,
non-competition or other similar agreement between the Optionee
and the Company), as determined by the Company, which
determination shall be conclusive. The Optionee shall be
considered to have been discharged "for cause" if the Company
determines, within 30 days after the Optionee's resignation, that
discharge for cause was warranted.
4. Payment of Purchase Price.
(a) Method of Payment. Payment of the purchase price for
shares purchased upon exercise of this option shall be made (i) by
delivery to the Company of cash or a check to the order of the
Company in an amount equal to the purchase price of such shares,
(ii) subject to the consent of the Company, by delivery to the
Company of shares of Common Stock of the Company then owned by the
Optionee having a fair market value equal in amount to the
purchase price of such shares, (iii) by any other means which the
Board of Directors determines are consistent with the purpose of
the Plan and with applicable laws and regulations (including,
without limitation, the provisions of Rule 16b-3 under the
Securities Exchange Act of 1934 and Regulation T promulgated by
the Federal Reserve Board), or (iv) by any combination of such
methods of payment.
(b) Valuation of Shares or Other Non-Cash Consideration
Tendered in Payment of Purchase Price. For the purposes hereof,
the fair market value of any share of the Company's Common Stock
or other non-cash consideration which may be delivered to the
Company in exercise of this option shall be determined in good
faith by the Board of Directors of the Company.
(c) Delivery of Shares Tendered in Payment of Purchase
Price. If the Optionee exercises this option 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
Optionee 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.
(d) Restrictions on Use of Option Stock. Notwithstanding
the foregoing, no shares of Common Stock of the Company may be
tendered in payment of the purchase price of shares purchased upon
exercise of this option if the shares to be so tendered were
acquired within twelve (12) months before the date of such tender,
through the exercise of an option granted under the Plan or any
other stock option or restricted stock plan of the Company.
5. Delivery of Shares; Compliance With Securities Laws, Etc.
(a) General. The Company shall, upon payment of the option
price for the number of shares purchased and paid for, make prompt
delivery of such shares to the Optionee, 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.
(b) Listing, Qualification, Etc. This option shall be
subject to the requirement that if, at any time, counsel to the
Company shall determine that the listing, registration or
qualification of the shares subject hereto upon any securities
exchange or under any state or federal law, or the consent or
approval of any governmental or regulatory body, or that the
disclosure of non-public information or the satisfaction of any
other condition is necessary as a condition of, or in connection
with, the issuance or purchase of shares hereunder, this option
may not be exercised, in whole or in part, unless such listing,
registration, qualification, consent or approval, disclosure or
satisfaction of such other condition shall have been effected or
obtained on terms acceptable to the Board of Directors. Nothing
herein shall be deemed to require the Company to apply for, effect
or obtain such listing, registration, qualification or disclosure,
or to satisfy such other condition.
6. Nontransferability of Option. This option is personal and
no rights granted hereunder may 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, except that this option may be
transferred (i) by will or the laws of descent and distribution or
(ii) pursuant to a qualified domestic relations order as defined
in Section 414(p) of the Code. 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, at the election of the
Company, become null and void.
7. No Special Employment or Similar Rights. Nothing contained
in the Plan or this option shall be construed or deemed by any
person under any circumstances to bind the Company to continue the
employment or other relationship of the Optionee with the Company
for the period within which this option may be exercised.
8. Rights as a Shareholder. The Optionee shall have no rights
as a shareholder with respect to any shares which may be purchased
by exercise of this option (including, without limitation, any
rights to receive dividends or non-cash distributions with respect
to such shares) unless and until a certificate representing such
shares is duly issued and delivered to the Optionee. 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.
9. Adjustment Provisions.
(a) General. If, through or as a result of any merger,
consolidation, sale of all or substantially all of the assets of
the Company, reorganization, recapitalization, reclassification,
stock dividend, stock split, reverse stock split or other similar
transaction, (i) the outstanding shares of Common Stock are
increased or decreased or are exchanged for a different number or
kind of shares or other securities of the Company, or (ii)
additional shares or new or different shares or other securities
of the Company or other non-cash assets are distributed with
respect to such shares of Common Stock or other securities, the
Optionee shall, with respect to this option or any unexercised
portion hereof, be entitled to the rights and benefits, and be
subject to the limitations, set forth in Section 14(a) of the
Plan.
(b) Board Authority to Make Adjustments. Any adjustments
under this Section 9 will be made by the Board of Directors, whose
determination as to what adjustments, if any, will be made and the
extent thereof will be final, binding and conclusive. No
fractional shares will be issued pursuant to this option on
account of any such adjustments.
10. Mergers, Consolidation, Distributions, Liquidations Etc.
In the event of a merger or consolidation or sale of all or
substantially all of the assets of the Company in which
outstanding shares of Common Stock are exchanged for securities,
cash or other property of any other corporation or business
entity, or in the event of a liquidation of the Company, prior to
the Expiration Date or termination of this option, the Optionee
shall, with respect to this option or any unexercised portion
hereof, be entitled to the rights and benefits, and be subject to
the limitations, set forth in Section 15(a) of the Plan.
11. Withholding Taxes. The Company's obligation to deliver
shares upon the exercise of this option shall be subject to the
Optionee's satisfaction of all applicable federal, state and local
income and employment tax withholding requirements.
12. Investment Representations; Legends.
(a) Representations. The Optionee represents, warrants and
covenants that:
(i) Any shares purchased upon exercise of this option
shall be acquired for the Optionee's account for investment only,
and not with a view to, or for sale in connection with, any
distribution of the shares in violation of the Securities Act of
1933 (the "Securities Act"), or any rule or regulation under the
Securities Act.
(ii) The Optionee has had such opportunity as he or she
has deemed adequate to obtain from representatives of the Company
such information as is necessary to permit the Optionee to
evaluate the merits and risks of his or her investment in the
Company.
(iii) The Optionee is able to bear the economic risk of
holding such shares acquired pursuant to the exercise of this
option for an indefinite period.
(iv) The Optionee understands that (A) the shares
acquired pursuant to the exercise of this option will not be
registered under the Securities Act and are "restricted
securities" within the meaning of Rule 144 under the Securities
Act; (B) such shares cannot be sold, transferred or otherwise
disposed of unless they are subsequently registered under the
Securities Act or an exemption from registration is then
available; (C) in any event, an exemption from registration under
Rule 144 or otherwise under the Securities Act not be available
for at least two years and even then will not be available unless
a public market then exists for the Common Stock, adequate
information concerning the Company is then available to the
public, and other terms and conditions of Rule 144 are complied
with; and (D) there is now no registration statement on file with
the Securities and Exchange Commission with respect to any stock
of the Company and the Company has no obligation or current
intention to register any shares acquired pursuant to the exercise
of this option under the Securities Act.
(v) The Optionee agrees that, if the Company offers any
of its Common Stock for sale pursuant to a registration statement
under the Securities Act, the Optionee will not, without the prior
written consent of the Company, offer, sell, contract to sell or
otherwise dispose of, directly or indirectly (a "Disposition"),
any shares purchased upon exercise of this option for a period of
90 days after the effective date of such registration statement.
By making payment upon exercise of this option, the Optionee shall
be deemed to have reaffirmed, as of the date of such payment, the
representations made in this Section 12.
(b) Legends on Stock Certificate. All stock certificates
representing shares of Common Stock issued to the Optionee upon
exercise of this option shall have affixed thereto legends
substantially in the following forms, in addition to any other
legends required by applicable state law;
"The shares of stock represented by this certificate may not be
transferred, sold or otherwise disposed of in the absence of an
effective registration statement with respect to the shares
evidenced by this certificate, filed and made effective under the
Securities Act of 1933, or an opinion of counsel satisfactory to
the Company to the effect that registration under such Act is not
required."
"The shares of stock represented by this certificate are subject
to certain restrictions on transfer contained in an Option
Agreement, a copy of which will be furnished upon request by the
issuer."
13. Miscellaneous.
(a) Except as provided herein, this option may not be
amended or otherwise modified unless evidenced in writing and
signed by the Company and the Optionee.
(b) All notices under this option 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.
(c) This option shall be governed by and construed in
accordance with the laws of the State of New Hampshire.
Date of Grant:
BAYCORP HOLDINGS, LTD.
April 28, 2003
By: /s/ Xxxxx X. Xxxxxx Xx.
--------------------------------
Name: Xxxxx X. Xxxxxx Xx.
Title: President
Address: Xxx Xxx Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX
OPTIONEE'S ACCEPTANCE
The undersigned hereby accepts the foregoing option and
agrees to the terms and conditions thereof. The undersigned hereby
acknowledges receipt of a copy of the Company's 2001 Non-Statutory
Stock Option Plan.
OPTIONEE
_____________________________
Name:
Schedule of BayCorp Holdings, Ltd. Non-Statutory Stock Options granted to Directors
April 28, 2003
Name Date of Incentive Non- Exercise Expiration
(Optionee) Grant Statutory Date Date
Xxxxxxxxx Xxxxx III 4/28/2003 10,000 4/28/2003 4/28/2010
Xxxxxxx X. Xxxxxxx 4/28/2003 10,000 4/28/2003 4/28/2010
Xxxxx X. Xxxxxx 4/28/2003 10,000 4/28/2003 4/28/2010
Xxxx X. Xxxxxxxxxxx 4/28/2003 10,000 4/28/2003 4/28/2010
