EXHIBIT 4.4
DUPONT PHOTOMASKS, INC.
1997 STOCK OPTION AND RESTRICTED STOCK PLAN
INCENTIVE STOCK OPTION
AGREEMENT
This Agreement is made effective as of the 28th day of July, 1997 (the "Grant
Date") by DuPont Photomasks, Inc., a Delaware corporation (the "Company"), for
the benefit of ___________________ (the "Grantee").
To carry out the purposes of the DuPont Photomasks, Inc. 1997 Stock Option and
Restricted Stock Plan (the "Plan"), the Board of Directors or the Committee has
selected the Grantee to participate in the Plan and has granted to the Grantee,
in consideration of the mutual agreements herein, the stock options described
in this Agreement pursuant to the following terms and conditions:
1. GRANT OF OPTION. Subject to the terms and conditions set forth in the Plan
and hereinafter, the Company hereby grants to the Grantee the right and option
(the "Option") to purchase all or any part of an aggregate number of _______
shares of Common Stock (such shares, as increased or decreased in accordance
with Section 8 of the Plan, being referred to hereinafter as the "Option
Shares") at an exercise price of $________ per share (hereinafter the "Exercise
Price"). It is intended that the Option qualify as an "incentive stock option"
("ISO") within the meaning of Section 422 of the Internal Revenue Code of 1986,
as amended (the "Code"). The Company does not guarantee or warrant the tax
treatment of the Option or the Option Shares, and recommends that Grantee
consult with his own tax advisor.
2. EXERCISE OF OPTION.
(a) The Option shall be first vested and exercisable as to twenty-five
percent (25%) of the Option Shares one (1) year after the Grant Date, and shall
become vested and exercisable as to an additional twenty-five percent (25%) of
the Option Shares upon the expiration of each additional year thereafter until
the fourth anniversary of the Grant Date, at which time the Option shall be
vested and exercisable in full.
(b) Subject to the earlier expiration of the Option as herein provided and
subject to the terms and conditions contained herein, the Option may be
exercised by written notice (which complies in all respects with the provisions
of this Agreement) to the Company at its principal executive office addressed
to the attention of the Secretary of the Company, identifying the purchase,
such exercise to be effective at the time of receipt of such written notice at
the Company's principal executive office during normal business hours. The
notice shall not be considered to be properly given unless accompanied by all
documentation deemed appropriate by the Committee to reflect exercise of the
Option, including compliance with all applicable laws, rules and regulations.
(c) The vesting and exercisability of the Option shall be subject to
acceleration on the terms and conditions stated in the Plan. Notwithstanding
anything herein to the contrary, however, in no event shall the Option, or any
part thereof, be exercisable after the tenth anniversary of the Grant Date (the
"Expiration Date").
(d) Except as provided herein, the Option may not be exercised at any time
unless the Grantee shall have been in the continuous employ of the Company, or
a parent or a subsidiary of the Company, from the Grant Date to the date of the
exercise of the Option.
(e) This Agreement has been entered into with the intention that the total
fair market value (determined as of the date of grant) of stock with respect to
which ISO's (whether granted under this Agreement or under any other agreement
or plan of the Company or any of its subsidiaries) are first exercisable by
Grantee in any one calendar year shall not exceed $100,000. In the event that
the Grantee's total ISO's exceed the $100,000 limit in any year (whether due to
acceleration of exercisability, miscalculation or error) the amount of ISO's
that exceed such limit shall be treated as non-qualified stock options. The
ISO's granted earliest (whether under this Agreement or any other agreement)
shall be applied first to the $100,000 limit. In the event that only a portion
of the options granted at the same time can be applied to the $100,000 limit,
the Company shall issue separate share certificate(s) for such number of shares
as does not exceed the $100,000 limit, and shall designate such shares as ISO
stock in its share transfer records.
3. PAYMENT OF EXERCISE PRICE. Upon exercise of the Option, the full Exercise
Price for the Option Shares with respect to which the Option is being exercised
shall be payable to the Company (i) in cash or by check payable and acceptable
to the Company, (ii) by tendering to the Company shares of Common Stock owned
by the Grantee, for at least six (6) months, having an aggregate Market Value
Per Share as of the date of exercise and tender that is not greater than the
Exercise Price for the shares with respect to which the Option is being
exercised and by paying any remaining amount of the Exercise Price as provided
above, or (iii) subject to the approval of the Committee, by the Grantee
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 exercise price,
provided that the Grantee 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. In lieu of (ii)
above, the Committee may, upon confirming that the Grantee owns the number of
additional shares being tendered, authorize the issuance of a new certificate
for the number of shares being acquired pursuant to the exercise of the Option
less the number of shares being tendered upon the exercise and return to the
Grantee (or not require surrender of) the certificate for the shares being
tendered upon the exercise. Payment instructions will be received subject to
collection.
4. NON-TRANSFERABILITY. The Option shall not be transferable or assignable by
the Grantee, in whole or in part, except as otherwise provided in this
Agreement or in the Plan. Except as otherwise provided herein or in the Plan,
the Option shall be exercisable (i) only by the
Grantee during his or her lifetime, or (ii) in the event of his or her death,
by his or her heirs, representatives, distributes, or legatees in accordance
with his or her will or the laws of descent and distribution (but only to the
extent that the Option would be exercisable by the Grantee under Section 2
above).
5. TAX WITHHOLDING. Any provision of this Agreement to the contrary
notwithstanding, the Company may take such steps as it deems necessary or
desirable for the withholding of any taxes that it is required by law or
regulation of any governmental authority, federal, state or local, domestic or
foreign to withhold in connection with any of the Options subject hereto.
6. NO RIGHTS AS STOCKHOLDER. The Grantee shall not have any rights as a
stockholder with respect to any of the Option Shares until the date of issuance
by the Company to the Grantee of a stock certificate representing such Option
Shares. Except as otherwise provided herein or in the Plan, the Grantee shall
not be entitled to any dividends, cash or otherwise, or any adjustment of the
Option Shares for such dividends, if the record date therefor is prior to the
date of issuance of such stock certificate. Upon valid exercise of the Option
by the Grantee, the Company agrees to cause a valid stock certificate for the
number of Option Shares then purchased to be issued and delivered to the
Grantee within five (5) business days thereafter.
7. TERMINATION.
(a) If the Grantee's employment with the Company is terminated for reasons
other than (i) permanent disability within the meaning of Section 22(e)(3) of
the Code or (ii) death, the Option shall be exercisable, subject to the
Expiration Date, only during the period of three (3) months following such
termination and only to the extent the Option was exercisable on the
termination date; provided, however, that the Option will immediately terminate
if the Grantee is terminated for cause.
(b) If the Grantee's employment with the Company is terminated due to
permanent disability, the Grantee shall have the right to exercise the Option,
to the extent the Option was exercisable on the termination date, through the
Expiration Date; provided, however, that the Option must be exercised during
the period of 12 months following such termination in order to qualify as an
incentive stock option under the Code. Whether any termination of employment
is due to retirement or permanent disability, and whether an authorized leave
of absence or absence on military or government service or for other reasons
shall constitute a termination of employment, for the purposes of the Plan
shall be determined by the Committee.
(c) If the Grantee shall die while entitled to exercise the Option, the
Grantee's estate, personal representative or beneficiary, as the case may be,
shall have the right to exercise the Option, to the extent the Option was
exercisable on the date of the Grantee's death, through the Expiration Date;
provided, however, that the Option must be exercised during the period of 12
months following the date of the Grantee's death in order to qualify as an
incentive stock option under the Code.
(d) Except as provided otherwise provided in this Section 7, to the extent
the Option is not exercisable on the termination of employment, the Option, or
applicable portion thereof, shall be terminated and forfeited in full.
8. DISPOSITION OF STOCK AFTER EXERCISE. The Grantee may experience adverse tax
consequences if any Option Shares are disposed of within two (2) years after
the Grant Date or within one (1) year after the date of exercise of the Option.
SHOULD GRANTEE DISPOSE OF ANY OPTION SHARES PRIOR TO THE EXPIRATION OF SUCH
HOLDING PERIOD, GRANTEE AGREES TO NOTIFY COMPANY OF SUCH DISPOSITION SO THAT
THE COMPANY MAY COMPLY WITH ANY REPORTING REQUIREMENTS AND TAKE ADVANTAGE OF
ANY TAX DEDUCTIONS SUCH ACCELERATED ACTION MAY TRIGGER.
9. PLAN INCORPORATED. The Option granted herein is subject to all the
provisions of the Plan, which are incorporated herein. In the event of
conflict between this Agreement and the Plan, the terms of the Plan shall
control. All undefined capitalized terms used herein shall have the meaning
assigned to them in the Plan.
10. EMPLOYMENT RELATIONSHIP. For purposes of this Agreement, the Grantee shall
be considered to be in the employment of the Company as long as the Grantee
remains an employee of either the Company, a parent or subsidiary corporation
(as defined in Section 424 of the Code) of the Company, or a corporation or a
parent or subsidiary of such corporation assuming or substituting a new
agreement for this Agreement. Any question as to whether and when there has
been a termination of such employment, for purposes of this Agreement, and the
cause of such termination, for purposes of this Agreement, shall be determined
by the Board, and its determination shall be final. Nothing herein shall give
the Grantee any right to continued employment or affect in any manner the right
of the Company or any subsidiary or parent corporation to terminate the
employment of the Grantee.
11. NOTICES. All notices, demands and other communications to the Company
required or permitted hereunder, shall be deemed to have been properly given or
delivered when delivered personally or sent by certified or registered mail,
return receipt requested with all postage fully prepaid, addressed to Company
as follows:
Office of General Counsel and Secretary
000 Xxxxx Xxxxxx
Xxxxx Xxxx, Xxxxx 00000
12. TRANSFERABILITY; BINDING EFFECT. The Option shall be transferable only as
set forth herein or in the Plan. Subject to the foregoing, all covenants,
terms, agreements and conditions of this Agreement shall be binding upon, inure
to the benefit of, and be enforceable by, the Company and the Grantee and their
respective successors and assigns.
13. APPLICABLE LAW. THE INTERPRETATION, PERFORMANCE AND ENFORCEMENT OF THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT
REFERENCE TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
14. ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding between the Company and the Grantee relating to the subject
matter hereof.
15. CAPTIONS. The section and paragraph headings in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Xxxxx X. Xxxx
Executive Vice President
Chief Financial Officer
