Stock Purchase Agreement pursuant to Stock Purchase Plan (2004) of Hooper Holmes, Inc.
pursuant
to
Stock
Purchase Plan (2004)
of
Xxxxxx
Xxxxxx, Inc.
AGREEMENT,
dated as of
the ________ day of ___________, 20__, between Xxxxxx Xxxxxx,
Inc.
(hereinafter called the “Corporation”) and
_______________________________________________
(Please
Print Full Name)
whose
Social Security Number is ______________________________ (hereinafter called
the
“Participant”).
WHEREAS, the
Corporation has adopted its Employee Stock Purchase Plan (2004) (hereinafter
called the “Plan”) to provide employment incentive and to encourage stock
ownership by employees of the Corporation and employees of its subsidiaries
to
increase their proprietary interest in the Corporation’s success;
and
WHEREAS,
the Plan is intended to qualify under Section 423 of the Internal Revenue
Code
of 1986, as amended, and to comply with the requirements of 17 CFR 240.16b-3
for
exemption relief under Section 16(b) of the Securities Exchange Act of 1934,
as
amended; and
WHEREAS,
Participant, having not less than one year of continuous employment with
the
Corporation or a “Participating Subsidiary” of the Corporation (as that term is
defined in the Plan) immediately prior to the date hereof, is now eligible
to
participate in the Plan, and the Corporation desires to afford Participant
the
opportunity to acquire or enlarge Participant’s stock ownership in the
Corporation so that Participant may have a direct proprietary interest in
the
Corporation’s success.
NOW,
THEREFORE, the parties hereto hereby agree as follows:
1. Subject
to the terms and
conditions set forth herein, the Corporation grants to Participant the right
to
purchase from the Corporation on ________________ (hereinafter called the
“Purchase Date”) at a price of $______ per share, up to but not exceeding in the
aggregate the number of shares of the Corporation’s Common Stock designated on
the last page hereof as the number of shares Participant has elected to have
covered by this Agreement, which right may be exercised in whole or in part,
as
hereinafter set forth.
2. Subject
to the provisions
of Section 3(b) hereof, Participant’s employer, who is identified on the last
page hereof (and who, if different from the Corporation, is hereinafter called
the “Participating Subsidiary”), is hereby authorized during the period
commencing on or about the date hereof and ending on the Purchase Date, to
deduct from Participant’s compensation on each payment date thereof
substantially equal amounts which in the aggregate will be sufficient, exclusive
of any interest earned thereon during such period, to accumulate the aggregate
purchase price of all the shares covered by this
Agreement. Participant hereby authorizes the Corporation or such
Participating Subsidiary or both, as the Corporation may decide, to act as
custodian of, and to commingle all withheld amounts of all participants in
the
Plan in a single interest-bearing securities or commercial bank account (the
“Custodial Account”) to be opened by the Corporation, as
custodian. Participant agrees that Participant shall have no right to
request the withdrawal by the Corporation and the payment to Participant
of
Participant’s share of the funds accumulated in the Custodial Account, or of the
interest accumulated thereon, except as provided in this Agreement.
3. Participant’s
rights under this Agreement may be exercised as follows:
(a) Unless
Participant shall
notify the Secretary of the Corporation that Participant does not desire
to
purchase some or all of the shares covered by this Agreement by delivering
a
written notice thereof to the Secretary of the Corporation (or the Plan
Coordinator for Participant’s employer who is designated by the Secretary and
specified on the last page of this Agreement) at least one business day prior
to
the Purchase Date, Participant shall be deemed to have elected to exercise
Participant’s right under this Agreement to purchase on the Purchase Date all of
the shares then covered by this Agreement and shall be deemed to have directed
the Corporation to withdraw and apply to the purchase price of such shares
Participant’s share of the funds, not including interest, accumulated in the
Custodial Account. If such funds are less than such purchase price,
Participant, in order to purchase all of such shares, will be required to
furnish, and agrees to furnish, the Secretary of the Corporation or the Plan
Coordinator on or prior to the Purchase Date with cash or a cashier’s check
payable to Xxxxxx Xxxxxx, Inc. for the amount of such purchase price not
covered
by such funds. If such additional funds are not so furnished,
Participant will be entitled to purchase, and will be deemed to have elected
to
purchase, only the whole number of shares the purchase price of which is
covered
by Participant’s share of the funds, not including interest, accumulated in the
Custodial Account. Upon any purchase pursuant to this subsection (a)
all rights to purchase shares under this Agreement shall terminate in their
entirety.
(b) On
the termination of all rights to purchase shares under this Agreement pursuant
to the terms hereof, the Corporation shall withdraw the excess, if any, of
Participant’s share of the funds, including interest, then accumulated in the
Custodial Account and pay the same to Participant within twenty (20) business
days after such termination.
4. Participant
may at any time on or prior to the Purchase Date terminate this Agreement
in its
entirety by written notice of such termination delivered to the Secretary
of the
Corporation or the Plan Coordinator at least one business day prior to the
Purchase Date.
5. The
Corporation shall deliver to Participant a certificate or certificates
representing the number of purchased shares upon the exercise by Participant
of
the right to purchase shares hereunder. The Corporation shall deliver
to Participant such certificate or certificates within a reasonable time
after
such exercise. All certificates representing shares purchased by
Participant hereunder shall be registered in the name of Participant and,
unless
the Secretary of the Corporation or the Plan Coordinator is instructed in
writing by Participant to the contrary, shall be forwarded to Participant
at the
address as shown on the records of Participant’s employer.
6. This
Agreement and the rights hereby granted to Participant under this Agreement
shall terminate and be of no force or effect upon the happening of any of
the
following events:
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(a)
|
Termination
of Participant’s employment with the Corporation or a Participating
Subsidiary, except in case of (i) death or (ii) retirement with
the
consent of the Participant’s
employer;
|
|
|
(b)
|
Participant’s
retirement with the consent of the Participant’s employer, unless the date
of retirement is within 30 days prior to the Purchase Date;
or
|
|
|
(c)
|
Participant’s
death, unless the date of death is within 60 days prior to the
Purchase
Date.
|
Retirement
by Participant at normal retirement date in accordance with the provisions
of a
retirement plan of the Corporation or a Participating Subsidiary under which
the
Participant is then covered shall be deemed to be a retirement with the consent
of Participant’s employer for the purposes of this Agreement. The
Compensation Committee (the “Committee”) shall have absolute discretion to
determine whether any other termination of Participant’s employment (either at
an optional retirement date in accordance with the provisions of such retirement
plan or otherwise) is to be considered as retirement with the consent of
the
Participant’s employer for purposes of this Agreement. The Committee
shall also have absolute discretion to determine whether an authorized leave
of
absence or absence on military or government service or otherwise shall
constitute a termination of employment for purposes of this
Agreement. Any determination made by the Committee with respect to
any matter referred to in this Section 6 shall be final and conclusive on
all
persons affected thereby. Employment by the Corporation or a
Participating Subsidiary shall be deemed to be continuous and not to terminate
during any uninterrupted period in which Participant is an employee of the
Corporation or a Participating Subsidiary but only if and so long as, in
the
case of employment by such Participating Subsidiary, such employment will,
under
the provisions of the Internal Revenue Code as then in effect, qualify the
rights hereby granted for the same tax treatment as would be accorded if
Participant were an employee of the
Corporation.
Notwithstanding
anything else contained in this Agreement, the Plan provides that, unless
the
Committee determines otherwise, the right to purchase shares hereunder shall
automatically terminate if, on the last business day before the Purchase
Date,
the closing price of shares of Common Stock as reported on the American Stock
Exchange is 10% or more below the purchase price of the shares specified
in this
Agreement.
7. The
rights granted hereby are not transferable by Participant except by will
or
pursuant to the laws of descent and distribution. During
Participant’s lifetime, such rights are exercisable only by
Participant. To the maximum extent permitted by law, no assignment or
transfer of such rights, whether voluntary or involuntary, by operation of
law
or otherwise, except by will or the laws of descent and distribution, shall
vest
in the assignee or transferee any interest or right therein
whatsoever. The rights granted hereunder shall terminate immediately
upon any attempt to assign or transfer the rights granted hereby in violation
of
this Agreement and any such attempted assignment or transfer shall have no
force
or effect.
8. Whenever
the word “Participant” is used in any provision of this Agreement under
circumstances where the provision should logically be construed to apply
to the
estate, personal representative, or beneficiary to whom the right granted
hereby
may be transferred by will or by the laws of descent and distribution, it
shall
be deemed to include such person.
9. Participant
shall not be deemed for any purpose to be a shareholder of the Corporation
with
respect to any shares as to which the rights granted hereby to purchase shares
shall not have been exercised and for which payment has not been made as
herein
provided.
10. The
existence of the rights granted hereby shall not affect in any way the right
or
power of the Corporation or a Participating Subsidiary to terminate the
employment of Participant or the right or power of the Corporation or its
shareholders to make or authorize any or all adjustments, recapitalizations,
reorganizations or other changes in the Corporation’s capital structure or its
business, or any merger or consolidation of the Corporation, or any issue
of
bonds, debentures, preferred or prior preference stock, ahead of or convertible
into, or otherwise affecting, the Common Stock or the right thereof, or the
dissolution or liquidation of the Corporation, or any sale or transfer of
all or
any part of its assets or business, or any other corporate act or proceeding,
whether of a similar character or otherwise.
11. In
the event that the Committee shall determine that any stock dividend,
extraordinary cash dividend, recapitalization, reorganization, merger,
consolidation, split-up, spin off combination, exchange of shares, warrants
or
rights offering to purchase Common Stock, or other similar corporate event
affects the Common Stock such that an adjustment is required in order to
preserve the benefits or potential benefits intended to be made available
under
the Plan, then the Committee shall, in its sole discretion, and in such manner
as the Committee may deem equitable, adjust any or all of (a) the number
and
kind of shares which are the subject of this Agreement and (b) the purchase
price of such shares under the Agreement and/or, if deemed appropriate, make
provision for a cash payment, provided, however, that the number of shares
subject to this Agreement shall always be a whole number.
12. Anything
in this Agreement to the contrary notwithstanding, if, at any time specified
herein for the delivery of shares to Participant, any law, regulation or
requirement of any governmental authority having jurisdiction in the premises
shall require either the Corporation or Participant to take any action in
connection with the shares then to be issued, the delivery of such shares
shall
be deferred until such action shall have been taken.
13. Any
dispute or disagreement which shall arise under, or as a result of, or pursuant
to, this Agreement shall be determined by the Committee in its absolute
discretion, and any such determination or any other determination by the
Committee under or pursuant to this Agreement shall be final, binding and
conclusive on all persons affected thereby.
14. The
Committee shall have the right, in its absolute discretion, to alter or amend
this Agreement from time to time in any manner for the purpose of promoting
the
objectives of the Plan, and any alteration or amendment of this Agreement
by the
Committee shall, upon adoption thereof by the Committee, become and be binding
and conclusive on all persons affected thereby without requirement for consent
or other action with respect thereto by any such persons. The
Corporation shall give written notice to Participant of any such alteration
or
amendment of this Agreement by the Committee as promptly as practicable after
the adoption thereof. The foregoing shall not restrict the ability of
Participant and the Corporation by mutual consent to alter or amend this
Agreement in any manner which is consistent with the Plan and approved by
the
Committee.
15. In
the event that all of the participants under the Plan elect to purchase a
number
of shares which in the aggregate exceeds the maximum number of shares that
are
then being offered pursuant to the Plan, the number of shares to be purchased
by
Participant pursuant to this Agreement shall be proportionately
reduced. The Committee shall cause written notice of any such pro
rata reduction of shares to be purchased under this Agreement to be given
to
Participant as soon as practicable after the reduction has been
made.
16. Any
notice which either party hereto may be required or permitted to give to
the
other shall be in writing, and may be delivered personally or by mail, postage
prepaid, addressed as follows: to the Corporation at 000 Xx. Xxxx Xxxx, Xxxxxxx
Xxxxx, XX 00000 to the attention of the Secretary, or the Plan Coordinator
at
the address set forth at the end of this Agreement or at such other addresses
as
the Corporation, by notice to Participant, may designate in writing from
time to
time; and to Participant, at Participant’s address as shown on the records of
Participant’s employer or the Corporation, or at such other address as
Participant, by notice to the Secretary of the Corporation, may designate
in
writing from time to time. Unless otherwise determined by the
Committee, the date of mailing as evidenced by the postmark on any notice
mailed
in accordance herewith shall be deemed the date that such notice was
given.
17. This
Agreement shall be construed in accordance with and governed by the law of
the
State of New York without giving effect to any conflict of laws rule or
principle that might require the application of the laws of another
jurisdiction.
18. This
Agreement is in every respect subject to all provisions of the
Plan.
19. The
Corporation may make such provisions as it deems appropriate for the withholding
of any taxes it determines are due in connection with this
Agreement. In the event that Participant makes a disposition of any
shares acquired pursuant to this Agreement within two years from the date
of
this Agreement or within one year after the date of transfer of the shares
to
Participant, Participant shall within ten days after disposition notify the
Corporation of such disposition.
Number
of
Shares Participant elects to have covered by this Agreement: ______________
Shares
Participant’s
Employer: ___________________________________
Plan
Coordinator for Participant’s
Employer: ___________________________________
XXXXXX
XXXXXX, INC.
By: ___________________________________
PARTICIPANT:
