EXHIBIT 4.3
STOCK OPTION AGREEMENT
THIS AGREEMENT, dated as of _____________, is made and entered into by
and between XXXXX CARIBE, INC., a Puerto Rico corporation (the "Company"), and
___________________ (the "Optionee").
WITNESSETH:
WHEREAS, the Company has adopted and approved the 1998 Stock Option
Plan (the "Plan") for the purpose of providing economic incentive to the
employees and directors of the Company; and
WHEREAS, the Plan provides for the grant of qualified stock options
which meet the requirements of Section 1046 of the Puerto Rico Internal Revenue
Code of 1994, as amended, ("qualified stock options") incentive stock options
which meet the requirements of Section 422 of the Internal Revenue Code of 1986,
as amended, ("incentive stock options") and stock options not intended to
qualify as incentive stock options or qualified stock options ("non-statutory
options"); and
WHEREAS, this Agreement is executed pursuant to, and is intended to
carry out the purposes of the Plan, by granting [a qualified stock option] [an
incentive stock option] [a non-statutory stock option] to the Optionee.
NOW, THEREFORE, in consideration of the Optionee's employment by the
Company or Optionee's service as a non-employee director, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
1. GRANT OF THE OPTION. Subject to and upon the terms and
conditions set forth in this Agreement and of the Plan, a copy of
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which is attached hereto as Exhibit A, the Company hereby grants to the Optionee
[a qualified stock option] [an incentive stock option] [a non-statutory stock
option] (the "Option") to purchase up to _________________ (_______) shares (the
"Option Shares") of the Company's common stock, par value $0.001 per share (the
"Common Stock"), at a price equal to $_____ per share, which is equal to the
Fair Market Value of the Common Stock, as defined in the Plan.
2. TERM. The term of the Option shall commence on the date of this
Agreement, and, subject to the provisions of Section 5 hereof, shall expire ten
(10) years from the date of this Agreement. Upon its termination, the Option
shall be of no further force and effect and shall not be exercisable to any
extent.
3. VESTING. Subject to the provisions of Section 5 of this Agreement,
the right of the Optionee to purchase the Option Shares under the Option shall
vest over a period of five (5) years at the rate of twenty percent (20%) per
year, the first twenty percent (20%) to vest on the first anniversary date of
this Agreement, and an additional twenty percent (20%) shall vest on each
subsequent anniversary date of this Agreement.
4. RESTRICTIONS ON TRANSFER. The Optionee may not transfer any of the
Optionee's rights in the Option or under this Agreement except upon the
Optionee's death. No transfer of an option by an Optionee by will or by the laws
of descent and distribution shall be effective to bind the Company unless the
Company shall have been furnished with written notice thereof and a copy of the
will and/or such other evidence as the Committee may determine necessary to
establish the validity of the transfer.
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5. TERMINATION OF OPTION ON TERMINATION OF EMPLOYMENT AND CERTAIN OTHER
EVENTS.
(a) If the Optionee's employment or service as a non-employee
director with the Company or any of its subsidiaries terminates by reason of
death, the Option shall become fully vested and may thereafter be immediately
exercised by the legal represen tative of the estate or by the legatee of the
Optionee under the will of the Optionee, for a period of one (1) year from the
date of death or until the expiration of the stated term of the Option,
whichever period is shorter.
(b) If the Optionee's employment or service as a non-employee
director with the Company or any of its subsidiaries terminates voluntarily
(with or without the consent of the Company) or by reason of Disability (as
hereinafter defined), retirement, or because the employing subsidiary ceased to
be a Subsidiary (as hereinafter defined) of the Company and the employee or
director does not, prior thereto or contemporaneously therewith, become an
employee or director of the Company or of another Subsidiary, the Option shall
become fully vested and may thereafter be exercised for a period of ninety (90)
days from the date of such termination of employment or the expiration of the
stated term of such Option, whichever period is shorter.
(c) If the Optionee's employment or service as a non-employee
director with the Company or any of its subsidiaries is terminated by the
Company or any of its subsidiaries, with or without cause, the Option may
thereafter be exercised to the extent it was exercisable at the time of
termination of employment for a period of ninety (90) days from the date of
termination of the expiration of the stated term of the option, whichever period
is shorter, provided that the Option shall terminate as of the date the Optionee
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ceased being an employee of the Company or any of its subsidiaries if the
Committee (as hereinafter defined) in its sole discretion shall determine that
it is not in the best interest of the Company that the option should continue
for such ninety (90) day period.
(d) For purposes of this Agreement, "Disability" shall mean
complete and permanent inability by reason of illness or accident to perform the
duties of the occupation of the employee or non-employee director when such
disability commenced, "Subsidiary" shall mean any corporation in an unbroken
chain of corporations beginning with the Company if, at the time a stock option
is granted, each of the corporations other than the Company owns stock
possessing fifty percent (50%) or more of the total combined voting power of all
classes of stock of one of the other corporations in such chain, and "Committee"
shall mean the compensation committee or such other committee or committees as
shall be appointed by the Board of Directors of the Company to administer the
Plan pursuant to the provisions of Section 4.1 therein.
6. ADJUSTMENT IN CERTAIN EVENTS.
(a) In the event of any stock dividend or stock split, the
Company (subject to any required action by the shareholders of the Company)
shall make such equitable adjustments as are necessary and appropriate to
protect the Option from dilution in the number, kind and the exercise price of
the Option Shares underlying the Option.
(b) In the event that (1) any person (as defined for purposes
of Section 13(d) and 14(d) of the Exchange Act, but excluding the Corporation,
any of its wholly-owned subsidiaries, Xxxxxxx X. Xxxxxxx and Xxxxxxxx X. Xxxxxxx
or any entity controlled by the Spectors) acquires direct or indirect ownership
of 50% or more of the combined voting power of
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the then outstanding securities of the Corporation as a result of a tender or
exchange offer, open market purchases, privately negotiated purchases or
otherwise; or (2) the shareholders of the Corporation approve (A) any
consolidation or merger of the Corporation in which the Corporation is not the
surviving corporation (other than a merger of the Corporation in which the
holders of Common Stock immediately prior to the merger have the same or
substantially the same proportionate ownership of the surviving corporation
immediately after the merger), or (B) any sale, lease, exchange or other
transfer (in one transaction or a series of related transactions) of all, or
substantially all, of the assets of the Corporation to an entity which is not a
wholly-owned subsidiary of the Corporation, then the exercisability of each
Option outstanding under the Plan shall be automatically accelerated so that
each Option shall, immediately prior to the specified effective date of any of
the foregoing transactions, become fully exercisable with respect to the total
number of shares subject to such Option and may be exercisable for all or any
portion of such Shares. Upon the consummation of any of such transactions, all
outstanding Options under the Plan shall, to the extent not previously
exercised, terminate and cease to be outstanding.
(c) In the event of the proposed dissolution or liquidation of
the Corporation, all outstanding Options will terminate immediately prior to the
consummation of such proposed action, unless otherwise provided by the
Committee.
7. PRIVILEGE OF STOCK OWNERSHIP. The Optionee shall not be deemed to be
the holder of, or to have any of the rights of a shareholder with respect to,
any Option Shares unless and until the Optionee properly exercises the Option in
accordance with the requirements of Sections 8 and 9. Upon the proper exercise
of the
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Option, the Optionee shall have full voting and other ownership rights with
respect to the Option Shares.
8. MANNER OF EXERCISING OPTION. The Option may be exercised only as to
whole shares and only by written notice signed by the Optionee (or in the case
of exercise after Optionee's death or mental disability by Optionee's legal
representative, executor, administrator or heir or legatee, as applicable), and
mailed or delivered to the Secretary of the Company at its principal office. The
notice shall specify the number of Option Shares with respect to which the
Option is being exercised. The notice must be accompanied by payment in full for
such Shares in cash and include any representations required by Section 9. If
the Option is exercised by a person other than the Optionee, such person must
provide the Company with proof, in a form satisfactory to the Company and its
counsel, that such person has the right to exercise the Option. The Company
shall have the right to accept payment, in whole or in part, for the Option in
the form of Common Stock of the Company valued at the then Fair Market Value
thereof, at the sole discretion of the Committee.
9. COMPLIANCE WITH LAWS AND REGULATIONS.
(a) Prior to the exercise of the Option, the Optionee shall
deliver to the Company such representations in writing as may be requested by
the Company in order to ensure that the exercise of the Option and the issuance
of the Option Shares will comply with all applicable federal and state
securities laws.
(b) The Optionee acknowledges and confirms that (i) it has
received a copy of the Prospectus relating to the Plan; (ii) it is familiar with
the business and affairs of the Company and (iii) that the granting of the
Option by the Company does not involve
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any representation of any kind by the Company as to it business, affairs,
earnings or assets, the tax consequences of the exercise thereof, or otherwise.
(c) If the Company shall determine, in its discretion, that it
is necessary or desirable to obtain the listing, registration or qualification
of the Option Shares upon any securities exchange or under any federal or state
law, or the consent or approval of any government regulatory body, then the
Option may not be exercised in whole or in part, and no shares may be issued
under the Option, until such listing, registration, qualification, consent or
approval is obtained free of any conditions deemed unacceptable to the Company.
10. TAXES. The Company shall have the right to require the Optionee to
pay to the Company, or to make arrangements satisfactory to the Company
regarding the payment of, any federal, state or local taxes required to be paid
or withheld with respect to the Option.
11. EMPLOYMENT. Nothing in this Agreement shall be deemed to grant any
right of continued employment to the Optionee or to limit, restrict or waive any
right of the Company to terminate the Optionee's employment at any time with or
without cause.
12. MISCELLANEOUS.
(a) ASSIGNMENT. This Agreement may not be assigned by the
Optionee without the prior written consent of the Company. This Agreement shall
be binding upon and inure to the benefit of the parties, and their successors
and assigns.
(b) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties regarding the subject matter hereof. This
Agreement supersedes all prior discussions and agree-
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ment (oral or written) between the parties with respect to the subject matter of
this Agreement. This Agreement may not be modified except in a written document
signed by both of the parties.
(c) NOTICES. All notices required or permitted under this
Agreement shall be in writing and shall be deemed to have been duly given upon
receipt if delivered in person or upon the expiration of seven (7) days after
the date of posting, if mailed by registered or certified mail, postage pre-paid
to the parties at the following addresses:
If to the Company:
Xxxxx Caribe, Inc.
X.X. Xxx 000
Xxxxxx, Xxxxxx Xxxx 00000
Attention: Chief Executive Officer
If to the Optionee:
Any party may change the address to which notices to
such party shall be delivered or mailed by giving notice thereof to the other
party in the manner provided by this Section.
(d) GOVERNING LAW. The validity and effect of this Agreement
shall be governed by and construed and enforced in accordance with the laws of
the Commonwealth of Puerto Rico without regard to its principles of conflicts of
laws.
(e) WAIVER. Any term or condition of this Agreement may be
waived at any time by the party which is entitled to the benefit thereof, but
only if such waiver is evidenced by a writing signed
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by such party. No failure on the part of a party hereto to exercise, and no
delay in exercising, any right, power or remedy created hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of such right,
power or remedy by any such party preclude any other future exercise thereof or
the exercise of any other right, power or remedy. No waiver by any party hereto
to any breach of or default in any term or condition of this Agreement shall
constitute a waiver of or consent to any subsequent breach of or default in the
same or any other term or condition hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first written above.
XXXXX CARIBE, INC.
By:
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Name:
Title:
OPTIONEE:
By:
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