EXHIBIT 99.3
FORM OF NON-STATUTORY STOCK OPTION AGREEMENT FOR KEY EMPLOYEES
NON-STATUTORY STOCK OPTION AGREEMENT
THIS NON-STATUTORY STOCK OPTION AGREEMENT ("Agreement") is entered into as
of this 12th day of March, 1998, by and between Intek Global Corporation, a
Delaware corporation (the "Company"), and _____________ (the "Optionee").
WHEREAS, the Company has adopted the Intek 1997 Performance and Equity
Incentive Plan (as amended from time to time, the "Plan");
WHEREAS, capitalized terms used herein without definition have the meanings
assigned to them in the Plan;
WHEREAS, the Optionee is a key employee of the Company;
WHEREAS, the Company believes that it would advance the interests of the
Company and its stockholders to afford an opportunity to the Optionee to acquire
or increase the Optionee's proprietary interest in the Company through the grant
of Non-Statutory Options;
WHEREAS, the Committee has granted Non-Statutory Options to purchase shares
of Common Stock, par value $0.01 per share, of the Company ("Common Stock") to
the Optionee pursuant to the Plan on the terms and subject to the conditions set
forth herein; and
WHEREAS, the Optionee desires to accept said Non-Statutory Options pursuant
to the terms and subject to the conditions set forth herein;
NOW, THEREFORE, the parties agree as follows:
1. GRANT OF OPTIONS. The Company hereby grants Non-Statutory Options to
purchase up to _________________ shares of Common Stock (collectively, the
"Option Shares") to the Optionee, subject to all of the terms and conditions
contained in this Agreement and the Plan. The Non-Statutory Options are not
"incentive stock options" within the meaning of Section 422 of the Code.
2. TIMING OF EXERCISE.
(a) Except as provided in Section 2(b) below, the Non-Statutory Stock Options
shall become exercisable in full as follows:
20% on March 12, 1999;
20% on March 12, 2000;
20% on March 12, 2001;
20% on March 12, 2002; and
20% on March 12, 2003.
(b) Notwithstanding anything to the contrary in Section 2(a) above,
the Non-Statutory Options shall become immediately fully vested and fully
exercisable:
(i) if there occurs any transaction (which shall include a
series of transactions occurring within sixty (60) days or occurring
pursuant to a plan), that has the result that stockholders of the Company
immediately before such transaction cease to own at least fifty-one percent
(51%) of the voting stock of the Company or of any entity that results from
the participation of the Company in a reorganization, consolidation,
merger, liquidation or any other form of corporate transaction;
(ii) if the stockholders of the Company approve a plan of
merger, consolidation, reorganization, liquidation or dissolution in which
the Company does not survive (unless the approved merger, consolidation,
reorganization, liquidation or dissolution is subsequently abandoned); or
(iii) if the stockholders of the Company approve a plan for
the sale, lease, exchange, transfer, assignment or other disposition of all
or substantially all the property and assets of the Company (unless such
plan is subsequently abandoned).
3. EXERCISE PRICE. The exercise price for the Non-Statutory Options
shall be $2.50 per Option Share (the "Exercise Price"), and shall be due and
payable, in cash, by certified or official bank check, by money order, in shares
of Common Stock or, in the sole discretion of the Committee, by personal check
in full or partial payment of any Option Shares. The Optionee shall remit the
withholding tax, if any, owed by the Optionee under Section 10 below with
respect to the exercise of the Non-Statutory Options to the Company along with
the Exercise Price.
4. PROCEDURE FOR EXERCISE. In order to exercise the Non-Statutory
Options, the Optionee shall deliver to the Chairman of the Board or Secretary of
the Company or such agent as such officers may delegate in their stead, the
following: (i) the aggregate Exercise Price and any withholding tax required
under Section 10 below; (ii) a completed and executed Exercise of Stock Option
in the form attached hereto as Exhibit A; and (iii) if required, the written
representation and/or other information described in Section 6 below. The
Company shall cause certificates for Option Shares purchased hereunder to be
delivered to the Optionee as soon as reasonably practicable thereafter.
5. EXPIRATION OF OPTIONS. The unexercised portion, if any, of the
Non-Statutory Options shall automatically and without notice terminate and
become null and void at the time of the earliest to occur of the following:
(i) three (3) months after the date that the Optionee's employment
with the Company or any of its Subsidiaries is terminated for any reason
other than by reason of (A) "Cause," which, solely for purposes of this
Agreement, shall mean the termination of the
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Optionee's employment by reason of the Optionee's willful misconduct or
negligence, (B) the mental or physical disability (within the meaning of
Section 22(e)(3) of the Code) of the Optionee as determined by a medical
doctor satisfactory to the Committee or (C) the death of the Optionee;
(ii) immediately upon the termination of the Optionee's employment
with the Company or any of its Subsidiaries for Cause;
(iii) one (1) year after the date that the Optionee's employment
with the Company is terminated by reason of a mental or physical disability
(within the meaning of Section 22(e)(3) of the Code) as determined by a
medical doctor satisfactory to the Committee;
(iv) (A) one (1) year after the date of termination of the Optionee's
employment with the Company by reason of death of the Optionee, or (B)
three (3) months after the date that the Optionee dies if such death occurs
during the one (1) year period specified in Section 5(a)(iii) above; or
(v) the date that is ten (10) years from the date that the Committee
grants the Non-Statutory Options to the Optionee.
6. REPRESENTATIONS AND WARRANTIES OF THE OPTIONEE. The Optionee
represents and warrants that:
(a) The Optionee is aware that no federal or state agency has made
any finding or determination as to the fairness for public or private investment
in, nor any recommendation or endorsement of, the Option Shares.
(b) The Optionee is aware that the Shares are not registered under
the Securities Act of 1933, as amended (the "Act"), or the securities or "blue
sky" laws of any state or jurisdiction (the "Blue Sky Laws") as of the date of
this Agreement, and the Company is under no obligation to cause the Option
Shares to be registered under the Act or the Blue Sky Laws; and that in the
event that the Option Shares are not registered under the Act or the Blue Sky
Laws for any reason at a time when the Optionee desires to exercise all or any
part of the Non-Statutory Options, then, in addition to the other terms and
conditions of this Agreement, such exercise shall be conditioned upon
determination by the Committee that the Option Shares may be issued to the
Optionee without registration under the Act or the Blue Sky Laws. The Committee
may require the Optionee to deliver to the Company an agreement or undertaking
setting forth any factual information that the Committee deems necessary to
determine whether the Option Shares may be issued to the Optionee without
registration under the Act or the Blue Sky Laws, including, without limitation,
a representation and warranty that the Optionee is acquiring the Option Shares
for investment and not with a view to, or for sale in connection with, the
distribution of any the Option Shares.
7. NON-REGISTRATION AND LEGEND. Nothing contained in this Agreement
shall require the Company to register the Option Shares under the Act or the
Blue Sky Laws or to continue
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any such registration which may be in effect on or after the date of this
Agreement. If any such Option Shares are not so registered when issued
hereunder, then the certificate(s) for the Option Shares shall bear a legend,
in a form satisfactory to the Committee, restricting the transfer of the
Option Shares unless such transfer is registered or exempt from registration
under the Act or the Blue Sky Laws, and the Option Shares shall not be
transferred except in accordance with such legend.
8. TRANSFERABILITY. The Optionee or any beneficiary thereof shall have
the power or right to sell, exchange, pledge, transfer, assign or otherwise
encumber or dispose of the Optionee's or such beneficiary's Non-Statutory Stock
Options only as follows: (i) to the spouse or any children or grandchildren of
the Optionee or such beneficiary receiving the Non-Statutory Stock Options;
(ii) as a charitable contribution or gift to or for the use of any person or
entity described in Section 170(c) of the Code; (iii) to any Controlled Entity;
or (iv) by will or the laws of intestate succession.
9. RIGHTS PRIOR TO EXERCISE OF OPTION. The Optionee shall not have
any rights as a stockholder with respect to any Option Shares subject to the
Non-Statutory Options prior to the date on which the Optionee is recorded as
the holder of such Option Shares on the records of the Company; provided that
the foregoing shall not diminish or affect any rights the Optionee has under
the Plan.
10. TAXES. The Company may make such provisions and take such steps as
it may deem necessary or appropriate for the withholding of all federal,
state, local and other taxes required by law to be withheld with respect to
the Non-Statutory Options including, but not limited to: (i) reducing the
number of Option Shares otherwise deliverable, based upon their fair market
value on the date of exercise, to permit deduction of the amount of any such
withholding taxes from the amount otherwise payable under this Agreement;
(ii) deducting the amount of any such withholding taxes from any other amount
then or thereafter payable to the Optionee; or (iii) requiring the Optionee,
beneficiary or legal representative to pay to the Company the amount required
to be withheld or to execute such documents as the Company deems necessary or
desirable to enable it to satisfy its withholding obligations as a condition
of releasing the Option Shares.
11. GENERAL PROVISIONS.
(a) The Company shall at all time during the term of the
Non-Statutory Options reserve and keep available such number of shares of
Common Stock as will be sufficient to satisfy the requirements of this
Agreement in respect of vested Option Shares, shall pay all fees and expenses
necessarily incurred by the Company in connection therewith, and shall use
its best efforts to comply with all laws and regulations that, in the
reasonable opinion of counsel for the Company, are applicable thereto.
(b) Any notice to be given hereunder by either party to the other
shall be in writing and shall be given either by personal delivery, telecopied
with confirmed receipt, or sent by certified, registered or express mail,
postage pre-paid, or sent by a national next-day delivery service, postage
pre-paid, return receipt requested, addressed to the Company, at its
headquarters, attention
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Vice President-Administration, or the Optionee, at such address as the
Company has on record, or such address as the Optionee provides to the
Company in writing, and shall be deemed given when so delivered personally,
or telecopied, or if mailed, two (2) days after the date of mailing, or if by
national next-day delivery service, on the date after delivery.
(c) The headings and other captions in this Agreement are for
convenience of reference only and shall not be used in interpreting, construing
or enforcing any of the provisions of this Agreement.
(d) THE PROVISIONS OF THIS AGREEMENT RELATE SOLELY TO GRANTING OF THE
NON-STATUTORY STOCK OPTIONS TO THE OPTIONEE PURSUANT TO THE PLAN AS OF THE DATE
HEREOF AND DO NOT ADDRESS OR RELATE TO ANY CONDITIONS OF THE OPTIONEE'S
EMPLOYMENT WITH THE COMPANY. NOTHING IN THIS AGREEMENT OR THE PLAN SHALL CONFER
UPON THE OPTIONEE ANY RIGHT OR ENTITLEMENT WITH RESPECT TO CONTINUATION OF
EMPLOYMENT BY THE COMPANY NOR INTERFERE IN ANY WAY WITH THE RIGHT OR POWER OF
THE COMPANY TO TERMINATE THE OPTIONEE'S EMPLOYMENT AT ANY TIME, WITH OR WITHOUT
CAUSE.
(e) No change or modification of this Agreement shall be valid unless
the same is in writing and signed by the Company and the Optionee.
(f) No waiver of any provision of this Agreement shall be valid
unless in writing and signed by the person against whom it is sought to be
enforced. The failure of any party at any time to insist upon strict
performance of any condition, promise, agreement or understanding set forth
herein shall not be construed as a waiver or relinquishment of the right to
insist upon strict performance of the same or other condition, promise,
agreement or understanding at a future time.
(g) This Agreement shall be binding upon and inure to the benefit of
and be enforceable by the respective heirs, legal representatives, successors
and permitted assigns of the parties hereto. Nothing in this Agreement is
intended, and it shall not be construed, to give any person or entity other than
the parties hereto any right, remedy or claim under or in respect of this
Agreement or any provisions hereof.
(h) This Agreement and all rights hereunder shall be governed by, and
construed and interpreted in accordance with, the laws of the State of Delaware
applicable to contracts made and to be performed entirely within that State. In
the event of any conflict between this Agreement and the Plan, the provisions of
the Plan shall govern.
(i) This Agreement and the Plan set forth all of the agreements,
warranties and representations among the parties hereto and thereto with respect
to the Non-Statutory Options, and there are no other promises, agreements,
conditions, understandings, representations or warranties, oral or written,
express or implied, among them with respect to the Non-Statutory Options other
than
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as set forth herein and therein. Any and all prior agreements with respect
to the Non-Statutory Options are hereby revoked.
(j) This Agreement may be executed in any number of counterparts,
each of which, when executed, shall be deemed to be an original and all of
which together shall be deemed to be one and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
by its duly authorized officer, and the Optionee has executed this Agreement,
all as of the date first written above.
INTEK GLOBAL CORPORATION
-----------------------------------------
By: Xxxxxx Xxxxxx
Its: Chairman and Chief Executive Officer
The undersigned Optionee hereby acknowledges receipt of an executed
original of this Stock Option Agreement and accepts the option granted
thereunder.
-----------------------------------------
[Optionee]
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EXHIBIT A
FORM OF EXERCISE OF NON-STATUTORY STOCK OPTION
Intek Global Corporation
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Chief Executive Officer
Gentlemen:
The undersigned Optionee hereby exercises all or a portion of the
Non-Statutory Options granted to him pursuant to the Non-Statutory Stock
Option Agreement dated as of __________, _____, between Intek Global
Corporation (the "Company") and the Optionee with respect to __________
shares of Common Stock, par value $0.01 per share, of the Company covered by
said Non-Statutory Options, and tenders herewith at the price of $__________
per share, of which $__________ represents payment of the exercise price
thereof and $__________ represents payment of any withholding tax due.
The registered address on the share certificate to be issued to the
Optionee should be: ___________________________________________________________
_______________________________________________________________________________.
The Optionee's social security number is: _________________________.
Optionee:
____________________________________
Signature
____________________________________
Typed or Printed Name
____________________________________
Date of Exercise
