Exhibit (d)(5)
XXXXXXX WASTE SYSTEMS, INC.
Incentive Stock Option Agreement
Granted Under Amended and Restated 1997 Stock Incentive Plan
1. GRANT OF OPTION.
This agreement evidences the grant by Xxxxxxx Waste Systems, Inc., a
Delaware corporation (the "Company"), on _______________ (the "Grant Date") to
_______________, an employee of the Company (the "Participant"), of an option to
purchase, in whole or in part, on the terms provided herein and in the Company's
Amended and Restated 1997 Stock Incentive Plan (the "Plan"), a total of
__________ shares of common stock, $0.01 par value per share, of the Company
(the "Common Stock" or the "Shares") at $___________ per Share. Unless earlier
terminated, this option shall expire on __________________ (the "Final Exercise
Date").
It is intended that the option evidenced by this agreement shall be an
incentive stock option as defined in Section 422 of the Internal Revenue Code of
1986, as amended and any regulations promulgated thereunder (the "Code"). Except
as otherwise indicated by the context, the term "Participant", as used in this
option, shall be deemed to include any person who acquires the right to exercise
this option validly under its terms.
2. VESTING SCHEDULE.
This option is immediately exercisable with respect to _______ of the
original number of Shares granted on the Grant Date and shall become exercisable
as to an additional ______ of Shares on each of the ________ anniversaries of
the Grant Date. This option shall expire upon, and will not be exercisable
after, the Final Exercise Date.
The right of exercise shall be cumulative so that to the extent the
option is not exercised in any period to the maximum extent permissible it shall
continue to be exercisable, in whole or in part, with respect to all Shares
which are then exercisable, until the earlier of the Final Exercise Date or the
termination of this option under Section 3 hereof or the Plan.
3. EXERCISE OF OPTION.
(a) FORM OF EXERCISE. Each election to exercise this option shall be
in writing, signed by the Participant, and received by the Company
at its principal office, accompanied by this agreement, and
payment in full in the manner provided in the Plan, including:
(i) in cash or by check, payable to the order of the Company;
(ii) by delivery of an irrevocable and unconditional undertaking
by a credit-worthy broker to deliver promptly to the Company
sufficient funds to pay the exercise price, or delivery by
the Participant to the Company of a copy of irrevocable and
unconditional instructions to a credit-worthy broker to
deliver promptly to the Company cash or a check sufficient to
pay the exercise price, or by delivery of shares of Common
Stock owned by the Participant valued at their fair market
value as determined by the Board of Directors of the Company
(the "Board") in good faith (the "Fair Market Value"), which
Common Stock was owned by the Participant at least six months
prior to such delivery; or
(iii) any combination of the above permitted forms of payment.
The Participant may purchase less than the number of Shares
covered hereby, provided that no partial exercise of this option
may be for any fractional Share.
(b) CONTINUOUS RELATIONSHIP WITH THE COMPANY REQUIRED. Except as
otherwise provided in this Section 3, this option may not be
exercised unless the Participant, at the time he or she exercises
this option, is, and has been at all times since the Grant Date,
an employee, officer or director of, or consultant or advisor to,
the Company or any parent or subsidiary of the Company as defined
in Section 424(e) or (f) of the Code (an "Eligible Participant").
(c) TERMINATION OF RELATIONSHIP WITH THE COMPANY. If the Participant
ceases to be an Eligible Participant for any reason, then, except
as provided in paragraphs (d) and (e) below, the right to exercise
this option shall terminate 30 days after such cessation (but in
no event after the Final Exercise Date), PROVIDED THAT this option
shall be exercisable only to the extent that the Participant was
entitled to exercise this option on the date of such cessation.
Notwithstanding the foregoing, if the Participant, prior to the
Final Exercise Date, violates the non-competition or
confidentiality provisions set forth in Section 4 hereof, or of
any other agreement, the right to exercise this option shall
terminate immediately upon such violation.
(d) EXERCISE PERIOD UPON DEATH OR DISABILITY. If the Participant dies
or becomes disabled (within the meaning of Section 22(e)(3) of the
Code) prior to the Final Exercise Date while he or she is an
Eligible Participant and the Company has not terminated such
relationship for "cause" as specified in paragraph (e) below, this
option shall be exercisable, within 90 days following the date of
death or disability of the Participant, PROVIDED THAT this option
shall be exercisable only to the extent that this option was
exercisable by the Participant on the date of his or her death or
disability, and further provided that this option shall not be
exercisable after the Final Exercise Date.
(e) DISCHARGE FOR CAUSE. If the Participant, prior to the Final
Exercise Date, is discharged by the Company for "cause" (as
defined below), the right to exercise this option shall terminate
immediately upon the effective date of such discharge. "Cause"
shall mean willful misconduct by the Participant or willful
failure by the Participant to perform his or her responsibilities
to the Company (including, without limitation, breach by the
Participant of Section 4 hereof, or of any provision of any
employment, consulting or other similar agreement), as determined
by the Company, which determination shall be conclusive. The
Participant shall be considered to have been discharged for
"Cause" if the Company determines, within 30 days after the
Participant's resignation, that discharge for cause was warranted.
4. NON-COMPETITION.
(a) The Participant agrees that, during the period that the
Participant is an employee of the Company and for a period of one
year following the termination thereof (the "Term"), he will not
directly or indirectly:
(i) as an individual proprietor, partner, stockholder, officer,
employee, director, joint venturer, investor, lender,
consultant, or in any other capacity whatsoever (other than
as the holder of not more than one percent of the combined
voting power of the outstanding stock of a publicly held
company), market, sell or render (or assist any other person
in marketing, selling or rendering) any solid or liquid waste
collection, disposal, transfer or recycling services located
within a 50-mile radius of any operating division of the
Company then in existence; or
(ii) solicit, divert or take away, or attempt to divert or to take
away, the solid or liquid waste collection, disposal,
transfer or recycling business or patronage of any of the
clients, customers or accounts, or prospective clients,
customers or accounts, of the Company located within a
50-mile radius of any operating division of the Company then
in existence; or
(iii) recruit, solicit or induce, or attempt to induce, any
employee of the Company to terminate his or her employment
with, or otherwise cease his or her relationship with, the
Company.
For purposes of this Section 4, "Company" means Xxxxxxx
Waste Systems, Inc., together with its subsidiaries and
other affiliates.
5. WITHHOLDING.
No Shares will be issued pursuant to the exercise of this option unless
and until the Participant pays to the Company, or makes provision satisfactory
to the Company for payment of, any federal, state or local withholding taxes
required by law to be withheld in respect of this option. Such withholding taxes
may be satisfied, at the discretion of the Board, by the withholding of Shares
of Common Stock of the Company.
6. NONTRANSFERABILITY OF OPTION.
This option may not be sold, assigned, transferred, pledged or
otherwise encumbered by the Participant, either voluntarily or by operation of
law, except by will or the laws of descent and distribution, and, during the
lifetime of the Participant, this option shall be exercisable only by the
Participant.
7. DISQUALIFYING DISPOSITION.
If the Participant disposes of Shares acquired upon exercise of this
option within two years from the date of grant of the option or one year after
such Shares were acquired pursuant to exercise of this option, the Participant
shall notify the Company in writing of such disposition.
8. PROVISIONS OF THE PLAN.
This option is subject to the provisions of the Plan, a copy of which
is furnished to the Participant with this option.
IN WITNESS WHEREOF, the Company has caused this option to be executed
under its corporate seal by its duly authorized officer. This option shall take
effect as a sealed instrument.
Xxxxxxx Waste Systems, Inc.
Dated as of _________ By:
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Xxxx X. Xxxxxxx
Chief Executive Officer
PARTICIPANT'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 Amended and Restated 1997 Stock Incentive Plan.
PARTICIPANT:
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Address:
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