EXHIBIT 10.9
ADDENDUM
TO
STOCK OPTION AGREEMENT
The following provisions are hereby incorporated into, and are
hereby made a part of, that certain Stock Option Agreement (the "Option
Agreement") by and between Xxxxxx Development Corporation II, Inc. (the
"Corporation") and ______________________ ("Optionee") evidencing the stock
option (the "Option") granted on _______________________ , 199_ to Optionee
under the terms of the Corporation's 1997 Stock Incentive Plan, and such
provisions shall be effective immediately. All capitalized terms in this
Addendum, to the extent not otherwise defined herein, shall have the meanings
assigned to them in the Option Agreement.
INVOLUNTARY TERMINATION FOLLOWING
CORPORATE TRANSACTION/CHANGE IN CONTROL
1. To the extent the Option is, in connection with a Corporate
Transaction, to be assumed by the successor entity (or its parent company),
the Option shall not accelerate upon the occurrence of that Corporate
Transaction, and the Option shall accordingly continue, over Optionee's
period of Service after the Corporate Transaction, to become exercisable for
the Option Shares in one or more installments in accordance with the
provisions of the Option Agreement. However, immediately upon an Involuntary
Termination of Optionee's Service within twelve (12) months following such
Corporate Transaction, the Option (or any replacement grant), to the extent
outstanding at the time but not otherwise fully exercisable, shall
automatically accelerate so that the Option shall become immediately
exercisable for all the Option Shares at the time subject to the Option and
may be exercised for any or all of those Option Shares as fully vested shares.
2. The Option shall not accelerate upon the occurrence of a
Change in Control, and the Option shall, over Optionee's period of Service
following such Change in Control, continue to become exercisable for the
Option Shares in one or more installments in accordance with the provisions
of the Option Agreement. However, immediately upon an Involuntary
Termination of Optionee's Service within twelve (12) months following the
Change in Control, the Option, to the extent outstanding at the time but not
otherwise fully exercisable, shall automatically accelerate so that the
Option shall become immediately exercisable for all the Option Shares at the
time subject to the Option and may be exercised for any or all of those
Option Shares as fully vested shares.
3. The Option as accelerated under Paragraphs 1 or 2 shall remain
so exercisable until the EARLIER of (i) the Expiration Date or (ii) the
expiration of the one (1)-year period measured from the date of the
Optionee's Involuntary Termination.
4. For purposes of this Addendum the following definitions shall
be in effect:
(i) An INVOLUNTARY TERMINATION shall mean the termination
of Optionee's Service by reason of:
(A) Optionee's involuntary dismissal or discharge by
the Corporation for reasons other than Misconduct, or
(B) Optionee's voluntary resignation following (A) a
change in Optionee's position with the Corporation (or Parent or
Subsidiary employing Optionee) which materially reduces
Optionee's level of responsibility, (B) a reduction in Optionee's
level of compensation (including base salary, fringe benefits and
target bonus under any corporate-performance based bonus or
incentive programs) by more than fifteen percent (15%) or (C) a
relocation of Optionee's place of employment by more than
fifty (50) miles, provided and only if such change, reduction or
relocation is effected by the Corporation without Optionee's
consent.
(ii) A CHANGE IN CONTROL shall be deemed to occur in the
event of a change in ownership or control of the Corporation effected
through either of the following transactions:
(A) the acquisition, directly or indirectly, by any
person or related group of persons (other than the Corporation or
a person that directly or indirectly controls, or is controlled
by, or is under common control with, the Corporation) of
beneficial ownership (within the meaning of Rule 13d-3 of the
Securities Exchange Act of 1934, as amended) of securities
possessing more than fifty percent (50%) of the total combined
voting power of the Corporation's outstanding securities pursuant
to a tender or exchange offer made directly to the Corporation's
stockholders which the Board does not recommend such stockholders
to accept, or
(B) a change in the composition of the Board over a
period of thirty-six (36) consecutive months or less such that a
majority of the Board members ceases, by reason of one or more
contested elections for Board membership, to be comprised of
individuals who either (i) have been Board members continuously
since the beginning of such period or (ii) have been elected or
nominated for election as Board members during such period by at
least a majority of the Board members described in clause (i) who
were still in office at the time such election or nomination was
approved by the Board.
2.
5. The provisions of Paragraph 1 of this Addendum shall govern
the period for which the Option is to remain exercisable following the
Involuntary Termination of Optionee's Service within twelve (12) months after
the Corporate Transaction or Change in Control and shall supersede any
provisions to the contrary in Paragraph 5 of the Option Agreement.
IN WITNESS WHEREOF, Xxxxxx Development Corporation II, Inc. has
caused this Addendum to be executed by its duly-authorized officer, and
Optionee has executed this Addendum, all as of the Effective Date specified
below.
XXXXXX DEVELOPMENT
CORPORATION II, INC.
By:__________________________________
Title: ______________________________
EFFECTIVE DATE: ______________________, 199_
3.
