NON-QUALIFIED STOCK OPTION AGREEMENT
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of 1
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Exhibit
10aq
Xxxxxx
Corporation (“Xxxxxx” or the “Company”) hereby grants to ________________, (the
“Employee” or the “Optionee”) as of ____________________ (the “Option Date”), an
option to purchase a maximum of ________ shares of its Capital Stock at
the
price of $ ________ per share, subject to the following:
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1.
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Relationship
to 1988 Stock Option Plan.
This option is granted pursuant to the Xxxxxx Corporation 1988
Stock
Option Plan, as amended (the “Plan”), and is in all respects subject to
its terms, conditions, limitations and definitions. Determinations
made in
connection with this option shall be governed by the Plan.
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2.
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Time
When the Option Will be Exercisable.
This option shall be immediately exercisable in full as of
the Option
Date. This option shall remain exercisable until it expires
on the tenth
anniversary of the Option Date, unless the option is sooner
terminated as
hereinafter provided.
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3.
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Sale
of Issued Shares.
In
the event that the Employee exercises the option prior to the
fourth
anniversary of the Option Date, except as provided in Paragraph
8 below,
the shares of Capital Stock acquired upon such exercise (the
“Issued
Shares”) may not be sold, assigned, transferred (including any transfer
to
Xxxxxx in payment of the option price or withholding taxes
of any stock
option), pledged, given away or in any other manner disposed
of or
encumbered, by the Employee until the earliest to occur of:
(a) the
termination of the Employee’s employment with Xxxxxx and its Subsidiaries
by reason of Normal or Early Retirement (as defined in the
Plan); (b) the
termination of the Employee’s employment with Xxxxxx and its Subsidiaries
by reason of death; (c) the termination of the Employee’s employment with
Xxxxxx and its Subsidiaries by reason of Disability (as defined
in the
Plan); (d) the involuntary termination of the Employee’s employment with
Xxxxxx and its Subsidiaries by Xxxxxx and/or its Subsidiaries
for any
reason; (e) a Cessation Event Determination Date (as defined
in Paragraph
14 below); and (f) the fourth anniversary of the Option Date
(the earliest
of such dates or events, the “Restriction Termination Date”). In order to
effectuate the foregoing, upon any exercise of the option prior
to the
Restriction Termination Date and until the Restriction Termination
Date,
the Issued Shares shall, at the discretion of Xxxxxx, either
be retained
by the Company and/or shall bear a legend describing the restrictions
on
the sale of the Issued Shares as described herein.
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4
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Purchase
Only for Investment.
To
insure Xxxxxx’ compliance with the Securities Act of 1933, as amended, the
Employee agrees for himself or herself, the Employee’s legal
representatives and estate, or other persons who acquire the
right to
exercise the option pursuant to Paragraph 8 (together, the
“Investor”),
that shares will be purchased in the exercise of the option
for investment
purposes only and not with a view to their distribution, as
that term is
used in the Securities Act of 1933, as amended, unless in the
opinion of
counsel to Xxxxxx such distribution is in compliance with or
exempt from
the registration and prospectus requirements of that Act, and
the Investor
agrees to sign a certificate to such effect at the time of
exercising the
option.
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5.
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Termination
of Option.
In
the event that the Employee ceases to be employed by Xxxxxx
or any
Subsidiary, as determined pursuant to the Plan, at any time
prior to
exercise of this option in full, this option shall terminate
and may no
longer be exercised, except as follows:
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a.
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if
the Employee’s employment shall have been terminated for any reason other
than Normal or Early Retirement or Disability (as those terms are
defined
in the Plan) or death, the Employee may at any time within a period
of
three months after such termination of employment exercise this
option;
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b.
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if
the Employee’s employment shall have terminated by reason of Normal or
Early Retirement (as defined in the Plan), the Employee may at
any time
within a period of three years after the date of such Normal or
Early
Retirement exercise this option;
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c.
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if
the Employee’s employment shall have been terminated because of Disability
(as defined in the Plan), the Employee may at any time within a
period of
one year after such termination of employment exercise this option;
and
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d.
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if
the Employee’s employment shall have been terminated because of death, the
option may be exercised within a period of one year after the Employee’s
death by the person or persons to whom the Employee’s rights under the
option shall pass under Paragraph 17 or by will or the laws of
descent and
distribution;
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6. |
Partial
Exercise.
Exercise of this option may be made in whole or in part at any
time and
from time to time, provided that it may not be exercised for fewer
than
fifty shares unless the extent to which it may be exercised cannot
increase, in which event it may be exercised for the entire balance.
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7.
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Manner
of Exercise.
This option may be exercised in whole or in part by giving notice
of
exercise to the Company, or the Company’s designee, specifying the number
of shares to be purchased. Payment of the purchase price may be
made by
one or more of the following methods:
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a.
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In
cash, by check or by other instrument acceptable to the Company;
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b.
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In
the form of shares of Capital Stock (either actually or by attestation)
that the Employee has beneficially owned for more than six months
and that
are not then subject to restrictions under any Company plan. Such
surrendered or attested shares shall be valued at Fair Market Value
(as
defined in the Plan) on the exercise date; or
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c
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Delivery
by a broker of cash, a check or other instrument payable and acceptable
to
the Company to pay the option purchase price; provided that in the
event
the Employee chooses to pay the option purchase price as
so provided, the Employee and the broker shall comply with such procedures
and enter into such agreements of indemnity and such other agreements
as
the Company shall prescribe as a condition of such payment procedure.
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Payment
instruments will be received subject to collection.
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Ownership
of shares of Capital Stock to be purchased pursuant to the exercise
of the
option will be contingent upon receipt by the Company of the full
purchase
price for such shares and the fulfillment of any other requirements
contained in the Plan, this Agreement and applicable provisions
of law. In
the event the Employee chooses to pay the purchase price by
previously-owned shares of Capital Stock through the attestation
method,
only the net amount of shares shall be issued.
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8.
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Option
Transferable in Limited Circumstances.
This option, and, prior to the Restriction Termination Date, the
Issued
Shares, may be transferred to a family member, trust or charitable
organization to the extent permitted by applicable law; provided
that the
transferee agrees in writing with Xxxxxx to be bound by the terms
of this
Agreement. Except as permitted in the preceding sentence, this
option,
and, prior to the Restriction Termination Date, the Issued Shares,
are not
transferable otherswise than by will or by the laws of descent
and
distribution, and the option shall be exercisable during the Employee’s
lifetime, only by the Employee.
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9.
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No
Obligation to Continue Employment.
Neither Xxxxxx nor any Subsidiary is obligated by or as a result
of the
Plan or this Agreement to continue the Employee in employment.
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10.
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No
Obligation to Exercise Option.
The
grant and acceptance of this option imposes no obligation on the
Employee
to exercise it.
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11.
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No
Rights as Stockholder Until Exercise.
The
option holder shall have the rights of a stockholder only as to
shares of
Capital Stock acquired upon exercise of this option and not as
to any
shares of Capital Stock covered by an unexercised portion of this
option.
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12.
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Notices.
Notices hereunder shall be mailed or delivered to the Company at
its
principal place of business and shall be mailed or delivered to
the
Optionee at the address on file with the Company or, in either
case, at
such other address as one party may subsequently furnish to the
other
party in writing.
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13.
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Capital
Changes and Business Successions.
In
the event of any change in the outstanding shares of Capital Stock
that
occurs after the Option Date by reason of a stock dividend or split,
recapitalization, merger, consolidation, combination, exchange
of shares,
or other similar corporate change as to which Xxxxxx is a surviving
corporation, the maximum number of shares of Capital Stock that
are
subject to this option and the number, kind and option price of
shares
covered by this option to the extent it is then outstanding, shall
be
adjusted appropriately by the Committee (as defined in the Plan),
whose
determination shall be conclusive; provided, however, that fractional
shares shall be rounded to the nearest whole share.
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14.
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Merger;
Sale of Assets.
Upon a determination by the Board of Directors of Xxxxxx that an
event has
occurred that will or is likely to result in a merger or a similar
reorganization which Xxxxxx will not survive or a sale of all or
substantially all of the assets of Xxxxxx (a “Cessation Event”), the
restrictions on the sale of the Issued Shares described in Paragraph
3
above shall cease immediately (or as of the date which is 180 days
preceding such Cessation Event, if later than such determination)
(such
date, the “Cessation Event Determination Date”). The occurrence of a
Cessation Event shall cause this option to terminate, to the extent
not
then exercised, unless any surviving entity agrees to assume this
option.
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15.
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Tax
Withholding.
Upon the exercise of this option or any portion thereof, the Employee
hereby agrees that such exercise will not be effective, and no
shares will
become transferable to the Employee, until the Employee makes appropriate
arrangements with Xxxxxx for income or employment tax withholding
as may
be required by federal, state or local law on account of such exercise.
The Employee may satisfy his or her withholding obligation, if
any, in
whole or in part, by electing (a) to make a payment to Xxxxxx in
cash, by
check or by other instrument acceptable to Xxxxxx, (b) subject
to the
general or specific approval of the Committee, to deliver to Xxxxxx
a
number of already-owned shares of Capital Stock, having a value
not
greater than the amount required to be withheld (such number may
be
rounded up to the next whole share) or (c) by any combination of
(a) and
(b) and the procedures described in the following sentence. The
Committee
may also permit, in its sole discretion and in accordance with
such
procedures as it deems appropriate, the Employee to have Xxxxxx
withhold a
number of shares which would otherwise be issued pursuant to this
option
having a value not greater than the amount required to be withheld
(such
number may be rounded up to the next whole share). The value of
shares to
be withheld (if permitted by the Committee) or of delivered shares
shall
be based on the Fair Market Value (as defined in the Plan) of shares
as of
the date the amount of tax to be withheld is determined.
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16.
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Tax
Status.
Options granted under this Agreement are intended not to qualify
as
“incentive” stock options under Section 422 of the Internal Revenue Code
of 1986, as amended.
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17.
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Beneficiary
Designation.
The
Optionee may designate beneficiary(ies) to whom shall be transferred
any
rights under the option which survive the Optionee’s death.
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To
obtain the beneficiary designation form, please go to the “Options and
Equity Awards” section of the Schwab Equity Award Center website
(xxxx://xxxxxxxxxxxxxxxxx.xxxxxx.xxx)
after completing the login procedure and click on the “Review message”
from your “employer” and then click on the “Equity Awards Beneficiary
Designation Form”. Alternatively, you may request this beneficiary
designation form by sending an e-mail to xxxxxxxxxxxxxxxxx@xxxxxxxxxxxxxxxxx.xxx
or
calling the Office of the Corporate Secretary of Xxxxxx Corporation
at
800-227-6437 ext. 5566.
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In
the absence of an effective beneficiary designation, the Optionee
acknowledges that any rights under the option which survive the
Optionee’s
death shall be rights of his or her estate.
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By:
Xxxxxx
Corporation
By
clicking Accept below I hereby acknowledge receipt of the foregoing option
and
agree to its terms and conditions:
