EXHIBIT 4.04
CBS EMPLOYER SERVICES, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
CBS EMPLOYER SERVICES, INC., a Texas corporation (the "Company"), hereby
grants this [_____] day of [____________], 2002 (the "Grant Date"), to [Name of
Employee] (the "Employee"), an option (this "Option") to purchase a maximum of
______________ shares ("Total Option Shares") of the Company's Class A Common
Stock, $0.001 par value per share (the "Common Stock"), at the price of
[$_______] per share, on the following terms and conditions:
1. Grant Under 2000 Stock Option/Stock Issuance Plan. This Option is
granted pursuant to and is governed by and subject to the Company's 2000 Stock
Option/Stock Issuance Plan, as Amended and Restated (the "Plan"), the terms and
conditions of which are incorporated herein by this reference. Unless the
context otherwise requires, capitalized terms used herein shall have the same
meaning as in the Plan. Determinations made pursuant to the Plan in connection
with this Option shall be governed by the Plan as it exists on the date of this
Non-Qualified Stock Option Agreement ("Agreement").
2. Grant as Non-Qualified Stock Option, Other Options. This Option is a
Non-Qualified Stock Option and is not intended to qualify as an incentive stock
option ("ISO") within the meaning of Section 422 of the Internal Revenue Code of
1986 (the "Code"). This Option is in addition to any other options heretofore or
hereafter granted to the Employee by the Company, but a duplicate original of
this instrument shall not effect the grant of another option.
3. Exercise of Option and Provisions for Termination.
(a) Vesting Schedule. Except as otherwise provided in this Agreement,
and subject to all other terms and conditions of this Agreement, so long as the
Employee has continued to be employed by the Company, thirty-three and
one-thirds percent (33-1/3%) of the Total Option Shares will vest on [the first
anniversary of the Grant Date] (the "First Vesting Date"); then two and seventy
seven hundredths percent (2.77%) of the Total Option Shares will vest on each
monthly anniversary of the First Vesting Date until 100% vested. On Employee's
termination of employment, the Option will either cease to vest or, if Employee
has been actively employed by the Company for one year or more and became
totally disabled or die as provided in Subparagraph 9B of the Plan, accelerate
in full. Following Employee's termination of employment, Employee may exercise
the Option only as provided in Paragraph 12 of the Plan. Vesting may also be
suspended in accordance with Company policies, as described in Subparagraph 9A
of the Plan. Unless this Option terminates earlier, this Option may be exercised
prior to the seventh anniversary of the Grant Date (hereinafter the "Expiration
Date"). The right of exercise shall be cumulative so that if the Option is not
exercised to the maximum extent permissible as of an applicable date, it shall
be exercisable, in whole or in part, with respect to all shares not so purchased
at any time prior to the Expiration Date or the earlier termination of this
Option. Notwithstanding any other provision of this Agreement or the Plan, this
Option may not be exercised at any time on or after the Expiration Date.
(b) Method of Exercise. Subject to the terms and conditions set forth
in this Agreement, this Option shall be exercised by following the exercise
procedures established by the Company. This Option may be exercised only with
respect to vested shares. Payment of the Exercise Price for the Shares may be
made in cash (by check) and/or, if a public market exists for the Company's
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Common Stock, by means of a Same-Day-Sale commitment. Employee understands and
agrees that the Company may be required to withhold taxes upon exercise of this
Option.
(c) Continuous Employment Required. Except as otherwise provided in
this Paragraph 3, this Option may not be exercised unless the Employee, at the
time he or she exercises this Option, is, and has been at all times since the
Grant Date, an employee of the Company. For all purposes of this Agreement, (i)
"employee" and "employment" shall be defined in accordance with the provisions
of Treasury Regulation Section 1.421-7(h) under the Code, or any successor
regulations, (ii) employment by a parent or subsidiary corporation of the
Company shall be deemed to be employment by the Company and (iii) if this Option
shall be assumed or a new option substituted therefor in a transaction to which
Section 424(a) of the Code applies, employment by such assuming or substituting
corporation (hereinafter a "Successor Corporation") shall be considered for all
purposes of this Option to be employment by the Company. As used herein, the
terms "parent" and "subsidiary" mean "parent corporation" and "subsidiary
corporation", respectively, as those terms are defined in Sections 424(e) and
424(f) or successor provisions of the Code.
4. No Special Employment Rights. Nothing contained in the Plan or this
Agreement shall be construed or deemed by any person under any circumstances to
obligate the Company to continue the employment of the Employee for any period.
5. Miscellaneous.
(a) Except as otherwise expressly provided herein, this Agreement may
not be amended or otherwise modified unless evidenced in writing and signed by
the Company and the Employee.
(b) All notices under this Agreement shall be delivered by hand, sent
by commercial overnight courier service or sent by registered or certified mail,
return receipt requested, and first-class postage prepaid, to the parties at
their respective addresses set forth beneath their names below or at such other
address as may be designated in a notice by either party to the other.
Notwithstanding the foregoing, any notice sent to such an address in a country
other than that from which the notice is sent may be sent by telefax, telegram
or commercial air courier.
(c) Each provision of this Agreement shall be considered separable.
The invalidity or unenforceability of any provision shall not affect the other
provisions, and this Agreement shall be construed in all respects as if such
invalid or unenforceable provision were omitted.
(e) This Agreement shall be governed by and construed in accordance
with the laws of the State of Texas.
(f) The failure of the Company or the Employee to insist upon strict
performance of any provision hereunder, irrespective of the length of time for
which such failure continues, shall not be deemed a waiver of such party's right
to demand strict performance at any time in the future. No consent or waiver,
express or implied, to or of any breach or default in the performance of any
obligation or provision hereunder shall constitute a consent or waiver to or of
any other breach or default in the performance of the same or any other
obligation hereunder.
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(g) Except for the right of any party to apply to a court of
competent jurisdiction for a temporary restraining order, preliminary
injunction, or other equitable relief to preserve the status quo or prevent
irreparable harm pending the selection and confirmation of an arbitrator, any
controversy or claim arising out of or relating to this Agreement, including
without limitation claims under the Americans with Disabilities Act, the Age
Discrimination in Employment Act of 1967, as amended, Title VII of the Civil
Rights Act of 1964 as amended, or any other applicable state or federal
statutory or common law; shall be resolved by arbitration in Fort Worth, Texas,
in accordance with the governing rules of the American Arbitration Association
(the "AAA"). A demand for arbitration shall be filed with the AAA during the
term, or within six months after termination or expiration, of this Agreement.
The arbitrator shall have the authority to permit discovery, to the extent
deemed appropriate by the arbitrator, upon the request of a party and to grant
any type of injunctive relief as well as award damages; provided, however, the
arbitrator shall have no authority to award multiple or punitive damages. The
costs of the arbitration proceeding, including the fee of the arbitrator, shall
be borne equally by the parties. Each party shall bear the costs of its own
counsel. Judgment upon the award entered may be enforced by any court of
competent jurisdiction.
Date of Grant: [__________]
CBS EMPLOYER SERVICES, INC.
By: __________________________________
Title: _______________________________
Address:
______________________________________
______________________________________
EMPLOYEE'S ACCEPTANCE
The undersigned hereby accepts this Option and agrees to the terms and
conditions of this Agreement. The undersigned hereby acknowledges receipt of a
copy of the Company's 2000 Stock Option/Stock Issuance Plan, as Amended and
Restated.
[Name of Employee]
______________________________________
Signature
Address:
______________________________________
______________________________________
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