CLARK, INC. NON-QUALIFIED STOCK OPTION AGREEMENT
XXXXX,
INC.
This
Non-Qualified OPTION AGREEMENT (this “Option Agreement”) is entered into by and
between Xxxxx, Inc., a Delaware corporation (the “Company”), and [Insert
Full Name]
(the
“Optionee”).
1. Grant
of Option.
The
Company hereby grants to the Optionee effective as of the date set forth in
Section 19 hereof (the “Date of Grant”), the right and option (the “Option”) to
purchase up to the aggregate number of shares of common stock, par value $.01
per share, of the Company (the “Common Stock”) set forth in Section 19 hereof,
subject to adjustment pursuant to Section 3 hereof and subject to the Optionee’s
acceptance and agreement to all of the terms and conditions and restrictions
described in the Xxxxx, Inc. Incentive Compensation Plan (the “Plan”), a copy of
which has been made available to the Optionee, and to the further terms,
conditions and restrictions set forth below.
2. Exercise
Price.
Subject
to adjustment pursuant to Section 3, the exercise price payable by the Optionee
upon exercise of this Option is set forth in Section 19 hereof.
3. Adjustments
to Number of Shares and Option Price.
The
number of shares and exercise price shall be subject to adjustments as provided
in Section 6.2 of the Plan.
4. Tax
Status.
This
Option is not
intended
to be treated as an “incentive stock option” within the meaning of Section 422
of the Code but is instead intended to be a nonqualified stock
option.
5. Exercise
of Option.
Subject
to the terms of the Plan and this Option Agreement, Optionee shall have the
right to acquire shares of Common Stock under this Option Agreement as
follows:
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NOTE:
Director Election and Re-election NQSOA are vested 33.33% on an annual basis
beginning one year after grant; i.e. 10,000 options granted on 4-25-06. Vesting
is 33.33% on 4-25-07, 33.33% on 4-25-08, and 33.34% on
4-25-09.
Director
Quarterly NQSOA are vested 25% on a quarterly basis beginning immediately after
grant; i.e. 4,000 options granted on 4-25-06. Vesting is 25% on 4-25-06, 25%
on
7-25-06, 25% on 10-25-06 and 25% on 1-25-07
(a) As
of
[Insert
Date]
and
thereafter, Optionee may exercise rights to acquire [Insert
%]
of the
Common Stock subject to the Option;
(b) As
of
[Insert
Date]
and
thereafter, Optionee may exercise rights to acquire an additional [Insert
%]
of the
Common Stock subject to the Option and;
(c) As
of
[Insert
Date]
and
thereafter, Optionee may exercise rights to acquire an additional [Insert
%]
of the
Common Stock subject to the Option.
6. Termination
of Service as a Director.
In the
event that the service of the Optionee as a Director with the Company and all
of
its Subsidiaries shall at any time hereafter terminate for any reason other
than
death, any part of the Option granted hereunder which has not been exercised
by
the date of such termination shall expire unless exercised prior to the date
of
its expiration or within ninety (90) days after the date of such termination,
whichever occurs first.
7. Death
of Optionee.
If
Optionee dies prior to the termination of his right to exercise the Option
in
accordance with the provisions hereof without having totally exercised the
Option, the Option may be exercised by the Optionee’s executor, administrator or
the person or persons to whom the Optionee’s rights under the Option pass by the
laws of descent and distribution (Optionee’s “Successor”). If Optionee dies
while in the employ of the Company or any Subsidiary, the Option shall expire
unless exercised (to the extent exercisable immediately prior to Optionee’s
death) by his Successor prior to the date of expiration of the Option or one
(1)
year from the date of Optionee’s death, whichever comes first.
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8. Additional
Accelerated Vesting.
In the
event the Company is subject to a “Change in Control,” any part of the Option
granted hereunder which has not already been exercised, shall be exercisable
and
shall be immediately one hundred percent (100%) vested without regard to the
periods and installments of exercisability specified in Section 5, if and only
if such Option has not at that time expired or been terminated, in accordance
with Section 7 or otherwise, in which case, any unexercised portion shall be
deemed cancelled as of the effective date of such Change in Control. For the
purposes of this Section, “Change in Control” shall be deemed to have occurred
if (i) the Company becomes a subsidiary of another corporation or entity or
is
merged or consolidated into another corporation or entity or substantially
all
of the assets of the Company are sold to another corporation or entity; (ii)
any
person, corporation, partnership or other entity, either alone or in conjunction
with its “affiliates,” as that term is defined in Rule 405 of the General Rules
and Regulations under the Securities Act of 1933, as amended, or other group
of
persons, corporations, partnerships or other entities who are not “affiliates”
but who are acting in concert, other than Xxx Xxxxxxx or his family members
or
any person, organization or entity that is controlled by Xxx Xxxxxxx or his
family members, becomes the owner of record or beneficially of securities of
the
Company that represent thirty-three and one-third percent (33 1/3%) or more
of
the combined voting power of the Company’s then outstanding securities entitled
to elect the Board; or (iii) the Board or the Committee thereof makes a
determination in its reasonable judgment that a “Change in Control” of the
Company has taken place. In all events, the determination that a “Change in
Control” has occurred shall be made by the Committee.
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9. Procedure
to Exercise.
The
Optionee (or other person entitled to exercise this Option) shall purchase
shares of stock of the Company subject hereto by the payment to the Company
of
the purchase price in full and the amount of withholding tax due, if any, upon
the exercise of this Option as follows: (i) via personal check, bank draft,
money order, certified check, or cashier’s check payable to the order of the
Company or by money transfers or direct account debits; (ii)through
the delivery or deemed delivery based on attestation to the ownership of
Previously Acquired Shares (i.e., shares owned by the Optionee for not less
than
6 months) of Common Stock with a Fair Market Value equal to the total payment
due from the Participant, or delivery by the Participant of a written
attestation of the same; (iii) through the delivery of shares of Common Stock
otherwise deliverable upon exercise, if such withholding will not result in
additional accounting expense to the Company as determined in the discretion
of
the Committee; or (iv) a copy of irrevocable instructions to a broker to
promptly deliver to the Company the amount of proceeds from a sale of shares
of
Common Stock equal to the exercise price and any applicable withholding
taxes.
Any
withholding tax due upon exercise of this Option shall be, and shall remain,
the
responsibility of the Optionee (or such Optionee’s estate or representative).
This Option may be exercised from time to time by written notice to the Company
stating the full number of shares to be purchased and the time and delivery
thereof, which shall be at least fifteen days after the giving of notice unless
an earlier date shall have been agreed upon between the Optionee (or other
person entitled to exercise this Option) and the Company, accompanied by full
payment for the shares as described in the first sentence of this Section 9.
The
Company will, as soon as is reasonably possible, notify the Optionee (or such
Optionee’s representative) of the amount of withholding tax, if any, that must
be paid under federal, state and local law due to the exercise of this Option.
The Company shall have no obligation to deliver certificates for the shares
purchased until the Optionee (or such Optionee’s representative) pays to the
Company the purchase price in full and the amount of withholding tax specified
in the Company’s notice as described in this Section 9 by payment terms set
forth in the first sentence of this Section 9. At the time of delivery, the
Company shall, without transfer or issue tax to the Optionee (or other person
entitled to exercise this option) deliver at the principal office of the
Company, or at such other place as shall be mutually agreed upon, a certificate
or certificates for such shares, provided, however, that the time of delivery
may be postponed by the Company for such period as may be required for it to
comply with reasonable diligence with any requirements of law.
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10. Nontransferability
of Option.
This
Option shall not be assignable or transferable other than by will or the laws
of
descent and distribution and shall be exercisable during the Optionee’s lifetime
only by the Optionee.
11. Continued
Retention.
Subject
to the terms of any agreement between the Company and the Optionee, nothing
herein shall confer upon the Optionee any right to continue to serve as a
director of the Company or a Subsidiary, or shall prevent the Company or
Subsidiary for whom Optionee serves as a director from terminating his
directorship at any time, with or without cause, or removing or failing to
reelect the Optionee as a director.
12. Rights
as Stockholder.
Nothing
herein is intended to or shall give to the Optionee or the legal
representatives, heirs, legatees, or distributees of the Optionee any right
or
status of any kind as a stockholder of the Company in respect of any shares
of
Common Stock covered by this Option or entitle the Optionee or the legal
representatives, heirs, legatees, or distributees of the Optionee to any
dividends or distributions thereon unless and until such shares shall have
been
delivered to the Optionee or the legal representatives, heirs, legatees, or
distributees of the Optionee and registered in the Optionee’s name and the
Optionee or the legal representatives, heirs, legatees, or distributees of
the
Optionee has received a certificate or certificates therefor.
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13. Interpretation.
If and
when questions arise from time to time as to the intent, meaning or application
of the provisions hereof or of the Plan, such questions shall be decided by
the
Committee in its sole discretion, and any such decision shall be conclusive
and
binding on the Optionee. The Optionee hereby agrees that this Option is granted
and accepted subject to such condition and understanding.
14. Investment
Representation.
At such
time or times as the Optionee may exercise this Option, the Optionee shall,
upon
the request of the Company, represent in writing (i) that the shares being
acquired by the Optionee under this Option will not be sold except pursuant
to
an effective registration statement, or applicable exemption from registration,
under the Securities Act of 1933, as amended, (ii) that it is the Optionee’s
intention to acquire the shares being acquired for investment only and not
with
a view to distribution thereof, and (iii) other customary representations as
the
Company deems necessary or advisable. No shares will be issued to the Optionee
unless the Optionee provides such representations and agreements and the Company
is satisfied as to the accuracy of such representations and
agreements.
15. Withholding
of Taxes.
Upon
exercise of this Option (either wholly or in part), the Optionee must pay to
the
Company, or make arrangements satisfactory to the Company regarding payment
of,
any federal, state or local taxes of any kind required to be withheld in
connection with the issuance to the Optionee of Common Stock upon exercise
of
this Option. The Company may permit withholding of shares of Common Stock in
accordance with procedures established by the Company as an election by Optionee
to meet applicable withholding requirements.
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16. Notices.
All
notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if delivered personally, mailed certified mail
(return receipt requested) or sent by overnight delivery service, cable,
telegram, facsimile transmission or telex to the Optionee at the address on
the
signature page hereof and to the Company at the address set forth below or
at
such other addresses as shall be specified by the parties by like
notice:
Xxxxx,
Inc.
000
Xxxxx
Xxxxxxxx Xxxx Xxxxx
Xxxxx
Xxxxxxxxxx, XX 00000
Attention:
Xxx Xxxxxxxxxx
Facsimile
No. (000) 000-0000
17. Defined
Terms.
All
capitalized terms used herein and not otherwise defined shall have the meanings
given them in the Plan.
18. Confidentiality.
Unless
otherwise permitted by the Chairman of the Board, Optionee agrees to keep
confidential the terms of this Option Agreement (and the terms of any other
Option Agreement with any other director of the Company known to Optionee)
and
shall not disclose such terms to any other director or otherwise.
19. Specified
Information.
This
Option Agreement shall apply with respect to the following specific
information:
(a) Date
of
Grant: [Insert
Date]
(b) Name
of
Optionee: [Insert
Full Name]
(c) Number
of
Shares Covered by Option: [Insert
Number of Shares]
(d) Option
Exercise Price Per Share: [Insert
Stock Price at closing]
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the undersigned have executed this Option Agreement to be
effective as of the Date of Grant set forth above.
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XXXXX,
INC.
By:
Xxxxx
X. Xxxxxxxxxx
Vice
President and Corporate Secretary
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[Insert
Full Name],
Optionee
Social
Security Number: [Insert
SSN #]
Optionee’s
Address:
[Insert
home address]
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