EXHIBIT 10.4
AWARD AGREEMENT
Under The
Xxxxxxx Business Services, Inc.
2003 Stock Incentive Plan
NONQUALIFIED STOCK OPTION
Corporation: XXXXXXX BUSINESS SERVICES, INC.
0000 X.X. Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Participant: ------------------------------
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Date: July 1, 2005
Corporation maintains the Xxxxxxx Business Services, Inc., 2003
Stock Incentive Plan (the "Plan").
This Award Agreement evidences the grant of a Nonqualified Stock
Option (the "Option") to Participant.
The parties agree as follows:
1. Defined Terms
When used in this Agreement, the following terms have the meaning
specified below:
(a) "Employer" means Corporation or a Subsidiary of Corporation.
(b) "Grant Date" means the date the Option is granted, which is
reflected as the date of this Agreement.
(c) Capitalized terms not otherwise defined in this Agreement have
the meanings given them in the Plan.
2. Grant of Option
Subject to the terms and conditions of this Agreement and the Plan,
Corporation grants to Participant the Option to purchase _________ shares of
Corporation's common stock at $ _____ per share.
3. Terms of Option
The Option is subject to all the provisions of the Plan and to the
following terms and conditions:
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3.1 Term. The term of the Option is ten years from the Grant Date
and will automatically terminate on July 1, 2015, to the extent not exercised,
unless terminated earlier in accordance with this Agreement.
3.2 Time of Exercise. Unless the Option is otherwise terminated, the
Option may be exercised at any time following the Grant Date.
3.3 Method of Exercise. The Option, or any portion thereof, may be
exercised by delivery of written notice to Corporation stating the number of
Shares, form of payment, and proposed date of closing.
3.4 Other Documents. Participant will be required to furnish to
Corporation before closing such other documents or representations as
Corporation may require to assure compliance with applicable laws and
regulations.
3.5 Payment. The exercise price for the Shares purchased upon
exercise of the Option must be paid in full at or before closing by one or a
combination of the following:
(a) Payment in cash;
(b) Delivery of previously acquired Shares having a Fair Market
Value equal to the exercise price; or
(c) With the prior approval of the Committee, by delivery (in a form
approved by the Committee) of an irrevocable direction to a securities
broker acceptable to the Committee:
(i) To sell Shares subject to the Option and to deliver all or
a part of the sales proceeds to Corporation in payment of all or a
part of the option price and withholding taxes due; or
(ii) To pledge Shares subject to the Option to the broker as
security for a loan and to deliver all or a part of the loan
proceeds to Corporation in payment of all or a part of the exercise
price and withholding taxes due.
3.6 Previously Acquired Shares. Delivery of previously acquired
Shares in full or partial payment for the exercise of the Option will be subject
to the following conditions:
(a) The Shares tendered must be in good delivery form;
(b) The Fair Market Value of the Shares tendered, together with the
amount of cash, if any, tendered must equal or exceed the exercise price
of the Option;
(c) Any Shares remaining after satisfying the payment for the Option
will be reissued in the same manner as the Shares tendered; and
(d) No fractional Shares will be issued and cash will not be paid to
Participant for any fractional Share value not used to satisfy the Option
exercise price.
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3.7 Reload Option. In the event all or a portion of the Option is
exercised by Participant by delivering previously acquired Shares, Participant
will be granted automatically a replacement Option for a number of Shares equal
to the number of Shares delivered to Corporation by Participant upon exercise of
the Option. The grant date for such replacement Option will be the date of
exercise and the exercise price for such replacement Option will be the Fair
Market Value of a Share on such grant date. The replacement Option initially
will not be exercisable and will become fully exercisable six months after the
grant date. In all other respects, the replacement Option will be subject to all
the terms and conditions of this Award Agreement.
4. Tax Withholding and Reimbursement
Corporation is authorized to withhold from Participant's other
compensation any withholding and payroll taxes imposed on Corporation in
connection with or with respect to the exercise or other settlement of the
Option (the "Payroll Taxes"). In the event Participant is no longer an employee
of an Employer at the time of exercise or there is insufficient other income
from which to withhold the Payroll Taxes, Participant agrees to pay to
Corporation an amount sufficient to provide for payment of all Payroll Taxes.
5. Conditions Precedent
Corporation will use its best efforts to obtain approval of the Plan
and this Option by any state or federal agency or authority that Corporation
determines has jurisdiction. If Corporation determines that any required
approval cannot be obtained, this Option will terminate on notice to Participant
to that effect. Without limiting the foregoing, Corporation will not be required
to issue any Shares upon exercise of the Option, or any portion thereof, until
Corporation has taken any action required to comply with all applicable federal
and state securities laws.
6. Termination for Cause; Competition
6.1 Annulment of Awards. The grant of the Option governed by this
Agreement is revocable until Participant becomes entitled to a certificate for
Shares in settlement thereof. In the event the employment of Participant is
terminated for cause (as defined below), any portion of the Option which is
revocable will be annulled as of the date of such termination for cause. For the
purpose of this Section 6.1, the term "for cause" will have the meaning set
forth in Participant's employment agreement, if any, or otherwise means any
discharge (or removal) for material or flagrant violation of the policies and
procedures of the Employer or for other performance or conduct which is
materially detrimental to the best interests of Corporation, as determined by
the Committee.
6.2 Engaging in Competition With Corporation. If Participant
terminates employment with an Employer for any reason whatsoever, and within 18
months after the date thereof accepts employment with any competitor of (or
otherwise engages in competition with) Corporation, the Committee, in its sole
discretion, may require Participant to return to Corporation the economic value
of this Option that is realized or obtained (measured at the date
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of exercise) by Participant at any time during the period beginning on the date
that is six months prior to the date of Participant's termination of employment
with an Employer.
7. Successorship
Subject to restrictions on transferability set forth in the Plan,
this Agreement will be binding upon and benefit the parties, their successors
and assigns.
8. Notices
Any notices under this Option must be in writing and will be
effective when actually delivered personally or, if mailed, when deposited as
registered or certified mail directed to the address of Corporation's records or
to such other address as a party may certify by notice to the other party.
9. Arbitration
Any dispute or claim that arises out of or that relates to this
Agreement or to the interpretation, breach, or enforcement of this Agreement,
must be resolved by mandatory arbitration in accordance with the then effective
arbitration rules of Arbitration Service of Portland, Inc., and any judgment
upon the award rendered pursuant to such arbitration may be entered in any court
having jurisdiction thereof.
10. Attorney Fees
In the event of any suit or action or arbitration proceeding to
enforce or interpret any provision of this Agreement (or which is based on this
Agreement), the prevailing party will be entitled to recover, in addition to
other costs, reasonable attorney fees in connection with such suit, action,
arbitration, and in any appeal. The determination of who is the prevailing party
and the amount of reasonable attorney fees to be paid to the prevailing party
will be decided by the arbitrator or arbitrators (with respect to attorney fees
incurred prior to and during the arbitration proceedings) and by the court or
courts, including any appellate courts, in which the matter is tried, heard, or
decided, including the court which hears any exceptions made to an arbitration
award submitted to it for confirmation as a judgment (with respect to attorney
fees incurred in such confirmation proceedings).
XXXXXXX BUSINESS SERVICES, INC.
By -------------------------------
Its -------------------------------
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Participant
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