EXHIBIT 4.2
The XXXXXXX-XXXXXXXXXX CORPORATION
1998 STOCK OPTION PLAN
FORM OF
NONQUALIFIED STOCK OPTION AGREEMENT
THE XXXXXXX-XXXXXXXXXX CORPORATION
1998 STOCK OPTION PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
THIS NONQUALIFIED STOCK OPTION AGREEMENT (this
"Agreement") dated as of the __________ day of ____________,
______, between THE XXXXXXX-XXXXXXXXXX CORPORATION, a Delaware
corporation (the "Corporation"), and _______________________ (the
"Employee").
W I T N E S S E T H
WHEREAS, the Corporation has adopted The XxxXxxx-
Xxxxxxxxxx Corporation 1998 Stock Option Plan (the "Plan");
WHEREAS, pursuant to Section 2 of the Plan, the
Corporation has granted to the Employee effective as of the
__________ day of ________________, _____ (the "Option Date") a
stock option to purchase all or any part of ____________ shares
of the Corporation's Common Stock, par value $0.01 per share (the
"Common Stock"), subject to and upon the terms and conditions set
forth in this Agreement and in the Plan; and
WHEREAS, such option has been granted by the
Corporation to the Employee in addition to, and not in lieu of,
any other form of compensation otherwise payable or to be paid to
the Employee;
NOW, THEREFORE, in consideration of the mutual promises
and covenants made herein and the mutual benefits to be derived
herefrom, the parties agree as follows:
1. DEFINED TERMS. Capitalized terms used herein and not
otherwise defined herein shall have the meaning assigned to
such terms in the Plan.
2. GRANT OF OPTION. This Agreement evidences the Corporation's
grant to the Employee of the right and option to purchase,
on the terms and conditions set forth in this Agreement and
in the Plan, all or any part of __________ shares of the
Common Stock (the "Shares") at the price of $______________
per Share (the "Option"), exercisable from time to time,
subject to the provisions of this Agreement and the Plan,
prior to the close of business on [the day before the tenth
anniversary of the Option Date] (the "Expiration Date").
Such price equals not less than the Fair Market Value of the
Shares on the Option Date. It is the intent of the
Corporation that the Option constitute a nonqualified stock
option and not be deemed to be an incentive stock option
within the meaning of Section 422 of the Internal Revenue
Code of 1986, as amended.
3. EXERCISABILITY OF OPTION. Except as provided in the Plan or
in any resolution of the Committee adopted after the date
hereof, the Option shall become vested and exercisable [in
installments as to ______% of the aggregate number of Shares
set forth in Section 2 (subject to adjustment) on and after
the _______ anniversary of the Option Date, and thereafter
shall become vested and exercisable as to an additional
______% of the aggregate number of Shares set forth in
Section 2 (subject to adjustment) on and after each of the
_________________, ________________, and ________________
anniversaries of the Option Date].
Once the option is vested and exercisable, the Employee has
the right thereafter to purchase any Shares, in whole or in
part, from time to time; and such right shall continue until
the Option terminates or expires. The Option shall only be
exercisable in respect of whole shares and fractional share
interests shall be disregarded. The Option may only be
exercised as to at least 100 Shares, unless the number
purchased is the total number at the time available for
purchase under the Option.
4. METHOD OF EXERCISE OF OPTION. The Option shall be
exercisable by the delivery to the Secretary of the
Corporation of a written notice stating the number of Shares
to be purchased pursuant to the Option and accompanied by
payment made in accordance with and in a form permitted by
Section 2.2.2 of the Plan for the full purchase price of the
Shares to be purchased, subject to such further limitations
and rules or procedures as the Committee may from time to
time establish as to any non-cash payment and as to the tax
withholding requirements of Section 4.5 of the Plan.
Subject to the consent of the Committee at the time of
exercise, the purchase price may be paid in full or in part
by shares of Common Stock already owned by the Employee;
provided, however, that any shares delivered (i) which were
initially acquired upon exercise of a stock option or
otherwise acquired from the Corporation must have been owned
by the Employee for at least six months before the date of
exercise, and (ii) shall be valued at their Fair Market
Value on the date of exercise. In addition, the Employee
(or the Employee's Beneficiary or Personal Representative)
shall furnish any written statements required pursuant to
Section 4.4 of the Plan.
5. EFFECT OF TERMINATION OF EMPLOYMENT OR DEATH; CHANGE IN
SUBSIDIARY STATUS. If the Employee terminates employment or
services with the Corporation or a Subsidiary for any
reason, the Option, to the extent not previously exercised,
and all other rights hereunder, whether vested or not, shall
terminate and become null and void as provided and at the
times specified in Section 4.3 of the Plan.
6. ADJUSTMENT; TERMINATION OF OPTION UNDER CERTAIN EVENTS. The
Option is subject to adjustment pursuant to Section 4.2.1 of
the Plan and subject to early termination, whether vested or
not, upon the occurrence of certain events as described in
Section 4.2.3 of the Plan.
7. NON-TRANSFERABILITY OF OPTION. Subject to the limited
exceptions set forth in Section 1.8 of the Plan, the Option
and any other rights of the Employee under this Agreement or
the Plan are nontransferable.
8. NOTICES. Any notice to be given under the terms of this
Agreement shall be in writing and addressed to the
Corporation at its principal executive offices, to the
attention of the Secretary, and to the Employee at the
address given beneath the Employee's signature hereto, or at
such other address as either party may hereafter designate
in writing to the other. Any such notice shall be deemed to
have been duly given when enclosed in a properly sealed
envelope addressed as aforesaid, registered or certified,
and deposited (postage and registry or certification fee
prepaid) in a post office or branch post office regularly
maintained by the United States Government.
9. PLAN. The Option and all rights of Employee under this
Agreement are subject to, and the Employee agrees to be
bound by, all of the terms and conditions of the provisions
of the Plan, incorporated herein by this reference. In the
event of a conflict or inconsistency between the terms and
conditions of this Agreement and the Plan, the terms and
conditions of the Plan shall govern. The Employee
acknowledges receipt of a copy of the Plan, and agrees to be
bound by the terms thereof. Unless otherwise expressly
provided in other sections of this Agreement, provisions of
the Plan that confer discretionary authority on the
Committee (or the Board) do not (and shall not be deemed to)
create any rights in the Employee unless such rights are
expressly set forth herein or are otherwise in the sole
discretion of the Committee (or the Board) so conferred by
appropriate action of the Committee (or the Board) under the
Plan after the date hereof and evidenced in a writing
authorized by the Committee. The Option and the issuance
and delivery of shares of Common Stock under the Option are
subject to compliance with Section 4.4 of the Plan.
10. ENTIRE AGREEMENT. This Agreement and the Plan constitute
the entire agreement and supersede all prior understandings
and agreements, written or oral, of the parties hereto with
respect to the subject matter hereof. The Plan and this
Agreement may be amended pursuant to Section 4.6 of the
Plan. Such amendment must be in writing and signed by the
Corporation. The Corporation may, however, unilaterally
waive any provision hereof in writing to the extent such
waiver does not adversely affect the interests of the
Employee hereunder, but no such waiver shall operate or be
construed to be a subsequent waiver of the same provision or
a waiver of any other provision hereof.
11. GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the
State of Delaware without regard to conflict of law
principles thereunder.
[12. STOCKHOLDER APPROVAL. Notwithstanding anything else
contained herein to the contrary, this Agreement and the
Option granted hereunder are subject to stockholder approval
of the Plan no later than 12 months after the Effective Date
of the Plan and in accordance with the terms of the Plan,
the Corporation's By-Laws, and applicable law.] [Include if
Option granted prior to stockholder approval.]
IN WITNESS WHEREOF, the Corporation has caused this
Agreement to be executed on its behalf by a duly authorized
officer and the Employee has hereunto set his or her hand.
THE XXXXXXX-XXXXXXXXXX
EMPLOYEE CORPORATION
(a Delaware corporation)
_________________________
Signature
By:________________________
_________________________
Print Name
Title:_____________________
_________________________
Address
Date:______________________
_________________________
City, State, Zip Code
CONSENT OF SPOUSE
In consideration of the execution of the foregoing
Nonqualified Stock Option Agreement by The XxxXxxx-Xxxxxxxxxx
Corporation, I, ____________________________, the spouse of the
Employee therein named, do hereby join with my spouse in
executing the foregoing Nonqualified Stock Option Agreement and
do hereby agree to be bound by all of the terms and provisions
thereof and of the Plan.
DATED: ______________, 19__. ________________________
Signature of Spouse
