Exhibit 10.3
SPECIMEN STOCK OPTION AGREEMENT
This STOCK OPTION AGREEMENT, dated as of <>,
between EMCORE CORPORATION, a New Jersey Corporation (the "Corporation"), and
<> <>, an employee of the Corporation or its subsidiary (herein
"Employee")
W I T N E S S E T H :
The Corporation desires, by affording the employee an opportunity to
purchase shares of its Common Stock, $1.20 par value, to provide the Employee
with an added incentive to join or to continue in the employment of the
Corporation and to continue and increase his or her efforts in that
connection. This Stock Option Agreement (this "Agreement") is being entered
into pursuant to the Stock Corporation 1995 Incentive and Non-Statutory Stock
Option Plan and is subject to the provisions thereof, including the
determinations to be made by the Stock Option Committee (the "Committee") of
the Board of Directors of the Corporation (the "Board").
In consideration or the mutual covenants hereinafter set forth and
for other good and valuable consideration, the parties hereto hereby agree as
follows:
1. Grant. The Corporation with the approval and direction of the
Committee irrevocably grants the employee the right and option (the "Option")
to purchase all or any part of an aggregate of <> shares
of Common Stock on the terms and conditions herein set forth. This Option
shall be an Incentive Stock Option.
2. Price. The purchase price of the shares of Common Stock covered
by the Option shall be $1.20 per share, being in excess of the fair market
value of the Common Stock on the date hereof.
3. Time of Exercise. The term of the Option shall be for a period
of ten (10) years from the date hereof, subject to earlier termination as
provided in this Agreement. Except as provided in Paragraphs 5 and 6 hereof,
the Option may not be exercised unless the Employee shall at the time of
exercise be an employee of the Corporation. Neither the Option nor any rights
related to the Option shall be exercisable for a period of one year from the
date hereof when twenty percent (20%) of the Option shall become exercisable,
except that: (i) if the Employee shall die, rehire or become disabled then
the Option shall be fully exercisable commencing upon such event, (ii) if all
of the capital stock of the Corporation or substantially all of its assets
shall be transferred in exchange for cash only, then the Employee shall be
entitled to receive from the Corporation an amount equal to (a) the price or
distributable amount per share calculated as if all options containing this
provision had been exercised less the exercise price, (b) multiplied by the
number of options unexercised and (iii) if all of the capital stock of the
Corporation is transferred in whole or in part in exchange for stock of
another Corporation then the Option shall be fully exercisable commencing upon
such event. An additional twenty percent (20%) of the Option shall become
exercisable each of the four successive anniversaries of the date hereof until
the Option shall be fully exercisable, except that: (1) if the Employee has
been employed for one year as of September 12, 1995, twenty percent (20%)
shall be immediately vested with the remaining on each of the four (4)
successive anniversaries of the date hereof, or, (2) if the employee has been
employed for two years as of September 12, 1995, forty percent (40%) shall be
immediately invested with the remainder vesting on each of the three (3)
successive anniversaries of the date hereof.
4. No Transfer. The Option shall not be Transferable by the
Employee otherwise than by Will or the laws of descent and distribution, and
the Option may be exercised during his lifetime only by the Employee. The
Option may not be assigned, transferred (except as aforesaid), pledged or
hypothecated in any way (whether by operation of law or otherwise) and shall
not be subject to execution, attachment or similar process. Any attempted
assignment, transfer, pledge, hypothecation or other disposition of the Option
contrary to the provisions hereof and the levy of any attachment or similar
process upon the Option shall be null and void and without effect.
5. Termination. In the event the employment of the Employee shall
be terminated for any reason, (i) the Option may be exercised by the Employee
at any time within thirty (30) days after such date (or one year after such
date if the Employee is disabled within the meaning of Internal Revenue Code
Section 22(e)(3), but in no event after the expiration of ten years from the
date hereof, and only if and to the extent that he was entitled to exercise
the Option at the date of termination, and (ii) so long as the stock of the
Corporation is not listed on a national securities exchange or traded on the
over-the-counter market, the Corporation may elect in its sole discretion to
repurchase the stock at a price equal to the fair market value of the stock at
the date of termination. The Option shall not be affected (i) by any change
of duties or position so long as the Employee continues to be an employee of
the Corporation or a subsidiary or (ii) by any temporary leave of absence that
does not sever the employment relationship, which leave of absence is
approved, if for a period of not more than three months, by an officer of the
Corporation, or if for a period of more than three months, by the Board.
6. Death of Employee. If the Employee shall die while entitled to
exercise the Option, the Option may be exercised by the legatee or legatees of
the Option under the Employee's Will, the personal representative or
distributees of the Employee to the extent that the Option would otherwise
have been exercisable by the Employee at any time within a period of one year
after the date of the Employee's death, but this provision shall not otherwise
extend the ten (10) year duration of the Option.
7. Anti-Dilution Adjustments. In the event of any change in the
outstanding Common Stock of the Corporation by reason of stock dividends,
stock splits, recapitalizations, mergers, consolidations, combinations or
exchanges of shares, split-ups, split-offs, liquidations or other similar
changes in capitalization, or any distributions to common stockholders other
than cash dividends, the numbers, class and prices of shares covered by this
Option shall be appropriately adjusted by the Committee, whose determination
shall be conclusive; provided, however, that no such adjustment shall give the
Employee any additional benefits under the option.
8. Corporate Transaction. Notwithstanding the provisions of
Paragraph 7, if any "corporate transaction" as defined in Section 1.425-1 of
the Treasury Regulations promulgated under the Internal Revenue Code of 1986
occurs after the date of this Agreement, and in connection with such corporate
transaction, the Corporation and another corporation enter into an agreement
providing for the issuance of substitute stock options in exchange for the
Option or the assumption of the Option, in either case giving the employee the
right to purchase the largest whole number of shares of Common Stock of the
Corporation or of any other corporation at the lowest option price permitted
by said Section 1.425-1, the Option shall be deemed to provide for the
purchase of such number of shares of Common Stock at such option price as
shall be agreed upon by the Corporation and such other corporation, and the
term "Corporation" herein shall mean the issuer of the stock then covered by
the Option and the term "Common Stock" shall mean such stock.
9. No Employment Agreement. This Agreement does not confer upon
the Employee any right to continue in the employ of the Corporation nor does
it interfere in any way with the right of the Corporation or the right of the
Employee to terminate the employment of the Employee at any time.
10. Restrictions. The obligation of the Corporation to sell and
deliver shares of Common Stock with respect to the Option shall be subject to
(i) all applicable laws, rules, regulations and such approvals by any
governmental agencies as may be required, including the effectiveness of a
registration statement under the Securities Act of 1933, as amended and (ii)
the condition that the shares of Common Stock to be received upon exercise of
the Option shall have been duly listed, upon official notice of issuance, on a
stock exchange (to the extent that the Common Stock of the Corporation is then
listed on any such stock exchange). In the event that the shares shall be
delivered otherwise than in accordance with an applicable registration
statement, the Corporation's obligation to deliver the shares is subject to
the further condition that the Employee will execute and deliver to the
Corporation an undertaking in form and substance satisfactory to the
Corporation that (i) it is the Employee's intention to acquire and hold such
shares for investment and not for resale or distribution, (ii) the shares will
not be sold without registration or exemption from the requirement of
registration under the Securities Act and (iii) the employee will indemnify
the Corporation for any costs, liabilities and expenses which it may sustain
by reason of any violation of the Securities Act or any other law regulating
the sale or purchase of securities occasioned by any act on his part with
respect to such shares. The Corporation may require that any certificate or
certificates evidencing shares issued pursuant to the Plan bear a restrictive
legend intended to effect compliance with the Securities Act or any other
applicable regulatory measures, and stop transfer instructions with respect to
the certificates representing the shares may be given to the transfer agent.
11. Exercise. Subject to the terms and conditions of this
Agreement, the Option may be exercised only by written notice delivered to the
Corporation at 000 Xxxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000-0000,
attention of the Chief Financial Officer, of intention to exercise such option
and by making payment of the purchase price of such shares against delivery of
a certificate or certificates therefor as hereinafter provided. Such written
notice shall:
(a) state the election to exercise the Option and the number of
shares in respect of which it is being exercised;
(b) fix a date not less than seven (7) business days from the date
such notice is received by the Corporation for delivery of the
certificate or certificates for said shares and the payment of the
purchase price therefor, and
(c) be signed by the person or persons so exercising the Option and
in the event the Option is being exercised by any person or persons other
than the Employee, be accompanied by appropriate proof of the right of
such person or persons to exercise the Option.
On the date fixed in said written notice, a certificate or
certificates for the shares as to which the Option shall have been so
exercised, registered in the name of the person or persons so exercising the
Option shall be issued by the Corporation and delivered to or upon the order
of such person or persons against payment in full at the above-mentioned
address or the purchase price of said shares in cash, by check or by surrender
or delivery to the Corporation of shares of the Corporation's Common Stock
with a fair market value equal to or less than the Option price, plus cash
equal to any difference. All shares issued as provided herein will be fully
paid and nonassessable. The Employee shall not have any of the rights of the
stockholder with respect to the shares of Common Stock subject to the option
until the certificate evidencing such shares shall be issued to him upon the
due exercise of the Option.
12. Availability of Shares. The Corporation shall at all times
during the term of the Option reserve and keep available such number of shares
of Common Stock as will be sufficient to satisfy the requirements of this
Agreement, shall pay all original issue taxes with respect to the issue of
shares pursuant hereto and all other fees and expenses necessarily incurred by
the Corporation in connection therewith and will from time to time use its
best efforts to comply with all laws and regulations which in the opinion of
counsel for the Corporation shall be applicable thereto.
13. Fair Market Value. As used herein, the "fair market value" of
a share of Common Stock shall be:
(a) if the Common Stock is listed on a national securities
exchange, the closing price of the Common Stock on the Composite Tape on
the trading day immediately preceding such given date;
(b) if the Common Stock is traded on the over-the-counter market,
the average of the bid and the asked price for the Common Stock as
reported by the Wall Street Journal at the close of trading on the
trading day immediately preceding such given date, and
(c) if the Common Stock is neither listed on a national securities
exchange or traded on the over-the-counter market, such value as the
Board in good faith shall determine.
14. The Plan. The Option is granted pursuant to the terms of the
Plan, which terms are incorporated herein by reference, and the Option shall
in all respects be interpreted in accordance with the Plan. The Committee
shall interpret and construe the Plan and this Agreement, and the Committee's
interpretations and determination shall be conclusive and binding on the
parties hereto and any other person claiming an interest hereunder with
respect to any issue arising thereunder or thereunder.
15. Governing Law. This Agreement has been entered into and shall
be construed in accordance with the laws of the State of New Jersey.
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be
duly executed and sealed by its duly authorized officers and the Employee has
hereunder set his hand, all as of the day and year first above written.
ATTEST: EMCORE CORPORATION
________________________ By: Xxxxxx X. Xxxxxxx
Chief Financial Officer
________________________ By: <> <>
Employee
