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EXHIBIT 10.8(b)
STOCK OPTION AGREEMENT
(PURSUANT TO THE TERMS OF THE
EXPRESSJET HOLDINGS, INC.
2001 STOCK INCENTIVE PLAN)
This STOCK OPTION AGREEMENT (this "Option Agreement") is between
EXPRESSJET HOLDINGS, INC., a Delaware corporation ("Company"), and
______________ ("Optionee"), and is dated as of the date set forth immediately
above the signatures below.
To carry out the purposes of the EXPRESSJET HOLDINGS, INC. 2001 STOCK
INCENTIVE PLAN (the "Plan"), by affording Optionee the opportunity to purchase
shares of Class A common stock, $.01 par value per share, of Company ("Common
Stock"), and in consideration of the mutual agreements and other matters set
forth herein and in the Plan, Company and Optionee hereby agree as follows:
1. GRANT OF OPTION. Company hereby grants to Optionee the right,
privilege and option as herein set forth (the "Option") to purchase up to
________ (______) shares (the "Shares") of Common Stock, in accordance with the
terms of this Option Agreement. The Shares, when issued to Optionee upon the
exercise of the Option, shall be fully paid and nonassessable. The Option is
granted pursuant to the Plan and is subject to the provisions of the Plan, which
is hereby incorporated herein and is made a part hereof, as well as the
provisions of this Option Agreement. Optionee agrees to be bound by all of the
terms, provisions, conditions and limitations of the Plan and this Option
Agreement. All capitalized terms have the meanings set forth in the Plan unless
otherwise specifically provided. All references to specified paragraphs pertain
to paragraphs of this Option Agreement unless otherwise provided. The Option is
not intended to qualify as an "incentive stock option" within the meaning of
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code").
2. OPTION TERM. Subject to earlier termination as provided herein, the
Option shall terminate on [5th anniversary of Grant Date]. The period during
which the Option is in effect is referred to as the "Option Period".
3. OPTION EXERCISE PRICE. The exercise price (the "Option Price") of
the Shares subject to the Option shall be $_______ per Share (which is the
Market Value per Share on the date hereof).
4. VESTING. Subject to the following provisions of this Paragraph 4,
the total number of Shares subject to this Option shall vest in twenty-five
percent (25%) increments on each of [anniversaries 1-4 of Grant Date]. The
vested Shares that may be acquired under the Option may be purchased at any time
after they become vested, in whole or in part, during the Option Period. In
addition, the total number of Shares subject to this Option shall vest and
become exercisable upon the occurrence of one of the events described below in
Paragraph 6(c) or 6(d).
5. METHOD OF EXERCISE. To exercise the Option, Optionee shall deliver
an irrevocable written notice to Company (to the attention of the Secretary of
Company) stating the
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number of Shares with respect to which the Option is being exercised together
with payment for such Shares. Payment shall be made (i) in cash or by check
acceptable to Company, (ii) in nonforfeitable, unrestricted shares of Common
Stock owned by Optionee at the time of exercise of the Option having an
aggregate market value (measured by the Market Value per Share) at the date of
exercise equal to the aggregate exercise price of the Option being exercised or
(iii) by a combination of (i) and (ii). In addition, at the request of Optionee,
and to the extent permitted by applicable law and subject to Paragraph 15, the
Option may be exercised pursuant to a "cashless exercise" arrangement with any
brokerage firm approved by the Administrator or its delegate under which
arrangement such brokerage firm, on behalf of Optionee, shall pay to Company the
exercise price of the Options being exercised, and Company, pursuant to an
irrevocable notice from Optionee, shall promptly after receipt of the exercise
price deliver the shares being purchased to such brokerage firm.
6. TERMINATION OF EMPLOYMENT; CHANGE IN CONTROL. Voluntary or
involuntary termination of employment, retirement, death or Disability of
Optionee, or occurrence of a Change in Control, shall affect Optionee's rights
under the Option as follows:
(a) Involuntary Termination for Gross Misconduct. The Option
shall terminate immediately and shall not be exercisable if Optionee's
employment (defined below) is terminated involuntarily for gross
misconduct (defined below).
(b) Other Involuntary Termination or Voluntary Termination. If
Optionee's employment is terminated involuntarily other than for gross
misconduct or if Optionee voluntarily terminates employment, then
immediately (i) the Option shall terminate as to Shares subject thereto
to the extent not yet then vested pursuant to Paragraph 4 or Paragraph
6(c) below, and (ii) the Option shall terminate as to all remaining
Shares subject thereto to the extent not exercised pursuant to
Paragraph 5 within 30 days after such termination of employment.
(c) Change in Control. If a Change in Control shall occur and
the Option (or a portion thereof) is outstanding at such time, then
immediately the Option (or the portion thereof that is outstanding at
such time) shall vest and become exercisable in full.
(d) Retirement, Death or Disability. If Optionee's employment
is terminated by retirement, death or complete and permanent disability
as defined in section 22(e)(3) of the Code ("Disability"), then
immediately the Option shall become exercisable in full, whether or not
otherwise exercisable, for a term of one year thereafter by Optionee
or, in the case of death, by the person or persons to whom Optionee's
rights under the Option shall pass by will or by the applicable laws of
descent and distribution, or in the case of Disability, by Optionee's
personal representative. However, in no event may any Option be
exercised by anyone after the earlier of (i) the expiration of the
Option Period or (ii) one year after Optionee's death, retirement or
Disability (described above).
(e) Definitions. For purposes of the Option, "employment"
means employment by Company or a subsidiary (as the term "subsidiary"
is defined in the Plan). In this regard, neither the transfer of
Optionee from employment by Company to employment by a subsidiary nor
the transfer of Optionee from employment by a
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subsidiary to employment by Company shall be deemed to be a termination
of employment of Optionee. Moreover, the employment of Optionee shall
not be deemed to have been terminated because of absence from active
employment on account of temporary illness or during authorized
vacation or during temporary leaves of absence from active employment
granted by Company or a subsidiary for reasons of professional
advancement, education, health, or government service, or during
military leave for any period if Optionee returns to active employment
within 90 days after the termination of military leave, or during any
period required to be treated as a leave of absence by virtue of any
valid law or agreement. It is expressly provided that Optionee shall be
considered to have terminated employment at the time of the termination
of the "subsidiary" status under the Plan of the entity or other
organization that employs Optionee. "Gross misconduct" means such
misconduct, dishonesty, willful and repeated disobedience or other
action or inaction as might reasonably be expected to injure Company or
any of its subsidiaries or its or their business interests or
reputation. The Administrator's determination in good faith regarding
whether a termination of employment, gross misconduct or Disability has
occurred shall be conclusive and determinative.
7. REORGANIZATION OF COMPANY AND SUBSIDIARIES. The existence of the
Option shall not affect in any way the right or power of the Board or the
stockholders of Company or any subsidiary to make or authorize any or all
adjustments, recapitalizations, reorganizations or other changes in Company's or
any subsidiary's capital structure or its business, or any merger or
consolidation of Company or any subsidiary, or any issue of bonds, debentures,
preferred or prior preference stock ahead of or affecting the Shares or the
rights thereof, or the dissolution or liquidation of Company or any subsidiary,
or any sale or transfer of all or any part of its assets or business, or any
other corporate act or proceeding, whether of a similar character or otherwise.
8. ADJUSTMENT OF SHARES. In the event of stock dividends, spin-offs of
assets or other extraordinary dividends, stock splits, combinations of shares,
recapitalizations, mergers, consolidations, reorganizations, liquidations,
issuances of rights or warrants and similar transactions or events involving
Company, appropriate adjustments shall be made by the Committee in its sole
discretion to the terms and provisions of the Option (including, without
limitation, adjustments to the number or type of shares or other property
subject to the Option and the applicable Option Price).
9. NO RIGHTS IN SHARES. Optionee shall have no rights as a stockholder
in respect of Shares until Optionee purchases such Shares under this Option
Agreement and such Shares are credited to Optionee's account or until Optionee
becomes the holder of record of such Shares.
10. CERTAIN RESTRICTIONS. By exercising the Option, Optionee agrees
that if at the time of such exercise the sale of Shares issued hereunder is not
covered by an effective registration statement filed under the Securities Act of
1933 ("Act"), Optionee will acquire the Shares for Optionee's own account and
without a view to resale or distribution in violation of the Act or any other
securities law, and upon any such acquisition Optionee will enter into such
written representations, warranties and agreements as Company may reasonably
request in order to comply with the Act or any other securities law or with this
Option Agreement.
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11. SHARES RESERVED. Company shall at all times during the Option
Period reserve and keep available such number of Shares as will be sufficient to
satisfy the requirements of this Option.
12. NONTRANSFERABILITY OF OPTION. The Option granted pursuant to this
Option Agreement is not transferable other than by will, the laws of descent and
distribution or by qualified domestic relations order. The Option will be
exercisable during Optionee's lifetime only by Optionee or by Optionee's
guardian or legal representative. No right or benefit hereunder shall in any
manner be liable for or subject to any debts, contracts, liabilities, or torts
of Optionee.
13. AMENDMENT AND TERMINATION. No amendment or termination of the
Option that would impair the rights of Optionee shall be made by the Board or
the Administrator at any time without the written consent of Optionee. No
amendment or termination of the Plan will adversely affect the rights of
Optionee under the Option without the written consent of Optionee.
14. NO GUARANTEE OF EMPLOYMENT. The Option shall not confer upon
Optionee any right with respect to continuance of employment or other service
with Company or any subsidiary, nor shall it interfere in any way with any right
Company or any subsidiary would otherwise have to terminate such Optionee's
employment or other service at any time.
15. WITHHOLDING OF TAXES. Company shall have the right to (i) make
deductions from any settlement or exercise of an Award made under the Plan,
including the delivery of shares, or require shares or cash or both be withheld
from any Award, in each case in an amount sufficient to satisfy withholding of
any federal, state or local taxes required by law or (ii) take any other action
as may be necessary or appropriate to satisfy any such tax withholding
obligations.
16. NO GUARANTEE OF TAX CONSEQUENCES. Neither Company nor any
subsidiary nor the Administrator makes any commitment or guarantee that any
federal, state or foreign tax treatment will apply or be available to any person
eligible for benefits under the Option.
17. SEVERABILITY. In the event that any provision of the Option shall
be held illegal, invalid, or unenforceable for any reason, such provision shall
be fully severable, but shall not affect the remaining provisions of the Option,
and the Option shall be construed and enforced as if the illegal, invalid, or
unenforceable provision had never been included herein.
18. GOVERNING LAW. This Option Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, without regard
to conflicts of law principles thereof.
19. MISCELLANEOUS PROVISIONS.
(a) Not a Contract of Employment; No Acquired Rights. The
adoption and maintenance of the Plan and the execution of this Option Agreement
shall not be deemed to be a contract of employment between Company or any of its
subsidiaries and any person. Receipt of an Award under the Plan at any given
time shall not be deemed to create the right to receive in the future an Award
under the Plan, or any other incentive awards granted to an employee of
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Company or any of its subsidiaries, and shall not constitute an acquired labor
right for purposes of any foreign law. The Plan shall not afford any recipient
of an Award any additional right to severance payments or other termination
awards or compensation under any foreign law as a result of the termination of
such recipient's employment for any reason whatsoever.
(b) Not a Part of Salary. The grant of an Award under the Plan
is not intended to be a part of the salary of the recipient.
(c) Foreign Indemnity. Optionee agrees to indemnify Company
for the Optionee's portion of any social insurance obligations or taxes arising
under any foreign law with respect to the grant or exercise of this Option or
the sale or other disposition of the Shares acquired hereunder.
(d) Conflicts With Any Employment Agreement. If Optionee has
an employment agreement with Company or any of its subsidiaries which contains
different or additional provisions relating to vesting of options, or otherwise
conflicts with the terms of this Option Agreement, the provisions of the
employment agreement shall govern.
IN WITNESS WHEREOF, the parties have entered into this Option Agreement
as of the ________day of___________, 200__.
"COMPANY"
EXPRESSJET HOLDINGS, INC.
By Order of the Administrator
By:
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Name:
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Title:
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"OPTIONEE"
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Name:
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