EXHIBIT 10.1
METRO-XXXXXXX-XXXXX INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
PURSUANT TO THE
AMENDED AND RESTATED 1996 STOCK INCENTIVE PLAN
This Non-Qualified Stock Option Agreement (the "Agreement") is entered into
as of the Date of Grant set forth below by Metro-Xxxxxxx-Xxxxx Inc., a Delaware
corporation (the "Company"), and the person named below as Participant.
Participant is a member of the Board of Directors of the Company. Pursuant
to the Company's Amended and Restated 1996 Stock Incentive Plan (the "Plan"),
the Board of Directors of the Company and the Compensation Committee thereof,
which administers the Plan (the "Committee"), have approved the grant to
Participant of an option to purchase shares of the common stock, $.01 par value
per share (the "Common Stock"), of the Company on the terms and conditions set
forth below and subject to the terms of the Plan and of this Agreement being
entered into by Participant with the Company. The Company and Participant agree
as set forth below.
1. Grant of Option; Certain Terms and Conditions. The Company hereby
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grants to Participant, and Participant hereby accepts, as of the date of grant
set forth below (the "Date of Grant"), an option (the "Option") to purchase the
number of shares of Common Stock set forth below (the "Option Shares") at the
exercise price per share set forth below (the "Exercise Price"), which Option
will expire at 5:00 p.m., West Coast Time, on the expiration date set forth
below (the "Expiration Date") and will be subject to all of the terms and
conditions set forth in the Plan and this Agreement . On each anniversary of
the Date of Grant, the Option will become exercisable to purchase ("vest with
respect to") that number of Option Shares (rounded to the nearest whole share)
equal to the total number of Option Shares multiplied by the annual vesting rate
set forth below.
Participant: ____________________________
Date of Grant: __________
Number of shares purchasable: __________
Exercise Price: __________
Expiration Date: __________
Annual Vesting Rate: 20%
The Option will vest with respect to 20% thereof on the first anniversary
of the Date of Grant and thereafter with respect to 1/60 thereof on the first
day of each month through and
including the fifth anniversary of the Date of Grant, except to the extent the
Option is earlier terminated in whole or in part.
The Option is not intended to qualify as an incentive stock option under
Section 422 of the Internal Revenue Code, as amended.
2. Termination of Option.
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(a) Cessation of Service.
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(i) Death or Permanent Disability. If Participant ceases to be a
member of the Board of Directors by reason of Participant's death or
permanent disability, then (A) the portion of the Option that has not
vested on or prior to the date of Participant's death or permanent
disability will terminate on that date and (B) the remaining vested portion
of the Option will terminate upon the earlier of the Expiration Date and
the first anniversary of the date of Participant's death or permanent
disability.
(ii) Other Cessation. If Participant ceases to be a member of the
Board of Directors for any reason other than death or permanent disability,
then: (A) the portion of the Option that has not become vested on or prior
to the effective date of such cessation of service will terminate on such
date; and (B) the remaining vested portion of the Option will terminate
upon the earlier of the Expiration Date and the date that is 90 days after
the effective date of such cessation of service.
(b) Death Following Cessation of Service. Notwithstanding anything to the
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contrary in this Agreement, if Participant dies at any time after the cessation
of his or her service and prior to the date on which the Option is terminated
pursuant to Section 2(a) above, then the vested portion of the Option will
terminate on the earlier of the Expiration Date or the first anniversary of the
date of Participant's death.
3. Adjustments; Merger and Similar Effect Transactions. If the
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outstanding securities of the class then subject to the Option are increased,
decreased or exchanged for or converted into cash, property or a different
number or kind of securities, or cash, property or securities are distributed in
respect of such outstanding securities, in either case as a result of a merger,
consolidation or other acquisition of all or substantially all of the stock or
assets of the Company (however structured) (each an "Acquisition"),
reorganization, recapitalization, restructuring, reclassification, dividend
(other than ordinary quarterly cash dividends) or other distribution, stock
split, reverse stock split or the like, or in the event that substantially all
of the property and assets of the Company are sold, then, the Committee will, in
accordance with the provisions of the Plan, make appropriate and proportionate
adjustments in the number and type of shares or other securities or cash or
other property that may thereafter be acquired upon the exercise of the Option.
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4. Exercise.
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(a) Only the vested portion of the Option may be exercised and, subject to
the limitations in Section 2 and to this Section 4, the Option may be exercised
as to the portion that is then vested at any time and from time to time until
the Option expires or is terminated.
(b) Except as otherwise provided in Paragraph 8, the Option may be
exercisable during Participant's lifetime only by Participant or by
Participant's guardian or legal representative and, after Participant's death,
only by the person or entity entitled to do so under Participant's last will and
testament or applicable intestate law.
(c) The Option may only be exercised by the delivery to the Company of a
written notice of such exercise (the "Exercise Notice"), which notice must
specify the number of Option Shares to be purchased (the "Purchased Shares") and
the aggregate Exercise Price for such shares, together with payment in full of
such aggregate Exercise Price in cash or by check payable to the Company;
provided, however, that payment of such aggregate Exercise Price may instead be
made, in whole or in part, by one or more of the following means selected by
Participant in his or her sole discretion:
(i) the delivery to the Company of a certificate or certificates
representing shares of Common Stock that are "mature" shares (as that term
is used in Bulletin No. 84-18 of the Emerging Issues Task Force of the
Financial Accounting Standards Board), duly endorsed or accompanied by duly
executed stock powers, which delivery effectively transfers to the Company
good and valid title to those shares of Common Stock, free and clear of any
pledge, commitment, lien, claim or other encumbrance (such shares of Common
Stock to be valued on the basis of the aggregate "Fair Market Value"
(defined in the Plan) on the date Participant delivers his or her Exercise
Notice applicable to that exercise to the Company (the "Option
Determination Date")); or
(ii) the delivery, concurrently with the exercise and in accordance
with Section 220.3(e)(4) of Regulation T promulgated under the Securities
Exchange Act of 1934, as amended (or, if applicable, any successor
Section), of a properly executed Exercise Notice and irrevocable
instructions to a broker promptly to deliver to the Company a specified
dollar amount of the proceeds of a sale or a loan secured by the shares of
Common Stock issuable upon any exercise of the Option.
5. Payment of Withholding Taxes. If the Company becomes obligated to
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withhold an amount on account of any tax imposed as a result of the exercise of
the Option, including, without limitation, any federal, state, local or other
income tax, or any F.I.C.A., state disability insurance tax or other employment
tax (the "Withholding Liability"), then Participant must, on the date of
exercise and as a condition to the issuance of the Purchased Shares, pay the
Withholding Liability to the Company in cash or by check payable to the Company,
by the tendering of shares of Common Stock with a Fair Market Value, as of the
day preceding the date of such exercise, equal to the amount of the Withholding
Liability or by a reduction in the number of shares of Common Stock or other
securities or property otherwise issuable pursuant to the exercise of the Option
with a Fair Market Value, as of the day preceding the date of such
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exercise, equal to the amount of Withholding Liability as of the Option
Determination Date with respect to the exercise of the Option. Participant
consents to the Company withholding the full amount of the Withholding Liability
from any compensation or other amounts otherwise payable to Participant if
Participant does not pay the Withholding Liability to the Company on the date of
exercise of the Option, and Participant agrees that the withholding and payment
of any such amount by the Company to the relevant taxing authority will
constitute full satisfaction of the Company's obligation to pay such
compensation or other amounts to Participant. Participant will indemnify the
Company and hold it harmless from and against any federal, state or local
withholding tax liability (including interest and penalties) that results from
any exercise of the Option, except to the extent that (i) any such penalties
result from the failure of the Company to make a good faith determination of the
amounts to withhold from Participant or (ii) any such liabilities, interest or
penalties result from the failure of the Company to pay over to the relevant
taxing authorities any sums withheld from, or paid to the Company by,
Participant to satisfy any Withholding Liability.
6. Notices. All notices and other communications required or permitted to
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be given pursuant to this Agreement must be in writing and will be deemed given
if delivered personally or five days after mailing by certified or registered
mail, postage prepaid, return receipt requested, to the Company at 0000 Xxxxxxxx
Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxxxx 00000, Attention: Corporate Secretary, or to
Participant at the address set forth beneath Participant's signature on the
signature page hereto, or at such other addresses as they may designate by
written notice in the manner aforesaid.
7. Stock Exchange Requirements; Applicable Laws. Notwithstanding anything
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to the contrary in this Agreement, no shares of Common Stock purchased upon
exercise of the Option, and no certificate representing all or any part of such
shares, will be issued or delivered if (a) such shares have not been listed,
subject to notice of issuance, on each stock exchange upon which shares of that
class are then listed or (b) in the opinion of counsel to the Company, such
issuance or delivery would cause the Company to be in violation of or to incur
liability under any federal, state or other securities law, or any requirement
of any stock exchange listing agreement to which the Company is a party, or any
other requirement of law or of any administrative or regulatory body having
jurisdiction over the Company.
8. Transferability. Except as otherwise provided in this Paragraph 8,
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neither the Option nor any interest therein may be sold, assigned, conveyed,
gifted, pledged, hypothecated or otherwise transferred in any manner other than
by will or the laws of descent and distribution. However, Participant, with the
approval of the Committee, may transfer the Option for no consideration to or
for the benefit of Participant's Immediate Family (including, without
limitation, to a trust for the benefit of Participant's Immediate Family or to a
partnership or limited liability company for one or more members of
Participant's Immediate Family), subject to such limits as the Committee may
establish, and the transferee shall remain subject to all the terms and
conditions applicable to the Option prior to such transfer. The term Immediate
Family shall mean Participant's spouse, parents, children, stepchildren,
adoptive relationships, sisters, brothers and grandchildren (and, for this
purpose, shall also include the Participant).
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9. Plan. The Option is granted pursuant to the Plan, as in effect on the
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Date of Grant, and is subject to all the terms and conditions of the Plan, as it
may be amended from time to time; provided, however, that no amendment may
deprive Participant, without Participant's consent, of the Option or of any of
Participant's rights under this Agreement. The interpretation and construction
by the Committee of the Plan, this Agreement, the Option and such rules and
regulations as may be adopted by the Committee for the purpose of administering
the Plan will be final and binding upon Participant. Until the Option expires,
terminates or is exercised in full, the Company will, upon written request
therefor, send a copy of the Plan, in its then-current form, to Participant or
any other person or entity then entitled to exercise the Option.
10. Stockholder Rights. The Option is not considered to be an equity
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security of the Company. No person or entity shall be entitled to vote, receive
dividends or be deemed for any purpose the holder of any Option Shares prior to
the date on which Participant is recorded as the holder of such Option Shares on
the records of the Company.
11. Director Rights. Nothing in the Plan or this Agreement shall be
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deemed to create any obligation on the part of the Board of Directors to
nominate any of its members for re-election by the Company's stockholders, nor
confer upon any Participant the right to remain a member of the Board of
Directors for any period of time, or at any particular rate of compensation.
12. Certain Corporate Transactions. Nothing in the Plan or this Agreement
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shall in any way prohibit the Company from merging with or consolidating into
another corporation or from selling or transferring all or substantially all of
its assets, or from distributing all or substantially all of its assets to its
stockholders in liquidation, or from dissolving and terminating its corporate
existence, and in any such event (other than a merger in which the Company is
the surviving corporation and under the terms of which the shares of Common
Stock outstanding immediately prior to the merger remain outstanding and
unchanged), Participant shall be entitled to receive, at the time the Option or
portion thereof would otherwise become exercisable, subject to the terms of the
Option, and upon payment of the Exercise Price, the same shares of stock, cash
or other consideration received by stockholders of the Company in accordance
with such merger, consolidation, sale or transfer of assets, liquidation or
dissolution.
13. Investment Representation. Participant (or any person acting for
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Participant as permitted hereunder) shall, upon demand by the Company, furnish
the Company, prior to the issuance of any shares upon the exercise of all or any
part of the Option, an agreement in which Participant (or such other person)
represents that the shares acquired upon exercise are being acquired for
investment and not with a view to the sale or distribution thereof. Upon such
demand, delivery of such representation prior to the delivery of any shares upon
exercise of the Option and prior to expiration of the Option shall be a
condition precedent to the right of the Participant (or such other person) to
acquire any shares. The Company shall have the right, at its election, to place
legends on the certificates representing the shares so being issued with respect
to limitations on transferability imposed by federal and/or state laws, and the
Company shall have the right to issue "stop transfer" instructions to its
transfer agent.
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14. Arbitration of Disputes.
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(a) All disputes between Participant and the Company, however significant,
arising out of, relating in any way to, or in connection with, this Agreement
(including the validity, scope and enforceability of this arbitration provision)
will be settled only by an arbitration (x) conducted in accordance with the then
rules of the American Arbitration Association or any similar successor body and
(y) held in Los Angeles, California.
(b) The arbitration will be held before a single arbitrator mutually
agreed to by the parties to the arbitration, except that, if the parties fail to
agree to an arbitrator within 20 days from the date on which the claimant's
request for arbitration is delivered to the other party to the arbitration, the
arbitration shall be held before an arbitrator appointed by the American
Arbitration Association.
(c) The award of the arbitrator will be made within 90 days from the date
on which the arbitrator is selected. The award of the arbitrator will be final
and, to the greatest extent allowed by law, the parties agree to waive their
right to any form of appeal. The arbitrator may award costs and fees, including
the fees of the arbitrator, to the prevailing party. Judgment on any award of
the arbitrator may be entered in any court having jurisdiction or application
may be made to such court for the judicial acceptance of the award and for one
or more orders of enforcement.
15. Governing Law. This Agreement and the Option issued under this
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Agreement are to be governed by and are to be construed and enforced in
accordance with the internal laws, and not the laws pertaining to choice or
conflict of laws, of the State of Delaware.
16. Severability; Successors. If any provision or portion of this
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Agreement is illegal or unenforceable, the other portions of this Agreement will
not be affected by the illegality or unenforceability. This Agreement will be
binding on the Company and Participant and their respective successors and
assigns, however such succession or assignment is effected.
METRO-XXXXXXX-XXXXX INC. PARTICIPANT
____________________________________ __________________________________
By: XXXXXXX X. XXXXX Name: ____________________________
Senior Executive Vice President
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Street Address
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City, State and Zip Code
__________________________________
Social Security Number
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