Exhibit 10.4
Draft of October 8, 2007
Executive Officer w/employment agreement
NON-QUALIFIED STOCK OPTION AGREEMENT
PURSUANT TO THE
XXXXXX XXXXXX, LTD.
2006 STOCK INCENTIVE PLAN
THIS AGREEMENT, dated as of _________, 200_ (this "Agreement"), between
Xxxxxx Xxxxxx, Ltd. (the "Company") and _________ (the "Participant").
Preliminary Statement
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The Compensation Committee of the Board of Directors of the Company
(the "Committee") has authorized this grant of a non-qualified stock option (the
"Option") on _______ __, 200_ (the "Grant Date") to purchase the number of
shares of the Company's common stock, par value $0.0001 per share (the "Common
Stock"), set forth below in Section 2 to the Participant, as an Eligible
Employee of the Company or an Affiliate of the Company. Unless otherwise
indicated, any capitalized term used but not defined herein shall have the
meaning ascribed to such term in the Xxxxxx Xxxxxx, Ltd. 2006 Stock Incentive
Plan, as amended (as the same may be further amended from time to time, the
"Plan"). A copy of the Plan as in effect on the date hereof has been delivered
to the Participant. By signing and returning this Agreement, the Participant
acknowledges having received and read a copy of the Plan as in effect on the
date hereof and agrees to comply with the Plan, this Agreement and all
applicable laws and regulations.
Accordingly, the parties hereto agree as follows:
1. Tax Matters. No part of the Option granted hereby is intended to
qualify as an "incentive stock option" under Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code").
2. Grant of Option. Subject in all respects to the Plan and the terms and
conditions set forth herein and therein, the Participant is hereby granted an
Option to purchase from the Company ______ shares of Common Stock (the "Option
Shares"), at a price per share of $_____ (the "Option Price").(1)
3. Vesting and Exercise.
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(a) Except as set forth below, the Option shall vest and become
exercisable in installments as provided below, which shall be cumulative. To the
extent that the Option has become vested and exercisable as provided below, the
Option thereafter may be exercised by the Participant, in whole or in part, at
any time or from time to time prior to the expiration or earlier termination of
the Option as provided herein and in accordance with Section 6.3(d) of the Plan,
including, without limitation, the filing of such written form of exercise
notice, if any, as may be required by the Committee or the Company and the
payment in full of the Option Price multiplied by the number of Option Shares
underlying the portion of the Option exercised. Upon expiration of the Option,
the Option shall be canceled and no longer exercisable. The following table
indicates each date upon which the Participant shall be vested and entitled to
exercise the Option with respect to the percentage of the Option Shares
indicated beside such date, provided that the Participant has not had a
Termination of Employment any time prior to such date (each of the dates set
forth below being herein called a "Vesting Date"):(2)
Percentage
of Option
Vesting Date Shares Vested
----------------- -------------
First Anniversary __%
of Grant Date
Second Anniversary __%
of Grant Date
Third Anniversary __%
of Grant Date
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(1) Option Price must be no less than the Fair Market Value (as defined in the
Plan) on the Grant Date.
(2) Vesting schedule shall conform to any provisions of a governing employment
agreement that addresses the vesting schedule of stock options.
(b) Except as provided in Section 3(c), there shall be no
proportionate or partial vesting in the periods prior to each Vesting Date and
all vesting shall occur only on the appropriate Vesting Date, provided that the
Participant has not had a Termination of Employment at any time prior to such
Vesting Date.
(c) If a Participant has entered into an employment agreement with
the Company on or prior to the Grant Date that provides for partial or complete
accelerated vesting on any Termination, the terms of such employment agreement
shall control the vesting of the Option on any such Termination.
(d) The Option will become fully vested on a Change in Control.
4. Option Term. The term of each Option shall be _____ years(3) after the
Grant Date and the Option shall expire at 5:00 p.m. (New York City time) on the
_____ anniversary of the Grant Date, subject to earlier termination in the event
of the Participant's Termination of Employment as specified in Section 5.
5. Termination. Subject to Section 4 and the terms of the Plan, the
Option, to the extent vested at the time of the Participant's Termination of
Employment, shall remain exercisable as provided in Section 12.1(a) of the Plan.
Any portion of the Option that is not vested as of the date of the Participant's
Termination of Employment for any reason shall terminate and expire as of the
date of such Termination of Employment.
6. Restriction on Transfer of Option. No part of the Option shall be
subject to Transfer other than by will or by the laws of descent and
distribution. During the lifetime of the Participant, the Option may be
exercised only by the Participant or the Participant's guardian or legal
representative. The Option shall not be subject to levy by reason of any
execution, attachment or similar process. Upon any attempt to Transfer the
Option or in the event of any levy upon the Option by reason of any execution,
attachment or similar process contrary to the provisions hereof, the Option
shall immediately and automatically become null and void.
7. Rights as a Stockholder. The Participant shall have no rights as a
stockholder with respect to any Option Shares unless and until the Participant
has become the holder of record of the Option Shares. No adjustments shall be
made to the Option, the Option Shares or the Option Price for dividends in cash
or other property, distributions or other rights in respect of any Option
Shares, except as otherwise may be specifically provided for in the Plan. No
shares of Common Stock shall be issued unless and until payment therefor has
been made or provided.
8. Provisions of Plan Control. This Agreement is subject to all the terms,
conditions and provisions of the Plan, including, without limitation, the
amendment provisions thereof, and to such rules, regulations and interpretations
relating to the Plan as may be adopted by the Committee and as may be in effect
from time to time. The Plan is incorporated herein by reference. If and to the
extent that this Agreement conflicts or is inconsistent with the terms,
conditions and provisions of the Plan, the Plan shall control, and this
Agreement shall be deemed to be modified accordingly. This Agreement contains
the entire agreement and understanding of the parties with respect to the
subject matter hereof and supersedes any prior agreements and understandings
(whether written or oral) between the Company and the Participant with respect
to the subject matter hereof.
9. Notices. Any notice or communication given hereunder (each a "Notice")
shall be in writing and shall be sent by personal delivery, by courier or by
United States mail (registered or certified mail, postage prepaid and return
receipt requested), to the appropriate party at the address set forth below:
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(3) May not be in excess of 7 years.
If to the Company, to:
Xxxxxx Xxxxxx, Ltd.
00-00 Xxxxxxx Xxxxxx
Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: Chief Executive Officer
If to the Participant, to the address for the Participant on file
with the Company
; or such other address or to the attention of such other person as a party
shall have specified by prior Notice to the other party. Each Notice will be
deemed given and effective upon actual receipt (or refusal of receipt).
10. No Obligation to Continue Employment. This Agreement is not an
agreement of employment. This Agreement does not guarantee that the Company or
its Affiliates will employ, retain or continue to, employ or retain the
Participant during the entire, or any portion of the, term of this Agreement,
including but not limited to any period during which any Option is outstanding,
nor does it modify in any respect the Company's or its Affiliates' right to
terminate or modify the Participant's employment or compensation.
11. Miscellaneous.
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(a) This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, legal representatives,
successors and assigns.
(b) This Agreement shall be governed and construed in accordance
with the laws of Delaware (regardless of the law that might otherwise govern
under applicable Delaware principles of conflict of laws).
(c) This Agreement may be executed in one or more counterparts,
all of which taken together shall constitute one contract.
(d) The failure of any party hereto at any time to require
performance by another party of any provision of this Agreement shall not affect
the right of such party to require performance of that provision, and any waiver
by any party of any breach of any provision of this Agreement shall not be
construed as a waiver of any continuing or succeeding breach of such provision,
a waiver of the provision itself, or a waiver of any right under this Agreement.
[Remainder of Page Left Blank]
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first above written.
XXXXXX XXXXXX, LTD.
By:_____________________________________
Name:
Title:
PARTICIPANT
____________________________________
[Name]
