EXHIBIT 10.39
NON-QUALIFIED STOCK OPTION AGREEMENT
FOR NON-EMPLOYEE DIRECTORS
UNDER XXXXXXX HOLDINGS, INC.
2006 STOCK OPTION AND INCENTIVE PLAN
Name of Optionee:_______________________________
No. of Option Shares:___________________________
Option Exercise Price per Share: $______________
Grant Date:_____________________________________
Expiration Date:________________________________
Pursuant to the Xxxxxxx Holdings, Inc. 2006 Stock Option and Incentive
Plan as amended through the date hereof (the "Plan"), Xxxxxxx Holdings, Inc.
(the "Company") hereby grants to the Optionee named above, who is a Director of
the Company but is not an employee of the Company, an option (the "Stock
Option") to purchase on or prior to the Expiration Date specified above all or
part of the number of shares of Common Stock, par value $0.01 per share (the
"Stock"), of the Company specified above at the Option Exercise Price per Share
specified above subject to the terms and conditions set forth herein and in the
Plan.
1. EXERCISABILITY SCHEDULE. No portion of this Stock Option may be
exercised until such portion shall have become exercisable. Except as set forth
below, and subject to the discretion of the Administrator (as defined in Section
2 of the Plan) to accelerate the exercisability schedule hereunder, this Stock
Option shall be exercisable with respect to the following number of Option
Shares on the dates indicated:
INCREMENTAL NUMBER OF
OPTION SHARES EXERCISABLE EXERCISABILITY DATE
---------------------------- -------------------
_____________ (___%) ____________
_____________ (___%) ____________
_____________ (___%) ____________
In the event of the termination of the Optionee's service as a director
of the Company because of death, this Stock Option shall become immediately
exercisable in full, whether or not exercisable at such time. Notwithstanding
anything herein to the contrary, immediately prior to the occurrence of a Sale
Event (as defined in the Plan), this Stock Option shall be deemed vested and
exercisable in full. Once exercisable, this Stock Option shall continue to be
exercisable at any time or times prior to the close of business on the
Expiration Date, subject to the provisions hereof and of the Plan.
2. MANNER OF EXERCISE.
(a) The Optionee may exercise this Stock Option only in the
following manner: from time to time on or prior to the Expiration Date of this
Stock Option, the Optionee may give written notice to the Administrator of his
or her election to purchase some or all of the Option Shares purchasable at the
time of such notice. This notice shall specify the number of Option Shares to be
purchased.
Payment of the purchase price for the Option Shares may be made by one
or more of the following methods: (i) in cash, by certified or bank check or
other instrument acceptable to the Administrator; (ii) through the delivery (or
attestation to the ownership) of shares of Stock that have been purchased by the
Optionee on the open market or that are beneficially owned by the Optionee and
are not then subject to restrictions under any Company plan and that otherwise
satisfy any holding periods as may be required by the Administrator; (iii) by
the Optionee delivering to the Company a properly executed exercise notice
together with irrevocable instructions to a broker to promptly deliver to the
Company cash or a check payable and acceptable to the Company to pay the option
purchase price, provided that in the event the Optionee chooses to pay the
option purchase price as so provided, the Optionee and the broker shall comply
with such procedures and enter into such agreements of indemnity and other
agreements as the Administrator shall prescribe as a condition of such payment
procedure; or (iv) a combination of (i), (ii) and (iii) above. Payment
instruments will be received subject to collection.
The transfer to the Optionee on the records of the Company or of the
transfer agent of the Option Shares will be contingent upon the Company's
receipt from the Optionee of full payment for the Option Shares, as set forth
above and any agreement, statement or other evidence that the Company may
require to satisfy itself that the issuance of Stock to be purchased pursuant to
the exercise of Stock Options under the Plan and any subsequent resale of the
shares of Stock will be in compliance with applicable laws and regulations. In
the event the Optionee chooses to pay the purchase price by previously-owned
shares of Stock through the attestation method, the number of shares of Stock
transferred to the Optionee upon the exercise of the Stock Option shall be net
of the Shares attested to.
(b) The shares of Stock purchased upon exercise of this
Stock Option shall be transferred to the Optionee on the records of the Company
or of the transfer agent upon compliance to the satisfaction of the
Administrator with all requirements under applicable laws or regulations in
connection with such transfer and with the requirements hereof and of the Plan.
The determination of the Administrator as to such compliance shall be final and
binding on the Optionee. The Optionee shall not be deemed to be the holder of,
or to have any of the rights of a holder with respect to, any shares of Stock
subject to this Stock Option unless and until this Stock Option shall have been
exercised pursuant to the terms hereof, the Company or the transfer agent shall
have transferred the shares to the Optionee, and the Optionee's name shall have
been entered as the stockholder of record on the books of the Company.
Thereupon, the Optionee shall have full voting, dividend and other ownership
rights with respect to such shares of Stock.
(c) The minimum number of shares with respect to which this
Stock Option may be exercised at any one time shall be 100 shares, unless the
number of shares with respect to
2
which this Stock Option is being exercised is the total number of shares subject
to exercise under this Stock Option at the time.
(d) Notwithstanding any other provision hereof or of the
Plan, no portion of this Stock Option shall be exercisable after the Expiration
Date hereof.
3. TERMINATION AS DIRECTOR. If the Optionee ceases to be a
Director of the Company, the period within which to exercise the Stock Option
may be subject to earlier termination as set forth below.
(a) TERMINATION BY REASON OF DEATH. If the Optionee ceases
to be a Director by reason of the Optionee's death, this Stock Option may be
exercised by his or her legal representative or legatee for a period of 12
months from the date of death or until the Expiration Date, if earlier.
(b) OTHER TERMINATION. If the Optionee ceases to be a
Director for any reason other than the Optionee's death, this Stock Option may
be exercised, to the extent exercisable on the date of termination, for a period
of 90 days from the date of termination or until the Expiration Date, if
earlier.
4. INCORPORATION OF PLAN. Notwithstanding anything herein to the
contrary, this Stock Option shall be subject to and governed by all the terms
and conditions of the Plan, including the powers of the Administrator set forth
in Section 2(b) of the Plan. Capitalized terms in this Agreement shall have the
meaning specified in the Plan, unless a different meaning is specified herein.
5. TRANSFERABILITY. This Agreement is personal to the Optionee,
is non-assignable and is not transferable in any manner, by operation of law or
otherwise, other than by will or the laws of descent and distribution. This
Stock Option is exercisable, during the Optionee's lifetime, only by the
Optionee, and thereafter, only by the Optionee's legal representative or
legatee.
6. NO OBLIGATION TO CONTINUE AS A DIRECTOR. Neither the Plan nor
this Stock Option confers upon the Optionee any rights with respect to
continuance as a Director.
7. NOTICES. Notices hereunder shall be mailed or delivered to the
Company at its principal place of business and shall be mailed or delivered to
the Optionee at the address on file with the Company or, in either case, at such
other address as one party may subsequently furnish to the other party in
writing.
3
8. AMENDMENT. Pursuant to Section 16 of the Plan, the
Administrator may at any time amend or cancel any outstanding portion of this
Stock Option, but no such action may be taken that adversely affects the
Optionee's rights under this Agreement without the Optionee's consent.
XXXXXXX HOLDINGS, INC.
By:
---------------------------
Title:
The foregoing Agreement is hereby accepted and the terms and conditions thereof
hereby agreed to by the undersigned.
Dated:
-------------------------- -------------------------------
Optionee's Signature
Optionee's name and address:
_______________________________
_______________________________
_______________________________
4
