MAIL-WELL, INC.
1997 NON-QUALIFIED STOCK OPTION PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
This Nonqualified Stock Option Agreement ("Option Agreement") is between
Mail-Well, Inc., a Delaware corporation (the "Company"), and ___________________
(the "Optionee").
W I T N E S S E T H:
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WHEREAS, the Company has heretofore adopted the Mail-Well, Inc. 1997 Non-
Qualified Stock Option Plan (the "Plan") for the purpose of providing employees
and directors of the Company and its Affiliates (as defined in the Plan) with
additional incentive to promote the success of the business, to increase their
proprietary interest in the success of the Company, and to encourage them to
remain in the employ or remain as a director of the Company and its Affiliates;
and
WHEREAS, the Company, acting through the Compensation Committee of its
Board of Directors (the "Committee"), has determined that its interests will be
advanced by the issuance to Optionee of a nonqualified stock option under the
Plan;
NOW THEREFORE, for and in consideration of these premises it is agreed as
follows:
1. Option. Subject to the terms and conditions contained herein, the
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Company hereby irrevocably grants to Optionee the right and option ("Option") to
purchase from the Company __________ shares of the Company's common stock, $0.01
par value ("Common Stock"), at a price at $______ per share.
2. Option Period. The Option herein granted may be exercised by
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Optionee in whole or in part at any time during a ten (10) year period beginning
on ________________ (the "Option Period"), subject to the limitation that said
Option shall not be exercisable for more than a percentage of the aggregate
number of shares offered by this Option determined by the number of full years
of employment with the Company or its Affiliates from the effective date of the
Optionee's grant, to the date of such exercise, in accordance with the following
schedule:
Number of Percentage of
Full Years Shares Purchasable
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Nothwithstanding the above vesting schedule, in the event that (i) there is
a proposed action whereby the Company would not be the surviving entity in any
merger or consolidation (or survives only as a subsidiary of another entity)
other than a merger
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for the sole purpose of changing the Company's state of incorporation, (ii)
there is a proposed action whereby the Company would sell all or substantially
all of its assets to any person or entity (other than a wholly-owned
subsidiary), (iii) any person or entity (including a "group" as contemplated by
Section 13(d)(3) of the Exchange Act), acquires or gains ownership or control of
(including, without limitation, power to vote) more than 50% of the outstanding
shares of Common Stock, (iv) there is a proposed action whereby the Company
would be dissolved and liquidated, or (v) as a result of or in connection with a
contested election of directors, the persons who were directors of the Company
before such election shall cease to constitute a majority of the Board (each
such event in clauses (i) through (v) above is referred to herein as a
"Corporate Change"), the entire Option shall vest and be exercisable for a
period of thirty (30) days after receipt of notice from the Company of such
Change of Control, after which this Option shall terminate. Notwithstanding
anything in this Agreement to the contrary, the Committee, in its sole
discretion may waive the foregoing schedule of vesting and upon written notice
to the Optionee, accelerate the earliest date or date on which any of the
Options granted hereunder are exercisable.
3. Procedure for Exercise. The Option herein granted may be exercised by
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written notice by Optionee to the Secretary of the Company setting forth the
number of shares of Common Stock with respect to which the Option is to be
exercised accompanied by payment for the shares to be purchased, and specifying
the address to which the certificate for such shares is to be mailed. Payment
shall be by means of cash, or a cashier's check, bank draft, postal or express
money order payable to the order of the Company, or at the option of the
Optionee, in Common Stock theretofore owned by such Optionee (or a combination
of cash and Common Stock). As promptly as practicable after receipt of such
written notification and payment, the Company shall deliver to Optionee
certificates for the number of shares of Common Stock with respect to which such
Option has been so exercised.
4. Termination of Employment. If Optionee's employment with the Company
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or its Affiliates is terminated during the Option Period for any reason,
Options granted to him which are not exercisable on such date thereupon
terminate. Subject to paragraph 5 below, any Options which are exercisable on
the date of his termination of employment which have not been exercised within
thirty (30) days of such termination shall expire and be of no force or effect.
5. Disability or Death. If Optionee's employment with the Company or its
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Affiliates is terminated by his disability or death, all Options hereunder
exercisable at the date of such disability or death shall be thereafter
exercisable by Optionee, his executor or administrator, or the person or persons
to whom his rights under this Option Agreement shall pass by will or by the laws
of descent and distribution, as the case may be, for a period of six months from
the date of Optionee's disability or death, unless this Option Agreement should
earlier terminate in accordance with its other terms. In no event may any
Option be exercised after the end of the Option Period. Optionee shall be
deemed to be disabled if, in the option of a physician selected by the
Committee, he is incapable of
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performing services for the Company by reason of any medically determinable
physical or mental impairment which can be expected to result in death or to be
of long, continued and indefinite duration.
6. Transferability. This Option shall not be transferable by Optionee
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otherwise than by Optionee's will or by the laws of descent and distribution.
During the lifetime of Optionee, the Option shall be exercisable only by him.
Any heir or legatee of Optionee shall take rights herein granted subject to the
terms and conditions hereof. No such transfer of this Option Agreement to heirs
or legatees of Optionee shall be effective to bind the Company unless the
Company shall have been furnished with written notice thereof and a copy of such
evidence as the Committee may deem necessary to establish the validity of the
transfer and the acceptance by the transferee or transferees of the terms and
conditions hereof.
7. No Rights as Stockholder. Optionee shall have no rights as a
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stockholder with respect to any shares of Common Stock covered by this Option
Agreement until the date of issuance of a certificate for shares of Common Stock
purchased pursuant to this Option Agreement. Until such time, Optionee shall
not be entitled to dividends or to vote at meetings of the stockholders of the
Company. Except as provided in paragraph 9 hereof, no adjustment shall be made
for dividends (ordinary or extraordinary, whether in cash or securities or other
property) paid or distributions or other rights granted in respect of any share
of Common Stock for which the record date for such payment, distribution or
grant is prior to the date upon which the Optionee shall have been issued share
certificates, as provided hereinabove.
8. Extraordinary Corporate Transactions. If the Company recapitalizes or
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otherwise changes its capital structure, or merges, consolidates, sells all of
its assets or dissolves (each of the foregoing a "Fundamental Change"), then
thereafter upon any exercise of an option theretofore granted the Optionee shall
be entitled to purchase under such option, in lieu of the number of shares of
Common Stock as to which option shall then be exercisable, the number and class
of shares of stock and securities to which the Optionee would have been entitled
pursuant to the terms of the Fundamental Change if, immediately prior to such
Fundamental Change, the Optionee had been the holder or record of the number of
shares of Common Stock as to which such option is then exercisable. If the
Company shall not be the surviving entity upon the occurrence of a Fundamental
Change the Options granted hereunder shall be governed by subparagraph 6(j) of
the Plan.
9. Changes in Capital Structure. The existence of outstanding Options
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shall not affect in any way the right or power of the Company or its
shareholders to make or authorize any or all adjustments, recapitalizations,
reorganizations or other changes in the Company's capital structure or its
business, or any merger or consolidation of the Company, or any issuance of
Common Stock or subscription rights thereto, or any issuance of bonds,
debentures, preferred or prior preference stock ahead of or affecting the Common
Stock or the rights thereof, or the dissolution or liquidation of the Company,
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or any sale or transfer of all or any part of its assets or business, or any
other corporate act or proceedings, whether of a similar character or otherwise.
If the outstanding shares of Common Stock of the Company shall at any time be
changed or exchanged by declaration of a stock dividend, stock split,
combination of shares, or recapitalization, the number and kind of shares
subject to the Plan or subject to any Options theretofore granted, and the
Option prices, shall be appropriately and equitably adjusted so as to maintain
the proportionate number of shares without changing the aggregate Option price.
10. Compliance With Securities Laws. Upon the acquisition of any shares
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pursuant to the exercise of the Option herein granted, Optionee (or any person
acting under paragraph 6) will enter into such written representations,
warranties and agreements as the Company may reasonably request in order to
comply with applicable securities laws or with this Option Agreement.
11. Compliance With Laws. Notwithstanding any of the other provisions
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hereof, Optionee agrees that he will not exercise the Option(s) granted hereby,
and that the Company will not be obligated to issue any shares pursuant to this
Option Agreement, if the exercise of the Option(s) or the issuance of such
shares of Common Stock would constitute a violation by the Optionee or by the
Company of any provision of any law or regulation of any governmental authority.
12. Withholding of Tax. To the extent that the exercise of this Option or
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the disposition of shares of Common Stock acquired by exercise of this Option
results in compensation income to the Optionee for federal or state income tax
purposes, the Optionee shall pay to the Company at the time of such exercise or
disposition (or such other time as the law permits if the Optionee is subject to
Section 16(b) of the Securities Exchange Act of 1934, as amended) such amount of
money as the Company may require to meet its obligation under applicable tax
laws or regulations; and, if the Optionee fails to do so, the Company is
authorized to withhold from any cash remuneration then or thereafter payable to
the Optionee, any tax required to be withheld by reason of such resulting
compensation income or Company may otherwise refuse to issue or transfer any
shares otherwise required to be issued or transferred pursuant to the terms
hereof. Payment of the withholding tax by the Optionee shall be made in
accordance with Section 11 of the Plan.
13. Resolution of Disputes. As a condition of the granting of the Option
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hereby, the Optionee and his heirs and successors agree that any dispute or
disagreement which may arise hereunder shall be determined by the Committee in
its sole discretion and judgment, and that any such determination and any
interpretation by the Committee of the terms of this Option Agreement shall be
final and shall be binding and conclusive, for all purposes, upon the Company,
Optionee, his heirs and personal representatives.
14. Stockholder Agreement. Optionee, or the Optionee's representative
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upon the Optionee's death, prior to the exercise of an Option granted hereunder,
agrees to
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enter into the Company's Stockholders Agreement or the American Mail-Well
Employee Stockholders Agreement, whichever the Committee deems appropriate.
15. Legends on Certificate. The certificates representing the shares of
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Common Stock purchased by exercise of an Option will be stamped or otherwise
imprinted with legends in such form as the Company or its counsel may require
with respect to any applicable restrictions on sale or transfer and the stock
transfer records of the Company will reflect stop-transfer instructions with
respect to such shares.
16. Notices. Every notice hereunder shall be in writing and shall be
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given by registered or certified mail. All notices of the exercise of any
Option hereunder shall be directed to Mail-Well Holdings, Inc. 00 Xxxxxxxxx Xxx
Xxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Secretary. Any notice given by the
Company to Optionee directed to him at his address on file with the Company
shall be effective to bind him and any other person who shall acquire rights
hereunder. The Company shall be under no obligation whatsoever to advise
Optionee of the existence, maturity or termination of any of Optionee's rights
hereunder and Optionee shall be deemed to have familiarized himself with all
matters contained herein and in the Plan which may affect any of Optionee's
rights or privileges hereunder.
17. Construction and Interpretation. Whenever the term "Optionee" is used
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herein under circumstances applicable to any other person or persons to whom
this award, in accordance with the provisions of paragraph 6 hereof, may be
transferred, the word "Optionee" shall be deemed to include such person or
persons. References to the masculine gender herein also include the feminine
gender for all purposes.
18. Agreement Subject to Plan. This Option Agreement is subject to the
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Plan. The terms and provisions of the Plan (including any subsequent amendments
thereto) are hereby incorporated herein by reference thereto. In the event of a
conflict between any term or provision contained herein and a term or provision
of the Plan, the applicable terms and provisions of the Plan will govern and
prevail. All definitions of words and terms contained in the Plan shall be
applicable to this Option Agreement.
19. Employment Relationship. Employees shall be considered to be in the
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employment of the Company as long as they remain employees of the Company or a
parent or subsidiary corporation (as defined in Section 424 of the Internal
Revenue Code of 1986, as amended). Any questions as to whether and when there
has been a termination of such employment and the cause of such termination,
shall be determined by the Committee, and its determination shall be final.
Nothing contained herein shall be construed as conferring upon the Optionee the
right to continue in the employ of the Company, nor shall anything contained
herein be construed or interpreted to limit the "employment at will"
relationship between the Optionee and the Company.
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20. Binding Effect. This Option Agreement shall be binding upon and inure
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to the benefit of any successors to the Company and all persons lawfully
claiming under Optionee.
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IN WITNESS WHEREOF, this Option Agreement has been executed as of the ___
day of ________________, 19__.
MAIL-WELL HOLDINGS, INC.
ATTEST: By: ________________________
___________________________
OPTIONEE
____________________________
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