THE XXXXXX XXX COMPANY, INC.
1997 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
NONQUALIFIED STOCK OPTION CONTRACT
THIS NONQUALIFIED STOCK OPTION CONTRACT entered into as of June 10,
1997 between THE XXXXXX XXX COMPANY, INC., a Delaware corporation (the
"Company"), and _________________ ("Optionee").
W I T N E S S E T H:
1. The Company, in accordance with the terms and conditions of the 1997
Non-Employee Director Stock Option Plan of the Company (the "Plan"),
hereby grants to the Optionee an option to purchase an aggregate of
10,000 shares of Common Stock (the "Option Shares") at an exercise
price of $6.18 per share, being equal to the fair market value of
such shares on the date hereof. This option is not intended to
constitute an incentive stock option within the meaning of section
422 of the Internal Revenue Code of 1986, as amended (the "Code").
2. The term of this option shall be 10 years from the date hereof,
subject to earlier termination as provided in the Plan. This option
shall vest and become exercisable as follows:
(a) General. This option shall become exercisable (i) with
respect to 3,333 of the shares of Common Stock subject thereto on the
first anniversary of the date of grant; (ii) with respect to an
additional 3,333 of the shares of Common Stock subject thereto on the
second anniversary of the date of grant; and (iii) with respect to an
additional 3,334 shares of Common Stock subject thereto on the third
anniversary of the date of grant.
(b) Change of Control. This option shall become fully
exercisable upon the occurrence of a Change of Control.
The right to purchase Option Shares under this option shall
be cumulative, so that if the full number of Option Shares
purchasable in a period shall not be purchased, the balance may be
purchased at any time or from time to time thereafter, but not after
the expiration of the option.
3. This option shall be exercised by giving five business days' written
notice to the Company at its then principal office stating that the
Optionee is exercising the option hereunder, specifying the number of
shares being purchased and accompanied by payment in full of the
aggregate purchase price therefor (a) in cash or by certified check,
(b) with previously acquired shares of Common Stock which have been
held by the Optionee for the applicable period required by any
Company plan or agreement with the Company pursuant
to which such shares were issued and if not so restricted, which have
been held for at least six months, or (c) a combination of the
foregoing. Notwithstanding the foregoing, the purchase price may be
paid by delivery by the Optionee of a properly executed notice,
together with a copy of his irrevocable instructions to a broker
acceptable to the Board, to deliver promptly to the Company the
amount of sale or loan proceeds sufficient to pay such purchase
price.
4. The Company may withhold cash or shares of Common Stock to be issued
to the Optionee in the amount that the Company determines is
necessary to satisfy its obligation to withhold taxes or other
amounts incurred by reason of the grant or exercise of this option or
the disposition of the underlying shares of Common Stock.
Alternatively, the Company may require the Optionee to pay the
Company such amount in cash promptly upon demand.
5. Notwithstanding the foregoing, this option shall not be exercisable
by the Optionee unless (a) a Registration Statement under the
Securities Act of 1933, as amended (the "Securities Act") with
respect to the shares of Common Stock to be received upon the
exercise of this option shall be effective and current at the time of
exercise or (b) there is an exemption from registration under the
Securities Act for the issuance of the shares of Common Stock upon
such exercise. The Optionee hereby represents and warrants to the
Company that, unless such a Registration Statement is effective and
current at the time of exercise of this option, the shares of Common
Stock to be issued upon the exercise of this option will be acquired
by the Optionee for his or her own account, for investment only and
not with a view to the resale or distribution thereof.
6. Notwithstanding anything herein to the contrary, if at any time the
Board shall determine, in its discretion, that the listing or
qualification of the shares of Common Stock subject to this option on
any securities exchange or under any applicable law, or the consent
or approval of any governmental agency or regulatory body, is
necessary or desirable as a condition to, or in connection with, the
granting of an option or the issue of shares of Common Stock
hereunder, this option may not be exercised in whole or in part
unless such listing, qualification, consent or approval shall have
been effected or obtained free of any conditions not acceptable to
the Board.
7. The Company may affix appropriate legends upon the certificates for
shares of Common Stock issued upon exercise of this option and may
issue such "stop transfer" instructions to its transfer agent in
respect of such shares as it determines, in its discretion, to be
necessary or appropriate to (a) prevent a violation of, or to perfect
an exemption from, the registration requirements of the Securities
Act, or (b) implement the provisions of the Plan or this Contract or
any other agreement between the Company and the Optionee with respect
to such shares of Common Stock.
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8. Nothing in the Plan or herein shall confer upon the Optionee any
right to continue in the service of the Company or any Affiliate, or
interfere in any way with any right of the Com pany or any Affiliate
to terminate such service at any time.
9. The Company and the Optionee (by his or her acceptance of this
option) agree that they will both be subject to and bound by all of
the terms and conditions of the Plan, a copy of which is attached
hereto and made a part hereof. Any capitalized term not defined
herein shall have the meaning ascribed to it in the Plan. In the
event of a conflict between the terms of this Contract and the terms
of the Plan, the terms of the Plan shall govern.
10. The Optionee (by his or her acceptance of this option) represents and
agrees that he or she will comply with all applicable laws relating
to the Plan and the grant and exercise of this option and the
disposition of the shares of Common Stock acquired upon exercise of
the option, including, without limitation, federal and state
securities and "blue sky" laws.
11. This option is not transferable by the Optionee otherwise than by
will or the laws of descent and distribution and may be exercised,
during the lifetime of the Optionee, only by the Optionee or the
Optionee's legal representatives.
12. This Contract shall be binding upon and inure to the benefit of any
successor or assign of the Company and to any heir, distributee,
executor, administrator or legal representative entitled to the
Optionee's rights hereunder.
13. This Contract shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York, without regard to
the conflicts of law rules thereof.
14. The invalidity, illegality or unenforceability of any provision
herein shall not affect the validity, legality or enforceability of
any other provision.
15. The Optionee (by his or her acceptance of this option) agrees that
the Company may amend the Plan and the option granted to the Optionee
under the Plan, subject to the limitations contained in the Plan.
IN WITNESS WHEREOF, the parties hereto have executed this Contract as
of the day and year first above written.
THE XXXXXX XXX COMPANY,
INC.
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Name: Xxxx X. Xxxxxxxxx
Title: Chairman of the Board
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[Optionee]
