Exhibit 4.2
XXX XXXXXXXXXXX
STOCK OPTION AGREEMENT
NON-QUALIFIED STOCK OPTION
AGREEMENT entered into as of the ___ day of ______, _____ by and between
XXX Xxxxxxxxxxx, a Massachusetts corporation (the "Company"), and the
undersigned individual (the "Optionee").
WHEREAS, the Company desires to grant the Optionee a non-qualified stock
option to acquire shares of the Company's common stock, $.01 par value per share
(the "Common Stock"); and
WHEREAS, the Optionee desires to accept such option subject to the terms
and conditions of this Agreement.
NOW THEREFORE, in consideration of the premises and of the mutual covenants
and agreements contained herein, the Company and the Optionee, intending to be
legally bound, hereby agree as follows:
1. GRANT OF OPTION. The Company hereby grants to the Optionee a
non-qualified stock option (the "Option") to purchase all (or any part) of
_______ shares of Common Stock (the "Shares") on the terms and conditions
hereinafter set forth. This option shall not be treated as an incentive stock
option under Section 422A of the Internal Revenue Code of 1986, as amended.
2. PURCHASE PRICE. The purchase price ("Purchase Price") for the Shares
covered by the Option shall be the closing price of a share of Common Stock on
_________, or $_____ per share.
3. VESTING AND EXERCISABILITY. On or after the first anniversary of the
date hereof, twenty percent (20%) of the Shares subject to the Option shall vest
and be exercisable, and on or after each of the next four successive
anniversaries of the date hereof, an additional twenty percent (20%) of the
Shares shall vest and be exercisable.
4. TERM OF OPTION.
(a) This Option shall expire not later than ten (10) years from the date
hereof; PROVIDED, HOWEVER, that if the Optionee ceases to serve as
Clerk of the Company for any reason, whether voluntary or
involuntary (including death), this Option shall terminate on the
date such service terminates with respect to any Shares subject to
options which are vested or unvested on such date.
5. MANNER OF EXERCISE OF OPTION.
(a) To the extent that the right to purchase shares under the Option has
vested and is in effect in accordance with the terms hereof, the
number of available Shares may be purchased in full (or in part) by
giving written notice to the Company stating the number of Shares
purchased and accompanied by payment in full for such Shares.
Payment shall be either in cash or by a certified or cashier's check
or money order payable to the Company.
(b) The Company shall at all times during the term of the Option reserve
and keep available such number of shares of its Common Stock as will
be sufficient to satisfy the requirements of the Option.
(c) Notwithstanding the provision of Section 5(a) of this Agreement, the
Company may delay the issuance of Shares covered by the vesting of
this Option and the delivery of a certificate for such Shares until
one of the following conditions shall be satisfied:
(i) The Shares purchased pursuant to a vested Option are at the time
of the issuance of such Shares effectively registered or
qualified under applicable federal and state securities laws now
in effect or as hereafter amended; or
(ii) Counsel for the Company shall have given an opinion that such
Shares are exempt from registration and qualification under
applicable federal and state securities laws now in effect or as
hereafter amended.
(iii) The Company shall use its best efforts to promptly meet the
conditions under items (i) and (ii) above.
6. CHANGES IN STOCK.
In the event of a stock dividend, stock split or other change in corporate
structure or capitalization affecting the Common Stock, the Board of Directors
or the Compensation Committee (the "Committee") shall make appropriate
adjustments in the number and kind of shares of stock remaining subject to this
Option outstanding at the time of such change and the Purchase Price. Subject to
any required action by the stockholders, if the Company shall be the surviving
corporation in any merger or consolidation (other than a merger or consolidation
in which the Company survives but in which a majority of its outstanding shares
are converted into securities of another corporation or are exchanged for other
consideration), this Option shall pertain and apply to the securities which a
holder of the number of shares of stock of the Company then subject to this
Option would have been entitled to receive, but a dissolution or liquidation of
the Company or a merger or consolidation in which the Company is not the
surviving corporation or in which a majority of its outstanding shares are so
converted or exchanged shall cause this Option to terminate; provided that if
any such dissolution, liquidation, merger or consolidation is contemplated, the
Company shall either arrange for any corporation succeeding to the business and
assets of the Company to issue to the Optionee replacement options on such
corporation's stock which will to the extent possible preserve the value of the
outstanding Option or shall make the outstanding Option fully exercisable at
least 20 days before the effective date of any such dissolution, liquidation,
merger or consolidation. The existence of this Agreement shall not prevent any
such change or other transaction and the Optionee shall not have any right
except as herein expressly set forth.
7. NO SPECIAL RIGHTS. Nothing contained in this Agreement shall be
construed or deemed by any person under any circumstances to bind the Company or
any of its subsidiaries to continue the service of the Optionee as Clerk of the
Company for the period during which this Option may vest.
8. RIGHTS AS A SHAREHOLDER. The Optionee shall not have any of the rights
of a shareholder of the Company in respect of the Shares until one or more
certificates for such Shares shall be delivered to the Optionee upon the
purchase of Shares pursuant to a vested Option in accordance with this
Agreement. Except as otherwise expressly provided herein, no adjustment shall be
made for dividends or other rights for which the record date is prior to the
date such stock certificate is issued.
9. NOTICE OF DISPOSITION. Participant shall notify the Company when he
makes any disposition of the Shares acquired upon exercise of this Option,
whether by sale, gift or otherwise.
10. APPLICATION OF STOCK TRANSFER AGREEMENT. If at the time when this
Option is exercised, the Company is a party to any agreement restricting the
transfer of any outstanding shares of its Common Stock, this Option may be
exercised only if the Shares so acquired are made subject to the transfer
restrictions set forth in that agreement (or if more than one such agreement is
then in effect), the agreement specified by the Board of Directors or the
Committee.
11. TAX EFFECTS OF EXERCISE OF OPTION. At the time of exercise of any part
of this Option, Optionee or his legal representative will be liable for federal
and state taxes for the gain between the exercise price of the Shares and the
then current fair market value of such shares. The Company has no liability or
responsibility to withhold any amounts to cover this federal or state tax
liability.
12. NON-TRANSFERABILITY OF OPTION. This Option is not transferable by the
Optionee otherwise than by will or the laws of descent and distribution, and is
exercisable during the Participant's lifetime only by the Participant.
13. CANCELLATION AND RESCISSION OF OPTION. The Committee or the Board of
Directors may cancel, rescind, suspend or otherwise limit or restrict this
Option at any time if the Optionee engages in "Detrimental Activity" (as defined
below). Furthermore, in the event Optionee engages in Detrimental Activity at
any time prior to or during the six months after any exercise of this Option (or
portion hereof), such exercise may be rescinded until the later of (i) two years
after such exercise or (ii) two years after such Detrimental Activity. Upon such
rescission, the Company at its sole option may require the Optionee to (i)
deliver and transfer to the Company the shares of Common Stock received by the
Optionee upon such exercise, (ii) pay to the Company an amount equal to any
realized gain received by the Optionee from such exercise, or (iii) pay to the
Company an amount equal to the market price (as of the exercise date) of the
Common Stock acquired upon such exercise minus the respective exercise price.
The Company shall be entitled to set-off any such amount owed to the Company
against any amount owed to the Optionee by the Company. As used in this Section
13, "Detrimental Activity" shall include: (i) the failure to comply with the
terms of this Agreement; (ii) the failure to comply with any term set forth in
the Key Employee Agreement (irrespective of whether the Optionee is a party to
the Key Employee Agreement); (iii) any activity that results in removal of the
Optionee for cause; (iv) a violation of any rule, policy, procedure or guideline
of the Company; (v) the Optionee being convicted of, or entering a guilty plea
with respect to a crime whether or not connected with the Company; or (vi) any
other conduct or act determined to be injurious, detrimental or prejudicial to
any interest of the Company.
[Remainder of Page Intentionally Left Blank]
XXX XXXXXXXXXXX
STOCK OPTION AGREEMENT
COUNTERPART SIGNATURE PAGE
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
and its corporate seal to be hereto affixed by its officer thereunto duly
authorized, and the Optionee has hereunto set his hand and seal, all as of the
day and year first above written.
XXX XXXXXXXXXXX OPTIONEE
By:
---------------------------------- ----------------------------------
NAME: (SIGNATURE)
TITLE:
----------------------------------
(PRINT NAME)
----------------------------------
(print address)
