VICE PRESIDENT OF FINANCE EMPLOYMENT CONTRACT
Exhibit
10.1
VICE
PRESIDENT OF FINANCE
This employment agreement (this “Agreement”) has been entered into as of the 5th day of October 2009 (the “Execution
Date”) by and between China Architectural Engineering, Inc.
(NASDAQ-OMX:CAEI) (“CAEI”), and Gene Xxxxxxx
Xxxxxxx, an individual residing in Beijing,
People’s Republic of China (“Employee”).
W I T N E S S E T H
WHEREAS, Employee has the experience,
know-how, ability and qualifications to serve as the CAEI’s Vice President of Finance.
WHEREAS, as CAEI desires to secure the
services of the Employee as Vice President of Finance,
and the Employee desires to accept such
employment.
WHEREAS, the parties desire to enter
into this Agreement to establish the terms and conditions of the Employee’s employment as Vice President of
Finance of CAEI.
NOW THEREFORE, in consideration of the
material advantages accruing to the two parties and the mutual covenants
contained herein, and intending to be legally and ethically bound hereby, CAEI
and the Employee agree with each other as
follows:
1. Employment,
Duties and Performance.
The Employee will render full-time professional
services to CAEI in
the capacity of Vice
President of Finance of
CAEI. He will at all times, diligently,
in good faith, in a manner consistent with the best interests of CAEI, and to the best of his ability, perform
all duties that may be required of him by virtue of his position as Vice President of Finance and all duties set forth in
CAEI’s bylaws and in policy statements
of the Board of the Directors of CAEI (the
“Board”). It is understood that these duties shall
be substantially the same as those of a vice president of finance of a business
corporation. The
Employee is hereby vested with authority to act
on behalf of the Board in
keeping with policies adopted by the Board, as amended from time to time. In
addition, he shall perform in the same manner any special duties assigned or
delegated to him by the Board. In the course of his
employment, Employee shall comply with all policies, including Codes of Ethics,
that are applicable to the CAEI’s officers in general and the vice
president of finance, in particular.
2. Term. This Agreement shall have
an effective date as of September 28, 2009 (the “Effective
Date”) and shall expire, unless terminated earlier
pursuant to and in accordance with the provisions of this Agreement, or extended
by mutual agreement of the parties, on September 27, 2014 (the “Term”). If the parties desire to renew this
Agreement, terms of a new contract shall be completed, or the
decision made not to negotiate a new contract made, not later than the end of
the tenth month of the year of expiration. This contract and all its terms and
conditions shall continue in effect until terminated.
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3. Compensation.
(a) Base
Salary. In consideration for the Employee’s services as Vice President of Finance, CAEI agrees to pay the Employee a base salary of One Hundred Eighty Thousan d U.S.
Dollars ($180,000USD) per annum, which shall paid monthly at the rate of Fifteen Thousand U.S. Dollars
($15,000USD) per month, subject to all legally required
deductions and withholdings, in accordance with the customary payroll practices
of CAEI (“Base
Salary”).
(b) Option
Grants. The Employee shall receive the following number of option grants under and
subject to CAEI’s 2009 Omnibus Incentive Plan with the
vesting schedules as indicated below:
1.) Employee shall receive a
sign-on bonus of stock
options exercisable into
100,000 shares of common stock (the “Initial
Options”). The per share exercise price for Initial
Options shall be the closing market price of a share of
common stock on the NASDAQ-OMX on the Grant Date of the Initial Options, as
defined in the Stock Option Agreement, as defined below. The Initial Options shall vest at the rate of 10,000 shares per month, with
the first vesting of 10,000 options to occur on November 27, 2009, which is 60
days from the Effective Date, and with the last vesting of 10,000 options
ending upon the total vested being 100,000, in
accordance with
CAEI’s Stock Option Agreement, a form of
which is attached hereto as Exhibit
A (the “Stock Option
Agreement”).
2.) Annually for the next two anniversary
dates, i.e., on each September 28, 2010 and September 28,
2011, during the Term of
this Agreement,
the Employee shall receive the option grants as per the following formula (the “2010/2011
Options”):
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Amount
of Stock Options to be granted on each anniversary date
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=
(100,000) X
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(Average
Closing Trading Price of a share of CAEI common stock as reported by
NASDAQ during the 30 calendar days immediately preceding the respective
anniversary date)
/
(Exercise
Price of the Initial Options)
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3.) For the years after the first two anniversary dates, i.e.,
on each of September 28 of 2012, 2013, and 2014, a grant of options shall be
made that follow the same
formula as the Initial
Options except that the denominator will be based on the Average Closing Trading Price of the prior year,
as set forth in the formula below (the “2012/2013/2014
Options,” and collectively with the 2010/2011
Options, the “Annual
Options”):
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Amount
of Stock Options to be granted on each anniversary date
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=
(100,000) X
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(Average
Closing Trading Price of a share of CAEI common stock as reported by
NASDAQ during the 30 calendar days immediately preceding the anniversary
date)
/
(Average
Closing Trading Price of a share of CAEI common stock as reported by
NASDAQ during the 30 calendar days immediately preceding September 28th
of the previous year).
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For each grant of each of the Annual
Options, respectively, the
Employee and CAEI shall
enter into CAEI’s Stock Option
Agreement.
4. Business
Expenses. All reasonable business expenses
incurred by Employee in
connection with the performance of his duties shall be reimbursed or pre-paid.
Reimbursement shall be paid
after submission of itemized business expense reports with supporting receipts, and such
payment shall be made in accordance CAEI’s reimbursement payment policies, but in
no event later than 20 days after submission of the business expense
report.
5. Benefits,
Vacation, and Other Matters.
(a) The Employee shall be entitled to two (2) weeks on compensated vacation time in
each of the contract years
during the Term, to be
taken at times mutually agreed upon between him and the Chairman of the
Board.
(b) In the event of a period of prolonged
inability to work due to the result of Employee’s sickness or an injury, the Employee will be compensated at his full rate pay up
to three (3) months from the date of the sickness or
injury.
(c) In addition, the Employee, as have been mutually agreed
upon between him and the Chairman of the Board, will be permitted to be absent from
CAEI during working days to attend
professional meetings and to attend to such outside professional
duties.
(d) The Employee shall receive a housing allowance equal
to 10,000 RMB per month paid at the end of each quarter.
(e) CAEI agrees to pay dues to professional
associations and societies and to such service organizations and clubs of which the
Employee is a member, as may be approved by the Chairman of the Board as
being in the best interests of CAEI.
(f) CAEI also agrees to (i) insure the Employee under its general liability insurance
policy for all acts done by him in good faith as Vice President of Finance
throughout the
Term of this
contract; and (ii)
provide comprehensive
health and major medical health insurance for the Employee and his
family.
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(g) In addition, the Employee shall be
entitled to all other fringe benefits to which all other general employees of
the CAEI are
entitled.
6. Termination.
(a) The Board may, in its sole discretion, and with or
without cause, terminate
this Agreement and
the Employee's employment. Such action shall require a minimum
majority of vote of the
entire Board and become effective upon written notice to the
Employee or at such later time as may be
specified in said notice. After such termination, all rights, duties and
obligations of both parties shall cease except that CAEI shall continue to pay the Employee his then monthly Base Salary for the month in which his duties
were terminated and for two
(2) consecutive months thereafter
(the “Severance
Period”) as an agreed upon severance payment
(“Severance
Payment”), subject and conditioned on the
Employee signing a full release and waiver agreement in substantially
the form as provided by CAEI to effect the Releases, as defined below in
Paragraph 6 (the “Release
Agreement”). During the Severance Period, the Employee shall not be required to perform any
duties for CAEI, other than providing reasonable assistance in
good faith to CAEI solely for the purpose of transitioning the
Employees’ duties.
(b) Neither shall the fact that the
Employee seeks, accepts and/or undertakes other employment during
the Severance Period
affect such Severance Payments. Also, CAEI agrees to keep the Employee's health and major medical insurance
coverage paid up and in effect during the Severance
Period.
(c) CAEI may terminate Employee’s employment immediately, without
notice, if CAEI determines that Cause exists. For purposes
of this Agreement, “Cause” shall mean: (i) An act of
dishonesty, fraud, embezzlement, or misappropriation of funds or proprietary
information in connection with the Employee’s responsibilities as an
Employee; (ii) Employee’s conviction of, or plea of nolo
contendere to, a felony or
a crime involving moral
turpitude; (iii) Employee’s willful or gross misconduct in
connection with his employment duties which, directly or indirectly, has a
material adverse effect on CAEI; or (iv) Employee’s habitual failure or refusal to perform
his employment duties under this Agreement, if such failure or refusal is not
cured by Employee within ten (10) days after receiving written notice thereof
from CAEI. In the event that Employee’s employment is terminated for Cause, the
Employee shall only be entitled to that portion of the Base Salary that has been
earned but unpaid prior to such termination for Cause, and any expense
reimbursements due and owing to Employee as of such termination date.
(d) Should the Board, without written consent of the
Employee, reduce the
Employee's duties or
authority so it
can reasonably be found
that the Employee is no longer performing as the
Vice President of
Finance, the Employee shall have the right, in his complete discretion, to provide
written notice of termination of this Agreement to the Chairman of the Board,
with such termination to be effective within ninety (90) days of such written notice, unless such ninety
(90) day period is waived in writing by CAEI.
(e) Should the Employee at his discretion
elect to terminate this contract for any other reason than as stated in
Sub-Paragraph 6(d) and Paragraph 7, he shall provide to the Board ninety (90)
days' written notice of his decision to terminate. The Employee will not be
entitled to the Severance
Payments or any other severance benefits if the Employee terminates this
Agreement under this Sub-Paragraph 6(e). At the end of the ninety
(90) days, all rights, duties and obligations of both parties to the contract shall cease, provided,
however, that CAEI, in its sole discretion, may elect to waive the 90 days
notice period and effect the Employee’s election to terminate this Agreement
immediately.
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(f) If an event described in Sub-Paragraphs
6(a) or Paragraph 7 occurs,
and the Employee accepts any of the Severance Payments and severance benefits
described therein, to the extent not prohibited by law, the Employee shall be
deemed to voluntary release and forever discharge the CAEI and its officers,
directors, employees, agents, and related
corporations and their successors and assigns, both individually and
collectively and in their official capacities (hereinafter referred to
collectively as "Releases"), from any and all liability arising
out of his employment
and/or the cessation of said employment. Further, Employee agrees that he must
execute and abide by the Release Agreement to confirm his obligations under the
Releases. Nothing contained in this paragraph and nothing shall
prevent the Employee from bringing an action to enforce the
terms of this Agreement.
7. Change of
Control. If CAEI is undergoes a Change of Control, as
defined below, the
Employee may terminate his employment at his
discretion or be retained as Vice President of Finance of CAEI or any successor
corporation under the terms
and conditions of this Agreement. If the Employee elects to terminate his employment at
such time, he shall be entitled to the same severance arrangement as
would be applicable under
Sub-Paragraph 6(a) if
CAEI had terminated his employment at such
time. If the Employee continues to be employed by
CAEI or its successor organization, all of
the terms and conditions of this Agreement shall remain in effect. CAEI agrees that neither it nor its present
or any future holding
company shall enter into any agreement that would negate or contradict the
provisions of this Agreement. For purposes of this
Agreement, “Change in
Control” shall mean (i) the time, after the date
of this Agreement, that CAEI first determines that any person and all other persons
who constitute a group (within the meaning of § 13(d)(3) of the Securities Exchange Act
of 1934 (“Exchange
Act”)) have acquired direct or indirect
beneficial ownership (within the meaning of Rule 13d-3 under the
Exchange Act) of fifty
percent (50%) or more of CAEI’s outstanding securities, unless a
majority of the “Continuing
Directors” approves the acquisition not later than
ten (10) business days after CAEI makes that determination, or (ii) the
first day on which a majority of the members of
CAEI's board of directors
are not “Continuing
Directors.” “Continuing Directors” shall mean, as of any date of
determination, any member of CAEI's board of directors who (i) was a
member of that board of directors on the date of this Agreement, (ii) has been a member
of that board of directors for the two years immediately preceding such date of
determination, or (iii) was nominated for election or elected to
CAEI’s board of directors
with the affirmative vote of the greater of (x) a majority of the Continuing Directors
who were members of CAEI’s board of directors at the time of such
nomination or election or (y) at least three Continuing Directors. No
Change of Control shall occur as a result from interests in CAEI acquired by Nine Dragon (Hong Kong) Co. Ltd., Resort
Property International Limited, and/or its affiliates.
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8. Confidentiality. The Employee shall maintain confidentiality with
respect to information that he receives in the course of his employment and not
disclose any such
information. The Employee shall not, either during the
Term of employment of thereafter, use or
permit the use of any information of or relating to CAEI in connection with any activity or
business and shall not divulge such information to any person, firm, or corporation whatsoever,
except as may be necessary in the performance of his duties hereunder or as may
be required by law or legal process. Immediately following the
termination of Employee’s employment with CAEI, Employee will return to
CAEI all materials, all
works created by Employee or others in the course of his or their employment
duties during the term of Employee’s employment hereunder, and all copies
thereof. Employee further realizes that any trading in
CAEI’s common stock or other securities or aiding or assisting
others in trading in CAEI’s common stock or other securities,
including disclosing any non-public information concerning CAEI or its affiliates to a person who uses
such information in trading in the CAEI’s common stock or other securities, may constitute a
violation of federal and state securities laws. Employee will not
engage in any transactions involving the CAEI’s common stock or other securities while
in the possession of material non-public information in a manner that would constitute a violation of
federal and state securities laws.
9. Non-Compete. During the term of his employment and
during the 24-month period following termination of his employment, the
Employee shall not directly own, manage,
operate, join, control, or
participate in or be connected with, as an officer, employee, partner,
stockholder or otherwise, any firm that is in competition to CAEI
within service area (Asia Pacific). Employee declares that the foregoing
limitations are reasonable and necessary to protect the business of
CAEI and its
affiliates. If any portion of these restrictions be declared invalid
by a court of competent jurisdiction, the validity or enforceability of the
remainder of such restrictions shall not thereby be adversely affected, but rather such court shall
reform the provision deemed invalid so that it shall be as near to the terms of
this Agreement as possible and still remain enforceable under applicable
law.
10. Non-Solicitation. The Employee shall not directly or indirectly through his own efforts, or
otherwise, during the term of this Agreement, and for a period of 24 months
thereafter, employ, solicit to employ, or otherwise contract with, or in any way
retain the services of any employee or former employee of CAEI. The Employee will not interfere with the
relationship of CAEI and any of its employees and the
Employee will not attempt to divert from
CAEI any business in which CAEI has been actively engaged during his
employment. Nor
shall the Employee directly or indirectly through his own efforts, or
otherwise, during the term of this Agreement, and for a period of 24 months
thereafter, solicit or attempt to solicit the business of any customer or client
of CAEI, or induce or attempt to induce any client or customer of CAEI to reduce its business with
CAEI.
11. Entire
Agreement. This Agreement constitutes the entire agreement between
the parties and contains all the agreements between them with respect to the
subject matter hereof. It also supersedes any and all other agreements or contracts, either
oral or written, between the parties with respect to the subject matter
hereof.
12. Amendments. Except as otherwise specifically
provided, the terms and conditions of this contract may be amended at any time
by mutual agreement of the
parties, provided that before any amendment shall be valid or effective it shall
have been reduced to writing and signed by CAEI’s Chief Executive Officer and the Employee.
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13. Applicable
Law; Severability. This Agreement shall be
construed and enforced
under and in accordance with the laws of the State of
Delaware. The
invalidity or unenforceability of any particular provision of this contract
shall not affect its other provisions, and this contract shall be construed in
all respects as if such
invalid or unenforceable provisions had been omitted.
14. Successors;
Assignability. This agreement shall be binding upon the
CAEI, its successors and assigns, including,
without limitation, any corporation into which CAEI may be merged or by which it may be acquired, and shall
inure to the benefit of the Employee, his administrators, executors,
legatees, heirs and assigns. This Agreement is personal
in nature, and neither this Agreement nor any part of any obligation herein
shall be assignable by
Employee.
15. Notices. All notices and other
communications required or permitted under this Agreement, which are addressed
as provided below (or otherwise provided in writing by the party to receive such
notice) shall be delivered personally, or sent by certified or registered mail
with postage prepaid, or sent by Federal Express or similar courier service with
courier fees paid by the sender, and, in either case, shall be effective upon
delivery.
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If to CAEI:
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Xxx Xxx
Xx
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000 Xxxxxx Xxxx
Xxxxxxx Xxxx Xxxxxx,
Xxxxxx 000000
People’s Republic of China
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If to
Employee:
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Gene Xxxxxxx
Xxxxxxx
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_____________________
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_____________________
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_____________________
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_____________________
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16. Captions. The paragraph captions herein are inserted only as
a matter of convenience and reference and in no way define, limit or describe
the scope of this Agreement or the intent of any provisions
hereof.
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17. Counterparts. This Agreement may be
executed in one or more
facsimile counterparts, and by the parties hereto in separate facsimile
counterparts, each of which when executed shall be deemed to be an original
while all of which taken together shall constitute one and the same
instrument.
[SIGNATURE PAGE TO
FOLLOW]
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IN WITNESS WHEREOF, this
Agreement is executed as of the day and year first above written.
| CHINA ARCHITECTURAL ENGINEERING, INC. | |||||
| Witness: | |||||
| By: | |||||
| /s/ Luo Xxx Xx | Address: | ||||
| By: | Luo Xxx Xx | ||||
| Title: | CEO and Chairman of the Board | ||||
| EMPLOYEE | |||||
| Witness: | |||||
| By: | |||||
| /s/ Gene Xxxxxxx Xxxxxxx | Address: | ||||
| Gene Xxxxxxx Xxxxxxx | |||||
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EXHIBIT
A
FORM
OF STOCK OPTION AGREEMENT
&
CAEI
2009 OMNIBUS PLAN
NOTICE
OF GRANT OF NON-QUALIFIED STOCK OPTION AWARD
2009
OMNIBUS INCENTIVE PLAN
FOR
GOOD AND VALUABLE CONSIDERATION, China Architectural Engineering, Inc. (the
“Company”) hereby grants, pursuant to the provisions of the Company’s 2009
Omnibus Incentive Plan (the “Plan”), to the Participant designated in this
Notice of Grant of Non-Qualified Stock Option Award (the “Notice”) an option to
purchase the number of shares of the common stock of the Company set forth in
the Notice (the “Shares”), subject to certain restrictions as outlined below in
this Notice and the additional provisions set forth in the attached Terms and
Conditions of Stock Option Award (collectively, the
“Agreement”). Also enclosed is a copy of the information statement
describing important provisions of the Plan.
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Optionee:
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GENE XXXXXXX
XXXXXXX
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Date of
Grant: October
__, 2009
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Type of
Option: Non-Qualified Stock Option
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Exercise Price per
Share: $_____
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Expiration
Date: October
__, 2014
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Total
Number of
Shares
Granted: 100,000
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Total Exercise
Price: $________
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Vesting
Schedule: The
Options shall vest at the rate of 10,000 shares per month, with the first
vesting of 10,000 options to occur on November 27,
2009, and with the last vesting of 10,000 options ending upon
the total vested being 100,000.
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Exercise After Termination of
Service:
Termination of Service for any
reason: any non-vested portion of the Option expires
immediately;
Termination of Service due to
death or Disability: vested portion of the Option is exercisable by
the Optionee (or, in the event of the Optionee’s death, the Optionee’s
Beneficiary) for one year after the Optionee’s Termination;
Termination of Service for any
reason other than death or Disability: vested portion of the Option
is exercisable for a period of ninety (90) days following the Optionee’s
Termination; provided, however, that all Options, whether vested or
unvested, shall terminate immediate for termination for Cause, as defined
in the Optionee’s employment agreement.
In no event may this Option be
exercised after the Expiration Date as provided
above.
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By
signing below, the Optionee agrees that this Non-Qualified Stock Option Award is
granted under and governed by the terms and conditions of the Company’s 2009
Omnibus Incentive Plan and the attached Terms and Conditions.
| Participant | China Architectural Engineering, Inc. | ||||
| By: | |||||
| Title: |
Luo
Xxx Xx, CEO
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| Date: | Date: | ||||
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TERMS
AND CONDITIONS OF STOCK OPTION AWARD
1. Grant
of Option. The Option granted to the Optionee and described in
the Notice of Grant is subject to the terms and conditions of the Plan, which is
incorporated by reference in its entirety into these Terms and Conditions of
Stock Option Award.
The
Board of Directors of the Company has authorized and approved the 2009
Omnibus Incentive Plan (the “Plan”), which has been approved by the stockholders
of the Company. The Committee has approved an award to the Optionee
of a number of shares of the Company’s common stock, conditioned upon the
Participant’s acceptance of the provisions set forth in the Notice and these
Terms and Conditions within 60 days after the Notice and these Terms and
Conditions are presented to the Optionee for review. For purposes of
the Notice and these Terms and Conditions, any reference to the Company shall
include a reference to any Affiliate.
If
designated in the Notice of Grant as an Incentive Stock Option (“ISO”), this
Option is intended to qualify as an Incentive Stock Option as defined in Section
422 of the Code. Nevertheless, to the extent that the Option fails to
meet the requirements of an ISO under Section 422 of the Code, this Option shall
be treated as a Non-Qualified Stock Option (“NSO”).
The
Company intends that this Option not be considered to provide for the deferral
of compensation under Section 409A of the Code and that this Agreement shall be
so administered and construed. Further, the Company may modify the
Plan and this Award to the extent necessary to fulfill this intent.
2. Exercise
of Option.
(a) Right
to Exercise. This Option shall be exercisable, in whole or in
part, during its term in accordance with the Vesting Schedule set out in the
Notice of Grant and with the applicable provisions of the Plan and this Option
Agreement. No Shares shall be issued pursuant to the exercise of an
Option unless the issuance and exercise comply with applicable
laws. Assuming such compliance, for income tax purposes the Shares
shall be considered transferred to the Optionee on the date on which the Option
is exercised with respect to such Shares. The Committee may, in its
discretion, (i) accelerate vesting of the Option, or (ii) extend the applicable
exercise period to the extent permitted under Section 6.03 of the
Plan.
(b) Method
of Exercise. The Optionee may exercise the Option by
delivering an exercise notice in a form approved by the Company (the “Exercise
Notice”) which shall state the election to exercise the Option, the number of
Shares with respect to which the Option is being exercised, and such other
representations and agreements as may be required by the Company. The
Exercise Notice shall be accompanied by payment of the aggregate Exercise Price
as to all Shares exercised. This Option shall be deemed to be
exercised upon receipt by the Company of such fully executed Exercise Notice
accompanied by the aggregate Exercise Price.
(c) RESERVED.
3. Method
of Payment. If the Optionee elects to exercise the Option by
submitting an Exercise Notice under Section 2(b) of this Agreement, the
aggregate Exercise Price (as well as any applicable withholding or other taxes)
shall be paid by cash or check; provided,
however, that the Committee may consent, in its discretion, to payment in
any of the following forms, or a combination of them:
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(a) cash
or check;
(b) a
“net exercise” (as described in the Plan or such other consideration received by
the Company under a cashless exercise program approved by the Company in
connection with the Plan;
(c) surrender
of other Shares owned by the Optionee which have a Fair Market Value on the date
of surrender equal to the aggregate Exercise Price of the Exercised Shares and
any applicable withholding; or
(d) any
other consideration that the Committee deems appropriate and in compliance with
applicable law.
4. Restrictions
on Exercise. This Option may not be exercised until such time
as the Plan has been approved by the stockholders of the Company, or if the
issuance of the Shares upon exercise or the method of payment of consideration
for those shares would constitute a violation of any applicable law or
regulation.
5. Non-Transferability
of Option. This
Option may not be transferred in any manner otherwise than by will or by the
laws of descent or distribution and may be exercised during the lifetime of the
Optionee only by the Optionee. The terms of the Plan and this Option Agreement
shall be binding upon the executors, administrators, heirs, successors and
assigns of the Optionee.
6. Term of
Option. This Option may be exercised only within the term set
out in the Notice of Grant, and may be exercised during such term only in
accordance with the Plan and the terms of this Option Agreement.
7. Withholding.
(a) The
Committee shall determine the amount of any withholding or other tax required by
law to be withheld or paid by the Company with respect to any income recognized
by the Optionee with respect to the Option Award.
(b) The
Optionee shall be required to meet any applicable tax withholding obligation in
accordance with the provisions of Section 11.05 of the Plan.
(c) Subject
to any rules prescribed by the Committee, the Optionee shall have the right to
elect to meet any withholding requirement (i) by having withheld from this Award
at the appropriate time that number of whole shares of common stock whose fair
market value is equal to the amount of any taxes required to be withheld with
respect to such Award, (ii) by direct payment to the Company in cash of the
amount of any taxes required to be withheld with respect to such Award or (iii)
by a combination of shares and cash.
8. Defined
Terms. Capitalized terms used but not defined in the Notice
and these Terms and Conditions shall have the meanings set forth in the Plan,
unless such term is defined in any Employment Agreement between the Optionee and
the Company or an Affiliate. Any terms used in the Notice and these
Terms and Conditions, but defined in the Optionee’s Employment Agreement are
incorporated herein by reference and shall be effective for purposes of the
Notice and these Terms and Conditions without regard to the continued
effectiveness of the Employment Agreement.
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9. Optionee
Representations. The Optionee hereby represents to the Company
that the Optionee has read and fully understands the provisions of the Notice,
these Terms and Conditions and the Plan and the Optionee’s decision to
participate in the Plan is completely voluntary. Further, the
Optionee acknowledges that the Optionee is relying solely on his or her own
advisors with respect to the tax consequences of this stock option
award.
10. Regulatory
Limitations on Exercises. Notwithstanding the other
provisions of this Option Agreement, no option exercise or issuance of shares of
Common Stock pursuant to this Option Agreement shall be effective if (i) the
shares reserved under the Plan are not subject to an effective registration
statement at the time of such exercise or issuance, or otherwise eligible for an
exemption from registration, or (ii) the Company determines in good faith that
such exercise or issuance would violate any applicable securities or other law
or regulation.
11. Miscellaneous.
(a) Notices. All
notices, requests, deliveries, payments, demands and other communications which
are required or permitted to be given under these Terms and Conditions shall be
in writing and shall be either delivered personally or sent by registered or
certified mail, or by private courier, return receipt requested, postage prepaid
to the parties at their respective addresses set forth herein, or to such other
address as either shall have specified by notice in writing to the
other. Notice shall be deemed duly given hereunder when delivered or
mailed as provided herein.
(b) Waiver. The
waiver by any party hereto of a breach of any provision of the Notice or these
Terms and Conditions shall not operate or be construed as a waiver of any other
or subsequent breach.
(c) Entire
Agreement. These Terms and Conditions, the Notice and the Plan
constitute the entire agreement between the parties with respect to the subject
matter hereof.
(d) Binding
Effect; Successors. These Terms and Conditions shall inure to
the benefit of and be binding upon the parties hereto and to the extent not
prohibited herein, their respective heirs, successors, assigns and
representatives. Nothing in these Terms and Conditions, express or
implied, is intended to confer on any person other than the parties hereto and
as provided above, their respective heirs, successors, assigns and
representatives any rights, remedies, obligations or liabilities.
(e) Governing
Law. The Notice and these Terms and Conditions shall be
governed by and construed in accordance with the laws of the State of
Delaware.
(f) Headings. The
headings contained herein are for the sole purpose of convenience of reference,
and shall not in any way limit or affect the meaning or interpretation of any of
the terms or provisions of these Terms and Conditions.
(g) Conflicts;
Amendment. The provisions of the Plan are incorporated in
these Terms and Conditions in their entirety. In the event of any
conflict between the provisions of these Terms and Conditions and the Plan, the
provisions of the Plan shall control. The Agreement may be amended at
any time by written agreement of the parties hereto.
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(h) No
Right to Continued Employment. Nothing in the Notice or these
Terms and Conditions shall confer upon the Optionee any right to continue in the
employ or service of the Company or affect the right of the Company to terminate
the Optionee’s employment or service at any time.
(i) Further
Assurances. The Optionee agrees, upon demand of the Company or
the Committee, to do all acts and execute, deliver and perform all additional
documents, instruments and agreements which may be reasonably required by the
Company or the Committee, as the case may be, to implement the provisions and
purposes of the Notice and these Terms and Conditions and the Plan.
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