EXHIBIT 10(r)
▇▇▇▇▇▇ CORPORATION
DIRECTOR STOCK OPTION AGREEMENT
This DIRECTOR STOCK OPTION AGREEMENT (this "OPTION AGREEMENT") is entered
into as of March 1, 2002, between ▇▇▇▇▇▇ CORPORATION, a Nevada corporation (the
"COMPANY"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("OPTIONEE").
To afford Optionee, whose continued service as a director of the Company is
considered essential to the Company's future progress, the opportunity to
purchase shares of common stock, par value $.01 per share, of the Company (the
"COMMON STOCK") and to provide Optionee with a further incentive to remain a
director of the Company, and in consideration of the mutual agreements and other
matters set forth herein, the Company and Optionee hereby agree as follows:
1. GRANT OF OPTION. The Company hereby irrevocably grants to Optionee the
right and option (the "OPTION") to purchase Common Stock of the Company, on the
terms and conditions set forth herein, as set forth below:
Date of Grant: March 1, 2002
Exercise Price Per Share: $26.60
Total Number of Optioned Shares: 1,000
Total Exercise Price: $26.60
Type of Option: Nonstatutory Stock Option
Expiration Date: March 1, 2012
The Option shall not be treated as an incentive stock option within the meaning
of Section 422(b) of the Internal Revenue Code of 1986, as amended (the "CODE").
The Option will be a nonstatutory Option not entitled to special tax treatment
under Section 422 of the Code.
2. VESTING SCHEDULE. Except only as specifically provided elsewhere
herein, the Option shall be exercisable in the following cumulative
installments:
Up to 333 total shares ("OPTIONED SHARES") at any time after the first
anniversary of the Date of Grant;
Up to an additional 333 total Optioned Shares at any time after the
second anniversary of the Date of Grant; and
Up to an additional 334 total Optioned Shares at any time after the
third anniversary of the Date of Grant.
If an installment covers a fractional share, such installment will be rounded
off to the next highest share, except the final installment, which will be for
the balance of the total Optioned Shares.
3. PURCHASE PRICE. The exercise price per share of Common Stock purchased
pursuant to the exercise of the Option, which is set forth in Section 1, has
been determined to be not less than the Fair Market Value of the Common Stock on
the date of grant of the Option. The term "FAIR MARKET VALUE" means (i) if the
Common Stock is listed on any established stock exchange or a national market
system, including, without limitation, the New York Stock Exchange ("NYSE"), the
closing sales price for such stock on the date of determination (or, if no such
price is reported on such date, such price as reported on the nearest preceding
day) as quoted on such exchange or system (or the exchange with the greatest
volume of trading in the Common Stock), as reported in The Wall Street Journal
or such other source as the Board of Directors deems reliable, or (ii) if the
Common Stock is quoted on the NASDAQ System (but not on the NASDAQ National
Market thereof) or is regularly quoted by a recognized
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securities dealer but selling prices are not reported, the mean of the closing
bid and asked prices for the Common Stock on the date of determination (or if
such prices are not reported on such date, such prices as reported on the
nearest preceding date), as reported in The Wall Street Journal or such other
source as the Board of Directors deems reliable; or (iii) if the fair market
value is not determined pursuant to (i) or (ii) above, the fair market value as
determined in good faith by the Board of Directors.
4. EXERCISE OF OPTION. The Option is exercisable by delivery of an
exercise notice, in the form attached hereto as EXHIBIT A (the "EXERCISE
NOTICE"), which shall state the election to exercise the Option, the number of
Optioned Shares in respect of which the Option is being exercised (the
"EXERCISED SHARES"), and such other representations and agreements as may be
required by the Company pursuant to the provisions of this Option Agreement. The
Exercise Notice shall be signed by the Optionee and shall be delivered in person
or by certified mail to the Secretary of the Company. The Exercise Notice shall
be accompanied by payment of the aggregate exercise price as to all Exercised
Shares. The Option may not at any time be exercised with respect to a fractional
share, and no fraction of a share of Common Stock shall be issued by the Company
upon exercise of the Option or accepted by the Company in payment of the
purchase price thereof. No shares shall be issued pursuant to the exercise of
the Option unless such issuance and exercise complies with all relevant
provisions of Section 9(a) hereof. Assuming such compliance, for income tax
purposes the Exercised Shares shall be considered transferred to the Optionee on
the date the Option is exercised with respect to such Exercised Shares. The
stock issued to Optionee upon exercise of the Option may be unissued shares or
reacquired shares, bought on the market or otherwise.
5. METHOD OF PAYMENT. The purchase price of Common Stock acquired
pursuant to the Option shall be paid, to the extent permitted by applicable
statutes and regulations at the time the Option is exercised, either (i) in cash
or check, and/or (ii) at the discretion of the Board of Directors, in one or a
combination of the following ways, (A) by delivery to the Company of other
shares of Common Stock of the Company to be valued at their Fair Market Value on
the exercise date (provided that any shares acquired directly or indirectly from
the Company shall have been owned by the Optionee for more than six months on
the date of surrender), or (B) withholding of shares that would otherwise be
issued upon the exercise of the Option to be valued at their Fair Market Value
on the exercise date. If the Fair Market Value of the number of whole shares
transferred or the number of whole shares subject to the Option surrendered is
less than the total exercise price of the Option, the shortfall must be made up
in cash or by check. THE USE OF SHARES OF STOCK ACQUIRED OR TO BE ACQUIRED TO
PAY FOR EXERCISED SHARES MAY HAVE INCOME TAX CONSEQUENCES FOR THE OPTIONEE.
6. NONTRANSFERABLE AND TERMINATION.
(a) The Option is not transferable by Optionee otherwise than by will
or the laws of descent and distribution, or pursuant to a qualified domestic
relations order, as defined in the Code or Title I of the Employee Retirement
Security Act of 1974, as amended ("ERISA"), or the rules thereunder ("QDRO"),
and may be exercised during Optionee's lifetime only by Optionee or any
transferee pursuant to a QDRO. Neither the Option nor an interest therein may be
transferred, assigned, pledged or hypothecated by the Optionee during such
person's lifetime, whether by operation of law or otherwise, or be made subject
to execution, attachment or similar process.
(b) In the event Optionee ceases to serve as a director of the Company,
the Option may be exercised by the Optionee (or, in the event of such person's
death, by such person's administrator, executor or heirs), at any time within
twelve (12) months after the Optionee ceases to serve as a director, but only to
the extent the Option was exercisable at the time of such cessation of service.
Notwithstanding the foregoing, the Option shall not be exercisable in any event
after the expiration of ten (10) years from the date of grant.
7. LIMITATION OF RIGHTS.
(a) No Right to Continue as Director. The granting of the Option shall
not constitute or be evidence of any agreement or understanding, express or
implied, that the Company will retain Optionee as a director for any period of
time.
(b) No Stockholders' Rights for Optionee. Neither the Optionee nor any
person to whom the Option is transferred pursuant to Section 6(a) hereof shall
be deemed to be the holder of, or to have any of the rights
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of a holder with respect to, any shares of Common Stock subject to the Option
including, but not limited to, rights to vote or to receive dividends, unless
and until such person has satisfied all requirements for exercise of the Option
pursuant to its terms, the certificates evidencing such shares have been issued
and such person has become a record holder of such shares.
8. WITHHOLDING OF TAX. Optionee shall, upon notification of the amount
due (if any) and prior to or concurrent with delivery of the certificate
representing the Optioned Shares, pay by cash or check to the Company amounts
necessary to satisfy applicable federal, state and local tax withholding
requirements.
9. COMPLIANCE WITH SECURITIES LAWS.
(a) The Option shall not be exercised, and shares shall not be issued
upon such exercise, unless the exercise of the Option and the issuance and
delivery of such shares shall comply with all relevant provisions of law,
including, without limitation, any applicable state securities laws, the
Securities Act of 1933, as amended ("the SECURITIES ACT"), the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), the rules and regulations
thereunder and the requirements of any stock exchange upon which such shares may
then be listed or approved for listing upon notice of issuance, and such
issuance shall be further subject to the approval of counsel for the Company
with respect to such compliance, including the availability of an exemption from
registration for the issuance and sale of such shares. The inability of the
Company to obtain from any regulatory body the authority deemed by the Company
to be necessary for the lawful issuance and sale of any shares under this Option
Agreement, or the unavailability of an exemption from registration for the
issuance and sale of any shares under this Option Agreement, shall relieve the
Company of any liability with respect to the non-issuance or sale of such
shares.
(b) Optionee agrees that the shares of Common Stock which Optionee may
acquire by exercising the Option will not be sold or otherwise disposed of in
any manner which would constitute a violation of any applicable securities laws,
whether federal or state. Optionee also agrees (i) that the certificates
representing the shares of Common Stock purchased under the Option may bear such
legend or legends as the Board of Directors of the Company deems appropriate in
order to assure compliance with applicable securities laws, (ii) that the
Company may refuse to register the transfer of the shares of Common Stock
purchased under the Option on the stock transfer records of the Company if such
proposed transfer would in the opinion of counsel to the Company constitute a
violation of any applicable securities law and (iii) that the Company may give
related instructions to its transfer agent, if any, to stop registration of the
transfer of the shares of Common Stock purchased under the Option. The Company
may require Optionee, or any person to whom the Option is transferred under
Section 6(a), as a condition of exercising the Option, (i) to give written
assurances satisfactory to the Company stating that such person is acquiring the
stock subject to the Option for such person's own account and not with any
present intention of selling or otherwise distributing the stock; and (ii) to
deliver such other documentation as may be necessary to comply with federal and
state securities laws. In addition, the Company may require any person to whom
the Option is transferred under Section 6(a), as a condition of exercising the
Option, to give written assurances satisfactory to the Company as to such
person's knowledge and experience in financial and business matters and/or to
employ a purchaser representative reasonably satisfactory to the Company who is
knowledgeable and experienced in financial and business matters, and that he is
aware of the merits and risks of exercising the Option.
10. TAX CONSEQUENCES. The grant and/or exercise of the Option will have
federal and state income tax consequences, including a requirement that the
Company file certain information returns with the Internal Revenue Service. THE
OPTIONEE SHOULD CONSULT A TAX ADVISER UPON THE GRANT OF THE OPTION AND BEFORE
EXERCISING THE OPTION OR DISPOSING OF THE SHARES, PARTICULARLY WITH RESPECT TO
HIS STATE'S TAX LAWS.
11. ADMINISTRATION. The Board of Directors or a duly appointed committee
of the Board (the "Administrators") shall supervise and administer this Option
Agreement. All questions of interpretation of the Option issued hereunder shall
be determined by the Administrators and such determination shall be final and
binding upon the Optionee.
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12. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER.
(a) Changes in Capitalization. The number of shares of Common Stock
covered by the Option, as well as the price per share of Common Stock covered by
the Option, shall be proportionately adjusted for any increase or decrease in
the number of issued shares of Common Stock resulting from a stock split,
reverse stock split, stock dividend, combination or reclassification of the
Common Stock, or any other increase or decrease in the number of issued shares
of Common Stock effected without receipt of consideration by the Company;
provided, however, that conversion of any convertible securities of the Company
shall not be deemed to have been "effected without receipt of consideration."
Such adjustment shall be made by the Administrators, whose determination in that
respect shall be final, binding and conclusive. Except as expressly provided
herein, no issuance by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or
exercise price of Optioned Shares.
(b) Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Company, the Option will terminate immediately
prior to the consummation of such proposed action, unless otherwise provided by
the Administrators. The Administrators may, in the exercise of their sole
discretion in such instances, declare that the Option shall terminate as of a
date fixed by the Administrators and give the Optionee the right to exercise the
Option as to all or any part of the Optioned Shares, including shares as to
which the Option would not otherwise be exercisable.
(c) Merger or Asset Sale. In the event of a proposed sale of all or
substantially all of the assets of the Company, or the merger, restructure,
reorganization or consolidation of the Company with or into another entity or
entities in which the stockholders of the Company receive cash or securities of
another issuer, or any combination thereof, in exchange for their shares of
Common Stock, the Option shall be assumed or an equivalent option shall be
substituted by such successor entity or an affiliate of such successor entity,
unless the Administrators determine, in the exercise of their sole discretion
and in lieu of such assumption or substitution, that the Optionee shall have the
right to exercise the Option as to all Optioned Shares, including shares as to
which the Option would not otherwise be vested. If the Administrators make the
Option fully exercisable in lieu of assumption or substitution in the event of a
merger, restructure, reorganization, consolidation or sale of assets, the
Administrators shall notify the Optionee that the Option shall be fully
exercisable for a period of thirty (30) days from the date of such notice or
such shorter period as the Administrators may specify in the notice, and the
Option will terminate upon the expiration of such period. For the purposes of
this Section, the Option shall be considered assumed if, following the merger,
restructure, reorganization, consolidation or sale of assets, the Option confers
the right to purchase, for each Optioned Share immediately prior to the merger,
restructure, reorganization, consolidation or sale of assets, the consideration
(whether stock, cash, or other securities or property) received in the merger or
sale of assets by holders of Common Stock for each share of Common Stock held on
the effective date of the consummation of the transaction (and if holders were
offered a choice of consideration, the type of consideration chosen by the
holders of a majority of the outstanding shares of Common Stock); provided,
however, that if such consideration received in the merger, restructure,
reorganization, consolidation or sale of assets was not solely common equity of
the successor entity or its affiliate, the Administrators may, with the consent
of the successor entity and the Optionee, provide for the consideration to be
received upon the exercise of the Option, for each Optioned Share, to be solely
common stock of the successor entity or its affiliate equal in fair market value
to the per share consideration received by holders of Common Stock in the
merger, restructure, reorganization, consolidation or sale of assets.
13. BINDING EFFECT. This Option Agreement shall be binding upon and inure
to the benefit of any successors to the Company and all persons lawfully
claiming under Optionee.
14. ENTIRE AGREEMENT AND GOVERNING LAW. This Option Agreement constitutes
the entire agreement of the parties with respect to the subject matter hereof
and supersedes in its entirety all prior undertakings and agreements of the
Company and Optionee with respect to the subject matter hereof, and may not be
modified adversely to the Optionee's interest except by means of a writing
signed by the Company and Optionee. This Option Agreement is governed by Nevada
law except for that body of law pertaining to conflict of laws.
15. RESERVES. During the term of the Option, the Company shall keep
available at all times and shall reserve the number of shares of Common Stock
required to satisfy the Option upon exercise thereof.
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16. NOTICE. Any written notice to the Company required by any of the
provisions of this Option Agreement shall be addressed to the Secretary of the
Company and shall become effective when it is received. Any written notice to
the Optionee required by any provisions of this Option Agreement shall be
addressed to the Optionee at the address on file with the Company and shall
become effective three days after it is mailed by certified mail, postage
prepaid to such address or at the time of delivery if delivered sooner by
messenger or overnight courier.
17. MISCELLANEOUS. Optionee warrants and represents that he has reviewed
this Option Agreement in its entirety, has had an opportunity to obtain the
advice of counsel prior to executing this Option Agreement and fully understand
all provisions of this Option Agreement. Optionee hereby agrees to accept as
binding, conclusive and final all decisions or interpretations of the
Administrators upon any questions relating to this Option Agreement. Optionee
further agrees to notify the Company upon any change in the address indicated in
Section 1 above.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by its officer thereunto duly authorized, and Optionee has executed
this Agreement, all as of the day and year first above written.
Company: ▇▇▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief
Executive Officer
Optionee: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SCHEDULE TO EXHIBIT 10(r) - FORM OF
MARCH 1, 2002 DIRECTOR STOCK OPTION AGREEMENT
BY AND AMONG ▇▇▇▇▇▇ AND THE
NON-EMPLOYEE DIRECTORS OF THE COMPANY
The Director Stock Option Agreement filed as Exhibit 10(r) is substantially
identical in all material respects to the Director Stock Option Agreements which
have been entered into by ▇▇▇▇▇▇ Corporation and the following non-employee
directors entered into as of March 1, 2002:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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EXHIBIT A
▇▇▇▇▇▇ CORPORATION
DIRECTOR STOCK OPTION AGREEMENT
EXERCISE NOTICE
▇▇▇▇▇▇ Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
1. EXERCISE OF OPTION. Effective as of today, __________, 20__, the
undersigned ("PURCHASER") hereby elects to purchase _______ shares (the
"SHARES") of the common stock of ▇▇▇▇▇▇ Corporation (the "COMPANY") under and
pursuant to the Director Stock Option Agreement dated as of March 1, 2002 (the
"OPTION AGREEMENT"). The per share exercise price for the Shares shall be
$26.60, as specified in the Option Agreement.
2. DELIVERY OF PAYMENT. Purchaser herewith delivers to the Company the full
purchase price for the Shares or __________.
3. REPRESENTATIONS OF PURCHASER. Purchaser acknowledges that Purchaser has
read and understood the Option Agreement and agrees to abide by and be bound by
its terms and conditions.
4. RIGHTS AS STOCKHOLDER. Until the issuance (as evidenced by the
appropriate entry on the books of the Company or of a duly authorized transfer
agent of the Company) of the stock certificate evidencing such Shares, no right
to vote or receive dividends or any other rights as a stockholder shall exist
with respect to the Optioned Stock, notwithstanding the exercise of the Option.
A share certificate for the number of Shares so acquired shall be issued to the
Purchaser as soon as practicable after exercise of the Option. No adjustment
will be made for a dividend or other right for which the record date is prior to
the date the stock certificate is issued, except as provided in the Option
Agreement.
5. TAX CONSULTATION. Purchaser understands that Purchaser may suffer
adverse tax consequences as a result of Purchaser's purchase or disposition of
the Shares. Purchaser represents that Purchaser has consulted with any tax
consultants Purchaser deems advisable in connection with the purchase or
disposition of the Shares and that Purchaser is not relying on the Company for
any tax advice.
6. ENTIRE AGREEMENT; GOVERNING LAW. The Option Agreement is incorporated
herein by reference. This exercise notice and the Option Agreement constitute
the entire agreement of the parties with respect to the subject matter hereof
and supersede in their entirety all prior undertakings and agreements of the
Company and Purchaser with respect to the subject matter hereof, and may not be
modified adversely to the Purchaser's interest except by means of a writing
signed by the Company and Purchaser. This exercise notice is governed by Nevada
law except for that body of law pertaining to conflict of laws.
Submitted by: Accepted by:
Purchaser: ▇▇▇▇▇▇ Corporation
By:
--------------------------------- --------------------------------
Name:
Title:
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