Exhibit 10(iv)
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INCENTIVE STOCK OPTION PLAN AND AGREEMENT
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THIS INCENTIVE STOCK OPTION PLAN AND AGREEMENT (the "Agreement") dated as
of May 1, 1999 (the "Effective Date") by and between Xxxx Technology, Inc., with
its principal office at 0000 Xxxxxxxxxxxx Xxxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000
(the "Company"), and Xxxxxxx X. Xxxx (the "Optionee").
WHEREAS, the Company has adopted this Incentive Stock Option Plan and
Agreement which is designed to comply with Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code"), to permit grants of options to purchase
Common Shares of Xxxx Technology, Inc., to the Optionee; and
WHEREAS, the Optionee is an employee of the Company or one of its
subsidiaries and the Company desires to encourage the Optionee to remain in such
employ by granting the Optionee options to acquire shares of the Company thereby
increasing the Optionee's proprietary interest in the Company's success;
NOW, THEREFORE, in consideration of the premises and of the covenants and
agreements herein set forth, the parties hereby agree as follows:
1. Option Grant. Subject to approval by the shareholders of the Company
within one (1) year of the Effective Date and to the terms and conditions this
Agreement, the Company grants to the Optionee options (the "Options") to
purchase from the Company all or any part of an aggregate number of 690,071 of
the Company's Common Shares (the "Optioned Shares").
2. Vesting Schedule. On the first anniversary of the Effective Date,
options to purchase 230,024 Common Shares will vest and may be exercised in
accordance with the terms of this Agreement. On the second anniversary of the
Effective Date, options to purchase 230,024 Common Shares will vest and may be
exercised in accordance with the terms of this Agreement. On the third
anniversary of the Effective Date, the remaining options to purchase 230,023
Common Shares will vest and may be exercised in accordance with the terms of
this Agreement.
3. Purchase Price. The purchase price of the Optioned Shares which vest
on the first anniversary of the Effective Date shall be one dollar ($1.00) per
share, which price is not less than one hundred percent (100%) of the fair
market value of the Optioned Shares on the Effective Date. The purchase price of
the Optioned Shares which vest on the second anniversary of the Effective Date
shall be three dollars and fifty cents ($3.50) per share and the purchase price
of the Optioned Shares which vest on the third anniversary of the Effective Date
shall be seven dollars ($7.00) per share. If it is determined by a subsequent
Internal Revenue Service audit that the fair market value of the stock at the
time the Options were granted exceeded the value established under this
Agreement, then the price shall be adjusted to comply with the Internal Revenue
Service's determined fair market value, and such adjusted price shall apply to
any and all subsequent exercise of the Options.
4. Option Period. Subject to the terms and conditions of this Agreement,
the Optionee may purchase Optioned Shares pursuant to this Agreement at any
time, and from time to time, commencing on the date an Option vests and
continuing for a period of five (5) years from such date. All Options must be
exercised within five (5) years of vesting, and in accordance with this
Agreement, and if not exercised within such period, will expire.
5. Exercise of Options. The Optionee and only the Optionee (except in
the event of the Optionee's death) may exercise an Option by giving thirty (30)
days written notice of exercise, delivered or mailed by postpaid registered or
certified mail addressed to the Secretary of the Company at its principal
offices, on the attached form or in a document containing the information
specified in the attached form. Options must be exercised in increments of at
least five hundred (500), unless the Optionee holds fewer than five hundred
(500) Options, in which case all remaining Options held by the Optionee must be
exercised. After the death of the Optionee, an Option may be exercised by the
Optionee's personal representative or other person entitled by law to the
Optionee's rights under the Option to the extent that the Optionee was entitled
to exercise the Option at death for the period described in paragraph 6(b) of
this Agreement. The notice must be accompanied by payment in full of the Option
price in cash or by certified or cashier's check. The Company will cause the
certificate representing purchased shares to be delivered to the Optionee as
soon as practicable after payment in full of the exercise price.
6. Termination of Employment.
(a) If the Optionee ceases to be an employee of the Company or any of
its subsidiaries for any reason other than (i) death or (ii) disability, all
Options which have vested shall expire on the date which is the earlier of three
(3) months after termination and the expiration date of the Options.
(b) If the Optionee ceases to be an employee of the Company or any
subsidiary of the Company by reason of death, all Options which have vested
shall expire on their expiration date.
(c) If the Optionee ceases to be an employee of the Company or any
subsidiary of the Company by reason of disability within the meaning of Section
22(e)(3) of the Code, all Options which have vested shall expire on a date which
is the earlier of one (1) year following the date of disability and the
expiration date of the Options.
(d) In the event there is an involuntary (i.e. not as a result of
resignation or with the agreement of the Employee) termination of employment of
the Employee which is not (i) "for cause" as defined in the Employment Agreement
between the Employee and the Company dated as of May 1, 1999 or (ii) a result of
the death or disability of the Employee, all Options which have not vested,
shall vest upon such termination of employment. Except as otherwise provided in
this Agreement, Options which have not vested shall expire on the date of
termination of employment.
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7. Early Disposition. Disposition of the Optioned Shares prior to the
later of two (2) years from date of grant of the Options or one (1) year from
the date the Optioned Shares are transferred to the Optionee may be a
disqualifying disposition requiring the Optionee to recognize any gain on
disposition as compensation income.
8. Withholding Taxes. The Company shall have the right upon issuance of
any Optioned Shares to require the Optionee to remit to the Company an amount
sufficient to satisfy any Federal, state or local withholding tax requirements
prior to delivery of any certificate for Optioned Shares.
9. Maximum Value Per Optionee. The aggregate fair market value, as
determined at the time of grant, of the shares for which options are exercisable
for the first time by the Optionee in any one (1) calendar year pursuant to
options granted under this Agreement and any other plans of the Company or its
affiliates shall not exceed one hundred thousand dollars ($100,000). For
purposes of this provision, options are taken into account in the order in which
they were granted. If the fair market value of shares on the date of grant with
respect to which options are exercisable for the first time by the Optionee
exceeds such amount, then the options for the first one hundred thousand dollars
($100,000) worth of shares to become exercisable in such calendar year will be
incentive stock options and the options for amount in excess of one hundred
thousand dollars ($100,000) will be nonqualified stock options. In the event
that the Code or the regulations promulgated thereunder are amended after the
Effective Date to provide for a different limit on the fair market value of the
shares permitted to be subject to incentive stock options, such different limit
will be automatically incorporated herein and will apply to any options granted
after such date.
10. Transfer of the Options. The Options shall not be transferable by the
Optionee otherwise than by will or the laws of descent and distribution. Any
attempted transfer, assignment, pledge or other disposition or levy of
attachment or similar process not specifically permitted herein shall be null
and void and without effect.
11. Adjustment in the Event of Change of Stock. In the event of any
change in the outstanding stock of the Company by reason of stock dividend,
recapitalization, stock split, reverse stock split, reorganization, merger,
consolidation, split-up, change in capital or business structure without
consideration, and the like, the number and kind of shares which may be issued
under the Options and the purchase price per share thereof shall be
approximately adjusted consistent with such change subject to any required
action by the Board or shareholders of the Company and compliance with
applicable securities laws. Fractional shares will not be issued but will either
be replaced by a cash payment equal to the fair market value of such fraction of
a share or will be rounded up to the nearest whole share as determined by the
Board.
12. Corporate Transactions. In the event of (a) a dissolution or
liquidation of the Company, (b) a merger or consolidation in which the Company
is not the surviving corporation (other than a merger or consolidation with a
wholly-owned subsidiary, a reincorporation of the Company in a different
jurisdiction, or other transaction in which there is no substantial change in
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the shareholders of the Company or their relative stock holdings and the Options
are assumed, converted or replaced by the successor corporation, which
assumption will be binding on the Optionee), (c) a merger in which the Company
is the surviving corporation but after which the shareholders of the Company
immediately prior to such merger (other than any shareholder that merges, or
which owns or controls another corporation that merges, with the Company in such
merger) cease to own their shares or other equity interest in the Company, (d)
the sale of substantially all of the assets of the Company, or (e) the
acquisition, sale or transfer of more than 50% of the outstanding shares of the
Company by tender offer or similar transaction, the outstanding Options will
vest and will become exercisable in full prior to, or concurrent with, the
consummation of such event at such price and terms as if the Options had vested
as scheduled. If such options are not exercised prior to, or concurrent with,
the consummation of the corporate transaction, they shall terminate. If the
Options are not exercised and the successor corporation (if any) so agrees, the
Options may be assumed, converted or replaced by such successor corporation,
which assumption, conversion or replacement will be binding on the Optionee. In
the alternative, if the Options are not exercised, the successor corporation may
substitute equivalent options or provide substantially similar consideration to
the Optionee as was provided to shareholders (after taking into account the
existing provisions of the Options). Subject to any greater rights granted to
the Optionee under the foregoing provisions of this paragraph 12, in the event
of the occurrence of any transaction described in this paragraph 12, any
outstanding Options will be treated as provided in the applicable agreement or
plan of merger, consolidation, dissolution, liquidation or sale of assets.
13. Representations of the Optionee. The Optionee agrees and understands
that:
(a) the Optionee has asked questions and received all answers that
the Optionee considers pertinent to form a knowledgeable opinion about the
Options and the underlying Common Shares;
(b) the Optionee will not be deemed for any purpose to be a
shareholder of the Company with respect to any of the Optioned Shares, until
such time as, and except to the extent that, the Options have been exercised and
the exercise price for the Optioned Shares has been paid in full;
(c) the Optionee has no obligation to exercise the Options;
(d) the existence of the Options will not affect in any way the right
or power of the Company or its subsidiaries to make or authorize any or all
adjustments, recapitalizations, reorganizations or other changes in capital
structure or business, or any merger or consolidation of the Company or its
subsidiaries, or any issue of bonds, debentures, preferred or prior preference
stock ahead of or affecting the Common Shares or the rights thereof, or
dissolution or liquidation of the Company or its subsidiaries or any sale or
transfer of all or any part of their assets or business or any other corporate
act or proceeding, whether of a similar character or otherwise;
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(e) this Agreement does not confer any right with respect to
continuance of employment by the Company or its related corporations and this
Agreement will not interfere in any way with the right of the Optionee's
employer to terminate the Optionee's employment at any time subject to any
employment agreement between the Optionee and the Company; and
(f) notwithstanding anything to the contrary contained in this
Agreement, the Board in its discretion may delay issuance of shares upon
exercise of any Options for such time period as is necessary to enable the
Company to comply with any federal or state securities laws and certificates for
shares will be subject to such transfer orders, legends or other restrictions as
the Board may deem necessary or advisable.
14. Administration. This plan shall be administered by the Board which has
also approved the grant of the Option pursuant to this Agreement in advance of
issuance. No member of the Board shall be liable for any action taken, or
determination made, hereunder in good faith. The Board is authorized, subject to
the provisions of the Agreement, to establish such rules and regulations as they
may deem appropriate for the proper administration of this Agreement, and to
make such determinations under, and such interpretations of, and to take such
steps in connection with, this Agreement or the Options as they may deem
necessary or advisable.
15. Choice of Law. This Agreement shall be governed and interpreted by the
laws of the State of Tennessee.
16. Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the Options, and no change or modification
shall be valid unless made in writing and signed by the party against whom such
change or modification is sought to be enforced.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed
by its duly authorized officer, and the Optionee has executed this Agreement as
of the day and year first above written.
Xxxx Technology, Inc.
By: /s/
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Title:
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/s/
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Xxxxxxx X. Xxxx
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Exercise of Options
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The undersigned hereby irrevocably elects to exercise the right,
represented by an Incentive Stock Option Agreement, to purchase ____________
Common Shares and herewith tenders in payment for such shares cash or a
certified or official bank check payable to the order of Xxxx Technology, Inc.
in the amount of $______________. The undersigned requests that a certificate
for such shares be registered in the undersigned's name and that such
certificate be delivered to the undersigned at ___________________.
Dated:_________________________
_____________________________________
Xxxxxxx X. Xxxx
