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EXHIBIT 10.22
ATC COMMUNICATIONS GROUP, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT (this "Agreement"), dated as of ___________, 199__, is
made and entered into by and between ATC Communications Group, Inc., a Delaware
corporation (the "Corporation"), and ___________________ (the "Participant").
R E C I T A L S:
The Corporation has implemented the ATC Communications Group, Inc. 1996
Stock Option and Restricted Stock Plan (the "Plan"), which was adopted by the
Corporation's Board of Directors (the "Board") and will be submitted for
approval by the Corporation's shareholders, and which provides for the grant of
stock options and restricted stock to certain selected officers, directors and
key employees of the Corporation or its subsidiaries with respect to shares of
Common Stock, $.01 par value, of the Corporation (the "Common Stock").
[The Corporation and the Participant are parties to an Employment
Agreement dated as of _____________, 199__ (the "Employment Agreement").]
[Certain identified terms used herein have the same meaning they have in
the Employment Agreement.]
The stock options and restricted stock provided for under the Plan are
intended to comply with the requirements of Rule 16b-3 under the Securities
Exchange Act of 1934, as amended.
The committee appointed by the Board to administer the Plan (the
"Committee") has selected the Participant to participate in the Plan and has
awarded the non-qualified stock option described in this Agreement (the
"Option") to the Participant.
The parties hereto desire to evidence in writing the terms and
conditions of the Option.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements herein contained, and as an inducement to the
Participant to continue as an employee of the Corporation or its subsidiaries
and to promote the success of the business of the Corporation and its
subsidiaries, the parties hereby agree as follows:
1. Grant of Option. The Corporation hereby grants to the
Participant, upon the terms and subject to the conditions, limitations and
restrictions set forth in the Plan and in this Agreement, the Option to acquire
______ shares of Common Stock, at an exercise price per share of $_______,
effective as of the date of this Agreement (the "Award Date"). The Participant
hereby accepts the Option from the Corporation.
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2. Vesting. The shares of Common Stock subject to the Option shall
vest as follows:
DATE NUMBER OF SHARES
---- ----------------
_________, 199__ (date hereof) ______
_________, 199__ ______
_________, 199__ ______
Notwithstanding the foregoing, the Option shall immediately vest in full as to
all shares of Common Stock subject hereto upon any "Sale of the Corporation".
A "Sale of the Corporation" shall occur if the Corporation shall engage in a
merger, consolidation, recapitalization, reorganization or sale, lease or
transfer of all or substantially all of the Corporation's assets and the
Corporation or its stockholders or affiliates immediately before such
transaction shall beneficially own, immediately after or as a result of such
transaction, equity securities of the surviving or acquiring corporation or
such corporation's parent corporation possessing less than fifty-one percent
(51%) of the voting power of the surviving or acquiring corporation or such
corporation's parent corporation, provided that a Sale of the Corporation shall
not be deemed to occur upon any public offering or series of such offerings of
securities of the Corporation or its affiliates that results in any such change
in beneficial ownership.
3. Exercise. In order to exercise the Option with respect to any
vested portion, the Participant shall provide written notice to the Corporation
at its principal executive office. At the time of exercise, the Participant
shall pay to the Corporation the exercise price per share set forth in Section
1 times the number of vested shares as to which the Option is being exercised.
The Participant shall make such payment in (a) cash, (b) check, (c) at the
Corporation's option, by the delivery of shares of Common Stock having a Fair
Market Value (as defined in the Plan) on the date immediately preceding the
exercise date equal to the aggregate exercise price or (d) at the Committee's
option, by the delivery of any other consideration that the Committee
determines is consistent with the Plan and applicable law. If the Option is
exercised in full, the Participant shall surrender this Agreement to the
Corporation for cancellation. If the Option is exercised in part, the
Participant shall surrender this Agreement to the Corporation so that the
Corporation may make appropriate notation hereon or cancel this Agreement and
issue a new agreement representing the unexercised portion of the Option.
If the shares to be purchased are covered by an effective registration
statement under the Securities Act of 1933, as amended (the "Act"), the Option
may be exercised by a broker-dealer acting on behalf of the Participant if (a)
the broker-dealer has received from the Participant or the Corporation a fully-
and duly-endorsed agreement evidencing such option, together with instructions
signed by the Participant requesting the Corporation to deliver the shares of
Common Stock subject to such option to the broker-dealer on behalf of the
Participant and specifying the account into which such shares should be
deposited, (b) adequate provision has been made with respect to the payment of
any withholding taxes due upon such exercise, and (c) the broker-dealer and the
Participant have otherwise complied with Section 220.3(e)(4) of Regulation T,
12 CFR Part 220, or any successor provision.
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4. Who May Exercise. The Option shall be exercisable during the
lifetime of the Participant only by the Participant. To the extent exercisable
after the Participant's death, the Option shall be exercised only by the
Participant's representatives, executors, successors or beneficiaries.
5. Expiration of Option. The Option shall expire, and shall not be
exercisable with respect to any vested portion as to which the Option has not
been exercised, on the first to occur of: (a) the tenth anniversary of the
Award Date; or (b) thirty (30) days after the expiration of the "Term" [(as
defined in the Employment Agreement, or define here)] of employment under the
Employment Agreement; (c) 30 days after the voluntary resignation by the
Participant from employment by the Optionee; (d) six (6) months after any
termination of the Optionee's employment with the Company for any reason other
than "Cause" [(as defined in the Employment Agreement, or define here)],
excluding the circumstances described in Sections 5(b) and (d) of this
Agreement; or (e) twelve (12) months after the death of the Optionee; provided,
however, that if the Optionee is terminated for Cause [(as defined in the
Employment Agreement, or define here)], [or violates any of the covenants
contained in Sections ____ of the Employment Agreement,] the Option shall
automatically expire, and shall not be exercisable with respect to any vested
shares of Common Stock as to which the Option has not been exercised,
simultaneously with such termination. The Option shall expire, and shall not
be exercisable, with respect to any unvested portion, immediately upon the
termination of the Participant's employment with the Corporation for any
reason, including death.
6. Tax Withholding. Any provision of this Agreement to the contrary
notwithstanding, the Corporation may take such steps as it deems necessary or
desirable for the withholding of any taxes that it is required by law or
regulation of any governmental authority, federal, state or local, domestic or
foreign, to withhold in connection with any of the shares of Common Stock
subject hereto.
7. Dilution. The number of shares of Common Stock subject to the
Option and the exercise price therefor set forth in Section 1 shall be subject
to adjustment for any Dilutive Event. A "Dilutive Event" shall include any of
the following events that results in dilution to the shares of Common Stock
acquired or acquirable upon exercise of the Option: any increase or decrease
in the shares of Common Stock or any other capital stock of the Corporation or
any change or exchange of any such securities for a different number or kind of
securities, any of which results from one or more stock splits, reverse stock
splits, stock dividends or other corporate actions with a similar effect. A
"Dilutive Event" shall not include, however, among other things: (i) the
issuance or exercise of options granted pursuant to the Plan or pursuant to any
other stock-based compensation plan adopted by the Corporation's Board of
Directors; or (ii) any issuance of capital stock by the Corporation or any
issuance or grant to any person or entity of any right to subscribe for or to
purchase any capital stock or securities convertible into any capital stock of
the Corporation for consideration deemed adequate and appropriate by the Board
of Directors.
8. Transfer of Option. The Participant shall not, directly or
indirectly, sell, transfer, pledge, encumber or hypothecate ("Transfer") any
unvested portion of the Option or the rights
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and privileges pertaining thereto. In addition, the Participant shall not,
directly or indirectly, Transfer any vested portion of the Option or any shares
of Common Stock acquired upon exercise of the Option other than (i) with the
prior written consent of the Corporation, (ii) by will or the laws of descent
and distribution, (iii) with respect to shares of Common Stock acquired upon
exercise of the Option, pursuant to an effective registration statement filed
under the Act, or (iv) with respect to shares of Common Stock acquired upon
exercise of the Option, pursuant to an exemption from the registration
requirements of the Act. Any permitted transferee to whom the Participant
shall Transfer the Option pursuant to (i) or (ii) above shall agree to be bound
by this Agreement. Neither the Option nor the underlying shares of Common
Stock is liable for or subject to, in whole or in part, the debts, contracts,
liabilities or torts of the Participant, nor shall they be subject to
garnishment, attachment, execution, levy or other legal or equitable process.
9. Certain Legal Restrictions. The Corporation shall not be
obligated to sell or issue any shares of Common Stock upon the exercise of the
Option or otherwise unless the issuance and delivery of such shares shall
comply with all relevant provisions of law and other legal requirements
including, without limitation, any applicable federal or state securities laws
and the requirements of any stock exchange upon which shares of the Common
Stock may then be listed. The Corporation has filed a Registration Statement on
Form S-8 and agrees to use its best efforts to keep such Registration Statement
in effect thereafter for so long as the Option is outstanding or the shares of
Common Stock acquired on the exercise of the Option may be resold thereunder.
As a condition to the exercise of the Option or the sale by the Corporation of
any additional shares of Common Stock to the Participant, the Corporation may
require the Participant to make such representations and warranties as may be
reasonably necessary to assure compliance with applicable federal or state
securities laws. The Corporation shall not be liable for refusing to sell or
issue any shares if the Corporation cannot obtain authority from the
appropriate regulatory bodies deemed by the Corporation to be necessary to
lawfully sell or issue such shares. Except as provided above, the Corporation
shall have no obligation to the Participant, express or implied, to list,
register or otherwise qualify any of the Participant's shares of Common Stock.
The shares of Common Stock issued upon the exercise of the Option may not be
transferred except in accordance with applicable federal or state securities
laws.
10. Plan Incorporated. The Participant accepts the Option subject to
all the provisions of the Plan, which are incorporated into this Agreement,
including the provisions that authorize the Committee to administer and
interpret the Plan and which provide that the Committee's decisions,
determinations and interpretations with respect to the Plan are final and
conclusive on all persons affected thereby. Except as otherwise set forth in
this Agreement, terms defined in the Plan have the same meanings herein.
11. Miscellaneous.
(a) The Option is intended to be a non-qualified stock option
under applicable tax laws, and it is not to be characterized or treated as an
incentive stock option under such laws.
(b) The granting of the Option shall impose no obligation upon
the Participant to exercise the Option or any part thereof. Nothing contained
in this Agreement shall affect the
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right of the Corporation to terminate the Participant at any time, with or
without Cause [(as defined in the Employment Agreement)], or shall be deemed to
create any rights to employment on the part of the Participant.
(c) The rights and obligations arising under this Agreement
are not intended to and do not affect the employment relationship that
otherwise exists between the Corporation and the Participant, whether such
employment relationship is at will or defined by an employment contract.
[Moreover, this Agreement is not intended to and does not amend the Employment
Agreement between the Corporation and the Participant; to the extent there is a
conflict between this Agreement and the Employment Agreement, the Employment
Agreement shall govern and take priority.]
(d) Neither the Participant nor any person claiming under or
through the Participant shall be or shall have any of the rights or privileges
of a stockholder of the Corporation in respect of any of the shares issuable
upon the exercise of the Option herein unless and until certificates
representing such shares shall have been issued and delivered to the
Participant or such Participant's agent.
(e) Any notice to be given to the Corporation under the terms
of this Agreement or any delivery of the Option to the Corporation shall be
addressed to the Corporation at its principal executive offices, and any notice
to be given to the Participant shall be addressed to the Participant at the
address set forth beneath his or her signature hereto, or at such other address
for a party as such party may hereafter designate in writing to the other. Any
such notice shall be deemed to have been duly given if mailed, postage prepaid,
addressed as aforesaid.
(f) Subject to the limitations in this Agreement on the
transferability by the Participant of the Option and any shares of Common
Stock, this Agreement shall be binding upon and inure to the benefit of the
representatives, executors, successors or beneficiaries of the parties hereto.
(g) THE INTERPRETATION, PERFORMANCE AND ENFORCEMENT OF THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE AND THE UNITED
STATES, AS APPLICABLE, WITHOUT REFERENCE TO THE CONFLICT OF LAWS PROVISIONS
THEREOF.
(h) If any provision of this Agreement is declared or found to
be illegal, unenforceable or void, in whole or in part, then the parties shall
be relieved of all obligations arising under such provision, but only to the
extent that it is illegal, unenforceable or void, it being the intent and
agreement of the parties that this Agreement shall be deemed amended by
modifying such provision to the extent necessary to make it legal and
enforceable while preserving its intent or, if that is not possible, by
substituting therefor another provision that is legal and enforceable and
achieves the same objectives.
(i) All section titles and captions in this Agreement are for
convenience only, shall not be deemed part of this Agreement, and in no way
shall define, limit, extend or describe the scope or intent of any provisions
of this Agreement.
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(j) The parties shall execute all documents, provide all
information, and take or refrain from taking all actions as may be reasonably
necessary or appropriate to achieve the purposes of this Agreement.
(k) This Agreement constitutes the entire agreement among the
parties hereto pertaining to the subject matter hereof and supersedes all prior
agreements and understandings pertaining thereto.
(l) No failure by any party to insist upon the strict
performance of any covenant, duty, agreement or condition of this Agreement or
to exercise any right or remedy consequent upon a breach thereof shall
constitute waiver of any such breach or any other covenant, duty, agreement or
condition.
(m) This Agreement may be executed in counterparts, all of
which together shall constitute one agreement binding on all the parties
hereto, notwithstanding that all such parties are not signatories to the
original or the same counterpart.
(n) At any time and from time to time the Committee may
execute an instrument providing for modification, extension, or renewal of any
outstanding option, provided that no such modification, extension or renewal
shall impair the Option in any respect without the consent of the holder of the
Option. Except as provided in the preceding sentence, no supplement,
modification or amendment of this Agreement or waiver of any provision of this
Agreement shall be binding unless executed in writing by all parties to this
Agreement. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provision of this Agreement
(regardless of whether similar), nor shall any such waiver constitute a
continuing waiver unless otherwise expressly provided.
(o) In addition to all other rights or remedies available at
law or in equity, the Corporation shall be entitled to injunctive and other
equitable relief to prevent or enjoin any violation of the provisions of this
Agreement.
(p) The Participant's spouse joins this Agreement for the
purpose of agreeing to and accepting the terms of this Agreement and to bind
any community property interest he or she has or may have in the Option, any
vested portion or any unvested portion of the Option, any shares of Common
Stock acquired upon exercise of the Option and any other shares of Common Stock
held by the Participant.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
CORPORATION:
ATC COMMUNICATIONS GROUP, INC.
By:
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Name:
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Title:
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PARTICIPANT:
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Name:
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Address:
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PARTICIPANT'S SPOUSE:
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Name:
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