THE SHARES ISSUABLE PURSUANT TO THIS AGREEMENT ARE SUBJECT TO THE PROVISIONS OF THE COMPANY’S 2005 EQUITY-BASED COMPENSATION PLAN AND THIS AGREEMENT IS ENTERED INTO PURSUANT THERETO. A COPY OF SUCH PLAN IS AVAILABLE UPON WRITTEN REQUEST TO THE COMPANY...
EXHIBIT
10.6.1
THE
SHARES ISSUABLE PURSUANT TO THIS AGREEMENT ARE SUBJECT TO THE PROVISIONS OF
THE
COMPANY’S 2005 EQUITY-BASED COMPENSATION PLAN AND THIS AGREEMENT IS ENTERED INTO
PURSUANT THERETO. A COPY OF SUCH PLAN IS AVAILABLE UPON WRITTEN REQUEST TO
THE
COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICES.
X.XXXXXXX
CORPORATION
2005
EQUITY-BASED COMPENSATION PLAN
INCENTIVE
STOCK OPTION AGREEMENT
_______________
Re: Grant
of Stock Option
Dear
Xxxx:
The
board
of directors (the “Board”)
of
x.Xxxxxxx Corporation (the “Company”)
has
adopted the Company’s 2005 Equity-Based Compensation Plan (the “Plan”)
for
certain employees and service providers of the Company and its Subsidiaries.
A
copy of the Plan is being furnished to you concurrently with the execution
of
this Incentive Stock Option Agreement (the “Option
Agreement”)
and
shall be deemed a part of this Option Agreement as if fully set forth herein.
Unless the context otherwise requires, all terms defined in the Plan shall
have
the same meaning when used herein.
1. The
Grant. Subject to the conditions set forth below, the Company hereby grants
to
you, effective as of _____________
(“Grant
Date”),
as a
matter of separate inducement and not in lieu of any salary or other
compensation for your services, the right and option to purchase (the
“Option”),
in
accordance with the terms and conditions set forth herein and in the Plan,
an
aggregate of ________
shares
of Stock of the Company (the “Option
Shares”),
at
the Exercise Price (as hereinafter defined). As used herein, the term
“Exercise
Price”
shall
mean a price equal to $______
per
share, subject to the adjustments and limitations set forth herein and in the
Plan. In no event shall the exercise price exceed the Fair Market Value of
a
share of Stock as of the Grant Date. The Option granted hereunder is intended
to
constitute an Option which is designed pursuant to section 422 of the Internal
Revenue Code of 1986. You should consult with your tax advisor concerning the
proper reporting of any federal or state tax liability that may arise as a
result of the grant or exercise of the Option.
2. Exercise.
(a) For
purposes of this Option Agreement, the Option Shares shall be deemed
“Nonvested
Shares”
unless
and until they have become “Vested
Shares.”
The
Option shall in all events terminate at the close of business on the
__________ anniversary of the date of
this
Option Agreement. Subject to other terms and conditions set forth herein, the
Option may be exercised in cumulative installments as follows:
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On
or After Each of the Following Vesting Dates
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Cumulative
Percentage of Shares as to Which Option is
Exercisable
|
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Option
Shares shall constitute Vested Shares once they are exercisable.
(b) Subject
to the relevant provisions and limitations contained herein and in the Plan,
you
may exercise the Option to purchase all or a portion of the applicable number
of
Vested Shares at any time prior to the termination of the Option pursuant to
this Option Agreement. In no event shall you be entitled to exercise the Option
for any Nonvested Shares or for a fraction of a Vested Share.
(c) Notwithstanding
any other provision of this Agreement as of the business day immediately
preceding a Change in Control you shall become entitled to exercise the Option
with respect to all the Option Shares.
(d) Any
exercise by you of the Option shall be in writing addressed to the Secretary
of
the Company at its principal place of business (a copy of the form of exercise
to be used will be available upon written request to the
Secretary).
(e) Payment
of the Exercise Price may be made, at your election, (i) in cash, by certified
or official bank check or by wire transfer of immediately available funds,
(ii)
by delivery to the Company of a number of shares of Stock having a fair market
value as of the date of exercise equal to the Exercise Price, or (iii) by net
issue exercise, pursuant to which the Company will issue to you a number of
Option Shares as to which the Option is exercised, less a number of shares
with
a fair market value as of the date of exercise, as determined in good faith
by
the Committee, equal to the Exercise Price.
The
terms
and provisions of the employment agreement, if any, between you and the Company
or any Subsidiary (the “Employment
Agreement”)
that
relate to or affect the Option are incorporated herein by reference.
Notwithstanding the foregoing provisions of this Section 2, in the event of
any
conflict or inconsistency between the terms and conditions of this Section
2 and
the terms and conditions of the Employment Agreement, the terms and conditions
of the Employment Agreement shall be controlling.
3. Termination
of Employment.
(a) .
In the
event that you shall cease to be employed by the Company or any Subsidiary
or
parent thereof on a full-time basis for any reason other than as a result of
your death or “disability” (within the meaning of section 22(e)(3) of the Code),
the Option may only be exercised within one
month
after
the date on which you ceased to be so employed, and only to the same extent
that
you were entitled to exercise the Option on the date on which you ceased to
be
so employed and had not previously done so.
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(b) In
the
event that you shall cease to be employed by the Company or any Subsidiary
or
parent thereof on a full-time basis by reason of “disability” (within the
meaning of section 22(e)(3) of the Code), the Option may only be exercised
within one year after the date you ceased to be so employed, and only to the
same extent that you were entitled to exercise the Option on the date on which
you ceased to be so employed by reason of such disability and had not previously
done so.
(c) In
the
event that you shall die while employed by the Company or any Subsidiary or
parent thereof (or within a period of one month after ceasing to be employed
by
the Company or any Subsidiary or parent thereof for any reason other than a
“disability” (within the meaning of section 22(e)(3) of the Code) or within a
period of one year after ceasing to be employed by the Company or any Subsidiary
or parent thereof by reason of such “disability”), the Option may only be
exercised within one year after your death. In such event, the Option may be
exercised during such one-year period by the executor or administrator of your
estate or by any person who shall have acquired the Option through bequest
or
inheritance, but only to the same extent that you were entitled to exercise
the
Option immediately prior to the time of your death and you had not previously
done so.
(d) If
you
are on leave of absence for any reason, the Company may, in its sole discretion,
determine that you will be considered to still be in the employ of or providing
services for the Company, provided that rights to the Option Shares will be
limited to the extent to which those rights were earned or vested when the
leave
or absence began.
Notwithstanding
the foregoing provisions of this Section 3, in the event of any conflict or
inconsistency between the terms and conditions of this Section 3 and the terms
and conditions of the Employment Agreement, the terms and conditions of the
Employment Agreement shall be controlling.
4. Transferability.
The Option may not be transferred by your (other than by will or the laws of
descent and distribution) and may be exercised during your lifetime only by
you.
5. Withholding
Taxes. The Committee may, in its discretion, require you to pay to the Company
(or the Company’s Subsidiary if you are an employee of a Subsidiary of the
Company), at the time of the exercise of an Option or thereafter, the amount
that the Committee deems necessary to satisfy the Company’s or its Subsidiary’s
current or future obligation to withhold federal, state or local income or
other
taxes that you incur by exercising an Option. In connection with the exercise
of
an Option requiring tax withholding, you may (a) direct the Company to withhold
from the shares of Stock to be issued to you the number of shares necessary
to
satisfy the Company’s obligation to withhold taxes, that determination to be
based on the shares’ Fair Market Value as of the date of exercise; (b) deliver
to the Company sufficient shares of Stock (based upon the Fair Market Value
as
of the date of such delivery) to satisfy the Company’s tax withholding
obligation, which tax withholding obligation is based on the shares’ Fair Market
Value as of the later of the date of exercise or the date as of which the shares
of Stock issued in connection with such exercise become includable in your
income; or (c) deliver sufficient cash to the Company to satisfy its tax
withholding obligations. If you elect to use such a Stock withholding feature
you must make the election at the time and in the manner that the Committee
prescribes. The Committee may, at its sole option, deny your request to satisfy
withholding obligations through Stock instead of cash. In the event the
Committee subsequently determines that the aggregate Fair Market Value (as
determined above) of any shares of Stock withheld or delivered as payment of
any
tax withholding obligation is insufficient to discharge that tax withholding
obligation, then you shall pay to the Company, immediately upon the Committee’s
request, the amount of that deficiency in the form of payment requested by
the
Committee.
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6. Adjustments.
The terms of an Option shall be subject to adjustment from time to time, in
accordance with the following provisions:
(a) If
at any
time, or from time to time, the Company shall subdivide as a whole (by
reclassification, by a Stock split, by the issuance of a distribution on Stock
payable in Stock or otherwise) the number of shares of Stock then outstanding
into a greater number of shares of Stock, then (i) the number of shares of
Stock
(or other kind of securities) that may be acquired under the Option shall be
increased proportionately and (ii) the price (including Exercise Price) for
each
share of Stock (or other kind of shares or securities) subject to the then
outstanding Option shall be reduced proportionately, without changing the
aggregate purchase price or value of the outstanding Option.
(b) If
at any
time, or from time to time, the Company shall consolidate as a whole (by
reclassification, reverse Stock split or otherwise) the number of shares of
Stock then outstanding into a lesser number of shares of Stock, (i) the number
of shares of Stock (or other kind of shares or securities) that may be acquired
under the Option shall be decreased proportionately; and (ii) the price
(including Exercise Price) for each share of Stock (or other kind of shares
or
securities) subject to the Option shall be increased proportionately, without
changing the aggregate purchase price or value of the outstanding
Option.
(c) Whenever
the number of shares of Stock subject to the Option and the price for each
share
of Stock subject to the Option are required to be adjusted as provided in this
Section 6, the Committee shall promptly prepare a notice setting forth, in
reasonable detail, the event requiring adjustment, the amount of the adjustment,
the method by which such adjustment was calculated, and the change in price
and
the number of shares of Stock, other securities, cash, or property purchasable
subject to the Option after giving effect to the adjustments. The Committee
shall promptly give you such a notice.
(d) Adjustments
under this Section 6 shall be made by the Committee, and its determination
as to
what adjustments shall be made and the extent thereof shall be final, binding,
and conclusive. No fractional interest shall be issued under the Plan on account
of any such adjustments.
7. Notice.
All notices required or permitted under this Option Agreement must be in writing
and personally delivered or sent by mail and shall be deemed to be delivered
on
the date on which it is actually received by the person to whom it is properly
addressed. A notice shall be effective when actually received by the Company
in
writing and in conformance with this Option Agreement and the Plan. Until
changed in accordance herewith, the Company and the optionee specify their
respective addresses as set forth below:
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Company:
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x.Xxxxxxx
Corporation
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|
00000
Xxxxxxx Xx. Xx. X.
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|
Xxx
Xxxxx, XX 00000
|
|
Attention:
Xxxxxx Xxxxxx
|
|
Optionee:
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_________________
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| __________________________________ |
| __________________________________ |
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8. Information
Confidential. As partial consideration for the granting of this Option, you
agree that you will keep confidential all information and knowledge that you
have relating to the manner and amount of your participation in the Plan;
provided, however, that such information may be disclosed as required by law
and
may be given in confidence to your spouse, tax and financial advisors, or a
financial institution to the extent that such information is necessary to obtain
a loan.
9. Non-Competition;
Non-Solicitation.
(a) During
your employment by the Company, you will have access to and become acquainted
with Confidential Information of the Company (“Confidential
Information”
includes, but is not limited to, sales materials, technical information,
records, processes and compilations of information, specifications and
information concerning customers or vendors, customer lists, and information
regarding methods of doing business, but it shall not include information that
is generally known to other persons or entities who can obtain economic value
from its disclosure or use. You agree and acknowledge that the Confidential
Information has been developed or acquired by the Company through the
expenditure of substantial time, effort and money, and that it provides the
Company with an advantage over competitors who do not know or use such
Confidential Information.). Accordingly, in consideration for having access
to
such Confidential Information (and in order to protect its value to the
Company), and in consideration for your participation in the Plan, you agree
that during the Term of Non-Competition (as defined below) or the Term of
Non-Solicitation (as defined below), you will not directly or indirectly
disclose or use for any reason whatsoever any Confidential Information obtained
by reason of employment with the Company or any predecessor, except as required
to conduct the business of the Company. The Term of Non-Competition (herein
so
called) and the Term of Non-Solicitation (herein so called) shall be for a
term
beginning on the date hereof and continuing until the one year anniversary
of
the date of termination.
(b) You
acknowledge and agree that the nature of the Confidential Information to which
you will have access during your employment by the Company would make it
difficult, if not impossible, for you to perform in a similar capacity for
a
Competing Business (as defined below) without disclosing or utilizing the
Confidential Information. You acknowledge and agree that the Company’s business
is conducted throughout the country in a highly-competitive market. Accordingly,
you agree that you will not (other than for the benefit of the Company pursuant
to this Agreement) directly or indirectly, individually or as an officer,
director, employee, shareholder, consultant, contractor, partner, joint
venturer, agent, equity owner or in any capacity whatsoever (i) during the
term
of Non-Competition, engage in the business of providing management and
administrative services to any competitors or in any other business activity
that the Company is conducting, or is intending to conduct, on your date of
termination (a “Competing
Business”),
or
(ii) during the Term of Non-Solicitation, (A) hire, attempt to hire, or contact
or solicit with respect to hiring any employee of the Company, or (B) solicit,
divert or take away any customers or customer leads (as of your date of
termination) of the Company.
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(c) During
the term of Non-Competition, you will not use your access to, knowledge of,
or
application of Confidential Information to perform any duty for any Competing
Business; it being understood and agreed to that this Section 9(c) shall be
in
addition to and not be construed as a limitation upon the covenants in Section
9(b) hereof.
(d) You
acknowledge that the geographic boundaries, scope of prohibited activities,
and
time duration of the preceding paragraphs are reasonable in nature and are
no
broader than are necessary to maintain the confidentiality and the goodwill
of
the Company and the confidentiality of its Confidential Information and to
protect the other legitimate business interests of the Company.
(e) If
any
court determines that any portion of this Section 9 is invalid or unenforceable,
the remainder of this Section 9 shall not thereby be affected and shall be
given
full effect without regard to the invalid provisions. If any court construes
any
of the provisions of this Section 9, or any part thereof, to be unreasonable
because of the duration or scope of such provision, such court shall have the
power to reduce the duration or scope of such provision and to enforce such
provision as so reduced.
(f) As
used
in this Section 9, “Company”
shall
include the Company and any of its affiliates.
10. Arbitration.
The Company and you agree to the resolution by binding arbitration of all
claims, demands, causes of action, disputes, controversies or other matters
in
question (“claims”),
whether or not arising out of this Option Agreement or your employment (or
its
termination), whether sounding in contract, tort or otherwise and whether
provided by statute or common law, that the Company may have against you or
that
you may have against the Company or its parents, Subsidiaries and affiliates,
and each of the foregoing entities’ respective officers, directors, employees or
agents in their capacity as such or otherwise; except that this agreement to
arbitrate shall not limit the Company’s right to seek equitable relief,
including injunctive relief and specific performance, and damages in a court
of
competent jurisdiction for an alleged breach of Sections 8 and 9 of this Option
Agreement. Claims covered by this agreement to arbitrate also include claims
by
you for breach of this Option Agreement, wrongful termination, discrimination
(based on age, race, sex, disability, national origin, religion or any other
factor) and retaliation. In the event of any such action by you against the
Company, it is expressly agreed that the only damages to which you shall be
entitled are lost compensation and benefits. The Company and you agree that
any
arbitration shall be in accordance with the Federal Arbitration Act
(“FAA”)
and,
to the extent an issue is not addressed by the FAA, with the then-current
National Rules for the Resolution of Employment Disputes of the American
Arbitration Association (“AAA”)
or
such other rules of the AAA as applicable to the claims being arbitrated. If
a
party refuses to honor its obligations under this agreement to arbitrate, the
other party may compel arbitration in either federal or state court. The
arbitrator shall apply the substantive law of the State of Delaware (excluding
Delaware’s choice-of-law principles that might call for the application of some
other state’s law), or federal law, or both as applicable to the claims
asserted. The arbitrator shall have exclusive authority to resolve any dispute
relating to the interpretation, applicability, enforceability or formation
of
this agreement to arbitrate, including any claim that all or part of this Option
Agreement is void or voidable and any claim that an issue is not subject to
arbitration. The parties agree that venue for arbitration will be in Dallas,
Texas, and that any arbitration commenced in any other venue will be transferred
to Dallas, Texas upon the written request of any party to this Option Agreement.
In the event that an arbitration is actually conducted pursuant to this Section
10, the party in whose favor the arbitrator renders the award shall be entitled
to have and recover from the other party all costs and expenses incurred,
including reasonable attorneys’ fees, expert witness fees, and costs actually
incurred. Any and all of the arbitrator’s orders, decisions and awards may be
enforceable in, and judgment upon any award rendered by the arbitrator may
be
confirmed and entered by, any federal or state court having jurisdiction. All
proceedings conducted pursuant to this agreement to arbitrate, including any
order, decision or award of the arbitrator, shall be kept confidential by all
parties. YOU
ACKNOWLEDGE THAT, BY SIGNING THIS OPTION AGREEMENT, YOU ARE WAIVING ANY RIGHT
THAT YOU MAY HAVE TO A JURY TRIAL OR A COURT TRIAL OF ANY EMPLOYMENT-RELATED
CLAIM ALLEGED BY YOU.
6
11. Furnish
Information. You agree to furnish to the Company all information requested
by
the Company to enable it to comply with any reporting or other requirement
imposed upon the Company by or under any applicable statute or
regulation.
12. Company
Records. Records of the Company or its Subsidiaries regarding your period of
employment, termination of employment and the reason therefor, leaves of
absence, re-employment, and other matters shall be conclusive for all purposes
hereunder.
13. Successors.
This Agreement shall be binding upon you, your legal representatives, heirs,
legatees and distributees, and upon the Company, its successors and
assigns.
14. Headings.
The titles and headings of paragraphs are included for convenience of reference
only and are not to be considered in construction of the provisions
hereof.
15. Governing
Law. All questions arising with respect to the provisions of this Agreement
shall be determined by application of the laws of the State of Delaware except
to the extent Delaware law is preempted by federal law. The obligation of the
Company to sell and deliver Stock hereunder is subject to applicable laws and
to
the approval of any governmental authority required in connection with the
authorization, issuance, sale, or delivery of such Stock.
7
16. Word
Usage. Words used in the masculine shall apply to the feminine where applicable,
and wherever the context of this Agreement dictates, the plural shall be read
as
the singular and the singular as the plural.
17. Miscellaneous.
(a) This
Option Agreement is subject to all the terms, conditions, limitations and
restrictions contained in the Plan. In the event of any conflict or
inconsistency between the terms hereof and the terms of the Plan, the terms
of
the Plan shall be controlling.
(b) This
Option Agreement is not a contract of employment and the terms of your
employment shall not be affected by, or construed to be affected by, this Option
Agreement, except to the extent specifically provided herein. Nothing herein
shall impose, or be construed as imposing, any obligation (i) on the part of
the
Company or any Subsidiary to continue your employment, or (ii) on your part
to
remain in the employ of the Company or any Subsidiary.
(c) This
Option Agreement may be amended as provided in Section 10(c) of the
Plan.
(d) You
represent and warrant that you understand the Federal, state and local income
tax consequences of the granting of the Option to you, the acquisition of rights
to exercise the Option with respect to any Option Shares, the exercise of the
Option and purchase of Option Shares, and the subsequent sale or other
disposition of any Option Shares.
[Remainder
of page intentionally left blank]
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Please
indicate your acceptance of all the terms and conditions of the Option and
the
Plan by signing and returning a copy of this Option Agreement.
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x.Xxxxxxx
Corporation
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| |
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| By: | ||
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Name: W.A.
Xxxxxxxx
Title: President
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||
ACCEPTED:
__________________________________
Signature
of Optionee
__________________________________
Name
of
Optionee (Please Print)
Date:
_________________, ___________
9
