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EXHIBIT 10.68
CONNECTIVITY TECHNOLOGIES INC.
Agreement Relating to Nonqualified Stock Options
Pursuant to the _____ Stock Incentive Plan
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Option granted _______, 199_ (hereinafter referred to as the "Date of
Grant"), by CONNECTIVITY TECHNOLOGIES INC. (the "Corporation") to
__________________ (the "Grantee"):
1. DEFINITIONS. The following terms, as used herein, shall have the
meanings set forth below:
(a) "Cause" shall mean by reason of any of the following: (1) proven or
admitted: (i) embezzlement, or (ii) material dishonest misuse of Corporation
funds or assets; (2) an admitted or proven act constituting a felony or
misdemeanor (other than minor offenses such as traffic violations) or conviction
for such act; (3) deliberate and unwarranted disclosure of Corporation
confidential information; (4) violation of any non-competition or
confidentiality covenants contained in any agreement between the Grantee and the
Corporation or any of its Subsidiaries; (5) continued conduct materially adverse
to the interests of the Corporation which does not cease within thirty (30) days
of written notice from an officer of the Corporation; (6) repeated material
failure by the Grantee, after written warning by an officer of the Corporation,
to perform the duties of his employment (including without limitation material
failure to follow or comply with the reasonable and lawful directives of an
officer of the Corporation); or (7) breach of any statutory of common law
fiduciary duty of loyalty to the Corporation which is not cured without thirty
(30) days of written notice from an officer of the Corporation.
(b) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(c) "Committee" shall mean the committee established by the Board of
Directors of the Corporation pursuant to the Plan to administer the Plan.
(d) "Fair Market Value" shall have the meaning set forth in the Plan.
(e) "Incentive Stock Option" shall mean an option that is intended to
qualify for special federal income tax treatment under Section 421 and 422 of
the Code.
(f) "Nonqualified Stock Option" shall mean an option that is not an
Incentive Stock Option.
(g) "Notice" shall have the meaning set forth in Section 4(c) hereof.
(h) "Option" shall have the meaning set forth in Section 2 hereof.
(i) "Option Period" shall have the meaning set forth in Section 4(a)
hereof.
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(j) "Option Price" shall have the meaning set forth in Section 3
hereof.
(k) "Plan" shall mean the Corporation's ____ Stock Incentive Plan.
(l) "Securities Act" shall mean the Securities Act of 1933, as amended.
(m) "Shares" shall mean shares of the Common Stock, par value $0.04 per
share, of the Corporation.
(n) "Subsidiary" shall mean any direct or indirect majority-owned
subsidiary of the Corporation.
2. THE OPTION.
(a) The Corporation hereby grants to the Grantee, effective on the Date
of Grant, a stock option (the "Option") to purchase, on the terms and conditions
herein set forth, up to ______ of the Corporation's fully paid, non-assessable
Shares at the option exercise price set forth in Section 3 below.
(b) The Option is granted pursuant to the Plan and is subject in all
respects to the Plan. A copy of the Plan is delivered herewith by the
Corporation and receipt thereof is acknowledged by the Grantee. The Option and
this Option Agreement are subject in all respects to the terms and conditions of
the Plan, which terms and conditions are incorporated herein by reference and
which the Grantee is by acceptance of the Option deemed to accept.
(c) The Option is a Nonqualified Stock Option.
3. THE PURCHASE PRICE. The purchase price of the Shares shall be $____ per
share, the Fair Market Value on the Date of Grant (the "Option Price").
4. EXERCISE OF OPTION.
(a) Except as otherwise provided in the Plan and this Option Agreement,
the Option is exercisable over a period of ten years from the Date of Grant (the
"Option Period") in accordance with the following schedule: from the first
anniversary of the Date of Grant to the end of the Option Period, one-third of
the Shares covered by the Option shall be exercisable; from the second
anniversary of the Date of Grant to the end of the Option Period, an additional
third of the Shares covered by the Option shall be exercisable (for an aggregate
of two-thirds of the Shares covered by the Option); and from the third
anniversary of the Date of Grant to the end of the Option Period, the final
third of the Shares covered by the Option shall be exercisable (for an aggregate
of all the Shares covered by the Option). Each portion of the Option that is
exercisable pursuant to the foregoing schedule is hereinafter referred to as a
"Vested Portion".
Except as otherwise provided herein, the Option may be exercised from
time to time during the Option Period as to the Vested Portion of this Option,
or any lesser amount thereof, as long as the Grantee performs services as an
officer, director, employee or consultant for the Corporation or any of its
Subsidiaries or, in the discretion of the Corporation's Board of Directors,
after the Grantee ceases to be an officer, director, employee or consultant for
the
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Corporation or any of its Subsidiaries, if the Grantee continues to provide
services which may be beneficial to the Corporation. If the Grantee's services
to the Corporation or any Subsidiary are terminated for any reason other than
(i) the Grantee's death or disability, (ii) the Grantee's termination for Cause
or (iii) Grantee's resignation from his positions with the Corporation, then the
Vested Portion of the Option as of the date of such termination may be exercised
during the period of ninety (90) days commencing on the date of such
termination, so long as the Option Period has not expired. If the Grantee shall
die or become disabled within the meaning of Section 22(e)(3) of the Code while
still performing such services for the Corporation or any of its Subsidiaries,
the Vested Portion of the Option as of the date of the Grantee's death or
disability may be exercised during the period commencing on the date of the
Grantee's death or the date he or she first becomes disabled, as the case may
be, and ending on the earlier of the first anniversary of such date and the
expiration of the Option Period, after which period this Option shall expire and
shall cease to be exercisable. In the event of the death of the Grantee, this
Option may be exercised by the person or persons entitled to do so under the
Grantee's will (a "legatee"), or, if the Grantee shall fail to make testamentary
disposition of this Option, or shall die intestate, by the Grantee's legal
representative (a "legal representative"). In the event that (i) the Grantee's
services to the Corporation or any Subsidiary are terminated for Cause or (ii)
the Grantee resigns from his positions with the Corporation (each, a "Cessation
Date"), then this Option shall expire on the Cessation Date and shall not be
exercisable thereafter.
(b) If this Option shall extend to 100 or more Shares, then this Option
may not be exercised for less than 100 Shares at any one time, and if this
Option shall extend to less than 100 Shares, then this Option must be exercised
for all such Shares at one time.
(c) Not less than five days nor more than thirty days prior to the date
upon which all or any portion of the Option is to be exercised, the person
entitled to exercise the Option shall deliver to the Corporation written notice
in substantially the form attached as an Exhibit hereto (the "Notice") of his
election to exercise all or a part of the Option, which Notice shall specify the
date for the exercise of the Option and the number of Shares in respect of which
the Option is to be exercised. The date specified in the Notice shall be a
business day of the Corporation.
(d) On the date specified in the Notice, the person entitled to
exercise the Option shall pay to the Corporation the Option Price of the Shares
in respect of which the Option is exercised and the amount of any applicable
Federal and/or state withholding tax or employment tax. The Option Price shall
be paid in full at the time of purchase, (i) in cash or by certified check or
(ii) with shares of the Common Stock of the Corporation which have been owned by
the Grantee for at least six months prior to the exercise of the Option. The
value of any shares of Common Stock delivered by the Grantee in payment of the
Option Price shall be the Fair Market Value of such shares. If the Option is
exercised in accordance with the provisions of the Plan and this Option
Agreement, the Corporation shall deliver to such person certificates
representing the number of Shares in respect of which the Option is being
exercised which Shares or other securities shall be registered in his or her
name.
(e) This Option is not exercisable after the expiration of ten years
from the Date of Grant.
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(f) Notwithstanding the provisions of subsection 4(a), in the event
that at any time during the term hereof: (i) the Corporation's subsidiary,
Connectivity Products Incorporated, sells or otherwise disposes of all or
substantially all of its assets, or (ii) there is a change in control of the
Corporation such that a majority of the outstanding voting capital stock of the
Corporation is owned by a person or entity or "group" (as defined in Section
13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"))
that is not on the date hereof a holder of 5% or more of the outstanding shares
of the Corporation's common stock, or (iii) the Corporation is merged into or
consolidated with any other person (other than a direct or indirect subsidiary
of or corporation or other entity controlled by the Corporation) or any other
person (other than a direct or indirect subsidiary of or corporation or other
entity controlled by the Corporation) is merged into or consolidated with the
Corporation, or (iv) the Corporation sells or otherwise disposes of all or
substantially all of its assets, provided that a sale of the Corporation's stock
of Connectivity Products Incorporated shall not be deemed a sale of
substantially all of the Corporation's assets or (v) the Corporation is
liquidated or dissolved, then in any such event, the Option shall become
immediately exercisable at the election of the Grantee as to all or any part of
the Shares not theretofore issued and sold hereunder. The Corporation shall
provide the Grantee with at least 30 days' notice prior to the consummation of
any of the events referred to in the preceding sentence, during which period the
Grantee may so exercise the Option. If not so exercised, this Option shall
expire and terminate at the end of such 30-day period.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF GRANTEE.
(a) The Grantee represents and warrants that he or she is acquiring
this Option and, in the event this Option is exercised, the Shares (unless the
Shares are subject to a then effective registration statement under the
Securities Act), for investment, for his or her own account and not with a view
to the distribution thereof, and that he or she has no present intention of
disposing of this Option or the Shares (unless the Shares are subject to a then
effective registration statement under the Securities Act) or any interest
therein or sharing ownership thereof with any other person or entity.
(b) The Grantee agrees that he or she will not offer, sell,
hypothecate, transfer or otherwise dispose of any of the Shares unless either:
(i) A registration statement covering the Shares which are to
be so offered has been filed with the Securities and Exchange
Commission (the "Commission") pursuant to the Securities Act and such
sale, transfer or other disposition is accompanied by a prospectus
relating to a registration statement which is in effect under the
Securities Act covering the Shares which are to be sold, transferred or
otherwise disposed of and meeting the requirements of Section 10 of the
Securities Act; or
(ii) Counsel satisfactory to the Corporation renders a
reasoned opinion in writing and addressed to the Corporation,
satisfactory in form and substance to the Corporation and its counsel,
that in the opinion of such counsel such proposed sale, offer, transfer
or other disposition of the Shares is exempt from the provisions of
Section 5 of the Securities Act in view of the circumstances of such
proposed offer, sale, transfer or other disposition.
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(c) The Grantee acknowledges that (i) the Shares and this Option
constitute "securities" under the Securities Act and/or the Exchange Act, and/or
the Rules and Regulations promulgated under said acts; (ii) the Shares may not
be transferred until such Shares are subsequently registered under the
Securities Act or an exemption from such registration is available; and (iii)
the Corporation is not under any obligation with respect to the registration of
the Shares.
(d) The Grantee acknowledges and agrees that the certificate or
certificates representing the Shares shall have an appropriate legend referring
to the terms of this Option.
(e) The Grantee acknowledges and agrees that he or she, or his or her
legatee or legal representative, as the case may be and as defined above, may be
required to make an appropriate representation at the time of any exercise of
this Option in form and substance similar to the representations contained
herein, relating to the Shares then being purchased.
(f) The Grantee acknowledges that, in the event he or she ceases to
perform services for the Corporation or its Subsidiaries, his or her rights to
exercise this Option are restricted as set forth in Section 4(a) above.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE CORPORATION.
(a) The Corporation represents and warrants that the Option has been
duly granted by the Committee.
(b) The Corporation represents and warrants that the Shares will be
reserved for issuance upon the exercise of the Option.
7. SUCCESSORS AND ASSIGNS. This Option Agreement shall be binding upon and
shall inure to the benefit of any successor or assign of the Corporation and, to
the extent herein provided, shall be binding upon and inure to the benefit of
the Grantee's legatee or legal representative, as defined above.
8. ADJUSTMENT OF OPTIONS.
(a) The number of Shares issuable upon exercise of this Option, or the
amount and kind of other securities issuable in addition thereto or in lieu
thereof upon the occurrence of the events specified in Section 1.5 of the Plan,
shall be determined and subject to adjustment, as the case may be, in accordance
with the procedures therein specified.
(b) Fractional shares resulting from any adjustment in options pursuant
to this Section may be settled in cash or otherwise as the Committee shall
determine. Notice of any adjustment in this Option shall be given by the
Corporation to the holder of this Option and such adjustment (whether or not
such notice is given) shall be effective and binding for all purposes of the
Plan.
9. EXERCISE AND TRANSFERABILITY OF OPTION. During the lifetime of the
Grantee, this Option is exercisable only by him or her and shall not be
assignable or transferable by him or her and no other person shall acquire any
rights therein. If the Grantee, while still employed by the
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Corporation or any of its Subsidiaries, shall die within the Option Period, his
or her legatee or legal representative shall have the rights provided in Section
4(a) above.
10. GENERAL PROVISIONS. Nothing contained in this Option Agreement shall
confer upon the Grantee any right to continue in the employ of the Corporation
or shall in any way affect the right and power of the Corporation to dismiss or
otherwise terminate the employment of the Grantee at any time for any reason
with or without cause. This Option Agreement shall be governed and construed in
accordance with the laws of the State of New York applicable to contracts
entered into and to be performed wholly within such state.
If the foregoing is in accordance with the Grantee's understanding and
accepted and agreed by the Grantee, the Grantee may so confirm by signing and
returning the duplicate of this Option Agreement provided for that purpose.
CONNECTIVITY TECHNOLOGIES INC.
By
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Name:
Title:
The foregoing is in accordance with my understanding and is hereby confirmed and
agreed to as of the Date of Grant.
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Name:
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EXHIBIT
NOTICE OF EXERCISE
The undersigned hereby gives notice to Connectivity Technologies Inc.,
a Delaware corporation (the "Corporation"), of his or her intention to exercise
his or her right to purchase the number of Shares set forth below of the Common
Stock of the Corporation, at the exercise price and on the date set forth below,
pursuant to the Nonqualified Stock Option (the "Option") granted to the
undersigned on _______, 199_, and to pay the purchase price thereof, plus any
applicable federal or state withholding or employment taxes, by means of [the
undersigned's check] [other method of payment] which the undersigned is
delivering to the Corporation herewith pursuant to the terms of the Option.
Print Name: ____________________
Date of Exercise: ______________
Number of Shares
to be Purchased: ____________
Exercise Price Per Share: ______
Aggregate Exercise Price:_______
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(Signature)
