Exhibit 10.53
XXXXX INSTRUMENTS CORP.
NONQUALIFIED STOCK OPTION AGREEMENT
THIS NONQUALIFIED STOCK OPTION AGREEMENT (this "AGREEMENT") dated as
of the 12th day of April, 2000 by and between Xxxxx Instruments Corp., a
Delaware corporation (the "COMPANY"), and Xxxx Xxxxxxx (the "OPTIONEE").
R E C I T A L S
WHEREAS, the Company has granted to the Optionee, effective as of
the 12th day of April, 2000 (the "GRANT DATE"), a nonqualified stock option to
purchase all or any part of 130,000 shares of the Company's common stock, par
value $0.01 per share (the "COMMON STOCK"), subject to and upon the terms and
conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises and
covenants made herein and the mutual benefits to be derived herefrom and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree as follows:
1. GRANT OF OPTION. This Agreement evidences the Company's grant to the
Optionee of the right and option to purchase, subject to and on the
terms and conditions set forth herein, all or any part of 130,000
shares of the Company's Common Stock (the "SHARES") at the price of
$56.50 per Share (the "OPTION"), exercisable from time to time, subject
to the provisions of this Agreement, prior to the close of business on
the day before the tenth anniversary of the Grant Date (the "EXPIRATION
DATE"), unless earlier terminated pursuant to Section 9. Such price
equals the fair market value of the Common Stock as of the Grant Date.
2. EXERCISABILITY OF OPTION. The Option shall first become and remain
exercisable as to 1/4 of the shares on the first anniversary of the
Grant Date and as to an additional 1/36 of the shares on and after the
last day of each succeeding calendar month until all remaining Options
have become exercisable. If the Optionee does not in any year purchase
all or any part of the Shares to which the Optionee is entitled, the
Optionee has the right cumulatively thereafter to purchase any Shares
not so purchased and such right shall continue until the Option
terminates or expires. The Option shall only be exercisable in respect
of whole Shares, and fractional Share interests shall be disregarded.
The Option may only be exercised as to at least one-hundred (100)
Shares unless the number purchased is the total number at the time
available for purchase under the Option.
3. METHOD OF EXERCISE OF OPTION. The Option shall be exercisable by the
delivery to the Secretary of the Company of a written notice stating
the number of Shares to be purchased pursuant to the Option and
accompanied by (i) delivery of an executed EXERCISE AGREEMENT in the
form attached hereto as EXHIBIT A, (ii) payment of the full purchase
price of the Shares to be purchased, and (iii) payment in full of any
tax withholding obligation under federal, state or local law. Payment
shall be made in one or
a combination of the following methods: (i) in cash or by electronic funds
transfer; (ii) by check payable to the order of the Company; (iii) if
authorized by the Board of Directors (the "BOARD"), by a promissory note
of the Optionee upon the terms and conditions approved by the Board; (iv)
by notice and third party payment in such manner as may be authorized by
the Board; or (v) by the delivery of shares of Common Stock of the Company
already owned by the Optionee, provided, however, that the Board may in
its absolute discretion limit the Optionee's ability to exercise the
Option by delivering such shares, and provided further that any shares
delivered which were initially acquired upon exercise of a stock option
must have been owned by the Optionee at least six months as of the date of
delivery. Shares of Common Stock used to satisfy the exercise price of the
Option shall be valued at their fair market value on the date of exercise.
4. TAX WITHHOLDING.
4.1. CASH OR SHARES. Upon any exercise of the Option, the Company shall
have the right at its option to (i) require the Optionee (or personal
representative or beneficiary, as the case may be) to pay or provide for
payment of the amount of any taxes which the Company may be required to
withhold with respect to the Option or (ii) deduct from any amount payable
in cash the amount of any taxes which the Company may be required to
withhold with respect to such cash payment. In any case where a tax is
required to be withheld in connection with the delivery of shares of
Common Stock, the Board may in its sole discretion grant to the Optionee
the right to elect, pursuant to such rules and subject to such conditions
as the Board may establish, to have the Company reduce the number of
shares to be delivered by (or otherwise reacquire) the appropriate number
of shares valued at their then fair market value to satisfy such
withholding obligation.
4.2. TAX LOANS. The Company may, in its discretion and to the extent
permitted by law, authorize a loan to the Optionee in the amount of any
taxes which the Company may be required to withhold with respect to shares
of Common Stock received (or disposed of, as the case may be) pursuant to
a transaction described in Section 4.1. Such a loan shall be for a term,
at a rate of interest and pursuant to such other terms and conditions as
the Company, under applicable law may establish.
5. OPTION REPRICING/CANCELLATION AND REGRANT/WAIVER OF RESTRICTIONS. The
Board from time to time may authorize, generally or in specific cases
only, for the benefit of the Optionee any adjustment in the number of
shares subject to, the restrictions upon or the term, exercise or
purchase price or vesting schedule of the Option by cancellation of the
Option and a subsequent regranting of the Option, by amendment, by
substitution of the Option, by waiver or by other legally valid means.
Such amendment or other action may result among other changes in an
exercise or purchase price which is higher or lower than the exercise
or purchase price of the original or prior Option, provide for a
greater or lesser number of shares subject to the Option, or provide
for a longer or shorter vesting or exercise period.
6. RESTRICTIONS ON SHARES. The Certificate of Incorporation and Bylaws of the
Company, as either of them may be amended from time to time, may provide
for restrictions with
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respect to the Common Stock. To the extent that these restrictions and
limitations are greater than those set forth in this Agreement, such
restrictions and limitations shall apply to any securities acquired upon
exercise of the Option and are incorporated herein by this reference.
7. NO TRANSFERABILITY; LIMITED EXCEPTION TO TRANSFER RESTRICTIONS.
7.1. LIMIT ON EXERCISE AND TRANSFER. Unless otherwise expressly provided
in (or pursuant to) this Section 7 or by applicable law (i) the Option is
non-transferable and shall not be subject in any manner to sale, transfer,
anticipation, alienation, assignment, pledge, encumbrance or charge; the
Option shall be exercised only by the Optionee; and (ii) amounts payable
or shares issuable pursuant to the Option shall be delivered only to (or
for the account of) the Optionee.
7.2. EXCEPTIONS. The Board may permit the Option to be exercised by and
paid only to certain persons or entities related to the Optionee,
including but not limited to members of the Optionee's family, charitable
institutions, or trusts or other entities whose beneficiaries or
beneficial owners are members of the Optionee's family and/or charitable
institutions, or to such other persons or entities as may be approved by
the Board, pursuant to such conditions and procedures as the Board may
establish. Any permitted transfer shall be subject to the condition that
the Board receive evidence satisfactory to it that the transfer is being
made for estate and/or tax planning purposes on a gratuitous or donative
basis and without consideration (other than nominal consideration).
7.3. FURTHER EXCEPTIONS TO LIMITS ON TRANSFER. The exercise and transfer
restrictions in this Section 7 shall not apply to:
(i) transfers to the Company,
(ii) the designation of a beneficiary to receive benefits in the
event of the Optionee's death or, if the Optionee has died,
transfers to or exercise by the Optionee's beneficiary, or, in
the absence of a validly designated beneficiary, transfers by
will or the laws of descent and distribution,
(iii) transfers pursuant to a qualified domestic relations order
if approved or ratified by the Board,
(iv) if the Optionee has suffered a disability, permitted
transfers or exercises on behalf of the Optionee by his or
her legal representative, or
(v) the authorization by the Board of "cashless exercise"
procedures with third parties who provide financing for the
purpose of (or who otherwise facilitate) the exercise of the
Option consistent with applicable laws and the express
authorization of the Board.
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8. NO EMPLOYMENT CONTRACT. Nothing contained in this Agreement shall
confer upon the Optionee any right to continue in the employ or other
service of the Company or any of its subsidiaries, nor constitute any
contract or agreement of employment or other service, nor shall
interfere in any way with the right of the Company to change the
Optionee's compensation or other benefits or to terminate the
employment of the Optionee, with or without cause; provided, however,
that nothing contained in this Agreement shall adversely affect any
independent contractual right of the Optionee without his or her
consent thereto.
9. ADJUSTMENT AND TERMINATION UPON CERTAIN EVENTS.
9.1. ADJUSTMENTS. If there shall occur any extraordinary dividend or other
extraordinary distribution in respect of the Common Stock (whether in the
form of cash, Common Stock, other securities, or other property), or any
reclassification, recapitalization, stock split (including a stock split
in the form of a stock dividend), reverse stock split, reorganization,
merger, combination, consolidation, split-up, spin-off, combination,
repurchase, or exchange of Common Stock or other securities of the
Company, or there shall occur any similar, unusual or extraordinary
corporate transaction or event in respect of the Common Stock or a sale of
substantially all the assets of the Company as an entirety, then the Board
shall, in such manner and to such extent (if any) as it deems appropriate
and equitable (1) proportionately adjust any or all of (a) the number and
type of shares of Common Stock (or other securities) which thereafter may
be made the subject of the Option, (b) the number, amount and type of
shares of Common Stock (or other securities or property) subject to the
Option, (c) the grant, purchase, or exercise price of the Option, (d) the
securities, cash or other property deliverable upon exercise of the
Option, or (e) the performance standards appropriate to the Option, or (2)
in the case of an extraordinary dividend or other distribution,
recapitalization, reclassification, merger, reorganization, consolidation,
combination, sale of assets, split up, exchange, or spin off, make
provision for a cash payment or for the substitution or exchange of the
Option or the cash, securities or property deliverable to the Optionee
based upon the distribution or consideration payable to holders of the
Common Stock of the Company upon or in respect of such event. In any of
such events, the Board may take such action sufficiently prior to such
event if necessary to permit the Optionee to realize the benefits intended
to be conveyed with respect to the underlying shares in the same manner as
is available to stockholders generally.
9.2. ACCELERATION OF AWARDS UPON CHANGE IN CONTROL. Unless the Board
determines, prior to the occurrence of any of the following (each of which
shall be hereafter referred to as a "Change in Control Event"):
(i) Approval by the stockholders of the Company of the dissolution
or liquidation of the Company;
(ii) Approval by the stockholders of the Company of an agreement to
merge or consolidate, or otherwise reorganize, with or into
one or more entities that are not subsidiaries or other
affiliates, as a result of which less than 50% of
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the outstanding voting securities of the surviving or
resulting entity immediately after the reorganization are, or
will be, owned, directly or indirectly, by stockholders of the
Company immediately before such reorganization (assuming for
purposes of such determination that there is no change in the
record ownership of the Company's securities from the record
date for such approval until such reorganization and that such
record owners hold no securities of the other parties to such
reorganization, but including in such determination any
securities of the other parties to such reorganization held by
affiliates of the Company);
(iii) Approval by the stockholders of the Company of the sale of
substantially all of the Company's business and/or assets to a
person or entity which is not a subsidiary or other affiliate;
(iv) Any `person' (as such term is used in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934, as amended from time
to time (the "EXCHANGE ACT") but excluding any person
described in and satisfying the conditions of Rule 13d-1(b)(1)
thereunder) becomes the beneficial owner (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 30% or more of the
combined voting power of the Company's then outstanding
securities entitled to then vote generally in the election of
directors of the Company; or
(v) During any period not longer than two consecutive years,
individuals who at the beginning of such period constituted
the Board cease to constitute at least a majority thereof,
unless the election, or the nomination for election by the
Company's stockholders, of each new Board member was approved
by a vote of at least three-fourths of the Board members then
still in office who were Board members at the beginning of
such period (including for these purposes, new members whose
election or nomination was so approved),
that, upon the occurrence of a Change in Control Event, there shall be no
acceleration of benefits under the Option or determines that only certain
or limited benefits under the Option shall be accelerated and the extent
to which they shall be accelerated, and/or establishes a different time in
respect of such Change in Control Event for such acceleration, then upon
the occurrence of a Change in Control Event the Option shall become
immediately exercisable. The Board may override the limitations on
acceleration in this Section 9.2 and may accord the Optionee a right to
refuse any acceleration, in such circumstances as the Board may approve.
Any acceleration of the Option shall comply with applicable regulatory
requirements, including, without limitation, Section 422 of the Internal
Revenue Code of 1986, as amended from time to time (the "CODE").
9.3. POSSIBLE EARLY TERMINATION OF ACCELERATED AWARDS. If the Option has
been fully accelerated as permitted by Section 9.2 but is not exercised
prior to (i) a dissolution
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of the Company, or (ii) an event described in Section 9.2 that the Company
does not survive, or (iii) the consummation of an event described in
Section 9.2 that results in a change of control approved by the Board, the
Option shall thereupon terminate, subject to any provision that has been
expressly made by the Board for the survival, substitution, exchange or
other settlement of the Option.
9.4. EFFECT OF TERMINATION OF EMPLOYMENT.
(a) Resignation or Dismissal. If the Optionee's employment by the
Company or any of its subsidiaries terminates for any reason (the date of
such termination being referred to as the "SEVERANCE DATE") other than
retirement, a "permanent and total disability" within the meaning of
Section 22(e)(3) of the Code and such other disabilities, infirmities,
afflictions or conditions as the Board by rule may include ("TOTAL
DISABILITY") or death, or "for cause" (as determined in the discretion of
the Board), the Optionee shall have, subject to earlier termination
pursuant to or as contemplated by Section 1 or 9.2 hereof, three months
after the Severance Date to exercise the Option to the extent it shall
have become exercisable on the Severance Date. In the case of a
termination "for cause", the Option shall terminate on the Severance Date.
In other cases, the Option, to the extent not exercisable on the Severance
Date, shall terminate.
(b) Death or Disability. If the Optionee's employment by the Company
or any of its subsidiaries terminates as a result of Total Disability or
death, the Optionee, the Optionee's personal representative or his or her
beneficiary, as the case may be, shall have, subject to earlier
termination pursuant to or as contemplated by Section 1 or 9.2 hereof,
until 12 months after the Severance Date to exercise the Option to the
extent it shall have become exercisable by the Severance Date. The Option
to the extent not exercisable on the Severance Date shall terminate.
(c) Retirement. If the Optionee's employment by the Company or any
of its subsidiaries terminates as a result of retirement with the consent
of the Company or from active service as an employee or officer of the
Company on or after attaining age 55 with 10 or more years of service or
after age 65, the Optionee, the Optionee's personal representative or his
or her beneficiary, as the case may be, shall have, subject to earlier
termination pursuant to or as contemplated by Section 1 or 9.2 hereof,
until 12 months after the Severance Date to exercise the Option to the
extent it shall have become exercisable by the Severance Date. The Option,
to the extent not exercisable on the Severance Date, shall terminate.
(d) Board Discretion. Notwithstanding the foregoing provisions of
this Section 9.4, in the event, or in anticipation, of a termination of
employment with the Company or any of its subsidiaries for any reason,
other than discharge for cause, the Board may, in its discretion, increase
the portion of the Option available to the Optionee, or the Optionee's
beneficiary or personal representative, as the case may be, or, subject to
the provisions of Section 1 hereof, extend the exercisability period upon
such terms as the Board shall determine and expressly set forth in or by
amendment to this Agreement.
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9.5. EFFECT OF CHANGE OF SUBSIDIARY STATUS. If an entity ceases to be a
subsidiary of the Company a termination of employment and service shall be
deemed to have occurred with respect to each employee of such subsidiary
who does not continue as an employee of another entity within the Company.
10. SHARES TO BE RESERVED. The Company shall at all times during the term of
the Option reserve and keep available such number of shares of Common
Stock as will be sufficient to satisfy the requirements of this Agreement.
11. ASSIGNMENT. This Agreement cannot be directly or indirectly assigned or
transferred by the Optionee in whole or in part without the prior written
consent of the Company.
12. NOTICES. Any notices, demands or requests of any kind whatsoever hereunder
shall be given in writing and sent to the addresses set forth below or to
such other address as either party may from time to time in writing
designate. Each such notice or other communication shall be effective (i)
if given by telecommunication, when transmitted to the applicable number
so specified in (or pursuant to) this Section 12 and a verification of
receipt is received, (ii) if given by mail, three days after such
communication is deposited in the mail with first class postage prepaid,
addressed as aforesaid or (iii) if given by any other means, when actually
delivered at such address.
13. WAIVER. The parties reserve the right to waive by mutual written consent
for a specific period and under specific conditions any provision of this
Agreement, provided that such waiver shall be limited to the period and
conditions specified by mutual written consent and shall in no way
constitute a general waiver, or be considered as evidence of any given
interpretation of any provision so waived.
14. GOVERNING LAW. This Agreement, and the legal relations between the
parties, shall be governed by and construed in accordance with the laws of
the State of California, without regard to conflicts of law doctrines. All
actions or proceedings under or relating to this Agreement will be
resolved in a state or federal court located in Orange County, California;
provided, however, that in the Company's discretion, such an action may be
heard in some other place designated by it if necessary to acquire
jurisdiction over third persons so that the dispute can be resolved in one
action. Each party hereby (i) agrees to submit to the jurisdiction of the
federal and state courts located in Orange County, California, (ii) agrees
to appear in any such action, (iii) consents to the jurisdiction of such
courts and (iv) waives any objections it might have as to venue in any
such court. Service of process may be made in any action, suit or
proceeding by mailing or delivering a copy of such process to a party at
its address and in the manner set forth in Section 12 hereof.
15. TITLES. Titles and paragraph headings are for reference purposes only and
are not to be considered a part of this Agreement.
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16. SEVERABILITY. If any provision of this Agreement is held to be
unenforceable for any reason, it shall be adjusted rather than voided, if
possible, to achieve the intent of the parties to the extent possible. In
any event, all other provisions of this Agreement shall be deemed valid
and enforceable to the extent possible.
17. ENTIRE AGREEMENT. The parties hereto acknowledge that each has read this
Agreement, understands it, and agrees to be bound by its terms. The
parties further agree that this Agreement and any modifications made
pursuant to it constitute the complete and exclusive written expression of
the terms of the agreement between the parties, and supercede all prior or
contemporaneous proposals, oral or written, understandings,
representations, conditions, warranties, covenants, and all other
communications between the parties relating to the subject matter of this
Agreement. The parties further agree that this Agreement may not in any
way be explained or supplemented by a prior or existing course of dealings
between the parties, by any usage of trade or custom, or by any prior
performance between the parties pursuant to this Agreement or otherwise.
18. COUNTERPARTS. This Agreement may be executed in several counterparts, each
of which shall be deemed to be an original, but all of which shall
constitute one and the same instrument.
19. ATTORNEY'S FEES. In the event that any action or proceeding is brought in
connection with this Agreement the prevailing party therein shall be
entitled to recover its costs and reasonable attorney's fees.
20. COMPLIANCE WITH LAWS. Notwithstanding anything else contained herein to
the contrary, this Agreement, the granting and vesting of the Option and
the offer, issuance and delivery of Shares under this Agreement are
subject to compliance with all applicable federal and state laws, rules
and regulations (including but not limited to state and federal securities
laws and federal margin requirements) and to such approvals by any
listing, regulatory or governmental authority as may, in the opinion of
counsel for the Company, be necessary or advisable in connection
therewith. Any securities delivered in respect of this Agreement will be
subject to such restrictions, and to any restrictions the Company may
require to preserve a pooling of interests under generally accepted
accounting principles, and the person acquiring such securities will, if
requested by the Company, provide such assurances and representations to
the Company as the Company may deem necessary or desirable to assure
compliance with all applicable legal requirements.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed on its behalf by a duly authorized officer and the Optionee has
hereunto set his or her hand.
XXXXX INSTRUMENTS CORP.,
a Delaware corporation
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
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Its: Vice President and General Counsel
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0000 Xxx Xxxxxx
Xxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
OPTIONEE
/s/ Xxxxxx Xxxxxxx
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Signature
Xxxxxx Xxxxxxx
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Print Name
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Address
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Telephone
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Facsimile
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CONSENT OF SPOUSE
In consideration of the execution of the foregoing Nonqualified Stock
Option Agreement by Xxxxx Instruments Corp., I, Xxxxxxxxx Xxxxxxx, the spouse of
the Optionee herein named, do hereby agree to be bound by all of the terms and
provisions thereof.
DATED: 4/12/00 /s/ Xxxxxxxxx Xxxxxxx
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Signature of Spouse
EXHIBIT A
XXXXX INSTRUMENTS CORP.
EXERCISE AGREEMENT
THIS EXERCISE AGREEMENT (this "AGREEMENT") dated as of the
____ day of ______________, _____, by and between Xxxxx Instruments Corp.,
a Delaware corporation (the "COMPANY"), and __________ (the "PURCHASER").
R E C I T A L S
WHEREAS, the Company has granted to the Purchaser a nonqualified
stock option (the "OPTION") to purchase all or any part of a designated
amount of authorized but unissued shares of common stock of the Company and,
in connection therewith, the Company and the Purchaser entered into that
certain Nonqualified Stock Option Agreement dated as of the 12th of April,
2000 (the "OPTION AGREEMENT") of which this Agreement is a part and into
which this Agreement is incorporated;
WHEREAS, the Purchaser desires to exercise the Option and
purchase from the Company and the Company wishes to issue and sell to the
Purchaser _______ shares of its common stock, par value $0.01 per share (the
"COMMON STOCK"), to be sold at a price of $_____ per share, in accordance
with and subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the above premises and the
representations, warranties, covenants and agreements contained in this
Agreement, and for other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto agree as follows:
1. PURCHASE AND SALE OF COMMON STOCK. The Company shall deliver to
the Purchaser a stock certificate representing the shares of
Common Stock against delivery to the Company by the Purchaser of
the purchase price in the sum of $____________ (which represents
the product of the $_____ price per share and the number of
shares, the "PURCHASE PRICE").
2. RESTRICTIONS ON SHARES. The shares of Common Stock acquired
pursuant to Section 1 hereof are subject to, and the Purchaser
agrees to be bound by, the provisions of Sections 6, 7 and 20 of
the Option Agreement, incorporated herein by this reference.
3. MISCELLANEOUS. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the state of
California. This Agreement and the Option Agreement together
constitute the entire agreement and supersede all prior
understandings and agreements, written or oral, of the parties
hereto with respect
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to the subject matter hereof. This Agreement may be amended by
mutual agreement of the parties. Such amendment must be in writing
and signed by the Company. The Company may, however, unilaterally
waive any provision hereof in writing to the extent such waiver
does not adversely affect the interests of the Purchaser
hereunder, but no such waiver shall operate as or be construed to
be a subsequent waiver of the same provision or a waiver of any
other provision hereof.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first written above.
XXXXX INSTRUMENTS CORP.,
a Delaware corporation
By:
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Its:
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PURCHASER
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Signature
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Print Name
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Address
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CONSENT OF SPOUSE
In consideration of the execution of the foregoing Exercise
Agreement by Xxxxx Instruments Corp., I, ___________________________, the
spouse of the Purchaser herein named, do hereby agree to be bound by all of
the terms and provisions thereof.
DATED: ___________________ ____________________________________
Signature of Spouse
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