Exhibit (d)(6)
XXXXXXX WASTE SYSTEMS, INC.
Nonqualified Stock Option Agreement
Granted Under Amended and Restated 1997 Stock Incentive Plan
1. GRANT OF OPTION.
This agreement evidences the grant by Xxxxxxx Waste Systems, Inc., a
Delaware corporation (the "Company"), on __________ (the "Grant Date") to
____________, a consultant of the Company (the "Participant"), of an option to
purchase, in whole or in part, on the terms provided herein and in the Company's
Amended and Restated 1997 Stock Incentive Plan (the "Plan"), a total of
_____________ shares of common stock, $0.01 par value per share, of the Company
(the "Common Stock" or the "Shares") at $_________ per Share. Unless earlier
exercised in full, or terminated only pursuant to paragraphs 3(b), (c) or (d)
below, this option shall expire on ___________ (the "Final Exercise Date").
It is intended that the options evidenced by this agreement shall be
Non-Statutory Stock Options. Except as otherwise indicated by the context, the
term "Participant", as used in this option, shall be deemed to include any
person who acquires the right to exercise this option validly under its terms.
2. VESTING SCHEDULE.
This option is exercisable with respect to __________of the original
number of Shares granted on each of the ___________ anniversary of the Grant
Date. This option shall expire upon, and will not be exercisable after, the
Final Exercise Date.
The right of exercise shall be cumulative so that to the extent the
option is not exercised in any period to the maximum extent permissible it shall
continue to be exercisable, in whole or in part, with respect to all Shares
which are then exercisable, until the earlier of the Final Exercise Date or the
termination of this option under Section 3 hereof or the Plan.
3. EXERCISE OF OPTION.
(a) FORM OF EXERCISE. Each election to exercise this option shall be
in writing, signed by the Participant, and received by the Company
at its principal office, accompanied by this agreement, and
payment in full in the manner provided in the Plan, including:
(i) in cash or by check, payable to the order of the Company;
(ii) by delivery of an irrevocable and unconditional undertaking
by a credit-worthy broker to deliver promptly to the Company
sufficient funds to pay the exercise price, or delivery by
the Participant to the Company of a copy of irrevocable and
unconditional instructions to a credit-worthy broker to
deliver promptly to the Company cash or a check sufficient to
pay the exercise price, or by delivery of shares of Common
Stock owned by the Participant valued at their fair market
value as determined by the Board of Directors of the Company
(the "Board") in good faith (the "Fair Market Value"), which
Common Stock was owned by the Participant at least six months
prior to such delivery; or
(iii) any combination of the above permitted forms of payment.
The Participant may purchase less than the number of Shares
covered hereby, provided that no partial exercise of this
option may be for any fractional Share.
(b) CONTINUOUS RELATIONSHIP WITH THE COMPANY REQUIRED. Except as
otherwise provided in this Section 3, this option may not be
exercised unless the Participant, at the time he or she exercises
this option, is, and has been at all times since the Grant Date,
an employee, officer or director of, or consultant or advisor to,
the Company or any parent or subsidiary of the Company as defined
in Section 424(e) or (f) of the Internal Revenue Code (an
"Eligible Participant").
(c) TERMINATION OF RELATIONSHIP WITH THE COMPANY. If the Participant
ceases to be an Eligible Participant for any reason, then, except
as provided in paragraph (d) below, the right to exercise this
option shall terminate 30 days after such cessation (but in no
event after the Final Exercise Date), PROVIDED THAT this option
shall be exercisable only to the extent that the Participant was
entitled to exercise this option on the date of such cessation.
Notwithstanding the foregoing, if the Participant, prior to the
Final Exercise Date, violates the non-competition or
confidentiality provisions of any agreement, the right to
exercise this option shall terminate immediately upon such
violation.
(d) EXERCISE PERIOD UPON DEATH OR DISABILITY. If the Participant dies
or becomes disabled (within the meaning of Section 22(e)(3) of the
Code) prior to the Final Exercise Date while he or she is an
Eligible Participant, this option shall be exercisable, within 90
days following the date of death or disability of the Participant,
PROVIDED THAT this option shall be exercisable only to the extent
that this option was exercisable by the Participant on the date of
his or her death or disability, and further provided that this
option shall not be exercisable after the Final Exercise Date.
(e) DISCHARGE FOR CAUSE. If the Participant, prior to the Final
Exercise Date, is discharged by the Company for "cause" (as
defined below), the right to exercise this option shall terminate
immediately upon the effective date of such discharge. "Cause"
shall mean willful misconduct by the Participant or willful
failure by the Participant to perform his or her responsibilities
to the Company (including, without limitation, any provision of
any employment, consulting or other similar agreement), as
determined by the Company, which determination shall be
conclusive. The Participant shall be considered to have been
discharged for "Cause" if the Company determines, within 30 days
after the Participant's resignation, that discharge for cause
was warranted.
4. NONTRANSFERABILITY OF OPTION.
This option may not be sold, assigned, transferred, pledged or
otherwise encumbered by the Participant, either voluntarily or by operation of
law, except by will or the laws of descent and distribution, and, during the
lifetime of the Participant, this option shall be exercisable only by the
Participant.
5. PROVISIONS OF THE PLAN.
This option is subject to the provisions of the Plan, a copy of which
is furnished to the Participant with this option.
IN WITNESS WHEREOF, the Company has caused this option to be executed
under its corporate seal by its duly authorized officer. This option shall take
effect as a sealed instrument.
Xxxxxxx Waste Systems, Inc.
Dated as of _________ By:
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Xxxx X. Xxxxxxx
Chief Executive Officer
PARTICIPANT'S ACCEPTANCE
The undersigned hereby accepts the foregoing option and agrees to the
terms and conditions thereof. The undersigned hereby acknowledges receipt of a
copy of the Company's Amended and Restated 1997 Stock Incentive Plan.
PARTICIPANT:
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Address:
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