EXHIBIT 10.3
CPI ACQUISITION CORP.
2004 STOCK INCENTIVE PLAN
FORM OF
NONQUALIFIED STOCK OPTION AGREEMENT
(DIRECTORS)
THIS AGREEMENT, is made effective as of March 1, 2004 (the "DATE OF
GRANT"), between CPI Acquisition Corp. (the "COMPANY") and <> (the
"PARTICIPANT").
R E C I T A L S:
WHEREAS, the Company has adopted the Plan (as defined below), the
terms of which are hereby incorporated by reference and made a part of this
Agreement; and
WHEREAS, the Committee (as defined below) has determined that it
would be in the best interests of the Company and its stockholders to grant the
Option (as defined below) provided for herein to the Participant pursuant to the
Plan and the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth, the parties agree as follows:
1. DEFINITIONS. Whenever the following terms are used in this
Agreement, they shall have the meanings set forth below. Capitalized terms not
otherwise defined herein shall have the same meanings as in the Plan.
(a) CAUSE: "Cause" shall mean (i) the Participant's continued
failure to perform such Participant's duties (other than as a result of total or
partial incapacity due to physical or mental illness) which is not cured for a
period of 10 days following written notice by the Company or its Affiliates to
the Participant of such failure, (ii) conviction or plea of guilty or no contest
to a (x) felony, or (y) crime involving moral turpitude or the property or
business of the Company or its Affiliates, (iii) willful malfeasance or willful
misconduct in performance of duties to the Company or its Affiliates, or (iv)
breach by the Participant of the material terms of any non-compete,
non-solicitation or confidentiality provisions.
(b) DISABILITY: "Disability" as defined in the Company's long-term
disability plan or policy, as in effect from time to time.
(c) EXPIRATION DATE: The tenth anniversary of the Date of Grant.
(d) OPTION: An option with respect to which the terms and conditions
are set forth in Section 3(a) of this Agreement.
(e) PLAN: The CPI Acquisition Corp. 2004 Stock Incentive Plan, as
from time to time amended.
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(f) STOCKHOLDERS AGREEMENT: The Management Stockholders Agreement,
dated as of January 23, 2004 (as amended from time to time), among the Company
and the other parties thereto.
(g) VESTED PORTION: At any time, the portion of the Option which has
become vested, as described in Section 3 of this Agreement.
2. GRANT OF OPTION. The Company hereby grants to the Participant the
right and option to purchase, on the terms and conditions hereinafter set forth,
4,500 Shares, subject to adjustment as set forth in the Plan. The exercise price
of the Shares subject to the Option shall be $23.52 per Share (the "OPTION
PRICE"). The Option is intended to be a nonqualified stock option, and is not
intended to be treated as an ISO that complies with Section 422 of the Code.
3. VESTING OF THE OPTION.
(a) Vesting. Subject to the Participant's continued Employment with
the Company and its Affiliates, the Option shall vest and become exercisable
with respect to twenty percent (20%) of the Shares subject to such Option on the
first anniversary of the Date of Grant and shall vest and become exercisable
with respect to an additional twenty percent (20%) of the Shares subject to the
Option on each subsequent anniversary of the Date of Grant (each such
anniversary, a "VESTING DATE"), until such Shares subject to the Option are 100%
vested and exercisable.
(b) Termination of Employment. If the Participant's Employment with
the Company and its Affiliates terminates for any reason, the Option, to the
extent not then vested and exercisable, shall be immediately canceled by the
Company without consideration; provided, however, that, in the event of the
Participant's termination of Employment due to the Participant's death or
Disability, the Participant shall be deemed vested in the portion of the Option
that otherwise would have become exercisable on the next scheduled Vesting Date.
4. EXERCISE OF OPTION.
(a) Period of Exercise. Subject to the provisions of the Plan and
this Agreement, the Participant may exercise all or any part of the Vested
Portion of the Option at any time prior to the Expiration Date. Notwithstanding
the foregoing, if the Participant's Employment terminates prior to the
Expiration Date, the Vested Portion of the Option shall remain exercisable for
the period set forth below:
(i) Death or Disability. If the Participant's Employment with the
Company and its Affiliates is terminated due to the Participant's death or
Disability, the Participant may exercise the Vested Portion of the Option
for a period ending on the earlier of (A) one year following the date of
such termination and (B) the Expiration Date;
(ii) Termination by the Company without Cause or Termination by
the Participant. If the Participant's Employment with the Company and its
Affiliates is
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terminated (a) by the Company or any Affiliate without Cause or (b) by the
Participant, the Participant may exercise the Vested Portion of the Option
for a period ending on the earlier of (A) 90 days following the date of
such termination and (B) the Expiration Date; and
(iii) Termination by the Company for Cause. If the Participant's
Employment with the Company and its Affiliates is terminated by the
Company or any Affiliate for Cause, the Vested Portion of the Option shall
immediately terminate in full and cease to be exercisable.
(b) Method of Exercise.
(i) Subject to Section 4(a) of this Agreement, the Vested Portion
of the Option may be exercised by delivering to the Company at its
principal office written notice of intent to so exercise; provided that
the Option may be exercised with respect to whole Shares only. Such notice
shall specify the number of Shares for which the Option is being exercised
and shall be accompanied by payment (or, to the extent permitted by
applicable law, provision for payment) in full of the aggregate Option
Price. Payment of the aggregate Option Price may be made (A) in cash, or
its equivalent, (B) to the extent permitted by the Committee, by
transferring Shares having a Fair Market Value equal to the aggregate
Option Price for the Shares being purchased and satisfying such other
requirements as may be imposed by the Committee; provided that such Shares
have been held by the Participant for no less than six months (or such
other period as established from time to time by the Committee or
generally accepted accounting principles), or (C) such other method as
approved by the Committee. No Participant shall have any rights to
dividends or other rights of a stockholder with respect to the Shares
subject to the Option until the Participant has given written notice of
exercise of the Option, paid in full for such Shares and, if applicable,
has satisfied any other conditions imposed by the Committee pursuant to
the Plan.
(ii) Notwithstanding any other provision of the Plan or this
Agreement to the contrary, absent an available exemption to registration
or qualification, the Option may not be exercised prior to the completion
of any registration or qualification of the Option or the Shares under
applicable state and federal securities or other laws, or under any ruling
or regulation of any governmental body or national securities exchange
that the Committee shall in its sole reasonable discretion determine to be
necessary or advisable.
(iii) Upon the Company's determination that the Option has been
validly exercised as to any of the Shares, the Company shall issue
certificates in the Participant's name for such Shares. However, the
Company shall not be liable to the Participant for damages relating to any
delays in issuing the certificates to the Participant, any loss by the
Participant of the certificates, or any mistakes or errors in the issuance
of the certificates or in the certificates themselves.
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(iv) In the event of the Participant's death, the Vested Portion
of the Option shall remain vested and exercisable by the Participant's
executor or administrator, or the person or persons to whom the
Participant's rights under this Agreement shall pass by will or by the
laws of descent and distribution as the case may be, to the extent set
forth in Section 4(a) of this Agreement. Any heir or legatee of the
Participant shall take rights herein granted subject to the terms and
conditions hereof.
(v) As a condition to the exercise of any Option evidenced by this
Agreement, the Participant shall execute the Stockholders Agreement.
5. NO RIGHT TO CONTINUED EMPLOYMENT. Neither the Plan nor this
Agreement shall be construed as giving the Participant the right to be retained
in the Employment of the Company or any Affiliate. Further, the Company or its
Affiliate may at any time terminate the Employment of the Participant, free from
any liability or any claim under the Plan or this Agreement, except as otherwise
expressly provided herein.
6. LEGEND ON CERTIFICATES. The certificates representing the Shares
purchased by exercise of the Option shall be subject to such stop transfer
orders and other restrictions as the Committee may deem reasonably advisable
under the Plan or the rules, regulations, and other requirements of the
Securities and Exchange Commission, any stock exchange upon which such Shares
are listed, any applicable federal or state laws and the Company's Certificate
of Incorporation and Bylaws, and the Committee may cause a legend or legends to
be put on any such certificates to make appropriate reference to such
restrictions.
7. TRANSFERABILITY. Unless otherwise determined by the Committee,
the Option may not be assigned, alienated, pledged, attached, sold or otherwise
transferred or encumbered by the Participant otherwise than by will or by the
laws of descent and distribution, and any such purported assignment, alienation,
pledge, attachment, sale, transfer or encumbrance shall be void and
unenforceable against the Company or any Affiliate; provided that the
designation of a beneficiary shall not constitute an assignment, alienation,
pledge, attachment, sale, transfer or encumbrance. During the Participant's
lifetime, the Option is exercisable only by the Participant.
8. WITHHOLDING. The Participant may be required to pay to the
Company or its Affiliate and the Company or its Affiliate shall have the right
and is hereby authorized to withhold from any payment due or transfer made under
the Option or under the Plan or from any compensation or other amount owing to a
Participant the amount (in cash, Shares, other securities, other Awards or other
property) of any applicable withholding taxes in respect of the Option, its
exercise, or any payment or transfer under the Option or under the Plan and to
take such action as may be necessary in the option of the Company to satisfy all
obligations for the payment of such taxes.
9. SECURITIES LAWS. Upon the acquisition of any Shares pursuant to
the exercise of the Option, the Participant will make or enter into such written
representations, warranties and agreements as the Committee may reasonably
request in order to comply with applicable securities laws or with this
Agreement.
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10. NOTICES. Any notice under this Agreement shall be addressed to
the Company in care of its Chief Financial Officer and a copy to the Chief
Executive Officer, each copy addressed to the principal executive office of the
Company and to the Participant at the address appearing in the personnel records
of the Company for the Participant or to either party at such other address as
either party hereto may hereafter designate in writing to the other. Any such
notice shall be deemed effective upon receipt thereof by the addressee.
11. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York without regard to conflicts
of laws.
12. OPTION SUBJECT TO PLAN AND STOCKHOLDERS AGREEMENT. By entering
into this Agreement the Participant agrees and acknowledges that the Participant
has received and read a copy of the Plan and the Stockholders Agreement. The
Option and the Shares received upon exercise of the Option are subject to the
Plan and the Stockholders Agreement. The terms and provisions of the Plan and
the Stockholders Agreement, as it may be amended from time to time, are hereby
incorporated by reference. In the event of a conflict between any term or
provision contained herein and a term or provision of the Plan or the
Stockholders Agreement, the applicable terms and provisions of the Plan or the
Stockholders Agreement will govern and prevail. In the event of a conflict
between any term or provision of the Plan and any term or provision of the
Stockholders Agreement, the applicable terms and provisions of the Stockholders
Agreement will govern and prevail.
13. SIGNATURE IN COUNTERPARTS. This Agreement may be signed in
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered
by the parties hereto.
CPI ACQUISITION CORP.
Signed: ______________________________
By: ▇.▇. ▇▇▇▇▇▇▇▇▇▇
Its: Chief Executive Officer
Signed: ______________________________
Participant: <>