Exhibit 10.5
▇▇▇▇▇▇ CORPORATION
2005 EQUITY COMPENSATION PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
(For Non-Employee Directors)
Pursuant to the ▇▇▇▇▇▇ Corporation 2005 Equity Compensation Plan (the
"Plan"), ▇▇▇▇▇▇ Corporation (the "Company") hereby grants to
_____________________________ (the "Optionee"), a non-qualified stock option
(the "Stock Option") to purchase a maximum of __________ shares of capital stock
of the Company (the "Capital Stock") at the price of $_____ per share, subject
to the terms of this Agreement. The Stock Option is granted as of
_____________________ (the "Grant Date").
1. Timing of Exercise. This Stock Option shall be fully exercisable upon
the Grant Date. This Stock Option shall remain exercisable until it expires on
the tenth anniversary of the Grant Date, regardless of whether the Optionee
continues to be a director of the Company, unless the Stock Option is sooner
terminated as provided in Section 5 below. In the event of the Optionee's death,
this Stock Option may thereafter be exercised by the Optionee's beneficiary
pursuant to the terms of this Agreement.
2. Manner of Exercise. This Stock Option may be exercised in whole or in
part by giving written or electronic notice of exercise to the Company or the
Company's designee designated to accept such notices specifying the number of
shares to be purchased. Payment of the purchase price may be made by one or more
of the following methods:
(a) In cash, by check, or by other instrument acceptable to the
Company;
(b) In Capital Stock (either actually or by attestation) valued at its
Fair Market Value (as defined in the Plan) as of the date of exercise; or
(c) By a combination of (a) and (b).
The Optionee may also deliver to the Company or the Company's designee
a properly executed exercise notice together with irrevocable instructions to a
broker to promptly deliver to the Company cash, a check or other instrument
acceptable to the Company to pay the purchase price; provided that the Optionee
and the broker shall comply with such procedures and enter into such agreements
of indemnity and other agreements as the Company shall prescribe as a condition
of such payment. Payment instructions will be received subject to collection.
Ownership of shares of Capital Stock to be purchased pursuant to the
exercise of the Stock Option will be contingent upon receipt by the Company of
the full purchase price for such shares and the fulfillment of any other
requirements contained in the Plan, this Agreement and applicable provisions of
law. In the event the Optionee chooses to pay the purchase price by
previously-owned shares of Capital Stock through the attestation method, only
the net amount of shares shall be issued.
1 of 4
3. Stock Option Transferable in Limited Circumstances. This Stock Option
may be transferred to a family member, trust or charitable organization to the
extent permitted by applicable law; provided that the transferee agrees in
writing with the Company to be bound by the terms of this Agreement and the
Plan. Except as permitted in the preceding sentence, the Stock Option is not
transferable otherwise than by will or by the laws of descent and distribution,
and this Stock Option shall be exercisable during the Optionee's lifetime only
by the Optionee.
4. Stock Option Shares. The shares to be issued under the Plan are shares
of the Capital Stock of the Company as constituted as of the date of this
Agreement, subject to adjustment as provided in Section 3(b) of the Plan.
5. Sale Event. The occurrence of a Sale Event (as defined in the Plan)
shall cause this Stock Option to terminate, to the extent not then exercised,
unless any surviving entity agrees to assume this Stock Option.
6. Rights as a Shareholder. The Optionee shall have the rights of a
shareholder only as to shares of Capital Stock acquired upon exercise of the
Stock Option and not as to any shares of Capital Stock covered by unexercised
Stock Options. Except as otherwise expressly provided in the Plan, no adjustment
shall be made for dividends or other rights for which the record date is prior
to the date such shares are acquired.
7. Tax Status. The Stock Option is not intended to qualify as an incentive
stock option under Section 422 of the Internal Revenue Code of 1986, as amended.
8. The Plan. The Stock Option is subject in all respects to the terms,
conditions, limitations and definitions contained in the Plan. In the event of
any discrepancy or inconsistency between this Agreement and the Plan, the terms
and conditions of the Plan shall control. Capitalized terms in this Agreement
shall have the meaning specified in the Plan, unless a different meaning is
specified herein.
9. No Obligation to Exercise Stock Option. The grant and acceptance of the
Stock Option imposes no obligation on the Optionee to exercise it.
10. Notices. Notices hereunder shall be mailed or delivered to the Company
at its principal place of business and shall be mailed or delivered to the
Optionee at the address on file with the Company or, in either case, at such
other address as one party may subsequently furnish to the other party in
writing.
11. Purchase Only for Investment. To insure the Company's compliance with
the Securities Act of 1933, as amended, the Optionee agrees for himself or
herself, the Optionee's legal representatives and estate, or other persons who
acquire the right to exercise the Stock Option upon his or her death, that
shares will be purchased in the exercise of the Stock Option for investment
purposes only and not with a view to their distribution, as that term is used in
the Securities Act of 1933, as amended, unless in the opinion of counsel to the
Company such distribution is in compliance with or exempt from the registration
and prospectus requirements of that Act.
2 of 4
12. Governing Law. This Agreement and the Stock Option shall be governed by the
laws of the Commonwealth of Massachusetts, United States of America.
13. Beneficiary Designation. The Optionee hereby designates the following
person(s) as the Optionee's beneficiary(ies) to whom shall be transferred any
rights under the Stock Option which survive the Optionee's death. If the
Optionee names more than one primary beneficiary and one or more of such primary
beneficiaries die, the deceased primary beneficiary's interest will be
apportioned among any surviving primary beneficiaries before any contingent
beneficiary receives any amount, unless the Optionee indicates otherwise in a
signed and dated additional page. The same rule shall apply within the category
of contingent beneficiaries. Unless the Optionee has specified otherwise herein,
any rights which survive the Optionee's death will be divided equally among the
Optionee's primary beneficiaries or contingent beneficiaries, as the case may
be.
PRIMARY BENEFICIARY(IES)
Name % Address
(a) _____________________________ ____ ________________________
(b) _____________________________ ____ ________________________
(c) _____________________________ ____ ________________________
CONTINGENT BENEFICIARY(IES)
Name % Address
(a) _____________________________ ____ ________________________
(b) _____________________________ ____ ________________________
(c) _____________________________ ____ ________________________
In the absence of an effective beneficiary designation, the Optionee
acknowledges that any rights under the Stock Option which survive the Optionee's
death shall be rights of his or her estate.
▇▇▇▇▇▇ CORPORATION
By: ____________________________________________
Name:
Title:
3 of 4
The undersigned hereby acknowledges receipt of the foregoing Stock
Option and agrees to its terms and conditions:
------------------------------------------
Optionee
4 of 4