Exhibit 4.12
NON-QUALIFIED STOCK OPTION AGREEMENT
pursuant to the
OXFORD INVESTMENTS HOLDINGS INC. NON-QUALIFIED STOCK OPTION PLAN
* * * * *
Optionee:
Grant Date:
Per Share Exercise Price: $________
Number of Option Shares subject to this Option: ________________
* * * * *
THIS NONQUALIFIED STOCK OPTION AGREEMENT (the "Option Agreement"), dated as of
the grant date set forth above is entered into by and between Oxford Investments
Holdings Inc. (the "Company") and the optionee listed above (the "Optionee")
pursuant to the Oxford Investments Holdings Inc. Non-Qualified Stock Option Plan
as in effect and as amended from time to time (the "Plan"):
W I T N E S S E T H:
WHEREAS, the Optionee is a Key Person (as defined in the Plan), and it is
important to the Company that the Optionee be encouraged to remain a Key Person
of the Company or any Subsidiary of the Company; and
WHEREAS, in recognition of such facts, the Company desires to provide to the
Optionee an opportunity to purchase shares of the common stock of the Company,
as hereinafter provided, pursuant to the Plan, a copy of which has been provided
to the Optionee; and
WHEREAS, any capitalized terms used but not defined herein have the same
meanings given them in the Plan.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth
and for other good and valuable consideration, the Optionee and the Company
hereby agree as follows:
Section 1. Grant of Stock Option. The Company hereby grants to the Optionee a
nonqualified stock option (the "Stock Option") to purchase all or any part of
the number of shares of its common stock, no par value (the "Stock") as set
forth above, under and subject to the terms and conditions of this Option
Agreement and the Plan which is incorporated herein by reference and made a part
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hereof for all purposes. The purchase price for each share to be purchased
hereunder shall be the option price set forth above (the "Option Price"). This
Stock Option shall not constitute an incentive stock option within the meaning
of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Internal Revenue Code of 1986, as amended
(the "Code").
Section 2. Times of Exercise of Stock Option. After, and only after, the
conditions of Section 9 hereof have been satisfied, the Optionee shall be
eligible to exercise the Stock Option pursuant to the vesting schedule set forth
on the attached Exhibit A (the "Vesting Schedule" or "Schedule"). If the
Optionee is a Key Person with the Company (or of any one or more of the
Subsidiaries of the Company) and remains a Key Person at all times prior to any
of the exercise dates specified on the Vesting Schedule (the "Exercise Dates"),
then the Optionee shall be entitled, subject to the applicable provisions of the
Plan and this Option Agreement having been satisfied, to exercise the Stock
Option and purchase on or after the applicable Exercise Date, on a cumulative
basis, the number of shares of Stock determined by multiplying the aggregate
number of shares of Stock subject to the Stock Option set forth on the Vesting
Schedule by the designated percentage set forth on the Vesting Schedule.
Section 3. Term of Stock Option. Subject to earlier termination as hereafter
provided, the Stock Option shall expire at the close of business on the
expiration date set forth on the Schedule and may not be exercised after such
expiration date; provided, however, in no event shall the term of the Stock
Option be longer than ten years from the Date of Grant. At all times during the
period commencing with the date the Stock Option is granted to the Optionee and
ending on the earlier of the expiration of the Stock Option or the date which is
three months prior to the date the Stock Option is exercised by the Optionee,
the Optionee must be a Key Person of either (i) the Company, (ii) a Subsidiary
of the Company, or (iii) a corporation or a parent or a Subsidiary of such
corporation issuing or assuming a Stock Option in a transaction to which Section
424(a) of the Code applies.
Section 4. Nontransferability of Stock Option. The Stock Option is not
transferable otherwise than by will or the laws of descent and distribution, and
the Stock Option may be exercised, during the lifetime of the Optionee, only by
the Optionee. More particularly (but without limiting the generality of the
foregoing), the Stock Option may not be assigned, transferred (except as
provided above), pledged or hypothecated in any way, shall not be assignable by
operation of law and shall not be subject to execution, attachment, or similar
process. Any attempted assignment, transfer, pledge, hypothecation or other
disposition of, or the levy of execution, attachment or similar process upon,
the Stock Option contrary to the provisions hereof shall be null and void and
without effect, shall give no right to any purported transferee and may, in the
Committee's sole discretion, result in the forfeiture of the Stock Option.
Section 5. Employment. If the Optionee is an employee, so long as the Optionee
shall continue to be a full-time or part-time and continuous employee of the
Company, a subsidiary, a partnership or a limited liability company which the
Company controls, the Stock Option shall not be affected by any change of duties
or position. Nothing in the Plan or in this Option Agreement shall confer upon
the Optionee any right to continue in such employment, or interfere in any way
with the right of the employer to terminate the Optionee's employment at any
time.
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Section 6. Acceleration of Otherwise Unexercisable Stock Option on Death,
Disability or Other Special Circumstances. The Compensation Committee, in its
sole discretion, may permit (i) an Optionee who terminates employment due to a
Disability, (ii) the personal representative of a deceased Optionee, or (iii)
any other Optionee who terminates employment upon the occurrence of special
circumstances (as determined by the Committee) to purchase all or any part of
the unvested shares subject to the Stock Option on the date of the Optionee's
termination of employment due to a Disability, death or special circumstance, or
as the Committee otherwise so determines. With respect to shares subject to the
Stock Option for which the applicable Exercise Date(s) has occurred or for which
the Compensation Committee has permitted purchase in accordance with the
foregoing provisions, the Optionee, or the representative of a deceased
Optionee, shall automatically have the right to purchase such shares within
three months of such date of termination of employment, one year in the case of
a Optionee suffering a Disability or in the case of a deceased Optionee.
Section 7. Method of Exercising Stock Option.
(a) Procedures for Exercise. The manner of exercising the Stock Option shall be
by written notice to the Secretary of the Company at the time the Stock Option,
or part thereof, is to be exercised, and in any event prior to the expiration of
the Stock Option. Such notice shall state the election to exercise the Stock
Option, the number of shares of Stock to be purchased upon exercise, the form of
payment to be used, and shall be signed by the person so exercising the Stock
Option.
(b) Form of Payment. Payment in full for shares of Stock purchased under this
Option Agreement shall accompany the Optionee's notice of exercise, together
with payment for any applicable withholding taxes. Payment shall be made (i) in
cash or by check, bank draft or money order payable to the order of the Company;
(ii) by tendering, by either actual delivery of shares or by attestation, shares
of Stock acceptable to the Committee having a Fair Market Value on the date of
payment equal to the amount of the Option Price; or (iii) a combination thereof.
In addition to the foregoing, the Committee may permit a Optionee to elect to
pay the Option Price by irrevocably authorizing a third party to sell shares of
Stock (or a sufficient portion of the shares) acquired upon exercise of the
Stock Option and remit to the Company a sufficient portion of the sale proceeds
to pay the entire Option Price and any tax withholding resulting from such
exercise.
c) Further Information. In the event the Stock Option is exercised, pursuant to
the foregoing provisions of this Section 7, by any person other than the
Optionee due to the death of the Optionee, such notice shall also be accompanied
by appropriate proof of the right of such person to exercise the Stock Option.
The notice so required shall be given by personal delivery to the Secretary of
the Company or by registered or certified mail, addressed to the Company at ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, and it shall
be deemed to have been given when it is so personally delivered or when it is
deposited in the mail in an envelope addressed to the Company, as aforesaid,
properly stamped for delivery as a registered or certified letter.
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Section 8. Acceleration of Stock Option Upon Corporate Event. If the Company
shall, pursuant to action by the Board, at any time propose to dissolve or
liquidate or merge into, consolidate with, or sell or otherwise transfer all or
substantially all of its assets to another corporation and provision is not made
pursuant to the terms of such transaction for the assumption by the surviving,
resulting or acquiring corporation of outstanding options under the Plan, or for
the substitution of new options therefor, the Committee shall cause written
notice of the proposed transaction to be given to each Optionee no less than 40
days prior to the anticipated effective date of the proposed transaction, and
the Optionee's Stock Option shall become 100% vested. Prior to a date specified
in such notice, which shall be not more than ten days prior to the anticipated
effective date of the proposed transaction, each Optionee shall have the right
to exercise his or her Stock Option to purchase any or all of the Stock then
subject to such Stock Option. Each Optionee, by so notifying the Company in
writing, may, in exercising his or her Stock Option, condition such exercise
upon, and provide that such exercise shall become effective immediately prior to
the consummation of the transaction, in which event such Optionee need not make
payment for the Stock to be purchased upon exercise of such Stock Option until
five days after receipt of written notice by the Company to such Optionee that
the transaction has been consummated. If the transaction is consummated, each
Stock Option, to the extent not previously exercised prior to the date specified
in the foregoing notice, shall terminate on the effective date such transaction
is consummated. If the transaction is abandoned, (i) any Stock not purchased
upon exercise of such Stock Option shall continue to be available for purchase
in accordance with the other provisions of the Plan and (ii) to the extent that
any Stock Option not exercised prior to such abandonment shall have vested
solely by operation of this Section 8, such vesting shall be deemed voided as of
the time such acceleration otherwise occurred pursuant to Section 8, and the
Vesting Schedule set forth in the Notice shall be reinstituted as of the date of
such abandonment.
Section 9. Securities Law Restrictions. The Stock Option shall be exercised and
Stock issued only upon compliance with the Securities Act of 1933, as amended
(the "Act"), and any other applicable securities law, or pursuant to an
exemption therefrom. If deemed necessary by the Company to comply with the Act
or any applicable laws or regulations relating to the sale of securities, the
Optionee, at the time of exercise and as a condition imposed by the Company,
shall represent, warrant and agree that the shares of Stock subject to the Stock
Option are being purchased for investment and not with any present intention to
resell the same and without a view to distribution, and the Optionee shall, upon
the request of the Company, execute and deliver to the Company an agreement to
such effect. The Optionee acknowledges that any stock certificate representing
Stock purchased under such circumstances will be issued with a restricted
securities legend.
Section 10. Payment of Withholding Taxes. An Optionee must pay the amount of
taxes required by law upon the exercise of an Option in cash. If the Company
shall be required to withhold any federal, state, local or foreign tax in
connection with exercise of this Option, it shall be a condition to such
exercise that the Optionee pay or make provision satisfactory to the Company for
payment of all such taxes. The Optionee may elect that all or any part of such
withholding requirement be satisfied by retention by the Company of a portion of
the shares purchased upon exercise of this Option. If such election is made, the
shares so retained shall be credited against such withholding requirement at the
fair market value on the date of exercise.
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Section 11. Notices. Any notice hereunder by the Optionee to the Company shall
be in writing and shall be deemed duly given if mailed or delivered to the
Company at its principal office, addressed to the attention of Stock Plan
Administration or if so mailed or delivered to such other address as the Company
may hereafter designate by notice to the Optionee. Any notice hereunder by the
Company to the Optionee shall be in writing and shall be deemed duly given if
mailed or delivered to the Optionee at the address specified below by the
Optionee for such purpose, or if so mailed or delivered to such other address as
the Optionee may hereafter designate by written notice given to the Company.
Section 12. Compliance with Section 409A of the Code. To the extent applicable,
it is intended that this Agreement and the Plan comply with the provisions of
Section 409A of the United States Internal Revenue Code, so that the income
inclusion provisions of Section 409A(a)(1) do not apply to Optionee. This
Agreement and the Plan shall be administered in a manner consistent with this
intent, and any provision that would cause the Agreement or the Plan to fail to
satisfy Section 409A of the Code shall have no force and effect until amended to
comply with Section 409A of the Code (which amendment may be retroactive to the
extent permitted by Section 409A of the Code and may be made by the Company
without the consent of the Optionee).
Section 13. Compliance with Law. The Company shall make reasonable efforts to
comply with all applicable federal and state securities laws; provided, however,
that notwithstanding any other provision of this Option Agreement, the Option
shall not be exercisable if the exercise thereof would result in a violation of
any such law.
Section 14. Rights as Stockholder. Neither the Optionee nor any executor,
administrator, distributee or legatee of the Optionee's estate shall be, or have
any of the rights or privileges of, a stockholder of the Company in respect of
any shares of Stock issuable hereunder unless and until such shares have been
fully paid and certificates representing such shares have been endorsed,
transferred and delivered, and the name of the Optionee (or of such personal
representative, administrator, distributee or legatee of the Optionee's estate)
has been entered as the stockholder of record on the books of the Company.
Section 15. Disclaimer of Rights. No provision in this Option Agreement shall be
construed to confer upon the Optionee the right to be employed by the Company or
any subsidiary, or to interfere in any way with the right and authority of the
Company or any subsidiary either to increase or decrease the compensation of the
Optionee at any time, or to terminate any employment or other relationship
between the Optionee and the Company or any subsidiary.
Section 16. Interpretation of this Option Agreement. All decisions and
interpretations made by the Board or the Compensation Committee thereof with
regard to any question arising under the Plan or this Option Agreement shall be
binding and conclusive on the Company and the Optionee and any other person
entitled to exercise the Option as provided for herein.
Section 17. Governing Law. This Option Agreement shall be governed by the laws
of the Ontario, Canada. (but not including the choice of law rules thereof).
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Section 18. Binding Effect. Subject to all restrictions provided for in this
Option Agreement, the Plan, and by applicable law relating to assignment and
transfer of this Option Agreement and the Option provided for herein, this
Option Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, executors, administrators, successors and
assigns.
Section 19. Severability. If one or more of the provisions of this Option
Agreement is invalidated for any reason by a court of competent jurisdiction,
any provision so invalidated shall be deemed to be separable from the other
provisions hereof, and the remaining provisions hereof shall continue to be
valid and fully enforceable.
Section 20. Entire Agreement; Eligibility. This Option Agreement and the Plan
together constitute the entire agreement and supersedes all prior understandings
and agreements, written or oral, of the parties hereto with respect to the
subject matter hereof. Except for amendments to the Plan incorporated into this
Option Agreement by reference pursuant to the preamble above, neither this
Option Agreement nor any term hereof may be amended, waived, discharged or
terminated except by a written instrument signed by the Company and the
Optionee; provided, however, that the Company unilaterally may waive any
provision hereof in writing to the extent that such waiver does not adversely
affect the interests of the Optionee 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 the event that it is determined that the
Optionee was not eligible to receive this Option, the Option and this Option
Agreement shall be null and void and of no further effect.
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SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have duly executed this Option Agreement,
or caused this Option Agreement to be duly executed on their behalf, as of the
day and year first above written.
Oxford Investments Holdings Inc. Optionee:
By: _______________________ By: _______________________
Print Name and Title Print Name:
ADDRESS FOR NOTICE TO OPTIONEE:
Number Street Apt.
City State Zip Code
SS# Hire Date (if applicable)
DESIGNATED BENEFICIARY:
Please Print: Last Name, First Name, MI
Beneficiary's Street Address
City State Zip Code
Beneficiary's Social Security Number
I understand that in the event of my death, the above named beneficiary will
have control of any unexercised options remaining in my account at that time. If
no beneficiary is designated or if the named beneficiary does not survive me,
the options will become part of my estate. This beneficiary designation does NOT
apply to stock acquired by the exercise of options prior to my death.
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SIGNATURE DATE
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After completing this page, please make a copy for your records and return it to
Stock Plan Administration, Oxford Investments Holdings Inc.
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Exhibit A
Vesting Schedule
Non-Qualified Stock Option Agreement
The option granted by the Compensation Committee in the attached Non-Qualified
Stock Option Agreement shall vest on the anniversary dates indicated below:
-------------------------------- ----------------------- -----------------------
Period or Date Vesting Percentage Cumulative Vesting
Percentage
-------------------------------- ----------------------- -----------------------
At Grant Date 20% 20%
-------------------------------- ----------------------- -----------------------
One Year from Grant Date 20% 40%
-------------------------------- ----------------------- -----------------------
Two Years from Grant Date 20% 60%
-------------------------------- ----------------------- -----------------------
Three Years from Grant Date 20% 80%
-------------------------------- ----------------------- -----------------------
Four Years from Grant Date 20% 100%
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