EXHIBIT 4.3
FORM OF STOCK
OPTION AGREEMENT
KINARK CORPORATION
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "Agreement") is entered
into as of the
day of , 199__, by and between Kinark
Corporation, a Delaware
corporation (the "Company"), and _________________ (the
"Optionee").
W I T N E S S E T H:
WHEREAS, on April 1, 1996, the Board of Directors of the
Company adopted a
stock option plan known as the "Kinark Corporation 1996 Stock
Option Plan" (the
"Plan"), and recommended that the Plan be approved by the
Company's
shareholders; and
WHEREAS, on June 5, 1996, the shareholders of the Company
approved the
Plan; and
WHEREAS, the Committee has granted the Optionee a stock
option to purchase
the number of shares of the Company's common stock as set forth
below, and in
consideration of the granting of that stock option the Optionee
intends to
remain in the employ of the Company; and
WHEREAS, the Company and the Optionee desire to enter into
this Stock
Option Agreement in accordance with the Plan; and
NOW, THEREFORE, as an employment incentive and to encourage
stock
ownership, and also in consideration of the mutual covenants
contained herein,
the parties hereto agree as follows.
1. Incorporation of Plan. This option is granted pursuant
to the
provisions of the Plan and the terms and definitions of the Plan
are
incorporated herein by reference and made a part hereof.
Capitalized terms not
defined herein shall have the meanings ascribed to them in the
Plan. A copy of
the Plan has been delivered to, and receipt is hereby
acknowledged by, the
Optionee. Notwithstanding anything in this Agreement to the
contrary, to the
extent the terms of this Agreement conflict with or otherwise
attempt to exceed
the authority set forth under the terms of the Plan, the Plan
shall govern and
control in all respects.
2. Grant of Option. Subject to the terms, restrictions,
limitations and
conditions stated herein and under the Plan, the Company hereby
evidences its
grant to the Optionee, not in lieu of salary or other
compensation, of the
right and option (the "Option") to purchase all or any part of
the number of
shares of the Company's Common Stock, par value $.10 per share
(the "Stock"),
set forth on Schedule A attached hereto and incorporated herein
by reference.
The Option shall be exercisable in the amounts and at the times
specified on
Schedule A. The Option shall expire and shall not be exercisable
on the date
specified on Schedule A or on such earlier date as determined
pursuant to
Section 8 hereof. Schedule A states whether the Option is
intended to be an
Incentive Stock Option. Neither the Company, nor any Subsidiary
or any
Director or Officer of the Company or any Subsidiary warrants or
otherwise
represents that (i) any Option granted under this Plan shall be
considered an
Incentive Stock Option for applicable tax purposes, or (ii)
favorable or
desirable tax treatment or characterization will be applicable in
respect of
any Option.
3. Purchase Price. The price per share to be paid by the
Optionee for
the shares subject to this Option (the "Exercise Price") shall be
as specified
on Schedule A, which price shall be an amount not less than the
Fair Market
Value of a share of Stock as of the Date of Grant (as defined in
Section 9
below) if the Option is an Incentive Stock Option.
4. Exercise Terms. The Optionee must exercise the Option
for at least
the lesser of 100 shares or the number of shares of Vested Stock
as to which
the Option remains unexercised. In the event this Option is not
exercised with
respect to all or any part of the shares subject to this Option
prior to its
expiration, the shares with respect to which this Option was not
exercised
shall no longer be subject to this Option.
5. Restrictions on Transferability. No Option shall be
transferable by
an Optionee other than by will or the laws of descent and
distribution;
provided, however non-Incentive Stock Options may also be
transferred, pursuant
to a Qualified Domestic Relations Order. During the lifetime of
an Optionee,
Options shall be exercisable only by such Optionee (or by such
Optionee's
guardian or legal representative, should one be appointed).
6. Notice of Exercise of Option. This Option may be
exercised by the
Optionee, or by the Optionee's administrators, executors or
personal
representatives, by a written notice (in substantially the form
of the Notice
of Exercise attached hereto as Schedule B) signed by the
Optionee, or by such
administrators, executors or personal representatives, and
delivered or mailed
to the Company as specified in Section 12(c) hereof to the
attention of the
President or such other officer as the Company may designate.
Any such notice
shall (a) specify the number of shares of Stock which the
Optionee or the
Optionee's administrators, executors or personal representatives,
as the case
may be, then elects to purchase hereunder, (b) contain such
information as may
be reasonably required pursuant to Section 10 hereof, and (c) be
accompanied by
(i) a certified or cashier's check payable to the Company in
payment of the
total Exercise Price applicable to such shares as provided
herein, (ii) shares
of Stock owned by the Optionee and duly endorsed or accompanied
by stock
transfer powers having a Fair Market Value equal to the total
Exercise Price
applicable to such shares purchased hereunder, or (iii) a
certified or
cashier's check accompanied by the number of shares of Stock
whose Fair Market
Value when added to the amount of the check equals the total
Exercise Price
applicable to such shares purchased hereunder. Upon receipt of
any such notice
and accompanying payment, and subject to the terms hereof, the
Company agrees
to issue to the Optionee or the Optionee's administrators,
executors or
personal representatives, as the case may be, stock certificates
for the number
of shares specified in such notice registered in the name of the
person
exercising this Option.
7. Adjustment in Option. The number of shares of stock,
subject to this
Option, the Exercise Price and other matters are subject to
adjustment during
the term of this Option in accordance with the Plan.
8. Termination of Employment.
(a) Except as otherwise specified in Schedule A, in
the event of the
termination of the Optionee's employment with the Company or any
of its
Subsidiaries, other than a termination that is either (i) For
Cause, (ii)
voluntary on the part of the Optionee and without written consent
of the
Company, or (iii) for reasons of death or Disability or
retirement, the
Optionee (or his or her personal representative) may exercise
this Option at
any time within thirty (30) days after such termination to the
extent of the
number of shares which were Purchasable hereunder at the date of
such
termination.
(b) Except as otherwise specified in Schedule A, in
the event of a
termination of the Optionee's employment that is either (i) For
Cause or (ii)
voluntary on the part of the Optionee and without the written
consent of the
Company, this Option, to the extent not previously exercised,
shall terminate
immediately and shall not thereafter be or become exercisable.
(c) Except as otherwise provided in Schedule A, in the
event of the
retirement of the Optionee at the normal retirement date as
prescribed from
time to time by the Company or any Subsidiary, the Optionee shall
continue to
have the right to exercise any Options for shares which were
Vested at the date
of the Optionee's retirement. This Option does not confer upon
the Optionee
any right with respect to continued employment by the Company or
by any of its
Subsidiaries. This Option shall not be affected by any change of
employment so
long as the Optionee continues to be an employee of the Company
or one of its
Subsidiaries.
(d) Except as otherwise specified in Schedule A, in
the event of
termination of employment because of the Optionee's becoming a
Disabled
Optionee, the Optionee (or his or her personal representative)
may exercise
this Option, within a period ending on the earlier of (a) the
last day of the
one (1) year period following the beginning of Optionee's
Disability or (b) the
expiration date of this Option, to the extent of the number of
shares which
were Purchasable hereunder at the date of such termination.
(e) Except as otherwise set forth in Schedule A with
respect to the
rights of the Optionee upon termination of employment under
Section 8(a) above,
in the event of the Optionee's death while employed by the
Company or any of
its Subsidiaries or within three (3) months after a termination
of such
employment (if such termination was neither (i) For Cause nor
(ii) voluntary on
the part of the Optionee and without the written consent of the
Company), the
appropriate persons described in Section 6 hereof or persons to
whom all or a
portion of this Option is transferred in accordance with Section
5 hereof may
exercise this Option at any time within a period ending on the
earlier of (a)
the last day of the one (1) year period following the Optionee's
death or (b)
the expiration date of this Option. If the Optionee was an
employee of the
Company at the time of death, this Option may be so exercised to
the extent of
the number of shares that were Vested hereunder at the date of
death. If the
Optionee's employment terminated prior to his or her death, this
Option may be
exercised only to the extent of the number of shares covered by
this Option
which were Vested hereunder at the date of such termination.
9. Date of Grant. This Option was granted by the Board of
Directors of
the Company on the date set forth in Schedule A (the "Date of
Grant").
10. Compliance with Regulatory Matters. The Optionee
acknowledges that
the issuance of capital stock of the Company is subject to
limitations imposed
by federal and state law and the Optionee hereby agrees that the
Company shall
not be obligated to issue any shares of Stock upon exercise of
this Option that
would cause the Company to violate any law or any rule,
regulation, order or
consent decree of any regulatory authority (including without
limitation the
Securities and Exchange Commission) having jurisdiction over the
affairs of the
Company. The Optionee agrees that he or she will provide the
Company with such
information as is reasonably requested by the Company or its
counsel to
determine whether the issuance of Stock complies with the
provisions described
by this Section 10.
11. Restriction on Disposition of Shares. The shares
purchased pursuant
to the exercise of an Incentive Stock Option shall not be
transferred by the
Optionee except pursuant to the Optionee's will, or the laws of
descent and
distribution, until such date which is the later of two (2) years
after the
grant of such Incentive Stock Option or one (1) year after the
transfer of the
shares to the Optionee pursuant to the exercise of such Incentive
Stock Option.
12. Miscellaneous.
(a) This Agreement shall be binding upon the parties
hereto and
their representatives, successors and assigns.
(b) This Agreement is executed and delivered in, and
shall be
governed by the laws of, the State of Delaware, without regard to
conflicts of
laws principles.
(c) Any notice, request, document or other
communication required or
permitted to be given hereunder shall be deemed given, and any
elections or
exercises to be made or accomplished shall be deemed made or
accomplished, upon
actual delivery thereof to the designated recipient, or three (3)
days after
deposit thereof in the United States mail, registered, return
receipt requested
and postage prepaid, addressed, if to the Optionee, at the
address set forth
below his or her signature and, if to the Company, to its
executive offices at
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(d) This Agreement may not be modified except in
writing executed by
each of the parties hereto.
(e) This Agreement, together with the Plan, contains
the entire
understanding with the parties hereto and supersedes any prior
understanding
and/or written or oral agreement between them respecting the
subject matter
hereof.
(f) The parties hereto agree that the provisions of
this Agreement
are severable and the invalidity or unenforceability of any
provision in whole
or in part shall not effect the validity or enforceability of any
enforceable
part of such provision or any other provisions hereof.
(g) The section headings herein are included solely
for convenience
of reference and shall not control the meaning or interpretation
of any of the
provisions of this Agreement.
(h) No waiver of any breach or default hereunder shall
be considered
valid unless in writing, and no such waiver shall be deemed a
waiver of any
subsequent breach or default of the same or similar nature.
(i) This Agreement may be executed in one or more
counterparts, each
of which shall be deemed an original but all of which together
shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Stock Option
Agreement to
be executed on its behalf and the Optionee has executed this
Agreement, all as
of the day and year first above written.
KINARK CORPORATION
Attest:
By:
Title:
Secretary
OPTIONEE
Name:
Address:
SCHEDULE A
TO
STOCK OPTION AGREEMENT
BETWEEN
KINARK CORPORATION
AND
[Name of Optionee]
Dated:
1. Number of shares of stock Subject to Option:
shares of
stock.
2. This Option (Check one) [ ] is [ ] is not an Incentive Stock
Option.
3. Option Exercise Price: $ per share.
4. Date of Grant:
5. Option Vesting Schedule:
Check one:
( ) Options are exercisable with respect to all shares
on or after
the date hereof
( ) Options are exercisable with respect to the number
of shares
indicated below on or after the date indicated
next to the
number of shares:
No. of Shares Vesting Date
6. Option Exercise Period:
Check One:
( ) All options expire and are void unless exercised
on or before
.
( ) Options expire and are void unless exercised on or
before the
date indicated next to the number of shares:
No. of Shares Expiration Date
7. Effect of Termination of Employment of Optionee (if
different from that
set forth in Section 8 of the Stock Option Agreement):
SCHEDULE B
NOTICE OF EXERCISE
The undersigned hereby notifies Kinark Corporation (the
"Company") of this
election to exercise the undersigned's stock option to purchase
shares of the Company's common stock, par value $.10 per share
(the "Common
Stock"), pursuant to the Stock Option Agreement (the "Agreement")
between the
undersigned and the Company dated . Accompanying this
Notice is (1) a
check in the amount of $ payable to the Company, and/or
(2)
_______________ shares of the Company's Common Stock presently
owned by the
undersigned and duly endorsed or accompanied by stock transfer
powers, having
an aggregate Fair Market Value (as defined in the Kinark
Corporation 1996 Stock
Option Plan) as of the date hereof of $_____________, such
amounts being equal,
in the aggregate, to the purchase price per share set forth in
Section 3 of the
Agreement multiplied by the number of shares being purchased
hereby (in each
instance subject to appropriate adjustment pursuant to Section 7
of the
Agreement).
IN WITNESS WHEREOF, the undersigned has set his hand and
seal, this
day of .
OPTIONEE [OR OPTIONEE'S
ADMINISTRATOR, EXECUTOR
OR PERSONAL REPRESENTATIVE]
Name:
Position (if other than Optionee):