EXHIBIT 10.3
FORM FOR NSO UNDER MEMRY
CORPORATION STOCK OPTION PLAN
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NONTRANSFERABLE NON-QUALIFIED STOCK OPTION
AGREEMENT dated as of ________ __, 199_, between
MEMRY CORPORATION, a Delaware corporation (the
"Company"), and _______________ (the "Optionee",
which term as used herein shall be deemed to
include any successor to the Optionee by will or
by the laws of descent and distribution, unless
the context shall otherwise require).
Pursuant to the Company's Stock Option Plan, as amended (as so
amended, the "Plan"), the Company, acting through the Compensation Committee of
its Board of Directors (the "Committee"), approved the issuance to the Optionee,
effective as of the date set forth above, of a non-qualified stock option to
purchase up to an aggregate of [# OF SHARES] shares of Common Stock, $.01 par
value, of the Company (the "Common Stock"), at the price (the "Option Price") of
[PRICE] per share, upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual premises and
undertakings hereinafter set forth, the parties hereto agree as follows:
1. OPTION; OPTION PRICE. On behalf of the Company, the Committee
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hereby grants to the Optionee the option (the "Option") to purchase, subject to
the terms and conditions of this Agreement and the Plan (which are incorporated
by reference herein and which in all cases shall control in the event of any
conflict with the terms, definitions and provisions of this Agreement), [# OF
SHARES] shares of Common Stock of the Company at an exercise price per share
equal to the Option Price, which Option is not intended to qualify for federal
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income tax purposes as an "incentive stock option" within the meaning of Section
422 of the Internal Revenue Code of 1986, as amended (the "Code"). A copy of the
Plan as in effect on the date hereof has been supplied to the Optionee, and the
Optionee hereby acknowledges receipt thereof.
2. TERM. The term (the "Option Term") of the Option shall commence
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on the date of this Agreement and shall expire on the tenth anniversary of the
date of this Agreement, unless such Option shall theretofore have been
terminated in accordance with the terms hereof or of the Plan.
3. TIME OF EXERCISE. Unless accelerated in the discretion of the
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Committee or as otherwise provided herein, the Option shall become exercisable
as to the total number of shares of Common Stock subject to the Option in
accordance with Exhibit A attached hereto; provided, however, no part of such
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Option may be exercised by the Optionee until such Optionee shall have remained
in the employ of the Company or any corporation which at the time the Option is
granted qualifies as a "subsidiary corporation" of the Company under Section
424(f) of the Code (any of the aforementioned, a "Participating Company") for at
least one year from the date of grant of the Option, unless employment of the
Optionee is terminated on account of death or a Total Disability (as defined in
Section 4(a)(iii) below). Subject to the provisions of Sections 5 and 8 hereof,
shares as to which the Option becomes exercisable pursuant to the foregoing
provisions may be purchased at any time thereafter prior to the expiration or
termination of the Option.
4. TERMINATION OF OPTION. (a) The unexercised portion of the
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Option (which portion was otherwise exercisable on the date of termination) (the
"Unexercised Portion") shall automatically terminate and shall become null and
void and be of no further force or effect upon the first to occur of the
following:
(i) the expiration of the Option Term;
(ii) the expiration of three months from the date that the
Optionee ceases to be an employee of a Participating Company for any reason
(including death), other than as a result of a Total Disability (as defined
in subparagraph (iii) below), a Resignation (as defined in subparagraph
(iv) below) or a Termination For Cause (as defined in subparagraph (iv)
below)); provided, however, that if the Optionee ceases to be an employee
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other than due to death but subsequently dies during such three-month
period, the Unexercised Portion shall be exercisable by the Optionee's
executors or administrators during such period in accordance with Section
10 hereof;
(iii) the expiration of 12 months from the date that the
Optionee ceases to be an employee of a Participating Company as a result of
the Optionee's permanent and total disability (within the meaning of
Section 22(e)(3) of the Code) (a "Total Disability");
(iv) immediately if the Optionee ceases to be employed by
any Participating Company if such termination is a voluntary termination by
the Optionee (a "Resignation") or a termination for cause or is otherwise
attributable to a breach by the Optionee of an employment, noncompetition
or other similar agreement with a Participating Company (any such
termination, determined in accordance with paragraph (c)
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below, a "Termination For Cause"); provided, however, a retirement on or
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after an early or normal retirement date in accordance with the terms and
conditions of a retirement plan adopted by a Participating Company shall
not be deemed to be a Resignation;
(v) except to the extent permitted by Section 10(f) of the
Plan, the date on which the Option or any part thereof or right or
privilege relating thereto is transferred (otherwise than by will or the
laws of descent and distribution), assigned, pledged, hypothecated,
attached or otherwise disposed of by the Optionee.
(b) Any unexercised portion of the Option which was not
exercisable on the date the Optionee ceases to be employed by any Participating
Company shall terminate at midnight on the date on which such employment ceases.
(c) The Board of Directors of the Company shall have the power
to determine what constitutes a Termination For Cause, and the date upon which
such Termination For Cause occurs. Any such determination shall be final,
conclusive and binding upon the Optionee.
(d) Anything contained herein to the contrary notwithstanding,
the Option shall not be affected by any change of duties or position of the
Optionee (including a transfer to or from any Participating Company), so long as
the Optionee continues to be an employee of a Participating Company.
5. PROCEDURE FOR EXERCISE. (a) The Option may be exercised, from
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time to time, in whole or in part (but for the purchase of whole shares only),
by delivery of a written notice (the "Notice") from the Optionee to the
Secretary of the Company, which Notice shall:
(i) state that the Optionee elects to exercise the Option;
(ii) state the number of shares of Common Stock with respect
to which the Option is being exercised (the "Optioned Shares");
(iii) state the method of payment for the Optioned Shares
pursuant to Section 5(b) hereof;
(iv) state the date upon which the Optionee desires to
consummate the purchase of the Optioned Shares (which date must be
prior to the termination of such Option and no later than 30 days from
the delivery of such Notice);
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(v) include any representations of the Optionee required
under Section 8(b) hereof; and
(vi) if the Option shall be exercised pursuant to Section 10
hereof by any person other than the Optionee, include evidence to the
satisfaction of the Committee of the right of such person to exercise
the Option.
(b) Payment of the Option Price for the Optioned Shares shall be
made (i) in cash or by personal or certified check, (ii) by delivery of stock
certificates (in negotiable form) representing shares of Common Stock that have
been owned of record by the Optionee for at least six months prior to the date
of exercise and that have a Fair Market Value on the date of exercise equal to
the product of (A) the number of Optioned Shares which are being purchased
pursuant to the exercise of such Option, multiplied by (B) the applicable Option
Price, (iii) a combination of either of the methods set forth in clauses (i) and
(ii) above, (iv) (A) by arrangements which are acceptable to the Committee and
as permitted by applicable law whereby the Optionee relinquishes a portion of
the Option, or (B) in compliance with any other cashless exercise program
authorized by the Committee for use in connection with the Plan at the time of
such exercise, or (v) in such other consideration as shall be acceptable to the
Committee. For the purpose of the preceding clause (iv)(A), the fair market
value of the portion of the Option that is relinquished shall be the Fair Market
Value at the time of exercise of the number of Optioned Shares subject to the
portion of the Option that is relinquished less the aggregate Option price
specified in the Option with respect to such Optioned Shares.
(c) The Company shall issue a stock certificate in the name of
the Optionee (or such other person exercising the Option in accordance with the
provisions of Section 10 hereof) for the Optioned Shares as soon as practicable
after receipt of the Notice and payment of the aggregate Option Price for such
shares.
6. NO RIGHTS AS A STOCKHOLDER. The Optionee shall not have any
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privileges of a stockholder of the Company with respect to any Optioned Shares
until the date of issuance of a stock certificate pursuant to Section 5(c)
hereof.
7. ADJUSTMENTS. If the outstanding shares of Common Stock of the
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Company are increased, decreased, or exchanged for a different number or kind of
shares or other securities, or if additional shares or new or different shares
or other securities are distributed with respect to such shares of Common Stock
or other securities, through merger, consolidation, sale of all of substantially
all of the property of the Company, reorganization, recapitalization,
reclassification, stock dividend, stock split, reverse stock split or other
distribution with respect to such
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shares of Common Stock or other securities, then an appropriate and
proportionate adjustment shall be made in (i) the number and kind of shares or
other securities subject to the Option and (ii) the price for each share or
other unit of any other securities subject to the Option without change in the
aggregate purchase price or value as to which such Option remains exercisable or
subject to restrictions. Any adjustment under this Section 7 shall be made by
the Company's Board of Directors, whose determination as to what adjustments
shall be made and the extent thereof will be final, binding and conclusive. No
fractional interests will be issued under the Plan resulting from any such
adjustment.
8. ADDITIONAL PROVISIONS RELATED TO EXERCISE. (a) The Option shall
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be exercisable only on such date or dates and during such period and for such
number of shares of Common Stock as are set forth in this Agreement.
(b) To exercise the Option, the Optionee shall follow the
procedures set forth in Section 5 hereof. Unless at the time of exercise of the
Option there shall be, in the opinion of counsel for the Company, a valid and
effective registration statement under the Securities Act of 1933 (the "'33
Act") and appropriate qualification and registration under applicable state
securities laws relating to the Optioned Shares being acquired pursuant to the
Option, the Optionee shall be required, upon exercise of the Option, to give to
the Company a written representation, in a form reasonably satisfactory to the
Company, that he or she is acquiring the Optioned Shares for his or her own
account for investment and not with a view to, or for sale in connection with,
the resale or distribution of any such shares. The Optionee shall be further
required to agree that he or she will not sell or transfer any Optioned Shares
acquired pursuant to exercise of the Option until he or she requests and
receives an opinion of the Company's counsel to the effect that such proposed
sale or transfer will not result in a violation of the '33 Act, or a
registration statement covering the sale or transfer of the shares has been
declared effective by the Securities and Exchange Commission, or he or she
obtains a no-action letter from the Securities and Exchange Commission with
respect to the proposed transfer.
(c) Stock certificates representing shares of Common Stock
acquired upon the exercise of the Option that have not been registered under the
Securities Act shall bear the following legend:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR
SALE, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES
UNDER SUCH ACT OR AN OPINION OF COUNSEL IN
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FORM AND SUBSTANCE SATISFACTORY TO THE COMPANY THAT SUCH SALE, OFFER
FOR SALE, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION DOES NOT VIOLATE
THE PROVISIONS OF SUCH ACT OR UNLESS SOLD PURSUANT TO RULE 144 OF SUCH
ACT.
9. NO EVIDENCE OF EMPLOYMENT OR SERVICE. Nothing contained in the
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Plan or this Agreement shall confer upon the Optionee any right to continue in
the employ of a Participating Company or interfere in any way with the right of
a Participating Company (subject to the terms of any separate agreement to the
contrary) to terminate the Optionee's employment or to increase or decrease the
Optionee's compensation at any time.
10. RESTRICTION ON TRANSFER. The Option may not be transferred,
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pledged, assigned, hypothecated or otherwise disposed of in any way by the
Optionee, except by will or by the laws of descent and distribution or as may
otherwise be required by law, and may be exercised during the lifetime of the
Optionee only by the Optionee. If the Optionee dies, the Option shall thereafter
be exercisable, during the period specified in Section 4(a)(ii) hereof, by his
or her executors or administrators to the full extent to which the Option was
exercisable by the Optionee at the time of his or her death. The Option shall
not be subject to execution, attachment or similar process. Any attempted
assignment, transfer, pledge, hypothecation or other disposition of the Option
contrary to the provisions hereof, and the levy of any execution, attachment or
similar process upon the Option, shall be null and void and without effect.
11. TAXES. Whenever shares of Common Stock are to be delivered to
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the Optionee upon exercise of the Option, the Company shall be entitled to
require as a condition of delivery that the Optionee remit or, in appropriate
cases, agree to remit when due, an amount sufficient to satisfy all current or
estimated future federal, state and local withholding tax and employment tax
requirements relating thereto; provided, however, if such funds are not so
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remitted to the Company and at such time the Optionee is an Employee of a
Participating Company, the Company may withhold such portion of the Optionee's
salary as is equal to the amount of such tax requirements.
12. NOTICES. All notices or other communications which are required
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or permitted hereunder shall be in writing and sufficient if (i) personally
delivered, (ii) sent by nationally-recognized overnight courier or (iii) sent by
registered or certified mail, postage prepaid, return receipt requested,
addressed as follows:
If to the Optionee, to the address set forth on the signature
page hereto; and
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If to the Company, to:
Memry Corporation
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secretary;
or to such other address as the party to whom notice is to be given may have
furnished to each other party in writing in accordance herewith. Any such
communication shall be deemed to have been given (i) when delivered, if
personally delivered or if sent by nationally-recognized overnight courier, and
(ii) on the third Business Day (as hereinafter defined) following the date on
which the piece of mail containing such communication is posted, if sent by
mail. As used herein, "Business Day" means a day that is not a Saturday, Sunday
or a day on which banking institutions in the city to which the notice or
communication is to be sent are not required to be open.
13. NO WAIVER. No waiver of any breach or condition of this
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Agreement shall be deemed to be a waiver of any other or subsequent breach or
condition, whether of like or different nature.
14. OPTIONEE UNDERTAKING. The Optionee hereby agrees to take
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whatever additional actions and execute whatever additional documents the
Company may in its reasonable judgment deem necessary or advisable in order to
carry out or effect one or more of the obligations or restrictions imposed on
the Optionee pursuant to the express provisions of this Agreement.
15. MODIFICATION OF RIGHTS. The rights of the Optionee are subject
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to modification and termination in certain events as provided in this Agreement
and the Plan.
16. GOVERNING LAW. This Agreement shall be governed by, and
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construed in accordance with, the laws of the State of Delaware applicable to
contracts made and to be wholly performed therein.
17. COUNTERPARTS. This Agreement may be executed in one or more
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counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
18. ENTIRE AGREEMENT. This Agreement and the Plan constitute the
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entire agreement between the parties with respect to the subject matter hereof,
and supersede all previously written or oral negotiations, commitments,
representations and agreements with respect thereto.
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IN WITNESS WHEREOF, the parties hereto have executed this
Nontransferable Non-Qualified Stock Option Agreement as of the date first
written above.
MEMRY CORPORATION
By:________________________________
Name:
Title:
OPTIONEE:
___________________________________
Name: ____________________________
Address: _________________________
_________________________
_________________________
EXHIBIT A
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[description of terms regarding exercise to be inserted]