EXHIBIT 10.12
AWARD AGREEMENT
Under The
▇▇▇▇▇▇▇ Business Services, Inc.
2003 Stock Incentive Plan
NONQUALIFIED STOCK OPTION
Corporation: ▇▇▇▇▇▇▇ BUSINESS SERVICES, INC.
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Participant: -------------------------------
-------------------------------
-------------------------------
Date: -------------------------------
Corporation maintains the ▇▇▇▇▇▇▇ Business Services, Inc., 2003
Stock Incentive Plan (the "Plan").
This Award Agreement evidences the grant of a Nonqualified Stock
Option (the "Option") to Participant.
The parties agree as follows:
1. Defined Terms
When used in this Agreement, the following terms have the meaning
specified below:
(a) "Acquiring Person" means any person or related person or related
persons which constitute a "group" for purposes of Section 13(d) and Rule
13d-5 under the Securities Exchange Act of 1934 (the "Exchange Act"), as
such Section and Rule are in effect as of the Grant Date; provided,
however, that the term Acquiring Person shall not include (i) Corporation
or any of its Subsidiaries, (ii) any employee benefit plan of Corporation
or any of its Subsidiaries, (iii) any entity holding voting capital stock
of Corporation for or pursuant to the terms of any such employee benefit
plan, or (iv) any person or group solely because such person or group has
voting power with respect to capital stock of Corporation arising from a
revocable proxy or consent given in response to a public proxy or consent
solicitation made pursuant to the Exchange Act.
(b) "Change in Control" means:
(i) A change in control of Corporation of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of
Regulation 14A as in effect on the Grant Date pursuant to the
Exchange Act; provided that, without limitation, such a change in
control shall be deemed to have occurred at
-1-
such time as any Acquiring Person hereafter becomes the "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of 30 percent or more of the combined voting power of
Voting Securities; or
(ii) During any period of 12 consecutive calendar months,
individuals who at the beginning of such period constitute the Board
cease for any reason to constitute at least a majority thereof
unless the election, or the nomination for election, by Corporation
shareholders of each new director was approved by a vote of at least
a majority of the directors then in office who were directors at the
beginning of the period; or
(iii) There shall be consummated (i) any consolidation or merger
of Corporation in which Corporation is not the continuing or
surviving corporation or pursuant to which Voting Securities would
be converted into cash, securities, or other property, other than a
merger of Corporation in which the holders of Voting Securities
immediately prior to the merger have the same proportionate
ownership of common stock of the surviving corporation immediately
after the merger, or (ii) any sale, lease, exchange, or other
transfer (in one transaction or a series of related transactions) of
all, or substantially all, of the assets of Corporation; or
(iv) Approval by the shareholders of Corporation of any plan or
proposal for the liquidation or dissolution of Corporation.
(c) "Change in Control Date" means the first date following the
Grant Date on which a Change in Control has occurred.
(d) "Employer" means Corporation or a Subsidiary of Corporation.
(e) "Grant Date" means the date the Option is granted, which is
reflected as the date of this Agreement.
(f) "Voting Securities" means Corporation's issued and outstanding
securities ordinarily having the right to vote at elections for director.
(g) Capitalized terms not otherwise defined in this Agreement have
the meanings given them in the Plan.
2. Grant of Option
Subject to the terms and conditions of this Agreement and the Plan,
Corporation grants to Participant the Option to purchase _________ shares of
Corporation's common stock at $ _____ per share [not less than 75 percent of the
Fair Market Value of a Share on the date of grant].
-2-
3. Terms of Option
The Option is subject to all the provisions of the Plan and to the
following terms and conditions:
3.1 Term. The term of the Option is ten years from the Grant Date
and will automatically terminate on ________, ____, to the extent not exercised,
unless terminated earlier in accordance with this Agreement.
3.2 Time of Exercise. Unless the Option is otherwise terminated or
the time of its exercisability is accelerated in accordance with this Agreement,
the Option may be exercised from time to time to purchase Shares up to the
following limits (based on years after the Grant Date and including any Shares
previously purchased pursuant to the Option):
(a) During the first year - none;
(b) During the second year - up to 25 percent of the total Shares;
(c) During the third year - up to 50 percent of the total Shares;
(d) During the fourth year - up to 75 percent of the total Shares;
and
(e) After the fourth year - 100 percent.
3.3 Employment Requirement. Except as otherwise provided in
subsection 3.4 of this Agreement, the Option may not be exercised unless
Participant is employed by an Employer continuously for at least one year
following the Grant Date, unless employment is terminated by death, Disability,
or Retirement. For purposes of this Agreement, "employment" includes periods of
illness or other leaves of absence authorized by the Employer. If Participant
ceases to be an active employee, the Option will remain exercisable, to the
extent the Option had become exercisable on or before the termination date, and
the right to exercise the Option will expire at the end of the following
periods:
After Termination
On Account Of Period
----------------- ------
Death 1 year
Retirement 3 months
Disability 1 year
Any other reason 3 months
3.4 Acceleration of Exercisability. Notwithstanding the schedule
provided in subsection 3.2, the Option will become fully exercisable (unless
Participant chooses to decline accelerated Vesting of all or any portion of the
Option) upon the occurrence of either:
(a) Participant's death or termination of employment by reason of
Disability or Retirement; or
-3-
(b) A Change in Control Date.
3.5 Method of Exercise. The Option, or any portion thereof, may be
exercised, to the extent it has become exercisable pursuant to this Agreement,
by delivery of written notice to Corporation stating the number of Shares, form
of payment, and proposed date of closing.
3.6 Other Documents. Participant will be required to furnish to
Corporation before closing such other documents or representations as
Corporation may require to assure compliance with applicable laws and
regulations.
3.7 Payment. The exercise price for the Shares purchased upon
exercise of the Option must be paid in full at or before closing by one or a
combination of the following:
(a) Payment in cash;
(b) Delivery of previously acquired Shares having a Fair Market
Value equal to the exercise price; or
(c) With the prior approval of the Committee, by delivery (in a form
approved by the Committee) of an irrevocable direction to a securities
broker acceptable to the Committee:
(i) To sell Shares subject to the Option and to deliver all or a
part of the sales proceeds to Corporation in payment of all or a
part of the option price and withholding taxes due; or
(ii) To pledge Shares subject to the Option to the broker as
security for a loan and to deliver all or a part of the loan
proceeds to Corporation in payment of all or a part of the exercise
price and withholding taxes due.
3.8 Previously Acquired Shares. Delivery of previously acquired
Shares in full or partial payment for the exercise of the Option will be subject
to the following conditions:
(a) The Shares tendered must be in good delivery form;
(b) The Fair Market Value of the Shares tendered, together with the
amount of cash, if any, tendered must equal or exceed the exercise price
of the Option;
(c) Any Shares remaining after satisfying the payment for the Option
will be reissued in the same manner as the Shares tendered; and
(d) No fractional Shares will be issued and cash will not be paid to
Participant for any fractional Share value not used to satisfy the Option
exercise price.
3.9 Reload Option. In the event all or a portion of the Option is
exercised by Participant by delivering previously acquired Shares, Participant
will be granted automatically a replacement Option for a number of Shares equal
to the number of Shares delivered to
-4-
Corporation by Participant upon exercise of the Option. The grant date for such
replacement Option will be the date of exercise and the exercise price for such
replacement Option will be the Fair Market Value of a Share on such grant date.
The replacement Option initially will not be exercisable and will become fully
exercisable six months after the grant date. In all other respects, the
replacement Option will be subject to all the terms and conditions of this Award
Agreement.
4. Tax Withholding and Reimbursement
Corporation is authorized to withhold from Participant's other
compensation any withholding and payroll taxes imposed on Corporation in
connection with or with respect to the exercise or other settlement of the
Option (the "Payroll Taxes"). In the event Participant is no longer an employee
of an Employer at the time of exercise or there is insufficient other income
from which to withhold the Payroll Taxes, Participant agrees to pay to
Corporation an amount sufficient to provide for payment of all Payroll Taxes.
5. Conditions Precedent
Corporation will use its best efforts to obtain approval of the Plan
and this Option by any state or federal agency or authority that Corporation
determines has jurisdiction. If Corporation determines that any required
approval cannot be obtained, this Option will terminate on notice to Participant
to that effect. Without limiting the foregoing, Corporation will not be required
to issue any Shares upon exercise of the Option, or any portion thereof, until
Corporation has taken any action required to comply with all applicable federal
and state securities laws.
6. Termination for Cause; Competition
6.1 Annulment of Awards. The grant of the Option governed by this
Agreement is revocable until Participant becomes entitled to a certificate for
Shares in settlement thereof. In the event the employment of Participant is
terminated for cause (as defined below), any portion of the Option which is
revocable will be annulled as of the date of such termination for cause. For the
purpose of this Section 6.1, the term "for cause" will have the meaning set
forth in Participant's employment agreement, if any, or otherwise means any
discharge (or removal) for material or flagrant violation of the policies and
procedures of the Employer or for other performance or conduct which is
materially detrimental to the best interests of Corporation, as determined by
the Committee.
6.2 Engaging in Competition With Corporation. If Participant
terminates employment with an Employer for any reason whatsoever, and within 18
months after the date thereof accepts employment with any competitor of (or
otherwise engages in competition with) Corporation, the Committee, in its sole
discretion, may require Participant to return to Corporation the economic value
of this Option that is realized or obtained (measured at the date of exercise)
by Participant at any time during the period beginning on the date that is six
months prior to the date of Participant's termination of employment with an
Employer.
-5-
7. Successorship
Subject to restrictions on transferability set forth in the Plan,
this Agreement will be binding upon and benefit the parties, their successors
and assigns.
8. Notices
Any notices under this Option must be in writing and will be
effective when actually delivered personally or, if mailed, when deposited as
registered or certified mail directed to the address of Corporation's records or
to such other address as a party may certify by notice to the other party.
9. Arbitration
Any dispute or claim that arises out of or that relates to this
Agreement or to the interpretation, breach, or enforcement of this Agreement,
must be resolved by mandatory arbitration in accordance with the then effective
arbitration rules of Arbitration Service of Portland, Inc., and any judgment
upon the award rendered pursuant to such arbitration may be entered in any court
having jurisdiction thereof.
10. Attorney Fees
In the event of any suit or action or arbitration proceeding to
enforce or interpret any provision of this Agreement (or which is based on this
Agreement), the prevailing party will be entitled to recover, in addition to
other costs, reasonable attorney fees in connection with such suit, action,
arbitration, and in any appeal. The determination of who is the prevailing party
and the amount of reasonable attorney fees to be paid to the prevailing party
will be decided by the arbitrator or arbitrators (with respect to attorney fees
incurred prior to and during the arbitration proceedings) and by the court or
courts, including any appellate courts, in which the matter is tried, heard, or
decided, including the court which hears any exceptions made to an arbitration
award submitted to it for confirmation as a judgment (with respect to attorney
fees incurred in such confirmation proceedings).
▇▇▇▇▇▇▇ BUSINESS SERVICES, INC.
By ----------------------------------
Its ----------------------------------
--------------------------------------
Participant
-6-