NATIONAL DENTEX CORPORATION NON-QUALIFIED STOCK OPTION AGREEMENT
Exhibit 10.2
NATIONAL DENTEX CORPORATION
NON-QUALIFIED STOCK OPTION AGREEMENT
NON-QUALIFIED STOCK OPTION AGREEMENT
NON-QUALIFIED STOCK OPTION AGREEMENT dated as of
by and between, NATIONAL
DENTEX CORPORATION, a Massachusetts corporation (the “Company”), and , an
employee of the Company (“Employee”).
WHEREAS, the Company desires to provide Employee with an incentive to promote the business of
the Company and its subsidiaries and to encourage Employee to continue his employment; and
WHEREAS, to effectuate that desire the Company has determined to grant Employee an option to
purchase shares of the Company’s common stock under and pursuant to the terms and provisions of the
Company’s Amended and Restated 2001 Stock Plan (the “Plan”).
NOW, THEREFORE, the Company and Employee agree as follows:
1. Grant of Option.
The Company hereby
grants to Employee the option to purchase
shares of the Company’s Common Stock, $.01 par value, at a price per share equal
to $_________, in
the manner and subject to the conditions hereinafter provided. This option is not intended to
qualify as an “incentive stock option” under the Internal Revenue Code of 1986, as amended. This
option is granted pursuant to and subject to all of the terms and conditions of the Plan and,
unless the context otherwise requires, terms used herein shall have the same meaning as in the
Plan. Determinations made in connection with this option shall be governed by the Plan, and in the
event of any inconsistency or conflict between this Agreement and the Plan, the terms of the Plan
shall govern. In particular, without affecting the generality of the foregoing, it is understood
that employment by the Company includes employment by a Related Corporation as defined in the Plan.
2. Time of Exercise.
Employee may exercise this option from to and including , the
end of ten years from the date this Option is granted. Employee may exercise this option as to the
following number of shares on or after the following dates:
shares on or after
,
an additional ________ shares on or
after
, and
an additional ________ shares on
or after
; provided, however,
that in the
event of a Change of Control, as defined in the Plan, this option shall thereupon become fully
exercisable and vested.
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3. Method of Exercise.
Each exercise of this option shall be effected by giving written notice, in a form similar to
Exhibit A provided herein, of intent to exercise this option, specifying the number of
shares of stock as to which the option is being exercised, and accompanied by full payment of the
option price for the number of shares then being acquired. The optionee shall make full payment of
the exercise price of the option shares being purchased either (a) in United Stated dollars in cash
or check, (b) at the discretion of the Committee, through delivery or withholding of shares of
Common Stock, which have already been owned by you for more than six months, having a fair market
value equal as of the date of the exercise to the cash exercise price of the option, (c) at the
discretion of the Committee and consistent with applicable law, through the delivery to the Company
of a portion of the proceeds from the sale of the Common Stock acquired upon exercise of the option
equal to the cash exercise price of the option, along with an authorization to the broker or
selling agent to pay that amount to the Company, which sale shall be at the Employee’s discretion
at the time of exercise, or (d) at the discretion of the Committee, by any combination of (a), (b)
and (c) above. The determination of fair market value shall be made by the Committee, whose
determination in this regard shall be final and binding on the Company and on Employee. The
optionee shall not have the rights of a shareholder with respect to the shares covered by such
option until the date of issuance of a stock certificate of such holder for such shares. Except as
expressly provided in paragraph 14 of the Plan with respect to changes in capitalization and stock
dividends, no adjustment shall be made for dividends or similar rights for which the record date is
before the date such stock certificate is issued.
Receipt by the Company of such notice and payment shall constitute exercise of this option or
a part hereof. The Company shall promptly deliver or cause to be delivered to Employee a
certificate or certificates for the number of shares of the Company’s Common Stock being acquired
pursuant to such exercise. Such shares shall be fully paid and nonassessable. Notwithstanding the
foregoing, the Company shall not be required to issue such shares unless a registration statement
under the Securities Act of 1933, as amended (the “Securities Act”) is in effect with respect to
such shares or the Company has received evidence satisfactory to the Company that Employee may
acquire such shares pursuant to an exemption from registration under the Securities Act. In
addition, as to any jurisdiction (other than the United States) that expressly imposes the
requirement that this option shall not be exercisable unless and until the shares of stock covered
by this option are registered or are subject to an available exemption from registration, the
exercise of this option shall, notwithstanding anything to the contrary contained herein, be deemed
conditioned upon the effectiveness of such registration or the availability of such an exemption.
Any determination in that regard by the Company shall be final and conclusive. The Company shall
not be obligated to take any affirmative action in order to cause the exercise of this option or
the issuance of shares of stock pursuant hereto to comply with any law or regulation of any
governmental authority.
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4. Termination of Employment.
This option shall, to the extent not previously exercised, expire immediately upon the
termination (voluntary or involuntary) of Employee’s employment with the Company or with a Related
Corporation; except that:
(a) If Employee is on military, sick leave or other bona fide leave of absence (such
as temporary employment by the federal government), Employee’s employment relationship will be
treated as continuing intact if the period of such leave does not exceed 90 days, or, if longer, so
long as Employee’s right to reemployment is guaranteed by statute; otherwise, Employee’s employment
will be deemed to have terminated on the 91st day of such leave. A bona fide leave of absence with
the written approval of the Committee shall not be considered an interruption of employment under
this Section 4(a) or paragraph 10 of the Plan.
(b) If Employee’s employment is terminated by reason of Employee’s retirement, this option,
to the extent exercisable at retirement, may be exercised by Employee within three (3) years after
retirement, unless terminated earlier by its terms; provided, however, that if Employee dies within
such three (3) year period, this option shall thereafter be exercisable, to the extent it was
exercisable at the time of death, for a period of twelve (12) months from the date of death or
until the stated term of this option, whichever period is shorter. For purposes hereof,
“retirement” shall mean separation from service, other than for Cause as defined in the Plan, on or
after the first day of the calendar month coincident with or next following the Participant’s
attainment of age 65.
(c) If Employee’s employment is terminated by reason of Employee’s death, this option, to the
extent exercisable at Employee’s date of death, may be exercised at any time within one year after
that date (unless terminated earlier by its terms) by the estate or personal representative, or a
beneficiary who has acquired the option by will or by the applicable laws of descent and
distribution.
(d) If Employee ceases to be employed by the Company and all Related Corporations by reason
of his or her disability, this option, to the extent exercisable upon his or her date of
termination of employment, may be exercised by Employee within three months after such date unless
terminated earlier by its terms; provided, however, that if Employee dies within such three month
period, this option shall thereafter be exercisable, to the extent it was exercisable at the time
of death, for a period of twelve (12) months from the date of death or until the stated term of
this option, whichever period is shorter. For purposes hereof, the term “disability” shall mean
“permanent and total disability” as defined in Section 22(e)(3) of the Code or any successor
statute. Any determination of permanent and total disability shall be made in good faith by the
Company.
5. Non-Transferability.
This option shall not be transferable by Employee other than by will or the laws of descent
and distribution, and shall be exercisable, during Employee’s lifetime, only by Employee. From and
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after Employee’s death, this option, to the extent exercisable at Employee’s death, may be exercised
prior to its termination by the estate or personal representative, or a beneficiary who has
acquired the option by will or by the applicable laws of descent and distribution. Any attempted
assignment, transfer, pledge, hypothecation or other disposition of this option in contravention of
the terms hereof, and the levy of any execution, attachment or similar process upon this option,
shall be null and void.
6. Adjustment for Capital Changes.
(a) Stock Dividends and Stock Splits. In the event of any stock dividend payable in
shares of the Company’s Common Stock or any split-up or contraction in the number of shares of the
Company’s Common Stock occurring after the date of this Agreement and prior to the exercise in full
of this option, the number of shares subject hereto and the option price to be paid for each such
share shall each be proportionately adjusted.
(b) Recapitalization, Reorganization, Consolidation or Mergers. In the event of a
recapitalization or reorganization of the Company or a consolidation or a merger involving the
Company (other than a transaction described in the next paragraph) pursuant to which securities of
the Company or of another corporation are issued with respect to the outstanding shares of Common
Stock, the Employee upon exercising this option shall be entitled to receive for the purchase
price paid upon such exercise the securities he or she would have received if he or she had
exercised such option, prior to such recapitalization or reorganization.
(c) Certain Consolidations and Mergers. If the Company is to be consolidated with or
acquired by another entity in a merger or other reorganization or in the event of a sale or other
disposition of assets which constitutes a Change of Control (each, a “Sale”), the Committee or the
board of directors of any entity assuming the obligations of the Company hereunder (the “Successor
Board”), shall, as to the option, either (i) make appropriate provision for the continuation of
such option by substituting on an equitable basis for the shares then subject to such option either
(a) the consideration payable with respect to the outstanding shares of Common Stock in connection
with the Sale, (b) shares of stock of the surviving or successor corporation or other entity or (c)
such other securities as the Successor Board deems appropriate, the fair market value of which
shall not materially exceed the fair market value of the shares of Common Stock subject to such
option immediately preceding the Sale; or (ii) upon written notice to the Employee, provide that
the option must be exercised, to the extent then exercisable or to be exercisable as a result of
the Sale, within a specified number of days of the date of such notice, at the end of which period
the option shall terminate; or (iii) terminate the option in exchange for a cash payment equal to
the excess of the fair market value of the shares subject to such option (to the extent then
exercisable or to be exercisable as a result of the Sale) over the exercise price thereof.
(d) Fractional Shares. No fraction of a share shall be purchasable or deliverable upon
any exercise of this option, but, in the event any adjustment hereunder of the number of shares
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covered by this option shall cause such number to include a fraction of a share, such fraction
shall be adjusted to the nearest smaller whole number or shares.
7. Miscellaneous.
(a) Rights as a Stockholder. Employee shall not be deemed for any purpose to be a
stockholder of the Company with respect to any shares subject to this option except to the extent
that this option shall have been exercised with respect thereto and, in addition, a certificate
shall have been issued therefor and delivered to Employee. No adjustment shall be made for
dividends (ordinary or extraordinary, and whether in cash, securities or other property) or
distributions or other rights for which the record date is prior to the date such certificate is
issued, except as provided in Section 6.
(b) Employment Rights. This option shall not confer upon Employee any right with
respect to the continuance of Employee’s employment by the Company or by a Related Corporation, nor
shall it interfere in any way with the right of any of such corporations to terminate such
employment at any time.
(c) Notices. Any communication or notice required or permitted to be given under
this Agreement shall be in writing and mailed by registered or certified mail or delivered in hand,
if to the Company, to its Treasurer at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and, if to Employee, to
such address as shall be set forth on the signature page hereto.
(d) Successors and Assigns. This Agreement shall be binding upon the heirs,
executors, administrators, successors and assigns of the respective parties hereto.
(e) Taxes. As a condition to the issuance of the shares underlying this option, the
Company shall have the right to require the Employee to remit to the Company an amount sufficient
to satisfy any federal, state or local withholding tax requirements or make other arrangements
satisfactory to the Company with regard to such taxes, as provided in the Plan.
(f) Amendments and Waivers. The provisions of the Agreement may not waived, amended,
modified or terminated except with written consent of the parties hereto.
(g) Governing Law. The validity and construction of the Agreement shall be governed by
the laws of the Commonwealth of Massachusetts (without regard to choice of law provisions).
(h) Severability. If any provision of this Agreement shall be held to be illegal,
invalid or unenforceable, such illegality, invalidity or unenforceability shall attach only to such
provision and shall not in any manner affect or render illegal, invalid or unenforceable any other
provision of this Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
(i) Captions. Captions are for convenience only and are not deemed to be part of this
Agreement.
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(j) Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, NATIONAL DENTEX CORPORATION has caused this option to be executed in its
name and its corporate seal to be hereto affixed by its proper officer thereunto duly authorized
and the said has hereunto set his hand and seal all as of the date first above written.
| NATIONAL DENTEX CORPORATION |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| EMPLOYEE |
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| Name: | ||||
| (Signature) | ||||
| Address: | ||||
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Exhibit A
Form of Exercise
To Be Completed When Exercising Options
Employee Non Qualified Stock Option
To Be Completed When Exercising Options
Employee Non Qualified Stock Option
Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Executive Vice President and Treasurer
National Dentex Corporation
▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Executive Vice President and Treasurer
National Dentex Corporation
▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear ▇▇. ▇▇▇▇▇▇:
I hereby exercise my right with respect to the Non Qualified Stock Option dated __________, to
purchase _________ shares of National Dentex Corporation Common Stock effective as of this
________ day of ____________, _________.
(Month) (Year)
In connection with my purchase of such shares I hereby certify that it is my present intent to
acquire the said shares for investment purposes only not with the intent of resale or distribution
thereof.
Also, if I sell any of this stock before one year from this date or two years from the date the
option was granted, whichever is later, I will immediately notify the Company of the date of sale
and the sale price.
Very Truly Yours,
Please Register stock as follows:
Name(s):
Address :
Social Security No.
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