EXHIBIT 10.193
THE ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ CORPORATION
1992 STOCK INCENTIVE PLAN
NONSTATUTORY STOCK OPTION AND PERFORMANCE UNIT AGREEMENT
THIS AGREEMENT is entered into as of ______________________ between
THE ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ CORPORATION, a Delaware corporation (the "Company"), and
_______________(the "Optionee").
W I T N E S S E T H:
WHEREAS, the Board has adopted and the stockholders of the Company
have approved The ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Corporation 1992 Stock Incentive Plan, as
amended (the "Plan") in order to provide selected Key Employees and Non-Employee
Directors with an opportunity to acquire Common Shares; and
WHEREAS, the Committee has determined that the Optionee is a Key
Employee and that it would be in the best interests of the Company and its
stockholders to grant the stock option described in this Agreement (the
"Option") and the Performance Units described in this Agreement (the
"Performance Units") to the Optionee as an inducement to enter into or remain in
the service of the Company or its subsidiaries and as an incentive for
extraordinary efforts during such service:
NOW, THEREFORE, the Optionee and the Company agree to the provisions
set forth in this Agreement. The Optionee signifies agreement with all of the
terms and conditions of this Agreement by failing to provide written objection
to the Company to any of the terms hereunder within 30 days of receipt of this
Agreement, and in any event by exercising an Option or a Performance Unit
granted hereunder.
SECTION 1. GRANT OF OPTION AND PERFORMANCE UNITS.
(a) OPTION. On the terms and conditions stated below, the Company
hereby grants to the Optionee the option to purchase ______ Common Shares for
the amount of $_____ per Common Share (the "Exercise Price"), which is agreed to
be 100% of the Fair Market Value thereof on the Date of Grant. The number of
Common Shares subject to this Option and the Exercise Price shall be subject to
adjustment under certain limited circumstances as provided in Article 10 of the
Plan.
(b) PERFORMANCE UNITS. On the terms and conditions stated below, the
Company hereby grants to the Optionee _______ Performance Units, as defined
herein. Each
Performance Unit shall entitle the Optionee to a cash payment, equal to the Net
Performance Unit Value, determined as of the most recent valuation. Net
Performance Unit Value shall be determined on an annual basis (or at more
frequent intervals as the Company may determine from time to time in its sole
discretion), and shall be communicated to the Optionee within a reasonable time
following the determination of such value.
(c) TANDEM ISSUANCE OF OPTION AND PERFORMANCE UNITS. Each
Performance Unit shall be issued in tandem with an Option to acquire one share
hereunder, so that the exercise of a Performance Unit will result in the
cancellation of the Option associated with such Performance Unit, and the
exercise of an Option will result in the cancellation of the Performance Unit
associated with such Option. Performance Units will expire on the date three
(3) months following the fifth anniversary of the date the Performance Unit was
granted. Upon the expiration of a Performance Unit, the Option associated with
such Performance Unit shall remain exercisable until such Option otherwise
expires pursuant to the terms of this Agreement.
(d) 1992 STOCK INCENTIVE PLAN. This Option is granted pursuant to
the Plan, the provisions of which are incorporated into this Agreement by
reference, and a copy of which is available upon request at no charge to the
Optionee from the Company. In the event of any inconsistency between the
provisions of the Plan and the provisions of this Agreement, the provisions of
the Plan shall prevail.
(e) TAX TREATMENT. This Option is not intended to qualify as an
incentive stock option described in Section 422(b) of the Code.
(f) EXPIRATION DATE. Notwithstanding any other provision contained
herein, this Option shall expire not later than the date immediately preceding
the tenth anniversary of the Date of Grant.
SECTION 2. NO TRANSFER OR ASSIGNMENT OF OPTION.
Except as otherwise provided in this Agreement or as permitted by the
Plan, this Option, and any interest therein, shall not be transferred, assigned,
pledged or hypothecated in any way (whether by operation of law or otherwise)
and shall not be subject to sale under execution, attachment or similar process.
SECTION 3. RIGHT TO EXERCISE OPTION AND PERFORMANCE UNITS.
(a) VESTING. This Option shall become exercisable by the Optionee
with respect to the total number of Common Shares subject to this Option as set
forth under Section 1(a) above (the "Total Award Common Shares"), subject to the
continued employment of the Optionee by the Company or its subsidiaries on each
date either set forth below, and subject to the provisions of Section 3(e)
hereof, in annual increments of the Total Award Common Shares beginning on the
first anniversary of the Date of Grant, such that (i) no portion of this
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Option will be exercisable prior to such first anniversary of the Date of Grant;
(ii) upon and after such first anniversary of the Date of Grant, the Optionee
may purchase up to twenty-five percent (25%) of the Total Award Common Shares,
provided the optionee has been continually employed by the Company or its
subsidiaries since the date of grant; (iii) upon and after the second, third
and fourth anniversaries of the Date of Grant, respectively, the Optionee may
purchase an additional twenty-five percent (25%) of the Total Award Common
Shares, provided in each case that the Optionee has been continually employed by
the Company or its subsidiaries since the Date of Grant.
(b) MINIMUM NUMBER OF SHARES AND PERFORMANCE UNITS. This Option
shall be exercisable for at least 100 Common Shares (without regard to
adjustments to the number of Common Shares subject to this Option pursuant to
Article 10 of the Plan) or, if less, (i) the number of shares with respect to
which this Option has become vested under Section 3(a) above, or (ii) all of the
remaining Common Shares subject to this Option. Performance Units shall be
exercisable in minimum increments of 100 or, if less, (i) the number of
Performance Units which have become vested under Section 3(a) above or (ii) all
of the remaining Performance Units granted hereunder.
(c) FULL VESTING ON CHANGE IN CONTROL. Notwithstanding subparagraph
(a) hereof, this Option shall become fully exercisable as to the Total Award
Common Shares, and all Performance Units granted hereunder shall become fully
exercisable, immediately preceding any Change in Control with respect to the
Company. In the event that the Committee determines that a Change in Control is
likely to occur, the Company shall so advise the Optionee, and the provisions of
this subparagraph (c) shall take effect as of the date ten (10) days prior to
the anticipated date of such Change in Control.
(d) ACCELERATED VESTING IN CERTAIN CASES. Notwithstanding
subparagraph (a) hereof, if the Optionee terminates employment with the Company
and its subsidiaries on account of death or Disability, all options and
Performance Units granted hereunder shall become fully exerciseable. Moreover,
if the Optionee terminates employment with the Company and its subsidiaries on
account of Retirement, all options and Performance Units granted hereunder shall
become fully exerciseable, but only if such Retirement occurs at least two (2)
years after the date of grant.
(e) VESTING CONTINGENT ON SATISFACTORY PERFORMANCE. Notwithstanding
subparagraph (a) hereof, the continued accrual of vesting pursuant to
subparagraph (a) is contingent upon the Optionee's satisfactory job performance,
and the Company may, in its sole discretion, upon notice to the Optionee suspend
or delay the vesting of Options and Performance Shares hereunder for any period
of time in the event that the Company determines, within its sole discretion,
that the Optionee's performance is unsatisfactory.
(f) SUSPENSION OF VESTING DURING CERTAIN LEAVES OF ABSENCE.
Notwithstanding subparagraph (a) hereof, the continued accrual of vesting
pursuant to subparagraph (a) shall be suspended during the period of time in
which the Optionee is on a leave of absence of more than six months for any
reason other than (i) medical reasons, (ii)
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pregnancy disability, (iii) a leave qualifying under the Family and Medical
Leave Act, or (iv) workers' compensation.
SECTION 4. EXERCISE OF OPTION AND PERFORMANCE UNITS.
(a) NOTICE OF EXERCISE. The Optionee or the Optionee's
representative may exercise this Option or any Performance Units by giving
written notice to the Company or its designee pursuant to Section 9(d). The
notice shall specify the election to exercise this Option and/or Performance
Units (as the case may be), the date of exercise, the number of Common Shares
for which the Option is being exercised, the number of Performance Units being
exercised, and the form of payment (if this Option is being exercised). The
notice shall be signed by the person or persons exercising this Option or
Performance Units. In the event that this Option or Performance Units are being
exercised by the representative of the Optionee, the notice shall be accompanied
by proof satisfactory to the Company of the representative's right to exercise
this Option. The Purchase Price for Common Shares shall be paid in a form that
conforms to Sections 6.1 through 6.3 of the Plan at the time such notice is
given.
(b) ISSUANCE OF SHARES. After receiving a proper notice of exercise
of an Option, the Company shall cause to be issued a certificate or certificates
for the Common Shares so purchased, registered in the name of the person
exercising this Option. The Company shall cause such certificate or
certificates to be delivered to or upon the order of the person exercising this
Option.
(c) EXERCISE OF PERFORMANCE UNIT. After receiving a proper notice of
exercise of Performance Units, the Company shall cause to be paid to the
Optionee, within one month of exercise, an amount equal to the Net Performance
Unit Value for each Performance Unit so exercised, less any applicable tax
withholdings.
SECTION 5. TERM.
(a) BASIC TERM. This Option shall in any event expire on the date
specified in Section 1(f).
(b) TERMINATION OF EMPLOYMENT. Subject only to the provisions of
Section 3(d), upon the Optionee's termination of employment with the Company and
its subsidiaries for any reason, whether as a result of a voluntary or
involuntary event of termination of employment (including a termination of
employment as may be provided for or determined under an employment contract, if
any, entered into between the Company or its subsidiary and the Optionee) (each,
a "Termination Event"), no unvested portion of the Total Award Common Shares or
Performance Units thereafter shall vest or become exercisable. With respect to
the vested or exercisable portion of the Total Award Common Shares or
Performance Units as of the date of such a Termination Event, this Option shall
expire on the earlier of (i) the expiration date specified in Section 1(f) or
(ii) whichever of the following is applicable: (A) in the case of a
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Termination Event resulting from death or Disability, the date one year
following such Termination Event; (B) in the case of a Termination Event
resulting from Retirement, the date two years following such Termination Event;
or (C) in all other cases, the date three (3) months following such Termination
Event.
(c) DIVESTMENT OF OPTIONS. Notwithstanding anything to the contrary
contained herein, this Option and all Performance Units shall immediately become
forfeited and expire in the event that the Company terminates the Optionee's
employment on account of conduct inimical to the best interests of the Company,
including, without limitation, conduct constituting a violation of law or
Company policy, fraud, theft, conflict of interest, dishonesty or harassment.
The determination whether the Optionee's employment has been terminated on
account of conduct inimical to the best interests of the Company shall be made
by the Company in its sole discretion.
SECTION 6. LEGALITY OF INITIAL ISSUANCE.
No Common Shares shall be issued upon the exercise of this Option
unless and until the Company has determined that:
(a) A registration statement for the Common Shares is effective under
the Securities Act or an exemption from the registration requirements
thereof has been perfected;
(b) Any applicable listing requirement of any stock exchange on which
Common Shares are listed has been satisfied; and
(c) Any other applicable provisions of state or federal law have been
satisfied.
SECTION 7. NO REGISTRATION RIGHTS.
The Company may, but shall not be obligated to, register or qualify
the Common Shares for resale or other disposition by the Optionee under the
Securities Act or any other applicable law.
SECTION 8. RESTRICTIONS ON TRANSFER OF SHARES.
(a) RESTRICTIONS. Regardless of whether the offering and sale of
Common Shares under the Plan have been registered under the Securities Act or
have been registered or qualified under the securities laws of any state, the
Company may impose restrictions upon the sale, pledge or other transfer of such
Common Shares (including the placement of appropriate legends on stock
certificates) if, in the judgment of the Company and its counsel, such
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restrictions are necessary or desirable in order to achieve compliance with the
provisions of the Securities Act, the securities laws of any state or any other
law.
(b) INVESTMENT INTENT AT EXERCISE. If the Common Shares under the
Plan are not registered under the Securities Act but an exemption is available
which requires an investment representation or other representation, the
Optionee shall represent and agree at the time of exercise that the Common
Shares being acquired upon exercising this Option are being acquired for
investment, and not with a view to the sale or distribution thereof, and shall
make such other representations as are deemed necessary or appropriate by the
Company and its counsel.
(c) ADMINISTRATION. Any determination by the Company and its counsel
in connection with any of the matters set forth in this Section 8 shall be
conclusive and binding on the Optionee and all other persons.
SECTION 9. MISCELLANEOUS PROVISIONS
(a) WITHHOLDING TAXES. To the extent required by applicable federal,
state, local or foreign law, the Optionee shall make arrangements satisfactory
to the Company for the satisfaction of any withholding tax obligations that
arise by reason of the exercise of an Option hereunder, and no Option may be
exercised unless such obligation is satisfied.
(b) RIGHTS AS A STOCKHOLDER. Neither the Optionee nor the Optionee's
representative shall have any rights as a stockholder with respect to any Common
Shares subject to this Option until certificates for such Common Shares have
been issued in the name of the Optionee or the Optionee's representative.
(c) NO EMPLOYMENT RIGHTS. Nothing in this Agreement shall be
construed as giving the Optionee the right to be retained as an employee of the
Company or its subsidiaries. The Company reserves the right to terminate the
Optionee's employment at any time for any reason, subject only to the terms of
any written employment contract entered into between the Company and the
Optionee.
(d) NOTICE. Any notice required by the terms of this Agreement shall
be given in writing and shall be deemed effective upon personal delivery or upon
deposit with the appropriate postal service, by registered or certified mail
with postage and fees prepaid and addressed to the party entitled to such notice
at the address shown below such party's signature on this Agreement, or at such
other address as such party may designate by ten (10) days advance written
notice to the other party to this Agreement. Notwithstanding the foregoing, no
notice of exercise, as required by Section 4(a), shall be effective until actual
receipt thereof by the Company or its designee.
(e) ENTIRE AGREEMENT. This Agreement and the Plan constitute the
entire agreement between the parties hereto with regard to the subject matter
hereof; provided, however, that in the event of any inconsistency or conflict
between any provision hereof and the terms of the Plan, the terms of the Plan
shall control.
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(f) CHOICE OF LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of California, as such laws
are applied to contracts entered into and performed in such State.
SECTION 10. DEFINITIONS.
(a) Capitalized terms defined in the Plan shall have the same meaning
when used in this Agreement.
(b) "CHANGE IN CONTROL" shall mean the occurrence of any of the
following events after the effective date of the Plan as set out in Section 15.1
of the Plan:
(1) A change in control required to be reported pursuant to Item
6(e) of Schedule 14A of Regulation 14A under the Securities Exchange Act of
1934, as amended (the "Exchange Act");
(2) A change in the composition of the Company's Board of
Directors (the "Board"), as a result of which fewer than two-thirds of the
incumbent directors are directors who either (i) had been directors of the
Company 24 months prior to such change or (ii) were elected, or nominated for
election, to the Board with the affirmative votes of at least a majority of the
directors who had been directors of the Company 24 months prior to such change
and who were still in office at the time of the election or nomination; and
(3) Any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act) becomes the beneficial owner, directly or indirectly,
of securities of the Company representing 20 percent or more of the combined
voting power of the Company's then outstanding securities ordinarily (and apart
from rights accruing under special circumstances) having the right to vote at
elections of directors (the "Base Capital Stock"); provided, however, that any
change in the relative beneficial ownership of securities of any person
resulting solely from a reduction in the aggregate number of outstanding shares
of Base Capital Stock, and any decrease thereafter in such person's ownership of
securities, shall be disregarded until such person increases in any manner,
directly or indirectly, such person's beneficial ownership of any securities of
the Company.
(c) "COMMON SHARE" shall mean one share of the common stock of the
Company.
(d) "DATE OF GRANT" shall mean the date of this Agreement, which is
the date first written above.
(e) "FAIR MARKET VALUE" shall mean the market price of a Common
Share, determined by the Committee as follows:
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(1) If the Common Share was traded on a stock exchange on the
date in question, then the Fair Market Value shall be equal to the closing price
reported by the applicable composite-transactions report for such date;
(2) If the Common Share was traded over-the-counter on the date
in question and was classified as a national market issue, then the Fair Market
Value shall be equal to the last transaction price quoted by the NASDAQ system
for such date;
(3) If the Common Share was traded over-the-counter on the date
in question but was not classified as a national market issue, then the Fair
Market Value shall be equal to the mean between the last reported representative
bid and asked prices quoted by the NASDAQ system for such date; and
(4) If none of the foregoing provisions is applicable, then the
Fair Market Value shall be determined by the Committee in good faith on such
basis as it deems appropriate.
(f) "NET PERFORMANCE UNIT VALUE" shall mean the difference between
the Performance Unit Value and the Cost Basis, determined as follows:
(1) Performance Unit Value shall mean (A) the difference between
the After Tax Net Income and the Targeted Return on Stockholders' Equity,
multiplied by (B) the Grant Funding Rate;
(2) Cost Basis shall mean the Performance Unit Value as of the
end of the fiscal quarter immediately preceding the Date of Grant;
(3) After Tax Net Income shall mean the cumulative after tax net
income (determined without reduction for accrued obligations pursuant to
Performance Units), as measured from January 1 of the year of the Date of Grant,
and otherwise subject to such adjustments as may be determined by the Company in
its sole discretion;
(4) Targeted Return on Stockholders' Equity shall mean a
cumulative 20% annual targeted level of return on stockholders' equity, measured
from January 1 of the year of the Date of Grant. Targeted Return on
Stockholders' Equity is increased on a quarterly basis during the term of the
Performance Unit by adding to the prior quarter's Targeted Return on
Stockholders' Equity an amount equal to 5% of the ending actual consolidated
stockholder's equity balance (determined as of the end of the preceding fiscal
year); and
(5) Grant Funding Rate shall mean a percentage, determined
from time to time by the Company, to provide a level of funding for the Plan.
While the Company generally intends that the Grant Funding Rate will remain
fixed for the five year term of each Performance Unit, the Company reserves
the right, within its sole discretion, to change the Grant Funding Rate at
any time.
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(g) "PURCHASE PRICE" shall mean the Exercise Price multiplied by the
number of Common Shares with respect to which this Option is being exercised.
(h) "RETIREMENT" shall mean a termination of employment of the
Optionee occurring at any time after the Optionee (i) has attained fifty (50)
years of age, and (ii) completed seven (7) years of service, as determined
pursuant to the terms of the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Profit Sharing and Employee Stock
Ownership Plan.
(i) "SECURITIES ACT" shall mean the Securities Act of 1933, as
amended.
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