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Exhibit 4.7
1997 STOCK OPTION PLAN
OF
CHATHAM TECHNOLOGIES, INC.
1. PURPOSES OF THE PLAN. This stock option plan (the "Plan") is intended
to provide an incentive to key employees (including directors and officers who
are key employees) and to consultants and directors who are not employees of
CHATHAM TECHNOLOGIES, INC., a Delaware corporation (the "Company"), or any of
its Subsidiaries (as defined in Paragraph 19), and to offer an additional
inducement in obtaining the services of such persons. The Plan provides for the
grant of "incentive stock options" ("ISOs") within the meaning of Section 422 of
the Internal Revenue Code of 1986, as amended (the "Code") and nonqualified
stock options which do not qualify as ISOs ("NQSOs"). The Company makes no
representation or warranty, express or implied, as to the qualification of any
option as an "incentive stock option" under the Code.
2. STOCK SUBJECT TO THE PLAN. Subject to the provisions of Paragraph 12,
the aggregate number of shares of Class A Common Stock, $.01 par value per
share, of the Company ("Common Stock") for which options may be granted under
the Plan shall not exceed 150,000. Such shares of Common Stock shall consist of
authorized but unissued shares of Common Stock. Subject to the provisions of
Paragraph 13, any shares of Common Stock subject to an option which for any
reason expires, is canceled or is terminated unexercised or which ceases for any
reason to be exercisable, shall again become available for the granting of
options under the Plan. The Company shall at all times during the term of the
Plan reserve and keep available such number of shares of Common Stock as will be
sufficient to satisfy the requirements of the Plan.
3. ADMINISTRATION OF THE PLAN. The Plan shall be administered by the
Board of Directors of the Company (the "Board of Directors") or a committee of
the Board of Directors (collectively, the "Committee"). Except as otherwise
provided by the Board of Directors, the By-laws of the Company or applicable
law, a majority of the members of the Committee shall constitute a quorum, and
the acts of a majority of the members present at any meeting at which a quorum
is present, and any acts approved in writing by all members without a meeting,
shall be the acts of the Committee.
Subject to the express provisions of the Plan, the Committee shall
have the authority, in its sole discretion, to determine: the key employees,
consultants and Non-Employee Directors (as defined in Paragraph 19) who shall be
granted options; the type of option to be granted to a key employee; the times
when an option shall be granted; the number of shares of Common Stock to be
subject to each option; the term of each option; the date each option shall
become exercisable; whether an option shall be exercisable in whole, in part or
in installments and, if in installments, the number of shares of Common Stock to
be subject to each installment, whether the installments shall be cumulative,
the date each installment shall become exercisable and the term of each
installment; whether to accelerate the date of exercise of any option or
installment; whether shares of Common Stock may be issued upon the exercise
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of an option as partly paid and, if so, the dates when future installments of
the exercise price shall become due and the amounts of such installments; the
exercise price of each option; the form of payment of the exercise price;
whether to restrict the sale or other disposition of the shares of Common Stock
acquired upon the exercise of an option and, if so, whether and under what
conditions to waive any such restriction; whether and under what conditions to
subject all or a portion of the grant or exercise of an option or the shares
acquired pursuant to the exercise of an option to the fulfillment of certain
restrictions or contingencies as specified in the contract referred to in
Paragraph 11 hereof (the "Contract"), including without limitation, restrictions
or contingencies relating to entering into a covenant not to compete with the
Company, any of its Subsidiaries or a Parent (as defined in Paragraph 19), to
financial objectives for the Company, any of its Subsidiaries or a Parent, a
division of any of the foregoing, a product line or other category, and/or to
the period of continued employment of the optionee with the Company, any of its
Subsidiaries or a Parent, and to determine whether such restrictions or
contingencies have been met; whether an optionee is Disabled (as defined in
Paragraph 19); the amount, if any, necessary to satisfy the obligation of the
Company, a Subsidiary or Parent to withhold taxes or other amounts; the fair
market value of a share of Common Stock; to construe the respective Contracts
and the Plan; with the consent of the optionee, to cancel or modify an option,
provided, that the modified provision is permitted to be included in an option
granted under the Plan on the date of the modification, and further, provided,
that in the case of a modification (within the meaning of Section 424(h) of the
Code) of an ISO, such option as modified would be permitted to be granted on the
date of such modification under the terms of the Plan; to prescribe, amend and
rescind rules and regulations relating to the Plan; and to make all other
determinations necessary or advisable for administering the Plan. Any
controversy or claim arising out of or relating to the Plan, any option granted
under the Plan or any Contract shall be determined unilaterally by the Committee
in its sole discretion. The determinations of the Committee on the matters
referred to in this Paragraph 3 shall be conclusive and binding on the parties.
No member or former member of the Committee shall be liable for any action,
failure to act or determination made in good faith with respect to the Plan, any
Contract or any option hereunder.
4. ELIGIBILITY. The Committee may from time to time, in its sole
discretion, consistent with the purposes of the Plan, grant options to (a) key
employees (including officers and directors who are key employees) of the
Company or any of its Subsidiaries, (b) consultants to the Company or any of its
Subsidiaries and (c) Non-Employee Directors. In no event, however, may any
consultant or Non-Employee Director participate in the Plan if such
participation is (a) prohibited, or (b) restricted (either absolutely or subject
to various securities requirements, whether legal or administrative, being
complied with), in the jurisdiction in which such consultant or Non-Employee
Director is resident under the relevant securities laws of that jurisdiction.
Provided Always That in the case of (b) above, the relevant consultant's or
Non-Employee Director's participation in the Plan may be effected at the
absolute discretion of the Committee if compliance with the relevant securities
requirements of the jurisdiction in which such consultant or Non-Employee
Director is resident is not impractical (having regard to the nature of those
requirements) and would not involve undue expense. Such options granted shall
cover such number of shares of Common Stock as the Committee may determine, in
its sole discretion, as set forth in the applicable Contract; provided, however,
that the aggregate market value (determined at the time the option is granted in
accordance with Paragraph 5) of the shares of Common Stock for which any
eligible employee may be granted ISOs under the Plan or any other plan of the
Company, or of a Parent or a Subsidiary of the Company, which are exercisable
for the first time by such optionee during any calendar year shall not exceed
$100,000. Such ISO limitation shall be applied by taking ISOs into account in
the order in which they were granted. Any option granted in excess of such ISO
limitation amount shall be treated as a NQSO to the extent of such excess.
5. EXERCISE PRICE. The exercise price of the shares of Common Stock
under each option shall be determined by the Committee, in its sole discretion,
as set forth in the
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applicable Contract; provided, however, that the exercise price of an ISO shall
not be less than the fair market value of the Common Stock subject to such
option on the date of grant; and further, provided, that if, at the time an ISO
is granted, the optionee owns (or is deemed to own under Section 424(d) of the
Code) stock possessing more than 10% of the total combined voting power of all
classes of stock of the Company, of any of its Subsidiaries or of a Parent, the
exercise price of such ISO shall not be less than 110% of the fair market value
of the Common Stock subject to such ISO on the date of grant. In no event may
the exercise price be less than the par value of a share.
The fair market value of a share of Common Stock on any day shall be
(a) if the principal market for the Common Stock is a national securities
exchange, the average of the highest and lowest sales prices per share of Common
Stock on such day as reported by such exchange or on a composite tape reflecting
transactions on such exchange, (b) if the principal market for the Common Stock
is not a national securities exchange and the Common Stock is quoted on The
Nasdaq Stock Market ("Nasdaq"), and (i) if actual sales price information is
available with respect to the Common Stock, the average of the highest and
lowest sales prices per share of Common Stock on such day on Nasdaq, or (ii) if
such information is not available, the average of the highest bid and lowest
asked prices per share of Common Stock on such day on Nasdaq, or (c) if the
principal market for the Common Stock is not a national securities exchange and
the Common Stock is not quoted on Nasdaq, the average of the highest bid and
lowest asked prices per share of Common Stock on such day as reported on the OTC
Bulletin Board Service or by National Quotation Bureau, Incorporated or a
comparable service; provided, however, that if clauses (a), (b) and (c) of this
Paragraph are all inapplicable, or if no trades have been made or no quotes are
available for such day, the fair market value of the Common Stock shall be
determined by the Board of Directors or the Committee by any method consistent
with applicable regulations adopted by the Treasury Department relating to stock
options.
6. TERM. The term of each option granted pursuant to the Plan shall be
such term as is established by the Committee, in its sole discretion, as set
forth in the applicable Contract; provided, however, that the term of each ISO
granted pursuant to the Plan shall be for a period not exceeding 10 years from
the date of grant thereof; and further, provided, that if, at the time an ISO is
granted, the optionee owns (or is deemed to own under Section 424(d) of the
Code) stock possessing more than 10% of the total combined voting power of all
classes of stock of the Company, of any of its Subsidiaries or of a Parent, the
term of the ISO shall be for a period not exceeding five years from the date of
grant. Options shall be subject to earlier termination as hereinafter provided.
7. EXERCISE. An option (or any part or installment thereof), to the
extent then exercisable, shall be exercised by giving written notice to the
Company at its principal office stating which option is being exercised,
specifying the number of shares of Common Stock as to which such option is being
exercised and accompanied by payment in full of the aggregate exercise price
therefor (or the amount due on exercise if the applicable Contract permits
installment payments) in cash or by certified check equal to the aggregate
exercise price of all options being exercised, or with any combination of cash,
certified check or shares of Common Stock having such value. The Company shall
not be required to issue any shares
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of Common Stock pursuant to any such option until all required payments,
including any required withholding, have been made.
A person entitled to receive Common Stock upon the exercise of an
option shall not have the rights of a stockholder with respect to such shares of
Common Stock until the date of allotment of such shares.
In no case may a fraction of a share of Common Stock be purchased or
issued under the Plan.
8. TERMINATION OF RELATIONSHIP. Except as may otherwise be expressly
provided in the applicable Contract, an optionee whose relationship with the
Company, its Parent and Subsidiaries as an employee or a consultant has
terminated for any reason (other than as a result of the death or Disability of
the optionee) may exercise his options, to the extent exercisable on the date of
such termination, at any time within three months after the date of termination,
but not thereafter and in no event after the date the option would otherwise
have expired; provided, however, that if such relationship is terminated either
(a) for Cause (as defined in Paragraph 19), or (b) without the consent of the
Company, such option shall terminate immediately. Except as may otherwise be
expressly provided in the applicable Contract, options granted under the Plan to
an employee or consultant shall not be affected by any change in the status of
the optionee so long as the optionee continues to be an employee of, or a
consultant to, the Company, or any of the Subsidiaries or a Parent (regardless
of having changed from one to the other or having been transferred from one
corporation to another).
For the purposes of the Plan, an employment relationship shall be
deemed to exist between an individual and the Company, any of its Subsidiaries
or a Parent if, at the time of the determination, the individual was an employee
of such corporation for purposes of Section 422(a) of the Code. As a result, an
individual on military, sick leave or other bona fide leave of absence shall
continue to be considered an employee for purposes of the Plan during such leave
if the period of the leave does not exceed 90 days, or, if longer, so long as
the individual's right to reemployment with the Company, any of its Subsidiaries
or a Parent is guaranteed either by statute or by contract. If the period of
leave exceeds 90 days and the individual's right to reemployment is not
guaranteed by statute or by contract, the employment relationship shall be
deemed to have terminated on the 91st day of such leave.
Except as may otherwise be expressly provided in the applicable
Contract, an optionee whose relationship with the Company as a Non-Employee
Director ceases for any reason (other than as a result of his death or
Disability) may exercise his options, to the extent exercisable on the date of
such termination, at any time within three months after the date of termination,
but not thereafter and in no event after the date the option would otherwise
have expired; provided, however, that if such relationship is terminated for
Cause, such option shall terminate immediately. Except as may otherwise be
expressly provided in the applicable
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Contract, options granted to a Non-Employee Director shall not be affected by
the optionee becoming an employee of the Company, any of its Subsidiaries or a
Parent.
Nothing in the Plan or in any option granted under the Plan shall
confer on any optionee any right to continue in the employ of, or as a
consultant to, the Company, any of its Subsidiaries or a Parent, or as a
director of the Company, or interfere in any way with any right of the Company,
any of its Subsidiaries or a Parent to terminate the optionee's relationship at
any time for any reason whatsoever without liability to the Company, any of its
Subsidiaries or a Parent.
9. DEATH OR DISABILITY OF AN OPTIONEE. Except as may otherwise be
expressly provided in the applicable Contract, if an optionee dies (a) while he
is an employee of, or consultant to, the Company, any of its Subsidiaries or a
Parent, (b) within three months after the termination of such relationship
(unless such termination was for Cause or without the consent of the Company) or
(c) within one year following the termination of such relationship by reason of
his Disability, the options that were granted to him as an employee or
consultant may be exercised, to the extent exercisable on the date of his death,
by his Legal Representative (as defined in Paragraph 19) at any time within one
year after death, but not thereafter and in no event after the date the option
would otherwise have expired.
Except as may otherwise be expressly provided in the applicable
Contract, any optionee whose relationship as an employee of, or consultant to,
the Company, its Parent and Subsidiaries has terminated by reason of such
optionee's Disability may exercise the options that were granted to him as an
employee or consultant, to the extent exercisable upon the effective date of
such termination, at any time within one year after such date, but not
thereafter and in no event after the date the option would otherwise have
expired.
Except as may otherwise be expressly provided in the applicable
Contract, any optionee whose relationship as a Non-Employee Director ceases as a
result of his death or Disability may exercise the options that were granted to
him as a Non-Employee Director, to the extent exercisable on the date of such
termination, at any time within one year after the date of termination, but not
thereafter and in no event after the date the option would otherwise have
expired. In the case of the death of the Non-Employee Director, the option may
be exercised by his Legal Representative.
10. COMPLIANCE WITH SECURITIES LAWS. The Committee may require, in its
sole discretion, as a condition to the exercise of any option that either (a) a
Registration Statement under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the shares of Common Stock to be issued upon
such exercise shall be effective and current at the time of exercise, or (b)
there is an exemption from registration under the Securities Act for the
issuance of the shares of Common Stock upon such exercise. Nothing herein shall
be construed as requiring the Company to register shares subject to any option
under the Securities Act or to keep any Registration Statement effective or
current.
The Committee may require, in its sole discretion, as a condition to
the receipt of an option or the exercise of any option that the optionee execute
and deliver to the Company
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his representations and warranties, in form, substance and scope satisfactory to
the Committee, which the Committee determines are necessary or convenient to
facilitate the perfection of an exemption from the registration requirements of
the Securities Act, applicable state securities laws or other legal requirement,
including without limitation that (a) the shares of Common Stock to be issued
upon the exercise of the option are being acquired by the optionee for his own
account, for investment only and not with a view to the resale or distribution
thereof, and (b) any subsequent resale or distribution of shares of Common Stock
by such optionee will be made only pursuant to (i) a Registration Statement
under the Securities Act which is effective and current with respect to the
shares of Common Stock being sold, or (ii) a specific exemption from the
registration requirements of the Securities Act, but in claiming such exemption,
the optionee shall prior to any offer of sale or sale of such shares of Common
Stock provide the Company with a favorable written opinion of counsel
satisfactory to the Company, in form, substance and scope satisfactory to the
Company, as to the applicability of such exemption to the proposed sale or
distribution.
In addition, if at any time the Committee shall determine, in its
sole discretion, that the listing or qualification of the shares of Common Stock
subject to any option on any securities exchange, Nasdaq or under any applicable
law, or the consent or approval of any governmental agency or regulatory body,
is necessary or desirable as a condition to, or in connection with, the granting
of an option or the issuing of shares of Common Stock thereunder, such option
may not be granted and such option may not be exercised in whole or in part
unless such listing, qualification, consent or approval shall have been effected
or obtained free of any conditions not acceptable to the Committee.
11. CONTRACTS. Each option shall be evidenced by an appropriate Contract
which shall be duly executed by the Company and the optionee, and shall contain
such terms, provisions and conditions not inconsistent herewith as may be
determined by the Committee. The terms of each option and Contract need not be
identical.
12. ADJUSTMENTS UPON CHANGES IN COMMON STOCK. Notwithstanding any other
provision of the Plan, in the event of:
(a) a stock dividend, recapitalization, merger or consolidation in
which the Company is the surviving corporation, or a spin-off, split-up,
combination or exchange of shares or the like which results in a change in the
number or kind of shares of Common Stock which is outstanding immediately prior
to such event, the Committee shall appropriately adjust the aggregate number and
kind of shares subject to the Plan, the aggregate number and kind of shares
subject to each outstanding option and the exercise price thereof. Such
adjustments shall be conclusive and binding on all parties and may provide for
the elimination of fractional shares which might otherwise be subject to options
without payment therefor.
(b) the liquidation or dissolution of the Company, or a merger to
which the Company is a party whether or not it is the surviving corporation or a
consolidation or a sale by the Company of all or substantially all of its
assets, then, except as set forth below, the options granted hereunder which are
outstanding or unvested as of the date of such event, shall continue to be
outstanding and the optionee shall be entitled to receive an option to acquire
the type and
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amount of consideration which he would have been entitled to receive if he had
exercised the options granted hereunder immediately prior to the transaction and
actually owned the shares of common stock subject to such option. The exercise
price of the resultant option shall be determined by the Committee in its sole
discretion such that the aggregate exercise price payable with respect to the
resultant option shall be equal to the aggregate exercise price payable with
respect to the option granted under the Plan.
Notwithstanding the foregoing, the Company shall have the right, by
written notice, provided to an optionee sent no later than 15 days prior to the
proposed liquidation, dissolution, merger or other transaction, to advise the
optionee that upon consummation of the transaction all options granted to any
optionee under the Plan shall terminate and be void, in which event, the
optionee shall have right to exercise all options then currently exercisable in
accordance with the terms of the applicable option Contract within 10 days after
the date of the notice from the Company.
13. AMENDMENTS AND TERMINATION OF THE PLAN. The Plan was adopted by the
Board of Directors on August 13, 1997. No ISO may be granted under the Plan
after August 12, 2007: The Board of Directors, without further approval of the
Company's stockholders, may at any time suspend or terminate the Plan, in whole
or in part, or amend it from time to time in such respects as it may deem
advisable, including, without limitation, in order that ISOs granted hereunder
meet the requirements for "incentive stock options" under the Code, to comply
with any change in applicable law, regulations, rulings or interpretations of
any administrative agency; provided, however, that no amendment shall be
effective without the requisite prior or subsequent stockholder approval which
would (a) except as contemplated in Paragraph 12, increase the maximum number of
shares of Common Stock for which options may be granted under the Plan, (b)
change the eligibility requirements to receive options hereunder or (c) make any
other change for which applicable law requires stockholder approval. No
termination, suspension or amendment of the Plan shall, without the consent of
the optionee, adversely affect his rights under any option granted under the
Plan. The power of the Committee to construe and administer any option granted
under the Plan prior to the termination or suspension of the Plan nevertheless
shall continue after such termination or during such suspension.
14. NON-TRANSFERABILITY. No option granted under the Plan shall be
transferable otherwise than by will or the laws of descent and distribution, and
options may be exercised, during the lifetime of the optionee, only by the
optionee or his Legal Representatives. Except to the extent provided above,
options may not be assigned, transferred, pledged, hypothecated or disposed of
in any way (whether by operation of law or otherwise) and shall not be subject
to execution, attachment or similar process, and any such attempted assignment,
transfer, pledge, hypothecation or disposition shall be null and void ab initio
and of no force or effect.
15. WITHHOLDING TAXES. The Company, a Subsidiary or Parent may withhold
cash, in an amount equal to the amount which the Committee determines is
necessary to satisfy the obligation of the Company, a Subsidiary or Parent to
withhold Federal,
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state and local income taxes or other amounts incurred by reason of the grant,
vesting, exercise or disposition of an option, or the disposition of the
underlying shares of Common Stock. Alternatively, the Company may require the
holder to pay to the Company such amount, in cash, promptly upon demand.
16. LEGENDS; PAYMENT OF EXPENSES. The Company may endorse such legend or
legends upon the certificates for shares of Common Stock issued upon exercise of
an option under the Plan and may issue such "stop transfer" instructions to its
transfer agent in respect of such shares as it determines, in its discretion, to
be necessary or appropriate to (a) prevent a violation of, or to perfect an
exemption from, the registration requirements of the Securities Act and any
applicable state securities laws, (b) implement the provisions of the Plan or
any agreement between the Company and the optionee with respect to such shares
of Common Stock, or (c) permit the Company to determine the occurrence of a
"disqualifying disposition," as described in Section 421(b) of the Code, of the
shares of Common Stock issued or transferred upon the exercise of an ISO granted
under the Plan.
The Company shall pay all issuance taxes with respect to the
issuance of shares of Common Stock upon the exercise of an option granted under
the Plan, as well as all fees and expenses incurred by the Company in connection
with such issuance.
17. USE OF PROCEEDS. The cash proceeds received upon the exercise of an
option under the Plan shall be added to the general funds of the Company and
used for such corporate purposes as the Board of Directors may determine.
18. SUBSTITUTIONS AND ASSUMPTIONS OF OPTIONS OF CERTAIN CONSTITUENT
CORPORATIONS. Anything in this Plan to the contrary notwithstanding, the Board
of Directors may, without further approval by the stockholders, substitute new
options for prior options of a Constituent Corporation (as defined in Paragraph
19) or assume the prior options of such Constituent Corporation.
19. DEFINITIONS. For purposes of the Plan, the following terms shall be
defined as set forth below:
(a) "Cause" shall mean (i) in the case of an employee or consultant,
if there is a written employment or consulting agreement between the optionee
and the Company, any of its Subsidiaries or a Parent which defines termination
of such relationship for cause, cause as defined in such agreement, and (ii) in
all other cases, cause as defined by applicable state law.
(b) "Constituent Corporation" shall mean any corporation which
engages with the Company, any of its Subsidiaries or a Parent in a transaction
to which Section 424(a) of the Code applies (or would apply if the option
assumed or substituted were an ISO), or any Parent or any Subsidiary of such
corporation.
(c) "Disability" shall mean a permanent and total disability within
the meaning of Section 22(e)(3) of the Code.
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(d) "Legal Representative" shall mean the executor, administrator or
other person who at the time is entitled by law to exercise the rights of a
deceased or incapacitated optionee with respect to an option granted under the
Plan.
(e) "Non-Employee Director" shall mean a person who is a director of
the Company, but is not an employee of the Company, any of its Subsidiaries or a
Parent.
(f) "Parent" shall have the same definition as "parent corporation"
in Section 424(e) of the Code.
(g) "Subsidiary" shall have the same definition as "subsidiary
corporation" in Section 424(f) of the Code.
20. GOVERNING LAW; CONSTRUCTION. The Plan, the options and Contracts
hereunder and all related matters shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without regard to conflict
of law provisions that would defer to the substantive laws of another
jurisdiction.
Neither the Plan nor any Contract shall be construed or interpreted with
any presumption against the Company by reason of the Company causing the Plan or
Contract to be drafted. Whenever from the context it appears appropriate, any
term stated in either the singular or plural shall include the singular and
plural, and any term stated in the masculine, feminine or neuter gender shall
include the masculine, feminine and neuter.
21. PARTIAL INVALIDITY. The invalidity, illegality or unenforceability
of any provision in the Plan, any option or Contract shall not affect the
validity, legality or enforceability of any other provision, all of which shall
be valid, legal and enforceable to the fullest extent permitted by applicable
law.
22. STOCKHOLDER APPROVAL. The Plan shall be subject to approval by a
majority of the votes present in person or by proxy and entitled to vote hereon
at the next duly held meeting of the Company's stockholders at which a quorum is
present. No options granted hereunder may be exercised prior to such approval;
provided, however, that the date of grant of any option shall be determined as
if the Plan had not been subject to such approval. Notwithstanding the
foregoing, if the Plan is not approved by a vote of the stockholders of the
Company on or before August 17, 1998, then the Plan and any options granted
hereunder shall terminate.
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FORM
1997 STOCK OPTION PLAN
NON-QUALIFIED STOCK OPTION CONTRACT
(TIME & PERFORMANCE VESTING OPTION)
NON-QUALIFIED STOCK OPTION CONTRACT entered into as of _________________
between CHATHAM TECHNOLOGIES, INC., a Delaware corporation (the "Company"), and
____________________ (the "Optionee").
WITNESSETH:
1. In consideration of the sum of $1 paid by the option holder to the
Company (the receipt, adequacy and sufficiency of which the Company hereby
acknowledges), the Company, in accordance with the allocation made by the
Committee and subject to the terms and conditions of the 1997 Stock Option Plan
of the Company (the "Plan"), grants to the Optionee an option to purchase an
aggregate of _________ shares of the Common Stock, $.01 par value per share, of
the Company ("Common Stock") at an exercise price of $1.00 per share, being at
least equal to the fair market value of such shares of Common Stock on the date
hereof. This option is not intended to constitute an incentive stock option
within the meaning of Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code").
2. The term of this option shall be 10 years from the date hereof,
subject to earlier termination as provided in the Plan. This option shall become
exercisable (a) as to 121/2% of the total number of shares of Common Stock
subject hereto on the first anniversary of the date of grant and as to an
additional 121/2% of such total number of shares on each of the next three
anniversaries of the date thereof (such portion of this option being referred to
herein as the "Time Vesting Portion"), and (b) as to the remaining 50% of such
total number of shares on the seventh anniversary of the date of grant or on
such earlier dates, in such amounts and subject to the Company's achievement of
such performance criteria as shall be determined by the Company's Board of
Directors on or before December 31, 1997 and annexed to this Contract as Exhibit
A at that time; provided, however, that, anything to the contrary contained
herein notwithstanding, (a) in no event may this option be exercised unless at
the time of exercise the Optionee is employed by the Company (except in the
event of death or disability in which event the option shall be exercised in
accordance with the Plan), (b) immediately prior to consummation of a Sale
Transaction (as defined below), any Time Vesting Portion of this option that has
then not yet become exercisable shall then become immediately exercisable, (c)
this option shall not be exercisable, and shall be void and of no further force
and effect, following a Sale Transaction and (d) in no event may this option be
exercised in respect of a fraction of a share. In the event of a Sale
Transaction (as defined below), (i) the Company shall provide the Optionee with
notice of such Sale Transaction a reasonable period in advance of the
consummation thereof, but in any event not less than 15 days in advance of the
consummation thereof, and (ii) the Optionee shall have the right, immediately
prior to consummation of such Sale Transaction, to exercise this option, to the
extent that this option will become exercisable under this section 2 upon the
consummation of such Sale Transaction, and (iii) upon exercise of this option by
the Optionee in accordance with this provision, the Optionee shall be entitled
to receive, for the exercise price paid upon exercise of this option as set
forth above, the cash and/or other consideration he would
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have received in the Sale Transaction if he had owned the full number of shares
of Common Stock with respect to which this option will become exercisable under
this section 2 upon the consummation of such Sale Transaction. As used herein, a
"Sale Transaction" shall mean any transaction or series of related transactions
pursuant to which all of the outstanding shares of capital stock of the Company
are being sold, transferred, assigned or otherwise disposed of to an
unaffiliated third party, whether directly or by merger, consolidation,
recapitalization or reorganization of the Company or otherwise.
3. This option shall be exercised by giving written notice to the
Company at its then principal office, presently c/o Kidd & Company, LLC, Three
Pickwick Plaza, Greenwich, Connecticut 06830, stating that the Optionee is
exercising the option hereunder, specifying the number of shares being purchased
and accompanied by payment in full of the aggregate purchase price therefor in
cash or by certified check or a combination of the foregoing.
4. The Company may withhold cash in the amount which the Company
determines is necessary to satisfy its obligation to withhold taxes or other
amounts incurred by reason of the grant, exercise or disposition of this option
or the disposition of the underlying shares of Common Stock. Alternatively, the
Company may require the Optionee to pay the Company such amount and the Optionee
agrees to pay such amount to the Company in cash, promptly upon demand.
5. Notwithstanding the foregoing, this option shall not be exercisable
by the Optionee unless (a) a Registration Statement under the Securities Act of
1933, as amended (the "Securities Act") with respect to the shares of Common
Stock to be received upon the exercise of this option shall be effective and
current at the time of exercise or (b) there is an exemption from registration
under the Securities Act for the issuance of the shares of Common Stock upon
such exercise. The Optionee hereby represents and warrants to the Company that,
unless such a Registration Statement is effective and current at the time of
exercise of this option, the shares of Common Stock to be issued upon the
exercise of this option will be acquired by the Optionee for his own account,
for investment only and not with a view to the resale or distribution thereof.
In any event, the Optionee shall notify the Company of any proposed resale of
the shares of Common Stock issued to him upon exercise of this option. Any
subsequent resale or distribution of shares of Common Stock by the Optionee
shall be made only pursuant to (x) a Registration Statement under the Securities
Act which is effective and current with respect to the sale of shares of Common
Stock being sold, or (y) a specific exemption from the registration requirements
of the Securities Act, but in claiming such exemption, the Optionee shall, prior
to any offer of sale or sale of such shares of Common Stock, provide the Company
(unless waived by the Company) with a favorable written opinion of counsel
satisfactory to the Company, in form, substance and scope satisfactory to the
Company, as to the applicability of such exemption to the proposed sale or
distribution. Such representations and warranties shall also be deemed to be
made by the Optionee upon each exercise of this option. Nothing herein shall be
construed as requiring the Company to register the shares subject to this option
under the Securities Act or to keep any Registration Statement effective or
current.
6. Notwithstanding anything herein to the contrary, if at any time the
Committee shall determine, in its discretion, that the listing or qualification
of the shares of Common Stock subject to this option on any securities exchange
or under any applicable law, or the consent or
<PAGE> 12
approval of any governmental agency or regulatory body, is necessary or
desirable as a condition to, or in connection with, the granting of an option or
the issue of shares of Common Stock hereunder, this option may not be exercised
in whole or in part unless such listing, qualification, consent or approval
shall have been effected or obtained free of any conditions not acceptable to
the Committee.
7. The Company may affix appropriate legends upon the certificates for
shares of Common Stock issued upon exercise of this option and may issue such
"stop transfer" instructions to its transfer agent in respect of such shares as
it determines, in its discretion, to be necessary or appropriate to (a) prevent
a violation of, or to perfect an exemption from, the registration requirements
of the Securities Act or any applicable state securities law or (b) implement
the provisions of the Plan or this Contract or any other agreement between the
Company and the Optionee with respect to such shares of Common Stock.
8. Nothing in the Plan or herein shall confer upon the Optionee any
right to continue in the employ of the Company, any Parent or any of its
Subsidiaries, or interfere in any way with any right of the Company, any Parent
or its Subsidiaries to terminate such employment at any time for any reason
whatsoever without liability to the Company, any Parent or any of its
Subsidiaries.
9. Simultaneously with the grant of this option, the Optionee has
executed the Stockholders' Agreement in the form annexed hereto.
10. The Company and the Optionee agree that they will both be subject to
and bound by all of the terms and conditions of the Plan, a copy of which is
attached hereto and made a part hereof. Any capitalized term not defined herein
shall have the meaning ascribed to it in the Plan. In the event of a conflict
between the terms of this Contract and the terms of the Plan, the terms of the
Plan shall govern.
11. The Optionee represents and agrees that he will comply with all
applicable laws relating to the Plan and the grant and exercise of this option
and the disposition of the shares of Common Stock acquired upon exercise of the
option, including without limitation, federal and state securities and "blue
sky" laws.
12. This option is not transferable by the Optionee otherwise than by
will or the laws of descent and distribution and may be exercised, during the
lifetime of the Optionee, only by the Optionee or the Optionee's legal
representatives.
13. This Contract shall be binding upon and inure to the benefit of any
successor or assign of the Company and to any heir, distributee, executor,
administrator or legal representative entitled to the Optionee's rights
hereunder.
14. This Contract shall be governed by, and construed and enforced in
accordance with, the laws of the State of Delaware, without regard to the
conflicts of law rules thereof that would defer to the substantive laws of
another jurisdiction.
15. The invalidity, illegality or unenforceability of any provision
herein shall not affect the validity, legality or enforceability of any other
provision.
<PAGE> 13
16. The Optionee agrees that the Company may amend the Plan and the
options granted to the Optionee under the Plan, subject to the limitations
contained in the Plan.
IN WITNESS WHEREOF, the parties hereto have executed this Contract as of
the day and year first above written.
CHATHAM TECHNOLOGIES, INC.
By:
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