Exhibit 10.25(b)
PRIVILEGED AND CONFIDENTIAL
ATLANTIC COAST AIRLINES HOLDINGS, INC.
INCENTIVE STOCK OPTION AGREEMENT
This Incentive Stock Option Agreement ("Option Agreement") is
between Atlantic Coast Airlines Holdings, Inc., a Delaware
Corporation (the "Company"), and the employee named in Section 1
below (the "Optionee").
W I T N E S S E T H:
WHEREAS, the Company has adopted stock compensation plans for the
purpose of encouraging ownership of common stock, $.02 par value
("Common Stock"), of the Company by eligible key employees and
directors of the Company, of providing increased incentive for
such employees and directors to render services and to exert
maximum effort for the business success of the Company, and of
further strengthening the identification of employees and
directors with the stockholders; and
WHEREAS, Section 422 of the Internal Revenue Code provides that
an employee shall not be taxed upon exercise of an option that
qualifies as an incentive stock option, provided that the
employee does not dispose of the shares acquired upon exercise of
such option until two years after the option is granted to the
employee and one year after the option is exercised; and
WHEREAS, the Company, acting through the Compensation Committee
of its Board of Directors or any person to whom it has delegated
its authority (the "Committee"), has determined that its
interests will be advanced by the issuance to Optionee of an
incentive stock option under the stock compensation plan
identified below, as such may previously or subsequently be
amended (the "Plan").
NOW, THEREFORE, for and in consideration of these premises it is
agreed as follows:
1. Identifying Provisions: As used in this Option Agreement,
the following terms shall have the following respective meanings:
(a) Optionee:
(b) Date of Grant:
(c) Name of Plan:
(d) Number of shares subject to Option Agreement:
(e) Exercise Price per share: $
(f) Expiration Date:
(g) Annual Vesting Percentage:
(h) Anniversary for Full Vesting:
2. Option. Subject to the terms and conditions contained
herein, the Company hereby grants to Optionee the right and
option ("Option") to purchase from the Company up to that number
of shares of Common Stock specified in Section 1(d) of this
Option Agreement, at a price per share equal to the Exercise
Price specified in Section 1(e) of this Option Agreement. This
Option is intended to qualify to the maximum extent possible as
an incentive stock option under Section 422 of the Internal
Revenue Code (the "Code"), and therefore meets the following
requirements: (i) the Exercise Price is not less than the fair
market value of the Common Stock on the date when the Company
completed the corporate action constituting an offer of stock
for sale to the Optionee; (ii) the Option is not exercisable more
than one year after the employee ceases to be employed because of
death or a disability (as defined in Section 22(e)(3) of the
Code) or three months after the Optionee otherwise ceases to be
an employee of the Company or its parent or a subsidiary, (iii)
the Optionee is not a greater than ten percent shareholder (or,
if Optionee is, such further conditions required under Code
Section 422 have been satisfied), and (iv) such option shall not
be exercisable more than ten years after the date on which such
option is granted. The Code further provides that option shares
do not qualify for incentive stock option treatment if and to the
extent that (i) the aggregate Exercise Price for shares that
could be purchased under the Option in the year the Option first
became exercisable as to such shares, plus (ii) the aggregate
exercise price for shares under any of the Optionee's other
concurrently or previously granted incentive stock options that
first became exercisable in that same calendar year, exceeds
$100,000. Therefore, notwithstanding anything to the contrary
herein, if and to the extent that any shares are issued under a
portion of this Option that exceeds the forgoing $100,000
limitation, such shares shall not be treated as issued under an
incentive stock option.
3. Option Period. The Option herein granted may not be
exercised or exercisable after the Expiration Date specified in
Section 1(f) of this Option Agreement. This Option shall not be
exercisable on the Date of Grant, but, subject to such further
terms and limitations set forth herein, on each anniversary of
the Date of Grant this Option shall become exercisable to
purchase, and shall vest with respect to, a number of shares of
Common Stock (rounded to the nearest whole share) equal to the
Annual Vesting Percentage (as specified in Section 1(g))
multiplied by the total number of shares subject to this Option
Agreement (as specified in Section 1(d), without regard to any
previous exercises of this Option), so that as of the anniversary
of the Date of Grant specified in Section 1(h) this Option shall
have become fully exercisable and vested as to the total number
of shares subject to this Option Agreement.
4. Procedure for Exercise. The Option herein granted may be
exercised by written notice by Optionee to the Secretary of the
Company setting forth the number of shares of Common Stock with
respect to which the Option is to be exercised, and specifying
such further information regarding delivery of such shares as the
Secretary of the Company may reasonably request. Payment shall
be by means of cash, or a cashier's check or bank draft, payable
to the order of the Company, by a commitment from a brokerage
firm acceptable to the Secretary of the Company to pay the
aggregate Exercise Price from proceeds of a sale of shares
issuable on exercise of the Option, or at the option of the
Optionee, in Common Stock theretofore owned by such Optionee for
at least six months (or a combination of cash and Common Stock).
As promptly as practicable after exercise of this Option, the
Company shall issue to Optionee the number of shares of Common
Stock with respect to which such Option has been so exercised.
5. Termination of Employment. If Optionee's employment with
the Company is terminated prior to the Expiration Date for any
reason other than death or disability, the Option shall
immediately terminate to the extent it is not exercisable on the
date of Optionee's termination of employment. To the extent that
the Option is exercisable on the date of Optionee's termination
of employment for any reason other than death or disability, the
Option may be exercised at any time on or before the earlier of
(i) the close of business on the thirtieth (30th) day after such
date of termination of employment, and (ii) the Expiration Date.
6. Disability or Death. If Optionee's employment with the
Company is terminated by Optionee's disability or death, the
Option shall immediately terminate to the extent it is not
exercisable on such date. To the extent that the Option is
exercisable on the date of Optionee's termination of employment
on account of disability or death, the Option may be exercised by
Optionee, his executor or administrator, or the person or persons
to whom his rights under this Option Agreement shall pass by will
or by the laws of descent and distribution, as the case may be,
at any time on or before the earlier of (i) the date that is one
(1) year from the date of Optionee's death or the date of the
determination of Optionee's disability, and (ii) the Expiration
Date. Optionee shall be deemed to be disabled if, in the opinion
of a physician selected by the Committee, he is incapable of
performing services for the Company by reason of any medically
determinable physical or mental impairment which can be expected
to result in death or to be of long, continued and indefinite
duration.
7. Transferability. This Option shall not be transferable by
Optionee otherwise than by Optionee's will or by the laws of
descent and distribution. During the lifetime of Optionee, the
Option shall be exercisable only by him. Any heir or legatee of
Optionee shall take rights under this Option subject to the terms
and conditions of this Option Agreement. No such transfer of
this Option Agreement to heirs or legatees of Optionee shall be
effective to bind the Company unless the Company shall have been
furnished with written notice thereof and a copy of such evidence
as the Committee may deem necessary to establish the validity of
the transfer and the acceptance and assumption by the transferee
or transferees of the obligations of the Optionee and of the
other terms and conditions hereof.
8. No Rights as Stockholder. Optionee shall have no rights as
a stockholder with respect to any shares of Common Stock covered
by this Option Agreement until the date of issuance of shares of
Common Stock purchased pursuant to this Option Agreement. Until
such time, Optionee shall not be entitled to dividends or to vote
at meetings of the stockholders of the Company. Except as
provided in paragraph 10 hereof, no adjustment shall be made for
dividends (ordinary or extraordinary, whether in cash or
securities or other property) paid or distributions or other
rights granted in respect of any share of Common Stock for which
the record date for such payment, distribution or grant is prior
to the date upon which the Optionee shall have been issued share
certificates, as provided hereinabove.
9. Extraordinary Corporate Transactions.
A. If the Company experiences a "Fundamental Change"
(as that term is defined in the Plan), the Committee may make
appropriate and proportionate adjustments in the number and type
of shares or other securities or cash or other property that may
thereafter be acquired upon the exercise of the Option; provided,
however, that any such adjustments in the Option shall be made
without changing the aggregate Exercise Price for the then
unexercised portion of the Option.
B. Acceleration of Option upon a Change in Control.
If the Company experiences a Corporate Change, the exercisability
and vesting of this Option shall accelerate as of the date of
such Corporate Change. The Compensation Committee of the
Company's Board of Directors (the "Committee") shall provide that
if a Corporate Change occurs, then effective as of a date
selected by the Committee, the Committee (which for purposes of
the Corporate Changes described in clauses (iii) and (v) of the
definition of Corporate Change below shall be the Committee as
constituted prior to the occurrence of such Corporate Change)
acting in its sole discretion without the consent or approval of
Optionee, will effect one or more of the following alternatives
or combination of alternatives with respect to this Option (which
alternatives may be conditional on the occurrence of such of the
Corporate Change specified in clause (i) through (v) of the
definition of Corporate Change below which gives rise to the
Corporate Change): (1) in the case of a Corporate Change
specified in clauses (i), (ii) or (iv) of the definition thereof,
provide that the Option (including any portion exercisable
pursuant to the first sentence of this Paragraph 9.B.) may be
exercised in full for a limited period of time on or before a
specified date (which will permit Optionee to participate with
the Common Stock received upon exercise of such option in the
event of a Corporate Change specified in clauses (i), (ii) or
(iv) of the definition of Corporate Change below, as the case may
be) fixed by the Committee, after which specified date the Option
and all rights of Optionee hereunder shall terminate, (2) provide
that the Option (including any portion exercisable pursuant to
the first sentence of this Paragraph 9.B.) may be exercised for
the Options then remaining term, or (3) require the mandatory
surrender to the Company of this Option (including any portion
exercisable pursuant to the first sentence of this Paragraph
9.B.) as of a date, before or not later than sixty days after
such Corporate Change, specified by the Committee, and in such
event the Committee shall thereupon cancel such Options and the
Company shall pay to Optionee an amount of cash equal to the
excess of the fair market value of the aggregate shares subject
to such Option over the aggregate option price of such shares;
provided, however, the Committee shall not select an alternative
(unless consented to by Optionee) that, if Optionee exercised
Optionee's accelerated Options pursuant to alternative 1 or 2 and
participated in the transaction specified in clause (i), (ii) or
(iv) of the definition of Corporate Change below or received
cash pursuant to alternative 3, would result in Optionee's owing
any money by virtue of operation of Section 16(b) of the Exchange
Act. If all such alternatives have such a result, the Committee
shall take such action, which is hereby authorized, to put
Optionee in as close to the same position as Optionee would have
been in had alternative 1, 2 or 3 been selected but without
resulting in any payment by Optionee pursuant to Section 16(b) of
the Exchange Act. Notwithstanding the foregoing, with the
consent of Optionee, the Committee may in lieu of the foregoing
make such provision with respect of any Corporate Change as it
deems appropriate.
C. Definitions. For purposes of this Agreement
"Corporate Change" shall each mean (i) any merger or
consolidation in which the Company shall not be the surviving
entity (or survives only as a subsidiary of another entity,
unless the stockholders of Company immediately before such merger
or consolidation own, directly or indirectly immediately
following such merger or consolidation, substantially all of the
combined voting power of the surviving entity in substantially
the same proportion as their ownership immediately before such
merger or consolidation, (ii) the sale of all or substantially
all of the Company's assets to any other person or entity (other
than a wholly-owned subsidiary), (iii) the acquisition of
beneficial ownership or control of (including, without
limitation, power to vote) more than 50% of the outstanding
shares of Common Stock by any person or entity (including a
"group" as defined by or under Section 13(d)(3) of the Exchange
Act), (iv) the dissolution or liquidation of the Company, (v) a
contested election of directors, as a result of which or in
connection with which the persons who were directors of the
Company before such election or their nominees cease to
constitute a majority of the Board, or (vi) any other event
specified by the Committee, regardless of whether at the time an
Option is granted or thereafter.
10. Compliance With Securities Laws. Upon the acquisition of
any shares pursuant to the exercise of the Option herein granted,
Optionee (or any person acting under paragraph 7 of this
Agreement) shall enter into such written representations,
warranties and agreements as the Company may reasonably request
in order to comply with applicable securities laws or with this
Option Agreement.
11. Compliance With Laws. Notwithstanding any of the other
provisions hereof, Optionee agrees that he will not exercise the
Option granted hereby, and that the Company will not be obligated
to issue any shares pursuant to this Option Agreement, if the
exercise of the Option or the issuance of such shares of Common
Stock would constitute a violation by the Optionee or by the
Company of any provision of any law or regulation of any
governmental authority. The certificates representing the shares
of Common Stock purchased by exercise of an Option will be
stamped or otherwise imprinted with legends in such form as the
Company or its counsel may require with respect to any applicable
restrictions on sale or transfer and the stock transfer records
of the Company will reflect stop-transfer instructions with
respect to such shares.
12. Withholding of Tax. If the Company becomes obligated to
withhold an amount on account of any tax imposed as a result of
the exercise of the Option or the disposition of shares of Common
Stock acquired by exercise of this Option, including, without
limitation, any federal, state, local or other income tax, or any
F.I.C.A., Medicare, state disability insurance tax or other
employment tax, the Optionee shall be obligated, as of the first
date on which the Company is so obligated, to pay such amounts to
the Company in cash or check, or other property acceptable to the
Secretary of the Company in his sole discretion; and, if the
Optionee fails to make such payment, the Company is authorized by
the Optionee to withhold from any payments then or thereafter
payable to the Optionee, any such amounts or the Company may
otherwise refuse to issue or transfer any shares otherwise
required to be issued or transferred pursuant to the terms
hereof. The Committee may, in its sole discretion, allow the
Optionee to pay any such amounts through the surrender of whole
shares of Common Stock or by having the Company withhold whole
shares of Common Stock otherwise issuable upon the exercise of
this Option. Any such shares surrendered or withheld shall be
valued at their market value, determined by such method as the
Secretary of the Company in his sole discretion shall determine,
equal to the sums required to be withheld as of the date on which
the amount of tax to be withheld is determined.
13. Resolution of Disputes. As a condition of the grant of the
Option hereby and of the ability to exercise the Option, the
Optionee and his heirs, successors and personal representatives
agree that any dispute or disagreement which may arise hereunder
shall be determined by the Committee in its sole discretion and
judgment, and that any such determination and any interpretation
by the Committee of the terms of this Option Agreement shall be
final and shall be binding and conclusive, for all purposes, upon
the Company, Optionee, his heirs, successors and personal
representatives.
14. Notices. Every notice hereunder shall be in writing and
shall conclusively be deemed to be given only if given by
registered or certified mail. All notices of the exercise of any
Option hereunder shall be directed to Atlantic Coast Airlines
Holdings, Inc., 515-A Shaw Road, Dulles, Virginia 20166,
Attention: Secretary. Any notice given by the Company to
Optionee directed to him at his address on file with the Company
shall be effective to bind him and any other person who shall
have acquired rights hereunder. The Company shall be under no
obligation whatsoever to advise Optionee of the existence,
maturity or termination of any of Optionee's rights hereunder and
Optionee shall be deemed to have familiarized himself with all
matters contained herein and in the Plan which may affect any of
Optionee's rights or privileges hereunder.
15. Construction and Interpretation. Whenever the term
"Optionee" is used herein under circumstances applicable to any
other person or persons to whom this award, in accordance with
the provisions of paragraph 7 hereof, may be transferred, the
word "Optionee" shall be deemed to include such person or
persons. References to the masculine gender herein also include
the feminine gender for all purposes. This Option Agreement
shall be administered, interpreted and enforced under the laws of
the State of Delaware.
16. Agreement Subject to Plan. This Option Agreement is subject
to the Plan (including any subsequent amendments thereto). In
the event of a conflict between any term or provision contained
herein and a term or provision of the Plan, the applicable terms
and provisions of the Plan will govern and prevail. All
definitions of words and terms contained in the Plan shall be
applicable to this Option Agreement.
17. Employment Relationship. For purposes of this Option
Agreement, Optionee shall be considered to be in the employment
of the Company as long as he remains an employee of the Company
or an Affiliate (as defined in the Plan) or remains a director of
the Company or of such an Affiliate or provides consulting
services under Section 12 of the Severance Agreement. Any
questions as to whether and when there has been a termination of
such employment and the cause of such termination shall be
determined by the Committee, and its determination shall be
final. Nothing contained herein shall be construed as conferring
upon the Optionee the right to continue in the employ of the
Company, nor shall anything contained herein be construed or
interpreted to limit the "employment at will" relationship
between the Optionee and the Company. (In addition, an employee
shall be considered to be in the employment of the Company as
long as he remains an employee of any partnership, joint venture
or corporation not meeting the requirements of a Subsidiary but
in which the Company or a Subsidiary is a stockholder and which
is designated by the Committee as subject to this provision).
18. Binding Effect. This Option Agreement shall be binding upon
and inure to the benefit of any successors to the Company.
IN WITNESS WHEREOF, the Option Agreement has been executed as of
the Date of Grant.
Atlantic Coast Airlines Holdings,
Inc.
By:_______________________________
Optionee
__________________________________
Name