EXHIBIT 10.4
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APOGENT TECHNOLOGIES INC.
2001 EQUITY INCENTIVE PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT is made and entered into as of the ___ day of ________,
2002 (the "Grant Date"), between Apogent Technologies Inc., a Wisconsin
corporation (the "Company"), and Name of Participant (the "Participant") in
connection with the grant of a Non-Qualified Stock Option under the Apogent
Technologies Inc. 2001 Equity Incentive Plan (the "Plan").
W I T N E S S E T H:
WHEREAS, Participant is an employee of the Company or one of its
Subsidiaries in a key position, and the Company desires to promote the success
and enhance the value of the Company by linking the personal interests of
Participant to those of Company shareholders, and by providing Participant with
an incentive for outstanding performance; and
WHEREAS, in light of the above, the Company desires to grant to
Participant a Non-Qualified Stock Option ("Option") to purchase Shares of
Company common stock under the Company's 2001 Equity Incentive Plan.
NOW, THEREFORE, in consideration of these premises, the parties agree
that the following shall constitute the agreement ("Agreement") between the
Company and Participant:
1. Plan Controls. This Option is granted under and is subject to
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the terms of the Plan. In the case of any inconsistency between the terms of
this Agreement and the terms of the Plan, the terms of the Plan shall control.
For purposes of this Agreement, the terms used herein shall have the meanings
specified in the Plan and terms which are not defined in the Plan shall have
the meanings specified in Section 11 of this Agreement.
2. Grant of Non-Qualified Stock Option. Subject to the terms and
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conditions set forth herein, the Company grants to Participant a Non-Qualified
Stock Option to purchase from the Company TotalShares Shares at an Option
price of US$ Amount per share ("Option Price"), subject to adjustment as
provided in Section 9 hereof. This Option shall not be exercisable until
Participant completes one year of service from the Grant Date. When Participant
has completed one year of service from the Grant Date, the Option shall be
exercisable for 25% of the Shares covered by this Option. Thereafter, the
Option shall become exercisable for an additional 1/48 of the total Shares
covered by this Option for each full month of employment with the Company.
(E.g., the Option will be exercisable for 37.5% of the Shares if Participant
continues in employment for eighteen months after the Grant Date, 75% of the
Shares if Participant continues in employment for thirty-six months after the
Grant Date, and 100% of the Shares if Participant continues in employment for
forty-eight months after the Grant Date.) No fractional Shares shall be issued
upon exercise of this Option and if the application of the fractions set forth
above would result in a fractional share, the number of Shares exercisable
shall be rounded up to the next full share. Notwithstanding the foregoing, this
Option shall become immediately exercisable in full if (a) Participant's
employment terminates because of death or Disability or (b) in the event of a
Change in Control (as provided in Section 12 hereof).
3. Expiration of Option. This Option shall expire ten years from
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the Grant Date; provided, however, that (a) if Participant's employment with
the Company is terminated prior to the exercise in full of this Option, then
the rules of Section 8 hereof shall apply, and (b) notwithstanding anything to
the contrary herein, the Company shall not be required to issue or transfer any
certificates for Shares purchased upon exercise of this Option until all
applicable requirements of law have been complied with and, if applicable, such
Shares shall have been duly listed on any securities exchange on which Shares
may then be listed.
4. Notice of Exercise. This Option may be exercised in whole or
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in part from time to time in accordance with Section 2 hereof, by the delivery
of written notice to the Vice President of Human Resources of the Company at
the address provided in Section 14, which notice shall:
(a) specify the number of Shares to be purchased and the
per share Option Price therefor;
(b) if the Person exercising this Option is not the
Participant, contain or be accompanied by evidence
satisfactory to the Committee of such person's right
to exercise this Option; and
(c) be accompanied by payment in full of the total Option
Price (i) in cash or its equivalent, (ii) by
tendering previously acquired Shares having a Fair
Market Value at the time of exercise equal to the
Option Price (provided such previously acquired
Shares have been held by Participant for at least six
months prior to such tender), (iii) by a combination
of cash and such tendered Shares, (iv) with the
Committee's consent, through a cashless exercise as
permitted under Federal Reserve Board Regulation T,
or (v) by any other means which the Committee deems
consistent with the Plan and applicable law.
As soon as practicable after receipt of an exercise notice and full payment of
the Option Price, the Company shall deliver to Participant, in Participant's
name, Share certificates in an appropriate amount based upon the number of
Shares purchased upon the exercise. The Committee may impose such restrictions
on any Shares acquired pursuant to an exercise as it deems advisable, including
without limitation restrictions under applicable Federal securities laws, under
the requirements of any stock exchange or market upon which such Shares are then
listed and/or traded, and under blue sky or state securities laws applicable to
such Shares.
5. Transfer and Exercise of Option. This Option may not be sold,
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transferred, pledged, assigned, or otherwise alienated or hypothecated, other
than by will or by the laws of descent and distribution, and shall be
exercisable by a Participant during his or her lifetime only by Participant,
except that any portion of this Option that is then exercisable may be
transferred by Participant during his lifetime to a family member (as defined
in the General Instructions to SEC Form S-8). In accordance with the provisions
of the Plan, Participant may, from time to time, name any beneficiary or
beneficiaries (who may be named contingently or successively) who shall be
entitled to exercise this Option in the event of Participant's death and to the
extent this Option is exercisable at that time. In the absence of any such
designation, this Option may be exercised, to the extent exercisable, by the
administrator of Participant's estate.
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6. Status of Participant. The Participant shall not be deemed
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a shareholder of the Company with respect to any of the Shares subject to this
Option, except to the extent that such Shares shall have been purchased and
transferred to him.
7. No Effect on Capital Structure. This Option shall not affect
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the right of the Company or any Subsidiary thereof to reclassify, recapitalize
or otherwise change its capital or debt structure or to merge, consolidate,
convey any or all of its assets, dissolve, liquidate, windup, or otherwise
reorganize.
8. Termination of Employment.
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(a) If the employment of Participant shall terminate
for any reason other than Cause or Retirement, this
Option, to the extent (if any) it is not yet
exercisable, shall terminate immediately and be
forfeited to the Company; provided, however, that
if the employment of Participant shall terminate
by reason of death or Disability, this Option, to
the extent it is not yet exercisable, shall
immediately vest and become exercisable until the
earlier to occur of three years from the date of
termination or the scheduled expiration date of
this Option; and provided further that the
Committee, in its sole discretion, shall have
the right to immediately vest, upon any other
termination without Cause, all or any portion of
this Option, subject to such terms as the Committee,
in its sole discretion, deems appropriate, provided
that the maximum exercise period which may be
permitted upon any such acceleration of vesting
shall be the shorter of three years or the scheduled
expiration date of this Option.
(b) If the employment of Participant shall terminate by
reason of Retirement, this Option, to the
extent it is not yet exercisable, shall continue in
existence and shall continue to vest during the
three-year period following the date of Retirement
as if the Participant remained in the employ of the
Company (subject to acceleration in the event of
Participant's death or in the event of a Change of
Control). The Option shall remain exercisable
until the earlier to occur of three years from
the date of Retirement or the scheduled expiration
date of this Option; and provided further that the
Committee, in its sole discretion, shall have the
right to immediately vest all or any portion of this
Option, subject to such terms as the Committee, in
its sole discretion, deems appropriate, provided
that the maximum exercise period which may be
permitted upon any such acceleration of vesting
shall be the shorter of three years or the scheduled
expiration date of this Option.
(c) To the extent that this Option is exercisable as of
the effective date of a termination other than for
Cause, this Option may be exercised by Participant
within the period beginning on the effective date of
termination and ending on the earlier to occur of the
scheduled expiration date of the Option or: (i) three
years following the effective date of termination in
the case of termination by reason of death,
Disability or Retirement, and (ii) three months
following such date in the case of termination for
any other reason (other than for Cause).
(d) If the employment of Participant shall terminate for
Cause, this Option shall terminate immediately and be
forfeited to the Company, and no additional exercise
period shall be allowed, regardless of the
exercisability of this Option at the time of such
termination.
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9. Adjustments Upon Changes in Capitalization, Merger, Etc.
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Notwithstanding any other provision herein, in the event of any merger,
reorganization, consolidation, recapitalization, separation, liquidation, stock
dividend, split-up, share combination, or other change in the corporate
structure of the Company affecting the Shares, such adjustment shall be made in
the number and class of Shares subject to this Option and the Option Price as
may be determined by the Committee, in its sole discretion, to be appropriate
and equitable to prevent dilution or enlargement of rights, provided that any
fractional share resulting from such adjustment shall be eliminated.
10. Committee Authority. Any question concerning the
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interpretation of this Agreement, any adjustments required to be made under
Section 9 of this Agreement, and any controversy which may arise under this
Agreement shall be determined by the Committee, in its sole discretion, which
determination shall be final, conclusive and binding on all Persons, including
without limitation the Company and Participant.
11. Definitions. For purposes of this Agreement, the terms used
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in this Agreement shall have the following meanings:
(a) Cause. "Cause" means fraud, dishonesty, competition
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with the Company, unauthorized use of the Company's
trade secrets or confidential information, or
continued gross neglect by Participant of the duties
assigned to him by the Board (if such neglect
continues for thirty days after notice by the Board
to Participant specifying the duties being neglected
by Participant).
(b) Change in Control. "Change in Control" shall mean
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a change in control of the Company of a nature that
would be required to be reported in response to Item
6(e) of Schedule 14A of Regulation 14A promulgated
under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), whether or not the
Company is then subject to such reporting
requirement; provided that, without limitation,
such a Change in Control shall be deemed to have
occurred if: (i) any Person is or becomes the
"beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly,
of securities of the Company representing 25% or
more of the combined voting power of the Company's
then outstanding securities; (ii) during any
period of two consecutive years (not including any
period prior to the execution of this Agreement),
individuals, who at the beginning of such period
constitute the Board and any new director added
during the period whose election to the Board or
nomination for election to the Board by the Company's
shareholders was approved by a vote of at least
two-thirds of the directors then still in office
who either were directors at the beginning of the
period or whose election or nomination for election
was approved prior to the beginning of the period,
cease for any reason to constitute a majority of
the Board; (iii) the shareholders of the Company
approve a merger or consolidation of the Company with
any other corporation, other than a merger or
consolidation which would result in the voting
securities of the Company outstanding immediately
prior thereto continuing to represent (either by
remaining outstanding or by being converted into
voting securities of the surviving entity) more than
66 2/3% of the combined voting power of the voting
securities of the Company or such surviving entity
outstanding immediately after such merger or
consolidation; or (iv) the shareholders of the
Company approve a plan of complete liquidation of
the Company or an agreement for the
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sale or disposition by the Company of all or
substantially all of the Company's assets.
12. Change In Control. Upon the occurrence of a Change in Control,
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unless otherwise specifically prohibited by law, this Option shall become
immediately exercisable and shall remain as such for the duration of its term
(subject to Section 8 hereof); provided, however, that the Committee shall have
authority to make any modifications to this Option which are consistent with
the provisions of the Plan and determined by the Committee to be appropriate
before the effective date of the Change in Control.
13. Tax Withholding. The Company shall have the power and right
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to deduct or withhold, or require Participant to remit to the Company, an
amount sufficient to satisfy Federal, state and local taxes required by law to
be withheld with respect to the grant of this Option, its exercise or any
payment made under or as a result of this Option or the Plan. The Participant
may make a written election, subject to the approval of the Committee, to
satisfy this withholding requirement, in whole or in part, by having the
Company withhold Shares having a Fair Market Value on the date the tax is to be
determined equal to the minimum marginal total tax which could be imposed on
the transaction.
14. Notice. Whenever any notice is required, permitted or
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contemplated hereunder, such notice shall be given to the non-notifying party
via hand delivery or United States mail, postage prepaid, at the address stated
below or at such other address specified in a notice given hereunder:
If to the Company: APOGENT TECHNOLOGIES INC.
30 Penhallow Street
Portsmouth, NH 03801
Attention: Vice President
of Human Resources
If to Participant: Participant Name
c/o CompanyName
Street
City, State Zip
Country
Any notice given via United States mail shall be deemed effectively given four
days after mailing.
15. Tax Treatment. This Option is not intended to qualify as,
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and shall not be treated as, an "incentive stock option" within the meaning of
Section 422 of the Code.
16. Governing Law. To the extent not preempted by Federal law,
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this Agreement shall be construed in accordance with and governed by the laws
of the State of Wisconsin.
17. Successors. All obligations of the Company under this
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Agreement shall be binding on any successor to the Company, whether the
existence of such successor is the result of a direct or indirect purchase,
merger, consolidation, or otherwise, of all or substantially all of the
business and/or assets of the Company.
18. Employment/Participation. Nothing in this Agreement shall
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interfere with or limit in any way the right of the Company to terminate
Participant's employment at any time, nor confer upon Participant any right to
continue in the employ of the Company. Furthermore, nothing contained
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herein shall confer upon Participant any right to be selected to receive an
award in the future under the Plan.
19. Gender and Number. Except where otherwise indicated by the
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context, any masculine term used herein also shall include the feminine; the
plural shall include the singular; and the singular shall include the plural.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and Participant has hereunto set his hand on the day and year first
above written.
APOGENT TECHNOLOGIES INC.
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Vice President of Human Resources
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Signature of Participant
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