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Exhibit 10.1
THERAGENICS CORPORATION
INCENTIVE STOCK OPTION AWARD
THIS
AWARD is made as of the Grant Date, by THERAGENICS CORPORATION
(the “Company”) to NAME (the
“Optionee”), subject to acceptance by the
Optionee.
Upon
and subject to the Terms and Conditions attached hereto and
incorporated herein by reference, the Company hereby awards as
of the Grant Date to Optionee an incentive stock option (the
“Option”), as described below, to purchase the
Option Shares.
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A.
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Grant Date:
February 19,
2008 . |
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B.
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Type of
Option: Incentive Stock Option. |
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C. |
Plan (under which
Option is granted): Theragenics Corporation 2006 Stock
Incentive Plan. |
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D. |
Option
Shares: All or any part of NUMBER shares of the
Company’s $.01 par value common stock (the “Common
Stock”). |
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E. |
Exercise
Price: $3.79 per share , which
is 100% of the fair market value of the Common Stock on the Grant
Date or 110% of the fair market value if Optionee is an Over 10%
Owner. |
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F. |
Option
Period: Subject to the attached terms and
conditions, the Option may be exercised during the Option Period
which |
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commences on the
Grant Date and ends no later than at the close of business on the
tenth (10th) anniversary of the Grant Date or fifth (5th)
anniversary of the Grant Date if Optionee is an Over 10% Owner,
provided that the Option may be exercised as to no more than the
vested Option Shares, determined pursuant to the Vesting
Schedule. Note that other restrictions to exercising the
Option, as described in the attached Terms and Conditions, may
apply. |
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G. |
Vesting
Schedule: The Option shall become vested in accordance
with the following vesting schedule: |
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Years of
Service
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Number of
Option
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Percentage of
Option
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After Grant
Date
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Shares
Vested
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Shares
Vested
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1
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X
shares
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25%
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2
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X
shares
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50%
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3
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X
shares
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75%
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4
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X
shares
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100%
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The
Optionee shall receive a year of service as of each
anniversary of the Grant Date; provided that, the Optionee has
not had a Termination of Employment before such
anniversary.
Any
portion of the Option Shares that have not become vested in
accordance with the foregoing schedule shall become vested on
the first to occur of the following: (1) the date of the
Optionee’s Termination of Employment due to death or
Disability; (2) the date of the Optionee’s retirement
(i.e., voluntary resignation) upon or after age 65; or (3) the
date of a Change in Control. Notwithstanding the
foregoing, any Option Shares that have not become vested as of
the date of the Optionee’s Termination of Employment
shall be forfeited.
IN
WITNESS WHEREOF, the Company has executed and sealed this
Award as of the Grant Date set forth above.
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By: |
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Title: |
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Accepted: |
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NAME |
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TERMS AND CONDITIONS
TO THE
THERAGENICS CORPORATION 1995 STOCK INCENTIVE PLAN
INCENTIVE STOCK OPTION AWARD
1.
Exercise of
Option . Subject to the provisions provided
herein or in the Award made pursuant to the Theragenics 2006
Stock Incentive Plan:
(a) The
Option may be exercised with respect to all or any portion of
the vested Option Shares at any time during the Option Period
by the delivery to the Company, at its principal place of
business, of (i) a written notice of exercise in
substantially the form attached hereto as Exhibit 1, which
shall be actually delivered to and reviewed by the Company
prior to the date upon which Optionee desires to exercise of
all or any portion of the Option and (ii) payment to the
Company of the Exercise Price multiplied by the number of
shares being purchased (the “Purchase Price”) in
the manner provided in Subsection (b). Upon
acceptance of such notice and receipt of payment in full of
the Purchase Price and withholding liability, the Company
shall cause to be issued a certificate representing the
Option Shares purchased.
(b) The
Purchase Price shall be paid in full upon the exercise of an Option
and no Option Shares shall be issued or delivered until full
payment therefor has been made. Payment of the Purchase
Price for all Option Shares purchased pursuant to the exercise of
an Option shall be made in cash, certified check, or,
alternatively, as follows:
(i) by
delivery to the Company of a number of shares of Common Stock which
have been owned by the Optionee for at least six months prior to
the date of the Option’s exercise, having a Fair Market
Value, as determined under the Plan, on the date of exercise either
equal to the Purchase Price or in combination with cash to equal
the Purchase Price; or
(ii) by
receipt of the Purchase Price in cash from a broker, dealer or
other “creditor” as defined by Regulation T issued by
the Board of Governors of the Federal Reserve System following
delivery by the Optionee to the Committee (defined in the Plan) of
instructions in a form acceptable to the Committee regarding
delivery to such broker, dealer or other creditor of that number of
Option Shares with respect to which the Option is
exercised.
2.
Exercise
Price . The exercise price for each Option
Share shall be $3.79, subject to
adjustment as set forth in Section 7 below (the
“Exercise Price”).
3.
Withholding
. This tax withholding section will apply only if
all or a portion of the Option is not or ceases to be an
“Incentive Stock Option” under Section 422 of the
Internal Revenue Code when it is
exercised. Otherwise, it does not
apply. The Optionee must satisfy his federal, state
and local, if any, withholding taxes imposed by reason of the
exercise of the Option either by paying to the Company the
full amount of the withholding obligation (i) in cash, (ii) by
electing, irrevocably and in writing in substantially the form
attached hereto as Exhibit 2 (a “Withholding
Election”), to have the actual number of shares of
Common Stock issuable upon exercise reduced by the smallest
number of whole shares of Common Stock which, when multiplied
by the fair market value of the Common Stock as of the date
the Option is exercised, is sufficient to satisfy the amount
of withholding tax; or (iii) by any combination of the
above. Optionee may make a Withholding Election
only if the following conditions are met:
(a) the
Withholding Election is made by executing and delivering to the
Company a properly completed Notice of Withholding Election in
substantially the form of Exhibit 2 attached hereto;
(b) the
Withholding Election is delivered to the Company sufficiently in
advance of the date on which the amount of tax required to be
withheld is determined (the “Tax Date”) as the
Committee under the Plan (the “Committee”) determines
is necessary or appropriate to satisfy the conditions of the
exemptions provided under Rule 16b-3 promulgated under the
Securities Exchange Act of 1934 (the “1934
Act”);
(c) any
Withholding Election is irrevocably given in a manner that
satisfies the requirements of the exemption provided under Rule
16b-3 promulgated under the 1934 Act; and
(d) if
the Optionee is considered by the Committee not to be subject to
Section 16 of the 1934 Act, the Withholding Election is made no
later than the Tax Date.
Notwithstanding
anything to the contrary herein, the Committee may in its sole
discretion disapprove and give no effect to any Withholding
Election.
4.
Term
and Termination of Option . The Option shall
terminate on the earliest of (i) the last day of the Option
Period, (ii) as of the time of the Optionee’s
Termination of Employment by Optionee without the
Company’s written consent, unless such Termination of
Employment is due to the death or Disability or retirement
(i.e., voluntary resignation) upon or after reaching age 65,
(iii) one year following the date of the Optionee’s
Termination of Employment by Optionee with the Company’s
written consent or due to retirement (i.e., voluntary
resignation) upon or after reaching age 65, (iv) one year
following the date of the Optionee’s Termination of
Employment by the Company or a Subsidiary, unless such
Termination of Employment is due to Cause, (v) one year
following the date of the Optionee’s Termination of
Employment with the Company or a Subsidiary due to the
Optionee’s death or Disability, (vi) as of the time of
the Optionee’s Termination of Employment by the Company
or a Subsidiary for Cause, or (vii) as of the time any
provision of Section 9 hereof applies. Upon the
expiration of the Option Period, this Option and all
unexercised rights granted to Optionee hereunder shall
terminate, and thereafter be null and void.
5.
Rights as
Shareholder . Until the stock certificates
reflecting the Option Shares accruing to the Optionee upon
exercise of the Option are issued to the Optionee, the
Optionee shall have no rights as a shareholder with respect to
such Option Shares. The Company shall make no
adjustment for any dividends or distributions or other
rights on or with respect to Option Shares for which the
record date is prior to the issuance of that stock
certificate, except as the Plan or this Award otherwise
provides.
6.
Restriction on
Transfer of Option . The Option evidenced
hereby is nontransferable other than by will or the laws of
descent and distribution, and, shall be exercisable during the
lifetime of the Optionee only by the Optionee (or in the event
of his Disability, by his legal representative) and after his
death, only by the legal representative of the
Optionee’s estate.
7.
Changes in
Capitalization; Merger; Reorganization .
(a) The
number of Option Shares and the Exercise Price shall be
proportionately adjusted for nonreciprocal transactions between the
Company and the holders of capital stock of the Company that causes
the per share value of the shares of Common Stock underlying the
Option to change, such as a stock dividend, stock split, spinoff,
rights offering, or recapitalization through a large, nonrecurring
cash dividend (each, an “Equity
Restructuring”).
(b) In
the event of a merger, consolidation, extraordinary dividend, sale
of substantially all of the Company’s assets or other
material change in the capital structure of the Company, or a
tender offer for shares of Common Stock, or a Change in Control,
that in each case is not an “Equity Restructuring,” the
Committee shall take such action to make such adjustments in the
Option or the terms of this Award as the Committee, in its sole
discretion, determines in good faith is necessary or appropriate,
including, without limitation, adjusting the number and class of
securities subject to the Option, with a corresponding adjustment
in the Exercise Price, substituting a new option to replace the
Option, accelerating the termination of the Option Period or
terminating the Option in consideration of a cash payment to the
Optionee in an amount equal to the excess of the then Fair Market
Value of the Option Shares over the aggregate Exercise Price of the
Option Shares. Any determination made by the Committee pursuant to
this Section 7(b) will be final and binding on the
Optionee. Any action taken by the Committee need not
treat all Optionees equally.
(c) The
existence of the Plan and this Award shall not affect in any way
the right or power of the Company to make or authorize any
adjustment, reclassification, reorganization or other change in its
capital or business structure, any merger or consolidation of the
Company, any issue of debt or equity securities having preferences
or priorities as to the Common Stock or the rights thereof, the
dissolution or liquidation of the Company, any sale or transfer of
all or any part of its business or assets, or any other corporate
act or proceeding.
8.
Special
Limitation on Exercise . Any exercise of the
Option is subject to the condition that if at any time the
Committee, in its discretion, shall determine that the
listing, registration or qualification of the shares covered
by the Option upon any securities exchange or under any state
or federal law is necessary or desirable as a condition of or
in connection with the delivery of shares thereunder, the
delivery of any or all shares pursuant to the Option may be
withheld unless and until such listing, registration or
qualification shall have been effected. The
Optionee shall deliver to the Company, prior to the exercise
of the Option, such information, representations and
warranties as the Company may reasonably request in order for
the Company to be able to satisfy itself that the Option
Shares being acquired are in accordance with the terms of an
applicable exemption from the securities registration
requirements of applicable federal and state securities
laws.
9.
Termination of
Option . In the event the Optionee breaches
any provision of an agreement with the Company or a
Subsidiary, which provision relates to a requirement that the
Optionee not disclose confidential information or trade
secrets or that the Optionee refrain from competing with the
Company or a Subsidiary or soliciting its employees or
customers, this Option shall be immediately
terminated. In addition, the Option shall be
immediately terminated if Optionee, during the term of
employment with the Company or a Subsidiary, or for a period
of one year thereafter, directly or indirectly:
(a) on
Optionee’s own behalf or on behalf of any other person or
entity, solicits, contacts, calls upon, communicates with, or
attempts to communicate with any person or entity who was a
customer of the Company, or a customer of any entity to whom the
Company sells products or provides services, at any time within two
(2) years preceding the applicable time, or any representative of
any such customer, with the intent or purpose of selling or
providing of any product or service competitive with any product or
service sold or under development by the Company during the period
of two (2) years preceding the applicable time and which is still
being offered by or is still under the development by the
Company;
(b) employs
or attempts to employ or assist anyone else in employing in any
business organization of whatever form engaged, either directly or
indirectly, in any business enterprise which is the same as, or
substantially the same as the Business of the Company, any person
who, at any time within two (2) years preceding the applicable
time, was, is or shall be an employee of the Company (whether or
not such employment is full-time or is pursuant to a written
contract with the Company); or
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