STOCK OPTION
AGREEMENT dated as of April 19, 2007, between ACG HOLDINGS,
INC., a Delaware corporation (the “ Company ”),
and the other party signatory hereto (the “
Participant ”).
WHEREAS, the
Participant is currently an officer or key employee of the Company
or one of its Subsidiaries and, pursuant to the Company’s
Common Stock Option Plan (the “ Plan ”), and
upon the terms and subject to the conditions hereinafter set forth,
the Company desires to provide the Participant with an incentive to
remain in its employ or the employ of one of its Subsidiaries and
to increase his interest in the success of the Company by granting
to the Participant nonqualified stock options (the “
Options ”) to purchase shares of Common Stock, par
value $0.01 per share, of the Company (the “ Common
Stock ”);
NOW, THEREFORE, in
consideration of the covenants and agreements herein contained, the
parties hereto agree as follows:
SECTION 1.
Definitions; Incorporation of Plan Terms . Capitalized terms
used herein without definition shall have the meanings assigned to
them in the Plan, a copy of which has been made available to the
Participant by the Company. This Agreement, the Options and the
shares of Common Stock issued pursuant to the exercise of Options
(the “ Option Shares ”) shall be subject to the
Plan, the terms of which are hereby incorporated herein by
reference, and in the event of any conflict or inconsistency
between the Plan and the Agreement, the Plan shall govern. The
Participant acknowledges that he has received and reviewed a copy
of the Plan. The Date of Grant with respect to the Options shall be
the date specified at the foot of the signature page
hereof.
SECTION 2.
Stockholders’ Agreement; Certain Restrictions . In
accordance with Section 7 of the Plan, the Participant and the
Company hereby confirm that, effective as of the date hereof, the
Participant shall, for purposes of the Stockholders’
Agreement, be deemed to be a “Stockholder” with respect
to the Options and the Option Shares and the Participant agrees to
be bound by all the terms of the Stockholders’ Agreement
applicable to such a Stockholder. None of the Option Shares may be
sold, transferred, assigned, pledged, or otherwise encumbered or
disposed of to any third party other than the Company except as
provided in the Stockholders’ Agreement. None of the Options
may be sold, transferred, assigned, pledged, or otherwise
encumbered or disposed of, except by will or the laws of descent
and distribution. During the Participant’s lifetime, an
Option shall be exercisable only by the Participant. Each Permitted
Transferee (other than the Company) of any Option or Option Share
shall, as a condition to the transfer thereof, execute an agreement
pursuant to which it shall become a party to the
Stockholders’ Agreement and the Agreement.
SECTION 3.
Grant of Options . Subject to the terms and conditions
contained herein and in the Plan, the Company hereby grants to the
Participant, effective as of the Date of Grant, the number of
Options specified at the foot of the signature page hereof. Each
such Option shall entitle the Participant to purchase, upon payment
of the Option Price specified at the foot of the signature page
hereof, one share of Common Stock. The Options shall be exercisable
as hereinafter provided.
SECTION 4.
Terms and Conditions of Options . The Options evidenced
hereby are subject to the following terms and
conditions:
(a)
Vesting . All the Participant’s Options granted
hereunder shall be fully vested and exercisable as of the Date of
Grant.
(b)
Option Period . The Options shall not be exercisable
following March 15, 2008, and shall be subject to earlier
termination as provided herein and in the Plan. Upon termination of
the Participant’s employment with the Company or any of its
Subsidiaries for any reason, the Participant (or, in the case of
the Participant’s death, his Beneficiary) may exercise any
Vested Option in accordance with, and subject to the terms and
conditions of, Section 8(a)(iv) of the Plan.
(c)
Notice of Exercise . Subject to Sections 4(d), 4(g) and
6(b), the Participant may exercise any or all of the Options (to
the extent not forfeited) by giving written notice to the
Committee. The date of exercise of an Option shall be the later of
(i) the date on which the Committee receives such written
notice or (ii) the date on which the conditions provided in
Sections 4(d), 4(g) and 6(b) are satisfied.
(d)
Payment . Prior to the issuance of a Legended Certificate
pursuant to Section 4(h) evidencing Option Shares, the Participant
shall have paid to the Company the Option Price of all Option
Shares purchased pursuant to exercise of such Options in cash or,
with the consent of the Board of Directors (which consent shall be
granted in the sole discretion of the Board of Directors), in
shares of Common Stock already owned by the Participant (valued at
their Applicable Value) or any combination of cash and such
shares.
(e)
Stockholder Rights . The Participant shall have no rights as
a stockholder with respect to any Option Shares until a certificate
or certificates evidencing such shares shall have been issued to
the Participant, and, except as provided in Section 11 of the
Plan, no adjustment shall be made for dividends or distributions or
other rights in respect of any share for which the record date is
prior to the date upon which the Participant shall become the
holder of record thereof.
(f)
Dividends and Distributions . Any shares of Common Stock or
other securities of the Company received by the Participant as a
result of a stock distribution to holders of Option Shares or as a
stock dividend on Option Shares shall be subject to the same
restrictions as such Option Shares, and all reference to Option
Shares hereunder shall be deemed to include such shares of Common
Stock or other securities.
(g)
Limitation on Exercise . The Options shall not be
exercisable unless the offer and sale of the shares of Common Stock
subject thereto have been registered under the 1933 Act and
qualified under applicable state “blue sky” laws, or
the Company has determined that an exemption from registration
under the 1933 Act and from qualification under such state
“blue sky” laws is available. The Company may require,
as a condition to the exercise of an Option, that the Participant
make certain representations and warranties as to the
Participant’s investment intent with respect to the Option
Shares.
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(h)
Issuance of Certificates . As soon as practicable following
the exercise of any Options, a Legended Certificate evidencing the
number of shares of Common Stock issued in connection with such
exercise shall be issued in the name of the Participant.
(i)
Determination of Fair Market Value . If, in connection with
the exercise by the Company of its Call Right under Section 9
of the Plan, the Participant reasonably believes that the Board of
Directors’ determination of Fair Market Value (if applicable)
is not reasonable, then the Participant may challenge the Board of
Directors’ determination of such Fair Market Value by giving
written notice to the Board of Directors no later than 10 business
days after receipt of notice of the purchase price which the
Company intends to pay upon exercise of its Call Right. In such
event, the Company shall engage at its own expense an appraisal or
investment banking firm that is independent of the Company and its
Affiliates to determine the Fair Market Value of the Common Stock
for purposes of determining the purchase price to be paid by the
Company; provided , however , that if such a
determination has been made by such an appraisal or investment
banking firm less than one year prior to the date as of which the
Fair Market Value of the Common Stock is to be determined, the
Company shall not be required to engage any such firm and may, in
its discretion, instead rely upon such earlier valuation. Any such
appraisal or investment banking firm engaged by the Company shall
be selected by the Board of Directors and shall be reasonably
satisfactory to the Participant. The purchase price determined by
such independent appraisal or investment banking firm shall be
conclusive and binding on the parties. Anything in Section 10(a) of
the Pl
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