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.
A. Grant Date: February 13,
2007
B. Type of Option: Incentive Stock
Option.
C. Plan (under which Option is granted):
Theragenics Corporation 2006 Stock Incentive Plan.
D. Option Shares: All or any part of
NUMBER shares of the Company’s $.01 par
value common stock (the “Common Stock”).
E. Exercise Price: $5.00 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.
F. Option Period: Subject to the attached terms
and conditions, the Option may be exercised during the Option
Period which 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.
G. Vesting Schedule: The Option shall become
vested in accordance with the following vesting
schedule:
|
Years of
Service
After Grant
Date
|
|
Number of
Option
Shares
Vested
|
|
Percentage of
Option
Shares
Vested
|
|
|
|
|
|
|
|
1
|
|
X shares
|
|
25%
|
|
2
|
|
X shares
|
|
50%
|
|
3
|
|
X shares
|
|
75%
|
|
4
|
|
X shares
|
|
100%
|
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.
By: ______________________________
Title: ______________________________
_____________________________________
TERMS AND
CONDITIONS
TO THE
THERAGENICS CORPORATION 2006
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 $5.00, 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
(c) provides services to 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.
10. Legend on Stock Certificates
. Certificates evidencing the Option
Shares, t