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EXHIBIT 99.1
FORM OF NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT is made and entered into as of __________, (the "Grant
Date") by and between SIMCALA Holdings, Inc. (the "Corporation"), a Georgia
corporation, and _____________ ("Optionee").
BACKGROUND
A. The Corporation has adopted the 1998 Stock Incentive Plan (the
"Plan"). Pursuant to the Plan, the Committee has authorized the grant to
Optionee of a non-qualified stock option to purchase shares of the common stock
of the Corporation. Capitalized terms used herein and not defined in context are
defined in Section 4.11 hereof or in the Plan.
B. The Corporation and Optionee wish to confirm herein the terms,
conditions, and restrictions of the option.
C. For and in consideration of the premises, the mutual covenants
contained herein, and other good and valuable consideration, the parties hereto
agree:
ARTICLE 1
GRANT AND EXERCISE OF OPTION
1.1 Grant of Option. Subject to the terms, restrictions, limitations,
and conditions stated herein, the Corporation hereby grants to Optionee a
non-qualified option (the "Option") to purchase all or any part of ____ shares
of Common Stock of the Corporation (the "Option Shares"). This Option is
intended to be a non-qualified stock option.
1.2 Exercise of Option.
(a) The Option may be exercised during the Option Period (as
defined in Section 1.4) only to the extent of the number of Option
Shares that are then vested ("Vested Shares") as determined pursuant to
the vesting schedule attached hereto as Schedule I.
(b) The Option may be exercised with respect to all or any
portion of the Vested Shares at any time during the Option Period by
the delivery to the Corporation, at its principal place of business, of
(i) a written notice of exercise, in substantially the form attached
hereto as Exhibit A (or as otherwise permitted by the Committee), which
shall be delivered to the Corporation no earlier than thirty (30) days
and no later than ten (10) days (or such lesser number of days as
permitted by the Committee) prior to the date upon which Optionee
desires to exercise all or any portion of the Option (the "Exercise
Date"); (ii) a certified
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check payable to the Corporation in the amount of the Exercise Price
multiplied by the number of Option Shares being purchased (the
"Purchase Price") or, at the discretion of the Committee, by delivery
of a number of shares of Stock having a Fair Market Value as of the
Exercise Date at least equal to the Purchase Price; and (iii) a
certified check payable to the Corporation in the amount of all
withholding tax obligations (whether federal, state or local), imposed
on the Corporation by reason of the exercise of the Option, or the
Withholding Election described in Section 1.2(c). Upon acceptance of
such notice, receipt of payment in full, and receipt of payment of all
withholding tax obligations, the Corporation shall cause a certificate
representing the shares of Stock purchased to be issued and delivered
to Optionee.
(c) In lieu of paying the withholding tax obligation in cash,
as described in Section 1.2(b)(iii), Optionee may elect to have the
actual number of shares issuable upon exercise of the Option reduced by
the smallest number of whole shares of Stock which, when multiplied by
the Fair Market Value per share of the Stock as of the Exercise Date,
is sufficient to satisfy the amount of the withholding tax obligations
imposed on the Corporation by reason of the exercise hereof (the
"Withholding Election"). The Withholding Election must be made by
executing and delivering to the Corporation a properly completed Notice
of Withholding Election, in substantially the form of Exhibit B
attached hereto (or as otherwise permitted by the Committee).
1.3 Exercise Price. The price for each share of Stock for which the
Option is exercised is US $________.
1.4 Term and Termination of Option. Except as otherwise provided
herein, the period in which the Option may be exercised as to any Vested Shares
(the "Option Period") shall commence on the date such shares become Vested
Shares and terminate at 5:00 p.m. Eastern Time on the date of the first to occur
of the following events:
(a) the 10th anniversary of the Grant Date;
(b) If the employment of Optionee by the Corporation
terminates for any reason other than as provided in paragraph (c) or
(d) below, the Option shall lapse, unless it is previously exercised,
one year after Optionee's Termination of Employment; provided, however,
that if Optionee's employment is terminated by the Corporation for
Cause or by Optionee without the consent of the Corporation, the Option
shall (to the extent not previously exercised) lapse immediately.
(c) If the employment of Optionee by the Corporation
terminates by reason of his Disability, the Option shall lapse, unless
it is previously exercised, within one year after Optionee's
Termination of Employment.
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(d) If Optionee dies while employed by the Corporation, or
during the one year period described in paragraph (b) or during the
one-year period described in paragraph (c) and before the Option
otherwise lapses, the Option shall lapse one year after Optionee's
death. Upon Optionee's death, any exercisable Options may be exercised
by Optionee's beneficiary.
Unless the exercisability of the Option is accelerated as provided in
Article 13 of the Plan, if Optionee exercises the Option after Termination of
Employment, the Option may be exercised only with respect to the shares that
were otherwise vested on Optionee's Termination of Employment. Upon the
expiration of any Option Period, this Option, and all unexercised rights granted
to Optionee hereunder shall terminate as to all Vested Shares to which such
Option Period relates, and thereafter be null and void.
1.5 Rights as Stockholder. Optionee, or, if applicable, the Transferee
(as defined in Section 4.11), shall have no rights as a stockholder with respect
to any Option Shares until Optionee has exercised this Option as to such Option
Shares and has tendered to the Corporation the Purchase Price due in respect of
such exercise. No adjustment to the number of Option Shares covered by this
Option or the Exercise Price shall be made for dividends paid or declared on or
with respect to Stock in cash, securities or other property, for which the
record date is prior to the date of exercise hereof.
1.6 Changes in Capitalization. The Committee may proportionately adjust
the number of Option Shares and the Exercise Price for any increase or decrease
in the number of issued shares of Stock (without any change in the aggregate
price to be paid upon exercise of all of the Option Shares) resulting from an
event described in Article 14 of the Plan. Any adjustment pursuant to this
Section 1.6 may provide, in the Committee's discretion, for the elimination of
any fractional shares that might otherwise become subject to the Option without
payment therefor.
1.7 Accelerated Vesting.
(a) Change in Control. If a Change in Control occurs, the
Option shall become fully exercisable.
(b) Other Events. As provided in Section 13.9 and Section
13.10 of the Plan, the Committee may accelerate the vesting of the
Option in other events.
(c) Effect of Acceleration. If the vesting of the Option
accelerates due to a Change in Control or is accelerated by the
Committee pursuant to Section 13.9 of the Plan (i.e., events that could
lead to a Change in Control), the Committee shall determine (i) whether
the fully exercisable Option will expire after a designated period of
time to the extent not then exercised, (ii) whether the difference
between the Exercise Price and the Fair Market Value of the Option
Shares as of a date designated by the Committee will be settled in
cash, (iii) whether the Option will be assumed by another party to the
transaction giving
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rise to the acceleration or otherwise be equitably converted in
connection with such transaction, or (iv) any combination of the
foregoing.
1.8 Rights of Optionee Subject to Plan. This Option is granted pursuant
to the Plan and is, in all respects, subject to the terms and provisions of the
Plan, a copy of which is available at the offices of the Corporation. In the
event of any conflict between any part or provision of this Agreement and any
part or provision of the Plan, the part or provision of the Plan shall control.
1.9 Shareholders Agreement. Upon exercise of this Option pursuant to
Section 1.2, Optionee shall enter into and be bound by that certain Shareholders
Agreement, dated _____________, 1998, among SIMCALA, Inc., and its shareholders,
or any other stockholder, voting, or similar agreement if all other employee
shareholders of the Corporation have either executed or been asked to execute
such an agreement.
ARTICLE 2
RESTRICTION ON TRANSFER OF OPTION
2.1 Restrictions on Transfer of Option. The Option evidenced hereby is
nontransferable other than by will or the laws of descent and distribution.
ARTICLE 3
LEGENDS
3.1 Legends. Each certificate representing the Option Shares purchased
upon exercise of this Option shall be endorsed with the following legend and
Optionee shall not make any transfer of the Option Shares without first
complying with the restrictions on transfer described in such legend:
TRANSFER IS RESTRICTED
THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON
TRANSFER SET FORTH IN A NON-QUALIFIED STOCK OPTION AGREEMENT DATED
______________, 1998, A COPY OF WHICH IS AVAILABLE FROM THE CORPORATION.
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED,
OR HYPOTHECATED UNLESS (1) THERE IS AN EFFECTIVE REGISTRATION UNDER SUCH ACT
COVERING SUCH SECURITIES, (2) THE TRANSFER IS MADE IN COMPLIANCE WITH RULE 144
PROMULGATED UNDER SUCH ACT, OR (3) THE ISSUER RECEIVES AN OPINION OF COUNSEL,
REASONABLY SATISFACTORY TO THE CORPORATION, STATING THAT SUCH SALE, TRANSFER,
ASSIGNMENT OR
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HYPOTHECATION IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT.
Optionee agrees that the Corporation may also endorse any other legends
required by applicable federal or state securities laws.
The Corporation shall not be required (a) to transfer on its books any
Option Shares that have been sold or transferred in violation of the provisions
of this Agreement (including the foregoing legends), or (b) to treat the owner
of the Option Shares, or otherwise to accord voting or dividend rights to, any
transferee to whom the Option Shares have been transferred in contravention of
this Agreement (or such legends).
3.2 Removal of Legend and Transfer Restrictions.
(a) Any legend endorsed on a certificate pursuant to Section
3.1 hereof and the stop transfer instructions with respect to the
Option Shares shall be removed and the Corporation shall issue a
certificate without such legend to the holder thereof if such Option
Shares are registered under the Securities Act of 1933 and a prospectus
meeting the requirements of Section 10 of the Securities Act of 1933 is
available.
(b) The restrictions described in the second sentence of the
legend set forth in Section 3.1 hereof may be removed at such time as
permitted by Rule 144 promulgated under the Securities Act of 1933.
ARTICLE 4
GENERAL PROVISIONS
4.1 Governing Laws. This Agreement shall be construed, administered and
enforced according to the laws of the State of Georgia; provided, however, this
Option may not be exercised except, in the reasonable judgment of the Committee,
in compliance with exemptions under applicable state securities laws of the
state in which Optionee resides, and/or any other applicable securities laws.
4.2 Successors. This Agreement shall be binding upon and inure to the
benefit of the heirs, legal representatives, successors, and permitted assigns
of the parties.
4.3 Notice. Except as otherwise specified herein, all notices and other
communications under this Agreement shall be in writing and shall be deemed to
have been given if personally delivered, if mailed by overnight delivery or if
sent by registered or certified United States mail, return receipt requested,
postage prepaid, addressed to the proposed recipient at the last known address
of the recipient. In each case, each notice or other communication shall be
deemed to have been received on the earlier of the date of actual receipt or the
date that is three (3) days after the date on which such notice or other
communication was mailed or sent. Any party may designate any other address to
which
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notices shall be sent by giving notice of the address to the other parties in
the same manner as provided herein.
4.4 Severability. In the event that any one or more of the provisions
or portion thereof contained in this Agreement shall for any reason be held to
be invalid, illegal, or unenforceable in any respect, the same shall not
invalidate or otherwise affect any other provisions of this Agreement, and this
Agreement shall be construed as if the invalid, illegal or unenforceable
provision or portion thereof had never been contained herein.
4.5 Entire Agreement. Except as set forth in Section 1.9, this
Agreement expresses the entire understanding and agreement of the parties with
respect to the subject matter hereof. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same instrument.
4.6 Violation. Except as provided herein, any transfer, pledge, sale,
assignment, or hypothecation of the Option or any portion thereof or of any
Option Shares issued upon exercise hereof shall be a violation of the terms of
this Agreement and shall be void and without effect.
4.7 Headings. Paragraph headings used herein are for convenience of
reference only and shall not be considered in construing this Agreement.
4.8 Specific Performance. In the event of any actual or threatened
default in, or breach of, any of the terms, conditions and provisions of this
Agreement, the party or parties who are thereby aggrieved shall have the right
to specific performance and injunction in addition to any and all other rights
and remedies at law or in equity, and all such rights and remedies shall be
cumulative.
4.9 No Employment Rights Created. The grant of the Option hereunder
shall not be construed as giving Optionee the right to continued employment with
the Corporation.
4.10 Special Limitation on Exercise. Notwithstanding anything contained
herein to the contrary, no purported exercise of the Option shall be effective
without the written approval of the Corporation, which approval may be withheld
if the exercise of this Option, together with the exercise of other previously
exercised stock options and/or offers and sales pursuant to any prior or
contemplated offering of securities, would, in the sole and absolute judgment of
the Corporation, require the filing of a registration statement with the United
States Securities and Exchange Commission, or with the securities commission of
any state. The Corporation shall avail itself of any exemptions from
registration contained in applicable federal and state securities laws which are
reasonably available to the Corporation on terms which, in its sole and absolute
discretion, it deems reasonable and not unduly burdensome or costly. If the
Option cannot be exercised at the time it would otherwise expire due to the
restrictions contained in this
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Section 4.10, the Exercise Period may, upon request of Optionee, be extended for
successive one-year periods until it can be exercised in accordance with this
Section 4.10. Any attempt by Optionee to exercise the Option that is not
effective due to the restrictions contained in this Section 4.10 shall be deemed
to be a request for a one-year extension period under the preceding sentence.
Optionee shall deliver to the Corporation, prior to the exercise of the Option,
such information representations, and warranties as the Corporation may
reasonably request in order for the Corporation to be able to satisfy itself
that the Option Shares to be acquired pursuant to the exercise of the Option is
being acquired in accordance with the terms of an applicable exemption from the
securities registration requirements of applicable federal and state securities
laws.
4.11 Certain Definitions. The capitalized terms listed below are used
herein with the meaning thereafter ascribed:
(a) "Cause" shall have the meaning assigned such term in any
employment agreement that exists between the Corporation and the
Optionee provided, however, if no definition exists, it shall mean as
follows: (i) conduct amounting to fraud or dishonesty against the
Corporation or any subsidiary or affiliate of the Corporation; (ii)
Optionee's intentional misconduct or repeated refusal to follow the
reasonable directions of the Board of Directors of the Corporation,
provided an officer of the Corporation, upon the direction of the Board
of Directors, notifies Optionee of the acts deemed to constitute such
intentional misconduct or repeated refusal in writing and Optionee
fails to correct such acts (or begins such action as may be necessary
to correct such acts and thereafter diligently pursues the completion
thereof) within five (5) business days after written notice has been
given; (iii) repeated absences from work without a reasonable excuse,
(iv) repeated intoxication with alcohol or drugs while on Corporation
business during regular business hours; (v) a conviction or plea of
guilty or nolo contendere to a felony (other than one arising from the
operation of a motor vehicle or resulting from actions taken (or not
taken) by Optionee in good faith in his capacity as an employee or
officer of the Corporation; or (vi) a breach or violation by the
Optionee of any material terms of this Agreement or any other agreement
to which Optionee and the Corporation are a party.
(b) "Disability" shall have the meaning assigned such term in
any employment agreement that exists between the Corporation and the
Optionee provided, however, if no definition exists, it shall mean as
follows: (i) the inability of Optionee to perform the duties of
Optionee's employment due to physical or emotional incapacity or
illness, where such inability is expected to be of long-continued and
indefinite duration, or (ii) Optionee shall be entitled to (x)
disability retirement benefits under the federal Social Security Act or
(y) recover benefits under any long-term disability plan or policy
maintained by the Corporation. In the event of a dispute, the
determination of Disability shall be made reasonably by the Board of
Directors of the Corporation and shall be supported by advice of a
physician competent in the area to which such Disability relates.
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(c) "Fair Market Value" shall mean the value of the share of
Stock of the Corporation determined as follows:
(i) If the Stock is, at the time of the determination of Fair Market
Value, listed or traded on any national securities exchange or quoted
on a national securities or central market system, the Fair Market
Value of a share of Stock shall be the average of the daily closing
prices for the thirty (30) consecutive trading days before such date of
determination, excluding any trades which are not bona fide arms-length
transactions. The closing price for each day shall be (A) if such
securities are listed are admitted for trading on any national
securities exchange, the last sale price for such security, regular
way, or the mean of the closing bid and asked prices therefor if no
such sale occurred, in each case as officially reported on the
principal securities exchange on which such Stock is listed; or (B) if
quoted on a national securities exchange or market system, the mean
between the closing high bid and low asked quotations for such Stock
for each day during such thirty (30) day period.
(ii) If, at time of such determination, the Stock of the Corporation is
not listed or quoted on any national securities exchange or market
system, the Fair Market Value of a share of Stock shall be determined
in good faith by the Directors of the Corporation.
(d) "Termination of Employment" means the termination of the
employee-employer relationship between Optionee and the Corporation
(and its Parents and Subsidiaries), regardless of the fact that
severance or similar payments are made to Optionee, for any reason,
including, but not by way of limitation, a termination by resignation,
discharge, death, Disability, or retirement. The Committee shall, in
its absolute discretion, determine the effect of all matters and
questions relating to Termination of Employment.
Other capitalized terms used herein without definition shall have the
meanings assigned to such terms in the Plan.
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IN WITNESS WHEREOF, the parties have executed and sealed this Agreement
on the day and year first set forth above.
SIMCALA HOLDINGS, INC.
By:
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Name:
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Title:
---------------------------------
OPTIONEE:
(SEAL)
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EXHIBIT A
TO
SIMCALA HOLDINGS, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
Notice of Exercise
Name
---------------------------------
Address
-----------------------------
---------------------------------
Date
---------------------------------
SIMCALA Holdings, Inc.
-------------------------
-------------------------
Re: Exercise of Stock Option
Gentlemen:
I hereby give notice of my election to exercise options granted to me
to purchase ________ shares of no par value Common Stock (the "Stock") of
SIMCALA Holdings, Inc. (the "Corporation") under SIMCALA Holdings, Inc.
Non-Qualified Stock Option Agreement dated ___________ (the "Agreement"). The
purchase shall take place as of ___________ (the "Exercise Date").
On or before the Exercise Date, I will present you with a certified
check (or bank cashier's check) for $__________ for the full purchase price
payable to the order of __________________________.
I hereby represent, warrant, covenant, and agree with the Corporation
as follows:
The shares of the Stock being acquired by me will be acquired
for my own account without the participation of any other person, with
the intent of holding the Stock for investment and without the intent
of participating, directly or indirectly, in a distribution of the
Stock and not with a view to, or for resale in connection with, any
distribution of the Stock, nor am I aware of the existence of any
distribution of the Stock;
I am not acquiring the Stock based upon any representation,
oral or written, by any person with respect to the future value of, or
income from, the Stock but rather upon an independent examination and
judgment as to the prospects of the Corporation;
Exhibit A to Non-Qualified Stock Option Agreement - Page 1
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The Stock was not offered to me by means of publicly
disseminated advertisements or sales literature, nor am I aware of any
offers made to other persons by such means;
I am able to bear the economic risks of the investment in the
Stock including the risk of a complete loss of my investment therein;
I understand and agree that the Stock will be issued and sold
to me without registration under any state law relating to the
registration of securities for sale, and will be issued and sold in
reliance on the exemptions from registration under the Securities Act
of 1933 (the "1933 Act"), provided by Sections 3(b) and/or 4(2) thereof
and the rules and regulations promulgated thereunder;
The Stock cannot be offered for sale, sold or transferred by
me other than pursuant to: (A) an effective registration under the 1933
Act or in a transaction, otherwise in compliance with the 1933 Act; and
(B) evidence satisfactory to the Corporation of compliance with the
applicable securities laws of other jurisdictions. The Corporation
shall be entitled to rely upon an opinion of counsel satisfactory to it
with respect to compliance with the above laws;
The Corporation will be under no obligation to register the
Stock or comply with any exemption available for sale of the Stock
without registration or filing, and the information or conditions
necessary to permit routine sale of securities of the Corporation under
Rule 144 of the 1933 Act are not now available and no assurance has
been given that it or they will become available. The Corporation is
under no obligation to act in any manner so as to make Rule 144
available with respect to the Stock;
I have and have had complete access to and the opportunity to
review and make copies of all material documents related to the
business of the Corporation, including, but not limited to, contracts,
financial statements, tax returns, leases, deeds and other books and
records. I have examined such of these documents as I wished and am
familiar with the business and affairs of the Corporation. I realize
that purchase of the Stock is a speculative investment and that any
possible profit therefrom is uncertain;
Exhibit A to Non-Qualified Stock Option Agreement - Page 2
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I have had the opportunity to ask questions of and receive
answers from the Corporation and any person acting on its behalf and to
obtain all material informal reasonably available with respect to the
Corporation and its affairs. I have received all information and data
with respect to the Corporation which I have requested and which I have
deemed relevant in connection with the evaluation of the merits and
risks of investment in the Corporation;
I have such knowledge and experience in financial and business
matters that I am capable of evaluating the merits and risks of the
purchase of the Stock hereunder and I am able to bear the economic risk
of such purchase; and
The agreements, representations, warranties, and covenants
made by me herein extend to and apply to all of the Stock of the
Corporation issued to me pursuant to this Option. Acceptance by me of
the certificate representing such Stock shall constitute a confirmation
by me that all such agreements, representations, warranties, and
covenants made herein shall be true and correct at that time.
I understand that the certificates representing the shares being
purchased by me in accordance with this notice shall bear a legend referring to
the foregoing covenants, representations and warranties and restrictions on
transfer, and I agree that a legend to that effect may be placed on any
certificate which may be issued to me as a substitute for the certificates being
acquired by me in accordance with this notice.
Very truly yours,
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AGREED TO AND ACCEPTED:
SIMCALA HOLDINGS, INC.
By:
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Title:
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Number of Shares
Exercised:
------------------------
Number of Shares
Remaining: Date:
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Exhibit A to Non-Qualified Stock Option Agreement - Page 3
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EXHIBIT B
TO
SIMCALA HOLDINGS, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
Notice of Withholding Election
TO: SIMCALA HOLDINGS, INC.
FROM: Name
--------------------
RE: Withholding Election
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This election relates to the Option identified in Paragraph 3 below. I
hereby certify that:
(1) My correct name and social security number and my current
address are set forth at the end of this document.
(2) I am (check one, whichever is applicable).
[ ] the original recipient of the Option.
[ ] the legal representative of the estate of the original
recipient of the Option.
[ ] a legatee of the original recipient of the Option.
[ ] the legal guardian of the original recipient of the
Option.
(3) The Option pursuant to which this election is made is dated
and was issued in the name of ___________ for ___________
shares of SIMCALA Holdings, Inc. (the "Corporation") no par
value Common Stock (the "Stock"). This election relates to
_____________ shares of the Stock issuable upon whole or
partial exercise(s) of the Option (the "Option Shares").
(4) In connection with any exercise of the Option with respect to
the Option Shares, I hereby elect to have certain of the
shares issuable pursuant to the exercise withheld by the
Corporation for the purpose of having the value of the shares
applied to pay federal, state, and local, if any, taxes
arising from exercise. The shares to be withheld shall have,
as of the date on which the amount of the tax required to be
withheld is determined, a fair market value
Exhibit B to Non-Qualified Stock Option Agreement - Page 1
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equal to the minimum statutory tax withholding requirement
under federal, state, and local law in connection with the
exercise.
(5) I understand that this Withholding Election is subject to the
disapproval of the Board of Directors.
(6) I further understand that, if this Withholding Election is not
disapproved by the Board of Directors, the Corporation shall
withhold from the Option Shares a number of shares of the
Stock having the value specified in Paragraph 4 above.
Dated:
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Legal Signature
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Social Security Number Name (Printed)
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Street Address
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City, State, Zip Code
Exhibit B to Non-Qualified Stock Option Agreement - Page 2
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SCHEDULE I
TO
SIMCALA HOLDINGS, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
Vesting Schedule
The Option Shares shall vest as follows:
Anniversary of % of Option
Grant Date Shares Vested
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1 20%
2 40%
3 60%
4 80%
5 100%
Construction.
Unless the vesting shall be accelerated, the right of Optionee to vest
in Option Shares shall cease upon the termination of Optionee's employment by
the Company, and thereafter, no further shares shall become Vested Shares.
