Exhibit 10.9
XXXXXXX DENVER, INC.
NONSTATUTORY STOCK OPTION AGREEMENT
This Agreement is made between Xxxxxxx Denver, Inc., a Delaware corporation,
having its principal executive office in Quincy, Illinois (the "Company"),
and the undersigned, an employee of the Company or a subsidiary of the
Company (the "Employee").
The parties have agreed as follows:
1. Pursuant to the Xxxxxxx Denver, Inc. Long-Term Incentive Plan, as
amended, (the "Plan"), the Company grants to the Employee a
nonstatutory option to purchase the number of shares of the Company's
common stock, par value $0.01 per share (the "Shares"), specified
above, at the price specified above, subject to the following
conditions:
(a) Subject to Sections 2 and 3, the option rights shall be exercisable
only if and after the Employee shall have remained in the employ of
the Company for one year from the date of grant of this option (the
"Grant Date"), at which time such rights shall become exercisable
to the extent of 33 1/3% of the aggregate number of Shares
specified above, which percentage shall increase to 66 2/3% of such
number after two years from the Grant Date and 100% of such number
after three years from the Grant Date.
(b) Subject to Sections 2, 3 and 7, the option rights shall be
exercisable only by the Employee and only if the Employee has
remained continuously in the employ of the Company from the Grant
Date.
(c) The option rights shall expire at the Expiration Date specified
above, or at such earlier time as may be provided by Section 2, 3
or 13, or by cash payments made in complete or partial cancellation
pursuant to Section 8, and such option rights shall not be
exercisable after such expiration.
2. Option rights shall terminate if the Employee shall cease to be
employed by the Company, as follows:
(a) If such cessation of employment is occasioned by any reason other
than retirement, disability or death, the option rights shall
terminate immediately;
(b) If such cessation of employment is occasioned by retirement in
accordance with any retirement plan of the Company then in effect,
then the Employee at any time within five years following such
retirement (but not after the Expiration Date) may exercise the
option rights to the extent of 100% of the Shares covered by this
option (notwithstanding the extent to which the Employee otherwise
was entitled to exercise the same immediately prior to such
retirement); and
(c) If such cessation of employment is occasioned by the Employee's
disability, then the Employee at any time within five years
following such cessation of employment (but not after the
Expiration Date) may exercise the option rights to the extent of
100% of the Shares covered by this option (notwithstanding the
extent to which the Employee otherwise was entitled to exercise the
same immediately prior to such cessation of employment).
3. If the Employee shall die while in the employ of the Company or
shall die within the five-year period during which the option rights
may be exercised following retirement or disability, then within the
year next succeeding the Employee's death (but not after the Expiration
Date), the person entitled by will or the applicable laws of descent
and distribution may exercise the option rights to the extent of 100%
of the Shares covered by this option (notwithstanding the extent to
which the Employee otherwise was entitled to exercise the same
immediately prior to death).
4. This option may be exercised by delivering to the Company at its
principal executive office (directed to the attention of the Corporate
Secretary, or if the Corporate Secretary is the employee concerned,
then to the attention of the President or a Vice President) a written
notice, signed by the Employee or a person entitled to exercise the
option, as the case may be, of the election to exercise the option and
stating the number of Shares in respect of which it is then being
exercised. The option shall be deemed exercised as of the date the
Company receives such notice. As an essential part of such notice, it
shall be accompanied by (a) payment of the full purchase price of the
Shares then being purchased and (b) satisfaction, or agreement with the
Company as to the manner of satisfaction, of any taxes required by law
to be withheld due to the exercise of the option, including an exercise
by a transferee to whom the Employee has transferred the option in
accordance with Section 7. In the event the option shall be exercised
by any person other than the Employee, such notice shall be accompanied
by appropriate evidence of the right of such person to exercise the
option. Payment of the full purchase price may be made in (a) cash, (b)
Shares, or (c) any combination of cash and Shares, provided that any
Shares used by the Employee in payment of the purchase price must have
been held by the Employee for a period of more than six months, and
provided further that the Company reserves the right to prohibit the
use of Shares as payment of the purchase price. Shares used in payment
of the purchase price shall be valued at the average of the high and
low trading prices of such Shares on the composite tape of the New York
Stock Exchange or as reported in the consolidated transaction reporting
system for the date of exercise. Upon the proper exercise of the
option, the Company shall issue in the name of the person exercising
the option, and deliver to such person, a certificate or certificates
for the Shares purchased, or shall otherwise properly evidence the
purchase of such Shares
in the Company's stock records. The Employee shall have no rights as a
stockholder in respect of any Shares as to which the option shall not
have been effectively exercised as provided in this Agreement.
5. This option shall not be exercisable if such exercise would violate
(a) any applicable requirement under the Securities Act of 1933, as
amended (the "Act"), the Securities Exchange Act of 1934, as amended,
or the listing requirements of any stock exchange; (b) any applicable
state securities law; or (c) any other applicable legal requirement.
Furthermore, if a registration statement with respect to the Shares to
be issued upon the exercise of this option is not in effect or if
counsel for the Company deems it necessary or desirable in order to
avoid possible violation of the Act, the Company may require, as a
condition to its issuance of the Shares, the delivery to the Company of
a commitment in writing by the person exercising the option that at the
time of such exercise it is the person's intention to acquire such
Shares for the person's own account for investment only and not with a
view to, or for resale in connection with, the distribution of such
Shares, that such person understands that the Shares may be "restricted
securities" as defined in Rule 144 issued under the Act, and that any
resale, transfer or other disposition of the Shares will be
accomplished only in compliance with Rule 144, the Act, or other or
subsequent applicable rules and regulations under the Act. The Company
may place on the certificates evidencing such Shares an appropriate
legend reflecting such commitment and the Company may refuse to permit
transfer of such Shares until it has been furnished evidence
satisfactory to it that no violation of the Act or the applicable rules
and regulations would be involved in such transfer.
6. The Employee acknowledges that this option has been granted in
anticipation of future services being rendered by the Employee to the
Company. In consideration of the granting of this option by the
Company, the Employee agrees to remain in the employ of the Company for
a period of not less than one year from the Grant Date unless during
that period the Employee's employment ceases on account of disability,
retirement in accordance with a retirement plan of the Company, or with
the consent of the Company. Nothing contained in this Agreement shall
limit or restrict any right the Company would otherwise have to
terminate the employment of the Employee.
7. This option shall be assignable and transferable by will or by the
laws of descent and distribution. In addition, the Employee shall have
the right, subject to the provisions of this Section 7, to transfer all
or any portion of the option granted under this Agreement, for estate
planning purposes, to (a) the Employee's spouse, children,
grandchildren, parents, siblings, stepchildren, stepgrandchildren or
in-laws ("Family Members"), (b) entities that are exclusively
family-related, including trusts for the exclusive benefit of Family
Members and limited partnerships or limited liability companies in
which Family Members are the only partners or members, or (c) such
other persons or entities specifically approved by the committee of the
Board of Directors that administers the Plan (the "Committee"). Any
option or portion of an option transferred by the Employee in
accordance with this Section 7 shall remain subject to the same terms
and conditions as were applicable immediately prior to the transfer,
including those provisions regarding exercisability of the option
following the cessation of employment of the Employee by the Company
and the death of the Employee, except that no transferee may further
transfer an option or portion of an option transferred by the Employee
in accordance with this Section 7, other than by will or the laws of
descent and distribution. In order to effect a transfer in accordance
with this Section 7, the Employee shall deliver to the Company (in the
manner set forth in Section 4) a Notice of Transfer of Option
substantially in the form attached to this Agreement.
8. If (i) the Company is to be merged into or consolidated with one or
more corporations and the Company is not to be the surviving
corporation, (ii) the Company is to be dissolved and liquidated, (iii)
substantially all the assets and business of the Company are to be
sold, or (iv) there occurs a "change of control" of the Company, then
the Committee may, in its sole discretion, with respect to any or all
options then outstanding under this Agreement, both (a) on or at any
time prior to the effective date of such merger, consolidation,
dissolution and liquidation, or sale, and upon or at any time after a
change of control, cause the option or any portion of the option to
become exercisable in full immediately regardless of any provisions in
this Agreement concerning exercisability and (b) at any time during the
20-day period ending on the effective date of such merger,
consolidation, dissolution or sale or during the 20-day period
beginning on the date of a change of control or, if later, the date the
Company has notice of a change of control, cancel any option in whole
or in part by payment in cash to the Employee of an amount equal to the
excess, but only if the amount is positive, of the fair market value of
the Company's Shares on the date of the cancellation over the option
price per Share times the number of Shares covered by the option or
portion of the option so canceled. For purposes of this Agreement, a
"change of control" of the Company shall be as defined in Section 2 of
the Plan.
9. For purposes of this Agreement, employment by a parent or subsidiary
of or a successor to the Company shall be considered to be employment
by the Company.
10. The Committee shall have authority, subject to the express
provisions of the Plan, to construe this Agreement and the Plan, to
establish, amend and rescind rules and regulations relating to the
Plan, and to make all other determinations in the judgment of the
Committee necessary or desirable for the administration of the Plan.
The Committee may correct any defect or supply any omission or
reconcile any inconsistency in the Plan or in this Agreement in the
manner and to the extent it shall deem expedient to carry the Plan into
effect. All action by the Committee under the provisions of this
paragraph shall be conclusive for all purposes.
11. The Employee agrees to notify the Company promptly of the
disposition, whether by sale, exchange or otherwise, of any Shares
acquired pursuant to the exercise of this option if such disposition
occurs within one year from the acquisition of the Shares. Such notice
shall state the date and manner of disposition and the proceeds, if
any, received by the Employee.
12. This Agreement and the option granted under this Agreement shall be
subject to all of the provisions of the Plan as are in effect from time
to time, which provisions of the Plan shall govern if there is any
inconsistency between this Agreement and the Plan.
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13. If the Employee, as individual or as a partner, employee, agent,
advisor, consultant or in any other capacity of or to any person, firm,
corporation or other entity, directly or indirectly, carries on any
business, or becomes involved in any business activity, competitive
with the Company or any subsidiary, the Committee in its sole
discretion, may require the Employee to forfeit immediately, without
consideration from the Company, any portion of the option (including
the right to purchase the underlying shares of Common Stock relating to
such portion) which was not exercised prior to the event in violation
of this Section 13. In such event, such portion of the option shall
immediately become void and of no force and effect.
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