EXHIBIT 10.6
NONINCENTIVE STOCK OPTION AGREEMENT
A Nonincentive Stock Option (the "Option") is hereby granted
by MasTec, Inc., a Delaware corporation (the "Company"), to Xxxxxx X. Xxxxxx
("Optionee"), for and with respect to common stock of the Company, $.10 par
value per share (the "Common Stock"), subject to the following terms and
conditions:
1. OPTION GRANT. Subject to the provisions set forth herein,
the Company hereby grants to Optionee an option to purchase from the Company the
number of shares of Common Stock, at the purchase price per share, and on the
schedule, all as set forth below. This option shall not be treated as an
incentive stock option as defined in Section 422A(b) of the Internal Revenue
Code of 1986, as amended.
Number of Shares
Subject to Option: 100,000
Option Price Per Share: $5.75
Date of Grant: March 11, 1994
Exercise Schedule:
EXERCISE PERIOD
NUMBER OF SHARES COMMENCEMENT EXPIRATION
SUBJECT TO OPTION DATE DATE
----------------- ------------ ----------
20,000 March 11, 1995 March 10, 2004
20,000 March 11, 1996 March 10, 2004
20,000 March 11, 1997 March 10, 2004
20,000 March 11, 1998 March 10, 2004
20,000 March 11, 1999 March 10, 2004
2. GENERAL TERMS AND CONDITIONS OF OPTION.
(a) Except as provided in 2(b) and 2(c) below, the Option
shall not be exercisable in whole or in part unless Optionee, at the time
Optionee exercises the Option, is, and has been at all times since the date of
grant of the option, a member of the Board of Directors of the Company (the
"Board").
(b) If Optionee's service as director of the Company is
terminated for any reason other than death, permanent disability or retirement,
the Option shall expire thirty days after the date of such termination; provided
that the Board in its sole discretion, by written notice
given to Optionee, may permit Optionee to exercise the option during a period
ending on the earlier of 90 days after such termination and the Option's stated
expiration date.
If Optionee's service as a director of the Company is
terminated by reason of death, permanent disability or retirement, the option
shall expire on the earlier of the first anniversary of such termination and the
option's stated expiration date. During such periods the Option may be exercised
by optionee with respect to the same number of shares of Common Stock, in the
same manner, and to the same extent as if optionee had continued as a director
Page 1 of 5
during such period and the option shall be canceled with respect to all
remaining shares of Common Stock; provided that in the event Optionee shall die
at a time when the option, or a portion thereof, is exercisable by him, the
Option shall be exercisable in whole or in part during the applicable period set
forth herein by a legatee or legatees of the Option under optionee's will, or by
his executors, personal representatives or distributees, with respect to the
number of shares of Common Stock which optionee could have purchased hereunder
on the date of his death and the option shall be canceled with respect to all
remaining shares of Common Stock. Disability shall mean an inability as
determined by the Board to perform duties and services as a director of the
Company by reason of a medically determinable physical or mental impairment,
supported by medical evidence, which can be expected to last for a continuous
period of not less than six months.
In the event any Option is exercised by the executors,
administrators, heirs or distributees of the estate of the deceased Optionee,
the Company shall be under no obligation to issue Common Stock thereunder unless
and until the Company is satisfied that the person or persons exercising the
Option are the duly appointed legal representative of the deceased Optionee's
estate or the proper legatees or distributees thereof.
(c) Written notice of an election to exercise any portion of
the option, specifying the portion thereof being exercised and the exercise
date, shall be given by optionee, or his personal representative in the event of
optionee's death, (i) by delivering such notice at the principal executive
offices of the Company no later than the exercise date, or (ii) by mailing such
notice, postage prepaid, addressed to the Secretary of the Company at the
principal executive offices of the Company at least three business days prior to
the exercise date.
(d) The Option may be exercised only by making payment in full
for the shares of Common Stock being acquired thereunder at the time of exercise
(including applicable withholding taxes, if any) by check or bank draft, or by
tendering to the Company Common Stock shares already owned by the person
exercising the option, which may include shares received as the result of a
prior exercise of the Option, and having a fair market value equal to the cash
exercise price applicable to such Option, or by tendering a combination of cash
and Common Stock shares as aforesaid.
(e) In the event the option shall be exercised in whole,
this agreement shall be surrendered to the Company for cancellation. In the
event the Option shall be exercised in part,
or a change in the number or designation of the Common Stock shall be made, this
agreement shall be delivered by optionee to the Company for the purpose of
making appropriate notation thereon, or of otherwise reflecting, in such manner
as the Company shall determine, the partial exercise or the change in the number
or designation of the Common Stock.
(f) The Option shall not be exercisable with respect to a
fractional share or with respect to the lesser of fifty (50) shares or the full
number of shares then subject to the option.
(g) In no event, however, may the Option be exercised (i)
prior to the expiration of six months from the date of grant, or (ii) after ten
(10) years from the date it was granted.
Page 2 of 5
3. CHANGE IN CONTROL. (a) Subject to the limitations
set forth in Section 2(g), in the event of a change in control of the Company,
(i) the Option shall immediately become exercisable in full, and (ii) Optionee
shall have the right within one (1) year after such event to exercise the option
in full.
(b) For purposes of this Section 3, a "change in control"
shall be deemed to have occurred if at any time on or after the date hereof:
(1) there shall be consummated:
i. any consolidation or merger of the
Company in which the Company is not
the continuing or surviving
corporation or pursuant to which any
shares of Common Stock are to be
converted into cash, securities or
other property, provided that the
consolidation or merger is not with a
corporation which was a wholly owned
subsidiary of the Company immediately
before the consolidation or merger; or
ii. any sale, lease, exchange or other
transfer (in one transaction or a
series of related transactions) of
all, or substantially all, of the
assets of the Company; or
(2) the shareholders of the Company approve
any plan or proposal for the liquidation or
dissolution of the Company; or
(3) any "person," including a "group" as determined
in accordance with Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended
("Exchange Act"), becomes the beneficial owner
(within the meaning of Rule 13d-3 under the Exchange
Act), directly or indirectly, of 33% or more of the
combined voting power of the Company's then
outstanding Common Stock, provided that such person,
immediately before it becomes such 33% or more
beneficial owner, is not (i) a wholly-owned
subsidiary of the company or (ii) an individual, or a
spouse or a child of such individual, that on March
12, 1994, owned greater than 20% of the combined
voting power of such Common Stock, or (iii) a- trust,
foundation or other entity controlled by an
individual or individuals described in Section
3(b)(3)(ii); or
(4) individuals who constitute the Board on March 12,
1994 (the "Incumbent Board".) cease for any reason to
constitute at least a majority thereof, provided that
any person becoming a director subsequent to March
12, 1994, whose election, or nomination for election
Page 3 of 5
by the Company's shareholders, was approved by a vote
of at least three quarters of the directors
comprising the Incumbent Board (either by a specific
vote or by approval of the proxy statement of the
Company in which such person is named as a nominee
for director, without objection to such nomination)
shall be, for purposes of this clause (4), considered
as though such person were a member of the Incumbent
Board.
4. TRANSFERRING OF OPTION. The Option may be exercised only by
optionee during his lifetime and may not be transferred other than by will or
the applicable laws of descent or distribution. The Option shall not otherwise
be transferred assigned, pledged or hypothecated for any purpose whatsoever and
is not subject, in whole or in part, to execution, attachment, or similar
process. Any attempted assignment, transfer, pledge or hypothecation or other
disposition of the Option, other than in accordance with the terms set forth
herein, shall be void and of no effect.
5. OPTION RIGHTS. Neither the Optionee nor any other person
entitled to exercise the Option under the terms hereof shall be, or have any of
the rights or privileges of, a shareholder of the Company in respect of any of
the shares of Common Stock issuable on exercise of the Option, unless and until
the Option has been exercised pursuant to the terms herein and the purchase
price for such shares shall have been paid in full.
6. ADJUSTMENT IN THE EVENT OF CHANGE IN STOCK. In the event of
changes in the outstanding Common Stock of the Company by reason of stock
dividends, reverse split, subdivision, recapitalizations, mergers,
consolidations (whether or not the Company is a surviving corporation),
split-ups, combinations or exchanges of shares, reorganization or liquidation,
an extraordinary dividend payable in cash or property, and the like, the number,
class and the price of shares of Common Stock subject to this outstanding option
shall be appropriately adjusted by the Board in good faith, whose determination
shall be conclusive.
7. ADMINISTRATION OF OPTION. (a) The Option shall be
exercised in accordance with such administrative regulations as the Board shall
from time to time reasonably adopt.
(b) If at any time the Board shall determine, in its
reasonable discretion, that the listing, registration or qualification of shares
upon any national securities exchange or under any state or federal law, or the
consent or approval of any governmental regulatory body, is necessary or
desirable as a condition of, or in connection with the exercise of this option
hereunder, the option may not be exercised in whole or in part unless and until
such listing, registration, qualification, consent or approval shall have been
effected or obtained, or otherwise provided for, free of any conditions not
acceptable to the Board in the exercise of its reasonable judgment.
8. WAIVER OF DIRECTOR'S FEES AND RIGHTS UNDER 1994 STOCK
OPTION PLAN FOR NON-EMPLOYEE DIRECTORS. Optionee hereby waives any rights to any
fees to which he would otherwise be entitled as a director of the Company and to
any options to which he would otherwise be entitled under the Company's 1994
Stock option Plan for Non-Employee Directors for a period of five years
commencing from the date hereof.
Page 4 of 5
9. INVESTMENT REPRESENTATION. The Board may require the
Optionee to furnish to the company, prior to the issuance of any shares upon the
exercise of all or part of this Option, an agreement in which the Optionee
represents that the shares acquired by him upon execution are being acquired for
investment and not with a view to the sale or distribution hereof.
10. GOVERNING LAW AND VENUE. The Opt ion, and this agreement
shall be construed, administered and governed in all respects under and by the
laws of the State of Florida. Any legal action or proceeding arising out of this
agreement shall be brought in the courts of the State of Florida or of the
United States for the Southern District of Florida.
MASTEC, INC.
By: /s/ Xxxxx Mas
Xxxxx Mas,
President
The undersigned hereby accepts the foregoing Option and the
terms and conditions hereof.
/S/ XXXXXX X. XXXXXX
------------------------
Xxxxxx X. Xxxxxx
Page 5 of 5
