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EXHIBIT 10.10
XXXXXX INDUSTRIES, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
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NUMBER OF SHARES OF XXXXXX OPTION PRICE
GRANTED TO: GRANT DATE INDUSTRIES COMMON STOCK PER SHARE EMPLOYEE NUMBER
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EXPIRATION DATE DIVISION
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This Agreement is made between Xxxxxx Industries, Inc., an Ohio corporation,
having its principal office in Houston, Texas (the "Company"), and the
undersigned, an employee of the Company or a subsidiary of the Company (the
"Employee"). The parties hereto have agreed as follows:
1. Pursuant to the Xxxxxx Industries, Inc. Stock Incentive Plan (the "Plan"),
the Company grants to the Employee a Nonqualified Stock Option ("Option") to
purchase the above stated number of shares of the Company's Common Stock, par
value $5 per share (the "Shares"), at the price stated above, subject to the
following conditions:
(a) The Option rights are 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"). The Option shall become exercisable to
the extent of only 33 1/3% of the aggregate number of Shares above
specified, after one year, 66 2/3% after two years, and 100% after three
years from the Grant Date.
(b) Except as otherwise provided in Sections 2, 3 and 4 below, the Employee or
any permitted transferee of the Option under Section 8 ("Permitted
Transferee"), may exercise the Option rights 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 end of the period of 10 years
commencing with the Grant Date, or upon such earlier expiration or
termination date as may be provided by Sections 2,3,4 or 9 hereof and such
Option rights shall not be exercisable thereafter.
2. If, after the expiration of one year from the Grant Date, the Employee shall
cease to be employed by the Company for any reason other than death, disability
or retirement, the Option rights shall terminate immediately. If, after the
expiration of one year from the Grant Date, cessation of employment is
occasioned by retirement in accordance with any retirement plan of the Company
then in effect, then the Employee or any Permitted Transferee may exercise the
Option rights following such retirement for a period of five years after
retirement or until the Expiration Date, whichever is lesser. However, if an
Employee retires in accordance with any retirement plan of the Company then in
effect and accepts employment with any competitor of, or otherwise engages in
competition with, the Company, the Committee, in its sole discretion, may
require such Employee to forfeit any unexercised Options under this Agreement.
3. If, after the expiration of one year from the Grant Date, the Employee shall
cease employment as the direct result of disability (as defined in the Company's
qualified Salaried Pension Plan), all outstanding options granted to the
Employee become exercisable immediately and the Employee or any Permitted
Transferee may exercise such outstanding options for a period of one year after
the cessation of employment resulting from disability or until the Expiration
Date, which-ever is lesser, irrespective of any restrictions to the contrary
contained in Section 1 (a) above.
4. If, after the expiration of one year from the Grant Date, the Employee shall
die while in the employ of the Company, or while retired with exercisable
Options under Section 2, all outstanding options granted to the Employee become
exercisable immediately and the person entitled to exercise such Options under
Section 8 may exercise such outstanding Options for a period of one year after
the date of death or until the Expiration Date, whichever is lesser,
irrespective of any restrictions to the contrary contained in Section 1(a)
above.
5. The Option may be exercised by delivering to the Company at its principal
executive office (directed to the attention of the Secretary or Assistant
Secretary) a written notice, signed by the Employee or a Permitted Transferee,
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,
accompanied by the payment of the full purchase price of the Shares then to be
purchased plus any applicable federal and state taxes. In the event the Option
shall be exercised, as provided herein, 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 of the Company's Common Stock ("Stock"), or (c) any
combination of cash and Stock, provided that any Stock used by the Employee in
payment of the purchase price must have been acquired (whether by purchase,
exchange or otherwise) by the Employee and held for a period of more than six
months, and provided further that the Company reserves the right to prohibit the
use of Stock as payment of the purchase price. Stock used in payment of the
purchase price shall be valued at the average of the high and low trading prices
of such Stock on the New York Stock Exchange or as reported in the consolidated
transaction reporting system for the date of exercise. Payment of any applicable
state and federal taxes must be made by the Employee upon exercise of the
Option, even if the Option is exercised by a Permitted Transferee. 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 for the Shares
purchased. The Employee agrees that as holder of the Option he or she shall have
no rights as shareholder in respect of any of the Shares as to which the Option
shall not have been effectively exercised as herein provided and that no rights
as a shareholder shall arise in respect of any Shares as to which the Option
shall have been duly exercised until and unless a certificate for such Shares
shall have been issued.
6. This Option shall not be exercisable if such exercise would violate:
(a) Any applicable state securities law,
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(b) Any applicable registration or other requirements under the Securities Act
of 1933, as amended (the "Act"), the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or the listing requirements of any stock exchange;
or
(c) Any applicable legal requirement of any other governmental authority.
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 and delivery of
certificates for the Shares, the delivery to the Company of a written statement
that the Employee or Permitted Transferee is acquiring such Shares for
investment only and not with a view to, or for resale in connection with, the
distribution thereof; 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 said Shares will be accomplished
only in compliance with Rule 144, the Act, or other or subsequent applicable
rules and regulations thereunder. The Company may place on the certificates
evidencing such Shares an appropriate legend reflecting the aforesaid statement
and the Company may refuse to permit transfer of such certificates until it has
been furnished evidence satisfactory to it that no violation of the Act or the
rules and regulations thereunder would be involved in such transfer.
7. In consideration of the granting of this Option by the Company, the Employee
agrees that he or she will remain in the employ of the Company for a period of
not less than one year from the Grant Date unless during said period his or her
employment shall be terminated on account of incapacity or with the consent of
the Company. Nothing herein contained shall limit or restrict any right which
the Company would otherwise have to terminate the employment of the Employee.
8. This Option and the Option rights granted hereunder are not assignable or
transferable or subject to any disposition by the Employee otherwise than:
(a) by will or the laws of descent and distribution;
(b) by gift to any trust or estate in which the Employee or the Employee's
spouse or other immediate relative of the employee has more than a 50%
beneficial interest, or to the Employee's spouse or other immediate relative of
the Employee, provided that any such transfer is permitted subject to Rule 16b-3
issued pursuant to the Exchange Act as in effect when such transfer occurs; or
(c) pursuant to a qualified domestic relations order (as defined by the Internal
Revenue Code).
In this Agreement, "immediate relative" shall mean any child, stepchild,
grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling,
niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law,
sister-in-law, brother-in-law, any adoptive relationship or any person sharing
the Employee's household other than as a tenant or employee. The transfer of any
Option rights under this Section 8 shall not be effective until the Employee has
provided the Company with a written request for the transfer in a form
acceptable to the Company and the Company has approved the transfer in writing.
All Option rights transferred under this Section 8 shall continue to be subject
to the terms and conditions of this Agreement and any Permitted Transferee has
only the rights of the Employee contained herein, except that Option rights may
not be transferred by a Permitted Transferee otherwise than by will or the laws
of descent and distribution.
9. In the event of a reorganization, recapitalization or other change in the
capital stock, corporate structure or business of the Company, the Board of
Directors shall make appropriate adjustments to the number of Shares subject to
the Option and the exercise price so as to maintain the proportionate interest
of the Employee and preserve the value of the Option. In the event of a Change
in Control of the Company, outstanding Options shall be settled in accordance
with Section 18.2 of the Plan.
10. For purposes of this Agreement, employment by a parent or subsidiary of or a
successor to the Company shall be considered employment by the Company.
11. 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 said 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.
12. Notwithstanding any provisions hereof, this Agreement and the Option granted
hereunder shall be subject to all of the provisions of the Plan as are in effect
from time to time, which provisions are incorporated herein by reference.
13. This Agreement shall be governed and construed in accordance with the laws
of the State of Texas, excluding any conflicts or choice of law rule or
principle that might otherwise refer construction or interpretation of the
Agreement to the substantive law of another jurisdiction.
XXXXXX INDUSTRIES, INC.
BY
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EMPLOYEE SIGNATURE
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SOCIAL SECURITY NO.
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HOME ADDRESS
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THIS DOCUMENT CONSTITUTES PART OF A PROSPECTUS COVERING SECURITIES
THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933.
