EXHIBIT 10.53
XXXXX ENTERPRISES, INCORPORATED
STOCK OPTION AGREEMENT
FOR 2001 EQUITY INCENTIVE PLAN
(PERFORMANCE-ACCELERATED OPTION)
This Stock Option Agreement ("Option Agreement") is entered into as
of the 6th day of March 2002 by and between Xxxxx Enterprises, Incorporated, a
Florida corporation (the "Corporation"), and XXXXX X. XXXXXXX XX., an employee
of the Corporation or one of its subsidiaries (the "Optionee").
WHEREAS, the board of directors of the Corporation (the "Board") has
duly adopted the 2001 Equity Incentive Plan (the "Plan"), which authorizes the
Corporation to grant to eligible individuals options for the purchase of shares
of voting common stock, par value $.01 per share, of the Corporation (the
"Stock"); and
WHEREAS, the Corporation has determined that it is desirable and in
its best interests to grant to the Optionee, pursuant to the Plan, an option to
purchase a certain number of shares of Stock in order to provide the Optionee
with an incentive to advance the interests of the Corporation and its
subsidiaries, all according to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. GRANT OF OPTION. Subject to the terms of the Plan (attached
hereto as Exhibit A, the terms of which are incorporated herein by this
reference), the Corporation hereby grants to the Optionee the right and option
(the "Option") to purchase from the Corporation, on the terms and subject to the
conditions set forth herein and in the Plan, 100,000 shares of Stock. The Option
shall constitute an incentive stock option within the meaning of Section 422 of
the Internal Revenue Code of 1986, as amended (the "Code"), to the fullest
extent permissible thereunder, taking into account such Option and any other
incentive stock options issued to the Optionee under the Plan and all other
plans of the Optionee's employer corporation and its parent and subsidiary
corporations within the meaning of Section 422(d) of the Code, in the order in
which the Option issued hereunder and any such other incentive stock options
were granted. Any portion of the Option issued hereunder which is not treated as
an incentive stock option shall be treated as a nonqualified stock option. The
date of grant of the Option is MARCH 6, 2002 (the "Grant Date"), the date on
which the grant of the Option was approved in accordance with the terms and
conditions of the Plan.
2. PRICE. The purchase price (the "Option Price") for the shares of
Stock subject to the Option granted by this Option Agreement is $8.32 per share.
3. EXERCISE OF OPTION. Except as otherwise provided herein and in
the Plan, the Option granted pursuant to this Option Agreement shall be subject
to exercise as follows:
3(a). TIME OF EXERCISE OF OPTION. Subject to the limitation on
exercise set forth in Section 3(d) hereof, the Option shall vest and first
become exercisable by the Optionee on the fourth (4th) anniversary of the Grant
Date, provided that Optionee is then still employed on a full-time basis by the
Corporation or a Subsidiary. Notwithstanding the foregoing, the date upon which
the Option, or part thereof, will vest and first become exercisable will be
accelerated to the date or dates (each an "Accelerated Vesting Date") upon which
the performance objectives set forth on Exhibit B hereto (the "Performance
Objectives") are attained, but only if Optionee was employed with the
Corporation or a Subsidiary on a continuous, uninterrupted, and full-time basis
from the Grant Date up through and including the Accelerated Vesting Date. The
determination of whether the Optionee and/or Corporation have attained all of
the Performance Objectives, and the date on which the Accelerated Vesting Date
(if any) will occur, shall be made by the Administrator in its sole and absolute
discretion, and the Administrator's determination will be final and conclusive
and binding on the Optionee.
3(b).RETIREMENT, DEATH OR DISABILITY. If an Optionee: (i) dies while
employed by the Corporation or a Subsidiary or within the period when an Option
could have otherwise been exercised by the Optionee; (ii) terminates employment
with the Corporation or a Subsidiary by reason of the "permanent and total
disability" (within the meaning of
Section 22(e)(3) of the Code) of such Optionee; or (iii) terminates employment
with the Corporation or a Subsidiary as a result of such Optionee's retirement,
provided that the Corporation or such Subsidiary has consented in writing to
such Optionee's retirement, then, in each such case, the unvested portion of the
Option shall immediately terminate and such Optionee, or the duly authorized
representatives of such Optionee, shall have the right, at any time within three
(3) months after the death, disability or retirement of the Optionee, as the
case may be, and prior to the termination of the Option pursuant to Section 3(d)
below, to exercise any Option to the extent such Option was exercisable by the
Optionee immediately prior to such Optionee's death, disability or retirement.
In the discretion of the Administrator of the Plan, the three-month period
referenced in the immediately preceding sentence may be extended for a period of
up to one year. For the purposes of this Option Agreement, the terms
"Subsidiary" and "Administrator" shall have the respective meanings set forth in
the Plan.
3(c). TERMINATION OF EMPLOYMENT. During the life of an Optionee, an
Option shall be exercisable only by such Optionee and only within ninety (90)
days after the termination of the optionee's employment with the Corporation or
a Subsidiary, other than by reason of the Optionee's death, permanent disability
or retirement with the consent of the Corporation or a Subsidiary as provided in
Section 3(b) above, but only if and to the extent the Option was exercisable
immediately prior to such termination, and subject to the provisions of Section
3(d) below. Notwithstanding the foregoing, if the Optionee's employment is
terminated for cause, or the Optionee terminates his own employment with the
Corporation, all Options theretofore granted and not yet exercised (whether or
not vested) shall terminate immediately on the date of termination of
employment. "Cause" shall have the meaning set forth in any employment agreement
then in effect between the Optionee and the Corporation or any of its
Subsidiaries, or if the Optionee does not have any employment agreement, "cause"
shall mean (i) if the Optionee engages in conduct which has caused, or is
reasonably likely to cause, demonstrable and serious injury to the Corporation,
(ii) the material negligence of, or failure to perform, the Optionee's duties to
the Corporation or (iii) if the Optionee is convicted of a felony or a
misdemeanor which substantially impairs the Optionee's ability to perform his or
her duties to the Corporation.
3(d). LIMITATIONS ON EXERCISE OF OPTION. If the Optionee owned
capital stock of the Corporation possessing more than 10% of the total combined
voting power or value of all classes of capital stock of the Corporation as of
the Grant Date (a "10% Shareholder"), then in no event may the Option be
exercised, in whole or in part, after five (5) years following the Grant Date.
If the Optionee is not a 10% Shareholder, then in no event may the Option be
exercised, in whole or in part, after ten (10) years following the Grant Date.
In no event may the Option be exercised for a fractional share.
3(e). ASSIGNMENT OF OPTION. Options shall not be assignable or
transferable by the Optionee other than by will or by the laws of descent and
distribution. Except as provided herein, no Option, and no right under any such
Option, may be pledged, alienated, attached, or otherwise encumbered, and any
purported pledge, alienation, attachment, or encumbrance thereof shall be void
and unenforceable against the Corporation.
4. METHOD OF EXERCISE OF OPTION. Any payment for shares of Stock
purchased upon exercise of an Option granted hereunder shall be made in cash.
Notwithstanding the foregoing, if permitted by the Administrator, the payment
may be made by delivery of shares of Stock beneficially owned by the Optionee,
or attestation by the Optionee to the ownership of a sufficient number of shares
of Stock, or by a combination of cash and Stock, at the election of the Optionee
with the consent of the Administrator; provided, however, that any shares of
Stock so delivered or attested shall have been beneficially owned by the
Optionee for a period of not less than six (6) months prior to the date of
exercise. Any such shares of Stock so delivered or attested shall be valued at
their Fair Market Value (as defined in the Plan) on the date of such exercise.
The Administrator shall determine whether and if so the extent to which actual
delivery of share certificates to the Corporation shall be required. The
Administrator also may authorize payment in accordance with a cashless exercise
program under which, if so instructed by the Optionee, Stock may be issued
directly to the Optionee's broker upon receipt of the Option purchase price in
cash directly to the broker.
5. EFFECT OF CHANGES IN CAPITALIZATION. Section 10 of the Plan shall
apply to the Option.
6. WITHHOLDING OF TAXES. The parties hereto recognize that the
Corporation or any subsidiary thereof may be obligated to withhold federal and
local income taxes and Social Security taxes to the extent that the Optionee
realizes ordinary income in connection with the exercise of the Option or in
connection with certain dispositions of any shares of Stock acquired by exercise
of the Option. The Optionee agrees that the Corporation or any subsidiary
thereof may withhold amounts needed to cover such taxes from payments otherwise
due and owing to the Optionee, and also agrees that upon demand the Optionee
will promptly pay to the Corporation or any subsidiary thereof having such
obligation any additional amounts as may
-2-
be necessary to satisfy such withholding tax obligation. Such payment shall be
made in cash or by certified check payable to the order of the Corporation or a
subsidiary thereof. With the prior approval of the Corporation, however, which
may be withheld by the Corporation in its sole discretion, the Optionee may
elect to satisfy such obligations, in whole or in part, (a) by causing the
Corporation to withhold shares of Stock otherwise issuable pursuant to the
exercise of the Option or (b) by delivering to the Corporation shares of Stock
already owned by the Optionee. The shares so delivered or withheld shall have a
fair market value equal to such withholding obligations. The fair market value
of the shares used to satisfy such withholding obligation shall be determined by
the Corporation in accordance with the Plan as of the date that the amount of
tax to be withheld is to be determined.
7. DELIVERY OF SHARES. Shares of Stock purchased by the Optionee
upon the partial or complete exercise of the Option shall be delivered to the
Optionee upon notice of issuance given by the Corporation to its transfer agent.
8. INTERPRETATION OF THIS OPTION AGREEMENT. In the event that there
is any inconsistency between the provisions of this Option Agreement and of the
Plan, the provisions of the Plan shall govern.
9. GOVERNING LAW. This Option Agreement is executed pursuant to and
shall be governed by the internal laws of the State of Florida without reference
to the conflict of law principles thereof.
10. NOTICE. Any notice hereunder by the Optionee to the Corporation
shall be in writing and shall be deemed duly given: (i) when mailed or delivered
to the Corporation at its principal office, addressed to the attention of the
Board, or if so mailed or delivered to such other address as the Corporation may
hereafter designate by notice to the Optionee; or (ii) when sent by facsimile,
telecopy, telex or other form of written electronic transmission, upon
confirmation of receipt thereof by the Corporation. Any notice or delivery
hereunder by the Corporation or its transfer agent to the Optionee shall be in
writing and shall be deemed duly given: (i) when mailed or delivered to the
Optionee at the address specified below by the Optionee for such purpose, or if
so mailed or delivered to such other address as the Optionee may hereafter
designate by written notice given to the Corporation; or (ii) when sent by
facsimile, telecopy, telex or other form of written electronic transmission,
upon confirmation of receipt thereof by the Optionee.
11. ENTIRE AGREEMENT. This Option Agreement (including Exhibit A and
Exhibit B hereto) constitutes the entire agreement and supersedes all prior
understandings and agreements, written or oral, of the parties hereto with
respect to the subject matter hereof. Neither this Option Agreement nor any term
hereof may be amended, waived, discharged or terminated except by a written
instrument signed by the Corporation and the Optionee; provided, however, that
the Corporation unilaterally may waive any provision hereof in writing to the
extent that such waiver does not adversely affect the interests of the Optionee
hereunder or otherwise cause the Option granted hereunder not to qualify as an
"incentive stock option" within the meaning of Section 422 of the Code (if
applicable), but no such waiver shall operate as or be construed to be a
subsequent waiver of the same provision or a waiver of any other provision
hereof.
12. SUCCESSORS AND ASSIGNS. This Option Agreement shall be binding
upon, inure to the benefit of, and be enforceable by, the respective successors,
personal representatives and permitted assigns of the parties hereto.
13. COUNTERPARTS. This Option Agreement may be executed in one or
more counterparts, each of which shall constitute an original, but all of which
together shall be one and the same instrument.
14. FACSIMILE SIGNATURE. This Option Agreement may be executed by
either of the parties (the "Originating Party") and transmitted to the other
party (the "Receiving Party") by facsimile, telecopy, telex or other form of
written electronic transmission, and, upon confirmation of receipt thereof by
the Receiving Party, this Option Agreement shall be deemed to have been duly
executed by the Originating Party. Upon the request of the Receiving Party, the
Originating Party shall provide the Receiving Party with an executed duplicate
original of this Option Agreement.
15. TAX CONSEQUENCES. The Optionee should consult his or her tax
advisor regarding the tax consequences relating to the Option, including the
exercise of the Option and the sale of the stock purchased upon such exercise,
and the Corporation makes no representations regarding such tax consequences nor
the ability for the Option or any part thereof to constitute an incentive stock
option within the meaning of Section 422 of the Code.
[remainder of page intentionally left blank]
-3-
IN WITNESS WHEREOF, the parties hereto have duly executed this Stock
Option Agreement, or caused this Stock Option Agreement to be duly executed on
their behalf, as of the day and year first above written.
XXXXX ENTERPRISES, INCORPORATED
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------------
Title: Sr. VP, Human Resources
------------------------------------
OPTIONEE:
/ s / Xxxxx X. Xxxxxxx, Xx.
--------------------------------------------
Xxxxx X. Xxxxxxx Xx.
ADDRESS FOR NOTICE TO OPTIONEE:
-4-
EXHIBIT B
PERFORMANCE OBJECTIVES FOR ACCELERATED VESTING
NUMBER OF SHARES
PERFORMANCE OBJECTIVE SUBJECT TO ACCELERATED VESTING
--------------------- ------------------------------
Execution by both parties of the Amended and Restated 15,000
Employment Agreement between the Corporation and
Xxxxx X. Xxxxxxx Xx.
Corporation meets or exceeds expectations at street level, 25,000
as such expectations may be adjusted from time to time,
for earnings per share in Fiscal Year 2002.
The successful completion by Xxxxx X. Xxxxxxx Xx. 60,000
of the EMEA assignment through August 30, 2003.
-------------------------------------------------------------------------------------------------
TOTAL 100,000
