EXHIBIT 10.9
XXXXXX INDUSTRIES, INC.
[XXXXXX LOGO] INCENTIVE 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 DOCUMENT CONSTITUTES PART OF A PROSPECTUS COVERING SECURITIES
THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933.
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 an Incentive Stock Option ("Option") to
purchase the above stated number of shares of Xxxxxx Industries, Ltd. Class A
common stock, $.01 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) During the lifetime of the Employee, the Option rights are exercisable
only by the Employee, and, except as otherwise provided in Sections 2,
3 and 4 below, 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 5 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 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. Incentive Stock
Options must be exercised within 90 days from retirement in order to retain
favorable tax treatment. Options exercised more than 90 days from retirement
will be considered to be nonqualified exercises and applicable taxes will be
collected at the time of exercise.
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 may exercise such
outstanding options for a period of one year after the cessation of employment
resulting from disability or until the Expiration Date, whichever 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 by will or the applicable laws
of descent and distribution 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 person entitled by
will or the laws of descent and distribution 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. Such notice
shall, and as an essential part thereof, be accompanied by the payment of the
full purchase price of the Shares then to be purchased. 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 Xxxxxx Industries, Ltd. Class A common stock, $.01
per share ("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. 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;
(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, 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 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 by
will or by 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 by a cash
payment 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. The Employee hereby agrees to notify the Company promptly of the
disposition, whether by sale, exchange or otherwise, of any Shares acquired
pursuant to this Option within a period of one year from their acquisition.
Such notice shall state the date and manner of disposition and the proceeds, if
any, received by the Employee as a result thereof.
13. 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.
14. 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
duplicate as of the Grant Date first above written.
XXXXXX INDUSTRIES, INC.
BY _____________________________________________________________
EMPLOYEE SIGNATURE _____________________________________________
SOCIAL SECURITY NO. ____________________________________________
HOME ADDRESS ___________________________________________________
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