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Exhibit 10.9
INCENTIVE STOCK OPTION AGREEMENT
By and Between
RED XXXX BREWING COMPANY
and
XXXXXXX X. XXXXXXXXXX
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INCENTIVE STOCK OPTION AGREEMENT
AGREEMENT, made as of May 16, 1995, by and between RED XXXX BREWING
COMPANY, a Pennsylvania corporation (the "Company"), and XXXXXXX X. XXXXXXXXXX,
an adult individual (the "Optionee").
BACKGROUND
A. Optionee is an officer and employee of Company.
B. Optionee has acted as the chief financial officer of Company
during the past two years and has devoted substantial time and effort to the
growth and development of Company.
C. Company neither has been nor is it now in a financial position
to compensate Optionee for his services.
D. Company has adopted a 1995 Stock Option Plan (the "Plan"), which
is incorporated herein by reference.
E. Pursuant to the Plan and in consideration of the covenants and
agreements of Optionee contained herein, Company desires to grant to Optionee,
and Optionee desires to receive, incentive stock options to acquire shares of
stock of Company, subject to the terms and conditions contained herein.
F. Capitalized terms used, but not defined, herein shall have the
meanings specified in the Plan; and, unless the context otherwise requires the
term Company shall also have the meaning specified in the Plan.
AGREEMENT
In consideration of the foregoing, all of which is incorporated herein by
reference, the parties hereto, intending to be legally bound hereby, agree as
follows:
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1. GRANT OF OPTION. Company hereby grants to Optionee an Incentive Stock
Option (the "Option") to purchase all or any part of an aggregate of 416,750
shares of the Stock (the "Shares") in accordance with and subject to the terms
of the Plan, a copy of which has been delivered to Optionee.
2. OPTION PRICE. The Option price per Share shall be $.30.
3. TERM OF OPTION. The term of the Option shall be ten (10) years
commencing on the date hereof, unless earlier terminated as provided herein.
4. EXERCISE OF OPTION. The Option shall be exercisable during each
calendar year commencing with 1996 in cumulative annual installments equal to
fifty percent (50%) of the Shares. Subject to the foregoing restriction, the
Option shall be exercisable from time to time, until it has expired or
terminated, only by written notice to Company by Optionee or his legal
representative, which shall specify the number of Shares to be purchased.
5. PAYMENT OF PURCHASE PRICE; WITHHOLDING.
5.1 PAYMENT. The purchase price shall be paid as follows:
(a) In full in cash upon the exercise of the Option;
(b) With the consent of the Committee, in lieu of cash Optionee
may exercise his Option by tendering to Company shares of Stock having a Fair
Market Value at the time of exercise equal to the option price applicable to
the Shares with respect to which the Option is exercised; or
(c) A combination of (a) and (b).
5.2 WITHHOLDING. All withholding liabilities that may arise by
reason of the exercise of the Option shall be paid as follows:
(a) Company shall collect or withhold cash;
(b) With the consent of the Committee, Optionee shall deliver
to Company on the date of exercise, Shares received from the exercise, or
Shares owned prior to such
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exercise, having a Fair Market Value at the time of exercise equal to the
amount of all withholding tax liabilities; or
(c) A combination of (a) and (b)
6. OPTION TRANSFERABILITY. This Agreement and the Option shall not
be transferable by Optionee otherwise than by will or the laws of descent and
distribution, and during the lifetime of Optionee, shall be exercisable only by
Optionee.
7. TERMINATION OF EMPLOYMENT, DEATH OR DISABILITY.
7.1 TERMINATION FOR CAUSE. If Optionee's employment with Company
is terminated for Cause, the Option and all rights hereunder shall terminate
immediately.
7.2 OTHER TERMINATION. If Optionee's employment with Company is
terminated for any reason other than Cause, Disability (hereinafter defined) or
death, the Option shall be exercisable at any time prior to expiration of (a)
the Option or (b) the ninety (90) day period commencing on the date of such
termination, whichever first occurs.
7.3 DEATH OR DISABILITY. In the event of the death or
Disability of Optionee while in the employ of Company, the Option shall be
exercisable at anytime prior to expiration of (a) the Option or (b) the one (1)
year period commencing on the date of death or determination of Disability,
whichever first occurs.
7.4 DEFINITION. As used in this Agreement the term "DISABILITY"
shall have the meaning specified in Section 22(e)(3) of the Code.
8. MISCELLANEOUS.
8.1 EMPLOYMENT STATUS. Company's right to terminate the
employment of Optionee at any time, with or without cause, shall not be
restricted by this Agreement.
8.2 NO RIGHTS TO CONTINUED EMPLOYMENT. Nothing herein or in the
Plan shall confer upon any employee of Company any right to continuance of
employment by Company or interfere with the right of Company to terminate such
employment at any time.
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8.3 ADJUSTMENTS. The Option and the Plan are subject to adjustment,
modification and amendment as provided in the Plan.
8.4 SURVIVAL. The agreements and covenants of Optionee contained in this
Agreement shall survive any termination or the expiration of the Option.
8.5 SUCCESSORS. Subject to the Plan, this Agreement shall bind and inure
to the benefit of Company, Optionee and their respective successors, assigns and
personal representatives.
8.6 GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement shall be
governed by and construed under the laws of the Commonwealth of Pennsylvania
applicable to agreements made and to be performed wholly within such
jurisdiction, without regard to the conflicts of laws provisions thereof. Each
of the parties agrees to (a) the irrevocable designation of the Secretary of
State of the Commonwealth of Pennsylvania as its agent upon whom process against
it may be served and (b) personal jurisdiction in any action brought under this
Agreement in any court. Federal or State, within the Commonwealth of
Pennsylvania having subject matter jurisdiction over such action. The parties to
this Agreement agree that any suit, action or proceeding arising out of or
relating to this Agreement shall be instituted in the United States District
Court for the Eastern District of Pennsylvania, United States of America or, in
the absence of jurisdiction, the Court of Common Pleas of appropriate
jurisdiction in Pennsylvania. Each party waives any objection that it may have
now or hereafter to the laying of the venue of any such suit, action or
proceeding, and irrevocably submits to the jurisdiction of any such court in any
such suit, action or proceeding.
8.7 DISPUTES. Any disputes, claims or interpretive issues arising under
the Plan shall be resolved by the Committee in its sole and absolute discretion,
and the Committee's determination shall be final, binding and uncontestable.
8.8 HEADINGS. The headings preceding the text of paragraphs hereof are
inserted solely for convenience of reference, and shall neither constitute a
part of this Agreement nor affect its meaning, construction or effect.
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8.9 ENTIRE AGREEMENT; AMENDMENTS.
(a) This Agreement sets forth all of the promises, covenants,
agreements, conditions and undertakings between the parties hereto with respect
to the subject matter hereof, and supersedes all prior and contemporaneous
agreements and understandings, inducements or conditions, express or implied,
oral or written, relating to Optionee's right to receive Shares or any other
interest in Company and Optionee waives any rights he may have under any such
prior agreements.
(b) No amendment, modification or waiver of this Agreement shall be
valid and binding unless it is in writing and signed by the party against whom
enforcement of the same is sought. No valid waiver of any provision of this
Agreement at any time shall be deemed a waiver of any other provision of this
Agreement at such time or at any other time.
8.10 THIRD PARTY BENEFICIARIES. Except for the provisions of Subsection
8.9(a), which shall be for the benefit of the shareholders of Company, this
Agreement is not intended to and shall not be construed to give any person or
entity other than the parties hereto any interest or rights (including, without
limitation, any third party beneficiary rights) with respect to or in connection
with any agreement or provision contained herein or contemplated hereby.
8.11 NOTICES. All notices or other communications that are required or may
be given under this Agreement and the Plan shall be in writing and shall be
deemed to have been duly given if mailed, first class mail, postage prepaid, or
delivered personally, or by overnight courier, to the addresses set forth below
or such other address as any party may designate by written notice to the other
given in the manner herein prescribed.
If to Company:
0000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
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If to Optionee:
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement the date first above written.
/s/ Xxxxxxx X. Xxxxxxxxxx
_____________________________ _____________________________
Witness Xxxxxxx X. Xxxxxxxxxx
ATTEST: RED XXXX BREWING COMPANY
_____________________________ By:_____________________________
Name: Name:
Title: Title:
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