Exhibit 4.3
STOCK OPTION AGREEMENT
This Stock Option Agreement (this "Agreement") dated February 26, 1999
is made by and between World Color Press, Inc., a Delaware corporation ("WCP"),
and Xxxxxx X. Xxxxxx, an individual with a residence at 000 Xxxxxxxxx Xxxxx
Xxxx, Xxxxxxxxx, XX 00000 (the "Optionholder"). WCP and the Optionholder are
sometimes herein referred to collectively as the "Parties."
RECITALS
A. The Optionholder is a senior management employee of WCP.
B. WCP wishes to grant to the Optionholder certain options (the
"Options") to purchase shares of its common stock, par value $.01 per share (the
"Common Stock"). The term "Options" as used in this Agreement shall include all
Options granted to the Optionholder pursuant to this Agreement. Upon exercise of
Options granted hereunder in accordance with the terms hereof and issuance of
Common Stock upon such exercise the Optionholder will become the holder of
"Option Shares."
C. The Compensation Committee (the "Committee") of the Board of
Directors of WCP (the "Board") has determined that it would be to the advantage
and best interest of WCP and its stockholders to grant the Options provided for
herein to the Optionholder as an inducement to continue to perform services for
the Company (as hereinafter defined) and as an incentive for increased efforts
during such service, and has advised WCP thereof and instructed the undersigned
officer to issue said Options. For the purposes of this Agreement, the "Company"
shall mean WCP, together with its subsidiaries.
D. WCP has entered into and may in the future enter into other
agreements ("Other Stock Option Agreements") between WCP and holders of stock
options granted by World Color Press, Inc. (collectively, the "Other
Optionholders").
E. WCP has reserved a sufficient amount of treasury shares to cover the
common stock issuable upon the exercise of the options.
AGREEMENTS
1. GRANT OF OPTIONS. In consideration of the Optionholder's agreement
to provide services to the Company and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, WCP
irrevocably grants to the Optionholder on the date hereof an aggregate of
550,000 Options, each to purchase initially one share of Common Stock (shares
issuable upon exercise of the Options are collectively referred to herein as the
"Option Shares"), upon the terms and conditions set forth in this Agreement. The
Options
granted hereby are designated non-qualified stock options (and NOT "Incentive
Stock Options" under Section 422 of the Internal Revenue Code ("Code")) and are
nontransferable except as otherwise expressly set forth herein.
2. EXERCISE PRICE. The purchase price of the Option Shares upon
exercise of any of the Options (the "Exercise Price" or "Option Price Per
Share") shall initially be $24.33 per share, without commission or other charge.
3. EXERCISABILITY.
(a) The Options shall become exercisable as follows:
DATE OPTIONS BECOME EXERCISABLE EXERCISABLE PERCENTAGE OF OPTIONS
------------------------------- ---------------------------------
From February 3, 1999 ("Vesting Date") until the first 0%
anniversary of the Vesting Date
On and after the first anniversary of the Vesting date until 20%
the second anniversary of the Vesting date
On and after the second anniversary of the Vesting date until
the third anniversary of the Vesting date 40%
On and after the third anniversary of the Vesting date until
the fourth anniversary of the Vesting date 60%
On and after the fourth anniversary of the Vesting date until
the fifth anniversary of the Vesting date 80%
On and after the fifth anniversary of the Vesting date 100%
(b) Notwithstanding the foregoing, 100% of the Options shall become
exercisable (but only to the extent such Option has not otherwise then
terminated or become unexercisable) immediately prior to the occurrence of a
Change of Control (as hereinafter defined); provided, however, that as a
condition subsequent to the acceleration of the exercisability of the Option
pursuant to this paragraph, the Change of Control shall be consummated. In the
event the contemplated Change in Control is not consummated, the acceleration of
exercisability and the exercise, if any, of the Option shall be void AB INITIO.
(c) Notwithstanding the foregoing, all Options that are not exercisable
at the time of the termination of employment of the Optionholder for any reason
other than by reason of the Optionholder's death, Permanent Disability or
Permitted Retirement (each as hereinafter defined) shall be automatically and
immediately canceled without any payment or other action by the Company. In the
event of and upon the termination of the Optionholder's employment because of
the Optionholder's death, Permanent Disability or Permitted Retirement, all of
the Optionholder's Options granted hereunder shall immediately become
exercisable.
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(d) For purposes of this Agreement the following definitions shall
apply: "Cause" shall mean (i) the Optionholder's failure to render services to
the Company, which failure amounts to a material and flagrant neglect of such
duties, (ii) the Optionholder's willful engagement in conduct that is, or that
he or she intends to be, materially injurious to the Company, (iii) the
Optionholder's commission of an act of fraud, conversion, misappropriation
(including, but not limited to, the unauthorized use or disclosure of
confidential or proprietary information of the Company), embezzlement or felony,
(iv) a conviction of or guilty plea or his or her confession to any fraud,
conversion, misappropriation, embezzlement or felony or (v) the Optionholder's
repeated taking of any action prohibited by the Board, PROVIDED that he or she
has received at least one written notice of having taken an action so
prohibited; "Good Reason" shall mean, in each case without the Optionholder's
consent, (i) a material adverse change, when viewed in the aggregate, in the
Optionholder's duties, responsibilities, base compensation, bonus eligibility
and/or other material matters directly related to his or her employment with the
Company or (ii) the Optionholder's relocation by the Company to a location more
than 100 miles from the Optionholder's immediately prior location.
(e) For purposes of this Agreement, the Optionholder shall be deemed to
have a "Permanent Disability" if he or she is unable to engage in the activities
required by employment by reason of any medically determined physical or mental
impairment which can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than 12 months, as
reasonably determined by the Board in good faith and in its discretion.
4. MANNER OF EXERCISE.
(a) PARTIAL EXERCISE. An exercisable Option may be exercised at any
time prior to the time when the Option becomes unexercisable under Section 10;
PROVIDED that each exercise shall be for not less than 50 Option Shares and
shall be for whole Option Shares only.
(b) MANNER OF EXERCISE. An exercisable Option shall be deemed exercised
upon delivery of all of the following to the Secretary of the Company or his or
her office:
(i) A written notice complying with the applicable rules
established by the Committee stating that the Option is exercised. The
Optionholder or other person then entitled and authorized to exercise
the Option shall sign the notice;
(ii) Such representations and documents as the Committee, in
its discretion, deems necessary, appropriate or advisable to effect
compliance with all applicable provisions of the Securities Act of
1933, as amended (the "Act"), and any other federal or state securities
laws, rules or regulations or stock exchange requirements. The
Committee may, in its discretion, also take whatever additional actions
it deems necessary, appropriate or advisable to effect such compliance,
including, without limitation, placing legends on share certificates
and issuing stop-transfer notices to transfer agents and registrars;
(iii) In the event that the Option shall be exercised by any
person or persons
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other than the Optionholder, appropriate proof of the right of such
person or persons to exercise the Option; and
(iv) Full payment (by certified or bank check or by wire
transfer of immediately available funds) to the Secretary of the
Company for the Option Shares with respect to which Options are
exercised and any applicable withholding taxes. In its discretion,
however, the Committee may (A) allow a delay in payment up to thirty
(30) days from the date the Option is exercised; (B) allow payment, in
whole or in part, through the delivery of shares of Common Stock owned
by the Optionholder (including, subject to Section 4(c), Option Shares
issuable upon such exercise), duly endorsed for transfer to WCP, having
an Aggregate Market Value (as hereinafter defined) on the date of
delivery equal to the aggregate Exercise Price of the Options; (C)
allow payment, in whole or in part, through the delivery of property of
any kind which constitutes good and valuable consideration; (D) allow
payment, in whole or in part, through the delivery of a full recourse
promissory note bearing interest (at no less than such rate as shall
then preclude the imputation of interest under the Code) and payable
upon such terms as may be prescribed by the Committee; or (E) allow
payment through any combination of the consideration provided in the
foregoing subparagraphs (B), (C) and (D). In the case of a promissory
note, the Committee may also prescribe the form of such note and the
security to be given for such note. No Option may be exercised,
however, by delivery of a promissory note or by a loan from the Company
when or where such loan or other extension of credit is prohibited by
law.
(c) CERTAIN TIMING REQUIREMENTS. At the discretion of the Committee,
shares of Common Stock issuable to the Optionholder upon exercise of the Option
may be used to satisfy the Option Exercise Price or the tax withholding
consequences of such exercise.
(d) RIGHTS AS STOCKHOLDERS. The holders of Options shall not be, nor
have any of the rights or privileges of, stockholders of WCP in respect of any
shares purchasable upon the exercise of any Option unless and until certificates
representing such shares have been issued by the Company to such holders.
(e) CONDITIONS TO ISSUANCE OF STOCK CERTIFICATES. WCP may postpone the
time of delivery of the certificates for Option Shares for such additional time
as WCP shall deem necessary or desirable to enable it to comply with the listing
requirements of any securities exchange with which the Common Stock may be
listed or the requirements of the Act or the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or any rules and regulations of the Securities and
Exchange Commission promulgated thereunder, or the requirements of applicable
state laws relating to the authorization, issuance or sale of securities.
5. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE OPTIONHOLDER.
(a) (1) The Optionholder hereby represents and warrants that he or she
is acquiring the Options and any Option Shares issued upon exercise thereof for
investment for his or her own account and not with a view to, or for resale in
connection with, the distribution or other disposition thereof.
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(2) The Optionholder acknowledges and agrees that no Option or interest
or right therein or part thereof shall be liable for the debts, contracts or
engagements of the Optionholder or his successors in interest or shall be
subject to disposition by transfer, alienation, anticipation, pledge,
encumbrance, assignment or any other means whether such disposition be voluntary
or involuntary or by operation of law by judgment, levy, attachment, garnishment
or any other legal or equitable proceedings (including bankruptcy), and any
attempted disposition thereof shall be null and void and of no effect; provided,
that nothing in this Section 5 shall prevent transfers by will, by the
applicable laws of descent and distribution or, with the consent of the
Committee, the transfer of Options by gift made in compliance with the federal
securities laws to a family member of the Optionholder or a family trust or for
other estate planning purposes.
(3) The Optionholder further agrees and acknowledges that he or she
will not, directly or indirectly, offer, transfer, sell, assign, pledge,
hypothecate or otherwise dispose of (any such act being referred to herein as a
"transfer") any Option Shares unless such transfer complies with Section 6 of
this Agreement and such transfer is pursuant to (i) an effective registration
statement under the Act and the rules and regulations thereunder and in
compliance with any applicable state securities or "blue sky" laws, or (ii) (A)
an opinion of counsel to the Optionholder (which counsel shall be reasonably
acceptable to WCP) furnished to WCP and satisfactory in form and substance to
WCP that no such registration is required because of the availability of an
exemption from registration under the Act and (B) if the Optionholder is a
citizen or resident of any country other than the United States, or the
Optionholder desires to effect any transfer in any such country, counsel for the
Optionholder (which counsel shall be reasonably satisfactory to WCP) shall have
furnished WCP with an opinion or other advice satisfactory in form and substance
to WCP to the effect that such transfer will comply with the securities laws of
such jurisdiction.
(b) Notwithstanding the foregoing, WCP acknowledges and agrees that any
of the following transfers of Option Shares are deemed to be in compliance with
the Act and this Agreement and no opinion of counsel is required in connection
therewith:
(i) A transfer of Option Shares made pursuant to Sections 7 or
8 of this Agreement;
(ii) A transfer of Option Shares upon the death of the
Optionholder to his or her executors, administrators, testamentary
trustees, legatees or beneficiaries (the "Optionholder's Estate") or a
transfer to the executors, administrators, testamentary trustees,
legatees or beneficiaries of a person who has become a holder of Option
Shares in accordance with the terms of this Agreement; PROVIDED that
such transfer is made expressly subject to this Agreement and that the
transferee agrees in writing to be bound by the terms and conditions of
this Agreement as if such transferee were the Optionholder;
(iii) A transfer of Option Shares made in compliance with the
federal securities laws to a trust or custodianship the beneficiaries
of which, a partnership (general or
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limited) the partners of which, or a limited liability company the
members of which, may include only the Optionholder, his or her spouse
or his or her lineal descendants by blood or adoption (the
"Optionholder's Trust") or a transfer of Option Shares made after the
third anniversary of the Vesting date to such a trust, partnership or
limited liability corporation by a person who has become a holder of
such Option Shares in accordance with the terms of this Agreement;
PROVIDED that such transfer is made expressly subject to this Agreement
and that the transferee agrees in writing to be bound by the terms and
conditions of this Agreement as if such transferee were the
Optionholder; and
(iv) A pledge or hypothecation by the Optionholder or the
Optionholder's Trust of the Option Shares or his or her or its interest
therein to a bank or other financial institution (a "Pledgee")
reasonably satisfactory to WCP to secure a loan by such Pledgee to the
Optionholder or the Optionholder's Trust, as the case may be, for the
purchase of the Option Shares or the refinancing of any indebtedness
incurred for the purchase of the Option Shares; PROVIDED that (A) such
Pledgee agrees in writing to accept the Option Shares or interest
therein subject to all of the terms and conditions of this Agreement as
if such Pledgee were the Optionholder and to notify WCP upon the
happening of any default or event of default under the terms of the
agreement with the Optionholder or the Optionholder's Trust, as the
case may be, relating to such pledge or hypothecation and (B) the
Optionholder or the Optionholder's Trust, as the case may be, delivers
to the Board a copy of all proposed documentation relating to such
pledge or hypothecation at least ten days before the scheduled date of
such pledge or hypothecation, and prior to such scheduled date WCP has
confirmed that such documentation is reasonably satisfactory to it in
form and substance.
(c) The certificate (or certificates) representing the Option Shares
shall bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF UNLESS SUCH TRANSFER, SALE, ASSIGNMENT,
PLEDGE, HYPOTHECATION OR OTHER DISPOSITION COMPLIES WITH THE
PROVISIONS OF STOCK OPTION AGREEMENT DATED FEBRUARY 26, 0000
XXXXXXX XXXXX XXXXX XXXXX, XX. ("WCP") AND THE OPTIONHOLDER
NAMED ON THE FACE HEREOF (A COPY OF WHICH IS ON FILE AT THE
PRINCIPAL OFFICE OF WCP). EXCEPT AS OTHERWISE PROVIDED N SUCH
AGREEMENT, NO TRANSFER, SALE, ASSIGNMENT, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION OF THE SHARES REPRESENTED
BY THIS CERTIFICATE MAY BE MADE EXCEPT (A) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND IN COMPLIANCE WITH ANY
APPLICABLE STATE SECURITIES OR "BLUE SKY" LAWS OR (B) (I) IF
WCP HAS BEEN FURNISHED WITH A SATISFACTORY OPINION OF COUNSEL
FOR THE HOLDER THAT SUCH TRANSFER, SALE,
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ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION IS
EXEMPT FROM THE PROVISIONS OF SECTION 5 OF THE ACT AND THE
RULES AND REGULATIONS IN EFFECT THEREUNDER, AND IN COMPLIANCE
WITH APPLICABLE PROVISIONS OF STATE SECURITIES LAWS, AND (II)
IF THE HOLDER IS A CITIZEN OR RESIDENT OF ANY COUNTRY OTHER
THAN THE UNITED STATES, OR THE HOLDER DESIRES TO EFFECT ANY
SUCH TRANSACTION IN ANY SUCH COUNTRY, THE COMPANY HAS BEEN
FURNISHED WITH A SATISFACTORY OPINION OR OTHER ADVICE OF
COUNSEL FOR THE HOLDER THAT SUCH TRANSACTION WILL NOT VIOLATE
THE LAWS OF SUCH COUNTRY."
(d) The Optionholder acknowledges that he or she has been advised that
(i) the issuance of the Option Shares upon exercise of the Options will not have
been registered under the Act, (ii) the Option Shares must be held indefinitely
and the Optionholder must continue to bear the economic risk of the investment
in the Option Shares unless they are subsequently registered under the Act or an
exemption from such registration is available, (iii) no assurance can be given
that there will be any public market for the Option Shares, (iv) no assurance
can be given that Rule 144 promulgated under the Act will be available with
respect to the sales of any securities of WCP, and WCP has made no covenant to
make such Rule available, (v) when and if any of the Option Shares may be
disposed of without registration in reliance on Rule 144, such disposition can
be made only in limited amounts in accordance with the terms and conditions of
such Rule, (vi) if the Rule 144 exemption is not available, public sale without
registration will require compliance with some other exemption under the Act,
(vii) a restrictive legend in the form heretofore set forth shall be placed on
the certificates representing the Option Shares and (viii) a notation shall be
made in the appropriate records of WCP and/or the transfer agent for the Common
Stock indicating that the Option Shares are subject to restriction on transfer
and appropriate stop transfer restrictions will be issued to WCP's stock
transfer agent with respect to the Option Shares.
(e) If any of the Option Shares are to be disposed of in accordance
with Rule 144 under the Act or otherwise, the Optionholder shall promptly notify
WCP of such intended disposition and shall deliver to WCP at or prior to the
time of such disposition such documentation as WCP may reasonably request in
connection with such sale and, in the case of a disposition pursuant to Rule
144, shall deliver to WCP an executed copy of any notice on Form 144 required to
be filed with the Securities and Exchange Commission ("SEC").
(f) The Optionholder agrees that, if any securities of WCP are offered
to the public pursuant to an effective registration statement under the Act, the
Optionholder will not effect any public sale or distribution of any Option
Shares not covered by such registration statement within seven days prior to, or
within 180 days (or in an underwritten public offering, any such lesser period
as the underwriters may agree to) after, the effective date of such registration
statement, unless otherwise agreed to in writing by WCP; PROVIDED that the
Optionholder shall have been notified in writing of such offering.
6. RESTRICTION ON TRANSFER OF OPTION SHARES.
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(a) Except for transfers otherwise permitted by this Agreement, the
Optionholder agrees that he or she will not transfer, sell, assign, pledge,
hypothecate or otherwise dispose of any Option Shares at any time prior to the
fifth anniversary of the Vesting Date. The restrictions on transfer provided in
this Section 6 shall not apply as of any date (the "Calculation Date") to a
number of Option Shares (the "Unrestricted Shares") held in the aggregate by the
Optionholder, the Optionholder's Trust, the Optionholder's Estate and all
Pledgees equal to the excess, if any, of (i) the product of (A) the total number
of Option Shares covered by all Options received by the Optionholder on the
Vesting Date and (B) the Vested Percentage as of such date over (ii) the total
number of Option Shares transferred by the Optionholder, the Optionholder's
Trust, the Optionholder's Estate and all Pledgees after the date hereof, other
than pursuant to transfers permitted by clauses (ii), (iii) and (iv) of Section
5(b) hereof. No transfer of any such shares in violation hereof shall be made or
recorded on the books of WCP (or any transfer agent or registrar therefor) and
any such transfer shall be null and void and of no force or effect.
(b) For purposes of this Agreement, the "Vested Percentage" with
respect to Option Shares shall be determined as follows:
CALCULATION DATE VESTED PERCENTAGE
---------------- -----------------
From Vesting Date until the first anniversary of the 0%
Vesting Date
On and after the first anniversary of the Vesting Date until the second 20%
anniversary of the Vesting Date
On and after the second anniversary of the Vesting Date until the third 40%
anniversary of the Vesting Date
On and after the third anniversary of the Vesting Date until the fourth 60%
anniversary of the Vesting Date
On and after the fourth anniversary of the Vesting Date 80%
until the fifth anniversary of the Vesting Date
On and after the fifth anniversary of the Vesting Date 100%
7. OPTIONHOLDER'S RIGHT TO RESELL OPTION SHARES AND OPTIONS TO WCP UPON
DEATH OR DISABILITY.
(a) Except as otherwise provided herein, if on or before the fifth
anniversary of the Vesting Date, (i) the Optionholder dies or becomes
Permanently Disabled and (ii) at the time of his or her death or Permanent
Disability, the Optionholder (A) was still in the employ of the Company, (B) had
retired from the Company at age 65 or over (or such other age as may be approved
by the Board) after having been employed by the Company continuously for at
least three years after the Vesting Date (a "Permitted Retirement"), or (C) had
terminated employment
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with Good Reason, then the Optionholder, the Optionholder's Estate and/or the
Optionholder's Trust, as the case may be, shall have the right for six months
from the date of death or Permanent Disability to elect on one occasion (x) to
sell to WCP, and WCP shall be required to purchase all or any portion of the
Option Shares then held by the Optionholder, the Optionholder's Estate and/or
the Optionholder's Trust, as the case may be, at the Section 7 Repurchase Price,
as determined in accordance with Section 9 and/or (y) to require WCP to pay to
the Optionholder an amount equal to the Option Excess Price (as defined in
Section 10(a)) determined on the basis of the Section 7 Repurchase Price as
provided in Section 9 with respect to the termination of all or any portion of
outstanding Options held by the Optionholder.
(b) The Optionholder, the Optionholder's Estate and/or the
Optionholder's Trust, as the case may be, shall send written notice to WCP of
his, her or its election to sell such Option Shares and/or to terminate such
Options in exchange for the payment referred to in the preceding subsection (a)
(the "Redemption Notice") within the six-month period referred to in Section
7(a). The completion of the purchase shall take place at the principal office of
WCP on the 15th business day after the receipt by WCP of a properly given
Redemption Notice. The Section 7 Repurchase Price and any payment with respect
to the Options as described above shall be paid by delivery to the Optionholder,
the Optionholder's Estate or the Optionholder's Trust, as the case may be, of a
certified or bank check or checks in the appropriate amount payable to the order
of the Optionholder, the Optionholder's Estate or the Optionholder's Trust, as
the case may be, against delivery of certificates or other instruments
representing the Option Shares so purchased and appropriate documents canceling
the Options so terminated, appropriately endorsed or executed by the
Optionholder, the Optionholder's Estate or the Optionholder's Trust, or his, her
or its duly authorized representative.
(c) Notwithstanding any other provision of this Section 7 and subject
to Section 13, if there exists and is continuing a default or any event which
after a notice or lapse of time or both would cause a default under any loan,
guarantee or other agreement under which WCP or any of its subsidiaries, as
defined in Section 424(f) of the Code ("Subsidiaries"), has borrowed money or
such repurchase would result in any default or event of default on the part of
WCP or any of its Subsidiaries under any such agreement or if the capital of WCP
or any of its Subsidiaries is then impaired or would be impaired as a result of
such repurchase or such repurchase would otherwise violate the General
Corporation Law of the State of Delaware (each such occurrence being an
"Event"), WCP shall not be obligated to repurchase any of the Option Shares
from, or to make any payment with respect to the Options to, the Optionholder,
the Optionholder's Estate and/or the Optionholder's Trust, as the case may be
until the first business day which is five business days after all of the
foregoing Events have ceased to exist (the "Repurchase Eligibility Date"),
PROVIDED that (i) the Section 7 Repurchase Price shall be calculated as of the
time of the delivery of a Redemption Notice in accordance with Section 7(b) and
(ii) the number of Option Shares subject to repurchase under this Section 7(c)
and the number of Exercisable Option Shares (as defined in Section 10(a)) for
purposes of calculating the Option Excess Price payable under Section 7(a),
shall be that number of Option Shares and Exercisable Option Shares,
respectively, held by the Optionholder, the Optionholder's Estate or the
Optionholder's Trust, as the case may be, at the time of the delivery of a
Redemption Notice in accordance with Section 7(b). All Options exercisable as of
the date of a Redemption Notice shall continue to be
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exercisable until the repurchase pursuant to such Redemption Notice.
(d) Notwithstanding any other provision of this Section 7 to the
contrary, the Optionholder, the Optionholder's Estate or the Optionholder's
Trust, as the case may be, shall have the right to withdraw any Redemption
Notice which has been pending for 120 or more days and which has remained
unsatisfied because of the provisions of Section 7(c).
8. WCP'S RIGHT TO REPURCHASE OPTION SHARES AND TERMINATE OPTIONS OF
OPTIONHOLDER.
(a) If on or prior to the fifth anniversary of the Vesting date, (i)
the Optionholder's employment with WCP (and, if applicable, its Subsidiaries) is
voluntarily or involuntarily terminated for any reason whatsoever, with or
without Cause or Good Reason, (ii) the beneficiaries of an Optionholder's Trust
shall include any person or entity other than the Optionholder, his or her
spouse or his or her lineal descendants by blood or adoption, (iii) the
Optionholder shall effect a transfer of any of the Option Shares other than as
permitted by this Agreement or (iv) there shall occur a transfer of Option
Shares then held by the Optionholder pursuant to a bankruptcy proceeding, levy,
property settlement or disposition pursuant to law incident to marital
separation or divorce (alternatively, a "Call Event"), then WCP shall have the
right to purchase all, but not less than all, of the Option Shares then held by
the Optionholder, the Optionholder's Estate, the Optionholder's Trust, all
Pledgees and any other transferees at the Section 8 Repurchase Price determined
in accordance with Section 9 hereof; PROVIDED that the Call Event described in
clause (iv) of this Section 8 shall entitle WCP to repurchase only the number of
Option Shares that are the subject of the transfer resulting in the Call Event;
and PROVIDED, FURTHER, that if the Call Event results from the death, Permanent
Disability or Permitted Retirement of the Optionholder, or the termination of
the Optionholder's employment by the Optionholder with Good Reason or by the
Company without Cause, WCP shall have the right to purchase all, but not less
than all, of the Option Shares held by the Optionholder, the Optionholder's
Estate, the Optionholder's Trust and any Pledgee at the Section 7 Repurchase
Price. WCP shall have a period of 75 days after the date of a Call Event (or the
date of WCP's knowledge that a Call Event described in clause (ii) or (iii)
above has occurred) in which to give notice in writing to the Optionholder of
WCP's exercise of such repurchase election (the "Call Notice"). If (X) the
Optionholder holds Option Shares and Options and WCP exercises its right to
repurchase Option Shares pursuant to this Section 8 or (Y) the Optionholder
holds only Options and WCP elects (in accordance with the requirements of the
Call Notice), WCP shall also pay the Optionholder an amount equal to the Option
Excess Price determined on the basis of the Section 8 Repurchase Price or
Section 7 Repurchase Price, as applicable, with respect to the termination of
(A) if the Call Event is described in clause (i), (ii) or (iii) above, all, but
not less than all, of the then exercisable outstanding Options held by the
Optionholder and (B) if the Call Event is described in clause (iv) above, a PRO
RATA portion (based on the number of Option Shares that are the subject of the
transfer) of the then exercisable outstanding Options held by the Optionholder.
(b) Subject to Section 13 hereof, the completion of the purchases
pursuant to Section 8 (a) shall take place at the principal office of WCP on the
15th business day after the giving of
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notice of the exercise by WCP of its right to purchase Option Shares and/or to
terminate Options. All payments as described above shall be made by delivery to
the Optionholder, the Optionholder's Estate, the Optionholder's Trust and/or the
Pledgee, as the case may be, of a certified or bank check or checks in the
appropriate amounts payable to the order of the Optionholder, the Optionholder's
Estate, the Optionholder's Trust and/or the Pledgee, as the case may be, against
delivery of certificates or other instruments representing the Option Shares so
purchased and appropriate documents canceling the Options so terminated, in each
case appropriately endorsed or executed by the Optionholder, the Optionholder's
Estate, the Optionholder's Trust, the Pledgee or his or her or its duly
authorized representatives.
(c) Notwithstanding any other provision of this Section 8 to the
contrary and subject to Section 13, if there exists and is continuing any Event,
WCP shall delay the repurchase of any of the Option Shares or the Options
(pursuant to a Call Notice timely given in accordance with Section 8(a) hereof)
from the Optionholder, the Optionholder's Estate or the Optionholder's Trust, as
the case may be, until the Repurchase Eligibility Date; PROVIDED that (i) the
Section 8 Repurchase Price or the Section 7 Repurchase Price, as the case may
be, shall be calculated as of the time of the delivery of a Call Notice in
accordance with Section 8(a) and (ii) the number of Option Shares subject to
repurchase under this Section 8 and the number of Exercisable Option Shares for
purposes of calculating the Option Excess Price payable under this Section 8,
shall be the number of Option Shares and Exercisable Option Shares,
respectively, held by the Optionholder, the Optionholder's Estate or the
Optionholder's Trust, as the case may be, at the time of the delivery of a Call
Notice in accordance with Section 8(a). All Options exercisable as of the date
of a Call Notice shall continue to be exercisable until the repurchase pursuant
to such Call Notice.
(d) Notwithstanding any other provision of this Section 8 to the
contrary, WCP's right to purchase Option Shares and cancel Options pursuant to
this Section 8 shall terminate with respect to any Option Shares and Options
that have not been so repurchased or canceled on or before the 120th day after
the date of the Call Notice.
9. DETERMINATION OF REPURCHASE PRICE.
(a) The Section 7 Repurchase Price and the Section 8 Repurchase Price
are hereinafter collectively referred to as the "Repurchase Price." The
Repurchase Price shall be calculated on the basis of the unaudited financial
statements of the Company or the Market Price Per Share (as defined in Section
9(e)) as of the last day of the month preceding the month in which the event
giving rise to the repurchase occurs (the "Repurchase Calculation Date"). The
event giving rise to the repurchase shall be the transfer, death, Permanent
Disability, Permitted Retirement or termination of employment, or other event,
as the case may be, not the giving of any notice required pursuant to Section 7
or 8.
(b) The Section 7 Repurchase Price per Option Share shall be equal to
the greater of the Market Price Per Share and the Option Price Per Share.
(c) (i) If the Call Event results from the occurrence of an event
described in clauses (ii), (iii) or (iv) of Section 8(a), the Section 8
Repurchase Price per Option Share shall be
11
equal to the lesser of (x) the Market Price Per Share and (y) the
Option Price Per Share plus the product of (I) the Vested Percentage
(as defined in Section 6) and (II) the amount, if any, by which the
Market Price Per Share exceeds the Option Price Per Share.
(ii) If the Call Event results from the Optionholder's
voluntary termination of employment other than for Good Reason, the
Section 8 Repurchase Price per Option Share shall be equal to the
Market Price Per Share.
(iii) If the Call Event results from the Optionholder's
termination of employment by the Company with Cause, the Section 8
Repurchase Price per Option Share shall be equal to the lesser of the
Market Price Per Share and the Option Price Per Share.
(d) As used herein the term "Public Offering" shall mean the sale of
shares of Common Stock to the public pursuant to a registration statement under
the Act which has been declared effective by the Securities and Exchange
Commission (other than a registration statement on Form S-8 or any other similar
form) immediately after which sale an active trading market in the Common Stock
exists; PROVIDED that an active trading market in the Common Stock shall be
deemed to exist if the Common Stock is listed on the New York Stock Exchange,
the American Stock Exchange or the NASDAQ National Market System, but the
failure of the Common Stock to be so listed shall not PER SE be determinative as
to whether an active trading market does not exist.
(e) As used herein the term "Market Price Per Share" shall mean the
price per share equal to the average of the last sale price of the Common Stock
on each of the ten trading days prior to the Repurchase Calculation Date on each
exchange on which the Common Stock may at the time be listed and on which the
Common Stock traded on such date or, if there shall have been no sales on any of
such exchanges on any such trading day, the average of the closing bid and asked
prices on each such exchange at the end of each such trading day or, if there is
no such bid and asked price on such trading day, on the next preceding date when
such bid and asked price occurred or, if the Common Stock shall not be so
listed, the average of the closing sales prices as reported by NASDAQ at the end
of each of the ten trading days prior to the Repurchase Calculation Date in the
over-the-counter market. If the Common Stock is not so listed or reported by
NASDAQ, then the Market Price Per Share shall be the fair market value
established by the Board acting in good faith.
(f) As used herein the term "Aggregate Market Value" shall mean the
product of (i) the number of shares of Common Stock to be applied as payment of
the Exercise Price pursuant to Section 4(b)(iv)(B) and (ii) the Market Value Per
Share as of the payment date.
(g) In determining the Repurchase Price, appropriate adjustments shall
be made for any future issuances of rights to acquire and securities convertible
into Common Stock and any stock dividends, splits, combinations,
recapitalizations or any other adjustment in the number of shares of outstanding
shares of Common Stock.
10. SHARES ISSUED TO OPTIONHOLDER UPON EXERCISE OF OPTIONS; TERMINATION
OF OPTIONS.
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(a) All Options, whether or not then exercisable, shall be
automatically terminated to the extent that, pursuant to the provisions of this
Agreement, WCP shall pay the Optionholder an amount equal to the Option Excess
Price with respect to such Options. If the Option Excess Price is zero or a
negative number, all outstanding Options granted to the Optionholder, whether or
not then exercisable, shall be automatically terminated upon the repurchase of
any Option Shares pursuant to Section 7 or Section 8. For purposes hereof,
"Option Excess Price" shall mean the excess, if any, of the Section 7 Repurchase
Price or the Section 8 Repurchase Price, depending on which Repurchase Price is
(or would be) used to repurchase the Option Shares, over the exercise price
applicable to such Options multiplied by the number of Exercisable Option
Shares. For purposes hereof, "Exercisable Option Shares" shall mean the shares
of Common Stock which, at the time of determination, could be purchased by the
Optionholder upon exercise of his or her outstanding exercisable Options.
(b) Except as otherwise provided herein, the Options shall expire and
cease to be exercisable to any extent after the first to occur of the following
events:
(i) the tenth anniversary of the Vesting date; or
(ii) the date that is six months after the Optionholder's
termination of employment by reason of death, Permanent Disability or
Permitted Retirement; or
(iii) the first business day which is fifteen calendar days
after the earlier of (A) 75 days after the Optionholder's termination
of employment for any reason other than for Cause, Good Reason, death,
Permanent Disability or Permitted Retirement, or (B) the delivery of
notice by WCP that it does not intend to exercise its call right under
Section 8; PROVIDED that in any event the Options shall remain
exercisable under this Section 10 until at least 45 days after
termination of the Optionholder's employment for any reason other than
death, Permanent Disability, or Permitted Retirement; or
(iv) upon the occurrence of a Transfer Event (as hereinafter
defined) and upon payment to the Optionholder of an amount in cash
equal to the difference between (i) the product of (A) the Per Share
Consideration (as hereinafter defined) received in such Transfer Event
by a holder of Common Stock multiplied by (B) the number of Option
Shares for which the unexercised Options are then exercisable and (ii)
the aggregate Option Price Per Share for such unexercised Options which
are then exercisable. For the purposes of this Section 10, the term
"Per Share Consideration" shall mean the quotient of (x) the aggregate
consideration paid or to be paid (but only as and when received) in
respect of the Transfer Event to the holders of Common Stock of WCP, as
applicable, divided by (y) the number of outstanding shares of Common
Stock on a fully diluted basis (after giving effect to the exercise of
all outstanding options to acquire Common Stock to the extent then
exercisable); and the term "Transfer Event" shall mean any of a merger
or consolidation involving WCP, a sale or exchange of all or
substantially all of the assets of WCP, an acquisition by another
corporation or other entity of 80% or more of WCP's outstanding shares
of voting stock or the liquidation or dissolution of WCP.
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With respect to Options that are not exercisable, upon termination of
employment for any reason other than death, Permanent Disability, or
Permitted Retirement, as more fully set forth in Section 3(c) hereof.
11. WCP'S REPRESENTATIONS AND WARRANTIES.
(a) WCP represents and warrants to the Optionholder that (i) this
Agreement has been duly authorized, executed and delivered by WCP and (ii) the
Option Shares, when issued and delivered in accordance with the terms hereof,
will be duly and validly issued, fully paid and nonassessable.
(b) WCP shall file the reports required to be filed by it under the Act
and the Exchange Act to the extent required from time to time to enable the
Optionholder to sell Option Shares without registration under the Act within the
limitations of the exemptions provided by (i) Rule 144 under the Act, as such
Rule may be amended from time to time, or (ii) any similar rule or regulation
hereafter adopted by the SEC. Notwithstanding anything contained in this Section
11(b), WCP may deregister under Section 12 of the Exchange Act if it is then
permitted to do so pursuant to the Exchange Act and the rules and regulations
thereunder, and, upon such deregistration, shall be relieved of its obligations
to file reports pursuant to this Section 11(b). Nothing in this Section 11(b)
shall be deemed to limit in any manner the restrictions on sales of Option
Shares contained in this Agreement.
12. "PIGGYBACK" REGISTRATION RIGHTS.
(a) If WCP, in connection with any Public Offering, plans to register
any shares of Common Stock held by WCP Associates, L.P., APC Associates, L.P.,
GR Associates, L.P., KKR Partners II, L.P. or any other KKR Affiliate (as
defined below) (the "Institutional Investors") for public offering pursuant to
the Act, WCP will promptly notify the Optionholder in writing (a "Registration
Notice") of such proposed registration (the "Proposed Registration"). If within
ten business days of the receipt by the Optionholder of such Registration Notice
(and, in any event, within 15 business days after such Registration Notice is
sent by WCP), WCP receives from the Optionholder, the Optionholder's Estate or
the Optionholder's Trust a written request (a "Registration Request") to
register Option Shares held by the Optionholder, the Optionholder's Estate or
the Optionholder's Trust (which Registration Request will be irrevocable unless
otherwise mutually agreed to in writing by the Optionholder and WCP), Option
Shares will be so registered as provided in this Section 12; PROVIDED that for
each such Proposed Registration only one Registration Request, which shall be
executed by the Optionholder, the Optionholder's Estate or the Optionholder's
Trust, as the case may be, may be submitted for all Registrable Securities held
by the Optionholder, the Optionholder's Estate and the Optionholder's Trust,
respectively. All Option Shares acquired by the Optionholder pursuant to the
exercise of Options granted pursuant to this Agreement and held by the
Optionholder, the Optionholder's Estate or the Optionholder's Trust, including
shares purchased upon the exercise of Options, shall be deemed to be Registrable
Securities.
(b) The maximum number of Option Shares which will be registered
pursuant to a
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Registration Request will be the lowest of (i) the number of Option Shares then
held by the Optionholder (which for purposes of this subparagraph (b) shall
include shares held by the Optionholder's Estate or a Optionholder's Trust),
including all Option Shares which the Optionholder is then entitled to acquire
under an unexercised Option to the extent then exercisable (the "Maximum
Shares"), (ii) the Maximum Shares then held by the Optionholder multiplied by
the ratio of (A) the number of shares of Common Stock to be registered by the
Institutional Investors in the Proposed Registration to (B) the total number of
shares of Common Stock beneficially owned by all Institutional Investors and
(iii) the maximum number of shares which the Optionholder can register in the
public offering pursuant to any limits set by the managing underwriter for
inclusion in such public offering and agreed to in good faith by WCP.
(c) Except as may otherwise be provided in this Section 12, Option
Shares will be registered by WCP and offered to the public pursuant to this
Section 12 on the same terms and subject to the same conditions applicable to
registration in the Proposed Registration of shares held by an Institutional
Investor. Such terms and conditions shall include, without limitation: the
public offering price; the payment of fees, commissions and expenses; the
provision of, and representation and warranty as to, information requested by
WCP; and the provision of requisite indemnifications.
(d) Upon delivering a Registration Request, the Optionholder will, if
requested by WCP, execute and deliver a Custody Agreement and Power of Attorney
in form and substance satisfactory to WCP with respect to the Option Shares to
be registered pursuant to this Section 12 (a "Custody Agreement and Power of
Attorney"). The Custody Agreement and Power of Attorney will provide, among
other things, that the Optionholder, the Optionholder's Estate or the
Optionholder's Trust, as the case may be, will deliver to and deposit in custody
with the custodian and attorney-in-fact named therein a certificate or
certificates representing such Option Shares (duly endorsed in blank by the
registered owner or owners thereof or accompanied by duly executed stock powers
in blank) and irrevocably appoint said custodian and attorney-in-fact as the
Optionholder, the Optionholder's Estate's or the Optionholder's Trust's, as the
case may be, agent and attorney-in-fact with full power and authority to act
under the Custody Agreement and Power of Attorney on behalf of the Optionholder,
the Optionholder's Estate or the Optionholder's Trust, as the case may be, with
respect to the matters specified therein. The Optionholder agrees that he will
execute such other agreements as WCP may reasonably request to further evidence
the provisions of this Section 12.
13. CONTINUED EXERCISABILITY OF WCP'S RIGHT OR OBLIGATION TO
REPURCHASE. Notwithstanding anything to the contrary contained in Sections 7 and
8 hereof, if at any time consummation of all purchases and payments to be made
by the Company pursuant to this Agreement and the Other Stock Option Agreements
would result in an Event, then the Company shall make purchases from, and
payments to, the Optionholder and Other Optionholders pro rata (on the basis of
the proportion of the number of Option Shares and the number of Options each
such Optionholder and all Other Optionholders have elected or are required to
sell to the Company) for the maximum number of Option Shares and shall pay the
Option Excess Price for the maximum number of Options permitted without
resulting in an Event (the "Maximum Repurchase Amount"). The provisions of
Section 7(d) and 8(c) shall apply in their entirety to payments and repurchases
with respect to Options and Option Shares which may not be made
15
due to the limits imposed by the Maximum Repurchase Amount under this Section
13. Until all of such Options and Option Shares are purchased and paid for by
the Company, the Optionholder and the Other Optionholders whose Options and
Option Shares are not purchased in accordance with this Section 13 shall have
priority, on a pro rata basis, over other purchases of Options and Option Shares
by the Company pursuant to this Agreement and Other Stock Option Agreements.
14. RIGHT TO NEGOTIATE PURCHASE PRICE. Nothing contained in this
Agreement shall be deemed to restrict or prohibit WCP from purchasing Option
Shares and the Options from the Optionholder, the Optionholder's Estate or the
Optionholder's Trust, at any time, for such price upon such other terms and
conditions as may be mutually agreed upon between such parties, whether or not
at the time of such purchase circumstances exist which specifically grant WCP
the right to purchase, or the Optionholder, the Optionholder's Estate or the
Optionholder's Trust to sell, Option Shares and the Options under the terms of
this Agreement, and all such purchases shall be deemed to be in accordance with
the terms of this Agreement.
15. COVENANT REGARDING 83(B) ELECTION. EXCEPT AS WCP MAY OTHERWISE
AGREE IN WRITING, THE OPTIONHOLDER HEREBY COVENANTS AND AGREES THAT TO THE
EXTENT (IF ANY) APPLICABLE TO THE GRANT OR EXERCISE OF OPTIONS HEREUNDER, HE OR
SHE WILL MAKE AN ELECTION UNDER SECTION 83(B) OF THE CODE PURSUANT TO TREASURY
REGULATION SECTION 1.83-2 WITH RESPECT TO ANY OPTION SHARES ISSUED UPON EXERCISE
OF THE OPTIONS. THE OPTIONHOLDER FURTHER COVENANTS AND AGREES THAT HE OR SHE
WILL FURNISH WCP WITH COPIES OF THE FORM OF ANY SUCH ELECTION THE OPTIONHOLDER
FILES WITHIN 30 DAYS AFTER EACH EXERCISE OF ANY OF THE OPTIONS AND WITH EVIDENCE
THAT EACH SUCH ELECTION (IF ANY) HAS BEEN FILED IN A TIMELY MANNER.
16. NOTICE OF CHANGE OF BENEFICIARY. Immediately prior to any transfer
of Option Shares to the Optionholder's Trust, the Optionholder shall provide WCP
with a copy of the instruments creating the Optionholder's Trust and with the
identity of the beneficiaries of the Optionholder's Trust. The Optionholder
shall notify WCP immediately prior to any change in the identity of any
beneficiary of the Optionholder's Trust.
17. EXPIRATION OF CERTAIN PROVISIONS.
(a) The provisions contained in Sections 7 and 8 of this Agreement, and
the portions of other provisions of this Agreement which incorporates the
provisions of Sections 7 and 8, shall terminate and be of no further force or
effect with respect to any Option Shares which are permitted to be sold by the
Optionholder pursuant to this Agreement and which are sold by the Optionholder
(i) pursuant to an effective registration statement filed by the Company under
the Act or (ii) pursuant to Rule 144, as amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC.
(b) The provisions contained in Sections 5(f), 6, 7, 8 and 15 of this
Agreement, and the portion of any other provisions of this Agreement which
incorporate the provisions of any of such Sections, shall terminate and be of no
further force or effect upon the consummation of a Change of Control. For
purposes of this Section, "Change of Control" means the occurrence of any of the
following: (i) the sale, lease, transfer conveyance or other disposition (other
than by way of merger or consolidation), in one or a series of related
transactions, of all or substantially
16
all of the assets of the Company taken as a whole to any "person" or "group" (as
such terms are used in Sections 13(d)(3) of the Exchange Act) other than the
"KKR Affiliates" (as hereinafter defined), (ii) the adoption of a plan relating
to the liquidation or dissolution of WCP, (iii) the consummation of any
transaction (including, without limitation, any merger or consolidation) the
result of which is that any "person" (as defined above), other than the KKR
Affiliates, becomes the "beneficial owner" (as such term is defined in Rule
13d-3 and Rule 13d-5 under the Exchange Act), directly or indirectly, of more
than 50% of the voting stock of WCP, (iv) the consummation of the first
transaction (including, without limitation, any merger or consolidation) the
result of which is that any "person" (as defined above) becomes the "beneficial
owner" (as defined above), directly or indirectly, of more of the voting stock
of WCP than is at the time "beneficially owned" (as defined above) by the KKR
Affiliates. For purposes of this Agreement, "KKR Affiliate" shall mean any other
Person directly or indirectly controlling, controlled by, or under common
control with, Kohlberg Kravis Xxxxxxx & Co., L.L.P., its successors or assigns;
"Person" means an individual, partnership, corporation, business trust, joint
stock company, trust, unincorporated association, joint venture, governmental
authority or other entity of whatever nature, and "control" shall have the
meaning given such term under Rule 405 of the Act.
18. RECAPITALIZATION. (a) Except as otherwise provided herein, in the
event that the outstanding shares of the stock subject to Options are changed
into or exchanged for a different number or kind of shares of the Company or
other securities of the Company by reason of merger, consolidation,
recapitalization, reclassification, stock split-up, stock dividend or
combination of shares, the Committee shall make an appropriate and equitable
adjustment in the number and kind of shares as to which all outstanding Options,
or portions thereof then unexercised, shall be exercisable, to the end that
after such event the Optionholder's proportionate interest shall be maintained
as before the occurrence of such event. Such adjustment in an outstanding Option
shall be made without change in the total price applicable to the Option or the
unexercised portion of the Option (except for any change in the aggregate price
resulting from rounding-off of share quantities or prices) and with any
necessary corresponding adjustment in Option price per share. Any such
adjustment made by the Committee shall be final and binding upon the
Optionholder, the Company and all other interested persons.
(b) Except to the extent otherwise provided by Section 17 hereof, the
provisions of this Agreement shall apply, to the full extent set forth herein
with respect to the Option Shares and the Options, to any and all capital stock
of WCP and any partnership units, capital stock or other security evidencing
ownership interests in any successor or assign of WCP (whether by merger,
consolidation, sale of assets or otherwise) which may be issued in respect of,
in exchange for or in substitution of Option Shares and the Options, by reason
of any dividend, distribution, split, reverse split, combination,
recapitalization, liquidation, reclassification, merger, consolidation or
otherwise.
19. OPTIONHOLDER'S EMPLOYMENT BY THE COMPANY. Nothing contained in this
Agreement or in any other agreement entered into by the Company and the
Optionholder in connection with the execution of this Agreement (i) obligates
the Company to employ the Optionholder in any capacity whatsoever or (ii)
prohibits or restricts the Company from terminating the employment, if any, of
the Optionholder at any time or for any reason
17
whatsoever, with or without cause, and the Optionholder hereby acknowledges and
agrees that neither the Company nor any other person has made any
representations or promises whatsoever to the Optionholder concerning the
Optionholder's employment or continued employment by the Company except as
otherwise set forth in a separate written agreement between the Company and the
Optionholder.
20. STATE SECURITIES LAWS. WCP hereby agrees to use all reasonable
efforts to comply with all state securities or "blue sky" laws, which might be
applicable to the issuance of the Option Shares to the Optionholder.
21. BINDING EFFECT. The provisions of this Agreement shall be binding
upon and accrue to the benefit of the parties hereto and their respective heirs,
legal representatives, successors and assigns. In the case of a transferee
permitted under Section 5(b) hereof, such transferee shall be deemed to be the
Optionholder hereunder; PROVIDED that no transferee (including, without
limitation, any transferee referred to in Section 5(b) hereof) shall derive any
rights under this Agreement unless and until such transferee has delivered to
WCP a valid undertaking and becomes bound by the terms of this Agreement.
22. AMENDMENT. This Agreement may be amended only by a written
agreement or instrument signed by the Parties hereto; PROVIDED that WCP may, in
its discretion, amend this Agreement by a written agreement or instrument signed
only by WCP to reduce or eliminate any restriction on the sale, transfer or
other disposition of Option Shares.
23. CLOSING. Except as otherwise provided herein, the closing of each
purchase and sale of Option Shares and any outstanding Options pursuant to this
Agreement shall take place at the principal office of WCP on the 15th business
day following delivery of the notice by either Party to the other of its
exercise of the right to purchase or sell hereunder.
24. APPLICABLE LAW. The laws of the State of Delaware shall govern the
interpretation, validity and performance of the terms of this Agreement,
regardless of the law that might be applied under principles of conflicts of
law.
25. ASSIGNABILITY OF CERTAIN RIGHTS BY WCP. WCP shall have the right to
assign any or all of its rights or obligations to purchase Option Shares and any
outstanding Options pursuant to Sections 7 and 8 hereof.
26. PAYMENT BY WCP. If at any time WCP purchases Option Shares or any
outstanding Options from the Optionholder hereunder, and the Optionholder is
indebted to WCP in any amount whatsoever, WCP, in its sole discretion, may apply
all or any part of such indebtedness to the purchase price.
27. NOTICES. All notices and other communications necessary or
contemplated under this Agreement shall be in writing and shall be delivered in
the manner specified herein or, in the absence of such specification, shall be
deemed delivered when delivered in person or sent by first-class mail (certified
or registered mail, return receipt requested, postage prepaid), facsimile or
overnight air courier guaranteeing next day delivery, addressed as follows:
18
(a) If to WCP, to it at the following address:
World Color Press, Inc.
The Mill
000 Xxxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attn: Chief Legal Officer
(b) If to the Optionholder, to him or her at the following address:
Xxxxxx X. Xxxxxx
000 Xxxxxxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
28. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
29. SECTION HEADINGS. The section headings in this Agreement are for
convenience of reference only and shall not be deemed to alter or affect any
provision hereof
30. REMEDIES FOR VIOLATIONS. The Parties agree that they would be
irreparably damaged and that money damages would not be a sufficient remedy in
the event that the Parties do not follow this Agreement. In the event of any
such breach, the non-breaching Party shall be entitled, without being required
to post a bond or other security, to equitable relief (including, without
limitation, injunction and specific performance) as a remedy for such breach.
Such remedies shall not be deemed to be the exclusive remedies for any such
breach but shall be in addition to all other remedies available at law or equity
to the non-breaching Party.
19
31. DUTIES AND POWERS OF COMMITTEE. It shall be the duty of the
Committee to administer this Agreement in accordance with its provisions. The
Committee shall have the power to interpret this Agreement and the terms of the
Options granted hereunder. All actions taken and all interpretations and
determinations made by the Committee in good faith shall be final and binding
upon the Optionholder, Company, and all other interested persons.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first above written.
WORLD COLOR PRESS, INC.
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------
Xxxxxxxx X. Xxxxx
Vice Chairman
/s/ Xxxxxx X. Xxxxxx
------------------------------
Xxxxxx X. Xxxxxx
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