EXHIBIT 10.03
STOCK OPTION AGREEMENT
XXXXXX INDUSTRIES LTD.
This Stock Option Agreement ("Agreement") is made effective as of the
_______ day of February, 2005, between XXXXXX INDUSTRIES LTD., a
Bermuda company (the "Company"), and [Executive] ("Optionee").
W I T N E S S E T H:
1. Grant of Option. The Company hereby grants to Optionee, subject to the
terms and conditions [of the Plan and as] herein set forth, the right and option
to purchase from the Company all or any part of an aggregate of _____ shares of
Common Stock, par value $.001 per share (the "Common Stock"), of the Company at
the purchase price of [closing price on date of award] per share, such option to
be exercisable as hereinafter provided.
2. Terms and Conditions. The option evidenced hereby is subject to the
following terms and conditions:
(a) Expiration Date. The option shall expire _____________.
(b) Vesting of Options. The options shall vest _______________.
(c) Manner of Exercise and Payment of Purchase Price Upon Exercise. Any
option not exercised on any applicable vesting date may be exercised thereafter
at any time, in whole or in part, before the relevant expiration date of the
option. Any exercise shall be accompanied by a written notice to the Company
specifying the number of shares as to which the option is being exercised. If
the Optionee so requests, shares of Common Stock purchased upon exercise of an
option may be issued in the name of the Optionee or another person. At the time
of any exercise, Optionee shall deliver to the Company, together with the notice
provided in paragraph (b) above, the full amount of the purchase price therefore
payable either by bank cashier's check or certified check payable to the order
of the Company or in Common Stock delivered by the Optionee valued at the
Closing Price of such Common Stock, or any combination of cash or Common Stock
in the sole discretion of the Optionee. The term "Closing Price" shall be the
last sale price regular way on the date of exercise of the option or, in the
case no sale takes place on such date, the average of the high bid and low asked
prices regular way, in either case on the principal national securities exchange
in which the Common Stock is listed or admitted to trading or, if the shares of
Common Stock are not listed or admitted to trading on any such securities
exchange, the last sales price in the over-counter market as reported by NASDAQ
or such other system then in use. If the Common Stock is not traded such that
the Closing Price can be determined in accordance with the preceding sentence,
the Closing Price shall mean the fair market value of the Common Stock as of the
last day of the measuring period as determined by an independent investment
banker approved by the Company and the Optionee.
(d) Exercise Upon Termination of Employment. Any option granted hereunder
may be exercised by the Optionee, his heirs, devisees, legatees or assigns at
any time before the relevant expiration date, whether or not Optionee ceases to
be an employee and whether or not such employment is terminated by voluntary
written resignation, by action of the Company for cause, without cause, or by
reason of death or disability, or termination for any other reason whatsoever,
with respect to all options as to which his right of exercise has vested as
provided for in paragraph (b) or as to which his right of exercise shall vest in
accordance with other provisions of this Agreement or otherwise. In the event of
a termination of employment for any reason, except by the Company for cause or
by voluntary resignation by Optionee, all unvested options granted under this
Agreement shall be immediately exercisable as of the date of his termination of
his employment without regard to the installment provision set forth in
paragraph (b) above. The term "for cause" shall have the same meaning as in
section 1(h) of the Optionee's Employment Agreement effective October 1, 1996.
Notwithstanding anything to the contrary in any plan, policy or other document,
Section 2(d) of this agreement shall exclusively govern the rights of exercise
with respect to options upon termination.
(e) Transferability. This option may be transferred by the Optionee at any
time, with the consent of the Company, which shall not be unreasonably withheld;
provided however, Section 2(d) of this Agreement shall be applied based on the
Optionee and his status and not that of any assignee.
(f) Adjustments. In the event of a reorganization, recapitalization, stock
split, stock dividend, Extraordinary Dividend (as defined below), combination of
shares, consolidation, merger (other than a merger or consolidation which does
not result in any reclassification, conversion, exchange or cancellation of
outstanding shares), any sale or transfer by the Company of all or substantially
all of its assets or any tender offer or exchange offer for or the acquisition,
directly or indirectly, by any person or group of all or a majority of the then
outstanding voting securities of the Company, rights offering, or any other
change in the corporate structure or rights with respect to any shares of the
Company, adjustments shall be made to the number or type of stock subject to
this Agreement and, in order to prevent dilution or enlargement of the rights of
Optionee, to the number of Options, and the type and option price of stock
subject to outstanding Options or as provided below with respect to
Extraordinary Dividend. In the case of an Extraordinary Dividend, the Optionee
shall be entitled to have distributed to him upon the exercise of any portion of
the option an amount equal to the Extraordinary Dividend he would have received
had he exercised such portion of the option immediately prior to the declaration
of the Extraordinary Dividend. For this purpose, an "Extraordinary Dividend"
shall mean any dividend or dividends paid or declared in the twelve month period
immediately prior to the day after any such declaration in excess in the
aggregate of 7% of the average Closing Price of the Common Stock during such
period.
(g) Withholding of Taxes. No stock may be granted or option may be
exercised unless the Optionee has paid, or has made provision, satisfactory to
the Committee for payment of, federal, state and local income taxes, or any
other taxes (other than stock transfer taxes) which the Company may be obligated
to collect as a result of the issue or transfer of shares of Stock upon exercise
of an option. The Optionee may elect that shares of Common Stock can be applied
towards the payment of withholding taxes.
3. Treatment of Options as Non-Qualified Stock Options. The Company and
Optionee acknowledge that the stock options granted hereunder shall be treated
as non-qualified stock options for U.S. federal income tax purposes.
4. Registration, Listing and Qualification of Shares of Stock.
(a) Registration. The Company, within six months of the date any option
granted pursuant to this Agreement first becomes vested and exercisable, shall
register all the shares underlying the options on a Registration Statement on
Form S-8 ("S-8"). The Company shall also prepare and file a Form S-3 prospectus
with such S-8.
(b) Listing. The Company, within six months of the date any option granted
pursuant to this Agreement first becomes vested and exercisable, shall list all
the shares underlying the options on the American Stock Exchange with an
Additional Listing Application.
(c) Qualification. The Company may require Optionee to furnish to the
Company, prior to the issuance of any shares upon the exercise of all or any
part of this option, an agreement in which Optionee acknowledges the status of
the shares and the conditions and the restrictions, if any, upon their sale or
distribution under the applicable securities laws.
5. Notices. Any notice hereunder to the Company shall be addressed to it at
its office as follows: Attn: Corporate Secretary. Any notice hereunder to
Optionee shall be addressed to him at [home address]. Either party may designate
at any time hereafter in writing some other address.
6. Binding Agreement. This Agreement constitutes the binding agreement of
the parties with respect to the grant of options specified herein to the
Optionee. Notwithstanding any discretionary authority possessed by the
Compensation Committee under the Plan or the Company to impose other terms or
conditions on the grant or exercise of options, no additional terms or condition
(other than those expressly stated in this Agreement) may be imposed by the
unilateral action of the Compensation Committee or the Company. This Agreement
may not be modified except by the mutual agreement of the parties in writing. In
the event of any overlap, inconsistency, contradiction or any other conflict
between this Agreement and any other agreement, option plan, policy or other
statement, this Agreement shall be controlling.
7. No Termination or Amendment. No termination or amendment of the Plan by
the Company, without the consent of Optionee, shall adversely affect the rights
of Optionee with respect to any option granted under this Agreement.
8. Governing Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first written above.
XXXXXX INDUSTRIES LTD.
By:
----------------------------------------
----------------------------------------
[EXECUTIVE]
