EXHIBIT 10.24
FORM OF
STOCK OPTION AGREEMENT
(NEW OPTIONS)
STOCK OPTION AGREEMENT (this "Option Agreement") entered into as of ______,
2004 by and between MAAX Holdings, Inc., a Delaware corporation (the "Company"),
and ________________________ (the "Optionee").
WHEREAS, the Company has decided to grant the Optionee a nonqualified stock
option to acquire shares of the Company's common stock, US$0.01 par value per
share ("Shares"), in accordance with the MAAX Holdings, Inc. 2004 Stock Option
Plan (the "Plan"); and
WHEREAS, the Optionee desires to accept such option subject to the terms
and conditions of this Option Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the Company and the Optionee,
intending to be legally bound, hereby agree as follows (capitalized terms used
but not defined herein shall have the meanings set forth in the Plan):
1. Grant of Option. As of ______, 2004 (the "Grant Date"), the Company
grants to the Optionee an option (the "Option") to purchase, on the terms and
conditions set forth herein, all (or any part) of _____________ Shares. This
Option is not intended to be an incentive stock option under Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code").
2. Exercise Price. The exercise price ("Exercise Price") for the Shares
covered by the Option shall be US$16.56 per share.
3. Exercisability.
(a) Six percent (6%) of the total number of Options shall become
exercisable on the first anniversary of the Grant Date and on each of the
following four anniversaries, provided that Optionee is still an Employee or
Consultant on such date. For avoidance of doubt, unless otherwise terminated in
accordance with the terms of this Option Agreement and the Plan, six percent
(6%) of the total number of available Options shall become exercisable on _____,
2005, 2006, 2007, 2008 and 2009, respectively, pursuant to this subsection
3(a).
(b) Fourteen percent (14%) of the total number of Options shall be
available to become exercisable in each of fiscal years 2005 through 2009 and
shall become exercisable upon the Company's attainment of the Equity Value
Targets set forth on Schedule I attached hereto and incorporated herein. For the
avoidance of doubt, if all of the Equity Value Targets set forth on Schedule I
attached hereto are met or exceeded, then an aggregate of seventy percent (70%)
of the
total number of available Options shall become exercisable following the
applicable Equity Value Target time periods pursuant to this subsection 3(b).
(c) Upon a Change in Control (as defined in Schedule II attached
hereto) if the Optionee is an Employee or Consultant, all Options subject to
subsection 3(a) above which are not then exercisable shall become exercisable.
4. Term of Options.
(a) Each Option shall expire on the tenth anniversary of the Grant
Date, unless terminated earlier pursuant to subsections 4(b) or 4(c) below.
(b) If the Optionee is terminated at any time from his or her
employment/consultancy with the Company or any of its Subsidiaries for Cause (as
defined in Schedule II attached hereto) or voluntarily terminates his
employment/consultancy with the Company or any of its Subsidiaries without Good
Reason (as defined in Schedule II attached hereto), the Option shall terminate
on the date of such termination of employment/consultancy, whether or not then
fully exercisable.
(c) If the Optionee dies or is Disabled (as defined in Schedule II
attached hereto) while an Employee/Consultant, is terminated without Cause or
terminates for Good Reason, any portion of the Option that is not then fully
exercisable shall terminate immediately; provided, however, that the Committee
shall have the discretion to make exercisable any portion of the Option that is
not then exercisable. Any portion of the Option that is then exercisable shall
terminate on the 365th day following such termination of employment/consultancy,
unless otherwise extended by the Committee in its sole discretion; provided,
however, that in the event a division of the Company is divested, the Chief
Executive Officer of the Company may recommend to the Committee that it waive
such exercise period with respect to any Optionee employed by such division at
the time of the divestiture and the Committee shall review such recommendation
taking into consideration the contributions made by such Optionee to the
performance of the divested division and the sale thereof.
5. Manner of Exercise of Option.
(a) The Optionee may exercise the Option or any portion thereof by
giving written notice to the Company stating the number of Shares (which shall
not be less than 100, unless the total Shares purchased would constitute the
total number of Shares remaining subject to the Option) to be purchased and
accompanied by payment in full of the Exercise Price for such Shares. Payment
shall be in cash by wire transfer of immediately available funds to an account
specified by the Company by a certified or bank cashier's check payable to the
Company. Upon payment, delivery of a certificate for paid-up, non-assessable
Shares shall be made at the principal office of the Company to the Optionee (or
the person entitled to exercise the Option pursuant to Section 7), not more than
10 days from the date of receipt of the notice by the Company.
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(b) Notwithstanding Section 5(a) of this Option Agreement, the Company
may delay the issuance of Shares covered by the Option and the delivery of a
certificate for such Shares until one of the following conditions is satisfied:
(i) the Shares purchased pursuant to the Option are at the time of the issuance
of such Shares effectively registered or qualified under applicable federal and
state securities laws or (ii) such Shares are exempt from registration and
qualification under applicable federal and state securities laws.
6. Administration. This Option Agreement shall be administered by the
Committee pursuant to the Plan. The Committee shall be authorized to interpret
this Option Agreement and to make all other determinations necessary or
advisable for the administration of this Option Agreement, which determinations
shall be final, binding and conclusive. The Secretary or an Assistant Secretary
of the Company shall be authorized to implement this Option Agreement in
accordance with its terms and to take such actions of a ministerial nature as
shall be necessary to effectuate the intent and purposes thereof.
7. Non-Transferability. Subject to the terms of the Stockholders Agreement,
the right of the Optionee to exercise the Option as and when exercisable shall
not be assignable or transferable other than by will or the laws of descent and
distribution, and shall be exercisable during the lifetime of the Optionee only
by him (or his legal representative or guardian in the event that the Optionee
is Disabled). Any other transfer shall be null and void and without effect,
except as hereinabove provided, including, without limitation any purported
assignment, whether voluntary or by operation of law, pledge, hypothecation or
other disposition contrary to the provisions hereof, or levy of execution,
attachment, trustee process or similar process, whether legal or equitable, upon
the Option.
8. Representation Letter and Investment Legend.
(a) In the event that for any reason the Shares to be issued upon
exercise of an Option are not effectively registered under the Securities Act,
on the date of exercise, the Optionee (or the person exercising the Option
pursuant to Section 7) shall provide a written representation to the Company in
the form attached hereto as Exhibit A, and the Company shall place the legend
described on Exhibit A, upon any certificate for the Shares issued by reason of
such exercise.
(b) The Company shall be under no obligation to qualify Shares or to
cause a registration statement or a post-effective amendment to any registration
statement to be prepared for the purposes of covering the issue of Shares;
provided, that the Company will use its reasonable best efforts to comply with
any available exemption from registration and qualification of the Shares under
applicable federal and state securities laws.
9. Adjustments upon Changes in Capitalization.
(a) In the event that the outstanding Shares are changed into or
exchanged for a different number or kind of shares or other securities of the
Company or of another corporation by reason of any reorganization, merger,
consolidation, recapitalization, reclassification, stock split-up, combination
of shares, or dividends payable in capital stock, appropriate adjustment shall
be made
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in the number and kind of shares, and the Exercise Price therefor, as to which
the Option, to the extent not theretofore exercised, shall be exercisable.
(b) Unless otherwise determined by the Committee in its sole
discretion, in the event of a Change in Control (as hereinafter defined) of the
Company, the purchaser(s) of the Company's assets or stock may, in his, her or
its discretion, deliver to the Optionee, to the extent that the Option has
become exercisable, the same kind of consideration (net of the Exercise Price
for such Shares) that is delivered to the stockholders of the Company as a
result of the Change in Control, or the Committee may, in its sole discretion,
cancel the Option, to the extent not theretofore exercised, in exchange for
consideration in cash or in kind, which consideration in either case shall be
equal in value to the value of those shares of stock or other consideration the
Optionee would have received had the Option been exercised (to the extent the
Option has become exercisable but not been exercised) and no disposition of the
Shares acquired upon such exercise been made prior to the Change in Control,
less the Exercise Price therefor. Upon receipt of such consideration by the
Optionee, the Option shall immediately terminate and be of no further force and
effect, with respect to both exercisable and unexercisable portions thereof. The
value of the stock or other securities the Optionee would have received if the
Option had been exercised shall be determined in good faith by the Committee. In
addition, in the event of a Change in Control, the Committee may, in its sole
discretion, accelerate the exercisability of all or any portion of the Option
that would remain unexercisable after the application of the accelerated
exercisability on Schedule I hereto and Section 3 hereof. A "Change in Control"
shall be deemed to have occurred if (i) any person, or any two or more persons
acting as a group, and all affiliates of such person or persons (a "Group") who
prior to such time beneficially owned less than 50% of the then outstanding
capital stock of the Company shall acquire shares of the Company's capital stock
in one or more transactions or series of transactions, including by merger, and
after such transaction or transactions such person or Group and affiliates
beneficially own 50% or more of the Company's outstanding capital stock, or (ii)
the Company shall sell all or substantially all of its assets to any Group
which, immediately prior to the time of such transaction, beneficially owned
less than a majority of the then outstanding capital stock of the Company.
(c) Upon dissolution or liquidation of the Company, the Option shall
terminate, but the Optionee (if at such time still an Employee or Consultant)
shall have the right, immediately prior to the filing of a certificate of
dissolution or liquidation, to exercise any then exercisable Options.
(d) No fraction of a Share shall be purchasable or deliverable upon
the exercise of the Option, but in the event any adjustment hereunder of the
number of shares covered by the Option shall cause such number to include a
fraction of a share, such fraction shall be adjusted to the nearest smaller
whole number of shares.
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10. No Employment Rights Conferred. Nothing contained in this Option
Agreement shall be construed or deemed by any person under any circumstances to
bind the Company or any of its Subsidiaries to continue the
employment/consultancy of the Optionee for the period within which this Option
may be exercisable or for any other period.
11. Rights as a Stockholder. The Optionee shall have no rights as a
stockholder with respect to any Shares which may be purchased upon the
exercisability of this Option unless and until a certificate or certificates
representing such Shares are duly issued and delivered to the Optionee. Except
as otherwise expressly provided herein, no adjustment shall be made for
dividends or other rights for which the record date is prior to the date the
stock certificate is issued.
12. Withholding Taxes. The Optionee hereby agrees, as a condition to any
exercise of the Option, to provide to the Company an amount sufficient to
satisfy its obligation to withhold federal, state and local taxes arising by
reason of such exercise (the "Withholding Amount"), if any, by (a) authorizing
the Company to withhold the Withholding Amount from his cash compensation, or
(b) remitting the Withholding Amount to the Company in cash; provided that, to
the extent that the Withholding Amount is not provided by one or a combination
of such methods, the Company may at its election withhold from the Shares
delivered upon exercise of the Option that number of Shares having a fair market
value (in the good faith judgment of the Committee) equal to the Withholding
Amount.
13. Execution of Stockholders Agreement. The Optionee acknowledges that he
has previously executed and delivered the Stockholders Agreement. The Optionee
further agrees that this Option Agreement, the Option and all Shares acquired by
him upon exercise of the Option will be subject to the terms and conditions of
the Stockholders Agreement, as the same may be amended or modified in accordance
with its terms, and that such Option and Shares may be acquired by the Company
in accordance with the terms thereof.
14. Governing Law. This Option Agreement shall be governed by the laws of
the State of Delaware, without regard to any conflicts of law principles thereof
that would call for the application of the laws of any other jurisdiction. Any
action or proceeding seeking to enforce any provision of, or based on any right
arising out of, this Option Agreement may be brought against either of the
parties in the courts of the State of Delaware, or if it has or can acquire
jurisdiction, in the United States District Court for the District of Delaware,
and each of the parties hereby consents to the jurisdiction of such courts (and
of the appropriate appellate courts) in any such action or proceeding and waives
any objection to venue laid therein. Process in any action or proceeding
referred to in the preceding sentence may be served on any party anywhere in the
world, whether within or without the State of Delaware.
15. Incorporation of Terms of Plan. This Option Agreement shall be
interpreted under, and in accordance with, all of the terms and provisions of
the Plan, which are incorporated herein by reference.
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[Signatures on Following Page]
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STOCK OPTION AGREEMENT
(New Options)
Counterpart Signature Page
IN WITNESS WHEREOF, the Company has caused this Option Agreement to be
executed, by its officer thereunto duly authorized, and the Optionee has
executed this Option Agreement, all as of the day and year first above written.
MAAX HOLDINGS, INC. OPTIONEE
By:
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Name: Name:
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Title:
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Address:
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Telecopier Number:
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Social Security Number:
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SCHEDULE I
TARGET VESTING SCHEDULE
(a) For each of the Company's fiscal years ending February 28th or
29th in the years 2005 through 2009, fourteen percent (14%) of the total Option
shall become exercisable if the Company achieves an equity value ("Equity
Value") for such fiscal year that equals or exceeds the Equity Value Targets set
forth below, as determined in the audit of the Company and its Subsidiaries'
consolidated financial statements for such fiscal year.
Fiscal Year Equity Value Target
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(in millions)
2005 US$172
2006 US$272
2007 US$383
2008 US$502
2009 US$639
If the Equity Value is less than the Equity Value Target in any fiscal year,
then the portion of the Option that shall become exercisable for such fiscal
year will be the product of (A) fourteen percent (14%) of the total Option,
multiplied by (B) the quotient (which shall in no event be greater than 1.00) of
(I) the excess (if any, and not less than zero) of the Equity Value for the
applicable fiscal year over 90% of the Equity Value Target for such fiscal year
divided by (II) the excess of the Equity Value Target for such fiscal year over
90% of such Equity Value Target.
For purposes hereof, Equity Value for any fiscal year shall be calculated
by the following formula: [(7.0 x EBITDA) - D+C] where
D = the aggregate amount of the Company's Consolidated
Indebtedness at fiscal year end; provided, however, that the
amount of any revolving loan included in the Consolidated
Indebtedness shall be the average amount outstanding on
the last day of each month during the 12 months prior to the
fiscal year-end
C = the Company's Excess Cash at fiscal year-end
EBITDA = EBITDA for such fiscal year
The calculation of Equity Value for any fiscal year will be adjusted such that
income statement and balance sheet items originally denominated in Canadian
dollars will be translated into U.S. dollars at a fixed exchange rate of C$1.38
per US$1.00. Management shall provide to the Company's board of directors
financial statements for the subsidiaries of the Companies that report their
results in Canadian dollars which correspond to the audited financial statements
for
SCHEDULE I-1
the applicable fiscal year. Such financial statements shall be accompanied by an
analysis prepared by management that reconciles the difference, if any, between
the Equity Value calculations based on the aforementioned fixed exchange rate
and the equity value calculations based on the exchange rate used for the
audited financial statements for the applicable fiscal year.
Upon the Company making an acquisition or disposition of any material line of
business, or making any other material changes, the Committee shall use its good
faith judgment to adjust the Equity Value Targets set forth above for the fiscal
years ending after the occurrence of such event.
(b) In any fiscal year in which the Company achieves the Equity Value
Target, all Options described in subsection 3(b) of the Agreement (the "Target
Vesting Options") which had been available to become exercisable in prior fiscal
years, but failed to become exercisable because the Equity Value Targets were
not met in such fiscal years, shall vest.
(c) In the event a Change in Control occurs before the end of the
fiscal year ending February 28, 2009, and the Optionee is still
employed/retained by the Company or any of its Subsidiaries at such time, any
Target Vesting Options that had not yet become eligible to become exercisable
prior to such Change in Control shall become exercisable to the same extent and
in the same percentage as the percentage of Target Vesting Options that had
previously become exercisable bears to the percentage of Target Vesting Options
that were eligible to become exercisable in all preceding fiscal years (e.g., if
50% of the Target Vesting Options that were eligible to become exercisable prior
to the Change in Control had become exercisable prior to the Change in Control,
then 50% of the Target Vesting Options which would be eligible to become
exercisable after the Change in Control, would become exercisable upon the
Change in Control).
(d) In the event the Company acquires or merges with any other company
and such acquisition or merger does not constitute a Change in Control of the
Company, the board of directors (or committee thereof) of the Company or its
successor shall have the right to adjust the Equity Values set forth above for
such periods ending after the date of such acquisition or merger to take into
account the additional EBITDA, Excess Cash and the Consolidated Indebtedness
expected to be generated or contributed by the recently acquired business after
the date of such transaction.
(e) In the event that on or prior to February 28, 2009, X.X. Childs
Equity Partners III, L.P. ("Childs"), Borealis Private Equity Limited
Partnership, Borealis (QLP) Private Equity Limited Partnership and Ontario
Municipal Employees Retirement Board and their affiliates (collectively, the
"Sponsors") each receive a net cash return (after dilution from all options) on
their total investment in the Company resulting in an amount of cash equal to or
greater than four times their respective total investments in the Company (e.g.,
if the Sponsors' total investment in the Company equals $100 and the Sponsors
receive net cash proceeds equal to or greater than $400), then all of the Target
Vesting Options shall become exercisable.
SCHEDULE I-2
(f) Notwithstanding any of the foregoing, provided that (i) Optionee
shall continue to be an Employee or Consultant of the Company or a Subsidiary
thereof, and (ii) the Company shall not have (a) merged or consolidated with an
unaffiliated entity, whether or not the Company is the surviving entity, or (b)
liquidated or sold or otherwise disposed of all or substantially all of its
assets to an unaffiliated entity or (c) been subject to a Change in Control (as
defined in the Plan), then any Options subject to subsection 3(b) of the
Agreement which are not exercisable by the eighth (8th) anniversary of the Grant
Date, shall become exercisable on such date.
For purposes of this Schedule I, the following terms have the following
meanings:
"Consolidated Indebtedness" shall mean, as of any date, the aggregate
amount, without duplication, of (i) indebtedness on a consolidated basis
(excluding accrued expenses and trade payables), whether or not contingent, of
the Company and its Subsidiaries (a) in respect of borrowed money; (b) evidenced
by bonds (excluding performance bonds and bid bonds), notes, debentures or
similar instruments or letters of credit (or reimbursement agreements in respect
thereof); (c) in respect of bankers' acceptances; (d) representing capital lease
obligations; and (e) representing the balance deferred and unpaid of the
purchase price of any property or services due more than six months after such
property is acquired or such services are completed, except any such balance
that represents an accrued expense or trade payable, if and to the extent any of
the preceding items (other than letters of credit) would appear as a liability
upon a balance sheet of the Company and its Subsidiaries prepared in accordance
with U.S. generally accepted accounting principles, and (ii) all indebtedness of
others secured by a lien on any asset of the Company or its Subsidiaries
(whether or not such indebtedness is assumed by the Company or its
Subsidiaries), but only to the extent that the aggregate amount of such
indebtedness does not exceed the fair market value of the asset, and, to the
extent not otherwise included, the guarantee by the Company or any of its
Subsidiaries of any indebtedness of any other Person; provided, however, that in
no event will obligations or liabilities in respect of any capital stock
constitute indebtedness hereunder.
"EBITDA" shall mean, for any period, an amount determined for the Company
and its Subsidiaries on a consolidated basis, equal to (i) consolidated net
income as determined in accordance with U.S. generally accepted accounting
principles for such period, plus (ii) the sum, without duplication, of the
amounts for such period (in each case to the extent reducing such consolidated
net income) of (a) consolidated interest expense; (b) provisions for taxes based
on income; (c) total depreciation expense; (d) total amortization expense; (e)
other non-cash items reducing such consolidated net income (excluding any such
non-cash item to the extent that it represents an accrual or reserve for
potential cash items in any future period or amortization of a prepaid cash item
that was paid in a prior period); (f) any after-tax losses attributable to asset
sales (other than inventory in the ordinary course of business) or returned
surplus assets of any pension plan and any extraordinary losses; (g) relocation
costs and expenses incurred to move the headquarters of the Company and its
Subsidiaries from Sainte-Xxxxx, Canada to Montreal, Canada; (h) costs and
expenses incurred during the fiscal year ending February 28, 2005 in connection
with, and on or prior to the consummation of, the transactions contemplated by
the Merger Agreement dated as of March 10, 2004 among 3087052 Nova Scotia
Company, 3087053
SCHEDULE I-3
Nova Scotia Company, 0000-0000 Xxxxxx Inc., 0000-0000 Xxxxxx Inc. and MAAX Inc.;
(i) restructuring expenses associated with plant closures and rationalizations
that are authorized by the board of directors of the Company; (j) cash gains
realized under currency agreements; (k) minority interest (if negative) with
respect to any Subsidiary of the Company; and (l) Consulting Fees as defined in
the Management Agreement, dated as of June 4, 2004, among the Company, MAAX
Corporation, X.X. Childs Associates, L.P., Borealis Capital Corporation and the
Ontario Municipal Employees Retirement Board; minus (iii) the sum, without
duplication, of the amounts for such period (in each case to the extent
increasing such consolidated net income) of (a) non-cash items increasing such
consolidated net income (excluding any such non-cash item to the extent it
represents the reversal of an accrual or reserve for potential cash item in any
prior period); (b) any after-tax gains attributable to asset sales (other than
inventory in the ordinary course of business) or returned surplus assets of any
pension plan and any extraordinary gains, (c) cash losses realized under
currency agreements; and (d) minority interest (if positive) with respect to any
Subsidiary of the Company.
"Excess Cash" shall mean the amount of cash and cash equivalents of the
Company and its Subsidiaries as of the end of the period for which EBITDA is
calculated which is not required to fund the day-to-day operations of the
Company and its Subsidiaries, as reasonably determined by the board of directors
of the Company in good faith.
SCHEDULE II
Definitions Applicable to
Stock Option Agreement
1. "Cause," shall have the meaning set forth in the executed written
employment agreement, offer letter or term sheet between the Optionee and the
Company (or a Subsidiary thereof) or, in the absence of such employment
agreement, offer letter or term sheet (or if not defined therein), the
occurrence of any of the following during the term of the Optionee's employment
or consultancy with the Company (or a Subsidiary thereof):
(a) Optionee's dishonesty, theft or fraud in connection with the
performance of his or her duties;
(b) Optionee's continued failure to perform substantially his duties
(other than as a result of a disability), which failure is not cured within 30
days of receipt of written notice thereof from the Company or a Subsidiary
thereof;
(c) Optionee's conviction of, or entering a plea of guilty or nolo
contendere to, a crime that constitutes a felony or a misdemeanor involving
moral turpitude;
(d) any willful act or omission on Optionee's part which is materially
injurious to the financial condition or business reputation of the Company or
any of its Subsidiaries;
(e) Optionee's breach of any material covenant or provision contained
in (i) Optionee's employment agreement, if any, or (ii) the Stockholders
Agreement, which breach is not cured within 30 days of receipt of written notice
thereof from the Company or a Subsidiary thereof;
(f) the Company, after reasonable investigation, finds that Optionee
has violated material written policies and procedures of the Company, including,
but not limited to, policies and procedures pertaining to harassment or
discrimination;
(g) a failure or refusal by Optionee to comply with a written
directive from the Committee (unless such directive represents an illegal act);
(h) a confirmed positive illegal drug test result for Optionee; or
(i) the discovery of outstanding indebtedness for borrowed money
incurred during the term by the Company or any of its Subsidiaries in favor of
Optionee which was not approved by the Committee prior to such incurrence.
2. "Disabled," shall have the meaning set forth in the executed written
employment agreement, offer letter or term sheet between the Optionee and the
Company (or a Subsidiary thereof) or, in the absence of such employment
agreement, offer letter or term sheet (or if not defined therein), the Optionee
shall be deemed to have become "Disabled" if, during the term of the Optionee's
employment or consultancy with the Company (or a Subsidiary thereof), the
Optionee shall become physically or mentally disabled, whether totally or
partially, either permanently or so that the Optionee, in the good faith
judgment of the Committee, is unable substantially and competently to perform
his duties on behalf of the Company (or a Subsidiary thereof) for a period of
180 consecutive days or for 180 days during any one year period during the term
of employment or consultancy. In order to assist the Committee in making that
determination, the Optionee shall, as reasonably requested by the Committee, (i)
make himself available for medical examinations by one or more physicians chosen
by the Committee and (ii) grant any such physicians access to all relevant
medical information concerning him or arrange to furnish copies of all relevant
medical records to such physicians chosen by the Committee.
3. "Good Reason," shall have the meaning set forth in the executed written
employment agreement, offer letter or term sheet between the Optionee and the
Company (or a Subsidiary thereof) or, in the absence of such employment
agreement, offer letter or term sheet (or if not defined therein), "Good Reason"
shall be deemed to have occurred if, other than for Cause, during the term of
the Optionee's employment or consultancy with the Company (or a Subsidiary
thereof) the Optionee's base salary is reduced, other than in connection with an
across the board reduction of executive compensation imposed by the Committee on
management employees in response to negative financial results or other adverse
circumstances affecting the Company or its Subsidiaries.
4. "Person" shall mean an individual, corporation, partnership, limited
liability company, trust, unincorporated association, government or any agency
or political subdivision thereof, or any other entity.
5. "Subsidiary" with respect to any Person (the "parent") shall mean any
Person of which such parent, at the time in respect of which such term is used,
(a) owns directly or indirectly more than 50% of the equity or beneficial
interest, on a consolidated basis, or (b) owns directly or controls with power
to vote, indirectly through one or more Subsidiaries, shares of capital stock or
beneficial interest having the power to cast at least a majority of the votes
entitled to be cast for the election of directors, trustees, managers or other
officials having powers analogous to those of directors of a corporation. Unless
otherwise specifically indicated, when used herein, the term Subsidiary shall
refer to a direct or indirect Subsidiary of the Company.
EXHIBIT A
TO STOCK OPTION AGREEMENT
Gentlemen:
In connection with the purchase by me of ___________________ shares of
common stock, US$0.01 par value per share, of MAAX Holdings, Inc., a Delaware
corporation (the "Company") under the nonqualified stock option granted to me
pursuant to that certain Stock Option Agreement dated ______, 2004 (the "Option
Agreement"), I hereby acknowledge that I have been informed as follows:
1. The shares of common stock of the Company to be issued to me upon
exercise of said option have not been registered under the Securities Act of
1933, as amended (the "Act"), and accordingly, must be held indefinitely unless
such shares are subsequently registered under the Act, or an exemption from such
registration is available.
2. Routine sales of securities made in reliance upon Rule 144 under the Act
can be made only after the holding period and in limited amounts in accordance
with the terms and conditions provided by that Rule, and with respect to which
that Rule is not applicable, registration or compliance with some other
exemption under the Act will be required.
3. The Company is under no obligation to me to register the shares or to
comply with any such exemptions under the Act, other than as set forth in the
Stockholders Agreement referenced and defined in paragraph 13 of the Option
Agreement (the "Stockholders Agreement").
4. The availability of Rule 144 is dependent upon adequate current public
information with respect to the Company being available and, at the time that I
may desire to make a sale pursuant to the Rule, the Company may neither wish nor
be able to comply with such requirement.
5. The shares of common stock of the Company to be issued to me upon the
exercise of said option are subject to the terms and conditions, including
restrictions on transfer, of the Stockholders Agreement.
In consideration of the issuance of certificates for the shares to me, I
hereby represent and warrant that I am acquiring such shares for my own account
for investment, and that I will not sell, pledge, hypothecate or otherwise
transfer such shares in the absence of an effective registration statement
covering the same, except as permitted by an applicable exemption under the Act.
In view of this representation and warranty, I agree that there may be affixed
to the certificates for the shares to be issued to me, and to all certificates
issued hereafter representing such shares (until in the opinion of counsel,
which opinion must be reasonably satisfactory in
EXHIBIT A-1
form and substance to counsel for the Company, it is no longer necessary or
required) a legend as follows:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the "Act"),
and may not be sold, transferred, offered for sale, pledged or
hypothecated in the absence of an effective registration statement as
to the securities under the Act or an opinion of counsel satisfactory
to the Company and its counsel that such registration is not
required."
"The securities represented by this certificate are subject to the
terms and conditions, including restrictions on transfer, of a
Stockholders Agreement among the Company and its stockholders dated as
of June 4, 2004, as amended from time to time, a copy of which is on
file at the principal office of the Company."
"The Company has multiple classes of stock. The Company will furnish
without charge to each stockholder who so requests in writing the
powers, designations, preferences and relative, participating,
optional, or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such
preferences and/or rights."
I further agree that the Company may place a stop order with its transfer
agent, prohibiting the transfer of such shares, so long as the legend remains on
the certificates representing the shares.
I hereby represent and warrant that: My financial situation is such that I
can afford to bear the economic risk of holding the shares issued to me upon
exercise of said option for an indefinite period of time, I have no need for
liquidity with respect to my investment and have adequate means to provide for
my current needs and personal contingencies, and can afford to suffer the
complete loss of my investment in such shares.
(a) I am either (please check one of the following):
(1) ___ an "accredited investor" within the meaning of Rule
501(a) under the Act, a copy of which is annexed hereto as
Annex I, and I, either alone or with my purchaser
representative (as such term is defined in Rule 501 under
the Act), have such knowledge and experience in financial
and business matters that I am capable of evaluating the
merits and risks of my investment in the shares issued to me
upon exercise of said option. I have indicated the
appropriate categories that apply to me in Annex I hereto.
EXHIBIT A-2
(2) ___ not an "accredited investor" within the meaning of Rule
501(a) under the Act, as I do not fulfill any of the
categories set forth in Annex I, but I have such knowledge
and experience in financial and business matters that I am
capable of evaluating the merits and risks of my investment
in the shares issued to me upon exercise of said option.
(b) I have been afforded the opportunity to ask questions of, and to
receive answers from, the Company and its representatives concerning the shares
issued to me upon exercise of said option and to obtain any additional
information I have deemed necessary.
(c) I have a high degree of familiarity with the business, operations,
financial condition and prospects of the Company.
Very truly yours,
----------------------------------------
[Optionee]
EXHIBIT A-3
ANNEX I
The following are "accredited investors" for purposes of the offering and sale
of Shares.
Please check all of the following categories that you fulfill.
(a) ___ a bank as defined in section 3(a)(2) of the Securities Act or a savings
and loan association or other institution as defined in section 3(a)(5)(A)
of the Securities Act, whether acting in its individual or fiduciary
capacity; broker or dealer registered pursuant to section 15 of the
Securities Exchange Act of 1934, as amended; insurance company as defined
in section 2(13) of the Securities Act; investment company registered under
the Investment Company Act of 1940, as amended, or a business development
company as defined in section 2(a)(48) of the Investment Company Act of
1940, as amended; Small Business Investment Company licensed by the U.S.
Small Business Administration under section 301(c) or (d) of the Small
Business Investment Act of 1958; plan established and maintained by a
state, its political subdivisions, or any agency or instrumentality of a
state or its political subdivisions, for the benefit of its employees, if
such plan has total assets in excess of US$5,000,000; employee benefit plan
within the meaning of the Optionee Retirement Income Security Act of 1974,
as amended, if the investment decision is made by a plan fiduciary, as
defined in section 3(21) of such act, which plan fiduciary is either a
bank, savings and loan association, insurance company, or registered
investment adviser, or if the employee benefit plan has total assets in
excess of US$5,000,000 or, if a self-directed plan, with investment
decisions made solely by persons that are accredited investors;
(b) ___ a private business development company as defined in section 202(a)(22)
of the Investment Advisers Act of 1940, as amended;
(c) ___ an organization described in section 501(c)(3) of the Internal Revenue
Code of 1986, as amended (the "Code"), a corporation, Massachusetts or
similar business trust, or a partnership, not formed for the purpose of
acquiring the Securities offered, with total assets in excess of
US$5,000,000;
(d) ___ a director or executive officer of the Company;
(e) ___ a natural person whose individual net worth,(1) individually or
together with his or her spouse, exceeds US$1,000,000;
----------
(1) The term "net worth" means the excess of assets at fair market value,
including home and personal property, over total liabilities, including
mortgages and income taxes on unrealized appreciation of assets.
EXHIBIT A-4
(f) (i) ___ a natural person who had an individual income(2) in excess of
US$200,000 in each of the past two years and who reasonably expects to
reach the same income level in the current year; or
(ii) ___ a natural person who had a joint income(2) with his or her spouse
in excess of US$300,000 in each of the past two years and who
reasonably expects to reach the same income level in the current year;
(g) ___ a trust, with total assets in excess of US$5,000,000, not formed for
the specific purpose of acquiring the Securities offered, whose purchase is
directed by a person who either alone or with his purchaser representative
has such knowledge and experience in financial and business matters that he
or she is capable of evaluating the merits and risks of the prospective
investment, or the Company reasonably believes immediately prior to making
any sale that such person comes within this definition;
(h) ___ an entity in which all of the equity owners are accredited investors
meeting one or more of the tests under subparagraphs (a) - (g).
----------
(2) For all investors, the term "individual income" means adjusted gross income
as reported for federal income tax purposes, less any income attributable
to a spouse or to property owned by a spouse, increased by the following
amounts (but not included any amounts attributable to a spouse or to
property owned by a spouse), and the term "joint income" means adjusted
gross income as reported for federal income tax purposes, including any
income attributable to a spouse or to a property owned by a spouse,
increased by the following amounts (including any amounts attributable to a
spouse or to property owned by a spouse): (i) the amount of any interest
income received which is tax exempt under section 103 of the Code; (ii) the
amount of losses claimed as a limited partner in a limited partnership (as
reported on Schedule E of Form 1040); and (iii) any deduction claimed for
depletion under section 611 et seq. of the Code.
EXHIBIT A-5
