Exhibit 10.9
STOCK OPTION AGREEMENT
AGREEMENT made as of the 29th day of December, 2000 by and between THE
XXXXXX BIOMECHANICS GROUP, INC., a New York corporation (the "COMPANY") and
XXXXXX XXXXXXXXX (the "OPTIONEE").
WHEREAS, the Optionee has on this date become an employee of the
Company and is expected to provide valuable services to the Company; and
WHEREAS, the Company desires to reward such services and encourage
the Optionee's continued dedication and to afford the Optionee the
opportunity to acquire stock ownership in, or otherwise share in the
appreciation of the stock of, the Company so that the Optionee may have a
direct proprietary interest in the Company's success.
NOW, THEREFORE, in consideration of the covenants and agreements
herein contained, the parties hereto hereby agree as follows:
1. GRANT OF OPTION. (a) Upon the terms and subject to the conditions
set forth herein, the Company hereby grants to the Optionee, during the
period commencing on the date of this Agreement and, unless earlier
terminated pursuant to Section 5 or Section 6 hereof, ending ten (10) years
from the date hereof (the "EXPIRATION DATE"), the right and option (the
"OPTIONS") to purchase from the Company, at a price of $1.525 per share,
EIGHTY THOUSAND (80,000) shares of the Company's Common Stock, par value
$.02 per share (the "COMMON STOCK"), pursuant to the Company's 1992 Stock
Option Plan, as amended (the "1992 PLAN").
(b) The Options granted hereunder are intended to
constitute "Incentive Stop Options" as defined in Section 4 of the Plan.
(c) Nothing in this Agreement shall confer upon
Optionee any right to continue as an Employee of Company or interfere in any
way with the right of the Company to terminate or otherwise modify the terms
of Optionee's engagement by the Company subject to the terms of the Company's
employment agreement with the Company.
2. VESTING AND EXERCISE OF OPTIONS. The Options shall vest (subject
to acceleration and termination under the provisions hereof) in three
installments as follows: options as to 26,666 shares shall vest on each of
December 31, 2001 and December 31, 2002 and Options for 26,667 shares shall
vest on December 31, 2003; provided, however, no further vesting shall occur
after the date on which the employee's employment with the Company terminates
for any reason.
3. METHOD OF EXERCISING OPTIONS. (a) The Optionee may exercise the
Options within the time permitted under the 1992 Plan by delivering to the
Company (i) a written notice stating the number of shares of Common Stock
that the Optionee has elected to purchase at that time from the Company and
(ii) full payment of the purchase price of the shares of Common Stock then to
be purchased.
(b) Payment of the exercise price for the shares of Common Stock
upon any exercise of the Options may be made by check payable to the order of
the Company; provided, however, that in the event that Optionee enters into
an Employment Agreement with the Company and the Optionee's employment is
terminated without Cause or the Optionee terminates his employment for Good
Reason (as and if such capitalized terms are defined in his Employment
Agreement with the Company), subject to Sections 5 and 6 hereof the Optionee
shall have the right to pay the exercise price for the shares of Common Stock
by delivery of shares of Common Stock of the Company or surrender of Options
(having a fair market value equal to the purchase price of the Common Stock
issuable upon exercise of the Options over the applicable exercise price)
duly endorsed in blank or accompanied by appropriate stock powers, together
with such amount as the Company shall, in its sole discretion, deem necessary
to satisfy any tax withholding obligation or tax arising by reason of the
transfer of such shares of Common Stock ("CASHLESS EXERCISE").
(c) In connection with any Cashless Exercise, only full shares of
Common Stock of the Company with an aggregate fair market value not exceeding
the exercise price will be accepted in payment, and any portion of the
exercise price which is in excess of such aggregate fair market value must be
paid in cash or by certified or bank cashier's check payable to the order of
the Company, it being understood that the Company shall not be required to
pay cash in exchange for tendered certificates. If the tendered
certificate(s) evidence more shares of Common Stock than are accepted for
payment, an appropriate replacement certificate shall be issued to the
Optionee for the number of excess shares of Common Stock.
4. ISSUANCE OF COMMON STOCK AND PAYMENT OF CASH UPON EXERCISE OF
OPTIONS. As promptly as practicable after receipt of such written
notification of the Optionee's election to exercise the Options and full
payment of such exercise price and any applicable withholding taxes, the
Company shall issue or transfer to the Optionee the number of shares of
Common Stock with respect to which the Options have been so exercised and
shall deliver to the Optionee a certificate or certificates therefor,
registered in the Optionee's name.
5. DEATH OR DISABILITY OF THE OPTIONEE. (a) If the employment of the
Optionee shall terminate for any reason, other than for "Cause" or
voluntarily by the Optionee without "Good Reason" the Optionee (or in the
case of Optionee's death or disability, his executor, administrator or
personal representative) shall have the right to exercise the Options which
have vested hereunder for the three (3) month period following such
termination to the extent that the Options were vested at the date of death.
(b) In the event of termination for "Cause" or by the
Optionee voluntarily without Good Reason (as those terms are defined in the
Employment Agreement between the Optionee and the Company) all vested but
unexercised Options and all unvested Options shall thereupon, upon his
termination of employment, lapse and be of no further effect.
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6. ACCELERATION OF VESTING IN CERTAIN CIRCUMSTANCES Notwithstanding
the vesting provisions of Section 2:
(a) If the Optionee's employment terminates by reason of
death or disability, a portion of the Options which would next have vested
under the schedule set forth in Section 2 will vest, pro rata in proportion
to the number of days in the calendar year expired through the date of
termination; and all remaining Options shall lapse and be of no further
effect.
(b) In event of termination by the Company other than for
"Cause" or by the Optionee voluntarily for Good Reason (as said capitalized
terms are defined in his Employment Agreement with the Company), all of the
Options which are not then vested (or such portion thereof as the Optionee
may elect) shall vest.
7. SECURITIES MATTERS. (a) Notwithstanding anything herein to the
contrary, the Optionee's ability to exercise this Option is subject to timely
shareholder approval of an increase in the number of shares of Common Stock
covered by the 1992 Plan (the "Increase") approved by the Board of Directors
on the date hereof.
(b) The shares of Common Stock issued pursuant to the terms
of this Agreement shall represent fully paid and non-assessable shares of
Common Stock. The Company represents, warrants and covenants that (i) the
Company has previously prepared and filed with the SEC a registration
statement on Form S-8 under the Securities Act of 1933, as amended (the
"Act"), registering the sale of shares under the 1992 Plan, which
registration is currently effective, (ii) the Company shall as promptly as
practicable, and the Increase is approved by the shareholders of the Company,
amend such registration on Form S-8 to include the shares of Common Stock
issuable pursuant to the terms of this Agreement, and (iii) the Company shall
maintain the effectiveness of the registration statement, as so amended,
until all of such Shares may be sold without restriction under the Act.
8. THE OPTIONEE. Whenever in any provision of this Agreement
reference is made to the Optionee, under circumstances where such reference
should logically be construed to apply to the executors, administrators,
personal representatives or a person or persons to whom the Options may be
transferred by will or by the laws of descent and distribution, the reference
to the Optionee shall be deemed to include such person or persons.
9. NON-TRANSFERABILITY. The Options are not transferable by the
Optionee otherwise than by applicable laws of descent and distribution and,
except as set forth herein, are exercisable during the Optionee's lifetime
only by the Optionee or the legally appointed administrator of his affairs.
No assignment or transfer of the Options, or of the rights represented
thereby, whether voluntary or involuntary, by operation of law or otherwise
(except by will or the laws of descent and distribution), shall vest in the
assignee or transferee any interest or right herein whatsoever, but
immediately upon such assignment or transfer the Options shall terminate and
become of no further effect.
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10, RIGHTS AS SHAREHOLDER. The Optionee shall have no rights as a
shareholder with respect to any share of Common Stock covered by the Options
until the Optionee shall have become the holder of record of such share of
Common Stock, and no adjustment shall be made for dividends or distributions
or other rights in respect of such share of Common Stock for which the record
date is prior to the date upon which the Optionee shall become the holder of
record thereof.
11. ADJUSTMENT FOR RECAPITALIZATION, MERGER, ETC. The aggregate
number of shares of Common Stock that may be purchased pursuant to the
Options, the number of shares of Common Stock covered by the Options and the
price per share shall be appropriately adjusted for any increase or decrease
in the number of outstanding shares of Common Stock resulting from a stock
split or other subdivision or consolidation of shares of Common Stock or for
other capital adjustments or payments of stock dividends or distributions or
other increases or decreases in the outstanding shares of Common Stock
effected without receipt of consideration by the Company.
In the event of a liquidation of the Company, or a merger,
reorganization or consolidation of the Company with any other corporation in
which the Company is not the surviving corporation or the Company becomes a
wholly owned subsidiary of another corporation, any unexercised Options shall
be deemed canceled unless the surviving corporation in any such merger,
reorganization or consolidation elects to assume the Options or to issue
substitute options in place thereof. Notwithstanding the foregoing, the
Company shall deliver written notice to Optionee of its intent to effect
such liquidation, merger or consolidation, following which the Optionee shall
have the right, exercisable during a ten (10) day period ending on the fifth
day prior to such liquidation, merger or consolidation, to exercise the
Options in whole or in part. Adjustments under this Section 11 shall be made
in a proportionate and equitable manner by the Board of Directors (or
Committee), whose determination as to the nature of the adjustments shall be
made, and the extent thereof, shall be final, binding and conclusive. In the
event that a fraction of a share results from the foregoing adjustment, said
fraction shall be eliminated and the price per share of the remaining shares
subject to the Options adjusted accordingly.
12. COMPLIANCE WITH LAW. Notwithstanding any of the provisions
hereof, except in connection with the dissolution or liquidation of the
Company, the Optionee hereby agrees that the Optionee will not exercise the
Options, and that the Company will not be obligated to issue or transfer any
shares of Common Stock to the Optionee hereunder, if the exercise hereof or
the issuance or transfer of such Common Stock shall constitute a violation by
the Optionee or the Company of any provisions of any law or regulation of any
governmental authority.
13. NOTICE. Any notice or other communications required or permitted
hereunder shall be in writing and shall be deemed effective (a) upon personal
delivery, if delivered by hand, (b) upon receipt of electronic confirmation,
if sent by facsimile transmission, (c) three (3) days after the date of
deposit in the mails, if mailed by certified or registered mail (return
receipt requested), or (c) on the next business day, if mailed by an
overnight mail service to the parties,
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if to the Company: if to the Optionee:
The Xxxxxx Biomechanics Group, Inc. Mr. Xxxxxx Xxxxxxxxx
000 Xxxxxxx Xxxx 00 Xxxxx Xxxxx
Xxxx Xxxx, XX 00000 Xxxx Xxxxx, XX 00000
Attn.: President FAX (000) 000 0000
FAX (000) 000 0000
Copies of all notices to the Company or the Optionee under this Agreement shall
also be sent to:
Xxxxxxx, Xxxxxxxxx LLP
0 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
and
Xxxx Xxxxxxx, P.C.
1350 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
or at such other address or facsimile number as either party may from time to
time specify to the other.
14. ENTIRE AGREEMENT. This Agreement sets forth the complete
understanding of the Company and the Optionee with respect to the subject
matter hereof and supersedes all prior understandings, whether oral or
written.
15. CONFLICT WITH 1992 PLAN. This Agreement is subject to all of the
terms and provisions of the 1992 Plan and the Optionee shall be entitled,
with respect to the Options, to all of the rights and benefits provided by
the 1992 Plan. In the event that there is any inconsistency between the
provisions of this Agreement and of the 1992 Plan, the provisions of the 1992
Plan shall govern.
16. GOVERNING LAW; JURISDICTION. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York (without
giving effect to the principles of conflicts of law). The Company and the
Optionee each agrees that the federal or state courts located in the State of
New York shall have exclusive jurisdiction in connection with any dispute
arising out of this Agreement.
17. SEVERABILITY. If any provision of this Agreement, or any part of
any of them, is hereafter construed or adjudicated to be invalid or
unenforceable, the same shall not affect the remainder of the covenants or
rights or remedies which shall be given full effect without regard to
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the invalid portions. If any of the covenants set forth herein is held to be
invalid or unenforceable because of the duration of such provision or the
area covered thereby, the parties agree that the court making such
determination shall have the power to reduce the duration and/or area of such
provision and in its reduced form said provision shall then be enforceable.
18. HEADINGS. The headings of this Agreement are for convenience of
reference only and shall not affect in any manner any of the terms and
conditions hereof.
19. MODIFICATIONS AND WAIVERS. No term, provision or condition of
this Agreement may be modified or discharged unless such modification or
discharge is authorized by the Board and is agreed to in writing and signed
by the parties hereto. No waiver by either party hereto of any breach by the
other party hereto of any term, provision or condition of this Agreement to
be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent
time.
20. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the day and year first above written.
THE XXXXXX BIOMECHANICS GROUP, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: VP - Finance
/s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx
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