Exhibit 10.10
XXXXXXX DENVER, INC.
NONEMPLOYEE DIRECTOR STOCK OPTION AGREEMENT
This Agreement is made between Xxxxxxx Denver, Inc., a Delaware corporation,
having its principal executive office in Quincy, Illinois (the "Company"),
and the undersigned, a nonemployee director of the Company (the "Director").
The parties have agreed as follows:
1. Pursuant to the Xxxxxxx Denver, Inc. Long-Term Incentive Plan, as
amended, (the "Plan"), the Company grants to the Director a
nonstatutory option to purchase the number of shares of the Company's
common stock, par value $0.01 per share (the "Shares"), specified
above, at the price specified above, subject to the following
conditions:
(a) Subject to Sections 2 and 6, the option rights are fully
exercisable on the first anniversary of the date of grant of this
option (the "Grant Date").
(b) During the lifetime of the Director, the option rights are
exercisable only by the Director or the Director's legal
representative.
(c) The option rights shall expire at the Expiration Date specified
above, or at such earlier time as may be provided by Sections 2 and
10, or by cash payments made in cancellation pursuant to Section 6,
and such option rights shall not be exercisable after such
expiration.
2. Subject to Section 10, if the Director shall cease to serve as a
director of the Company by reason of retirement in accordance with any
retirement plan or policy of the Company then in effect or by reason of
disability during service as a director, option rights not otherwise
fully exercisable at the time of such retirement or cessation of
service as a director due to disability shall become fully exercisable
upon such retirement or cessation of service, and such option rights
shall be exercisable for five years following such retirement or
cessation of service (but not after the Expiration Date). Subject to
Section 10, if the Director shall die during service as a director or
shall die within the five-year period during which the option rights
may be exercised following retirement or disability, option rights not
otherwise fully exercisable at the time of the death of the Director
shall become fully exercisable upon such death, and such option rights
shall be exercisable for one year following such death (but not after
the Expiration Date). Subject to Section 10, if after the expiration of
one year from the Grant Date, the Director shall cease to serve as a
director of the Company for any reason other than death, disability or
retirement, the option rights shall continue to be exercisable for a
period of 90 days after such cessation of service (but not after the
Expiration Date).
3. This option may be exercised by delivering to the Company at its
principal executive office (directed to the attention of the Corporate
Secretary) a written notice, signed by the Director or a person
entitled to exercise the option by will or the laws of descent and
distribution, as the case may be, of the election to exercise the
option and stating the number of Shares in respect of which it is then
being exercised. The option shall be deemed exercised as of the date
the Company receives such notice. As an essential part of such notice,
it shall be accompanied by payment of the full purchase price of the
Shares then being purchased. In the event the option shall be exercised
by any person other than the Director, such notice shall be accompanied
by appropriate evidence of the right of such person to exercise the
option. Payment of the full purchase price may be made in (a) cash, (b)
Shares, or (c) any combination of cash and Shares, provided that any
Shares used by the Director in payment of the purchase price must have
been held by the Director for a period of more than six months, and
provided further that the Company reserves the right to prohibit the
use of Shares as payment of the purchase price. Shares used in payment
of the purchase price shall be valued at the average of the high and
low trading prices of such Shares on the composite tape of the New York
Stock Exchange or as reported in the consolidated transaction reporting
system for the date of exercise. Upon the proper exercise of the
option, the Company shall issue in the name of the person exercising
the option, and deliver to such person, a certificate or certificates
for the Shares purchased, or shall otherwise properly evidence the
purchase of such Shares in the Company's stock records. The Director
shall have no rights as a stockholder in respect of any Shares as to
which the option shall not have been effectively exercised as provided
in this Agreement.
4. This option shall not be exercisable if such exercise would violate
(a) any applicable requirement under the Securities Act of 1933, as
amended (the "Act"), the Securities Exchange Act of 1934, as amended,
or the listing requirements of any stock exchange; (b) any applicable
state securities law; or (c) any other applicable legal requirement.
Furthermore, if a registration statement with respect to the Shares to
be issued upon the exercise of this option is not in effect or if
counsel for the Company deems it necessary or desirable in order to
avoid possible violation of the Act, the
Company may require, as a condition to its issuance of the Shares, the
delivery to the Company of a commitment in writing by the person
exercising the option that at the time of such exercise it is the
person's intention to acquire such Shares for the person's own account
for investment only and not with a view to, or for resale in connection
with, the distribution of such Shares, that such person understands
that the Shares may be "restricted securities" as defined in Rule 144
issued under the Act, and that any resale, transfer or other
disposition of the Shares will be accomplished only in compliance with
Rule 144, the Act, or other or subsequent applicable rules and
regulations under the Act. The Company may place on the certificates
evidencing such Shares an appropriate legend reflecting such commitment
and the Company may refuse to permit transfer of such Shares until it
has been furnished evidence satisfactory to it that no violation of the
Act or the applicable rules and regulations would be involved in such
transfer.
5. This option and the related option rights are not assignable or
transferable or subject to any disposition of the Director otherwise
than by will or by the laws of descent and distribution.
6. If (i) the Company is to be merged into or consolidated with one or
more corporations and the Company is not to be the surviving
corporation, (ii) the Company is to be dissolved and liquidated, (iii)
substantially all the assets and business of the Company are to be
sold, or (iv) there occurs a "change of control" of the Company, then
the option rights not otherwise exercisable shall become fully
exercisable. In the case of a change of control, (i) the Company shall
make payment in cash to the Director in an amount equal to the
appreciation in the value of the option from the purchase price
specified in this Agreement to the "change of control price"; (ii) such
cash payment shall be due and payable, and shall be paid by the
Company, immediately upon the occurrence of the change of control; and
(iii) after such payment, the Director shall have no further rights
under this Agreement with respect to option rights outstanding at the
time of the change of control. For purposes of this Agreement, a
"change of control" and the "change of control price" shall be as
defined in Section 2 of the Plan.
7. The committee of the Board of Directors that administers the Plan
(the "Committee") shall have authority, subject to the express
provisions of the Plan, to construe this Agreement and the Plan, to
establish, amend and rescind rules and regulations relating to the
Plan, and to make all other determinations in the judgment of the
Committee necessary or desirable for the administration of the Plan.
The Committee may correct any defect or supply any omission or
reconcile any inconsistency in the Plan or in this Agreement in the
manner and to the extent it shall deem expedient to carry the Plan into
effect. All action by the Committee under the provisions of this
paragraph shall be conclusive for all purposes.
8. The Director agrees to notify the Company promptly of the
disposition, whether by sale, exchange or otherwise, of any Shares
acquired pursuant to the exercise of this option if such disposition
occurs within one year from the acquisition of the Shares. Such notice
shall state the date and manner of disposition and the proceeds, if
any, received by the Director.
9. This Agreement and the option granted under this Agreement shall be
subject to all of the provisions of the Plan as are in effect from time
to time, which provisions of the Plan shall govern if there is any
inconsistency between this Agreement and the Plan.
10. If the Director, as individual or as a partner, employee, agent,
advisor, consultant or in any other capacity of or to any person, firm,
corporation or other entity, directly or indirectly, carries on any
business, or becomes involved in any business activity, competitive
with the Company or any subsidiary, the Committee in its sole
discretion, may require the Director to forfeit immediately, without
consideration from the Company, any portion of the option (including
the right to purchase the underlying shares of Common Stock relating to
such portion) which was not exercised prior to the event in violation
of this Section 10. In such event, such portion of the option shall
immediately become void and of no force and effect.
Document Name: GD - Nonemployee Director Stock Option Agreement
Library: Cleveland; Document #: 200655v1
2
