EXHIBIT 10.16
XXXXX INDUSTRIES INCORPORATED
STOCK OPTION AGREEMENT
THIS AGREEMENT, made as of this 26th day of September, 2005, by Xxxxx
Industries Incorporated, a Delaware corporation (hereinafter called the
"Company"), with Xxxxx X. Xxxxxx (hereinafter call the "Holder"):
The Company has adopted a 2005 Incentive Plan (the "Plan"). Said Plan, as
it may hereafter be amended and continued, is incorporated herein by reference
and made part of this Agreement. Terms not otherwise defined herein shall have
the meaning ascribed to them in the Plan.
The Board, which in the absence of a Committee is charged with the
administration of the Plan pursuant to Section 4 of the Plan, has determined
that it would be to the advantage and interest of the Company to grant the
option provided for herein to the Holder as an inducement to remain in the
service of the Company or one of its subsidiaries, and as an incentive for
increased efforts during such service.
NOW, THEREFORE, pursuant to the Plan, the Company hereby grants to the
Holder as of the date hereof an option (the "Option") to purchase all or any
part of 1,200,000 shares of Common Stock of the Company, par value $.0001 per
share, upon the following terms and conditions:
1. The Option shall continue in force through September 26, 2015 (the
"Expiration Date"), unless sooner terminated as provided herein and in the Plan.
Subject to the provisions of the Plan, the right to exercise the Options shall
vest as indicated below and the exercise price per share of the Options vesting
as of any date shall be the greater of twenty-two ($.22) cents per share and the
amount indicated below:
Date # of Shares Which Vest Exercise Price
---- ---------------------- --------------
The date hereof 240,000 Twenty-Two cents
September 15, 2006 240,000 Average FMV for thirty trading
days ended December 15, 2005
September 15, 2007 240,000 Average FMV for thirty trading
days ended September 15, 2006
September 15, 2008 240,000 Average FMV for thirty trading
days ended September 15, 2007
September 15, 2009 240,000 Average FMV for thirty trading
days ended September 15, 2008
For purposes hereof, FMV refers to the Fair Market Value of the shares as of the
date indicated.
(a) Except as provided hereinbelow, the Option may not be exercised unless
the Holder is then an employee (including officers and directors who are
employees), non-employee director, consultant, advisor, agent or independent
representative of the Company or any subsidiary of the Company or any
combination thereof and unless the Holder has remained in the continuous employ
or service thereof from the date of grant.
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(b) No installment under this option shall qualify for favorable tax
treatment as an Incentive Stock Option if (and to the extent) the aggregate Fair
Market Value of the Common Stock for which such installment first becomes
exercisable hereunder would, when added to the aggregate value of the Common
Stock or other securities for which this option or any other Incentive Stock
Options granted to Holder prior to the date hereof (whether under the Plan or
any other option plan of the Corporation or any Parent or Subsidiary) first
become exercisable during the same calendar year, exceed One Hundred Thousand
Dollars ($100,000) in the aggregate. Should such One Hundred Thousand Dollars
($100,000) limitation be exceeded in any calendar year, this option shall
nevertheless become exercisable for the excess shares in such calendar year as a
Non-Qualified Stock Option.
2. In the event that the employment or service of the Holder shall be terminated
prior to the Expiration Date (otherwise than by reason of death or disability),
the Option may, subject to the provisions of the Plan, be exercised (to the
extent that the Holder was entitled to do so at the termination of this
employment or service) at any time within three months after such termination,
but not after the Expiration Date, provided, however, that if such termination
shall have been for cause or voluntarily by the Holder and without the consent
of the Company or any subsidiary corporation thereof, as the case may be (which
consent shall be presumed in the case of normal retirement) or voluntarily by
the Holder and Holder accepts employment with a competitor of the Company, the
Option and all rights of the Holder hereunder, to the extent not theretofore
exercised, shall forthwith terminate immediately upon such termination. Nothing
in this Agreement shall confer upon the Holder any right to continue in the
employ or service of the Company or any subsidiary of the Company or affect the
right of the Company or any subsidiary to terminate his employment or service at
any time.
3. If the Holder shall (a) die while he is employed by or serving the Company or
a corporation which is a subsidiary thereof or within three months after the
termination of such position (other than termination for cause, or voluntarily
on his part and without the Consent of the Company or subsidiary corporation
thereof, as the case may be, which consent shall be presumed in the case of
normal retirement or voluntarily by the Holder and Holder accepts employment
with a competitor of the Company), or (b) become permanently and totally
disabled within the meaning of Section 22 (e) (3) of the Internal Revenue Code
of 1986, as amended (the "Code"), while employed by or serving any such company,
and if the Option was otherwise exercisable, immediately prior to the occurrence
of such event, then such Option may be exercised as set forth herein by the
Holder or by the person or persons to whom the Holder's rights under the Option
pass by will or applicable law, or if no such person has such right, by his
executors or administrators, at any time within one year after the date of death
of the original Holder, or one year after the date of permanent or total
disability, but in either case, not later than the Expiration Date.
4. (a) The Holder may exercise the Option with respect to all or any part of the
shares then purchasable hereunder by giving the Company written notice in the
form annexed, as provided in paragraph 8 hereof, of such exercise. Such notice
shall specify the number of shares as to which the Option is being exercised and
shall be accompanied by payment in full in cash of an amount equal to the
exercise price of such shares multiplied by the number of shares as to which the
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Option is being exercised; provided that, if permitted by the Board, the
purchase price may be paid, in whole or in part, by surrender or delivery to the
Company of securities of the Company having a fair market value on the date of
the exercise equal to the portion of the purchase price being so paid. In such
event fair market value should be determined pursuant to the Plan.
(b) The Holder shall, upon notification of the amount due, pay promptly
any amount necessary to satisfy applicable federal, state or local tax
requirements. In the event such amount is not paid promptly, the Company shall
have the right to apply from the purchase price paid any taxes required by law
to be withheld by the Company with respect to such payment and the number of
shares to be issued by the Company will be reduced accordingly.
5. Notwithstanding any other provision of the Plan, in the event of a change in
the outstanding shares of the Company by reason of a stock dividend, split-up,
split-down, reverse split, recapitalization, merger, consolidation, combination
or exchange of shares, spin-off, reorganization, liquidation or the like, then
the aggregate number of shares and price per unit subject to the Option shall be
appropriately adjusted by the Board, whose determination shall be conclusive. 1.
6. This Option shall be nontransferable and shall no be assignable, alienable,
saleable or otherwise transferable by the Holder other than by will or the laws
of descent and distribution except pursuant to a domestic relations order
entered by a court of competent jurisdiction. During the life of the Holder,
this Option shall be exercisable only by him. Notwithstanding the foregoing, to
the extent the Option is deemed a Non-Qualified Stock Option, the Holder shall
be permitted to transfer such Option to family members or family trusts
established by the Holder. Except as otherwise provided for herein, in the event
that the Holder terminates employment with the Company to assume a position with
a governmental, charitable, educational or similar non-profit institution, the
Holder may nominate a third party, including but not limited to a "blind" trust,
to act on behalf or and for the benefit of the Holder with respect to the
Option. In addition, the Holder may designate a beneficiary or beneficiaries to
exercise the rights of the Holder and receive any distributions upon the death
of the Holder.
7. Neither the Holder nor in the event of his death, any person entitled to
exercise his rights, shall have any of the rights of a member with respect to
the shares subject to the Option until shares have been registered in the name
of the Holder or his estate, as the case may be.
8. Any notice to the Company provided for in this Agreement shall be addressed
to the Company in care of its Chairman, Xxxxxxx Xxxxx, and any notice to the
Holder shall be addressed to him at his address now on file with the Company, or
to such other address as either may last have designated to the other by notice
as provided herein. Any notice so addressed shall be deemed to be given on the
second business day after mailing, by registered or certified mail, at a post
office or branch post office within the United States.
9. In the event that any question or controversy shall arise with respect to the
nature, scope or extent of any one or more rights conferred by this Option, the
determination by the Board, or if one had been appointed, the Committee (as
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constituted at the time of such determination) of the rights of the Holder shall
be conclusive, final and binding upon the Holder and upon any other person who
shall assert any right pursuant to this Option.
XXXXX INDUSTRIES INCORPORATED
By: /s/ Xxxxxxx Xxxxx
-------------------------
Name: Xxxxxxx Xxxxx
Title: Executive Chairman
ACCEPTED AND AGREED:
/s/ Xxxxx X. Xxxxxx
-------------------
Xxxxx X. Xxxxxx
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FORM OF NOTICE OF EXERCISE
TO: XXXXX INDUSTIRES INCORPORATED
The undersigned hereby exercises his option to purchase __________ shares
of Common Stock of Xxxxx Industries Incorporated (the "Company") as provided in
the Stock Option Agreement dated as of __________, ___ at $__________ per share,
a total of $__________ and makes payment therefor as follows:
(1) To the extent of $__________ of the purchase price, the undersigned
hereby surrenders to the Company certificates for shares of its Common Stock
which, valued at $__________ per share, the fair market value thereof, equals
such portion of the purchase price.
(2) To the extent of the balance of the purchase price, the undersigned
has enclosed a check payable to the order of the Company for $__________.
A stock certificate or certificate for the shares should be delivered in
person or mailed to the undersigned at the address shown below.
The undersigned hereby represents and warrants that it is his present
intention to acquire and hold the aforesaid shares of Common Stock of the
Company for his own account for investment, and not with a view to the
distribution of any thereof, and agrees that he will make no sale, thereof,
except in compliance with the applicable provisions of the Securities Act of
1933, as amended.
Signature: _______________________
Address: _________________________
_________________________
_________________________
Dated: ____________
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