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EXHIBIT 10.2.6
OPTION AGREEMENT
THIS OPTION AGREEMENT (the "Agreement"), dated as of March 13,
1997, is made by and between FM PRECISION GOLF CORP., a Delaware corporation
(the "Company"), and XXXXXXXXXXX X. XXXXXXXX ("Stockholder").
WHEREAS, Stockholder is an Employee, Officer or Consultant of the
Company; and
WHEREAS, Stockholder has been granted a stock option (the "Stock
Option") under the Company's 1997 Stock Option Plan (the "Plan"); and
WHEREAS, the execution of an Option Agreement in the form hereof
has been duly authorized by a resolution of the Board of Directors of the
Company or the Stock Option Committee of the Board of Directors of the Company;
NOW THEREFORE, the parties hereto, intending to be legally bound,
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. (a) Terms used herein and defined in
the Plan shall have the meanings given to them in the Plan, and (b) the
following terms, as used herein, have the following meanings:
(b) Each of the following terms is defined in the Section
opposite such term:
Term Section
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Affiliate Plan
Board of Directors Plan
Company Preamble
Company's Notice 3.3.2
Consultant Plan
Default Shares 3.3.8
Demand Registration 4.1(a)
Stockholder Preamble
Exercise Price 2.1
Fair Market Value 3.4.5
Family Members 3.2.1(b)
Management Offeree 3.3.2
Management Stockholder 3.3.2
Maximum Amount 3.3.2
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Non-Management Offeree 3.3.2
Notice of Acceptance 3.3.6
Offering Stockholder 3.3.1
Officer Plan
Permitted Transferees 3.2.1(b)
Potential Purchasers 3.3.11
Pro Rata Share 3.3.11
Rule 144 4.1(b)
Securities Act Plan
Shares Plan
Stock Option Preamble
Stockholder's Estate 3.2.1(a)
Tax Offset Payment Plan
Terminated Stockholder 3.4.1
Termination Closing 3.4.4
Termination Event 3.4.1
Termination Note 3.4.4
Termination Price 3.4.2
Termination Shares 3.4.1
Third Party Purchaser 3.3.5
Transfer 3.1
Transfer Notice 3.3.1
Transfer Offerees 3.3.6
Transfer Price 3.3.1
Transfer Shares 3.3.1
ARTICLE II
TERMS OF OPTION
The option shall have the following terms:
Section 2.1. Exercise Price. The Exercise Price shall be $1,000
per share (the "Exercise Price").
Section 2.2. Payment. Upon exercise, Stockholder shall pay the
Exercise Price by delivering to the Company funds in an amount sufficient to pay
the Exercise Price together with any applicable taxes or withholdings.
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ARTICLE III
RIGHTS AND OBLIGATIONS WITH
RESPECT TO TRANSFER
Stockholder shall not sell, assign, pledge, encumber, or
otherwise transfer, permit or suffer to exist any transfer of (hereinafter
called simply "Transfer"), any legal or beneficial interest in the Shares except
as expressly provided in this Agreement. In addition to the restrictions on
Transfer of the Shares contained in or resulting from other provisions of this
Agreement, no Transfer of any Shares shall be made by or on behalf of
Stockholder unless the Board of Directors has determined that such Transfer is
in compliance with the terms hereof and that the applicable Shares have been
duly registered under all applicable federal and state securities laws pursuant
to a then-effective registration which contemplates the proposed Transfer or
unless the Company has received a written opinion of or, at the option of the
Company, satisfactory to its legal counsel that the proposed Transfer so
complies with the terms hereof and is exempt from such registration under all
applicable federal and state securities laws.
ARTICLE IV
INVESTMENT INTENT
Section 4.1. Investment Intent.
(a) Stockholder represents and warrants that he is acquiring the
Shares for investment, solely for his own account and not with a view to, or for
resale in connection with, the distribution or other disposition thereof, except
for such distribution and dispositions as are effected in compliance with the
Securities Act and the rules and regulations thereunder and all applicable state
securities or "blue-sky" laws. Stockholder agrees and acknowledges that he will
not, directly or indirectly, offer, transfer, sell, assign, pledge, hypothecate
or otherwise dispose of any part of his Shares, or solicit any offers to
purchase, otherwise acquire or take a pledge of any part of his Shares, unless
such offer, transfer, sale, assignment, pledge, hypothecation or other
disposition or solicitation is either (i) pursuant to an effective registration
statement under the Securities Act and registered under any applicable state
securities or "blue-sky" laws, or (ii) effected only after the Company has been
furnished with an opinion of counsel, which opinion and counsel shall be
reasonably satisfactory to the Company, stating that no such registration is
required because of the availability of an exemption from registration in effect
thereunder and under applicable state securities or "blue-sky" laws.
(b) Stockholder acknowledges and represents and warrants that he
has been advised that (i) the issuance of his Shares has not been registered
under the Securities Act or any state securities or "blue-sky" laws; (ii) his
Shares must be held indefinitely and Stockholder must continue to bear the
economic risk of his investment in the Company unless the Transfer of his Shares
is subsequently registered under the Securities Act and any applicable state
securities or "blue-sky" laws or an exemption from such registration is
available; (iii) it is not anticipated that
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there will be any public market for the Shares; (iv) Rule 144 promulgated under
the Securities Act ("Rule 144") is not currently available with respect to sales
of securities of the Company, and the Company has made no covenant to make such
Rule 144 available; and (v) a restrictive legend in the form heretofore set
forth shall be placed on any certificate representing the Shares.
(c) Stockholder represents and warrants that (i) he is aware of
the merits and risks of an investment in the Company as contemplated by this
Agreement; (ii) he has such knowledge and experience in financial and business
matters that he is capable of evaluating the merits and risks of this investment
in the Company as contemplated by this Agreement; (iii) he understands that the
Shares are a speculative investment that involves a high degree of risk of loss
of his investment therein, that there are substantial restrictions on the
transferability of the Shares and that for an indefinite period after the date
hereof, there will be no public market for the Shares, and accordingly it may
not be possible to liquidate his investment in the Company in case of emergency,
if at all; and (iv) he is familiar with the business of the Company and
understands and has evaluated all the risk factors related to an investment in
the Company.
ARTICLE V
MISCELLANEOUS
Section 5.1. Legends. The certificates evidencing the Shares shall bear
the following legends in conspicuous type:
THESE SHARES MAY NOT BE GIVEN, SOLD, PLEDGED,
ASSIGNED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT OR AN OPINION
OF COUNSEL, IN FORM AND SUBSTANCE ACCEPTABLE TO THE
COMPANY, TO THE EFFECT THAT THESE SHARES MAY BE SO
TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT.
Section 5.2. No Right of Employment. Neither this Agreement nor any
exercise of any rights granted pursuant hereto shall create, or be construed or
deemed to create, any right of employment in favor of Stockholder or any other
person by the Company or any of its Subsidiaries.
Section 5.3. Recapitalizations, Exchanges, Etc. The provisions of this
Agreement shall apply, to the fullest extent set forth herein with respect to
the Shares, to any and all shares of capital stock of the Company or any
successor or assign of the Company (whether by merger, consolidation, sale of
assets or otherwise) that may be issued in respect of, in exchange for, or in
substitution of, Shares and shall be appropriately adjusted for any stock
dividends, splits, reverse splits, combinations, recapitalizations and the like
occurring after the date hereof. Subject only to the provisions of the preceding
sentence, nothing contained in this Agreement shall prohibit or restrict the
Company from taking any corporate action, including, without limitation,
declaring
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any dividend (whether in cash or stock) or engaging in any corporate transaction
of any kind, including, without limitation, any merger, consolidation,
liquidation or sale of assets.
Section 5.4. Availability of Equitable Remedies. Stockholder and
the Company acknowledge that a breach of the provisions of this Agreement could
not be adequately compensated by money damages. Accordingly, either party hereto
or beneficiary hereof shall be entitled, in addition to any other right or
remedy available to it, to an injunction restraining such breach or threatened
breach and to specific performance of any such provision of this Agreement, and
in either case no bond or security shall be required in connection therewith.
Section 5.5. Waiver. No purported waiver by either party of any
default by the other party of any term or provision contained herein shall be
deemed to be a waiver of such term or provision unless the waiver is in writing
and signed by the waiving party. No such waiver shall in any event be deemed a
waiver of any subsequent default under the same or any other term or provision
contained herein.
Section 5.6. Entire Agreement. This Agreement and the Exhibits
attached hereto set forth the entire understanding between the parties
concerning the subject matter of this Agreement and incorporate all prior
negotiations and understandings. There are no covenants, promises, agreements,
conditions or understandings, either oral or written, between them relating to
the subject matter of this Agreement other than those set forth herein. No
representation or warranty has been made by or on behalf of any party to this
Agreement (or any officer, director, employee or agent thereof) to induce the
other party to enter into this Agreement or to abide by or consummate any
transactions contemplated by any terms of this Agreement, except representations
and warranties, if any, expressly set forth herein. No alteration, amendment,
change or addition to this Agreement shall be binding upon either party unless
in writing and signed by the party to be charged.
Section 5.7. No Partnership. Nothing contained in this Agreement
shall be deemed or construed by the parties hereto or by any third person to
create the relationship of principal and agent or of partnership or of joint
venture.
Section 5.8. Successors. Each and all of the provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto,
and except as otherwise specifically provided in this Agreement, their
respective heirs, legal representatives, successors and assigns, provided,
however, that neither this Agreement nor any rights herein granted may be
assigned, transferred or encumbered by either party.
Section 5.9. Notices. Any consent, waiver, notice, demand,
request or other instrument required or permitted to be given under this
Agreement shall be in writing and be deemed to have been properly given when
delivered in person or sent by certified or registered United States mail,
return receipt requested, postage prepaid, addressed, if to Stockholder, to his
address set forth under his signature hereto; and
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If to the Company:
FM Precision Golf Corp.
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Attn.: President
with copies to:
Xxxxxxx X. Xxxxxx, Esq. Xxxxxxxxxxx X. Xxxxxxxx
0000 X. Xxxxx Xxxxxx, Xxxxx X 0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxx 00000 Jackson, Wyoming 83001
Either party may change its address for notices by notice in the manner set
forth above.
Section 5.10. Captions. The captions and section numbers appearing in
this Agreement are inserted only as a matter of convenience. They do not define,
limit, construe or describe the scope or intent of the provisions of this
Agreement.
Section 5.11. Partial Invalidity. If any term or provision of this
Agreement, or the application thereof to any person, firm, corporation or
circumstance, shall be invalid or unenforceable, the remainder of this
Agreement, or the application of such term or provision to persons, firms,
corporations or circumstances other than those as to which it is held invalid,
shall be unaffected thereby and each term or provision of this Agreement shall
be valid and be enforced to the fullest extent permitted by law.
Section 5.12. Governing Law. This Agreement shall be governed and
construed by the provisions hereof and in accordance with the laws of the State
of Delaware applicable to agreements to be performed in the State of Delaware.
Section 5.13. Counterparts. This Agreement may be executed in
counterparts, each of which when executed by the parties hereto shall be deemed
an original and all of which together shall be deemed the same Agreement.
Section 5.14. Arbitration. Any controversy or claim arising out of or
relating to this Agreement or the breach of any term or provision hereof, shall
be settled by arbitration in the City of Torrington, State of Connecticut, in
accordance with the Rules of the American Arbitration Association and judgment
upon the award rendered by the Arbitrator(s) may be entered in any Court having
jurisdiction thereof. The Arbitrator(s) sitting in any controversy shall have no
power to alter or modify any express provision of this Agreement, or to make any
award which by the terms effects any such alteration or modification.
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The parties hereto have caused this Agreement to be executed as of the
day and year first above written.
FM PRECISION GOLF CORP.
By:
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Xxxxxxxxxxx X. Xxxxxxxx, President
STOCKHOLDER
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XXXXXXXXXXX X. XXXXXXXX
Address: 0000 Xxxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
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