EXHIBIT 10.16
SERVICE STOCK OPTION AGREEMENT dated as of
March 31, 1997 between PMT HOLDINGS, INC., a
Delaware corporation (the "Company"), and XXXXXX
XXXXX (the "Optionee").
The Company's Board of Directors (the "Board") has granted to the
Optionee, effective as of the date of this Agreement, an option under the
Company's 1997 Stock Option Plan (the "Plan") to purchase that number of Units
set forth below, each Unit consisting of one (1) share of Common Stock par value
$.01 per share, of the Company and one (1) share of Series A Preferred Stock par
value $.01 per share of the Company, on the terms and subject to the conditions
set forth in this Agreement and the Plan.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements contained in this Agreement, the parties hereto agree as follows:
SECTION 1. THE PLAN. The terms and provisions of the Plan are hereby
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incorporated into this Agreement as if set forth herein in their entirety. In
the event of a conflict between any provision of this Agreement and the Plan,
the provisions of the Plan shall control. A copy of the Plan may be obtained
from the Company by the Optionee upon request. Capitalized terms used herein
and not otherwise defined shall have the meanings ascribed thereto in the Plan.
SECTION 2. OPTION; OPTION PRICE. (a) On the terms and subject to the
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conditions of the Plan and this Agreement, the Optionee shall have the option
(the "Option") to purchase up to 23,333.33 Units (the "Option Units") at the
price of $11.24 per Option Unit (the "Option Price") at the times and in the
manner provided herein. Payment of the Option Price may be made in the manner
specified in Section 9(a) of the Plan. The Option is intended to qualify for
federal income tax purposes as an "incentive stock option" within the meaning of
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code"), to
the maximum extent permitted thereunder.
(b) Except as otherwise provided in Section 7(a) of the Plan, the
Option shall remain exercisable as to all Vested Option Units (as defined in
Section 4) until the expiration of the Option Term. Except as otherwise
provided in Section 7(a) of the Plan and Section 4(c) hereof, upon a Termination
of Relationship, the unvested portion of the Option (i.e. that portion which
does not constitute Vested Option Units) shall
terminate.
SECTION 3. TERM. The term of the Option (the "Option Term") shall
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commence on the date hereof (the "Grant Date") and expire on the tenth
anniversary of the Grant Date, unless the Option shall have sooner been
terminated in accordance with the terms of the Plan (including, without
limitation, Section 7 of the Plan) or this Agreement.
SECTION 4. TIME VESTING. (a) On the terms and subject to the
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conditions contained in the Plan and this Agreement, unless accelerated in the
sole discretion of the Committee or pursuant to Section 4(b) or 4(c) hereto or
Section 5(c) of the Plan, the Option shall vest and become exercisable on April
1 of each of 1998, 1999, 2000 and 2001 as to 25% of the Option Units (such
vested Option Units are referred to herein as "Vested Option Units").
(b) Notwithstanding Section 4(a) above, the Option shall vest with
respect to the entire number of Option Units immediately upon the occurrence of
a Sale of the Company.
(c) Notwithstanding Section 4(a) above, upon a Termination of
Relationship by the Company without "Cause", a pro rata portion (based on the
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number of months elapsed since the April 1 occurring immediately prior to such
Termination of Relationship divided by twelve) of the Option Units which would
have vested on the April 1 following the date of such Termination of
Relationship will vest and become immediately exercisable in accordance with the
terms of the Plan.
SECTION 5. SALE OF THE COMPANY AFTER TERMINATION OF OPTION. If the
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Option is terminated pursuant to Section 7(a)(iii) of the Plan as a result of a
Termination of Relationship by the Company without "Cause" and the Company
consummates a Sale of the Company at any time during the one year period
following the date that the Optionee ceases to be employed by the Company (the
"Termination Date"), then the Optionee shall be entitled to receive, in
connection with such Sale of the Company, an amount equal to the sum of (i) the
per Unit consideration (payable in cash or such other property received in such
Sale of the Company, at the Company's election) paid to holders of Units in
connection therewith multiplied by the aggregate number of Option Units which
were either unvested on the Termination Date or which remain unexercised on the
date of termination of the Option as of the date of such Sale of the Company
less (ii) the exercise price payable for such unvested or unexercised Option
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Units.
SECTION 6. RESTRICTION ON TRANSFER. The Option may
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not be transferred, pledged, assigned, hypothecated or otherwise disposed of in
any way by the Optionee and may be exercised during the lifetime of the Optionee
only by the Optionee. If the Optionee dies, the Option shall thereafter be
exercisable, during the period specified in Section 7 of the Plan, by his
executors or administrators to the full extent to which the Option was
exercisable by the Optionee at the time of his death. The Option shall not be
subject to execution, attachment or similar process. Any attempted assignment,
transfer, pledge, hypothecation or other disposition of the Option contrary to
the provisions hereof, and the levy of any execution, attachment or similar
process upon the Option, shall be null and void and without effect.
SECTION 7. OPTIONEE'S EMPLOYMENT. Nothing in the Option shall confer
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upon the Optionee any right to continue in the employ of the Company or any of
its affiliates or interfere in any way with the right of the Company or its
affiliates or stockholders, as the case may be, to terminate the Optionee's
employment or to increase or decrease the Optionee's compensation at any time.
SECTION 8. NOTICES. All notices, claims, certificates, requests,
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demands and other communications hereunder shall be in writing and shall be
deemed to have been duly given and delivered if personally delivered or if sent
by nationally-recognized overnight courier, by telecopy, or by registered or
certified mail, return receipt requested and postage prepaid, addressed as
follows:
(a) if to the Company, to it at:
PMT Holdings, Inc.
c/o Eos Partners, L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000; and
(b) if to the Optionee, to him at the address set forth on the
signature page hereto;
or to such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith. Any such notice
or communication shall be deemed to have been received (i) in the case of
personal delivery, on the date of such delivery (or if such date is not a
business day, on the next business after the date of delivery), (ii) in the case
of nationally-recognized overnight courier, on the next business day after the
date sent, (iii) in the case of telecopy transmission, when received (or if not
sent on a business day, on the next business day after the date sent), and (iv)
in the case of mailing, on the third business day following
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that on which the piece of mail containing such communication is posted.
SECTION 9. WAIVER OF BREACH. The waiver by either party of a breach
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of any provision of this Agreement must be in writing and shall not operate or
be construed as a waiver of any other or subsequent breach.
SECTION 10. OPTIONEE'S UNDERTAKING. The Optionee hereby agrees to
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take whatever additional actions and execute whatever additional documents the
Company may in its reasonable judgment deem necessary or advisable in order to
carry out or effect one or more of the obligations or restrictions imposed on
the Optionee pursuant to the express provisions of this Agreement and the Plan.
SECTION 11. MODIFICATION OF RIGHTS. The rights of the Optionee are
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subject to modification and termination in certain events as provided in this
Agreement and the Plan; provided, however, that no amendment of the Plan or this
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Agreement that would materially adversely affect the rights of the Optionee
under this Agreement shall be effective against the Optionee without his written
consent.
SECTION 12. GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND
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CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW OR CONFLICTING PROVISION OR RULE (WHETHER OF THE
STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE OF DELAWARE TO BE APPLIED. IN FURTHERANCE OF
THE FOREGOING, THE INTERNAL LAW OF THE STATE OF DELAWARE WILL CONTROL THE
INTERPRETATION AND CONSTRUCTION OF THIS AGREEMENT, EVEN IF UNDER SUCH
JURISDICTION'S CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF
SOME OTHER JURISDICTION WOULD ORDINARILY APPLY.
SECTION 13. COUNTERPARTS. This Agreement may be executed in one or
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more counterparts, and each such counterpart shall be deemed to be an original,
but all such counterparts together shall constitute but one agreement.
SECTION 14. ENTIRE AGREEMENT. This Agreement and the Plan (and the
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other writings referred to herein) constitute the entire agreement between the
parties with respect to the subject matter hereof and thereof and supersede all
prior written or oral negotiations, commitments, representations and agreements
with respect thereto.
SECTION 15. SEVERABILITY. It is the desire and intent of the parties
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hereto that the provisions of this Agreement be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, if any particular provision of this
Agreement shall be adjudicated by a court of competent
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jurisdiction to be invalid, prohibited or unenforceable for any reason, such
provision, as to such jurisdiction, shall be ineffective, without invalidating
the remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction. Notwithstanding the
foregoing, if such provision could be more narrowly drawn so as not to be
invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such
jurisdiction, be so narrowly drawn, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction.
SECTION 16. WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN
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CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY
RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE
LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR
DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO
ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
SUIT OR PROCEEDING BROUGHT TO ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES UNDER
THIS AGREEMENT OR ANY DOCUMENTS RELATED HERETO.
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IN WITNESS WHEREOF, the parties hereto have executed this Service Stock Option
Agreement as of the date first written above.
PMT HOLDINGS, INC.
By:
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Name:
Title:
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XXXXXX XXXXX
Address:
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Telephone:
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Telecopier:
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SCHEDULE B TO EXHIBIT 10.16
The following agreements are substantially identical in all material
respects (except for the named parties) to Exhibit 10.16:
Service Stock Option Agreement dated as of March 31, 1997 between
the Company and Angeli.
Service Stock Option Agreement dated as of March 31, 1997 between
the Company and Xxxxx.
