1
EXHIBIT 10.16
FORM OF STOCK OPTION SUBSTITUTION AGREEMENT ENTERED INTO BETWEEN THE REGISTRANT
AND CERTAIN EXECUTIVES
The Following Form Agreement was entered into between the Registrant and
Messrs. Xxxxxx, and Xxxx.
STOCK OPTION SUBSTITUTION AGREEMENT
THIS STOCK OPTION SUBSTITUTION AGREEMENT ("Agreement") is made and
entered into as of the 20th day of October, 1997, by and between XXXX (the
"Shareholder") and PENDA CORPORATION, a Florida corporation (the "Company").
Preliminary Statements:
A. The Shareholder, the Company and certain other shareholders and
former shareholders of the Company are parties to that certain Subscription and
Shareholders' Agreement, dated as of March 15, 1994, as amended (the "Original
Shareholders' Agreement").
B. The Company has heretofore adopted the Penda Corporation First
Amended and Restated Management Stock Option Plan, as amended (the "Original
Plan").
C. The Shareholder is a holder of "Options" (as such term is defined in
the Original Shareholders' Agreement) granted to him pursuant to Section 12.1 of
the Original Shareholders' Agreement (referred to herein as the "Original IRR
Options").
D. The Shareholder is a holder of "Options" (as such term is defined in
the Original Plan) granted to him pursuant to the Original Plan (referred to
herein as the "Original Plan Options"), none of which have been exercised.
E. The Company and the Shareholder desire to (i) terminate and cancel
the Original IRR Options and all Original Plan Options granted to the
Shareholder under the Original Plan other than stock options granted under the
Original Plan prior to January 1, 1997 as to which performance targets have been
satisfied (the "Surviving Options"), (ii) to suspend the grant of any further
stock options to the Shareholder under the Original Plan, (iii) to enter into a
Management Stock Option Plan and Agreement in the form of Exhibit A hereto (the
"New Plan"), and (iv) to terminate the Original Shareholders' Agreement and to
enter into a Shareholders' Agreement in the form of Exhibit B hereto (the "New
Shareholders' Agreement"), on the terms and subject to the conditions contained
in this Agreement.
Agreement:
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth in this Agreement, and such other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Shareholder and the
Company agree as follows:
1. Incorporation of Preamble and Preliminary Statements. The preamble
and Preliminary Statements set forth above are incorporated herein and made a
part hereof. For purposes of this Agreement, the term "Party" shall mean each of
the Company and the Shareholder and the term "Parties" shall mean, collectively,
the Company and the Shareholder.
2. New Plan and New Shareholders' Agreement. Concurrently with the
execution and delivery of this Agreement by the Parties, the Parties shall
execute and deliver the New Plan and the New Shareholders' Agreement. Upon the
execution and delivery of the New Plan and the New Shareholders Agreement, (i)
the Original Shareholders' Agreement (including, without limitation, the
Original IRR Options) shall be deemed terminated, void and of no further force
or effect as between the Company and the Shareholder, (ii) all Original Plan
Options (other than the Surviving Options, which shall remain in full force and
effect, subject to the terms and provisions of the
91
2
Original Plan) issued to the Shareholder under the Original Plan shall be deemed
terminated, void and of no further force or effect, and (iii) no further stock
options shall be granted to the Shareholder under the Original Plan. In
furtherance of the foregoing, concurrently with the execution and delivery of
this Agreement by the Parties, the Shareholder shall deliver to the Company
share certificates (the "Share Certificates") for all of the shares of the
Common Stock, par value $.01 per share, of the Company (the "Company Stock")
held of record by the Shareholder and by Xxxxxx X. Xxxxx & Co. Incorporated,
Trustee for the benefit of the Shareholder's Individual Retirement Account.
Thereupon, the Company shall cause all legends appearing on the reverse side of
the Share Certificates by virtue of the provisions of Article Eight of the
Original Shareholders' Agreement to be deleted and shall cause a sticker bearing
any legend required pursuant to the provisions of the New Shareholders'
Agreement to be affixed in replacement thereof. Immediately after such stickers
have been affixed to the Share Certificates, the Company shall redeliver the
Share Certificates to the Shareholder.
3. Mutual Limited Releases.
(a) Release by Shareholder. The Shareholder, for and on behalf
of his predecessors, successors, heirs, executors, administrators and assigns,
in acknowledgment of the consideration and other benefits provided herein, and
for other valuable consideration (receipt and sufficiency of which is hereby
acknowledged), hereby releases, acquits and forever discharges, the Company and
its predecessors and successors and its present and former subsidiaries, and
each and all of their respective shareholders, directors, officers, employees,
attorneys and agents, of and from any and all existing claims, causes of action
or liability of any kind whatsoever, whether known or unknown, contingent,
unmatured or unsuspected as of the date hereof, arising from or in any way
related to rights based upon, created by or derived from the Original
Shareholders' Agreement (including, without limitation, the Original IRR
Options), the Original Plan (other than with respect to any Surviving Options)
and the Original Options.
(b) Release by Company. The Company, for and on behalf of its
predecessors, successors and assigns, and its present and former subsidiaries,
and each and all of their respective shareholders, directors, officers and
employees, in acknowledgment of the consideration and other benefits provided
herein, and for other valuable consideration (receipt and sufficiency of which
is hereby acknowledged), hereby releases, acquits and forever discharges, the
Shareholder and his predecessors, successors, heirs, executors, administrators
and assigns, of and from any and all existing claims, causes of action or
liability of any kind whatsoever, whether known or unknown, contingent,
unmatured or unsuspected as of the date hereof, arising from or in any way
related to rights based upon, created by or derived from the Original
Shareholders' Agreement (including, without limitation, the Original IRR
Options), the Original Plan (other than with respect to any Surviving Options)
and the Original Options.
4. Covenant Not to Xxx.
(a) Covenant of Shareholder. The Shareholder agrees and
covenants not to xxx or assert any cause of action, either directly or
indirectly (without regard to when the action arose or arises) against the
Company, its predecessors, successors and assigns, and its present and former
subsidiaries, and each and all of their respective shareholders, directors,
officers, employees, attorneys and agents, arising from or in any way related to
rights based upon, created by or derived from the Original Shareholders'
Agreement (including, without limitation, the Original IRR Options), the
Original Plan (other than with respect to any Surviving Options) or the Original
Options on or after the date hereof.
(b) Covenant of Company. The Company agrees and covenants not
to xxx or assert any cause of action, either directly or indirectly (without
regard to when the action arose or arises) against the Shareholder, his
predecessors, successors, heirs, executors, administrators and assigns, arising
from or in any way related to rights based upon, created by or derived from the
Original Shareholders' Agreement (including, without limitation, the Original
IRR Options), the Original Plan (other than with respect to any Surviving
Options) or the Original Options on or after the date hereof.
92
3
5. Miscellaneous.
(a) Notices. Any notices, requests, demands and other
communications required or permitted to be given hereunder must be in writing
and, except as otherwise specified in writing, will be deemed to have been duly
given when personally delivered, telexed or facsimile transmitted, or three days
after deposit in the United States mail, by certified mail, postage prepaid,
return receipt requested, as follows. The addresses of the Corporation and the
Shareholder, which shall be considered to be their last known addresses unless
subsequently changed in accordance with the provisions of this Agreement, are as
follows:
To the Corporation:
Penda Corporation
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Telecopier: (000) 000-0000
Attention: General Counsel
To the Shareholder: c/o Penda Corporation
0000 X. Xxxxxxxxx Xxxxxx
P.O. Box 449
Portage, Wisconsin 53901-0449
(b) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(c) Choice of Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Florida without regard to
conflicts of laws principles thereof and all questions concerning the validity
and construction hereof shall be determined in accordance with the laws of said
state. The Company and the Shareholder hereby irrevocably submit to the
exclusive jurisdiction of any state or federal court sitting in the County of
Dade, State of Florida in any action or proceeding arising out of or relating to
this Agreement and each such person hereby irrevocably agrees, on behalf of
himself or itself and on behalf of such person's heirs, executors,
administrators, successors and assigns, that all claims in respect of such
action or proceeding may be heard and determined in any such court and
irrevocably waives any objection such person may now or hereafter have as to the
venue of any such suit, action or proceeding brought in such a court or that
such court is an inconvenient forum. The Company and the Shareholder further
agree that the mailing by certified or registered mail, return receipt
requested, to the addresses specified for notice in this Agreement, of any
process or summons required by any such court shall constitute valid and lawful
service of process against them, without the necessity for service by any other
means provided by statute or rule of court. In the event that an action or
proceeding arising out of or relating to this Agreement shall be commenced in a
court described in the second sentence of this Section 5(c) and such court, by a
final and nonappealable order, shall refuse to exercise in personam jurisdiction
over the Company or the Shareholder, as the case may be, then the parties hereto
shall not be precluded from litigating such action or proceeding in any other
court of competent jurisdiction.
(d) Waiver of Jury Trial. THE COMPANY AND THE SHAREHOLDER
HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY
ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT OR THE RELATIONSHIP
ESTABLISHED HEREUNDER.
(e) Successors. This Agreement shall be binding upon the
Parties, their heirs, executors, administrators, successors and assigns, and the
Parties do covenant and agree that they themselves and their respective heirs,
executors, administrators, successors and assigns will execute any and all
instruments, releases, assignments and consents that may be reasonably required
of them to more fully execute the provisions of this Agreement.
93
4
(f) Counterparts. This Agreement may be executed in several
counterparts, each of which shall serve as an original for all purposes, but all
copies of which shall constitute but one and the same Agreement.
(g) Headings. All headings set forth in this Agreement are intended for
convenience only and shall not control or affect the meaning, construction or
effect of this Agreement or of any of the provisions thereof.
(h) Amendments and Waivers. No provision of this Agreement may be
amended or waived without the prior written consent of the Parties.
(i) Entire Agreement. This Agreement (together with the New Plan and
the New Shareholders' Agreement) constitutes the entire Agreement of the parties
hereto with respect to the transactions contemplated hereby, and it is hereby
agreed that any prior oral or written agreements concerning the sale or
disposition of Company Stock shall be null and void.
(j) No Third Party Beneficiary. Except for the Company and the
Shareholder and their respective heirs, executors, administrators, successors
and assigns, nothing expressed or implied in this Agreement is intended, or will
be construed, to confer upon or give any person other than the parties hereto
and their respective heirs, personal representatives, successors and assigns any
rights or remedies under or by reason of this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement and hereby
indicate their acceptance of the foregoing terms and conditions as of the date
first written above.
PENDA CORPORATION
By:
--------------------------
Xxxx X. Xxxxxxxx
President and Chief Executive Officer
-----------------------------
XXXX
94
