STOCK OPTION AGREEMENT
AGREEMENT made as of September 13, 1996, by and
between Niagara Corporation (formerly International
Metals Acquisition Corporation), a Delaware corporation
("Niagara"), and Xxxxxxx X. Xxxxxx (the "Director").
WHEREAS, on August 15, 1995, Niagara's Board of
Directors (the "Board") approved the International Metals
Acquisition Corporation 1995 Stock Option Plan (the
"Plan");
WHEREAS, on May 16, 1996, Niagara's
stockholders approved the Plan;
WHEREAS, on September 13, 1996, on the
recommendation of the Compensation Committee of the Board
(the "Compensation Committee"), the Board amended the
Plan to provide for grants of stock options to directors
of Niagara and its subsidiaries (collectively, the
"Company"); and
WHEREAS, the Compensation Committee desires to
grant to the Director a Non-Qualified Stock Option under
the Plan to acquire an aggregate of 15,000 shares of
Niagara common stock, par value $.001 per share (the
"Stock"), on the terms set forth herein.
NOW, THEREFORE, the parties hereby agree as
follows:
1. Definitions. Capitalized terms not
otherwise defined herein shall have the meanings set
forth in the Plan.
2. Grant of Option. The Director is hereby
granted a Non-Qualified Stock Option (the "Option") to
purchase an aggregate of 15,000 shares of Stock, pursuant
to the terms of this Agreement and the provisions of the
Plan.
3. Option Price. The exercise price of the
Option shall be $5.50 per share of Stock issuable
pursuant to the exercise thereof.
4. Conditions to Exercisability. (a)
Immediately following the execution of this Agreement,
the Option shall be exercisable as to 10,000 shares of
Stock covered by the Option. The Option shall become
exercisable with respect to an additional 5,000 of such
shares on the first anniversary of this Agreement,
provided that the Director continues to serve as a
director of Niagara on such date.
(b) Notwithstanding the foregoing, the
Option shall become exercisable in full upon the
occurrence of a Change in Control of Niagara (as defined
in the Plan).
5. Period of Option. This Option shall expire
on the earliest to occur of:
(a) the tenth anniversary of the date of
this Agreement; and
(b) 90 days after the date on which the
Director, for any reason, ceases to serve as a director
of Niagara.
6. Exercise of Option. (a) The Option shall
be exercised in the following manner: the Director shall
deliver to Niagara written notice specifying the number
of shares of Stock which he elects to purchase. The
Director must include with such notice full payment of
the exercise price for the Stock being purchased pursuant
to such notice. Payment of the exercise price must be
made in cash or in shares of Stock having a Fair Market
Value equal to such Option price or in a combination of
cash and Stock. In lieu of full payment of the exercise
price in cash, upon request of the Director, Niagara may,
in its discretion, allow the Director to exercise the
Option or a portion thereof through a cashless exercise
procedure.
(b) Upon the disposition of shares of
Stock acquired pursuant to the exercise of the Option,
Niagara shall have the right to require the payment of
the amount of any taxes which are required by law to be
withheld with respect to such disposition.
(c) The Director will not be deemed to be
a holder of any shares of Stock pursuant to exercise of
the Option until the date of the issuance of a stock
certificate to him for such shares and until such shares
are paid for in full.
7. Entire Agreement. This Agreement and the
Plan contain all the understandings between the parties
hereto pertaining to the matters referred to herein, and
supersedes all undertakings and agreements, whether oral
or in writing, previously entered into by them with
respect thereto. The Director represents that, in
executing this Agreement, he does not rely and has not
relied upon any representation or statement not set forth
therein made by the Company with regard to the subject
matter, bases or effect of this Agreement or otherwise.
8. Amendment or Modification, Waiver. No
provision of this Agreement may be amended or waived
unless such amendment or waiver is agreed to in writing,
signed by the Director and by a duly authorized officer
of Niagara. No waiver by any party hereto of any breach
by another party hereto of any condition or provision of
this Agreement to be performed by such other party shall
be deemed a waiver of a similar or dissimilar condition
or provision at the same time, any prior time or any
subsequent time.
9. Notices. Any notice to be given hereunder
shall be in writing and shall be deemed given when
delivered personally, sent by courier or telecopy or
registered or certified mail, postage prepaid, return
receipt requested, addressed to the party concerned at
the address indicated below or to such other address as
such party may subsequently give notice of hereunder in
writing:
To the Director at:
X.X. Xxx 0000
Xxxxx Xxxxx, Xxxxxxx 00000
To Niagara at:
Niagara Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxx
Telecopy: (000) 000-0000
Any notice delivered personally or by courier
under this Section 9 shall be deemed given on the date
delivered and any notice sent by telecopy or registered
or certified mail, postage prepaid, return receipt
requested, shall be deemed given on the date telecopied
or mailed.
10. Severability. If any provision of this
Agreement or the application of any such provision to any
party or circumstances shall be determined by any court
of competent jurisdiction to be invalid and unenforceable
to any extent, the remainder of this Agreement or the
application of such provision to such person or
circumstances other than those to which it is so
determined to be invalid and unenforceable, shall not be
affected thereby, and each provision hereof shall be
validated and shall be enforced to the fullest extent
permitted by law.
11. Survival. The respective rights and
obligations of the parties hereunder shall survive any
termination of this Agreement to the extent necessary to
the intended preservation of such rights and obligations.
12. Governing Law. This agreement will be
governed by and construed in accordance with the laws of
the State of Delaware, without regard to its conflicts of
laws principles.
13. Headings. All descriptive headings of
sections and paragraphs in this Agreement are intended
solely for convenience, and no provision of this
Agreement is to be construed by reference to the heading
of any section or paragraph.
14. Construction. This Agreement is made
under and subject to the provisions of the Plan, and all
of the provisions of the Plan are hereby incorporated
herein as provisions of this Agreement. If there is a
conflict between the provisions of this Agreement and the
provisions of the Plan, the provisions of the Plan will
govern. By signing this Agreement, the Director confirms
that he has received a copy of the Plan and has had an
opportunity to review the contents thereof.
15. Counterparts. This Agreement may be
executed in counterparts, each of which shall be deemed
an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as of the date first above
written.
NIAGARA CORPORATION
By: /s/ Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx
President
Xxxxxxx X. Xxxxxx
