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Exhibit 10.4
STOCK OPTION AGREEMENT
(Incentive Stock Option)
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THIS AGREEMENT is made to be effective as of January 4, 1995 (the
"GRANT DATE"), by and between Xxxxxx Corporation, an Ohio corporation (the
"COMPANY"), and Xxxxxx X. Xxxxx, Xx. (the "OPTIONEE").
WITNESSETH:
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WHEREAS, the Board of Directors of the COMPANY adopted the Xxxxxx
Corporation Incentive Stock Plan (the "PLAN") on February 28, 1994; and
WHEREAS, the shareholders of the COMPANY, upon the recommendation of
the COMPANY's Board of Directors, approved the PLAN on March 3, 1994; and
WHEREAS, on the date of this Agreement the OPTIONEE holds an option
(the "ORIGINAL OPTION") to purchase fifteen thousand (15,000) SHARES, pursuant
to that certain stock option agreement dated March 9, 1994, between the COMPANY
and the OPTIONEE;
WHEREAS, the exercise price per SHARE of the ORIGINAL OPTION is Eleven
and 50/100 Dollars ($11.50) which was the fair market value per SHARE on the
date of grant of the ORIGINAL OPTION;
WHEREAS, the fair market value per SHARE on the GRANT DATE is Four and
50/100 Dollars ($4.50), which is greater than the exercise price;
WHEREAS, pursuant to the provisions of the PLAN, the Board of Directors
of the COMPANY has appointed a committee (the "COMMITTEE") to administer the
PLAN, and the COMMITTEE has determined that the ORIGINAL OPTION no longer
provides an incentive to the OPTIONEE, as intended by the COMMITTEE when
granting the ORIGINAL OPTION;
WHEREAS, the COMMITTEE has determined to cancel the ORIGINAL OPTION and
in replacement thereof to grant the OPTIONEE an option to purchase the same
number of SHARES (that is, 15,000 SHARES) at an exercise price equal to 100% of
the Fair Market Value (as that term is defined in the PLAN) on the GRANT DATE;
NOW, THEREFORE, in consideration of the premises, the parties hereto
make the following agreement, intending to be legally bound thereby:
1. PLAN AS CONTROLLING. All terms and conditions of the PLAN, as it may
be amended from time to time, applicable to options granted thereunder shall be
deemed incorporated herein by reference. A copy of the PLAN as in effect on the
date of this Agreement is attached hereto as Annex A. In the event that any
provision in this Agreement conflicts with any term in the PLAN, the term in the
PLAN shall be deemed controlling.
2. CANCELLATION OF ORIGINAL OPTION AND GRANT OF REPLACEMENT OPTION. The
COMPANY hereby cancels and the OPTIONEE agrees to the cancellation of, the
ORIGINAL OPTION. In replacement of the ORIGINAL OPTION, the COMPANY hereby
grants to the OPTIONEE an option (the
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"REPLACEMENT OPTION") to purchase fifteen thousand (15,000) shares. The
REPLACEMENT OPTION is intended to qualify as an incentive stock option under
Section 422 of the Internal Revenue Code of 1986, as amended (the "CODE").
3. TERMS AND CONDITIONS OF THE OPTION.
(A) EXERCISE PRICE. The purchase price (the "EXERCISE PRICE") to be
paid by the OPTIONEE to the COMPANY upon the exercise of the REPLACEMENT OPTION
shall be $4.50 per SHARE, being 100% of the Fair Market Value (as that term is
defined in the PLAN) of the SHARES on the GRANT DATE.
(B) EXERCISE OF THE OPTION. The OPTIONEE may exercise the REPLACEMENT
OPTION, from time to time, and at any time, after the SHARES subject thereto
have vested. Subject to the provisions of the PLAN and the other provisions of
this Agreement, the REPLACEMENT OPTION shall remain exercisable as to the SHARES
subject thereto which have vested until the date of expiration of the
REPLACEMENT OPTION term. In accordance with the vesting schedule set forth
below, twenty percent (20%) of the SHARES subject to the REPLACEMENT OPTION
shall vest for the first time on each of the first, second, third, fourth and
fifth year anniversaries, respectively, of the GRANT DATE.
Anniversaries of the GRANT DATE
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First Year Second Year Third Year Fourth Year Fifth Year
20% Vested 40% Vested 60% Vested 80% Vested 100% Vested
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Total Total Total Total Total
Number of Number of Number of Number of Number of
SHARES Vested SHARES Vested SHARES Vested SHARES Vested SHARES Vested
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3,000 3,000 3,000 3,000 3,000
The grant of this REPLACEMENT OPTION shall not confer upon the OPTIONEE
any right to continue in the employment of the COMPANY or any Subsidiary nor
limit in any way the right of the COMPANY or a Subsidiary to terminate the
employment of the OPTIONEE at any time.
(C) FULL VESTING UPON CHANGE IN CONTROL. Notwithstanding the foregoing,
the REPLACEMENT OPTION shall fully vest with respect to all SHARES subject
thereto upon the occurrence of a "CHANGE IN CONTROL." For purposes of this
Agreement, the term "CHANGE IN CONTROL" shall mean the occurrence of any event
which results in either: (a) Xxxxxx Realty Company's failing to own at least
thirty percent (30%) of the combined voting power of the then outstanding voting
securities of the COMPANY entitled to vote generally in the election of
directors; or (b) both Xxxxxx Xxxxxx and Xxxxxxx Xxxxxx ceasing to be directors
and officers of the COMPANY.
(D) OPTION TERM. The REPLACEMENT OPTION shall in no event be
exercisable after the expiration of ten (10) years from the GRANT DATE.
(E) METHOD OF EXERCISE. The REPLACEMENT OPTION may be exercised by
giving written notice of exercise to the COMMITTEE in care of the Treasurer of
the COMPANY stating the number of SHARES subject to the REPLACEMENT OPTION in
respect of which it is being exercised. The OPTIONEE shall be required, as a
condition precedent to the OPTIONEE's right to exercise the REPLACEMENT OPTION
and at the OPTIONEE's expense, to supply the COMMITTEE with such evidence,
representations and agreements as the COMMITTEE may deem necessary or desirable
to establish the OPTIONEE's right to exercise the
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REPLACEMENT OPTION and the propriety OF THE SALE OF THE shares by reason of such
exercise under the Securities Act of 1933, as amended from time to time (the
"Securities Act"), and any other laws or requirements of any governmental
authority. Without limiting the generality of the foregoing, the REPLACEMENT
OPTION shall not be exercisable unless the sale of the SHARES by reason of such
exercise has been registered under the Securities Act and all other applicable
securities laws of any jurisdiction or unless such sale is exempt from such
registration requirements.
Payment of the EXERCISE PRICE for all such SHARES shall be made to the
COMPANY at the time the REPLACEMENT OPTION is exercised in such form as
authorized by Section 6(d) of the PLAN. After payment in full for the SHARES
purchased under the REPLACEMENT OPTION has been made, the COMPANY shall take all
such action as is necessary to deliver appropriate stock certificates evidencing
the SHARES purchased upon the exercise of the REPLACEMENT OPTION as promptly
thereafter as is reasonably practicable.
(F) SATISFACTION OF TAXES AND TAX WITHHOLDING REQUIREMENTS. The COMPANY
or a Subsidiary shall be entitled and is authorized, if the COMMITTEE deems it
necessary or desirable, to withhold (or secure payment from the OPTIONEE in lieu
of withholding) as provided in Section 10(e) of the PLAN. The COMPANY may defer
delivery of any SHARES pursuant to the exercise of the REPLACEMENT OPTION unless
indemnified to its satisfaction in this regard.
4. ADJUSTMENTS AND CHANGES IN THE SHARES SUBJECT TO THE REPLACEMENT
OPTION. In the event that any dividend or other distribution (whether in the
form of SHARES, other securities or other property), recapitalization, stock
split, reverse stock slit, reorganization, merger, consolidation, split-up,
spin-off, combination, repurchase, or exchange of SHARES or other securities of
the COMPANY, issuance of warrants or other rights to purchase SHARES or other
securities of the COMPANY, or other similar corporate transaction or event
affects the SHARES such that an adjustment is necessary in order to prevent
dilution or enlargement of the benefits or potential benefits intended to be
made available under the PLAN to the OPTIONEE, then the COMMITTEE shall
proportionately adjust either or both (as necessary) of: (i) the number of
SHARES or other securities of the COMPANY (or number and kind of other
securities or property) subject to the REPLACEMENT OPTION; and (ii) the EXERCISE
PRICE with respect to the REPLACEMENT OPTION.
5. NON-ASSIGNABILITY OF THE REPLACEMENT OPTION.
(A) During the lifetime of the OPTIONEE, the REPLACEMENT OPTION shall
not be assignable or transferable and may be exercised only by the OPTIONEE, or,
if permissible under applicable law, by the OPTIONEE's guardian or legal
representative or a transferee receiving the REPLACEMENT OPTION pursuant to a
qualified domestic relations order ("QDRO"), as determined by the COMMITTEE.
(B) The REPLACEMENT OPTION may not be assigned, alienated, pledged,
attached, sold or otherwise transferred or encumbered by the OPTIONEE otherwise
than by will or the laws of descent and distribution or pursuant to a QDRO, and
any such purported assignment, alienation, pledge, attachment, sale, transfer or
encumbrance shall be void and unenforceable against the COMPANY or any
Subsidiary.
6. EXERCISE AFTER TERMINATION OF EMPLOYMENT.
(A) Except as otherwise provided in this Agreement or in the PLAN, the
REPLACEMENT OPTION: (i) is exercisable only by the OPTIONEE; (ii) is exercisable
only while the OPTIONEE is in the employment of the COMPANY or a Subsidiary of
the COMPANY and then only if the REPLACEMENT OPTION has become exercisable by
its terms; and (iii) if not exercisable by its terms at the time the
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OPTIONEE ceases to be in the employment of the COMPANY and its Subsidiaries,
shall immediately expire on the date of termination of employment.
(B) Except as otherwise provided in this Section 6, if the REPLACEMENT
OPTION is exercisable by its terms at the time the OPTIONEE ceases to be in the
employment of the COMPANY, by reason of retirement or otherwise, it must be
exercised on or before the earlier of three months after the date of termination
of employment or the fixed expiration date of the REPLACEMENT OPTION, after
which period the REPLACEMENT OPTION shall expire.
(C) In the event of the death of the OPTIONEE while in the employment
of the COMPANY, the unexercised portion of the REPLACEMENT OPTION (to the extent
then exercisable by its terms) shall be exercisable by his estate for a period
ending on the earlier of the fixed expiration date of the REPLACEMENT OPTION OR
twelve months after the date of death, after which period the REPLACEMENT OPTION
shall expire. For purposes hereof, the estate of the OPTIONEE shall be defined
to include the legal representative thereof or any person who has acquired the
right to exercise the REPLACEMENT OPTION by reason of the death of the OPTIONEE.
(D) In the event of the termination of employment by reason of the
"disability" of the OPTIONEE, the unexercised portion of the REPLACEMENT OPTION
(to the extent then exercisable by its terms) shall be exercisable by the
OPTIONEE for a period ending on the earlier of twelve months after the
termination of employment or the fixed expiration date of the REPLACEMENT
OPTION. For purposes hereof, "disability" shall have the same meaning as that
set forth for that term in Section 22(e)(3) of the CODE, or any successor
provision as in effect from time to time.
7. RESTRICTIONS ON TRANSFERS OF SHARES. Anything contained in this
Agreement or elsewhere to the contrary notwithstanding, the REPLACEMENT OPTION
may not be exercised if the COMMITTEE determines that the sale of SHARES upon
exercise of the REPLACEMENT OPTION may violate the Securities Act or any other
law or requirement of any governmental authority. Any appropriate restrictive
legend shall be placed on certificates representing SHARES acquired upon the
exercise of the REPLACEMENT OPTION, unless the COMMITTEE determines, upon the
advice of counsel to the COMPANY, that such legend is not required because of
the existence of an effective registration statement registering the SHARES
under the Securities Act or because of all applicable federal and state legal
requirements have been satisfied.
8. NO RIGHTS OF THE OPTIONEE AS A SHAREHOLDER. The OPTIONEE shall have
no rights as a shareholder of the COMPANY with respect to any SHARES covered by
the REPLACEMENT OPTION until the date of issuance of a certificate to the
OPTIONEE evidencing such SHARES.
9. GOVERNING LAW. The rights and obligations of the OPTIONEE and the
COMPANY under this Agreement shall be governed by and construed in accordance
with the laws of the State of Ohio (without giving effect to the conflict of
laws principles thereof) in all respects, including, without limitation, matters
relating to the validity, construction, interpretation, administration, effect,
enforcement, and remedies provisions of the PLAN and its rules and regulations,
except to the extent preempted by applicable federal law.
10. RIGHTS AND REMEDIES CUMULATIVE. All rights and remedies of the
COMPANY and of the OPTIONEE enumerated in this Agreement shall be cumulative
and, except as expressly provided otherwise in this Agreement, none shall
exclude any other rights or remedies allowed by law or in equity, and each of
said rights or remedies may be exercised and enforced concurrently.
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11. CAPTIONS. The captions contained in this Agreement are included
only for convenience of reference and do not define, limit, explain or modify
this Agreement or its interpretation, construction or meaning and are in no way
to be construed as a part of this Agreement.
12. SEVERABILITY. If any provision of this Agreement or the application
of any provision hereof to any person or any circumstance shall be determined to
be invalid or unenforceable, then such determination shall not affect any other
provision of this Agreement or the application of said provision to any other
person or circumstance, all of which other provisions shall remain in full force
and effect, and it is the intention of each party to this Agreement that if any
provision of this Agreement is susceptible of two or more constructions, one of
which would render the provision enforceable and the other or others of which
would render the provision unenforceable, then the provision shall have the
meaning which renders it enforceable.
13. NUMBER AND GENDER. When used in this Agreement, the number and
gender of each pronoun shall be construed to be such number and genera as the
context, circumstances or its antecedent may require.
14. AMENDMENT, ETC. OF REPLACEMENT OPTION. The COMMITTEE may waive any
conditions or rights under, amend any terms of, or alter, suspend, discontinue,
cancel or terminate, the REPLACEMENT OPTION, prospectively or retroactively;
provided that any such waiver, amendment, alteration, suspension,
discontinuance, cancellation or termination that would impair the rights of the
OPTIONEE or any holder or beneficiary of the REPLACEMENT OPTION shall not to
that extent be effective without the consent of the OPTIONEE, holder or
beneficiary.
15. ENTIRE AGREEMENT. This Agreement, including the PLAN as amended
from time to time incorporated by referenced herein, constitutes the entire
agreement between the COMPANY and the OPTIONEE in respect of the subject matter
of this Agreement, and this Agreement supersedes all prior and contemporaneous
agreements between the parties hereto in connection with the subject matter of
this Agreement. No change, termination or attempted waiver of any of the
provisions of this Agreement shall be binding upon any party hereto unless
contained in a writing signed by the party to be charged.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed to be effective as of the date first above written.
COMPANY:
XXXXXX CORPORATION
By: /s/Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
President
OPTIONEE:
/s/Xxxxxx X. Xxxxx, Xx.
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Xxxxxx X. Xxxxx, Xx.
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