EXHIBIT 10.44
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XXXXXX INTERNATIONAL INDUSTRIES, INCORPORATED
NONQUALIFIED STOCK OPTION AGREEMENT
FOR NON-OFFICER DIRECTORS
THIS STOCK OPTION AGREEMENT (the "Agreement") dated as of
__________, by and between XXXXXX INTERNATIONAL
INDUSTRIES, INCORPORATED, a Delaware Corporation (the
"Company"), and __________ (the "Optionee"):
W I T N E S S E T H:
WHEREAS, the Optionee is a non-officer director of the Board of
Directors (the "Board") of the Company; and
WHEREAS, pursuant to the terms of the Xxxxxx International
Industries, Incorporated 1992 Incentive Plan (the "Plan"), on __________,
(the "Date of Grant"), Optionee was granted automatically a nonqualified
option (the "Option") to purchase __________ shares (the "Option
Shares") of the Company's Common Stock, par value $0.01 per share (the
"Common Stock"), at a price per share of $__________, which is the
closing price of the Common Stock on the Date of Grant (the "Exercise
Price");
NOW, THEREFORE, in consideration of these premises and the
covenants and agreements set forth in this Agreement, the Company and
the Optionee agree as follows:
1. Grant of Option. In accordance with and pursuant to the terms and
conditions of the Plan, the Company hereby grants to the Optionee the
Option to purchase the Option Shares at the Exercise Price, and agrees to
cause certificates for any Option Shares purchased hereunder to be
delivered to the Optionee upon full payment of the Exercise Price, subject
to the applicable terms and conditions of the Plan and the terms and
conditions set forth herein.
2. Type of Option. This Option is intended to be a nonqualified stock
option and shall not be treated as an "incentive stock option" within the
meaning of that term under Section 422 of the Internal Revenue Code of
1986, as amended.
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3. Vesting of Option. (a) Unless and until terminated as hereinafter
provided, the Option shall become exercisable to the extent of one-fifth of
the Option Shares on each of the first five anniversaries of the Date of
Grant.
(b) Notwithstanding the provisions of paragraph 3(a) above, the Option
shall become immediately exercisable in full (unless previously terminated
as hereinafter provided) upon the occurrence of a change in control of the
Company. A "change in control of the Company" means the occurrence,
before the Agreement terminates, of any of the following events:
(i) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a
"Person") of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 25% or more of the combined
voting power of the then outstanding securities of the Company entitled to
vote generally in the election of directors (the "Voting Stock"); provided,
however, that for purposes of this Section 3(b)(i), the following
acquisitions shall not constitute a Change in Control: (A) any issuance of
Voting Stock of the Company directly from the Company that is approved
by the Incumbent Board (as defined in Section 3(b)(ii), below), (B) any
acquisition by the Company or a Subsidiary of Voting Stock of the
Company, (C) any acquisition of Voting Stock of the Company by any
employee benefit plan (or related trust) sponsored or maintained by the
Company or any Subsidiary, or (D) any acquisition of Voting Stock of the
Company by any Person pursuant to a Business Combination that
complies with clauses (A), (B) and (C) of Section 3(b)(iii), below; or
(ii) individuals who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a majority
of the Board; provided, however, that any individual becoming a Director
after the date hereof whose election, or nomination for election by the
Company's shareholders, was approved by a
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vote of at least two-thirds of the Directors then comprising the Incumbent
Board (either by a specific vote or by approval of the proxy statement of
the Company in which such person is named as a nominee for director,
without objection to such nomination) shall be deemed to have been a
member of the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of an actual
or threatened election contest (within the meaning of Rule 14a-11 of the
Exchange Act) with respect to the election or removal of Directors or
other actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board; or
(iii) consummation of a reorganization, merger or consolidation, a sale
or other disposition of all or substantially all of the assets of the Company,
or other transaction (each, a "Business Combination"), unless, in each
case, immediately following such Business Combination, (A) all or
substantially all of the individuals and entities who were the beneficial
owners of Voting Stock of the Company immediately prior to such
Business Combination beneficially own, directly or indirectly, more than
50% of the combined voting power of the then outstanding shares of
Voting Stock of the entity resulting from such Business Combination
(including, without limitation, an entity which as a result of such
transaction owns the Company or all or substantially all of the Company's
assets either directly or through one or more subsidiaries), (B) no Person
(other than the Company, such entity resulting from such Business
Combination, or any employee benefit plan (or related trust) sponsored or
maintained by the Company, any Subsidiary or such entity resulting from
such Business Combination) beneficially owns, directly or indirectly, 25%
or more of the combined voting power of the then outstanding shares of
Voting Stock of the entity resulting from such Business Combination, and
(C) at least a majority of the members of the Board of Directors of the
entity resulting from such Business Combination were members of the
Incumbent Board at the time of the
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execution of the initial agreement or of the action of the Board providing
for such Business Combination; or
(iv) approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company, except pursuant to a Business
Combination that complies with clauses (A), (B) and (C) of
Section 3(b)(iii).
4. Manner of Exercise. (a) To the extent that the Option shall have
become exercisable in accordance with Section 3 hereof, the Option may
be exercised by the Optionee at any time, or from time to time, in whole or
in part, during the term thereof, but only in multiples of fifty (50) shares.
(b) The Optionee shall exercise the Option by delivering a signed
written notice to the Company, which notice shall specify the number of
Option Shares to be purchased and be accompanied by payment in full of
the Exercise Price for the number of Option Shares specified for purchase.
(c) The Exercise Price shall be payable (i) in cash or by check
acceptable to the Company, (ii) by transfer to the Company of Common
Stock that has been owned by the Optionee for more than six months prior
to the date of exercise or (iii) by a combination of any of the foregoing
methods of payment.
5. Termination. (a) The Option shall terminate on the earliest of the
following dates:
(i) Ninety days after the Optionee ceases to be a director of the
Company for any reason other than death or permanent disability;
(ii) One year after the death or permanent disability of the Optionee, if
the Optionee dies or becomes permanently disabled while a director of the
Company or within the period of 90 days referred to in paragraph 3(a)
above; or
(iii) Ten years from the Date of Grant.
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(b) During the period of 90 days referred to in Section 5(a)(i) above
and the period of one year referred to in Section 5(a)(ii) above, the Option
may be exercised only to the extent that it shall have become exercisable
pursuant to Section 3 hereof at the time that the Optionee ceases to be a
director of the Company.
(c) In the event that the Optionee commits an act that a majority of the
remaining members of the Board determines to have been intentionally
committed and materially inimical to the interests of the Company, the
Option shall terminate as of the time of the commission of that act,
notwithstanding any other provision of this Agreement.
6. Share Certificates. All certificates evidencing Option Shares
purchased pursuant hereto (and any certificates for Common Stock
attributable to the shares acquired by exercise of the Option which, in the
opinion of counsel for the Company, are subject to similar legal
requirements) shall have endorsed thereon before issuance such legends as
the Company's counsel may deem necessary or advisable. The Company
and any transfer agent shall not be required to transfer any such shares
unless and until the Company or its transfer agent shall have received from
counsel to the Optionee, in a form satisfactory to the Company, an opinion
that any such transfer will not be in violation of any applicable law or
regulation. Optionee agrees not to sell, assign, pledge, or otherwise
dispose of any shares without the Company first receiving such an
opinion.
7. Transfer. The Option may not be transferred except by will or the
laws of descent and distribution and may not be exercised during the
lifetime of the Optionee except by the Optionee or the Optionee's
guardian or legal representative acting on behalf of the Optionee in a
fiduciary capacity under state law and court supervision.
8. Compliance with Law. The Company shall make reasonable efforts
to comply with all applicable federal or state securities laws; provided,
however, that notwithstanding any
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other provision of this Agreement, the Option shall not be exercisable if
the exercise would involve a violation of any such laws.
9. Adjustments. The committee(s) of the Board of Directors of the
Company described in Section 16(a) of the Plan may make such
adjustments in the number and kind of shares of securities covered by this
Agreement as the committee(s) may determine to be equitably required in
order to prevent any dilution or expansion of the rights of the Optionee
that otherwise would result from any:
(a) stock dividend, stock split, combination of shares, recapitalization
or other change in the capital structure of the Company;
(b) merger, consolidation, spin-off, reorganization, partial or complete
liquidation or issuance of rights or warrants to purchase securities of the
Company; or
(c) other corporate transaction or event having an effect similar to any
of the foregoing.
10. Fractional Shares. The Company shall not be required to issue any
fractional share of Common Stock pursuant to the Option. The Board of
Directors may provide for the elimination of fractions or for the settlement
of fractions in cash.
11. Withholding Taxes. If the Company shall be required to withhold
any federal, state, local or foreign tax in connection with the exercise of
the Option, it shall be a condition of the exercise of the Option that
Optionee pay to the Company the balance of such tax required to be
withheld or make provisions that are satisfactory to the Company for the
payment thereof.
12. Communications. All notices, demands and other communications
required or permitted hereunder or designated to be given with respect to
the rights or interests covered by the Agreement shall be deemed to have
been properly given or delivered when delivered personally or sent by
certified or registered mail, return receipt requested, U.S. mail or reputable
overnight carrier with full postage prepaid and addressed to the parties as
follows:
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If to the Company, at: 0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Attention: Vice President-
Financial Operations
If to the Optionee: Optionee's address provided by
Optionee on the last page hereof
Either the Company or Optionee may change the above designated address
by written notice to the other specifying such new address.
13. Interpretation. The interpretation and construction by the Board of
Directors of the Agreement shall be final and conclusive. No member of
the Board of Directors shall be liable for any such action or determination
made in good faith.
14. Amendment in Writing. In accordance with its terms (including
Section 17 of the Plan), this Agreement may be amended, but only in
writing which specifically references this Section and is signed by each of
the parties hereto.
15. Integration. The Option is granted pursuant to the Plan, and this
Agreement and the Option are subject to all of the terms and conditions of
the Plan, a copy of which is available upon request and incorporated
herein by reference. As such, this Agreement embodies the entire
agreement and understanding of the parties hereto with respect to the
Option, and supersedes any prior understandings or agreements, whether
written or oral, with respect to the Option.
16. Severance. In the event that one or more of the provisions of this
Agreement shall be invalidated for any reason by a court of competent
jurisdiction, any provision so invalidated shall be deemed to be separable
from the other provisions hereof and the remaining provisions hereof shall
continue to be valid and fully enforceable.
17. Governing Law. This agreement is made under, and shall be
construed in accordance with, the laws of the District of Columbia.
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18. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, this Agreement is executed by the Company
on the day and year first above written.
XXXXXX INTERNATIONAL INDUSTRIES,
INCORPORATED
By _____________________
Name:
The undersigned Optionee hereby acknowledges receipt of an executed
original of this Nonqualified Stock Option Agreement and accepts the
Option subject to the applicable terms and conditions of the Plan and the
terms and conditions hereinabove set forth.
__________________ Date: __________________
Optionee
OPTIONEE: Please complete the following information.
Name: _________________________
Home Address: _________________________
_________________________
_________________________
Social Security Number: _________________________
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