EXHIBIT 4.3
LONG TERM INCENTIVE PLAN
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT dated as of the Grant Date (the "Grant Date") set
forth on Schedule I hereto, between TRISTAR CORPORATION, a Delaware corporation
(the "Company"), and the employee of the Company or of a subsidiary of the
Company identified on Schedule I hereto (the "Employee").
On the Grant Date the Company granted to the Employee the option or
options hereinafter described pursuant to, and subject to and upon the terms and
conditions set forth in, the Tristar Corporation Long-Term Incentive Plan, as
amended from time to time (the "Plan"), and promptly thereafter notified the
Employee of the grant of such option or options.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth and for other good and valuable consideration, the parties hereto hereby
agree as follows:
1. GRANT OF OPTION.
(a) On the Grant Date, the Company irrevocably granted to the
Employee, as a matter of separate agreement and not in lieu of salary or
any other compensation for services, the right and option to purchase all
or any part of the aggregate number of shares of its Common Stock, par
value $.01 per share (the "Common Stock"), set forth on Schedule I hereto,
on the terms and conditions herein set forth.
(b) To the extent set forth in Schedule I hereto, the right and
option to purchase shares of Common Stock are intended to be an incentive
stock option (an "ISO") within the meaning of Section 422(b) of the
Internal Revenue Code of 1986, as amended (the "Code"). To the extent such
right and option to purchase shares of Common Stock as set forth on
Schedule I hereto is not identified as being intended to be an ISO, such
right and option will be considered a non-statutory option. In addition,
to the extent that a right and option to purchase shares of Common Stock
intended to be an ISO does not qualify as an ISO, such right and option,
to the extent that it does not so qualify, shall be converted to a
non-statutory option.
(c) The ISOs and non-statutory stock options granted to the Employee
hereunder are each referred to as an "Option" and collectively referred to
as the "Options".
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2. TERMS.
(a) EXERCISE PRICE. The exercise price per share for the shares of
Common Stock subject to an Option granted hereunder shall be the per share
amount set forth in Schedule I hereto for such Option (the "Exercise
Price"). With respect to any Option that is intended to be an ISO, the
Exercise Price shall not be less than the fair market value per share
(determined as of the date the Option is granted) of the Common Stock on
such date.
(b) VESTING. Subject to the provisions of Section 4 of this
Agreement and the Plan, the Option or Options granted hereunder shall
become exercisable as to the portions of the aggregate number of shares
covered by such Option as set forth on Schedule I hereto on and after each
of the related dates during the term of such Option set forth on Schedule
I hereto.
(c) TERM AND CONDITIONS OF EXERCISE. An Option granted hereunder
shall be exercisable in whole at any time or in part from time to time
during the term of such Option as to all or any of the shares then
purchasable under such Option, but not as to less than the minimum number
of shares stated on Schedule I hereto with respect to such Option (or the
shares then purchasable under the Option if less than such minimum) at any
one time; provided that if there is a Tandem SAR (as defined in the Plan)
outstanding which relates to any of the shares purchasable under such
Option, then the number of shares so purchasable shall be reduced by the
number of shares in respect of which the Tandem SAR has been exercised.
The term of the Option or Options subject hereto shall be for the
number of years from the Grant Date set forth on Schedule I hereto with
respect to such Option or such shorter period of time as is described in
Section 4. In no event shall the term of the Option exceed ten years from
the Grant Date.
Except as provided in Section 4, an Option granted hereunder shall
not be exercisable unless the Employee shall, at the time of exercise, be
an employee of the Company or of a subsidiary of the Company. The holder
of such Option shall have none of the rights of a shareholder with respect
to the shares subject to such Option until such shares are transferred to
the holder upon the exercise of such Option.
3. RESTRICTIONS ON TRANSFER. An Option granted hereunder shall not be
assignable or transferrable by the Employee except by will or by the laws of
descent and distribution, and subject to Section 4(a), such Option is
exercisable, during the Employee's lifetime, only by the Employee. The
designation of a beneficiary by the Employee shall not
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constitute a transfer. More particularly (but without limiting the generality of
the foregoing), such Option may not be assigned, transferred (except as
aforesaid), pledged or encumbered in any way (whether by operation of law or
otherwise) and shall not be subject to execution, attachment or similar process.
In the event of any attempted assignment, transfer, pledge, encumbrance or other
disposition of such Option contrary to the provisions hereof, or the levy of any
attachment or similar process upon such Option, such Option shall be null and
void and of no further effect.
4. STATUS OF OPTION UPON CERTAIN EVENTS. If the Employee's employment
shall terminate prior to the complete exercise of an Option granted hereunder,
then such Option shall thereafter be exercisable solely to the extent provided
in paragraphs (a) through (d) of this Section 4; provided, however, that (i)
such Option may not be exercised after the scheduled expiration date and (ii) if
the Employee's employment terminates for any reason other than as contemplated
by paragraphs (a) through (d) of this Section 4, the Compensation Committee (the
"Committee"), in its sole discretion, may designate a period following such
termination during which such Option shall remain exercisable (but in no event
shall such period extend beyond the scheduled expiration of such Option).
(a) DEATH OR DISABILITY OR RETIREMENT. If the Employee shall die, be
subject to Disability (as defined in Section 22(e)(3) of the Code) while
employed by the Company or a subsidiary or retire (as such term is used in
any of the Company's pension plans), an Option granted hereunder (unless
previously terminated pursuant to paragraphs (b), (c) or (d) below) may be
exercised as follows: (i) in the case of death, in full for the aggregate
number of shares covered thereby by the legatee or legatees of such Option
under the Employee's last will, or by the personal representatives or
distributes of the Employee, at any time within a period of one year after
the Employee's death, but in no event after the expiration of such Option
set forth in Section 2(c); (ii) in the case of Disability while employed
by the Company or a subsidiary, in full for the aggregate number of shares
covered thereby by the Employee or by the personal representatives of the
Employee if the Employee is unable to act for himself or herself, at any
time within a period of one year after the Employee ceases to be an
employee of the Company or one of its subsidiaries, but in no event after
the expiration of such Option set forth in Section 2(c) herein; and (iii)
in the case of retirement, for the number of shares for which such Option
shall have vested as provided on Schedule I hereto as of the date of such
retirement, by the Employee or by the personal representatives of the
Employee if the Employee is unable to act for himself or herself, at any
time within a period of three years after the date of such retirement, but
in no event after the expiration of the Option set forth in Section 2(c)
herein. If an ISO is exercised more than three months after the Employee's
retirement and the Employee has not died or incurred a Disability, such
Option will be converted to a non-statutory option.
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(b) TERMINATION WITH CAUSE. If the Employee's employment with the
Company or a subsidiary shall be terminated by the Company or such
subsidiary for "cause" (as defined below) prior to the exercise of any
part of the Option or Options granted hereunder, then such Option or
Options held by the Employee shall immediately terminate and be forfeited
unless the Committee, in its sole discretion, shall otherwise determine.
For this purpose, termination for "cause" shall have the meaning
established by the Committee or, in the absence thereof, shall include but
not be limited to, termination for insubordination, dishonesty,
incompetence, poor performance, moral turpitude, unauthorized disclosure
of confidential information of the Company, other misconduct of any kind
or Employee's refusal to perform the duties and responsibilities of his or
her position for any reason other than illness or incapacity.
(c) CHANGE IN EMPLOYMENT. The Option or Options granted hereunder
shall not be affected by any change of employment (or by any temporary
leave of absence approved by the Committee or by the Board itself), so
long as the Employee continues to be in the employ of the Company or of a
subsidiary of the Company.
5. ADJUSTMENTS. If all or any portion of an Option granted hereunder is
exercised subsequent to any stock dividend, stock split, recapitalization,
combination, exchange of shares, merger, consolidation, liquidation, split-up,
split-off, spin-off or other similar change in capitalization, any distribution
to stockholders, including a rights offering, other than regular cash dividends,
changes in the outstanding stock of the Company by reason of any increase or
decrease in the number of issued shares of Common Stock resulting from a
split-up or consolidation of shares or any similar capital adjustment or the
payment of any stock dividend, any share repurchase at a price in excess of the
closing market price (as determined by the Committee) of the Common Stock at the
time such repurchase is announced or other increase or decrease in the number of
such shares, the Committee may make such appropriate adjustments in the purchase
price paid upon exercise of such Option and the aggregate number and class of
shares or other securities or property issuable upon any such exercise as the
Committee shall, in its sole discretion, determine. In any such event, no
fractional share shall be issued upon any such exercise, and the aggregate price
paid shall be appropriately reduced on account of any fractional share not
issued; further, the minimum number of full shares which may be purchased upon
any such exercise shall be the minimum number specified on Schedule I hereto
adjusted proportionately.
6. PAYMENT; METHOD OF EXERCISE. Payment of the purchase price of the
shares of Common Stock subject to an Option granted hereunder may be made (i) in
any combination of cash or whole shares of Common Stock already owned by the
Employee or (ii) in shares of Common Stock withheld by the Company from the
shares of Common Stock otherwise issuable to the Employee as a result of the
exercise of such Option ("cashless
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exercise"). Subject to the terms and conditions of this Agreement, such Option
may be exercised by written notice to the Company at its principal office,
attention of the Secretary. Such notice shall (a) state the election to exercise
such Option, the number of shares in respect of which it is being exercised and
the manner of payment for such shares and (b) be signed by the person or persons
so exercising such Option and, in the event such Option is being exercised
pursuant to Section 4 by any person or persons other than the Employee,
accompanied by appropriate proof of the right of such person or persons to
exercise such Option. If the Option being exercised is an ISO and non-statutory
options have also been granted to the Employee hereunder, such notice shall also
identify whether the Option being exercised is an ISO and, if so, the number of
shares of Common Stock to be purchased pursuant to such exercise. Such notice
shall either (i) elect cashless exercise or be accompanied by payment of the
full purchase price of such shares, in which event the Company shall issue and
deliver a certificate or certificates representing such shares as soon as
practicable after the notice is received, or (ii) fix a date (not more than 10
business days from the date of such notice) for the payment of the full purchase
price of such shares at the Company's principal office, against delivery of a
certificate or certificates representing such shares. Cash payments of such
purchase price shall, in case of clause (i) or (ii) above, be made by cash or
check payable to the order of the Company. Common Stock payments (valued at the
closing market price on the date of exercise, as determined by the Committee),
shall be made by delivery of stock certificates in negotiable form. All cash and
Common Stock payments shall, in either case, be delivered to the Company at its
principal office, attention of the Secretary. Shares of Common Stock withheld
pursuant to a cashless exercise election shall be valued at the closing market
price on the date of exercise, as determined by the Committee. If certificates
representing Common Stock are used to pay all or part of the purchase price of
an Option granted hereunder, a replacement certificate shall be delivered by the
Company representing the number of shares delivered but not so used, and an
additional certificate shall be delivered representing the additional shares to
which the holder of such Option is entitled as a result of the exercise of such
Option. The certificate or certificates for the shares as to which such Option
shall have been so exercised shall be registered in the name of the person or
persons so exercising the Option and shall be delivered as aforesaid to or upon
the written order of the person or persons exercising such Option. All shares
issued as provided herein will be fully paid and nonassessable.
7. ADMINISTRATION. The Committee shall have the power to interpret the
Plan and this Agreement, and to adopt such rules for the administration,
interpretation and application of the Plan as are consistent therewith and to
interpret or revoke any such rules. All actions taken and all interpretations
and determinations made by the Committee shall be final and binding upon the
Employee, the Company and all other interested persons.
8. TAXES. The Company shall have the right to require the person
exercising an Option granted hereunder to pay an amount in cash or to retain or
sell without notice, or to demand surrender of, shares of Common Stock in value
sufficient to cover Federal, state or local income taxes, if any, required by
any governmental entity to be withheld or otherwise
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deducted and paid with respect to such transfer ("Withholding Tax"), and to make
payment (or to reimburse itself for payment made) to the appropriate taxing
authority of an amount in cash equal to the amount of such Withholding Tax,
remitting any balance to the person exercising such Option. For purposes of this
paragraph, the value of shares of Common Stock so retained or surrendered shall
be the closing market price of the Common Stock on the date that the amount of
the Withholding Tax is to be determined (the "Tax Date"), and the value of
shares of Common Stock so sold shall be the actual net proceeds (after deduction
of commissions) received by the Company from such sale. In order for any ISO
granted hereunder to be taxed as an incentive stock option within the meaning of
Section 422(b) of the Code, no disposition of the shares of Common Stock
acquired upon exercise of such Option may be made within the period or periods
specified in Section 422(a)(1) of the Code.
Notwithstanding the foregoing, the person exercising an Option granted
hereunder shall be entitled to satisfy the obligation to pay Withholding Taxes,
if any, in whole or in part, by providing the Company with funds sufficient to
enable the Company to pay such Withholding Tax or by requiring the Company to
retain or to accept upon delivery thereof by the person exercising such Option
shares of Common Stock sufficient in value (determined in accordance with the
last sentence of the preceding paragraph) to cover the amount of such
Withholding Tax. Except as may otherwise be permitted by the Committee, each
such election to have shares retained or to deliver shares for this purpose
shall be subject to the following restrictions: (i) the election must be in
writing and made on or prior to the Tax Date; (ii) the election shall be subject
to the disapproval of the Committee; and (iii) if the person exercising such
Option is subject to Section 16 of the Securities Exchange Act of 1934 (the
"Exchange Act"), an election to have shares retained to satisfy the Withholding
Tax must either (a) be an irrevocable election made after shareholder approval
of the Plan is received and at least six months prior to the Tax Date or (b)
take effect during the ten-business-day "window period" beginning on the third
business day following the date on which the Company releases for publication
its annual or quarterly financial statements and ending on the twelfth business
day following the date of release thereof.
9. RESERVES, ETC. Shares of Common Stock delivered upon the exercise of an
Option granted hereunder shall, in the discretion of the Board or the Committee,
be either shares of Common Stock heretofore or hereafter authorized and then
unissued, or previously issued shares of Common Stock heretofore or hereafter
acquired through purchase in the open market or otherwise, or some of each. The
Company shall be under no obligation to reserve or to retain in its treasury any
particular number of shares of Common Stock at any time, and no particular
shares, whether unissued or held as treasury shares, shall be identified as
those covered by an Option granted hereunder.
10. NO RIGHT TO CONTINUED EMPLOYMENT. Nothing in this Agreement or in the
Plan shall confer upon the Employee any right to continue in the employ of the
Company or shall interfere with or restrict in any way the rights of the
Company, which are hereby
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expressly reserved, to discharge the Employee at any time for any reason
whatsoever, with or without cause.
11. GENERAL RESTRICTIONS.
(a) An Option granted hereunder shall be subject to the requirement
that, if at any time the Committee shall determine that (i) the listing,
registration or qualification of the shares of Common Stock subject or
related thereto upon any securities exchange or under any state or Federal
law, or (ii) the consent or approval of any governmental regulatory body,
or (iii) an agreement by the recipient of such Option granted pursuant to
this Agreement with respect to the disposition of shares of Common Stock
is necessary or desirable (in connection with any requirement or
interpretation of any Federal or state securities law, rule or regulation)
as a condition of, or in connection with, the granting of such Option or
the issuance, purchase or delivery of shares of Common Stock thereunder,
such Option may not be exercised in whole or in part unless such listing,
registration, qualification, consent, approval or agreement shall have
been effected or obtained free of any conditions not acceptable to the
Committee.
(b) The Employee hereby (i) represents and warrants that any shares
of Common Stock issued, transferred or delivered to, or acquired by, the
Employee pursuant to this Agreement shall be acquired solely for the
Employee's own account for investment, and not with a view to any
distribution thereof that would violate the Securities Act of 1933 (the
"Securities Act") or the applicable securities laws of any state, (ii)
agrees that he or she will not distribute any such shares of Common Stock
in violation of the Securities Act or the applicable securities laws of
any state, and (iii) acknowledges that, unless notified to the contrary by
the Company, such shares of Common Stock will not have been registered
under the Securities Act or the securities laws of any state and must be
held indefinitely unless subsequently registered under the Securities Act
and any applicable state securities laws or unless an exemption from such
registration becomes or is available.
12. ENTIRE AGREEMENT; AMENDMENT. This Agreement together with the Plan
constitutes the entire agreement between the parties with respect to the subject
matter hereof. Any term or provision of this Agreement may be waived at any time
by the party which is entitled to the benefits thereof, except that any waiver
of any term or condition of this Agreement must be in writing.
The Committee shall have the authority to amend this Agreement to include
any provision which, at the time of such amendment, is authorized under the
terms of the Plan;
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however, an Option granted hereunder may not be revoked or altered in a manner
unfavorable to the holder without the written consent of the holder.
13. GOVERNING LAW. The laws of the State of Delaware shall govern the
interpretation, validity and performance of the terms of this Agreement
regardless of the law that might be applied under principles of conflict of
laws.
14. SUCCESSORS. This Agreement shall be binding upon and inure to the
benefit of the successors, assigns and heirs of the respective parties.
15. NOTICES. All notices or other communications made or given in
connection with this Agreement shall be in writing and shall be deemed to have
been duly given when delivered or mailed by registered or certified mail, return
receipt requested, to those listed below at their following respective addresses
or at such other address as each may specify by notice to the others:
TO THE EMPLOYEE:
As set forth in Schedule I
TO THE COMPANY:
Tristar Corporation
00000 Xxx Xxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000
Attn: Compensation Committee
16. WAIVER. The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver thereof
or deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
17. CONSTRUCTION. Titles are provided herein for convenience only and are
not to serve as a basis for interpretation on construction of the Agreement. The
singular form shall include the plural, when the context so indicates. In the
event of an inconsistence between the terms of this Agreement and the terms of
Schedule I hereto, the terms of Schedule I shall prevail. In the event of an
inconsistency between the terms of this Agreement (including Schedule I) and the
terms of the Plan, the terms of the Plan shall prevail.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by its officer thereunto duly authorized, and the Employee has hereunto
set his or her signature, all as of the Grant Date.
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TRISTAR CORPORATION
By: __________________________________
Xxxxxx X. Xxxxx
Executive Vice President and
Chief Financial Officer
__________________________________
Employee
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SCHEDULE I
Employee Name:
Employee Address:
Grant Date:
Shares of Common Stock underlying Option:
Option Term:
Options Considered to be ISO's within
the meaning of Section 422(b) of the
Code: Yes [ ] No[ ]
Exercise Price Per Share:
Vesting Schedule:
SHARES DATE EXERCISABLE
ADDITIONAL ITEMS:
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