X.X. XXXXXXXX & CO., INC.
OPTION AGREEMENT
GRANT OF OPTION
AGREEMENT dated as of January 14, 2003 by and between X.X. XXXXXXXX &
CO., INC., a New Jersey corporation with offices at 000 Xxxxxxxxxx Xxxxxxxxx,
00xx Xxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000 (the "Company"), and XXXX X. XXXXXXXX,
residing at 000 Xxxxxx Xxxx., Xxxxxx Xxxx, Xxx Xxxx 00000 (the "Holder").
SECTION 1. GRANT OF OPTION.
(a) Option. Pursuant to the provisions of the 2003 Employees Stock
Option Plan (the "Plan"), the Company hereby grants to the Holder, subject to
the terms and conditions of the Plan and the terms and conditions set forth
herein, the right and option ("Option") to purchase from the Company all or any
part of an aggregate of Three Hundred and Seventy Five Thousand (375,000) shares
of common stock, $.01 par value ("Shares") of the Company, such Option to be
exercised as hereinafter provided.
SECTION 2. TERMS AND CONDITIONS. It is understood and agreed that the Option
granted hereby is subject to the following terms and conditions:
(a) Exercise Price. The price per share for Shares purchased upon the
exercise of this Option shall be Forty Cents ($.40).
(b) Expiration Date. The Option granted shall commence to be
exercisable as described below and shall expire five (5) years from the date
hereof, except as otherwise provided herein, in the Plan or any other agreement
between the parties hereto pursuant to which a shorter period is prescribed. The
Option is fully vested on the date hereof.
(c) Conditions to Exercise of the Option.
(i) No part of this Option may be exercised until each
of the following events shall have occurred:
A. Either (1) the Shares subject to the Option
shall have been effectively registered under
the Securities Act of 1933, as amended (the
"Securities Act") and, if necessary, under
any applicable state securities laws, or (2)
counsel for the Company shall have rendered
its opinion to the Company to the effect
that an exemption from such registration is
available; and
B. The Shares subject to the Option shall meet
the rules of any stock exchanges or
automated quotation systems on which Shares
of the Company may then be listed.
(ii) If in any time in the future, the Shares subject to
the Option shall not have been effectively registered
under applicable securities laws, the Company may
require as a condition to the exercise of the Option
that the Holder make such representations to the
Company as the Company shall deem appropriate, on the
advice of counsel, including, without limitation, a
representation to the effect that the Holder is
purchasing the Shares to be acquired upon the
exercise of the Option for his own account for
investment only and not with a view to distribution
or with any present intention of reselling any such
Shares, and that the Shares may not be sold or
disposed of, except in accordance with the Securities
Act.
(d) Method of Exercise. The Option may be exercised in whole or in
part at any time. The Option cannot be exercised for less than 100 Shares or
multiples thereof unless such exercise is for the entire amount of Shares then
vested under the Option.
(e) Payment of Purchase Price Upon Exercise of Option. At the time
of any exercise of a Option, the purchase price of the Shares as to which the
Option shall be exercised shall be paid in cash, by certified check or bank
check. The Holder shall be responsible for and pay to the Company any
withholding tax that may be the Holder's obligation to pay by virtue of the
transactions contemplated herein.
(f) Exercise Upon Death, Permanent Disability or Termination of
Employment.
This Option shall terminate 90 days after expiration or
termination of employment of the Holder with the Company (and/or its affiliates)
for whatever reason; accordingly:
(i) In the event that the Holder dies (a) while an
employee of the Company or of a subsidiary thereof,
or (b) within 90 days after termination of such
employment with the Company or a subsidiary thereof,
the Option may be exercised within twelve months
after the death of the Holder (but not later than the
end of the fixed term of the Option) by his estate or
by a person who acquires the right to exercise the
Option by bequest or inheritance.
(ii) If a Holder ceases to be an employee of the Company
or a subsidiary thereof, whether as a result of
termination by the Company or such subsidiary or by
the Holder, normal retirement, early retirement,
expiration of employment, or disability retirement,
either physical or mental, or any other reason, the
Option may be exercised by him, his attorney-in-fact,
or his guardian, as appropriate, at any time after
the date on which he ceases to be an employee (but no
later than 90 days after the Holder ceases to be
such), so long as such exercise date is not beyond
the expiration date of this option provided in
Section 2(b) hereof.
(g) Nontransferability of Option. No Option shall be transferable
otherwise than by will
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or the laws of descent and distribution or a qualified domestic relations order
("QDRO") as defined by the Internal Revenue Code of 1986, as amended, or Title I
of the Employee Retirement Income Security Act of 1974, as amended, or the rules
thereunder, and the Option may be exercised during the lifetime of the holder
hereof, only by him or his legal representatives or pursuant to a QDRO. Except
to the extent provided above, the Option may not be assigned, transferred,
pledged, hypothecated or disposed of in any way (whether by operation of law or
otherwise) and shall not be subject to execution, attachment or similar process.
(h) Adjustment Upon Change of Shares. In the event of a reorganization,
merger, consolidation, reclassification, recapitalization, combination or
exchange of shares, stock split, stock dividend, rights offering or other event
affecting shares of the Company, the number and class of Shares then subject to
the Option previously granted, and the price per Share payable upon exercise of
such Option shall be equitably adjusted by the Committee to reflect the change.
(i) No Rights as Stockholder. The Holder shall have no rights as a
stockholder with respect to any Shares subject to the Option before the date of
issuance to the Holder of a certificate or certificates for such Shares.
(j) No Right to Continued Employment. The Option shall not confer upon
the Holder any right with respect to continuance of service (as a consultant or
otherwise) or employment by the Company or any subsidiary thereof, nor shall it
interfere in any way with the right of the employer to terminate such service or
employment at any time.
(k) Compliance With Law and Regulations. No Option shall be exercisable
and no shares will be delivered except in compliance with all applicable federal
and state laws and regulations, including, without limitation, compliance with
withholding tax requirements and with the rules of all domestic stock exchanges
on which the Company's Shares may be listed. Any share certificate issued to
evidence shares for which a Option is exercised may bear legends and statements
deemed advisable by the Committee to assure compliance with federal and state
laws and regulations. No Option shall be exercisable, and no shares will be
delivered, until the Company has obtained consent or approval from shareholders
and/or regulatory bodies, federal or state, having jurisdiction over such
matters as the Committee may deem advisable.
SECTION 3. HOLDER BOUND BY PLAN. The Holder hereby acknowledges receipt of a
copy of the Plan and agrees to be bound by all the terms and provisions thereof.
SECTION 4. NOTICES. Any notice hereunder shall be deemed effective only if in
writing and sent by certified mail, return receipt to the Company at its then
principal address with a copy to Xxxxxxx & Xxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, XX 00000, Attention: Xxxx X. Xxxxx; and with respect to the Holder, by
transmission to the address listed on the first page hereof, subject to the
right of either party to designate at any time hereafter in writing some other
address.
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IN WITNESS WHEREOF, X.X. XXXXXXXX & CO., INC., has caused this
Agreement to be executed by its duly authorized officer and the Holder has
executed this Agreement, both as of the day and year written at the beginning of
this Agreement.
X.X. XXXXXXXX & CO., INC.
By:/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
Chairman
Accepted:
/s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
