Exhibit 10.17
INCENTIVE STOCK OPTION AGREEMENT
UNDER
TOKHEIM CORPORATION
MANAGEMENT OPTION PLAN
This Incentive Stock Option Agreement (the "Option Agreement") is
made and entered into as of October __, 2000 (the "Date of Grant"), by and
between Tokheim Corporation, a Indiana corporation (the "Company"), and
Xxxxxxx X. Xxxxxx (the "Optionee"). Capitalized terms not defined herein
shall have the meaning ascribed to them in the Company's Management Option
Plan (the "Option Plan"). The Option is intended to be an Incentive Stock
Option under Section 422 of the Internal Revenue Code of 1986, as amended
(the "Code"). Notwithstanding the foregoing, the Option will not qualify
as an Incentive Stock Option, among other events, (i) if the Optionee
disposes of the Option Shares (defined below) acquired pursuant to the
Option at any time during the two year period following the date of this
Agreement or the one year period following the date on which the Option is
exercised, or (ii) if the Optionee is not employed by the Company or a
subsidiary of the Company within the meaning of Section 424 of the Code (a
"Subsidiary") at all times during the period beginning on the date of this
Agreement and ending on the day three months before the date of exercise of
the Option, or (iii) to the extent the aggregate fair market value
(determined as of the time the Option is granted) of the stock subject to
Incentive Stock Options which become exercisable for the first time in any
calendar year exceeds $100,000. To the extent that the Option does not
qualify as an Incentive Stock Option, it shall constitute a separate
Nonqualified Stock Option.
1. Number of Shares. The Company hereby grants to the Optionee
an option (this "Option") to purchase 100,000 Shares (the "Option Shares")
at an Exercise Price per Share of $10.00, subject to all of the terms and
conditions of this Option Agreement and the Option Plan.
2. Option Term. The term of the Option and of this Option
Agreement (the "Option Term") shall commence on the Date of Grant set forth
above and, unless the Option is previously terminated pursuant to Section 5
below, shall terminate upon the tenth anniversary of the Date of Grant (the
"Expiration Date"). As of the Expiration Date, all rights of the Optionee
hereunder shall terminate.
3. Conditions of Exercise.
(a) Subject to Section 5 below, the Option shall become
vested and exercisable in equal installments over a three year period on
each anniversary of the Date of Grant as follows:
(1) 1st anniversary: 1/3 of the Option Shares
(2) 2nd anniversary: an additional 1/3 of the Option Shares
(3) 3rd anniversary: an additional 1/3 of the Option Shares.
(b) Prior to the Expiration Date, this Option may be
exercised in whole or in part at any time as to Option Shares which have
vested; provided that, in the event the Optionee terminates employment or
service with the Company or Subsidiary, from and after such Termination
Date (as defined in Section 5 below), this Option may be exercised only
with respect to Option Shares that have vested as of the Termination Date.
This Option may not be exercised for a fraction of a share.
4. Method of Exercise of Option.
(a) The Option may be exercised by delivering to the
Company an executed stock option exercise notice in the form approved by
the Administrator from time to time (the "Exercise Notice"), which shall
set forth, inter alia, (i) the Optionee's election to exercise the Option,
(ii) the number of Shares being purchased and (iii) any representations,
warranties and agreements regarding the Optionee's investment intent and
access to information as may be required by the Company to comply with
applicable securities laws, and payment in full of the aggregate Exercise
Price of the shares being purchased.
(b) The Option may not be exercised unless such exercise is
in compliance with all applicable federal and state securities law, as
they are in effect on the date of exercise.
(c) Payment of the aggregate Exercise Price for Option
Shares being purchased and any applicable withholding taxes may be made
(i) in cash or by check, (ii) at the discretion of the Administrator, by
means of a cashless exercise procedure either through a broker or through
withholding of Shares otherwise issuable upon exercise of the Option,
(iii) at the discretion of the Administrator, in the form of unrestricted
Shares already owned by the Optionee which, (x) in the case of
unrestricted Shares acquired upon exercise of an option, have been owned
by the Optionee for more than six months on the date of surrender, and (y)
have an aggregate Fair Market Value on the date of surrender equal to the
aggregate Exercise Price of the Shares as to which such Option shall be
exercised.
5. Effect of Termination of Employment or Service. Upon the
termination of the Optionee's employment with the Company or Subsidiary
under any circumstances, the Option shall immediately terminate as to any
Option Shares that have not previously vested as of the date of such
termination (the "Termination Date"). Any portion of the Option that has
vested as of the Termination Date shall be exercisable in whole or in part
for a period of 30 days following the Termination Date unless the
termination is by the Company for Cause; provided that, in the event of
termination by reason of the Optionee's death or Disability or in the event
of the Optionee's death during such 30-day period, such exercise period
shall extend until the date that is six months from the Termination Date;
provided, further, that in no event may the Option be exercised after the
Expiration Date. Upon expiration of such 30-day or six-month period, as
applicable, any unexercised portion of the Option shall terminate in full.
If the Optionee's employment is terminated by the Company for Cause, no
portion of the Option may be exercised following the Termination Date.
6. Other Change in Employment Status. An Option shall be
affected, both with regard to vesting schedule and termination, by leaves
of absence, changes from full-time to part-time employment, partial
disability or other changes in the employment status of an Optionee, in the
discretion of the Administrator. The Administrator shall follow the
written policy of the Company (if any) as it may be in effect from time to
time, with regard to such matters.
7. Adjustments; Change in Control. In the event of a Change in
Capitalization, a substitution or proportionate adjustment shall be made in
the kind, number and/or option price of shares of stock or other property
subject to outstanding Options granted under the Option Plan, as set forth
in Section 5 of the Option Plan. If during the one-year period following a
Change in Control, the employment or service of the Optionee is terminated
by reason of a Qualifying Termination, this Option shall become fully and
immediately exercisable.
8. Nontransferability of Option. Except under the laws of
descent and distribution (including by instrument to an inter vivos or
testamentary trust in which the Options are to be passed to beneficiaries
upon the death of the Participant), the Optionee shall not be permitted to
sell, transfer, pledge or assign the Option and this Option Agreement and
the Option shall be exercisable, during the Optionee's lifetime, only by
the Optionee. Any attempted assignment, transfer, pledge, hypothecation or
other disposition of the Option contrary to the provisions hereof, and the
levy of any execution, attachment or similar process upon the Option shall
be null and void and without effect.
9. Notices. All notices and other communications under this
Agreement shall be in writing and shall be given by facsimile or first
class mail, certified or registered with return receipt requested, and
shall be deemed to have been duly given three days after mailing or 24
hours after transmission by facsimile to the respective parties named
below:
If to Company: Tokheim Corporation
00000 Xxxxxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attn: Secretary
If to the Optionee: Xxxxxxx Xxxxxx
Tokheim Corporation
00000 Xxxxxxxxx Xxxxx
Xxxx Xxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Either party hereto may change such party's address for notices
by notice duly given pursuant hereto.
10. Securities Laws Requirements. The Option shall not be
exercisable to any extent, and the Company shall not be obligated to
transfer any Option Shares to the Optionee upon exercise of such Option, if
such exercise, in the opinion of counsel for the Company, would violate the
Securities Act (or any other federal or state statutes having similar
requirements as may be in effect at that time). Further, the Company may
require as a condition of transfer of any Option Shares pursuant to any
exercise of the Option that the Optionee furnish a written representation
that he or she is purchasing or acquiring the Option Shares for investment
and not with a view to resale or distribution to the public. The Optionee
hereby represents and warrants that he or she understands that the Option
Shares are "restricted securities," as defined in Rule 144 under the
Securities Act, and that any resale of the Option Shares must be in
compliance with the registration requirements of the Securities Act, or an
exemption therefrom, and with the requirements of any applicable "blue sky"
laws. Each certificate representing Option Shares shall bear the legends
set forth below and any other legends that may be required by the Company
or by any federal or state securities laws:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE RESTRICTED
SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND THE
RULES THEREUNDER, AND MAY NOT BE SOLD, OFFERED FOR SALE OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF REGISTRATION OR AN
EXEMPTION THEREFROM.
THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN RESTRICTIO NS ON TRANSFER AND A RIGHT OF FIRST REFUSAL
HELD BY THE ISSUER OR ITS ASSIGNEES. SUCH TRANSFER RESTRICTIO NS
AND RIGHT OF FIRST REFUSAL ARE BINDING ON TRANSFEREE S OF THESE
SHARES.
Further, if the Company decides, in its sole discretion, that the
listing or qualification of the Option Shares under any securities or other
applicable law is necessary or desirable, the Option shall not be
exercisable, in whole or in part, unless and until such listing or
qualification, or a consent or approval with respect thereto, shall have
been effected or obtained free of any conditions not acceptable to the
Company.
11. No Obligation to Register Option Shares. The Company shall
be under no obligation to register the Option Shares pursuant to the
Securities Act or any other federal or state securities laws.
12. Protections Against Violations of Agreement. No purported
sale, assignment, mortgage, hypothecation, transfer, pledge, encumbrance,
gift, transfer in trust (voting or other) or other disposition of, or
creation of a security interest in or lien on, any of the Option Shares by
any holder thereof in violation of the provisions of this Agreement or the
Certificate of Incorporation or the By-Laws of the Company, will be valid,
and the Company will not transfer any of said Option Shares on its books
nor will any of said Option Shares be entitled to vote, nor will any
dividends be paid thereon, unless and until there has been full compliance
with said provisions to the satisfaction of the Company. The foregoing
restrictions are in addition to and not in lieu of any other remedies,
legal or equitable, available to enforce said provisions.
13. Withholding Requirements. The Company's obligations under
this Option Agreement shall be subject to all applicable tax and other
withholding requirements, and the Company shall, to the extent permitted by
law, have the right to deduct any withholding amounts from any payment or
transfer of any kind otherwise due to the Optionee. With the approval of
the Administrator, the Optionee may satisfy the foregoing requirement by
electing to have the Company withhold from delivery Shares or by delivering
already owned unrestricted Shares, in each case, having a value equal to
the minimum amount of tax required to be withheld. Such Shares shall be
valued at their Fair Market Value on the date as of which the amount of tax
to be withheld is determined. Fractional share amounts shall be settled in
cash.
14. Failure to Enforce Not a Waiver. The failure of the Company
to enforce at any time any provision of this Option Agreement shall in no
way be construed to be a waiver of such provision or of any other provision
hereof.
15. Governing Law. This Option Agreement shall be governed by
and construed according to the laws of the State of Indiana without regard
to its principles of conflict of laws.
16. Incorporation of Option Plan. The Option Plan is hereby
incorporated by reference and made a part hereof, and the Option and this
Option Agreement shall be subject to all terms and conditions of the Option
Plan.
17. Amendments. This Option Agreement may be amended or
modified at any time only by an instrument in writing signed by each of the
parties hereto.
18. Rights as a Stockholder. Neither the Optionee nor any of
the Optionee's successors in interest shall have any rights as a
stockholder of the Company with respect to any Shares subject to the Option
until the date of issuance of a stock certificate for such Shares.
19. Agreement Not a Contract for Services. Neither the Option
Plan, the granting of the Option, this Option Agreement nor any other
action taken pursuant to the Option Plan shall constitute or be evidence of
any agreement or understanding, express or implied, that the Optionee has a
right to continue to provide services as an officer, director, employee,
consultant or advisor of the Company or any Parent, Subsidiary or affiliate
of the Company for any period of time or at any specific rate of
compensation.
20. Authority of the Board. The Board shall have full authority
to interpret and construe the terms of the Option Plan and this Option
Agreement. The determination of the Board as to any such matter of
interpretation or construction shall be final, binding and conclusive.
21. Acceptance. The Optionee hereby acknowledges receipt of a
copy of the Option Plan and this Option Agreement. The Optionee has read
and understand the terms and provision thereof, and accepts the Option
subject to all the terms and conditions of the Option Plan and this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Option Agreement on the day and year first above written.
TOKHEIM CORPORATION
By
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Name
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Title
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Optionee
