EXHIBIT 10.4
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WILMAR INDUSTRIES, INC.
2000 STOCK OPTION PLAN
INCENTIVE STOCK OPTION AGREEMENT
THIS OPTION AGREEMENT (the "Agreement"), dated as of May 16, 2000, is
made by and between Wilmar Industries, Inc., a New Jersey corporation (the
"Company"), and Xxxxxxx Xxxxxxx (the "Optionee").
WHEREAS, the Company has adopted the Company's 2000 Stock Option Plan
(the "Plan"), pursuant to which options may be granted to purchase shares of the
Company's Common Stock;
WHEREAS, the Company desires to grant to the Optionee an Incentive
Stock Option to purchase the number of shares of the Company's Common Stock
provided for herein;
NOW, THEREFORE, in consideration of the recitals and the mutual
agreements herein contained, the parties hereto agree as follows:
1. GRANT OF OPTION.
(a) The Company hereby grants to the Optionee options (the
"Options") to purchase 17,085 shares of Common Stock (such shares, the "Option
Shares") on the terms and conditions set forth in this Agreement and as
otherwise provided in the Plan. The Options are intended to qualify as Incentive
Stock Options within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended (the "Code"). The Options shall be subject to the terms of the
Wilmar Industries, Inc. Shareholders Agreement, dated the date hereof (the
"Shareholders Agreement").
The Company cannot guarantee that the special tax treatment
described in Section 422 of the Code will apply. For example, if the Optionee
sells the Option Shares acquired pursuant to the exercise of the Options either
within two years after the date of this Agreement or within one year after the
date the Options (or any part thereof) are exercised, this special tax treatment
will not apply.
If the Options (or any part thereof) do not qualify for
Incentive Stock Option treatment for any reason, then, to the extent of such
nonqualification, the Options (or such portion thereof) shall be treated as
Nonqualified Stock Options granted under the Plan, provided that the Options (or
such portion thereof) otherwise satisfy the terms and conditions of the Plan
generally relating to Nonqualified Stock Options.
(b) INCORPORATION BY REFERENCE, ETC. The provisions of the
Plan are hereby incorporated herein by reference. Except as otherwise expressly
set forth herein, this Agreement shall be construed in accordance with the
provisions of the Plan and any capitalized terms not otherwise defined in this
Agreement shall have the definitions set
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forth in the Plan. The Committee shall have final authority to interpret and
construe the Plan and this Agreement and to make any and all determinations
under them, and its decision shall be binding and conclusive upon the Optionee
and his legal representative in respect of any questions arising under the Plan
or this Agreement.
2. TERMS AND CONDITIONS.
(a) PURCHASE PRICE. The price at which the Optionee shall be
entitled to purchase shares of Common Stock upon the exercise of all or any
portion of the Options shall be as set forth below:
EXERCISE PRICE NUMBER OF OPTIONS
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$5.00 per share 5,695
$15.00 per share 5,695
$61.00 per share 5,695
(b) EXPIRATION DATE. Unless earlier terminated pursuant to
Section 2(e) hereof, the Options shall expire at 11:59 p.m. Eastern Standard
Time on the tenth anniversary of the date of this Agreement.
(c) EXERCISABILITY OF OPTION.
(i) GENERAL. Except as may otherwise be provided
herein, the Options shall vest and become exercisable as to twenty
percent (20%) of the Option Shares on each of the first through fifth
anniversaries of the date hereof; PROVIDED that, the portion of the
Options which becomes so exercisable on each such anniversary shall be
in three equal parts at each of the exercise prices set out in Section
2(a) above.
(ii) EXERCISABILITY UPON A CHANGE IN CONTROL. Except
as may otherwise be provided herein, the Options shall become fully
exercisable upon a Change in Control.
(d) METHOD OF EXERCISE. The Options may be exercised only by
written notice in the form attached hereto (or a successor form provided by the
Committee) delivered in person or by mail in accordance with Section 3(a) hereof
and accompanied by payment therefor and an executed copy of the Shareholders
Agreement. The purchase price of the shares of Common Stock shall be paid to the
Company (i) by certified check, (ii) following an Initial Offering, by a
"cashless exercise" procedure in the manner approved by the Committee, or (iii)
by any other method approved by the Committee in writing. If requested by the
Committee, the Optionee shall deliver this Agreement evidencing the Options to
the Secretary of the Company who shall endorse thereon a notation of such
exercise and return such Agreement to the Optionee.
(e) EXERCISE UPON DEATH OR TERMINATION OF EMPLOYMENT. In the
event that the Optionee's employment with the Company is terminated for any
reason, the Options, to the extent not then exercisable, shall terminate
immediately. In the event that the Optionee's employment with the Company is
terminated, the Options, to the extent then exercisable, shall terminate as
follows:
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(i) In the event of the termination of the Optionee's
employment (a) due to his death or (b) due to his "Disability," the
Options shall be exercisable for a period of one year following such
termination of employment, and shall thereafter terminate. For purposes
of this Agreement "Disability" shall have the meaning set forth in any
existing employment, consulting or other agreement between the Optionee
and the Company, or in the absence of such an agreement, the Optionee's
inability for an aggregate of six months in any twelve consecutive
month period to perform his duties due to the Optionee's physical or
mental incapacity, as reasonably determined by the Committee;
(ii) In the event of the termination of the Optionee's
employment by the Company for "Cause," the Options (whether or not
exercisable) shall terminate on the date of the Optionee's termination
of employment. For purposes of this Agreement "Cause" shall have the
meaning set forth in any existing employment, consulting or other
agreement between the Optionee and the Company, or in the absence of
such an agreement, (a) the Optionee's continued failure substantially
to perform his duties (other than as a result of total or partial
incapacity due to physical or mental illness) following written notice
by the Company to the Optionee of such failure, (b) dishonesty in the
performance of Optionee's duties, (c) an act or acts on Optionee's part
constituting a felony, or a crime involving moral turpitude, under the
laws of the United States or any state thereof, (d) insubordination or
failure to follow the lawful instructions of a direct superior or (e)
any other act or omission which is materially injurious to the
financial condition or business reputation of the Company or any of its
subsidiaries or affiliates, in each case (a) - (e) as determined by the
Committee; and
(iii) In the event of the termination of the Optionee's
employment by the Company without Cause or by the Optionee with Good
Reason (but only if the Optionee has an existing agreement with the
Company that provides for and defines "Good Reason"), the Options shall
be exercisable for a period of sixty (60) days following such
termination of employment and shall thereafter terminate.
(iv) If the Optionee terminates his employment without
Good Reason or, if Good Reason does not apply consistent with the
provisions of clause (iii) of this section 2(e), for any reason, the
Options shall be exercisable for a period of thirty (30) days following
such termination of employment and shall thereafter terminate.
(f) NONTRANSFERABILITY. The Options shall not be transferable
by the Optionee other than by will or the laws of descent and distribution.
(g) RIGHTS AS STOCKHOLDER. The Optionee shall not be deemed
for any purpose to be the owner of any shares of Common Stock subject to the
Options unless, until and to the extent that (i) the Options shall have been
exercised pursuant to their terms, (ii) the Optionee shall have executed a
Shareholders' Agreement in the form attached hereto, (iii) the Company shall
have issued and delivered to the Optionee the Option Shares, and (iii) the
Optionee's name shall have been entered as a stockholder of record with respect
to such Option Shares on the books of the Company.
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(h) WITHHOLDING TAXES. Prior to the delivery of a certificate
or certificates representing the Option Shares, the Optionee must pay in the
form of a certified check to the Company any such additional amount as the
Company determines that it is required to withhold under applicable federal,
state or local tax laws in respect of the exercise or the transfer of Option
Shares; provided that the Committee may, in its sole discretion, allow such
withholding obligation to be satisfied by any other method described in Section
7(d) of the Plan.
3. MISCELLANEOUS.
(a) NOTICES. Any and all notices, designations, consents,
offers, acceptances and any other communications provided for herein shall be
given in writing and shall be delivered either personally or by registered or
certified mail, postage prepaid, which shall be addressed, in the case of the
Company to the Secretary of the Company at the principal office of the Company
and, in the case of the Optionee, to Optionee's address appearing on the books
of the Company or to Optionee's residence or to such other address as may be
designated in writing by the Optionee.
(b) DISQUALIFYING DISPOSITION. The Optionee agrees and
covenants that if he disposes of any Option Shares in a "disqualifying
disposition," as described in Section 422 of the Code, he will immediately
contact the Company to inform it of such event.
(c) NO RIGHT TO CONTINUED EMPLOYMENT. Nothing in the Plan or
in this Agreement shall confer upon the Optionee any right to continue in the
employ of the Company or shall interfere with or restrict in any way the right
of the Company, which are hereby expressly reserved, to remove, terminate or
discharge the Optionee at any time for any reason whatsoever, with or without
cause.
(d) BOUND BY PLAN. By signing this Agreement, the Optionee
acknowledges that he has received a copy of the Plan and has had an opportunity
to review the Plan and agrees to be bound by all the terms and provisions of the
Plan.
(e) SUCCESSORS. The terms of this Agreement shall be binding
upon and inure to the benefit of the Company, its successors and assigns, and of
the Optionee and the beneficiaries, executors, administrators, heirs and
successors of the Optionee.
(f) INVALID PROVISION. The invalidity or unenforceability of
any particular provision hereof shall not affect the other provisions hereof,
and this Agreement shall be construed in all respects as if such invalid or
unenforceable provision had been omitted.
(g) MODIFICATIONS. No change, modification or waiver of any
provision of this Agreement shall be valid unless the same be in writing and
signed by the parties hereto.
(h) ENTIRE AGREEMENT. This Agreement and the Plan contain the
entire agreement and understanding of the parties hereto with respect to the
subject matter contained herein and therein and supersede all prior
communications, representations and negotiations in respect thereto.
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(i) GOVERNING LAW. This Agreement and the rights of the
Optionee hereunder shall be construed and determined in accordance with the laws
of the State of New Jersey.
(j) HEADINGS. The headings of the Sections hereof are provided
for convenience only and are not to serve as a basis for interpretation or
construction, and shall not constitute a part, of this Agreement.
(k) COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties hereto on the sixteenth day of May, 2000.
WILMAR INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Chairman and CEO
Signature: /s/ Xxxxxxx X. Xxxxxxx
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Printed Name: Xxxxxxx X. Xxxxxxx
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Address: 000 Xxxxxx Xxxxx
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Xxxxxxxxxx, XX 00000
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NOTICE OF OPTION EXERCISE
PURSUANT TO THE WILMAR INDUSTRIES, INC.
2000 STOCK OPTION PLAN
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To exercise your option to purchase shares of Wilmar Industries, Inc. Common
Stock ("Shares"), please fill out this form and execute the attached
Shareholders' Agreement and return them to the Corporate Secretary of Wilmar
Industries, Inc., together with a certified check in the amount of the exercise
price due, which is the product of the number of Shares with respect to which
you are exercising your purchase option and the per share exercise price of
$______. You are not required to exercise your option with respect to all Shares
thereunder. However, the minimum number of Shares with respect to which you may
exercise your option is 100 Shares, or the total remaining number of Shares
subject to your option, if less. You also must include a certified check in the
amount of required payroll taxes and income tax withholding due in connection
with your exercise, unless the Committee administering the Stock Option Plan
specifically provides for this obligation to be satisfied in a different manner.
I hereby exercise my right to purchase ____ Shares under the stock option
granted to me pursuant to the Incentive Stock Option Agreement between myself
and Wilmar Industries, Inc., dated as of ___________, 2000 (the "Option
Agreement"). The Shares being purchased hereunder are exercisable in accordance
with the terms of my Option Agreement. Enclosed is one or more certified checks
for the exercise price of $_______ and the required withholding of $_______.
(Please contact the office of the Chief Executive Officer of the Company to
determine the amount of required withholding.) I also have signed and enclose
the Shareholders' Agreement which was attached to my Nonqualified Stock Option
Agreement, and understand that this exercise is not effective unless the
executed Shareholders' Agreement is attached.
Signature: _______________________
Printed Name: _______________________
Social Security Number:
Date: _______________________
