Exhibit 10e
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT made as of the 22nd day of January, 2002 (the "Grant
Date"), between Xxxxxxx, Inc., a Delaware corporation (hereinafter called the
"Company"), and Xxxx X. Xxxxxxx, an employee of the Company or one or more of
its subsidiaries (hereinafter called the "Employee").
WHEREAS, the Company desires to afford the Employee an opportunity to
purchase shares of its Common Stock, par value $1.00 per share (hereinafter
called the "Common Stock"), pursuant to the terms and provisions of the
Company's 1998 Employee Stock Incentive Plan (hereinafter called the "Plan"), as
hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth and Employee's employment by the Company, the parties hereto agree as
follows:
1. THE PLAN. This Option Agreement is made pursuant to and in accordance
with the terms and provisions of the Plan. Anything in this Option Agreement to
the contrary notwithstanding, the terms and provisions of the Plan, all of which
are hereby incorporated herein by reference, shall be controlling in the event
of any inconsistency herewith.
2. GRANT OF OPTION. The Company hereby irrevocably grants to the Employee
the right and option (hereinafter called the "Option"), to purchase all or any
part of an aggregate of 200,000 shares of Common Stock (subject to adjustment as
provided in Paragraph 8 hereof), on the terms and conditions hereinafter set
forth.
3. PURCHASE PRICE. The purchase price of the shares of Common Stock covered
by 174,000 shares of Non-qualified Stock Options shall be $19.15 per share,
which amounts are at least 100% of fair market value of such shares at the date
hereof, determined in accordance with the Plan, and the 26,000 regular Incentive
Stock Options shall be $21.065 (or 110% of fair market value of such shares at
the date hereof, as Employee owns more than 10% of the voting stock of the
Company).
4. VESTING. On the date of grant, January 22, 2002, the options became
exercisable as follows:
Incentive Stock Options at $21.065
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With respect to 5,200 shares, on or after January 22, 2002;
With respect to 5,200 shares, on or after January 22, 2003;
With respect to 5,200 shares, on or after January 22, 2004;
With respect to 5,200 shares, on or after January 22, 2005; and
With respect to 5,200 shares, on or after January 22, 2006.
Non-qualified Stock Options at $19.15
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With respect to 34,800 shares, on or after January 22, 2002;
With respect to 34,800 shares, on or after January 22, 2003;
With respect to 34,800 shares, on or after January 22, 2004;
With respect to 34,800 shares, on or after January 22, 2005; and
With respect to 34,800 shares, on or after January 22, 2006.
5. TERM OF OPTION. To the extent vested pursuant to Section 4, each portion
of the Option shall remain exercisable through the period ending five (5) years
after the date of grant, subject to earlier termination as provided in Section 8
hereof.
6. ADMINISTRATION. Unless administration of the Plan is assumed by the
Board of Directors of the Company, the Plan shall be administered by a committee
of the Board of Directors of the Company, hereinafter referred to as the
"Committee". The Committee is authorized and empowered to administer and
interpret the Plan and this Option Agreement. Any interpretations of this Option
Agreement or of the Plan made by the Committee shall be final and binding upon
the parties hereto.
7. NON-TRANSFERABILITY. The Option shall not be assignable nor transferable
except by will or by the laws of descent and distribution and shall not be
subject to execution, attachment or other process. Except as set forth in the
Plan, during the lifetime of the Employee, the Option shall be exercisable only
by the Employee. After the death of the Employee, the Option may be exercised
prior to its termination as set forth in Section 8(b) hereof. Employee hereby
agrees to retain ownership of, and to refrain from transferring, all shares of
Common Stock obtained upon exercise of the Option for a period of one year after
the date on which such Common Stock is obtained pursuant to the exercise of the
Option; provided, however, that such one year transfer restriction shall be
rescinded and shall no longer have any applicability following Employee's death,
Normal Retirement (as defined in the Plan) or permanent disability (as
determined by the Committee in accordance with the Plan). The Company may, at
its discretion, place a legend to such effect on the certificates representing
the shares of Common Stock obtained upon exercise of the option and issue
appropriate stop transfer instructions to the Company's transfer agent.
8. TERMINATION. The Option may not be exercised by the Employee unless
he/she, at the time of the exercise, shall have been in the continuous employ of
the Company or a subsidiary thereof, in a position of equivalent or greater
responsibility as on the Grant Date, except as follows:
(a) If, prior to the expiration of the Option, Employee's employment
terminates by reason of permanent disability (as determined by the Committee in
accordance with the Plan), Employee or his/her guardian may exercise the Option
through the earlier of (i) such date of expiration, or (ii) one year after the
date of termination of employment, to the extent that the Option was exercisable
at the date of termination of employment.
(b) If Employee dies while in the employ of the Company or a subsidiary
without having fully exercised the Option, the Option may be exercised prior to
its expiration and within six (6) months of the date of death, to the extent the
Option was exercisable at the date of death,
by the legal representative of the
estate or by the legatee of the Employee under the Employee's will.
(c) If, prior to the expiration of the Option, Employee's employment
terminates by reason of Normal or Early Retirement (as defined in the Plan),
Employee may exercise the Option through the earlier of (i) such date of
expiration, or (ii) one day less than three months after the Retirement date, to
the extent the Option was exercisable at such Retirement date.
The termination of employment of an Employee for any reason shall not
accelerate or otherwise affect the number of shares with respect to which the
Option may be exercised.
9. CHANGE IN CAPITALIZATION. In general, if the Company is merged into or
consolidated with another corporation under circumstances in which the Company
is not the surviving corporation, or if the Company is liquidated, or sells or
otherwise disposes of substantially all of its assets to another corporation
(any such merger, consolidation, etc. being hereinafter referred to as a
"Non-Acquiring Transaction") while the Option is outstanding under the Plan,
after the effective date of a Non-Acquiring Transaction Employee shall be
entitled, upon exercise of the Option, to receive such stock or other securities
as the holders of the same class of stock as those shares subject to the Option
shall be entitled to receive in such Non-Acquiring Transaction based upon the
agreed upon conversion ratio or per share distribution. However, in the
discretion of the Board of Directors, any limitations on exercisability of the
Option may be waived so that the Option, from and after a date prior to the
effective date of such Non-Acquiring Transaction, shall be exercisable in full.
Furthermore, in the discretion of the Board of Directors, the right to exercise
may be given to Employee during a 30-day period preceding the effective date of
such Non-Acquiring Transaction. If the Option is not exercised within such
30-day period it may be cancelled by the Board of Directors as of the effective
date of any such Non-Acquiring Transaction. To the extent that the foregoing
adjustments relate to stock or securities of the Company, such adjustments shall
be made by the Board of Directors, whose determination in that respect shall be
final, binding and conclusive. The Committee need not treat other optionees
and/or options in the same manner as Employee and the Option are treated. In no
case shall the Company be required to sell a fractional share of Common Stock,
and the total adjustment as set forth above shall be limited accordingly.
10. METHOD OF EXERCISING THE OPTION. Subject to the vesting provisions of
Section 4 hereof, the Employee may exercise the Option in full or in part by
written notice to the Company, delivered in person to the Treasurer of the
Company or mailed, by registered mail, return receipt requested, to the
Company's principal office at Atlanta, Georgia, attention of the Treasurer of
the Company; provided, however, that if exercised in part, the Option may not be
exercised for fewer than 100 shares, unless the remaining balance of the Option
is less than 100 shares, in which case the Option may be exercised for the
remaining balance. The written notice shall state the Employee's intention to
exercise the Option and the number of shares in respect to which it is being
exercised and shall be signed by the Employee or a legatee or personal
representative of the Employee, as applicable. Such notice shall be accompanied
by payment of the full purchase price of the shares, and instructions shall be
given as to the address to which the stock certificates shall be mailed. The
purchase price for the shares as to which the Option shall
be exercised from time to time shall be paid in full in cash and/or unrestricted
shares of Common Stock already owned by the optionee for a period of at least
six months, based, in each case, on the Fair Market Value (as defined in the
Plan) of the shares on the date the Option is exercised, unless it shall be
determined by the Committee, at any time hereafter, in its sole discretion, that
unrestricted shares of Common Stock are not a permissible form of payment with
respect to the Option. No shares may be purchased if the Employee is not at the
time of exercise in the employ of the Company, or a subsidiary, except as
provided in Section 8.
11. REQUIREMENT OF LAW. If any law, regulation of the Securities and
Exchange Commission, or any regulation of any other commission or agency having
jurisdiction shall require the Company or the Employee to take any action with
respect to the shares of Common Stock acquired by the exercise of the Option,
then the date upon which the Company shall deliver or cause to be delivered the
certificate or certificates for the shares of Common Stock shall be postponed
until full compliance has been made with all such requirements or law or
regulations. Further, at or before the time of the delivery of the shares with
respect to which exercise of the Option has been made, the Employee shall, if
requested by the Company, deliver to the Company his/her written statement that
he/she intends to hold the shares so acquired by him on exercise of the Option
for investment and not with a view to resale or other distribution thereof to
the public. Further, in the event the Company shall determine that, in
compliance with the Securities Act of 1933, as amended, or other applicable
statute or regulation, it is necessary to register any of the shares of Common
Stock with respect to which an exercise of the Option has been made, or to
qualify any such shares for exemption from any of the requirements of the
Securities Act of 1933, as amended, or other applicable statute or regulations,
then the Company shall take such action at its own expense, but not until such
action has been completed shall the Option shares be delivered to the Employee.
12. NO EFFECT ON EMPLOYMENT. Nothing herein shall be construed to grant
Employee the right to continued employment with the Company, to limit or
restrict the right of the Company or any of its subsidiaries to terminate an
Employee's employment at any time, with or without cause, or to increase or
decrease the compensation of the Employee from the rate in existence at the date
hereof.
13. INCENTIVE STOCK OPTION. Portions of the Option granted hereunder may
have been designated as an "Incentive Stock Option" pursuant to Section 422 of
the Code (as defined in the Plan); provided, however, that to the extent that
the Option fails for any reason to comply with the provisions of Section 422, it
shall be treated as a Non-Qualified Stock Option (as defined in the Plan). The
Company shall have no liability whatsoever to Employee in the event the Option
fails for any reason to satisfy the requirements for Incentive Stock Options set
forth in Section 422.
14. GOVERNING LAW. This Agreement and all awards made and actions taken
hereunder shall be governed by and construed in accordance with the Delaware
General Corporation Law, to the extent applicable, and in accordance with the
laws of the State of Georgia in all other respects.
IN WITNESS WHEREOF, the Company has caused this Stock Option Agreement to
be duly executed by an authorized officer, and the Employee has hereunto set
his/her hand and seal, all as of the day and year first above written.
XXXXXXX, INC.
By:/s/ Xxxxx X. Xxxxxx
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Its: Chief Financial Officer
/s/Xxxx X. Xxxxxxx
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Employee
