EXHIBIT 10.3
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EXHIBIT A
XXXXXXXX, INC.
NON-STATUTORY STOCK OPTION AGREEMENT
FOR EMPLOYEES
Xxxxxxxx, Inc., a Delaware corporation (the "Company"), hereby
grants to Xxxxxxx X. Xxxxxxx (the "Optionee") as of September 28, 2005 (the
"Option Date"), pursuant to the provisions of the Xxxxxxxx, Inc. 2005 Long-
Term Incentive Plan (the "Plan"), a non-qualified option to purchase from
the Company (the "Option") 50,000 shares of its Common Stock, $.10 par
value ("Stock"), at the price of $_____ per share upon and subject to the
terms and conditions set forth below. Capitalized terms not defined herein
shall have the meanings specified in the Plan.
1. OPTION SUBJECT TO ACCEPTANCE OF AGREEMENT. The Option
shall be null and void unless the Optionee shall accept this Agreement by
executing it in the space provided below and returning such original
execution copy to the Company.
2. TIME AND MANNER OF EXERCISE OF OPTION.
2.1. MAXIMUM TERM OF OPTION. In no event may the Option be
exercised, in whole or in part, after the tenth anniversary of the Option
Date (the "Expiration Date").
2.2. EXERCISE OF OPTION.
(a) Subject to the provisions of this Section 2.2 and
Section 2.3 of the Plan, the Option is immediately exercisable with respect
to all of the shares of Stock subject to the Option on the Option Date.
(b) If the Optionee's employment with the Company terminates
by reason of Disability, the Option shall continue to be exercisable with
respect to all of the shares of Stock subject to the Option on the
Optionee's Employment Termination Date and shall thereafter be exercisable
by the Optionee or the Optionee's Legal Representative, but only until and
including the earliest to occur of (i) the date which is one year after the
Optionee's Employment Termination Date and (ii) the Expiration Date.
(c) If the Optionee's employment with the Company terminates
by reason of retirement on or after age 65 (or prior to age 65 with the
consent of the Company), the Option shall continue to be exercisable with
respect to all of the shares of Stock subject to the Option on the
Optionee's Employment Termination Date and shall thereafter be exercisable
by the Optionee or the Optionee's Legal Representative, but only until and
including the earliest to occur of (i) the date which is one year after the
Optionee's Employment Termination Date and (ii) the Expiration Date.
(d) If the Optionee's employment with the Company terminates
by reason of death, the Option shall continue to be exercisable with
respect to all of the shares of Stock subject to the Option on the date of
death and shall thereafter be exercisable by the Optionee's Legal
Representative or Permitted Transferees, as the case may be, but only until
and including the earliest to occur of (i) the date which is one year after
the date of death and (ii) the Expiration Date; provided, however, that in
the event that the date of death is less than six months prior to the
Expiration Date, the Optionee's Legal Representative or Permitted
Transferees shall have until the six month anniversary of the date of death
to exercise the Option.
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(e) If the Optionee's employment with the Company terminates
for any reason other than Disability, retirement on or after age 65 (or
prior to age 65 with the consent of the Company), or death, the Option
shall continue to be exercisable only to the extent it is exercisable on
the Optionee's Employment Termination Date and shall thereafter be
exercisable by the Optionee or the Optionee's Legal Representative, but
only until and including the earliest to occur of (i) the date which is
three months after the Optionee's Employment Termination Date and (ii) the
Expiration Date; provided that if the Optionee's employment is terminated
for Cause, the Option shall terminate automatically on the Optionee's
Employment Termination Date;
(f) If the Optionee dies during the period set forth in
Section 2.2(b) following termination of employment by reason of Disability,
or if the Optionee dies during the period set forth in Section 2.2(c)
following termination of employment by reason of retirement on or after age
65 (or prior to age 65 with the consent of the Company), or if the Optionee
dies during the period set forth in Section 2.2(e) following termination of
employment for any reason other than Disability or retirement on or after
age 65 (or prior to age 65 with the consent of the Company), the Option
shall continue to be exercisable to the extent it is exercisable on the
date of death and shall thereafter be exercisable by the Optionee's Legal
Representative or Permitted Transferees, as the case may be, but only until
and including the earliest to occur of (i) the date which is one year after
the date of death and (ii) the Expiration Date; provided, however that in
the event that the date of death is less than six months prior to the
Expiration Date, the Optionee's Legal Representative or Permitted
Transferees shall have until the six month anniversary of the date of death
to exercise the Option.
2.3. METHOD OF EXERCISE. Subject to the limitations set forth
in this Agreement, the Option may be exercised by the Optionee (1) by
giving written notice to the Company specifying the number of whole shares
of Stock to be purchased and accompanied by payment therefor in full (or
arrangement made for such payment to the Company's satisfaction) either (i)
in cash, (ii) by delivery (either actual delivery or by attestation
procedures established by the Company) of previously owned whole shares of
Stock (which the Optionee has held for at least six months prior to the
delivery of such shares and for which the Optionee has good title, free and
clear of all liens and encumbrances) having an aggregate Fair Market Value,
determined as of the date of exercise, equal to the aggregate purchase
price payable pursuant to the Option by reason of such exercise, (iii)
except as may be prohibited by applicable law, in cash by a broker-dealer
acceptable to the Company to whom the Optionee has submitted an irrevocable
notice of exercise or (iv) a combination of (i), and (ii), (2) if
applicable, by surrendering to the Company any Tandem SARs which are
cancelled by reason of the exercise of the Option and (3) by executing such
documents as the Company may reasonably request. The Company shall have
sole discretion to disapprove of an election pursuant to clause (iii). Any
fraction of a share of Stock which would be required to pay such purchase
price shall be disregarded and the remaining amount due shall be paid in
cash by the Optionee. No certificate representing a share of Stock shall
be delivered until the full purchase price therefor and any withholding
taxes thereon, as described in Section 3.3, have been paid (or arrangement
made for such payment to the Company's satisfaction).
2.4. TERMINATION OF OPTION.
(a) In no event may the Option be exercised after it
terminates as set forth in this Section 2.4. The Option shall terminate,
to the extent not exercised pursuant to Section 2.3 or earlier terminated
or extended pursuant to Section 2.2, on the Expiration Date.
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(b) In the event that rights to purchase all or a portion of
the shares of Stock subject to the Option expire or are exercised,
cancelled or forfeited, the Optionee shall, upon the Company's request,
promptly return this Agreement to the Company for full or partial
cancellation, as the case may be. Such cancellation shall be effective
regardless of whether the Optionee returns this Agreement. If the Optionee
continues to have rights to purchase shares of Stock hereunder, the Company
shall, within 10 days of the Optionee's delivery of this Agreement to the
Company, either (i) xxxx this Agreement to indicate the extent to which the
Option has expired or been exercised, cancelled or forfeited or (ii) issue
to the Optionee a substitute option agreement applicable to such rights,
which agreement shall otherwise be substantially similar to this Agreement
in form and substance.
3. ADDITIONAL TERMS AND CONDITIONS OF OPTION.
3.1. NONTRANSFERABILITY OF OPTION. The Option may not be
transferred by the Optionee other than by will or the laws of descent and
distribution or pursuant to beneficiary designation procedures approved by
the Company. Except to the extent permitted by the foregoing sentence,
during the Optionee's lifetime the Option is exercisable only by the
Optionee or the Optionee's Legal Representative. Except to the extent
permitted by the foregoing, the Option may not be sold, transferred,
assigned, pledged, hypothecated, encumbered or otherwise disposed of
(whether by operation of law or otherwise) or be subject to execution,
attachment or similar process. Upon any attempt to so sell, transfer,
assign, pledge, hypothecate, encumber or otherwise dispose of the Option,
the Option and all rights hereunder shall immediately become null and void.
3.2. INVESTMENT REPRESENTATION; RESTRICTION ON TRANSFER OF
STOCK.
(a) The Optionee hereby represents and covenants that (i) any
share of Stock purchased upon exercise of the Option will be purchased for
investment and not with a view to the distribution thereof within the
meaning of the Securities Act of 1933, as amended (the "Securities Act"),
unless such purchase has been registered under the Securities Act and any
applicable state securities laws; (ii) any subsequent sale of any such
shares shall be made either pursuant to an effective registration statement
under the Securities Act and any applicable state securities laws, or
pursuant to an exemption from registration under the Securities Act and
such state securities laws; and (iii) if requested by the Company, the
Optionee shall submit a written statement, in form satisfactory to the
Company, to the effect that such representation (x) is true and correct as
of the date of purchase of any shares hereunder or (y) is true and correct
as of the date of any sale of any such shares, as applicable. As a further
condition precedent to any exercise of the Option, the Optionee shall
comply with all regulations and requirements of any regulatory authority
having control of or supervision over the issuance or delivery of the
shares and, in connection therewith, shall execute any documents which the
Board or the Committee shall in its sole discretion deem necessary or
advisable.
(b) The Optionee hereby acknowledges and agrees that the
shares of Stock purchased upon exercise of the Option may not be sold,
transferred, assigned, pledged, hypothecated, encumbered or otherwise
disposed of (whether by operation of law or otherwise), without the express
prior written consent of the Company, until after the earliest to occur of
(i) the third anniversary of the Option Date, (ii) the termination of the
Optionee's employment with the Company for a reason set forth in Section
2.2(b), 2.2(c) or 2.2(d) hereof, and (iii) the termination of the
Optionee's employment by the Company without "Cause", by the Optionee for
"Good Reason" (as such terms are defined in the Optionee's Employment
Agreement with the Company), or following a "Change in Control" (as defined
in the Xxxxxxxx, Inc. Executive Special Severance Plan); PROVIDED, HOWEVER,
that the restriction on transfer contained in this Section 3.2(b) shall not
apply to (x) the transfer of the number of shares of Stock purchased upon
exercise of the Option which is required to be transferred for the payment
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pursuant to Section 2.3(1)(iii) of the aggregate purchase price of the
total number of shares purchased upon such exercise or (y) the withholding
by the Company pursuant to Section 3.3(b)(3) or the transfer pursuant to
Section 3.3(b)(4) of the number of shares of Stock purchased upon exercise
of the Option which is required to be withheld or transferred, as the case
may be, for the payment of the Required Tax Payments (as defined in Section
3.3(a)) in connection with such exercise of the Option. The Company shall
require that certificates evidencing shares of Stock delivered in
connection with the exercise of the Option bear a legend indicating that
the sale, transfer or other disposition thereof by the holder is prohibited
except in compliance with this Section 3.2(b).
3.3. WITHHOLDING TAXES.
(a) As a condition precedent to the delivery of Stock upon
exercise of the Option, the Optionee shall, upon request by the Company,
pay to the Company in addition to the purchase price of the shares, such
amount of cash as the Company may be required, under all applicable
federal, state, local or other laws or regulations, to withhold and pay
over as income or other withholding taxes (the "Required Tax Payments")
with respect to such exercise of the Option. If the Optionee shall fail to
advance the Required Tax Payments after request by the Company, the Company
may, in its discretion, deduct any Required Tax Payments from any amount
then or thereafter payable by the Company to the Optionee.
(b) The Optionee may elect to satisfy his or her obligation
to advance the Required Tax Payments by any of the following means: (1) a
cash payment to the Company pursuant to Section 3.3(a), (2) delivery
(either actual delivery or by attestation procedures established by the
Company) to the Company of previously owned whole shares of Stock (for
which the Optionee has good title, free and clear of all liens and
encumbrances) having an aggregate Fair Market Value, determined as of the
date the obligation to withhold or pay taxes first arises in connection
with the Option (the "Tax Date"), equal to the Required Tax Payments, (3)
authorizing the Company to withhold whole shares of Stock which would
otherwise be delivered to the Optionee upon exercise of the Option having
an aggregate Fair Market Value, determined as of the Tax Date, equal to the
Required Tax Payments, (4) except as may be prohibited by applicable law, a
cash payment by a broker-dealer acceptable to the Company to whom the
Optionee has submitted an irrevocable notice of exercise or (5) any
combination of (1), (2) and (3). The Company shall have sole discretion to
disapprove of an election pursuant to clause (4). Shares of Stock to be
delivered or withheld may not have a Fair Market Value in excess of the
amount of the Required Tax Payments determined by applying the minimum
statutory withholding rate. Any fraction of a share of Stock which would
be required to satisfy any such obligation shall be disregarded and the
remaining amount due shall be paid in cash by the Optionee. No certificate
representing a share of Stock shall be delivered until the Required Tax
Payments have been satisfied in full.
3.4. ADJUSTMENT. In the event of any stock split, stock
dividend, recapitalization, reorganization, merger, consolidation,
combination, exchange of shares, liquidation, spin-off or other similar
change in capitalization or event, or any distribution to holders of Stock
other than a regular cash dividend, the number and class of securities
subject to the Option and the purchase price per security shall be
appropriately adjusted by the Committee without an increase in the
aggregate purchase price. If any adjustment would result in a fractional
security being subject to the Option, the Company shall pay the Optionee,
in connection with the first exercise of the Option occurring after such
adjustment, an amount in cash determined by multiplying (i) the fraction of
such security (rounded to the nearest hundredth) by (ii) the excess, if
any, of (A) the Fair Market Value on the exercise date over (B) the
exercise price of the Option. The decision of the Committee regarding any
such adjustment shall be final, binding and conclusive.
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3.5. COMPLIANCE WITH APPLICABLE LAW. The Option is subject to
the condition that if at any time the Company determines that the listing,
registration or qualification of the shares subject to the Option upon any
securities exchange or under any law, or the consent or approval of any
governmental body, or the taking of any other action is necessary or
desirable as a condition of, or in connection with, the purchase or
delivery of shares hereunder, the Option may not be exercised, in whole or
in part, unless such listing, registration, qualification, consent or
approval shall have been effected or obtained, free of any conditions not
acceptable to the Company. The Company agrees to use reasonable efforts to
effect or obtain any such listing, registration, qualification, consent or
approval.
3.6. DELIVERY OF CERTIFICATES. Upon the exercise of the
Option, in whole or in part, the Company shall deliver or cause to be
delivered one or more certificates representing the number of shares
purchased against full payment therefor. The Company shall pay all
original issue or transfer taxes and all fees and expenses incident to such
delivery, except as otherwise provided in Section 3.3.
3.7. OPTION CONFERS NO RIGHTS AS STOCKHOLDER. The Optionee
shall not be entitled to any privileges of ownership with respect to shares
of Stock subject to the Option unless and until purchased and delivered
upon the exercise of the Option, in whole or in part, and the Optionee
becomes a stockholder of record with respect to such delivered shares; and
the Optionee shall not be considered a stockholder of the Company with
respect to any such shares not so purchased and delivered.
3.8. OPTION CONFERS NO RIGHTS TO CONTINUED EMPLOYMENT. In no
event shall the granting of the Option or its acceptance by the Optionee
give or be deemed to give the Optionee any right to continued employment by
the Company or any affiliate of the Company.
3.9. DECISIONS OF BOARD OR COMMITTEE. The Board or the
Committee shall have the right to resolve all questions which may arise in
connection with the Option or its exercise. Any interpretation,
determination or other action made or taken in good faith by the Board or
the Committee regarding the Plan or this Agreement shall be final, binding
and conclusive.
3.10. COMPANY TO RESERVE SHARES. The Company shall at all
times prior to the expiration or termination of the Option reserve and keep
available, either in its treasury or out of its authorized but unissued
shares of Stock, the full number of shares subject to the Option from time
to time.
3.11. AGREEMENT SUBJECT TO THE PLAN. This Agreement is subject
to the provisions of the Plan and shall be interpreted in accordance
therewith. The Optionee hereby acknowledges receipt of a copy of the Plan.
4. MISCELLANEOUS PROVISIONS.
4.1. DESIGNATION AS NONQUALIFIED STOCK OPTION. The Option is
hereby designated as not constituting an "incentive stock option" within
meaning of section 422 of the Internal Revenue Code of 1986, as amended
(the "Code"); this Agreement shall be interpreted and treated consistently
with such designation.
4.2. MEANING OF CERTAIN TERMS.
(a) As used herein, employment by the Company shall include
employment by a corporation which is a "subsidiary corporation" of the
Company, as such term is defined in section 424 of the Code. References in
this Agreement to sections of the Code shall be deemed to refer to any
successor section of the Code or any successor internal revenue law.
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(b) As used herein, the term "Legal Representative" shall
include an executor, administrator, legal representative, guardian or
similar person and the term "Permitted Transferee" shall include any
transferee or (ii) designated pursuant to beneficiary designation
procedures approved by the Company.
4.3. SUCCESSORS. This Agreement shall be binding upon and
inure to the benefit of any successor or successors of the Company and any
person or persons who shall, upon the death of the Optionee, acquire any
rights hereunder in accordance with this Agreement or the Plan.
4.4. NOTICES. All notices, requests or other communications
provided for in this Agreement shall be made, if to the Company, to
Xxxxxxxx, Inc., 0 Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Vice
President and Treasurer, and if to the Optionee, to the last known mailing
address of the Optionee contained in the records of the Company. All
notices, requests or other communications provided for in this Agreement
shall be made in writing either (a) by personal delivery to the party
entitled thereto, (b) by facsimile with confirmation of receipt, (c) by
mailing in the United States mails to the last known address of the party
entitled thereto or (d) by express courier service. The notice, request or
other communication shall be deemed to be received upon personal delivery,
upon confirmation of receipt of facsimile transmission or upon receipt by
the party entitled thereto if by United States mail or express courier
service; provided, however, that if a notice, request or other
communication sent to the Company is not received during regular business
hours, it shall be deemed to be received on the next succeeding business
day of the Company.
4.5. GOVERNING LAW. This Agreement, the Option and all
determinations made and actions taken pursuant hereto and thereto, to the
extent not governed by the laws of the United States, shall be governed by
the laws of the State of Delaware and construed in accordance therewith
without giving effect to principles of conflicts of laws.
4.6. COUNTERPARTS. This Agreement may be executed in two
counterparts each of which shall be deemed an original and both of which
together shall constitute one and the same instrument.
XXXXXXXX, INC.
By:
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Xxxxx X. X'Xxxxxxx
Vice President & Treasurer
Accepted this __________ day of
__________________________, 2005.
____________________
Optionee
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