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Exhibit 10.26
STOCK OPTION AGREEMENT
(INCENTIVE STOCK OPTION)
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THIS AGREEMENT is made to be effective as of __________,
200__, by and between X. X. Xxxxx Corporation, an Ohio corporation (the
"COMPANY"), and ____________________ (the "OPTIONEE").
WITNESSETH:
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WHEREAS, pursuant to the provisions of the X. X. Xxxxx Corporation 1997
Incentive Stock Plan (as amended, the "PLAN"), the Board of Directors of the
COMPANY has appointed a Compensation Committee (the "COMMITTEE") to administer
the PLAN and the COMMITTEE has determined that an option to acquire common
shares, $1.00 par value (the "COMMON SHARES"), of the COMPANY should be granted
to the OPTIONEE upon the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereto make
the following agreement, intending to be legally bound thereby:
(1) GRANT OF OPTION. The COMPANY hereby grants to the OPTIONEE an option
(the "OPTION") to purchase __________ COMMON SHARES of the COMPANY (subject to
adjustment as provided in Section (3)). The OPTION is intended to qualify as an
incentive stock option under Section 422 of the Internal Revenue Code of 1986,
as amended (the "CODE").
(2) TERMS AND CONDITIONS OF THE OPTION.
(A) OPTION PRICE. The purchase price (the "OPTION PRICE") to be paid
by the OPTIONEE to the COMPANY upon the exercise of the OPTION shall be $_______
per share, subject to adjustment as provided in Section (3).
(B) EXERCISE OF THE OPTION. The OPTION may not be exercised until the
OPTIONEE shall have completed twelve months of continuous employment with the
COMPANY and/or its subsidiaries immediately following the date hereof.
Thereafter, except as otherwise provided in this Agreement, the OPTION may be
exercised as follows:
(i) at any time after such twelve-month period as to 20% of the
COMMON SHARES subject to the OPTION (subject to adjustment as provided in
Section (3));
(ii) at any time after twenty-four months from the date of this
Agreement as to an additional 20% of the COMMON SHARES subject to the OPTION
(subject to adjustment as provided in Section (3));
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(iii) at any time after thirty-six-months as to an additional 20%
of the COMMON SHARES subject to the OPTION (subject to adjustment as provided in
Section (3));
(iv) at any time after forty-eight months from the date of this
Agreement as to an additional 20% of the COMMON SHARES subject to the OPTION
(subject to adjustment as provided in Section (3)) and
(v) at any time after sixty months from the date of this
Agreement as to the remaining 20% of the COMMON SHARES subject to the OPTION
(subject to adjustment as provided in Section (3)).
Subject to the other provisions of this Agreement, if the OPTION becomes
exercisable as to certain COMMON SHARES, it shall remain exercisable as to those
COMMON SHARES until the date of expiration of the OPTION term. The COMMITTEE
may, but shall not be required to (unless otherwise provided in this Agreement),
accelerate the schedule of the time or times when the OPTION may be exercised.
The grant of the OPTION shall not confer upon the OPTIONEE any right to
continue in the employment of the COMPANY nor limit in any way the right of the
COMPANY to terminate the employment of the OPTIONEE at any time in accordance
with law or the COMPANY's governing corporate documents.
(C) OPTION TERM. The OPTION shall in no event be exercisable after the
expiration of ten (10) years from the date of this Agreement.
(D) METHOD OF EXERCISE. The OPTION may be exercised by giving written
notice of exercise to the COMPANY in care of the Treasurer of the COMPANY
stating the number of COMMON SHARES subject to the OPTION in respect of which it
is being exercised. Payment for all such COMMON SHARES shall be made to the
COMPANY at the time the OPTION is exercised in United States dollars in cash
(including check, bank draft or money order). Payment for such COMMON SHARES
also may be made (i) by delivery of COMMON SHARES of the COMPANY already owned
by the OPTIONEE and having a Fair Market Value (as that term is defined in the
PLAN) on the date of delivery equal to the OPTION PRICE, or (ii) by delivery of
a combination of cash and already owned COMMON SHARES. After payment in full for
the COMMON SHARES purchased under the OPTION has been made, the COMPANY shall
take all such action as is necessary to deliver appropriate share certificates
evidencing the COMMON SHARES purchased upon the exercise of the OPTION as
promptly thereafter as is reasonably practicable.
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(3) ADJUSTMENTS AND CHANGES IN THE COMMON SHARES.
(A) In the event that the outstanding COMMON SHARES of the
COMPANY shall be changed into or exchanged for a different kind of shares or
other securities of the COMPANY or of another corporation (whether by reason of
merger, consolidation, recapitalization, reclassification, split-up, combination
of shares or otherwise) or if the number of such COMMON SHARES shall be
increased through the payment of a stock dividend, then unless such change
results in the termination of all outstanding options granted pursuant to the
PLAN, there shall be substituted for or added to each COMMON SHARE of the
COMPANY subject to the OPTION, the number and kind of shares or other securities
into which each outstanding COMMON SHARE of the COMPANY shall be changed, or for
which each such COMMON SHARE shall be exchanged, or to which the holder of each
such COMMON SHARE shall be entitled, as the case may be. The OPTION shall also
be appropriately amended as to the OPTION PRICE and other terms as may be
necessary to reflect the foregoing events. The number of COMMON SHARES that will
vest on the dates set forth in Section (2)(B) shall also be appropriately
adjusted to reflect any such change in the outstanding COMMON SHARES. In the
event there shall be any other change in the number or kind of the outstanding
shares of the COMPANY, or of any shares or other securities into which such
shares shall have been changed, or for which they shall have been exchanged,
then if the COMMITTEE shall, in its sole discretion, determine that such change
equitably requires an adjustment in the OPTION, such adjustment shall be made by
the COMMITTEE in accordance with such determination. Fractional shares resulting
from any adjustment in the OPTION pursuant to this Section 3(A) shall be rounded
down to the nearest whole number of shares.
(B) Notwithstanding the foregoing, any and all adjustments in
connection with the OPTION shall comply in all respects with Section 422 of the
CODE, and the regulations promulgated thereunder.
(C) Notice of any adjustment pursuant to this Section (3) shall
be given by the COMPANY to the OPTIONEE.
(D) The grant of this OPTION shall not affect in any way the
right of the COMPANY to adjust, reclassify, reorganize, or otherwise change its
capital or business structure or to merge, consolidate, dissolve, liquidate or
sell or transfer all or any part of its business or assets.
(4) ACCELERATION OF OPTION. In the event that the COMPANY or its
shareholders enter into one or more agreements to dispose of all or
substantially all of the assets or fifty percent (50%) or more of the
outstanding capital stock of the COMPANY by means of sale (whether as a result
of a tender offer or otherwise), merger, reorganization or liquidation in one or
a series of related transactions (each, an "ACCELERATION EVENT"), then the
OPTION shall become exercisable during the fifteen (15) days immediately prior
to the scheduled consummation of the ACCELERATION EVENT with respect to the full
number of COMMON SHARES subject to the OPTION. Upon consummation of the
ACCELERATION EVENT, the OPTION, whether or not
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accelerated, will terminate and cease to be exercisable, unless assumed by the
successor corporation or parent thereof.
(5) NON-ASSIGNABILITY OF OPTION. The OPTION shall not be assignable or
otherwise transferable by the OPTIONEE except by will or by the laws of descent
and distribution. The OPTION may not be exercised during the lifetime of the
OPTIONEE except by him, his guardian or legal representative.
(6) SUBSTITUTION FOR OPTION. The COMMITTEE shall have the authority to
effect, at any time and from time to time, with the consent of the OPTIONEE, the
cancellation of the OPTION and the grant in substitution therefor of one or more
new options under the PLAN covering the same or a different number of COMMON
SHARES at an option price per share in all events not less than 100% of the
closing sale price for the COMMON SHARES of the COMPANY as shown on the New York
Stock Exchange - Composite Transactions on the new grant date.
(7) EXERCISE AFTER TERMINATION OF EMPLOYMENT.
(A) Except as otherwise provided in this Agreement, the OPTION
shall be exercisable only while the OPTIONEE is in the employment of the COMPANY
and then only if the OPTION has become exercisable by its terms, and if not
exercisable by its terms at the time the OPTIONEE ceases to be in the employment
of the COMPANY, shall immediately expire on the date of termination of
employment.
(B) If the OPTION is exercisable by its terms at the time the
OPTIONEE ceases to be in the employment of the COMPANY other than by reason of
OPTIONEE's death, permanent disability or normal retirement (as defined in
Section (7)(D) below), it must be exercised on or before the earlier of three
(3) months after the date of the termination of employment of the OPTIONEE or
the fixed expiration date of the OPTION, after which period the OPTION shall
expire. Notwithstanding the foregoing, if the OPTIONEE's employment is
terminated for willful, deliberate or gross misconduct (such as, for example,
dishonesty), the OPTION shall, to the extent not previously exercised, expire
immediately upon such termination.
(C) In the event of the death of the OPTIONEE (i) while in the
employment of the COMPANY or (ii) within three (3) months after his termination
of employment other than for willful, deliberate or gross misconduct, the
unexercised portion of the OPTION (whether or not then exercisable by its terms)
shall become immediately exercisable by his estate for a period ending on the
earlier of the fixed expiration date of the OPTION or twelve months after the
date of death, after which period the OPTION shall expire. For purposes hereof,
the estate of an OPTIONEE shall be defined to include the legal representatives
thereof or any person who has acquired the right to exercise the OPTION by
reason of the death of the OPTIONEE.
(D) In the event of the termination of employment of the OPTIONEE
by reason of the "permanent disability" or "normal retirement" of the OPTIONEE,
the unexercised portion of the OPTION (whether or not then exercisable by its
terms) shall become immediately
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exercisable in full for a period ending on the earlier of three (3) months after
the termination of employment or the fixed expiration date of the OPTION, after
which period the OPTION shall expire; provided, however, that if such
termination of employment occurs by reason of "disability" within the meaning of
Section 22(e)(3) of the CODE, said three-month period shall be extended to
twelve months. For purposes hereof, "permanent disability" shall be deemed to be
the inability of the OPTIONEE to perform the duties of his job with the COMPANY
because of a physical or mental disability as evidenced by the opinion of a
COMPANY-approved doctor of medicine licensed to practice medicine in the United
States of America and "retirement" shall be deemed to be "normal retirement" if
the OPTIONEE is at least 65 years of age and has completed at least five (5)
consecutive years of employment with the COMPANY at the date of retirement.
(8) RESTRICTIONS ON TRANSFERS OF COMMON SHARES. Anything
contained in this Agreement or elsewhere to the contrary notwithstanding, the
COMPANY may postpone the issuance and delivery of COMMON SHARES upon any
exercise of the OPTION until completion of any stock exchange listing or
registration or other qualification of such COMMON SHARES under any state or
federal law, rule or regulation as the COMPANY may consider appropriate; and may
require the OPTIONEE when exercising the OPTION to make such representations and
furnish such information as the COMPANY may consider appropriate in connection
with the issuance of the COMMON SHARES in compliance with applicable law.
COMMON SHARES issued and delivered upon exercise of the OPTION
shall be subject to such restrictions on trading, including appropriate
legending of certificates to that effect, as the COMPANY, in its discretion,
shall determine are necessary to satisfy applicable legal requirements and
obligations.
(9) RIGHTS OF OPTIONEE. The OPTIONEE shall have no rights as a
shareholder of the COMPANY with respect to any COMMON SHARES of the COMPANY
covered by the OPTION until the date of issuance of a certificate to him
evidencing such COMMON SHARES.
(10) PLAN AS CONTROLLING. All terms and conditions of the PLAN
applicable to the OPTION which are not set forth in this Agreement shall be
deemed incorporated herein by reference. In the event that any term or condition
of this Agreement is inconsistent with the terms and conditions of the PLAN, the
PLAN shall be deemed controlling.
(11) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio.
(12) RIGHTS AND REMEDIES CUMULATIVE. All rights and remedies of
the COMPANY and of the OPTIONEE enumerated in this Agreement shall be cumulative
and, except as expressly provided otherwise in this Agreement, none shall
exclude any other rights or remedies allowed by law or in equity, and each of
said rights or remedies may be exercised and enforced concurrently.
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(13) CAPTIONS. The captions contained in this Agreement are
included only for convenience of reference and do not define, limit, explain or
modify this Agreement or its interpretation, construction or meaning and are in
no way to be construed as a part of this Agreement.
(14) SEVERABILITY. If any provision of this Agreement or the
application of any provision hereof to any person or any circumstance shall be
determined to be invalid or unenforceable, then such determination shall not
affect any other provision of this Agreement or the application of said
provision to any other person or circumstance, all of which other provisions
shall remain in full force and effect, and it is the intention of each party to
this Agreement that if any provision of this Agreement is susceptible of two or
more constructions, one of which would render the provision enforceable and the
other or others of which would render the provision unenforceable, then the
provision shall have the meaning which renders it enforceable.
(15) NUMBER AND GENDER. When used in this Agreement, the number
and gender of each pronoun shall be construed to be such number and gender as
the context, circumstances or its antecedent may required.
(16) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the COMPANY and the OPTIONEE in respect of the subject matter
of this Agreement, and this Agreement supersedes all prior and contemporaneous
agreements between the parties hereto in connection with the subject matter of
this Agreement. No officer, employee or other servant or agent of the COMPANY,
and no servant or agent of the OPTIONEE is authorized to make any
representation, warranty or other promise not contained in this Agreement. No
change, termination or attempted waiver of any of the provisions of this
Agreement shall be binding upon any party hereto unless contained in a writing
signed by the party to be charged.
(17) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns (including successive,
as well as immediate, successors and assigns) of the COMPANY.
[Remainder of page intentionally left blank;
signatures on following page.]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed on the date first above written.
COMPANY:
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X. X. XXXXX CORPORATION
By:------------------------------
Its:-----------------------------
OPTIONEE:
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Name
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Xxxxxx Xxxxxxx
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Xxxx, Xxxxx, Zip Code
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Social Security Number
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