AMENDED AND RESTATED OMNIBUS STOCK PLAN NONSTATUTORY STOCK OPTION GRANT AGREEMENT
Exhibit
10.5
I.C.
XXXXXX & COMPANY, INC.
AMENDED
AND RESTATED OMNIBUS STOCK PLAN
AGREEMENT
dated the 3rd day of May, 2007 from I.C. XXXXXX & COMPANY, INC., a Delaware
corporation (the “Company”), to Xxxxx X. Xxxxx, an employee and a director of
the Company (“Optionee”). Capitalized terms used without being defined herein
shall have the meanings ascribed to them by the I.C. Xxxxxx & Company, Inc.
Amended and Restated Omnibus Stock Plan, as the same may be amended from time
to
time hereafter (the “Plan”).
WHEREAS,
in order to implement the purposes of the Plan, the Company has granted the
Optionee an opportunity to purchase shares of its $.0001 par value Common Stock
(the “Common Stock”), as hereinafter provided; and
WHEREAS,
on May 3, 2007 (the “Grant Date”) the Compensation Committee of the Board of
Directors of the Company, acting pursuant to the Plan, granted to the Optionee
the option evidenced hereby at the exercise price in effect under the Plan
for
the Grant Date;
NOW,
THEREFORE, in consideration of the premises, mutual covenants and agreements
herein, the Company and Optionee agree as follows:
ARTICLE
1
GRANT
OF OPTION
Section
1.1 Grant of Option.
The
Company has granted to Optionee, pursuant to the provisions of the Plan, a
non-qualified stock option to purchase from the Company, at a price equal to
the
fair market value of the shares on the date of grant, which is $1.40 per share
(the “Exercise Price”), up to 25,000 shares of Common Stock, subject to the
provisions of this Option (this “Option”). This Option shall expire at 5:00 p.m.
Eastern Time on May 3, 2017 (the “Expiration Date”), unless fully exercised or
terminated earlier pursuant to this Option. The period between the Vesting
Date
(as defined below) and the Expiration Date is hereinafter referred to as the
“Option Term.”
ARTICLE
2
VESTING
Section
2.1 Vesting Schedule.
Unless
this Option has earlier terminated pursuant to the provisions of this Agreement,
the Optionee’s right to purchase Common Stock pursuant to this Option shall vest
with respect to a number of shares of Common Stock as close as possible to
1/3
of the total number of shares subject to this Option are vested on May 3, 2007,
1/3 will vest on May 3, 2008, and the remaining 1/3 will vest on May 3, 2009,
provided that Optionee shall be an active employee of our consultant to the
Company or one of its subsidiaries on each of such dates
Section
2.2 Acceleration of Vesting.
Unless
this Option has earlier terminated pursuant to the provisions of this Option,
vesting of this Option granted to Optionee hereunder shall be accelerated so
that the unvested portion of this Option shall become 100% vested in Optionee
upon the earliest to occur of: (i) Optionee’s termination of employment with the
Company or its subsidiaries due to Disability, as defined in Article 4
hereunder; (ii) termination of Optionee’s employment with the Company or its
subsidiaries as a result of Optionee’s death; (iii) termination of Optionee’s
employment with the Company or its subsidiaries by the Company without “Cause”
(as defined in Optionee’s employment agreement with the Company, dated December
19, 2005); or (iv) a Change of Control that occurs while Optionee is employed
by
the Company or its subsidiaries (each of the foregoing events, a “Triggering
Event”). For purposes of this Option, the term “Change of Control” shall mean
(i) the sale of all or substantially all of the assets of the Company, (ii)
the
sale of more than 50% of the outstanding capital stock of the Company in a
non-public sale, (iii) the dissolution or liquidation of the Company, or (iv)
any merger, share exchange, consolidation or other reorganization or business
combination of the Company if immediately after such transaction either (A)
persons who were members of the Board of Directors of the Company immediately
prior to such transaction do not constitute at least a majority of the Board
of
Directors of the surviving entity, or (B) persons who hold a majority of the
voting capital stock of the surviving entity are not persons who held voting
capital stock of the Company immediately prior to such transaction. In the
event
that the vesting of the Option is accelerated pursuant to this Section 2.2,
the
“Vesting Date” shall be the date that the Triggering Event occurs.
ARTICLE
3
EXERCISE
OF OPTION
Section
3.1 Exercisability of Option.
Unless
this Option has earlier terminated pursuant to the provisions of Article IV
hereof, this Option may be exercised at any time, and from time to time during
the Option Term, with respect to the number of shares subject to the Option
in
which Optionee is then vested.
Section
3.2 Manner of Exercise.
This
Option may be exercised, in whole or in part, by delivering written notice
to
the Company’s Secretary in such form as the Administrator may require from time
to time; provided, however, that this Option may not be exercised at any one
time as to fewer than ten shares (or such lesser number of shares as to which
this Option is then exercisable). Such notice shall specify the number of shares
of Common Stock subject to this Option as to which this Option is being
exercised, and shall be accompanied by full payment of the Exercise Price for
such shares in accordance with this Section 3.2. The exercise shall be effective
upon receipt by the Company’s Secretary of such written notice accompanied by
the required payment. Payment of the Exercise Price shall be made (a) in cash
(or via certified or cashier’s check, or money order); (b) by a broker-assisted
cashless exercise in accordance with Regulation T of the Board of Governors
of
the Federal Reserve System and the provisions of the next paragraph; or (c)
by
any combination of the foregoing. In the Administrator’s sole and absolute
discretion, the Administrator may authorize payment of the Exercise Price to
be
made, in whole or in part, by such other means as the Administrator may
prescribe. This Option may be exercised only in multiples of whole shares and
no
fractional shares shall be issued.
If
the
Common Stock is publicly traded on a national exchange, payment of the exercise
price may be made, in whole or in part, subject to such limitations as the
Administrator may determine, by delivery of a properly executed exercise notice,
together with irrevocable instructions: (i) to a brokerage firm approved by
the
Company to deliver promptly to the Company the aggregate amount of sale or
loan
proceeds to pay the exercise price and any withholding tax obligations that
may
arise in connection with the exercise, and (ii) to the Company to deliver such
purchased shares directly to such brokerage firm.
Section
3.3 Issuance of Shares and Payment of Cash upon Exercise.
Upon
exercise of this Option, in whole or in part, in accordance with the terms
hereof and upon payment of the Exercise Price for the shares of Common Stock
as
to which this Option is exercised, the Company shall issue to Optionee, the
brokerage firm specified in the Optionee’s delivery instructions pursuant to a
broker-assisted cashless exercise, or such other person exercising this Option,
as the case may be, the number of shares of Common Stock so paid for, in the
form of fully paid and nonassessable Common Stock and, as soon as practicable
thereafter, shall either deliver certificates therefore or instruct its transfer
agent to issue such shares in book entry form on the books of the transfer
agent. Unless such shares are registered or an exemption from registration
is
available under applicable federal and state law, if the shares of Common Stock
issued hereunder are in certificated form, the stock certificates for any such
shares shall, bear a legend restricting transferability of such shares, and
if
the shares are in book entry form, they shall be subject to electronic coding
or
stop order restricting transferability of such shares.
Section
3.4 Legal Compliance.
The
Company shall not be obligated to cause to be issued any shares of Common Stock
pursuant hereto unless and until the Company is advised by its counsel that
the
issuance and delivery of such certificates is in compliance with all applicable
laws, regulations of governmental authority and the requirements of any
securities exchange on which shares of Common Stock are traded. The
Administrator may require, as a condition of the issuance and delivery of
certificates evidencing shares of Common Stock pursuant to the terms hereof,
that the recipient of such shares make such covenants, agreements and
representations, and that such certificates bear such legends, as the
Administrator, in its sole discretion, deems necessary or
desirable.
ARTICLE
4
TERMINATION
OF OPTION
Section
4.1 Termination, In General.
This
Option shall terminate and be of no force or effect after the Expiration Date,
unless terminated prior to such time as provided below.
Section
4.2 Termination of Employment for Cause.
In the
event that the Optionee’s employment with the Company is terminated for Cause,
this Option shall terminate on the commencement of business of the effective
date of such termination of employment with respect to all shares of Common
Stock not purchased hereunder prior to such Termination Date.
The
good
faith determination by the Administrator of whether the Optionee’s employment
was terminated by the Company or one of its subsidiaries for Cause shall be
final and binding for all purposes hereunder.
Section
4.3 Upon Optionee’s Death.
Unless
this Option has earlier terminated for Cause or due to the Optionee’s Disability
or the Company’s termination of Optionee’s employment without Cause, upon
Optionee’s death, Optionee’s executor, personal representative, or the person(s)
to whom this Option shall have been transferred by will or the laws of descent
and distribution, as the case may be, may exercise all or any part of the
outstanding Option, provided such exercise occurs within one year after the
date
of Optionee’s death, but not later than the Expiration Date of this Option.
Unless sooner terminated, this Option shall terminate upon the expiration of
such one year period.
Section
4.4 Termination of Employment by Reason of Disability.
Unless
this Option has earlier terminated for Cause or due to the Optionee’s death or
the Company’s termination of Optionee’s employment without Cause, in the event
that Optionee ceases, by reason of Disability, to be an employee of the Company
or any of the Company’s subsidiaries, any unexercised portion of this Option may
be exercised in whole or in part at any time within one year after the date
of
Optionee’s termination of employment due to Disability, but not later than the
Expiration Date of this Option. Unless sooner terminated, this Option shall
terminate upon the expiration of such one year period. For purposes of this
Option, Disability shall mean the inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months. The Administrator
may require such proof of Disability as the Administrator in its sole discretion
deems appropriate and the Administrator’s determination as to whether Optionee
is Disabled shall be final and binding on all parties concerned.
Section
4.5 Termination of Employment.
In the
event that the Optionee’s employment with the Company is terminated other than
for cause or due to the Optionee’s death or Disability, any unexercised portion
of this Option that was vested as of the date of termination of employment
may
be exercised in whole or in part at any time within the one year period
following the Optionee’s termination of employment, but not later than the
Expiration Date of this Option. In the event that Optionee dies during the
one
year period, any unexercised portion of this Option that was vested as of the
date of death may be exercised in whole or in part at any time within one year
after the date of death, but not later than the Expiration Date of this Option.
Unless sooner terminated, this Option shall terminate upon the expiration of
such one year or one-year period.
Section
4.6 Leave of Absence.
For
purposes of this Option, the Optionee’s employment with the Company or any of
the Company’s subsidiaries shall not be deemed to terminate if the Optionee
takes any military leave, sick leave, or other bona fide leave of absence
approved by the Administrator of 90 days or less. In the event of a leave in
excess of 90 days, the Optionee’s employment shall be deemed to terminate on the
91st day of the leave unless the Optionee’s right to re-employment with the
Company or Affiliate remains guaranteed by statute or contract.
Section
4.7 Termination of Employment, Definition.
References on this Agreement to the Optionee’s termination of employment from
the Company shall mean the termination of the Optionee’s employment with the
Company, provided, however, that (i) a transfer of Optionee’s employment
relationship from the Company to a subsidiary or vice versa or from one
subsidiary to another subsidiary shall not constitute a termination of
employment, and (ii) an employee who terminates such relationship with the
Company but continues in a consulting relationship with the Company shall not
incur a termination of employment until such individual terminates the last
of
such relationships with the Company.
ARTICLE
5
ADJUSTMENTS;
BUSINESS COMBINATIONS
Section
5.1 Adjustments for Events Affecting Common Stock.
In the
event of changes in the Common Stock of the Company by reason of any stock
dividend, split-up, recapitalization, merger, consolidation, business
combination or exchange of shares and the like, the Administrator shall make
appropriate adjustments to the number, kind and price of shares covered by
this
Option, and shall, in its discretion and without the consent of the Optionee,
make any other adjustments in this Option, including but not limited to reducing
the number of shares subject to this Option or providing or mandating
alternative settlement methods such as settlement of this Option in cash or
in
shares of Common Stock or other securities of the Company or of any other
entity, or in any other matters which relate to this Option as the Administrator
shall, in its sole discretion, determine to be necessary or appropriate in
order
to prevent the dilution or enlargement of rights under this Option.
Section
5.2 Modifications or Adjustments for Unusual Events.
Notwithstanding anything in the Plan or this Option to the contrary and without
the consent of the Optionee, the Administrator, in its sole discretion, may
make
(a) in order to facilitate any business combination that is authorized by the
Board, any modifications to this Option, including but not limited to
cancellation, forfeiture, surrender or other termination of this Option in
whole
or in part regardless of the vested status of this Option; and/or (b) any
adjustments in the terms and conditions of, and the criteria included in, this
Option in recognition of unusual or nonrecurring events affecting the Company,
or the financial statements of the Company or any subsidiary of the Company,
or
of changes in applicable laws, regulations, or accounting principles, whenever
the Administrator determines that such adjustments are appropriate in order
to
prevent dilution or enlargement of the benefits or potential benefits intended
to be made available under this Option or the Plan.
Section
5.3 Binding Nature of Adjustments.
Modifications or adjustments under this Article 5 will be made by the
Administrator, whose determination as to what adjustments, if any, will be
made
and the extent thereof will be final, binding and conclusive. No fractional
shares will be issued pursuant to this Option on account of any such
modifications or adjustments.
ARTICLE
6
MISCELLANEOUS
Section
6.1 Non-Guarantee of Employment.
Nothing
in the Plan or this Option shall alter the employment status of Optionee, nor
be
construed as a contract of employment between the Company or any of the
Company’s subsidiaries, and Optionee, or as a contractual right of Optionee to
continue in the employ of the Company or any of its subsidiaries, or as a
limitation of the right of the Company, or any of the Company’s subsidiaries to
discharge Optionee at any time with or without cause or notice.
Section
6.2 No Rights of Stockholder.
Optionee shall not have any of the rights of a stockholder with respect to
the
shares of Common Stock that may be issued upon the exercise of this Option
until
such shares of Common Stock have been issued to Optionee upon the due exercise
of this Option. No adjustment shall be made for dividends or distributions
or
other rights for which the record date is prior to the date such shares are
issued, whether by means of a stock certificate or certificates or in book
entry
form.
Section
6.3 Non-Qualified Nature of Option.
This
Option is intended to be an agreement concerning a stock option arrangement
which does not qualify under section 422 of the Internal Revenue Code, and
this
Option shall be so construed. Optionee acknowledges that, upon exercise of
this
Option, Optionee will recognize taxable income in an amount equal to the excess
of the then Fair Market Value of the shares over the Exercise Price and must
comply with the provisions of Section 6.6 of this Option with respect to any
tax
withholding obligations that arise as a result of such exercise.
Section
6.4 Confidential Information.
In
consideration of the granting of this Option, Optionee agrees and covenants
that, except as specifically authorized by the Company, the Optionee will keep
confidential any trade secrets or confidential or proprietary information of
the
Company or any Affiliate which are now or which hereafter may become known
to
Optionee as a result of Optionee’s employment by the Company, the Company or any
of the Company’s subsidiaries, and shall not at any time, directly or
indirectly, disclose any such information to any person, firm, corporation
or
other entity, or use the same in any way other than in connection with the
business of the Company or any Affiliate, at all times during and after
Optionee’s employment.
Section
6.5 The Company’s Rights.
The
existence of this Option shall not affect in any way the right or power of
the
Company or its stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company’s capital
structure or its business, or any merger or consolidation of the Company, or
any
issue of bonds, debentures, preferred or other stocks with preference ahead
of
or convertible into, or otherwise affecting the Common Stock or the rights
thereof, or the dissolution or liquidation of the Company, or any sale or
transfer of all or any part of the Company’s assets or business, or any other
corporate act or proceeding, whether of a similar character or
otherwise.
Section
6.6 Withholding of Taxes.
The
Company or any of the Company’s subsidiaries shall have the right to deduct from
any compensation or any other payment of any kind (including withholding the
issuance of shares of Common Stock) due Optionee the amount of any foreign,
federal, state or local taxes required by law to be withheld as the result
of
the exercise of this Option or the lapsing of any restriction with respect
to
any shares of Common Stock acquired on exercise of this Option; provided,
however, that the value of the shares of Stock withheld may not exceed the
statutory minimum withholding amount required by law. In lieu of such deduction,
the Administrator may require Optionee to make a cash payment to the Company
or
an Affiliate equal to the amount required to be withheld. If Optionee does
not
make such payment when requested, the Company may refuse to issue any shares
of
Common Stock under the Plan until arrangements satisfactory to the Administrator
for such payment have been made.
Section
6.7 Optionee.
Whenever the word “Optionee” is used in any provision of this Option under
circumstances where the provision should logically be construed to apply to
the
estate, personal representative or beneficiary to whom this Option may be
transferred by will or by the laws of descent and distribution, the word
“Optionee” shall be deemed to include such person.
Section
6.8 Nontransferability of Option.
This
Option shall be nontransferable otherwise than by will or the laws of descent
and distribution and during the lifetime of Optionee, this Option may be
exercised only by Optionee or, during the period Optionee is under a legal
disability, by Optionee’s guardian or legal representative. Except as provided
above, this Option may not be assigned, transferred, pledged, hypothecated
or
disposed of in any way (whether by operation of law or otherwise) and shall
not
be subject to execution, attachment or similar process.
Section
6.9 Notices.
All
notices and other communications made or given pursuant to this Option shall
be
in writing and shall be sufficiently made or given if hand delivered or mailed
by certified mail, addressed to Optionee at the address contained in the records
of the Company, or addressed to the Administrator, care of the Company for
the
attention of its Corporate Secretary at its principal office or, if the
receiving party consents in advance, transmitted and received via telecopy
or
via such other electronic transmission mechanism as may be available to the
parties.
Section
6.10 Entire Agreement.
This
Option contains the entire agreement between the parties with respect to the
subject matter contained herein. Any oral or written agreements,
representations, warranties, written inducements, or other communications made
prior to the execution of this Option shall be void and ineffective for all
purposes.
Section
6.11 Amendments.
This
Option may not be modified, except as provided in the Plan or in a written
document signed by each of the parties hereto.
Section
6.12 Conformity with Plan.
Except
for the provisions of this Option that are contrary to the provisions of the
Plan, (a) this Option is intended to conform in all respects with, and is
subject to all applicable provisions of, the Plan, which is incorporated herein
by reference; and (b) any inconsistencies between this Option and the Plan
shall
be resolved in accordance with the terms of this Option. In the event of any
ambiguity in this Option or any matters as to which this Option is silent,
the
Plan shall govern. A copy of the Plan is available upon request to the
Administrator.
Section
6.13 Governing Law.
This
Option shall be governed by and construed in accordance with the laws of the
State of Delaware, other than the conflict of laws principles
thereof.
Section
6.14 Headings.
The
headings in this Option are for reference purposes only and shall not affect
the
meaning or interpretation of this Option.
IN
WITNESS WHEREOF, the Company has caused this Option to be executed by its duly
authorized officer as of the date first above written.
I.C.
XXXXXX & COMPANY, INC.
By:
/s/ Xxxxxx X. Xxxx
Name:
Xxxxxx X. Xxxx
Title:
Chief Executive Officer
The
undersigned hereby acknowledges that he/she has carefully read this Agreement
and the Plan and agrees to be bound by all of the provisions set forth in such
documents.
OPTIONEE
/s/
Xxxxx X. Xxxxx
Name: Xxxxx
X.
Xxxxx
Title: Chief
Financial Officer
Date:
CORPORATE
SECRETARY
I.C.
XXXXXX & COMPANY, INC.
0000
XXXX
XXXXXX
XXXXXXXXX,
XXXXXXXX 00000
Gentlemen:
I
hereby
elect to exercise the Option made to me on May 3, 2007 by I.C. XXXXXX &
COMPANY, INC. (the “Company”), pursuant to an Agreement dated May 3, 2007
concerning the grant subject to all the terms and provisions of the Nonstatutory
Stock Option Grant Agreement previously executed by me, and the I.C. XXXXXX
& COMPANY, INC. AMENDED AND RESTATED OMNIBUS STOCK PLAN. Pursuant to this
election, I wish to purchase ____________ shares of Common Stock of the Company
at a price of $[ ] per share.
Enclosed
is payment for such shares in the amount of $_____________ in the form
of:
£ Cash
£ Certified
or Cashier’s Check £ Money
Order
£ Irrevocable
Broker-Assisted Cashless Exercise Instructions
I
understand that my election will be effective the date this election notice,
together with the cash, check or other payment of the purchase price, is
received by the Company as indicated below.
My
address of record is:
_________________________________
_________________________________
_________________________________
And
my
Social Security Number is: __________________
Date:
________________________ ___________________________________
[Optionee]
Received
by I.C. XXXXXX & COMPANY, INC. on ___________________________
By:
_______________________________
Title:
______________________________
