Exhibit 10.05
XXXXXX, INC.
1996 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
NON-QUALIFIED STOCK OPTION CONTRACT
THIS NON-QUALIFIED STOCK OPTION CONTRACT entered into as of the
30th day of November 2004 between XXXXXX, INC., a Delaware corporation (the
"Company"), and Xxxxxx X. Xxxxxxxxx (the "Optionee").
W I T N E S S E T H:
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1. The Company, in accordance with the terms and conditions of the
1996 Non-Employee Director Stock Option Plan of the Company (the "Plan"), grants
as of November 30, 2004 to the Optionee an option to purchase an aggregate of
2,000 shares of the Common Stock, $1.00 par value per share, of the Company
("Common Stock"), at $6.70 per share, being 100% of the fair market value of
such shares of Common Stock on such date.
2. The term of this option shall be 10 years, subject to earlier
termination as provided in the Plan. This option shall be exercisable
immediately as to 100% of the number of shares of Common Stock subject hereto;
provided, that this option shall not be exercisable at any time in an amount
less than 100 shares (or the remaining shares covered hereby if less than 100
shares).
3. This option shall be exercised by giving written notice to the
Company at its principal office, presently 000 00xx Xxxxxx, Xxxx Xxx Xxxx, Xxx
Xxxxxx 00000, Attention: Chief Financial Officer, stating that the Optionee is
exercising this option, specifying the number of shares being purchased and
accompanied by payment in full of the aggregate purchase price therefor (a) in
cash or by certified check, (b) with previously acquired shares of Common Stock
having an aggregate fair market value on the date of exercise (determined in
accordance with Article 5 of the Plan) equal to the aggregate exercise price of
all options being exercised, or (c) any combination of the foregoing. In
addition, the Optionee agrees to pay to the Company in cash, upon demand, the
amount, if any, which the Company determines is necessary to satisfy its
obligation to withhold federal, state and local income and other taxes or other
amounts incurred by reason of the grant or exercise of this option. In no event
may a fraction of a share of Common Stock be purchased hereunder.
4. Notwithstanding the foregoing, and without limiting the
provisions of Article 11 of the Plan, this option shall not be exercisable by
the Optionee unless (a) a registration statement under the Securities Act of
1933, as amended (the "Securities Act") with respect to the shares of Common
Stock issuable upon the exercise of this option shall
be effective and current at the time of exercise or (b) there is an exemption
from registration under the Securities Act for the issuance of such shares of
Common Stock upon exercise. At the request of the Board of Directors, the
Optionee shall execute and deliver to the Company representations and
warranties, in form and substance satisfactory to counsel to the Company, that
the shares of Common Stock to be issued upon the exercise of the option are
being acquired by the Optionee for his own account, for investment only and not
with a view to the resale or distribution thereof within the meaning of the
Securities Act. Nothing herein shall be construed so as to obligate the Company
to register the shares subject to this option under the Securities Act.
5. Nothing in the Plan or herein shall confer upon the Optionee
any right to continue as a director of the Company.
6. The Company may endorse such legends upon the certificates for
shares of Common Stock issued upon exercise of this option and may issue such
"stop transfer" instructions to its transfer agent in respect of such shares as
it determines, in its discretion, to be necessary or appropriate to prevent a
violation of, or to perfect an exemption from, the registration requirements of
the Securities Act.
7. The Company and the Optionee agree that they will both be
subject to and bound by all of the terms and conditions of the Plan, a copy of
which is attached hereto and made a part hereof. In the event the Optionee is no
longer a director of the Company or in the event of his death or disability (as
defined in the Plan), his rights hereunder shall be governed by and be subject
to the provisions of the Plan. In the event of a conflict between the terms of
this Contract and the terms of the Plan, the terms of the Plan shall govern.
8. The Optionee represents and agrees that he will comply with all
applicable laws relating to the Plan and to the grant and exercise of this
option and the disposition of the shares of Common Stock acquired upon exercise
of this option, including without limitation, federal and state securities and
"blue sky" laws.
9. This option is not transferable otherwise than by will or the
laws of descent and distribution and may be exercised during the lifetime of the
Optionee only by him.
10. This Contract shall be binding upon and inure to the benefit
of any successor or assign of the Company and to any heir, distributee,
executor, administrator or legal representative entitled under the Plan and by
law to the Optionee's rights hereunder.
11. This Contract shall be governed by and construed in accordance
with the laws of the State of Delaware.
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12. The invalidity or illegality of any provision herein shall not
affect the validity of any other provision.
13. The Optionee agrees that the Company may amend the Plan and
the options granted to the Optionee under the Plan, subject to the limitations
contained in the Plan.
IN WITNESS WHEREOF, the parties hereto have executed this Contract
as of the day and year first above written.
XXXXXX, INC.
By: /s/ Xxxxxx Xxxxxxxx
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Its: President
/s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx, Optionee
00 Xxxxx Xxxxx, Xxxxx, XX 00000
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Address
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Tax Id. or Social Security No.
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