This Nonqualified Stock Option Agreement (the "Agreement"), effective as
of August 17, 2000 (the "Date of Grant"), is made by and between
The Xxxxx Group Inc., a New York corporation (the "Company"), and
Xxxxxx Xxxxxxxx (the "Recipient").
Background
The Company has established the Xxxxx Group Inc. Stock Incentive Plan
(the "Plan"). The Company wishes to grant to the Recipient a Nonqualified
Stock Option pursuant to the terms of the Plan.
Therefore, in consideration of the mutual covenants contained in
this Agreement and other good and valuable consideration, the Company
and the Recipient agree as follows:
1. Grant of Option.
In consideration of service to the Company and for other good and valuable
consideration, the Company grants to the Recipient a Nonqualified Stock
Option (the "Option") to purchase 187,500 Shares in accordance with
the terms and conditions of the Plan and this Agreement. The Option
is granted in accordance with the terms and conditions of the Plan, the
terms of which are incorporated herein by reference, and the Agreement
shall in all respects be interpreted in accordance with the Plan. Any
term used in the Agreement that is not otherwise defined in the
Agreement shall have the meaning assigned to it by the Plan.
2. Option Price.
The purchase price of the Shares subject to the Option shall be the par
value $0.01 per Share.
3. Adjustments in Option.
If a reorganization, merger, consolidation, reclassification,
recapitalization, combination or exchange of shares, stock split,
stock dividend, rights offering, or other expansion or contraction of
the Common Stock occurs,the Committee will equitably adjust the number
and class of Shares then subject to the Option, and the price per Share
payable upon exercise of the Option. To the extent deemed equitable and
appropriate by the Board, subject to any required action by shareholders,
the Option will pertain to the securities and other property to which a
holder of the number of Shares covered by the Option would have been
entitled to receive in connection with any merger, consolidation,
reorganization, liquidation or dissolution.Any adjustment in the Option
pursuant to this Section 3 shall be madewithout change in the total price
applicable to the unexercised portion of the Option (except for any change
in the aggregate price resulting from rounding-off of share quantities or
prices) and with any necessary corresponding adjustment in the Option price
per share. Any such adjustment made by the Committee shall be final and
binding upon the Recipient, the Company and all other interested persons.
4. Person Eligible to Exercise Option.
During the lifetime of the Recipient, only the Recipient may exercise the
Option or any portion of the Option. After the death of the Recipient,
any exercisable portion of the Option may, prior to the time when the
Option becomes unexercisable under the terms of the Plan, be exercised by
the Recipient's personal representative or by any other person empowered
to do so under the Recipient's will, trust or under then applicable laws
of descent and distribution.
5. Manner of Exercise.
The Option, or any portion of the Option, shall be exercised only in
accordance with the provisions of the Plan and this Agreement. The
person exercising the Option shall give to the Company a written notice
that shall: (i) state the number of Shares with respect to which the
Option is being exercised; and (ii) specify a date (other than a Saturday,
Sunday or legal holiday) not more than ten days after the date of such
written notice, as the date on which the Shares will be purchased.
Such tender and conveyance shall take place at the principal office
of the Company during ordinary business hours, or at such other hour
and place agreed upon by the Company and the person or persons exercising
the Option. On the date specified in such written notice, the Company
shall accept payment for the Option Shares in cash, by bank or certified
check, by wire transfer, by delivery of a notice instructing the Company
to deliver the Shares to a broker subject to the broker's delivery of cash
to the Company equal to the exercise price, or by such other means as may
be approved by the Committee, and shall deliver to the person or persons
exercising the Option in exchange therefor an appropriate certificate or
certificates for fully paid nonassessable Shares or undertake to deliver
certificates within a reasonable period of time. In the event of any
failure to take up and pay for the number of Shares specified in such
written notice on the date set forth therein (or on the extended date as
above provided), the right to exercise the Option shall terminate with
respect to such number of Shares, but shall continue with respect to
the remaining Shares covered by the Option and not yet acquired pursuant
thereto.
The person who exercises the Option shall warrant to the Company
that, at the time of such exercise, such person is acquiring his
or her Option Shares for investment and not with a view to, or for
or in connection with, the distribution of any such Shares, and
shall make such other representations, warranties, acknowledgments, and
affirmations, if any, as the Committee may require. In such event, the
person acquiring such Shares shall be bound by the provisions of an
appropriate legend which shall be endorsed upon the certificate(s)
evidencing his or her Option Shares issued pursuant to such exercise. The
Company may delay issuance of the Shares until completion of any action or
obtaining any consent that the Company deem necessary under any applicable
law (including without limitation state securities or "blue sky" laws).
6. Conditions to Issuance of Stock Certificates.
The shares of stock deliverable upon the exercise of the Option, or any
portion thereof, may be either previously authorized but unissued shares
or issued shares which have been reacquired by the Company. Such shares
shall be fully paid and nonassessable.
7. Rights of Shareholders.
The Recipient shall not be, nor have any of the rights or privileges of,
a shareholder of the Company in respect of any shares purchasable upon
the exercise of any part of the Option unless and until certificates
representing such shares shall have been issued by the Company to the
Recipient.
8. Vesting and Exercisability.
A Recipient's interest in the Option shall vest according to the
provisions of this Section 8 and shall be exercisable as to not more than
the vested percentage of the shares subject to the Option at any point in
time. Furthermore, the Option is exercisable only if the issuance of
Shares upon exercise would comply with applicable securities laws. To the
extent the Option is either unexercisable or unexercised, the unexercised
portion shall accumulate until the Option both becomes exercisable and is
exercised, subject to the provisions of Section 9 of the Agreement. The
Option shall become vested as follows:
Anniversary of Date of Grant
Date of Grant
August 17, 2001, August 16, 2002
After August 16, 2003
Vested Percentage of Option
50%
75%
100%
The Committee, in its sole and absolute discretion, may accelerate
the vesting of the Option at any time. The Option shall automatically
become 100% vested upon the occurrence of a Change of Control.
(b) A Change of Control means the occurrence of one or more of
the following events:
(i) any sale, lease, exchange or other transfer(in one transaction or a
series of related transactions) of all or substantially all of the assets
of the Company and its Subsidiaries,taken as a whole, to any Person or
group of related Persons, as defined in Section 13(d) of the Exchange Act
(a "Group"), other than to PermittedHolders;
(ii) the approval by the holders of Capital Stock of the Company
of any plan or proposal for the liquidation or dissolution of the Company;
(iii) any Person or Group (other than Permitted Holders) shall become the
owner, directly or indirectly, beneficially or of record, of shares
representing more than 50% of the aggregate ordinary voting power
represented by the issued and outstanding Voting Stock of the Company or
any successor to all or substantially all of its assets; or (iv)
the first day on which a majority of the members of the board of
directors of the Company are not Continuing Directors.
(c) For purposes of Section 8(b) above, the following terms
shall have the following meanings:
(i) "Capital Stock" of any Person means any and all shares, interests,
participation or other equivalents (however designated) of corporate stock
or other equity participations, including partnership interests, whether
general or limited, of such Person.
(ii) "Continuing Directors" means, as of any date of determination, any
member of the board of directors of the Company who (A) was a member
of such board of directors on August 16, 2000 or (B) was nominated for
election or elected to such board of directors by any of the Permitted
Holders or with the approval of a majority of the Continuing Directors who
were members of such board of directors at the time of such nomination or
election.
(iii) "Exchange Act" refers to the Securities Exchange Act of 1934 as it
may be amended and any successor act thereto.
(iv) "Permitted Holder" means as of the date of determination (A) Xxxxxx
Xxxxxx, Xxxxxx Xxxxxxxx or Xxxx Xxxxxx and any of their respective spouses,
estates, lineal descendants (including adoptive children), heirs, executors
personal representatives, administrators and trusts for any of their benefit
and (B) any other Person, the majority of whose Voting Stock is directly or
indirectly owned by any Person described in clause (A) above.
(v) "Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency
or political subdivision thereof.
(vi) "Subsidiary" of any Person means (A) a corporation more than
50% of the combined voting power of the outstanding Voting Stock of which
is owned, directly or indirectly, by such Person or by one or more other
Subsidiaries of such Person, or (B) any other Person (other than a
corporation) in which such Person, or one or more other Subsidiaries of
such Person or such Person and one or more other Subsidiaries thereof,
directly or indirectly, has at least a majority ownership and power to
direct the policies, management and affairs thereof.
(vii) "Voting Stock" of any Person means Capital Stock of such
Person which ordinarily has voting power for the election of directors
(or persons performing similar functions) of such Person, whether at all
times or only so long as no senior class of securities has such voting
power by reason of any contingency.
9. Duration of Option. Except as specified below, the Option shall
expire on August 16, 2010. Notwithstanding the foregoing, the Option may
expire prior to August 16, 2010, in the following circumstances:
a. In the case of the Recipient's death, the Option shall
expire on the one-year anniversary of the Recipient's death.
b. If the Recipient's employment or affiliation with the
Company terminates as a result of his total and permanent
Disability, the Option shall expire on the one-year anniversary
of the Recipient's last day of employment.
c. If the Recipient ceases employment or affiliation with
the Company as a result of his retirement in accordance with
the Company's normal retirement policies, or if the Company
terminates the Recipient's employment other than for Cause,
the Option shall expire 90 days following the last day of the
Recipient's employment.
d. If the Recipient ceases employment or affiliation
with the Company for any reason other than the reasons described
in Sections 9.a, 9.b. or 9.c. of this Agreement, the
Option shall expire 30 days following the last day that the
Recipient is employed by the Company.
e. During the period following the last day that the
Recipient is employed by the Company (whether or not employment
is terminated as referenced in Sections 9.a, 9.b, 9.c or 9.d of
this Agreement), the Option will be exercisable only to the extent
the Recipient's interest in the Option is vested on the date the
Recipient's employment terminates.
f. Notwithstanding any provisions set forth above in
this Section 9, if the Company terminates the Recipient's
employment for Cause, any unexercised part of the Option
shall expire immediately upon the earlier of the occurrence that
constitutes Cause or the last day the Recipient is employed by
the Company.
10. Administration. The Committee shall have the power to interpret
this Agreement and to adopt such rules for the administration,
interpretation and application of the Agreement as are consistent herewith
and to interpret or revoke any such rules. All actions taken and all
interpretations and determinations made by the Committee in good faith
shall be final and binding upon the Recipient, the Company and all
other interested persons. No member of the Committee shall be personally
liable for any action, determination or interpretation made in good
faith with respect to this Agreement or any similar agreement to which the
Company is a party.
11. Transfer of Option. Unless otherwise permitted by applicable
laws and approved in advance by the Committee, the Option shall not be
transferable by the Recipient and shall be exercisable, during the
Recipient's lifetime, only by such Recipient or, in the event of the
Recipient's incapacity, his guardian or legal representative. Except as
otherwise permitted herein, the Option shall not be assigned, pledged, or
hypothecated in any way (whether by operation of law or otherwise) and
shall not be subject to execution, attachment, or similar process and
any attempted transfer, assignment, pledge, hypothecation or other
disposition of the Option or of any rights granted thereunder contrary
to the provisions of this Section 11, or the levy of any attachment or
similar process upon an option or such rights, shall be null and void.
This Section 11 shall not prevent transfers by will or by the applicable
laws of descent and distribution.
12. Shares to be Reserved. The Company shall at all times during the
term of the Option reserve and keep available such number of shares of
stock as will be sufficient to satisfy the requirements of this Agreement.
13. Termination. Without the consent of Recipient or the holder
currently entitled to exercise the Option, the Board may establish a date
or event upon which the Plan and the unexercised portion of the Option
will terminate; provided, however, that the Board must provide to the
Recipient or the holder currently entitled to exercise the Option written
notice of the termination of the Plan and the Option no less than 30 days
prior to the date or event upon which the Plan and the unexercised
portion of the Option will terminate.
14. Notices. Any notice to be given under the terms of this
Agreement to the Company shall be addressed to the Company in care of
its President (or the President's delegate, in the President's absence).
Any notice to be given to the Recipient shall be addressed to him at
the address given beneath his signature below. By a notice given
pursuant to this Section 14, either party may hereafter designate a
different address for notices to be given to him.Any notice which is
required to be given to the Recipient shall, if the Recipient is then
deceased, be given to the Recipient's personal representative if such
representative has previously informed the Company of his status and
address by written notice under this Section 14. Any notice shall have
been deemed duly given when enclosed in a properly sealed envelope
addressed as aforesaid, deposited (with postage prepaid) in a United States
postal receptacle.
15. Titles. Titles are provided herein for convenience only
and are not to serve as a basis for interpretation or construction of
this Agreement.
The Company and the Recipient have executed this Agreement effective
as of the date first written above.
THE XXXXX GROUP INC.
/s/ Xxxxxx X. Xxxxx
__________________________
Xxxxxx X. Xxxxx, President
/s/ __________________________
Signature of Recipient
____________________________________
Address of Recipient
