Exhibit 10.19
SUNDERLAND INDUSTRIAL HOLDINGS CORPORATION
Nonqualified Stock Option Agreement
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This Nonqualified Stock Option Agreement (the "Agreement") is
entered into as of April 1, 1998 ("Grant Date"), between SUNDERLAND INDUSTRIAL
HOLDINGS CORPORATION, a Delaware corporation (the "Company"), and XXXXXXX X.
XXXXXX, an executive employee of the Company's indirect subsidiary, Precise
Technology, Inc. (the "Optionee").
1. Grant of Options. Pursuant to the Company's 1997 Key Employee
Nonqualified Stock Option Plan, a copy of which is attached hereto (the "Plan"),
and authorization by the Board of Directors of the Company ("Board"), the
Company hereby grants to the Optionee an option (the "Option") to purchase Two
Hundred (200) shares of the Company's common stock, par value $.01 per share
("Stock"), at the price and on such other terms and conditions as are
hereinafter provided. The Option shall not constitute an "incentive stock
option" as that term is used in Section 422 of the Internal Revenue Code of
1986, as amended ("Code"). The Optionee agrees that as holder of the Option such
Optionee shall have no rights of or as a shareholder or otherwise in respect of
any of the shares of Stock as to which the Option shall not have effectively
been exercised as herein provided.
2. Option Price. The Option shall be exercisable at a price of
$1,500 per share of Stock.
3. Exercise Period. Except as provided in Paragraph 13, the Option
may be exercised by the Optionee, in whole or in part, prior to the earlier of
(i) the termination of the Optionee's employment with the Company or any of its
subsidiaries for any reason, or (ii) January 31, 2005, in accordance with the
following schedule:
20% commencing on April 1, 1999
40% commencing April 1, 2000
60% commencing April 1, 2001
80% commencing April 1, 2002
100% commencing April 1, 2003
4. Exercise of the Option. The Option shall be exercised by delivery
to the Company of a written statement in the form attached hereto entitled
"Nonqualified Stock Option Exercise Form." At the time of exercise of the Option
by such delivery, the Optionee shall pay such amount as required under Paragraph
5 herein together with an amount in cash equal to the amount of all applicable
withholding taxes (or, in the Board's sole discretion, a withholding
authorization acceptable to the Board). Upon receipt of such payment for the
Stock being purchased and compliance by the Optionee with the terms and
conditions hereunder, the Company shall cause certificates for such Stock to be
delivered to the Optionee within ten (10) business days after the Company's
receipt of such payment.
5. Payment of the Option Price.
A. At the time of exercise of the Option, the Optionee shall pay
to the Company either: (i) the full Option Price for the Stock being purchased
in cash, or, (ii) with the consent of the Company in the sole discretion of the
Board, a minimum of ten per cent (10%) of the Option Price for the Stock being
purchased in cash together with delivery of a promissory note and pledge of the
Optionee's Stock in forms acceptable to the Board, in the Board's sole
discretion, providing for the payment of the balance of the Option Price.
B. Notwithstanding the foregoing, Optionee may elect to exercise
the Option, in whole or in part, to the extent the Option is then exercisable,
by receiving shares of Stock equal to the value (as herein determined) of the
portion of such Option then being exercised after deduction of the exercise
price, in which event the Company shall issue to Optionee the number of shares
of stock determined by using the following formula:
X = Y (A-B) x (100% - C)
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A
where: X = The number of shares of Stock to be issued to
Optionee under the provisions of this Paragraph 5.
Y = The number of shares of Stock that would otherwise
be issued upon such exercise.
A = The Fair Market Value (as hereinafter defined) of
one share of Stock.
B = The exercise price of the Option specified in
Paragraph 2.
C = Applicable income tax withholding rate.
Fair Market Value Defined. As used in this Agreement, "Fair Market
Value" shall mean (i) if the Stock is publicly traded, the average
closing market price (or if no shares of Stock are traded on any
date within such period, the average of the closing bid and asked
price on such date) for the twenty business days immediately prior
to the date on which such value is to be determined, or (ii) if the
Stock is not publicly traded, the fair market value, on the
applicable date, of the shares of Stock then being valued as
determined in good faith by the Board of Directors.
6. Compliance with Securities Laws. The exercise of the Option and
the issuance of Stock pursuant thereto shall be contingent upon either the prior
registration of the Stock under the Securities Act of 1933, as amended (the
"Securities Act"), and such federal and
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state laws, rules, and regulations as may be applicable or promulgated
thereunder, or a determination by the Company that the issuance of such Stock
will be a transaction exempt from such registration. The Company anticipates
that shares of Stock, when and if issued to the Optionee, will be "restricted
securities" as that term is defined in Rule 144 under the Securities Act and,
accordingly, such shares of Stock must be held indefinitely unless they are
subsequently registered under the Securities Act or an exemption from
registration is available. The Optionee understands and agrees that the Company
is not under any obligation to register shares of Stock or to comply with
Regulation A or any other exemption under the Securities Act. As a condition to
the grant and/or exercise of the Option, the Optionee agrees to execute one or
more undertakings, in the form prescribed by the Board, that the Stock is being
acquired for investment only and without any present intention of resale or
other distribution, or that the Stock will not be offered for sale or other
distribution otherwise and pursuant to such condition or conditions as the Board
approves. The Company shall have the right to place upon any certificate or
certificates evidencing shares of Stock any such legends as the Board may
prescribe, including legends providing that the shares are subject to
registration requirements under the Securities Act and state securities laws and
that the shares are subject to the terms of this Agreement and the Plan.
7. Non-transferability and Termination of Option. Except as
otherwise provided in Paragraph 8, the Option shall not be transferable or
assignable and, during the Optionee's lifetime, shall be exercisable solely by
the Optionee. Except as otherwise provided in Paragraph 8, the Option shall
terminate upon termination of the Optionee's employment with the Company or its
subsidiaries for any reason or any attempted sale, transfer or assignment of any
such Option, whether voluntarily or involuntarily. A transfer of employment
between and among the Company and its subsidiaries shall be considered as
continuing employment and shall not be a termination of employment for purposes
of this Agreement. In addition, temporary interruptions in employment caused by
sickness or other approved leave of absence shall not constitute termination of
employment for purposes of this Agreement.
8. Retirement, Disability of Optionee or Death. If the Optionee
retires on or after the attainment of age 65, becomes permanently and totally
disabled within the meaning of Section 22(e)(3) of the Code or dies while in the
employ of the Company or one of its subsidiaries, the Option may be exercised
during the time period from the date of the Optionee's retirement, permanent and
total disability, or death until the expiration of one year after the date of
the Optionee's retirement, permanent and total disability, or death by the
Optionee or by the deceased Optionee's personal representative, as applicable,
or by any person who acquired the Option by bequest or inheritance as a result
of the death of the Optionee, subject to the terms and conditions set forth
herein.
9. Call. At any time after a "Call Event" (as hereafter defined) the
Company shall have the irrevocable right, but not the obligation, at its sole
discretion to repurchase some or all of the Stock Optionee purchased under the
Plan and this Agreement. The purchase price in connection with a Call Event
defined in paragraphs (1) and (2) below shall be the Fair Market Value per share
and the purchase price in connection with a Call Event defined in paragraphs (3)
through (8) below shall be seventy-five per cent (75%) of the Fair Market Value
per share. Such purchase price shall be payable in the discretion of the Board
either (i) in cash within ninety (90) days of the date of purchase, or (ii) by
the Company's delivery of a promissory note providing
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for equal annual installments of principal payments over a period of up to five
(5) years with interest on the unpaid balance at a rate determined by the Board
in its sole discretion; provided, however, that in the event any life insurance
on Optionee's life is obtained by the Company pursuant to paragraph 15.c.,
below, and as a result of Optionee's death, proceeds of such life insurance are
paid to the Company, the Company shall use such proceeds (up to the purchase
price) as and for a cash payment hereunder, with the balance of the purchase
price, if any, payable in the discretion of the Board as specified herein. As
used herein, the term "Call Event" shall mean any one or more of the following:
(1) The termination of the Optionee's employment with the Company
and its subsidiaries for any reason;
(2) The proposed or attempted voluntary sale, assignment,
transfer, conveyance or other disposition, mortgage, pledge,
grant of security interest in or other encumbrance of, any or
all shares of Stock by the Optionee;
(3) The Optionee making an assignment for the benefit of
creditors;
(4) The Optionee instituting, or having instituted against him,
any bankruptcy, insolvency, reorganization, arrangement, debt
adjustment, liquidation or receivership proceedings in which
he is alleged to be insolvent or unable to pay his debts as
they mature, and the Optionee shall consent thereto or admit
in writing the material allegations of the petitions filed in
said proceedings, or said proceedings shall remain undismissed
after ninety (90) days;
(5) The attachment of the Optionee's shares of Stock for any
reason and such attachment remains undismissed after ninety
(90) days;
(6) The rendering of a final judgment against the Optionee in any
legal or equitable proceeding which (i) purports to or
attempts to sell, assign, transfer, convey or otherwise
dispose of, mortgage, pledge, grant a security interest in or
otherwise encumber, any or all shares of Stock or (ii)
otherwise effects any of the foregoing;
(7) The institution of any execution process against the
Optionee's shares of Stock; or
(8) The existence of any other situation or legal proceeding
involving the Optionee such that the Optionee's shares of
Stock may be involuntarily sold, transferred, assigned, or
otherwise disposed of.
In the event the Company undertakes an initial public offering or
sells all or substantially all of its stock or assets within the six (6) month
period following such purchase, the Company shall pay to the Optionee (a) in the
case of a purchase in connection with a Call Event defined in paragraphs (1) or
(2), above, the difference between the purchase price and the Fair Market Value
of the Stock on the date of such transaction and (b) in the case of a purchase
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in connection with a Call Event defined in paragraphs (3) through (8) above,
seventy-five per cent (75%) of the difference between the purchase price and the
Fair Market Value of the Stock on the date of such transaction.
Notwithstanding the provisions of this Agreement to the contrary, in
the event the Optionee proposes to dispose of any or all of his shares of Stock
acquired as a result of the Optionee's exercise of the Option (the "Offered
Shares"), pursuant to a bona fide offer therefor from a third party (the
"Purchase Offer"), the Optionee shall give written notice to the Company (the
"Offer Notice"), stating that he has received the Purchase Offer, the terms
thereof (the "Purchase Offer Terms"), and the identity of the third party who
made the Purchase Offer. The Company shall have the right to purchase the
Offered Shares by delivering to the Optionee a written notice of its intention
to do so (a "Purchase Notice") within forty-five (45) days of having received
the Offer Notice. In such Purchase Notice, the Company shall advise the Optionee
as to whether it elects to purchase the shares of Stock on the Purchase Offer
Terms or for an amount equal to the Fair Market Value of such shares of Stock
and the Optionee shall sell such shares of Stock to the Company for such
consideration within two (2) days of the Optionee's receipt of such Purchase
Notice, with payment by the Company of such purchase price to be as specified in
the first paragraph of this Paragraph 9.
10. Adjustment for Stock Dividend, or Stock Split or Capital
Contribution. In the event that a stock dividend is hereafter paid on
outstanding Stock, or in the event that the number of outstanding shares of
Stock is hereafter increased as a result of a stock split, and the Option is
then unexercised, the number of shares of Stock subject to the Option shall
thereupon be increased by that number of shares of Stock which would have been
distributed with respect to the Stock subject to the Option if the Stock subject
to the Option had been outstanding at the time of the dividend or stock split
and the Option price per share shall be adjusted to reflect such increased
number of shares of Stock subject to the Option. If any shareholder of the
Company or any other person should make a contribution to the capital of the
Company without receiving any securities of the Company in exchange therefor,
then, and in such event, the Option price per share shall be increased by an
amount which is equal to the amount of such contribution to the capital of the
Company divided by the number of issued and outstanding shares of common stock
of the Company at the time of such contribution.
11. Additional Adjustments. In the event that there is any change in
the number of outstanding shares of Stock (other than issuance of Stock for
consideration approved by the Board) for which an adjustment is not provided by
Paragraph 10 of this Agreement, and the Option is then unexercised, the Board
may, in its sole discretion, require an adjustment in the number or kind of
shares of Stock subject to the Option and the option price and such adjustment
shall be binding and effective for all purposes hereof.
12. Elimination of Fractional Shares. Any addition or adjustment
provided for in Paragraphs 10 and 11 hereof may be limited to the extent
necessary to prevent fractions of shares of Stock from becoming available under
the Option.
13. Termination Upon Reorganization or Merger. In the event that
outstanding shares of Stock, are hereafter changed into or exchanged for a
different number or kind of shares of stock or securities of another corporation
or corporations, whether as a result of
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a reorganization, recapitalization, reclassification, merger, consolidation or
otherwise, or in the event all or substantially all of the Stock or assets of
the Company are sold to a third party (any such event being a "Change in
Control"), and any portion of the Option is not yet exercisable, then all of the
Option shall immediately become exercisable and the Company shall give at least
ten (10) business days' prior notice of such Change in Control to the Optionee.
The Optionee shall have ten (10) business days from the date of receipt of said
notice to exercise the Option. In the event any portion of the Option is not
exercised within the above-referenced ten (10) day period, such portion of the
Option shall automatically be cancelled. Upon cancellation of all of the Option,
this Agreement shall terminate.
14. Optionee Bound by the Plan. The Optionee hereby agrees to be
bound by all applicable provisions of the Plan. If any of the terms and
provisions of this Agreement are inconsistent or in conflict with the terms and
provisions of the Plan, the Plan shall supersede and prevail over such
inconsistent provisions hereof. The Board shall have authority, subject to the
express provisions of the Plan and this Agreement, to establish, amend, and
rescind rules and regulations relating to the Plan, and to make all other
determinations in the judgment of the Board necessary or desirable for the
administration of the Plan. The Board may correct any defect or supply any
omission or reconcile any inconsistency in the Plan or in this Agreement in the
manner and to the extent it shall deem expedient to carry the Plan into effect
and it shall be the sole and final judge of such expediency. All actions by the
Board under the provisions of this Paragraph 14 shall be conclusive for all
purposes.
15. Miscellaneous.
a. No Shareholder Rights. The Optionee shall not, by virtue of
holding the Option, be entitled to any rights of a shareholder of the Company or
any of its subsidiaries.
b. Lock-Up. The Optionee agrees that in connection with an
initial public offering of the Stock he will, if required by the Board, agree to
such restrictions on the resale of his Stock as shall be agreed to by other
members of management in connection therewith.
c. Life Insurance. The Optionee understands that the Company
may, but shall not be required to, obtain a life insurance policy on Optionee's
life in order to enable the Company to comply with its obligations under the
Agreement and Optionee hereby agrees to cooperate with the Company in obtaining
any such insurance including submitting applications and submitting to physical
examinations in connection therewith.
d. Continued Employment. Nothing herein shall be deemed to
create any employment agreement or guaranty of continued employment or limit in
any way the Company's or any subsidiary's right to terminate the Optionee's
employment at any time.
e. Legend. The certificates for the shares of Stock issued
pursuant to exercise of the Option shall bear the following legend:
The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended,
or under any state
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securities laws, and may not be sold or otherwise disposed
of until the sale shall have been registered under said
Act and any applicable state securities laws, or until the
Corporation shall have received an opinion of counsel
satisfactory to it that such shares may be legally sold or
otherwise transferred without such registration. The
shares represented by this certificate have been issued
pursuant to the exercise of an option to purchase such
shares and are subject to certain restrictions on transfer
contained in the Corporation's 1997 Key Employee
Nonqualified Stock Option Plan and a Nonqualified Stock
Option Agreement entered into pursuant to such Plan.
f. Entire Agreement. This Agreement, together with the Plan,
constitutes the entire agreement of the Company and its subsidiaries and the
Optionee regarding the subject matter of this Agreement and the Plan; and all
prior or contemporaneous agreements, understandings, representations and
statements, written or oral, are hereby merged herein.
g. Binding Effect. This Agreement shall be binding upon the
parties hereto, their successors, heirs and permitted assigns.
16. Headings. The headings of the sections of this Agreement are
inserted for convenience only and shall not be deemed to be part hereof.
17. Delaware Law to Apply. The place of administration of the Plan
and this Agreement shall be conclusively deemed to be within the State of
Delaware, and the validity, construction, interpretation, administration, and
effect of the Plan and this Agreement and the rights of any person having or
claiming to have an interest therein or thereunder shall be governed by and
determined exclusively and solely in accordance with the laws of the State of
Delaware.
18. Counterparts. This Agreement may be executed in multiple
counterparts; each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed.
OPTIONEE SUNDERLAND INDUSTRIAL HOLDINGS
CORPORATION
/s/ XXXXXXX X. XXXXXX /s/ XXXXXXX X. XXXXXX
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XXXXXXX X. XXXXXX Title:
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SUNDERLAND INDUSTRIAL HOLDINGS CORPORATION
NONQUALIFIED STOCK OPTION EXERCISE FORM
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The undersigned holder of an option to purchase shares of
common stock, par value $.01 per share, of Sunderland Industrial Holdings
Corporation (the "Company") under a Nonqualified Stock Option Agreement with the
Company dated ______________________ hereby exercises his Option to purchase
______________ (_______) shares of such common stock of the Company at the
option price of $__________ per share in accordance with the terms and
conditions of such Nonqualified Stock Option Agreement.
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Date of Exercise Signature of Person Exercising Option
Please type or print legibly your name as you want it to
appear on your stock certificate, your address and your social security number
in the space provided below.
Name:
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Address:
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(Street)
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(City) (State) (Zip Code)
Social Security Number:
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