Exhibit 10.7
GRANT AGREEMENT
NONQUALIFIED STOCK OPTION
Xxxxxx & Xxxxx Corporation (the "Corporation"), for and in consideration of the
provisions and conditions as stated herein and in the Corporation's 1993
Management Stock Ownership Plan (the "Plan") and other good and valuable
consideration, does hereby grant to the employee (one of the key employees of
the Corporation) identified in the attached Notice of Grant of Stock Option (the
"Optionee") this option to purchase from the Corporation the number of shares of
Common Stock of the Corporation at the price per share set forth in the Notice
of Grant of Stock Option, which option is not intended to qualify as an
incentive stock option ("ISO") as that term is defined in Section 422A(b) of the
Internal Revenue Code of 1986, as amended (the "Code").
The option granted pursuant to this Grant Agreement (the "Option") shall be
subject to the following conditions:
(1) Subject to the provisions of Paragraph 4, the Option shall become
exercisable in three installments in accordance with the following
schedule and after the expiration of the following periods of time:
Portion of Period from which
Installment Option Granted Option Granted
----------- -------------- -----------------
First One-third 12 months
Second One-third 24 months
Third One-third 36 months
If the Optionee does not purchase the full number of shares which he
has at any time become entitled to purchase, he may purchase all of
any part of those shares at any subsequent time during the term of
this Option.
(2) The Option herein granted to the extent that it is exercisable may be
exercised by giving written notice to the Corporate Human Resources
Department or other designated person of the Corporation at its
principal office no later than the Expiration Date (as defined in
Paragraph 3). Such notice shall include a statement of the number of
shares with respect to which this Option is being exercised and the
exercise date, and shall be accompanied by full tender of the purchase
price payable which may be made in whole or in part either in cash or
by the exchange of such number of whole shares of Xxxxxx & Xxxxx
Corporation Common Stock owned by the Optionee whose fair market value
as of the close of the business day immediately preceding the
specified Exercise Date does not exceed the purchase price payable;
provided, however, that if the shares to be exchanged were acquired
under an ISO, such ISO shall have been granted at least two years
prior thereto and the Common Stock shall have been owned by the
Optionee for at least one year prior to such payment, and further
provided that the Committee shall have the right, upon prior notice to
the holders of options, to modify, suspend or cancel the right to pay
the purchase price in whole or in part by exchange of shares at any
time in the event the Committee determines that there has been a
change in tax or accounting consequences to the Corporation or to any
Optionee. Nothing in this agreement shall confer upon the Optionee any
rights as a stockholder
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prior to the time of the delivery to the Optionee of a stock
certificate for the shares purchased under this agreement.
(3) Unless this Option expires earlier in accordance with any provision of
Paragraph 4, this Option shall expire on the date which is ten (10)
years from the Date of Grant (the "Expiration Date").
(4) If, prior to the Expiration Date, the Optionee (i) becomes totally and
permanently disabled as determined by the Corporation in its sole
discretion, (ii) retires, (iii) dies, or (iv) otherwise terminates or
is terminated as an employee of the Corporation, this option shall be
exercisable under the circumstances and for the time periods set forth
below, but only to the extent such time periods do not extend beyond
the Expiration Date:
(a) If the Optionee's employment terminates or is terminated for any
reason other than (i) retirement, (ii) the Optionee becoming
totally and permanently disabled, (iii) death, or (iv) under the
circumstances described in Paragraph 4(b), this Option may be
exercised within thirty (30) days of the date of such termination
to the extent exercisable in accordance with the provisions of
Paragraph 1;
(b) In the event that (i) the Optionee has an employment agreement
with the Corporation which provides for his continued employment
following a change in control ("Employment Agreement") and (ii) a
"Change in Control," as defined in Section 2 of such Employment
Agreement, occurs, this Option shall become fully exercisable
upon the "Effective Date," as defined in Section 1(a) of such
Employment Agreement, notwithstanding any provision in
Paragraph 1 to the contrary; in addition, if such Optionee's
employment with the Corporation is thereafter terminated under
the circumstances described in Section 7(d) of such Employment
Agreement, this Option shall remain exercisable at any time prior
to the Expiration Date;
(c) If the Optionee retires at his normal or later retirement date
or, with the consent of the Corporation, takes early retirement,
this Option may be exercised in full, notwithstanding the
provisions of Paragraph 1, at any time within six (6) years of
the date of retirement;
(d) If the Optionee becomes totally and permanently disabled, this
Option may be exercised in full, notwithstanding the provisions
of Paragraph 1, at any time within six (6) years of the date the
Optionee's service as an employee is terminated within the
meaning of the Code by reason of being totally and permanently
disabled;
(e) If the Optionee dies while he is employed or within three (3)
years of his retirement in accordance with subparagraph (b)
above, this Option may be exercised in full, notwithstanding the
provisions of Paragraph 1, at any time within three (3) years of
the Optionee's date of death by the legal representative of the
Optionee or any person who acquires this Option by bequest or
inheritance; and
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(f) For purpose of this Paragraph 4, a sick leave or other bona fide
leave of absence granted in accordance with the Corporation's
usual procedure which does not operate to interrupt continuous
employment for other benefits granted by the Corporation shall
not be considered a termination of employment or interruption of
continuous employment hereunder and an employee who is granted
such a leave of absence shall be considered to be continuously
employed during such period of leave; provided, that if the Code
or the regulations promulgated thereunder establish a more
restrictive rule defining termination of employment applicable to
the option granted herein, such rule shall be substituted here
for.
(5) The Optionee agrees, by the acceptance of this Option, for himself and
his executors and administrators, that if a registration statement
under the Securities Act of 1933 is not in effect at the time of the
exercise of any portion of this Option, with respect to the sale by
the Corporation and the resale by the Optionee of the shares issuable
upon such exercise, it shall be a condition precedent to the right to
purchase such shares that the notice of exercise shall be accompanied
by a written representation that the Optionee or his executor or
administrator is acquiring such shares for his own or such executor's
or administrator's account for investment and not with a view to the
distribution thereof.
(6) The Corporation shall be not be required to issue or deliver any
certificate or certificates for shares of stock purchased upon the
exercise of this Option until the admission of such shares to listing
on any stock exchange on which the Corporation's stock may then be
listed and until the Corporation takes such steps as may be required
by law and applicable regulations, including rules and regulations of
the Securities and Exchange Commission and any stock exchange as above
mentioned, or until, in the opinion of counsel for the Corporation,
any such listing or registration or other steps are not required.
(7) The shares issued may be authorized but unissued stock, or treasury
stock, and the number of shares with respect to which this Option may
be exercised, and the price payable with respect thereto, shall be
properly adjusted if the Corporation shall at any time declare a stock
split, issue any stock dividend, or make a reclassification of such
stock, so that the Optionee or his executors, administrators, legatees
or distributees entitled hereunder shall not be in any way in a better
or worse position as to the number of shares acquired and the
aggregate amount paid therefore, solely from having exercised this
option with respect to any of said shares after, rather than before,
such stock split, stock dividend, or reclassification.
(8) The granting of this Option shall not constitute or be evidence of any
agreement or understanding, express or implied, on the part of the
Corporation or any of its subsidiaries to employ the Optionee for any
specified period. The Company continues to retain the absolute right
to terminate the employment relationship with the Optionee at any
time, with or without good cause.
(9) This Option shall be binding upon the Corporation and its successors
and assigns, and upon the Optionee and his administrators and
executors.
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(10) Whenever the Corporation is required to issue or transfer shares of
its Common Stock to Optionee pursuant hereto, the Corporation shall
have the right to require the Optionee to remit to the Corporation an
amount sufficient to satisfy all federal, state and local withholding
tax requirements, if any.
(11) The Optionee agrees, by the acceptance of this Option, to the
amendment of this Grant Agreement, the Notice of Grant of Stock Option
and the form of exercise of option provided by the Corporation, in any
manner requested by the Corporation pursuant to advice from the
Securities and Exchange Commission at any time during the term of this
Option, and to execute any and all instruments relative thereto when
so requested by the Corporation.
(12) Throughout this agreement, the masculine gender shall be deemed to
include the feminine.
(13) This Option is not transferable by the Optionee otherwise than by will
or by the laws of descent and distribution and during the lifetime of
the Optionee it is exercisable only by the Optionee.
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GRANT AGREEMENT
INCENTIVE STOCK OPTION
Xxxxxx & Xxxxx Corporation (the "Corporation"), for and in consideration of the
provisions and conditions as stated herein and in the Corporation's 1993
Management Stock Ownership Plan (the "Plan") and other good and valuable
consideration, does hereby grant to the employee (one of the key employees of
the Corporation) identified in the attached Notice of Grant of Stock Option (the
"Optionee") this option to purchase from the Corporation the number of shares of
Common Stock of the Corporation at the price per share set forth in the Notice
of Grant of Stock Option, which option except as provided in Paragraph 4, is
intended to quality as an incentive stock option ("ISO") as that term is defined
in Section 422A(b) of the Internal Revenue Code of 1986, as amended (the
"Code").
The option granted pursuant to this Grant Agreement (the "Option") shall be
subject to the following conditions:
(1) Subject to the provisions of Paragraph 4, the Option shall become
exercisable in three installments in accordance with the following
schedule and after the expiration of the following periods of time:
Portion of Period from which
Installment Option Granted Option Granted
----------- -------------- -----------------
First One-third 12 months
Second One-third 24 months
Third One-third 36 months
If the Optionee does not purchase the full number of shares which he
has at any time become entitled to purchase, he may purchase all of
any part of those shares at any subsequent time during the term of
this Option.
(2) The Option herein granted to the extent that it is exercisable may be
exercised by giving written notice to the Corporate Human Resources
Department or other designated person of the Corporation at its
principal office no later than the Expiration Date (as defined in
Paragraph 3). Such notice shall include a statement of the number of
shares with respect to which this Option is being exercised and the
exercise date, and shall be accompanied by full tender of the purchase
price payable which may be made in whole or in part either in cash or
by the exchange of such number of whole shares of Xxxxxx & Xxxxx
Corporation Common Stock owned by the Optionee whose fair market value
as of the close of the business day immediately preceding the
specified Exercise Date does not exceed the purchase price payable;
provided, however, that if the shares to be exchanged were acquired
under an ISO, such ISO shall have been granted at least two years
prior thereto and the Common Stock shall have been owned by the
Optionee for at least one year prior to such payment, and further
provided that the Committee shall have the right, upon prior notice to
the holders of options, to modify, suspend or cancel the right to pay
the purchase price in whole or in part by exchange of shares at any
time in the event the Committee determines that there has been a
change in tax or accounting consequences to the Corporation or to any
1
Optionee. Nothing in this agreement shall confer upon the Optionee any
rights as a stockholder prior to the time of the delivery to the
Optionee of a stock certificate for the shares purchased under this
agreement.
(3) Unless this Option expires earlier in accordance with any provision of
Paragraph 4, this Option shall expire on the date which is ten (10)
years from the Date of Grant (the "Expiration Date").
(4) If, prior to the Expiration Date, the Optionee (i) becomes totally and
permanently disabled as determined by the Corporation in its sole
discretion, (ii) retires, (iii) dies, or (iv) otherwise terminates or
is terminated as an employee of the Corporation, this option shall be
exercisable under the circumstances and for the time periods set forth
below, but only to the extent such time periods do not extend beyond
the Expiration Date:
(a) If the Optionee's employment terminates or is terminated for any
reason other than (i) retirement, (ii) the Optionee becoming
totally and permanently disabled, (iii) death, or (iv) under the
circumstances described in Paragraph 4(b), this Option may be
exercised within thirty (30) days of the date of such termination
to the extent exercisable in accordance with the provisions of
Paragraph 1;
(b) In the event that (i) the Optionee has an employment agreement
with the Corporation which provides for his continued employment
following a change in control ("Employment Agreement") and (ii) a
"Change in Control," as defined in Section 2 of such Employment
Agreement, occurs, this Option shall become fully exercisable
upon the "Effective Date," as defined in Section 1(a) of such
Employment Agreement, notwithstanding any provision in
Paragraph 1 to the contrary, provided, however, that to the
extent (if any) that the limitation set forth in Code Section
422(d) is exceeded, the Option shall be treated as a Nonqualified
Stock Option; in addition, if such Optionee's employment with the
Corporation is thereafter terminated under the circumstances
described in Section 7(d) of such Employment Agreement, this
Option shall remain exercisable at any time prior to the
Expiration Date, provided, however, that if such exercise occurs
more than three (3) months after the date of such Optionee's
termination of employment, the Option shall be treated as a
Nonqualified Stock Option;
(c) If the Optionee retires at his normal or later retirement date
or, with the consent of the Corporation, takes early retirement,
this Option may be exercised in full, notwithstanding the
provisions of Paragraph 1, at any time within six (6) years of
the date of retirement; provided, however, that if such exercise
occurs more than three (3) months after the date of such
retirement, the Option shall be treated as a Nonqualified Stock
Option;
(d) If the Optionee becomes totally and permanently disabled, this
Option may be exercised in full, notwithstanding the provisions
of Paragraph 1, at any time within six (6) years of the date the
Optionee's service as an employee is terminated within the
meaning of the Code by reason of being totally and permanently
disabled; provided, however, that if such Exercise occurs more
than one (1) year after the date the Optionee's employment is
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terminated due to such disability, this Option shall be treated
as a Nonqualified Stock Option;
(e) If the Optionee dies while he is employed or within three (3)
years of his retirement in accordance with subparagraph (b)
above, this Option may be exercised in full, notwithstanding the
provisions of Paragraph 1, at any time within three (3) years of
the Optionee's date of death by the legal representative of the
Optionee or any person who acquires this Option by bequest or
inheritance; provided, however, if the Optionee's date of death
is more than three (3) months from the date of such retirement,
this Option shall be treated as a Nonqualified Stock Option, and
(f) For purpose of this Paragraph 4, a sick leave or other bona fide
leave of absence granted in accordance with the Corporation's
usual procedure which does not operate to interrupt continuous
employment for other benefits granted by the Corporation shall
not be considered a termination of employment or interruption of
continuous employment hereunder and an employee who is granted
such a leave of absence shall be considered to be continuously
employed during such period of leave; provided, that if the Code
or the regulations promulgated thereunder establish a more
restrictive rule defining termination of employment applicable to
the option granted herein, such rule shall be substituted here
for.
(5) The Optionee agrees, by the acceptance of this Option, for himself and
his executors and administrators, that if a registration statement
under the Securities Act of 1933 is not in effect at the time of the
exercise of any portion of this Option, with respect to the sale by
the Corporation and the resale by the Optionee of the shares issuable
upon such exercise, it shall be a condition precedent to the right to
purchase such shares that the notice of exercise shall be accompanied
by a written representation that the Optionee or his executor or
administrator is acquiring such shares for his own or such executor's
or administrator's account for investment and not with a view to the
distribution thereof.
(6) The Corporation shall be not be required to issue or deliver any
certificate or certificates for shares of stock purchased upon the
exercise of this Option until the admission of such shares to listing
on any stock exchange on which the Corporation's stock may then be
listed and until the Corporation takes such steps as may be required
by law and applicable regulations, including rules and regulations of
the Securities and Exchange Commission and any stock exchange as above
mentioned, or until, in the opinion of counsel for the Corporation,
any such listing or registration or other steps are not required.
(7) The shares issued may be authorized but unissued stock, or treasury
stock, and the number of shares with respect to which this Option may
be exercised, and the price payable with respect thereto, shall be
properly adjusted if the Corporation shall at any time declare a stock
split, issue any stock dividend, or make a reclassification of such
stock, so that the Optionee or his executors, administrators, legatees
or distributees entitled hereunder shall not be in any way in a better
or worse position as to the number of shares acquired and the
aggregate amount paid therefore, solely from having exercised this
option with respect to any of said shares after, rather than before,
such stock split, stock dividend, or reclassification.
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(8) The granting of this Option shall not constitute or be evidence of any
agreement or understanding, express or implied, on the part of the
Corporation or any of its subsidiaries to employ the Optionee for any
specified period. The Company continues to retain the absolute right
to terminate the employment relationship with the Optionee at any
time, with or without good cause.
(9) This Option shall be binding upon the Corporation and its successors
and assigns, and upon the Optionee and his administrators and
executors.
(10) Whenever the Corporation is required to issue or transfer shares of
its Common Stock to Optionee pursuant hereto, the Corporation shall
have the right to require the Optionee to remit to the Corporation an
amount sufficient to satisfy all federal, state and local withholding
tax requirements, if any.
(11) The Optionee agrees, by the acceptance of this Option, to the
amendment of this Grant Agreement, the Notice of Grant of Stock Option
and the form of exercise of option provided by the Corporation, in any
manner requested by the Corporation pursuant to advice from the
Securities and Exchange Commission at any time during the term of this
Option, and to execute any and all instruments relative thereto when
so requested by the Corporation.
(12) Throughout this agreement, the masculine gender shall be deemed to
include the feminine.
(13) This Option is not transferable by the Optionee otherwise than by will
or by the laws of descent and distribution and during the lifetime of
the Optionee it is exercisable only by the Optionee.
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