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EXHIBIT 10.24
THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES
LAWS. THESE SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACTS.
CMI INDUSTRIES, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
This NON-QUALIFIED STOCK OPTION AGREEMENT is made and entered into as
of the ___ day of January, 1997 by and between CMI INDUSTRIES, INC., a Delaware
corporation (the "Corporation"), and XXXXX X. XXXXXXX (the "Optionee").
THE PARTIES AGREE AS FOLLOWS:
1. Grant of Option. The Corporation hereby grants to Optionee a
non-qualified stock option (the "Option") to purchase up to an aggregate of ten
thousand (10,000) fully paid and non-assessable shares of the Common Stock,
$1.00 par value per share, of the Corporation (the "Common Stock") on the terms
and conditions set forth herein. The shares of Common Stock subject to this
Option are hereinafter referred to at times as the "Option Shares."
2. Exercise Price. The exercise price for the Option Shares shall be
twenty seven and 50/100 dollars ($27.50) per share (the "Exercise Price").
3. The Plan. The CMI Industries, Inc. 1992 Stock Option Plan, as
amended from time to time, hereby is incorporated herein in its entirety by this
reference (the "Plan"). To the extent that any provision in this Agreement is
inconsistent with the Plan, the terms of the Plan shall control. "Board of
Directors" shall have the same meaning ascribed to such term in the Plan.
4. Exercise of Options.
4.1 Vesting. Subject to the other restrictions and conditions in this
Agreement, Optionee shall have the vested right to exercise this Option to
purchase the Option Shares as follows: (i) from and after the date hereof, 3,333
Option Shares; (ii) from and after January 1, 1998, 6,666 Option Shares (which
includes those previously vested); and (iii) from and after January 1, 1999,
10,000 Option Shares (which includes those previously vested).
4.2 Method of Exercise. Subject to the other restrictions in this
Agreement, this Option may be exercised for all or a part of the Option Shares
with respect to which this Option is then exercisable. Subject to SECTION 4.1
hereof and other restrictions in this Agreement, this Option is exercisable from
time to time by written notice to the Corporation stating the number of
Option Shares with respect to which this Option is being exercised. Such notice
shall be accompanied by payment in full for the Option Shares to be purchased.
Payment for all Option
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Shares purchased pursuant to this Option shall be made in cash, and no Option
Shares shall be issued or delivered until full payment therefor has been made.
The Optionee shall, as such, have none of the rights of a stockholder with
respect to the Option Shares until such payment is received by the Corporation.
4.3 Withholding. Whenever Optionee exercises this Option, in whole or
in part, the Corporation shall have the right to require Optionee to remit to
the Corporation, in cash, an amount sufficient to satisfy any federal, state and
local withholding requirements as a condition to the issuance of Option Shares.
Alternatively, Optionee may elect to satisfy such withholding requirements, in
whole or in part, by reducing the total number of Option Shares Optionee
receives by the number of Option Shares having a fair market value equal to the
amount of withholding that must be satisfied, which election shall be subject to
approval of the Board of Directors of the Corporation.
4.4 Non-Transferability of Option. This Option is not transferable or
assignable by Optionee except by will or the laws of descent and distribution
and, except as provided in SECTION 4.5, is exercisable only by Optionee during
the lifetime of Optionee. Any attempt to transfer, assign, pledge, hypothecate
or otherwise dispose of this Option, and any levy of execution, attachment or
similar process on this Option, shall be null and void. If this Option is
transferred by will or the laws of descent and distribution, the legal successor
to this Option shall take subject to and be bound by the terms of this
Agreement.
4.5 Exercise After Termination of Employment or Death. Unless the Board
of Directors expressly determines otherwise prior to the expiration of the
30-day period described below, upon termination of employment of Optionee with
the Corporation or any subsidiary thereof (collectively, the "Employer") for any
reason other than death, retirement (as hereinafter defined) or disability (as
hereinafter defined), Optionee may not exercise this Option more than thirty
days after the date of such termination of employment. For purposes of this
SECTION 4.5, "disability" and "retirement" shall be determined in accordance
with the disability and retirement policies of the Employer in effect on the
date any such determination is made. Notwithstanding the foregoing, this Option
may not be exercised following the date of termination of Optionee's employment
for Cause, as hereinafter defined. For purposes of this Agreement, termination
for "Cause" shall mean termination of Optionee's employment by the Employer
because of (A) any act or omission that constitutes a material and willful
breach by Optionee of any of Optionee's obligations or agreements under his
employment agreement, if any, with the Employer or the willful failure or
refusal of Optionee to perform any duties reasonably required by the Board of
Directors after notification by the Employer of such breach, failure or refusal
and failure of Optionee to correct such breach, failure or refusal within ten
days of such notification (other than by reason of the incapacity of Optionee
due to physical or mental illness) which breach, failure or refusal is
materially injurious to the financial condition or business of the Employer or
its affiliates, or (B) the committing by Optionee of a felony, or the
perpetration by Optionee of a dishonest act or common law fraud against the
Employer or any of its affiliates which is materially injurious to
the financial condition or business of the Employer or its affiliates, or (C)
the failure of Optionee to substantially and effectively discharge his duties to
the Employer, as determined by the Board
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of Directors in good faith. Upon any termination of employment of Optionee by
reason of retirement or disability, Optionee may exercise this Option at any
time during the three-month period after the date of such termination of
employment. Except as provided in SECTION 4.6, for purposes of this SECTION 4.5,
the employment of Optionee shall not be deemed terminated so long as Optionee is
employed by the Employer or by another corporation (or a parent or subsidiary
corporation of such other corporation) that has assumed this Option. If Optionee
dies, this Option may be exercised by Optionee's legal successor at any time
during the three-month period following Optionee's death. The provisions of this
SECTION 4.5 shall not extend the term of this Option specified in SECTION 4.7
hereof. To the extent this SECTION 4.5 permits Optionee (or his legal successor)
to exercise this Option after the date of Optionee's termination of employment
or death, this Option will only be exercisable for the number of Option Shares
that Optionee could have purchased on the date of Optionee's termination of
employment or death, as the case may be.
4.6 Leaves of Absence. The Board of Directors may in its discretion
determine whether any leave of absence constitutes a termination of employment
for purposes of this Option and SECTION 4.5 shall govern if the Board of
Directors determines that a termination of employment has occurred.
4.7 No Exercise After Expiration. This Option shall in no event be
exercisable after December 31, 2006.
4.8 Conditions to Exercise. Except as provided in SECTION 4.5 of this
Agreement, this Option may not be exercised by the Optionee unless Optionee is
then and continually has been, an employee of the Corporation or one of its
subsidiaries after the Effective Date of this Option.
5. Adjustment of Option Shares. The number and Exercise Price of Option
Shares for which this Option has been granted may be adjusted or this Option
amended or terminated in certain circumstances in accordance with the provisions
of the Plan.
6. Restriction on Issuance of Shares; Optionee's Representations.
6.1 Restriction on Issuance of Shares. The Corporation shall not be
obligated to sell or issue any Option Shares pursuant to this Agreement if such
issuance would result in the violation of any laws, including but not limited to
the Securities Act of 1933, as amended (the "Act"), or any applicable state
securities laws. Without limiting the foregoing, the issuance of Option Shares
pursuant to this Option is subject to the condition that if at any time the
Board of Directors shall determine that the listing, registration or
qualification of the Option Shares upon any securities exchange or under any
state or federal law is necessary or desirable as a condition to or in
connection with the granting of this Option or the purchase or delivery of the
Option Shares, the delivery of the Option Shares may be withheld unless and
until such listing, registration or qualification is effected. Stock
certificates evidencing the unregistered Option Shares acquired upon exercise of
this Option shall bear a restrictive legend to the effect that the securities
have been acquired for investment and have not been registered under the Act or
any applicable state securities laws, and may not be sold or transferred in the
absence of registration
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or an exemption therefrom under said acts, and such other restrictive legends as
are required or advisable under the provisions of any applicable laws.
6.2 Option for Investment. Optionee represents and warrants to the
Corporation that:
(a) He is accepting this Option for his own account, in his
individual capacity, and not on behalf of any other person or entity;
(b) He is acquiring this Option for investment and not with a
view to distribution or with the intent to divide his participation
with others or resell or otherwise distribute this Option; and
(c) Neither he nor anyone acting on his behalf has paid or
will pay a commission or other remuneration to any person in connection
with the acquisition of this Option.
7. Rights as a Shareholder. Optionee shall have no rights as a
shareholder with respect to any Option Shares until the date of issuance of a
stock certificate for such Option Shares. Subject to SECTION 5 hereof, no
adjustment shall be made for dividends or other rights for which the record date
is prior to the date such stock certificate is issued.
8. No Continued Employment Rights. This Agreement shall not confer upon
Optionee any right with respect to the continuance of employment by the
Corporation or its subsidiaries, nor shall it interfere in any way with the
right of the Corporation or its subsidiaries to terminate such employment at any
time.
9. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
10. Notices. All notices and other communications under this Agreement
shall be in writing, and shall be deemed to have been duly given on the date of
delivery if delivered personally or when received if mailed to the party to whom
notice is to be given, by certified mail, return receipt requested, postage
prepaid, to the following address, or any other address specified by notice duly
given:
To Optionee at: Xx. Xxxxx X. Xxxxxxx
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To the Corporation at: CMI Industries, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Chairman
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11. Stockholders Agreement. If the Amended and Restated Stockholders
Agreement dated as of February 14, 1992, as amended and as hereafter amended
from time to time, among the Corporation and the holders of the Common Stock
(the "Stockholders Agreement") or any successor agreement thereto is in effect
when this Option is exercised in whole or in part, all Option Shares issued
hereunder automatically shall be subject to the terms of the Stockholders
Agreement, and the Optionee automatically shall be bound by the terms of the
Stockholders Agreement applicable to a Management Investor (as defined in the
Stockholders Agreement).
12. Put-Call Rights.
12.1 Termination of Employment other than Upon Death,
Disability or Retirement.
(a) If, prior to a Public Offering of the Common Stock,
Optionee's employment with the Corporation or a subsidiary thereof is
terminated by the Corporation or such subsidiary for Cause or without
Cause or by Optionee, other than upon Optionee's death, disability, or
retirement at or after obtaining the age of 65, the Corporation shall
have the option, for a period of 90 calendar days after the date of
termination of employment, to purchase all or any portion of the Option
Shares owned by Optionee. For purposes of this SECTION 12.1,
"disability" and "retirement" shall be determined in accordance with
the disability and retirement policies of the Employer in effect on the
date any such determination is made. The Corporation may exercise such
right by giving notice thereof to Optionee prior to the expiration of
such 90-day period. The purchase price for the Option Shares shall be
the fair market value of such Option Shares determined as of the date
of termination of employment, as agreed upon by Optionee and the
Corporation; provided, that, in the event that Optionee and the
Corporation cannot agree on such fair market value, a mutually agreed
upon third party shall make the final determination thereof ("Fair
Market Value"). "Public Offering" is defined in the Stockholders
Agreement.
(b) If, prior to a Public Offering of the Common Stock,
Optionee's employment with the Corporation or any subsidiary thereof is
terminated for any reason other than for Cause or Optionee's
resignation, and the Corporation shall not have exercised its 90-day
option to purchase all of the Option Shares as provided in SECTION
12.1(A) above, Optionee shall have the option, for a period of 90
calendar days, commencing at the end of the Corporation's 90-day option
period, to sell to the Corporation all or any portion of the Option
Shares then owned by Optionee. Optionee may exercise such option by
giving notice thereof to the Corporation prior to the expiration of
Optionee's 90-day option period. The purchase price for the Option
Shares shall be the Fair Market Value of such Option Shares.
12.2 Death, Disability or Retirement.
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(a) If, prior to a Public Offering of the Common
Stock, Optionee dies while in the employ of the Corporation or any
subsidiary thereof, or Optionee's employment with the Corporation or
any subsidiary thereof is terminated because of Optionee's disability
or retirement at or after obtaining the age of 65, the Corporation
shall have the option, for a period of 90 calendar days after the date
of death or determination of disability or retirement, as applicable,
to purchase all or any portion of the Option Shares owned by Optionee
or Optionee's legal representative. The Corporation may exercise such
Option by giving notice thereof to Optionee or Optionee's legal
representative prior to the expiration of such 90-day period. The
purchase price for the Option Shares shall be the Fair Market Value
thereof.
(b) If, prior to a Public Offering of the Common
Stock, the Corporation has not exercised its 90-day option under
SECTION 12.2(A) upon the death, disability or retirement of Optionee,
Optionee or Optionee's legal representative shall have the option, for
a period of 90 calendar days (180 calendar days in the case of
termination due to Optionee's death), commencing at the end of the
Corporation's 90-day option period, to sell to the Corporation all or
any portion of the Option Shares then owned by Optionee or Optionee's
legal representative. Optionee or his legal successor may exercise such
Option by giving notice to the Corporation prior to the expiration of
\Optionee's 90- day option period. The purchase price for such Option
Shares shall be the Fair Market Value thereof.
12.3 Election, Delivery and Payment Procedures.
(a) Upon any exercise by the Corporation or Optionee
or Optionee's legal representative of an option granted in SECTIONS
12.1 OR 12.2, the Corporation shall pay the purchase price in cash.
(b) The closing of any exercise of an option granted
in SECTIONS 12.1 OR 12.2 shall take place at the offices of the
Corporation not less than 15 nor more than 30 days after the date such
option is exercised or, if Optionee and the Corporation cannot reach
agreement on fair market value, not less than 15 nor more than 30 days
after such determination is made by the mutually agreed upon third
party. The exact date and time of closing shall be specified by the
party exercising such option.
(c) If the Corporation shall have the option to
purchase Option Shares from Optionee pursuant to sections 12.1 OR 12.2,
it shall specify to Optionee in reasonable detail its calculation of
Fair Market Value for the purchase price (i) at the time of its
exercise of its option or, (ii) if Optionee or Optionee's legal
representative will have an option to sell pursuant to SUBSECTIONS
12.1(B) OR 12.2(B), prior to the commencement of Optionee's 90-day
option period.
(d) At the closing of any exercise of any option
granted in SECTIONS 12.1 OR 12.2, Optionee shall deliver certificates
for the Option Shares to the Corporation
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duly endorsed or accompanied by written instruments of transfer in form
satisfactory to the Corporation, duly executed by Optionee, and free
and clear of any liens, against payment by the Corporation of the
purchase price therefor.
(e) Notwithstanding the provisions contained in
SECTIONS 12.1 AND 12.2, the Corporation shall not be obligated to
purchase any Option Shares, and Optionee shall have no right to sell
such Option Shares, except to the extent the Corporation shall be
permitted to repurchase its shares under applicable law and any
applicable financing agreements of the Corporation.
IN WITNESS WHEREOF, this Agreement has been executed and delivered as
of the day and year first above written.
THE CORPORATION:
CMI INDUSTRIES, INC.
By:
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Title:
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OPTIONEE:
---------------------------- [L.S.]
XXXXX X. XXXXXXX
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