Exhibit 10.32
FORM OF
OSI HOLDINGS CORP. NON-QUALIFIED
STOCK OPTION AWARD AGREEMENT [A]
This Agreement (the "Agreement"), dated as of ____________, is made
between OSI Holdings Corp. (the "Company") and _____________________________
(the "Optionee"). All capitalized terms that are not defined herein shall have
the meaning as defined in the OSI Holdings Corp. 1995 Stock Option and Stock
Award Plan (the "Plan"). References to "he," "him," and "his" shall mean the
feminine form of such terms, when applicable.
W I T N E S S E T H :
1. Grant of Option. Pursuant to the provisions of the Plan, the
Company hereby grants to the Optionee, subject to the terms and conditions of
the Plan and subject further to the terms and conditions herein set forth, the
right and option to purchase from the Company, all or any part of an aggregate
of ________ shares of $0.01 par value common stock of the Company (the "Stock")
at a per share purchase price equal to $12.50 (the "Option"), such Option to be
exercisable as hereinafter provided. The Option shall not be treated as an
incentive stock option as defined in Section 422 of the Internal Revenue Code of
1986, as amended.
2. Terms and Conditions. It is understood and agreed that the Option
evidenced hereby is subject to the following terms and conditions:
(a) Expiration Date. The Option shall expire ten (10) years after the
date indicated above.
(b) Exercise of Option. Subject to the other terms of this Agreement
and the Plan, the Option may be exercised on or after the dates indicated below
as to that percentage of the total shares of Stock covered by this Option set
forth opposite such dates, plus any shares of Stock as to which the Option could
have been exercised, but was not so exercised:
Date Percentage
---- ----------
September 21, 1996 _____%
on the 21st day of _____%
each month thereafter
until September 21, 2000
Notwithstanding the immediately foregoing vesting schedule,
immediately prior to a Change in Control (as defined in Section 3 hereof), the
Option shall become immediately exercisable with respect to the total shares of
Stock subject to the Option.
Any exercise of all or any part of this Option shall be accompanied by
a written notice to the Company specifying the number of shares of Stock as to
which the
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Option is being exercised. Notation of any partial exercise shall be made by the
Company on Schedule I attached hereto.
(c) Consideration. At the time of any exercise of the Option, the
purchase price of the shares of Stock as to which the Option shall be exercised
shall be paid to the Company (i) in cash, (ii) with Stock already owned for at
least six months by the Optionee having a total fair market value, as determined
in accordance with Section 6(a) of the Plan ("Fair Market Value"), equal to the
purchase price of such Stock, or (iii) a combination of cash and Stock (such
Stock having already been owned for at least six months by the Optionee) having
a total Fair Market Value, as so determined, equal to the purchase price of such
Stock.
(d) Exercise Upon Death, Disability or Termination of Employment. (i)
In the event of the death of the Optionee while an employee of the Company or a
subsidiary of the Company, the Option, to the extent such Option would be
exercisable in accordance with the schedule set forth in Section 2(b) hereof as
of the date of his death, may be immediately exercised after his death by the
legal representative of the Optionee's estate or by the legatee of the Optionee
under his last will for a period of two years from the date of his death or
until the expiration of the stated period of the Option, whichever period is the
shorter.
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(ii) If the Optionee's employment with the Company or a subsidiary of
the Company shall terminate by reason of permanent disability (as defined in the
last sentence of this Section 2(d)(ii)), his Option, to the extent exercisable
in accordance with the schedule set forth in Section 2(b) hereof as of the date
of such termination, may be immediately exercised after such termination of
employment but may not be exercised after the expiration of the period of one
year from the date of such termination of employment or of the stated period of
the Option, whichever period is the shorter; provided, however, that if the
Optionee dies within a period of one year from the date of such termination of
employment, any unexercised Option, to the extent exercisable in accordance with
the schedule set forth in Section 2(b) hereof as of the date of such
termination, may be exercised after his death by the legal representative of his
estate or by the legatee of the Optionee under his last will until the
expiration of the period of two years from the date of his death or of the
stated period of the Option, whichever period is the shorter. For purposes of
this Agreement, "permanent disability" shall mean an inability (as determined by
the Committee) to perform duties and services as an employee of the Company or a
subsidiary of the Company by reason of a medically determinable physical or
mental impairment,
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supported by medical evidence, which can be expected to last for a continuous
period of not less than six (6) months.
(iii) If (A) the Company or a subsidiary of the Company terminates the
Optionee's employment with the Company or such subsidiary and such termination
is not "for cause" (as defined in Section 2.5(d) of the Stockholders Agreement,
dated as of September 21, 1995, as amended and restated on January 10, 1996 and
on February 16, 1996 and as may be further amended from time to time, by and
among OSI Holdings Corp., the MDC Entities (as defined therein), APT (as defined
therein), the Management Stockholders (as defined therein) and the
Non-Management Stockholders (as defined therein) (as amended, the "Stockholders
Agreement")) or (B) the Optionee terminates employment with the Company or such
subsidiary for "good reason" (as defined in Section 2.5(c) of the Stockholders
Agreement), the Optionee's Option, to the extent such Option would have been
exercisable in accordance with the schedule set forth in Section 2(b) hereof as
of the date of such termination, may thereafter be immediately exercised but may
not be exercised after the expiration of the period of one year from the date of
such termination of employment or of the stated period of the Option, whichever
period is the shorter; provided, however, that if the Optionee dies within a
period one year from the date of such termination of employment, any unexercised
Option, to the extent such Option
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would have been exercisable in accordance with the schedule set forth in Section
2(b) hereof as of the date of such termination, may thereafter be exercised by
the legal representative of his estate or by the legatee of the Optionee under
his last will until the expiration of the period of two years from the date of
his death or of the stated period of the Option, whichever period is the
shorter.
(iv) If the Optionee's employment with the Company or a subsidiary of
the Company is terminated by reason of the Optionee's retirement after attaining
both five (5) years of continuous service with the Company or a subsidiary of
the Company and 59 1/2 years of age, to the extent exercisable in accordance
with the schedule set forth in Section 2(b) hereof as of the date of such
termination, such Option may thereafter be immediately exercised but may not be
exercised after the expiration of the period of two (2) years from the date of
such termination of employment or of the stated period of the Option, whichever
period is the shorter; provided, however, that if the Optionee dies within a
period of two (2) years from the date of such termination of employment, any
unexercised Option, to the extent exercisable in accordance with the schedule
set forth in Section 2(b) hereof as of the date of such termination, may
thereafter be exercised by the legal representative of his estate or by the
legatee of the Optionee under his last will until the
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expiration of the period of two years from the date of his death or of the
stated period of the Option, whichever period is the shorter.
(v) If the Optionee's employment is terminated by the Company or a
subsidiary of the Company "for cause" (as defined in Section 2.5(d) of the
Stockholders Agreement) or if the Optionee's employment is terminated for any
reason not described in this Section 2(d), the Optionee's Option shall terminate
on the date of such termination.
(e) Nontransferability. This Option shall not be transferable other
than by will or by the laws of descent and distribution.
(f) Withholding Taxes. If required by applicable law, the Optionee
shall be required to pay withholding taxes, if any, to the Company in cash at
the time of receipt of Stock upon the exercise of all or any part of this
Option; provided, however, tax withholding obligations may be met by the
withholding of Stock otherwise deliverable to the Optionee pursuant to
procedures approved by the Committee; provided further, however, the amount of
Stock so withheld shall not exceed the minimum required withholding obligation.
In no event shall Stock be delivered to any Optionee until he has paid to the
Company in cash the amount of tax required to be withheld by the Company under
applicable law, if any, or has elected to have such tax withholding obligations,
if any,
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met by the withholding of Stock in accordance with procedures
approved by the Committee.
(g) No Rights as Stockholder. The Optionee shall have no dividend
rights or any other rights as a stockholder with respect to any shares of Stock
subject to the Option until he has given written notice of exercise of the
Option and paid in full for such shares.
(h) No Right to Continued Employment. This Option shall not confer
upon the Optionee any right with respect to continuance of employment by the
Company or a subsidiary of the Company, nor shall it interfere in any way with
the right of the Company or such a subsidiary to terminate his employment at any
time.
(i) Inconsistency with Plan. Notwithstanding any provision herein to
the contrary, this Option provides the Optionee with no greater rights or claims
than are specifically provided for under the Plan. If and to the extent that any
provision contained herein is inconsistent with the Plan, the Plan shall govern.
(j) Compliance with Laws, Regulations, Stockholders Agreement, Etc.
This Option and the obligation of the Company to sell and deliver shares of
Stock hereunder, shall be subject to (i) all applicable federal and state laws,
rules and regulations, (ii) any registration, qualification, approvals or other
requirements imposed by any
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government or regulatory agency or body which the Committee shall, in its sole
discretion, determine to be necessary or applicable and (iii) the terms of the
Stockholders Agreement in all respects. Moreover, this Option may not be
exercised if its exercise, or the receipt of shares of Stock pursuant thereto,
would be contrary to applicable law.
3. Change in Control. For purposes of this Agreement, a "Change in
Control" shall be deemed to have occurred if a "Sale of the Business," as
defined in and contemplated by Section 2.4 of the Stockholders Agreement shall
have occurred.
4. Investment Representation. If at the time of exercise of all or
part of this Option the Stock is not registered under the Securities Act of
1933, as amended (the "Securities Act"), and/or there is no current prospectus
in effect under the Securities Act with respect to the Stock, the Optionee shall
execute, prior to the issuance of any shares of Stock to the Optionee by the
Company, an agreement (in such form as the Committee may specify) in which the
Optionee represents and warrants that the Optionee is purchasing or acquiring
the shares acquired under this Agreement for the Optionee's own account, for
investment only and not with a view to the resale or distribution thereof, and
represents and agrees that any subsequent offer for sale or distribution of any
of such shares shall be made only
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pursuant to either (i) a registration statement on an appropriate form under the
Securities Act, which registration statement has become effective and is current
with regard to the shares being offered or sold, or (ii) a specific exemption
from the registration requirements of the Securities Act, but in claiming such
exemption the Optionee shall, prior to any offer for sale or sale of such
shares, obtain a prior favorable written opinion, in form and substance
satisfactory to the Committee, from counsel for or approved by the Committee, as
to the applicability of such exemption thereto.
5. Disposition of Stock. Any shares of Stock received by the Optionee
upon exercise of this Option (or any interest or right in such shares) cannot be
sold, assigned, pledged or transferred in any manner except as permitted by the
Stockholders Agreement.
6. Optionee Bound by Plan; Stockholders Agreement. The Optionee hereby
acknowledges receipt of a copy of the Plan and the Stockholders Agreement and
agrees to be bound by all of the terms and provisions thereof, including the
terms and provisions adopted after the granting of this Option but prior to the
complete exercise hereof, subject to the last paragraph of Section 16 of the
Plan as in effect on the date hereof.
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7. Notices. Any notice hereunder to the Company shall be addressed to
it at c/x XxXxxx De Leeuw & Co., 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, and any notice hereunder to the Optionee shall be addressed to him
at _______________________________, subject to the right of either party to
designate at any time hereafter in writing some other address.
8. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
9. Counterparts. This Agreement has been executed in two counterparts
each of which shall constitute one and the same instrument.
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IN WITNESS WHEREOF, OSI Holdings Corp. has caused this Agreement to be
executed by an appropriate officer and the Optionee has executed this Agreement,
both on the day and year first above written.
OSI HOLDINGS CORP.
By:
--------------------------
Title:
-----------------------
[Name]
------------------------(L.S.)
Optionee
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