EXHIBIT 10.49
NON-QUALIFIED STOCK OPTION
To: XXXXX XXXXXX
0000 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Exercise Price: $ 13.69
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Date of Grant: 3-24-00
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You (the "Optionee") are hereby granted in connection with your employment
with Xxxx.xxx Inc. (the "Company"), or any subsidiary or affiliate thereof, an
option ("Option"), effective as of the date of grant ("Date of Grant"), to
purchase 1,300,000 shares of common stock of Company, $.01 par value ("Common
Stock"), at the exercise price shown above.
1. The vesting dates for this option are as follows: in installments,
as follows: (i) 433,334 shares of common stock may be purchased on the first
anniversary of the Date of Grant and, (ii) 866,666 shares of common stock may be
purchased on the second anniversary of the Date of Grant; provided, however,
the Option shall only vest as set forth in (i) and (ii) if the Optionee has
been continuously employed by the Company or any of its affiliates between the
Date of Grant and the vesting date and on such vesting date. In addition, the
Option will vest in full (less any component or portion which would otherwise be
vested or exercisable and any portion previously vested and exercised) upon a
"Change of Control" (as that term is defined herein). Notwithstanding the
foregoing the Board of Directors of the Company (the "Board") or its designees
may accelerate or waive such vesting date with respect to any or all of the
shares of Common Stock covered by the Option.
A. "Change of Control" shall be deemed to have occurred upon the
happening of any of the following events:
(a) any person (as defined in Section 3(a)(9) under the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), other
than the Company (or a Significant Subsidiary as defined below)
becomes the Beneficial Owner (as defined in Rule 13d-3 under the
Exchange Act; provided, that a Person shall be deemed to be the
Beneficial Owner of all shares that any such Person has the right
to acquire pursuant to any agreement or arrangement or upon
exercise of conversion rights, warrants, options or otherwise,
without regard to the 60 day period referred to in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of
the Company or any Significant Subsidiary (as defined below)
representing
50% or more of the combined voting power of the Company's or such
Significant Subsidiary's then outstanding securities;
(b) during any period of two years, individuals who at the beginning
of such period constitute the Board of Company and any new
director (other than a director designated by a person who has
entered into an agreement with the Company to effect a
transaction described in clauses (i), (iii), or (iv) of this
paragraph) whose election by the Board or nomination for election
by stockholders was approved by a vote of at least two-thirds of
the directors then still in office who either were directors at
the beginning of the two-year period or whose election or
nomination for election was previously so approved but excluding
for this purpose any such new director whose initial assumption
of office occurs as a result of either an actual or threatened
election contest (as such terms are used in Rule 14a-11 of
Regulation 14A under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on behalf of
an individual, corporation, partnership, group, associate or
other entity or Person other than the Board, cease for any reason
to constitute at least a majority of the Board of the Company;
(c) the consummation of a merger or consolidation of the Company or
any subsidiary owning directly or indirectly all or substantially
all of the consolidated assets of the Company ( a "Significant
Subsidiary") with any other entity, including a merger or
consolidation which would result in the voting securities of the
Company or a Significant Subsidiary outstanding immediately prior
thereto continuing to represent more than 50% of the combined
voting power of the surviving or resulting entity outstanding
immediately after such merger or consolidation;
(d) the stockholders of the Company approve a plan or agreement for
the sale or disposition of all or substantially all of the
consolidated assets of the Company in which case the Board shall
determine the effective date of the Change of Control resulting
therefrom; and
(e) any other event occurs which the Board determines, in its
discretion, would materially alter, the structure of the Company
or its ownership.
(f) a person other than Xxxxxxx Xxxxxxxx is elected by the Board to
serve as the Company's principal executive officer.
2. The Optionee may exercise the Option by giving written notice to the
Secretary of the Company on forms supplied by the Company at its then principal
executive office, accompanied by payment of the exercise price for the total
number of shares the Optionee specifies that the Optionee wishes to purchase.
The payment may be in any of the following forms: (a) cash, which may be
evidenced by a check and includes cash received from a so-called "cashless
exercise"; (b) (unless prohibited by the Board) certificates representing
shares of
Common Stock of the Company, which will be valued by the Secretary of
the Company at the fair market value per share of the Company's Common Stock on
the date of delivery of such certificates of the Company, accompanied by an
assignment of the stock to the Company; or (c) (unless prohibited by the Board)
any combination of cash and Common Stock of the Company valued as provided in
clause (b). Any assignment of stock shall be in a form and substance
satisfactory to the Secretary of the Company, including guarantees of
signature(s) and payment of all transfer taxes if the Secretary deems such
guarantees necessary or desirable.
3. The Company agrees to use commercially reasonable efforts to file a
Form S-8 and register the shares issuable upon the exercise of the Options
contemplated herein under the Securities Act of 1933 and any applicable state
securities registration requirements and to cause such shares to be listed on
NASDAQ (if such shares are not already listed or so registered).
4. Your Option will, to the extent not previously exercised by you, as
to any shares purchasable hereunder (i.e. vested) expire on the tenth
anniversary of the Date of Xxxxx.
5. In the event of any change in the outstanding shares of the Common
Stock of the Company by reason of a stock dividend, stock split, combination of
shares, recapitalization, merger, consolidation, transfer of assets,
reorganization, conversion or what the Board deems in its reasonable discretion
to be similar circumstances, the number and kind of shares subject to this
Option and the exercise price of such shares shall be appropriately adjusted in
a manner to be determined in the reasonable discretion of the Board.
6. Except as otherwise provided by the Board or the Committee (as
defined below), this Option is not transferable except as designated by Optionee
or by will or the laws of descent and distribution, and is exercisable during
the Optionee's lifetime only by the Optionee, including, for this purpose, the
Optionee's legal guardian or custodian in the event of disability. Until the
exercise price has been paid in full pursuant to due exercise of this Option and
the purchased shares are delivered to the Optionee, the Optionee does not have
any rights as a stockholder of the Company. The Company reserves the right not
to deliver to the Optionee the shares purchased by virtue of the exercise of
this Option during any period of time in which the Company deems, in its sole
discretion, that such would violate a federal, state, local or securities
exchange rule, regulation or law.
7. Notwithstanding anything to the contrary contained herein, this
Option is not exercisable without the consent of the Company until all the
following events occur and during the following periods of time:
(a) Until this Option and the optioned shares are approved and/or
registered with such federal, state and local regulatory bodies
or agencies and securities exchanges as the Company may deem
necessary or desirable; or
(b) During any period of time in which the Company deems that the
exercisability of this Option, the offer to sell the shares
optioned hereunder, or the sale thereof, may violate a federal,
state, local or securities exchange rule, regulation or law, or
may cause the Company to
be legally obligated to issue or sell more shares than the
Company is legally entitled to issue or sell.
(c) Until the Optionee has paid or made suitable arrangements to pay
(i) all federal, state and local income tax withholding required
to be withheld by the Company in connection with the Option
exercise and (ii) the Optionee's portion of other federal, state
and local payroll and other taxes due in connection with the
Option exercise.
8. The following two paragraphs shall be applicable if, on the date of
exercise of this Option, the Common Stock to be purchased pursuant to such
exercise has not been registered under the Securities Act of 1933, as amended,
and under applicable state securities laws, and shall continue to be applicable
for so long as such registration has not occurred:
(a) The Optionee hereby agrees, warrants and represents that he will
acquire the Common Stock to be issued hereunder for his own
account for investment purposes only, and not with a view to, or
in connection with, any resale or other distribution of any of
such shares, except as hereafter permitted. The Optionee further
agrees that he will not at any time make any offer, sale,
transfer, pledge or other disposition of such Common Stock to be
issued hereunder without an effective registration statement
under the Securities Act of 1933, as amended, and under any
applicable state securities laws or an opinion of counsel
acceptable to the Company to the effect that the proposed
transaction will be exempt from such registration. The Optionee
shall execute such instruments, representations, acknowledgments
and agreements as the Company may, in its sole discretion, deem
advisable to avoid any violation of federal, state, local or
securities exchange rule, regulation or law.
(b) The certificates for Common Stock to be issued to the Optionee
hereunder 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 applicable state securities laws. The shares have been
acquired for investment and may not be offered, sold,
transferred, pledged or otherwise disposed of without an
effective registration statement under the Securities Act of
1933, as amended, and under any applicable state securities
laws or an opinion of counsel acceptable to the Company that
the proposed transaction will be exempt from such
registration."
The foregoing legend shall be removed upon registration of the
legended shares under the Securities Act of 1933, as amended, and
under any
applicable state laws or upon receipt of any opinion of counsel
acceptable to the Company that said registration is no longer
required.
9. The sole purpose of the agreements, warranties, representations and
legend set forth in the two immediately preceding paragraphs is to prevent
violations of the Securities Act of 1933, as amended, and any applicable state
securities laws.
10. It is the intention of the Company and the Optionee that this
Option shall not be an "Incentive Stock Option" as that term is used in Section
422 of the Code and the regulations thereunder. This Option is not granted
pursuant to any stock option plan. Notwithstanding the foregoing, the Board and
the Compensation Committee or similar committee thereof (the "Committee") shall
have plenary authority to interpret the Option, prescribe, amend and rescind
rules and regulations relating to it, and make all other determinations deemed
necessary or advisable for the administration and/or exercise of the Option.
11. This Option constitutes the entire understanding between the
Company and the Optionee with respect to the subject matter hereof and no
amendment, modification or waiver of this Option, in whole or in part, shall be
binding upon the Company unless in writing and signed by an authorized officer
of the Company. This Option and the performances of the parties hereunder shall
be construed in accordance with and governed by the laws of the State of
Delaware.
Please sign the copy of this Option and return it to the Company's
Secretary, thereby indicating your understanding of and agreement with its terms
and conditions.
XXXX.XXX INC.
By: /s/ Xxxxxxxx X. Xxxx XX
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Xxxxxxxx X. Xxxx XX
Executive Vice President-General
Counsel and Secretary
I hereby acknowledge receipt of a copy of the foregoing stock Option and, having
read it hereby signify my understanding of, and my agreement with, its terms and
conditions.
/s/ Xxxxx Xxxxxx 1/31/01
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Optionee Date
