XXXXXX, INC.
2005 STOCK INCENTIVE PLAN
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT (the "Agreement") made as of this 8th
day of November, 2005, by and between Xxxxxx, Inc., a Delaware corporation,
having its principal office at 000 Xxxxxxx Xxxx, Xxxx Xxxx, Xxx Xxxx 00000-0000
(the "Company"), and Xxxxxx X. Xxxxxxx, an individual residing in Greenwich, CT
(the "Optionee"). Capitalized terms not defined herein shall have the meanings
ascribed to them in the Company's 2005 Stock Incentive Plan.
WHEREAS, the Company has heretofore adopted the Xxxxxx, Inc.
2005 Stock Incentive Plan (the "Plan") for the benefit of certain employees,
officers, directors, consultants, independent contractors and advisors of the
Company or Subsidiaries of the Company, which Plan has been approved by the
Company's stockholders; and
WHEREAS, the Company and the Optionee desire to enter into
this Agreement which amends, supercedes, replaces and cancels the Stock Option
Agreement made as of November 12, 2004 by and between the Company and the
Optionee;
NOW, THEREFORE, the parties agree as follows:
1. OPTION GRANT. Subject to the provisions hereinafter set forth and
the terms and conditions of the Plan, the Company hereby grants to the Optionee,
as of November 12, 2004 (the "Grant Date"), the right, privilege and option (the
"Option") to purchase all or any part of an aggregate of 240,000 shares (the
"Shares") of common stock of the Company, par value $0.02 per share (the "Common
Stock"), such number being subject to adjustment as provided in the Plan. This
Option is not intended to qualify as an "incentive stock option" ("ISO") within
the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code").
2. EXERCISE PRICE. Subject to adjustment as provided in the Plan,
the purchase price per Share of Common Stock as to which this Option is
exercised (the "Exercise Price") shall be $7.50, the Fair Market Value of such
Shares on the Grant Date.
3. EXERCISE OF OPTION. The term of the Option shall be for a period
of ten (10) years from the Grant Date and shall expire without further action
being taken at 5:00 p.m., November 12, 2014, subject to earlier termination as
provided in Section 5 hereof (the "Expiration Date"). The Option may be
exercised at any time, or from time to time, prior to the Expiration Date (or
such additional period as may be permitted under the Plan) as to any part or all
of the Shares covered by the Option, pursuant to the vesting schedule contained
in Section 4.1 hereof; provided, however, that the Option may not be exercised
as to less than one hundred (100) shares, unless it is exercised as to all
Shares as to which this Option is then exercisable.
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4. VESTING AND LOCKUP RELEASE SCHEDULE.
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4.1 Vesting Date. The Shares into which this Option is exercisable
shall vest in accordance with the following schedule:
NUMBER OF NUMBER OF TOTAL NUMBER
VESTING DATE ISOS NON-QUALIFIED OF SHARES
------------------------------- ---------------- ----------------- --------------
November 12, 2005 0 80,000 80,000
November 12, 2006 0 80,000 80,000
November 12, 2007 0 80,000 80,000
4.2 Shares that are vested pursuant to the schedule set forth in
Section 4.1 hereof are "Vested Shares."
4.3 (a) Notwithstanding the foregoing or any contrary or
inconsistent provision of this Agreement, the Option shall vest in full and
become immediately exercisable, not later than immediately prior to the
effective date of any Change-of-Control Event (as hereinafter defined). The
Company hereby undertakes to give the Optionee notice of any Change of Control
Event within five (5) days thereof.
(b) For purposes of this Agreement, Change-of-Control Event"
means the occurrence of any one or more of the following events: (i) there shall
have been a change in a majority of the Board of Directors of the Company within
twelve (12) month period, unless the appointment of a director or the nomination
for election by the Company's stockholders of each new director was approved by
the vote of a majority of the directors then still in office who were in office
at the beginning of such twelve (12) month period, or (ii) the Company shall
have been sold by either (A) a sale of all or substantially all its assets, or
(B) a merger or consolidation, other than any merger or consolidation pursuant
to which the Company acquires another entity, or (C) a tender offer, whether
solicited or unsolicited.
4.4 Notwithstanding the vesting schedule set forth in Section
4.1 hereof, such vesting schedule may be accelerated by the Board of Directors
or the Compensation Committee of the Board of Directors (the "Committee") in
their sole decision.
5. TERMINATION.
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5.1 Termination for Any Reason Except Death, Disability or
Cause. If the consulting agreement dated November 12, 2004 between the Optionee
and the Company (the "Consulting Agreement" is terminated for any reason
(including if the Optionee voluntarily terminates such agreement) other than for
cause (as such term is used in the Consulting Agreement), or if the principal
stockholder of the Optionee ceases to serve as a director of the Company for any
reason other than such principal stockholder's death, disability or removal for
cause, then this Option, to the extent (and only to the extent) that it is
vested in accordance with the schedule set forth in Section 4.1 hereof on the
effective date of any such termination (the "Termination Date"), may be
exercised by Optionee no later than three (3) months after the Termination Date,
or such longer time period not exceeding five (5) years as may be determined by
the Committee, but in any event no later than the Expiration Date.
5.2 Termination Because of Death or Disability. If the
principal stockholder of the Optionee ceases to serve as a director of the
Company and Chairman of the Board of Directors on account of death or permanent
disability, then this Option, to the extent that it is vested in accordance with
the schedule set forth in Section 4.1 hereof on the Termination Date, may be
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exercised by Optionee no later than twelve (12) months after the Termination
Date (or such longer time period not exceeding five (5) years as may be
determined by the Committee), but in any event no later than the Expiration
Date.
5.3 Termination for Cause. If the Consulting Agreement is
terminated for cause, or if the principal stockholder of the Optionee is removed
as a director of the Company for cause, the Optionee shall not be entitled to
exercise any Option with respect to any Shares whatsoever, after such
termination of service. In making any determination with respect to termination
of the Consulting Agreement for cause, or removal of the principal stockholder
of the Optionee from the Board of Directors for cause, the Board of Directors
shall give the Optionee or principal stockholder of the Optionee, as applicable,
an opportunity to present to the Committee evidence on its/his behalf. For the
purpose of this paragraph, termination of service shall be deemed to occur on
the date when the Company dispatches notice or advice to the Optionee that the
Optionee's service is terminated, or that the principal stockholder of the
Optionee of the Board of Directors has been removed for cause, as applicable.
5.4 No Obligation to Employ. NOTHING IN THIS AGREEMENT SHALL
CONFER ON OPTIONEE ANY RIGHT TO CONTINUE AS A CONSULTANT TO THE COMPANY OR ANY
SUBSIDIARY OF THE COMPANY, NOR CONFER ON THE PRINCIPAL STOCKHOLDER OF THE
OPTIONEE ANY RIGHT TO SERVE ON THE BOARD OF DIRECTORS OF THE COMPANY OR ANY
SUBSIDIARY OF THE COMPANY, OR LIMIT IN ANY WAY THE RIGHT OF THE COMPANY OR ANY
AFFILIATE OR SUBSIDIARY OF THE COMPANY TO TERMINATE THE CONSULTING AGREEMENT OR
REMOVE THE PRINCIPAL STOCKHOLDER FROM THE BOARD OF DIRECTORS, WITH OR WITHOUT
CAUSE. THIS AGREEMENT DOES NOT CONSTITUTE A RETAINER OF THE OPTIONEE OR ITS
PRINCIPAL STOCKHOLDER OR ANY OTHER AFFILIATE OF THE OPTIONEE. THIS AGREEMENT
DOES NOT GUARANTEE ENGAGEMENT OF THE CONSULTANT FOR THE LENGTH OF TIME OF THE
VESTING SCHEDULE SET FORTH IN ARTICLE 4 HEREOF OR FOR ANY PORTION THEREOF.
6. MANNER OF EXERCISE.
6.1 Stock Option Exercise Procedures. To exercise this Option,
Optionee (or in the case of exercise after Optionee's death, Optionee's
executor, administrator, heir or legatee, as the case may be) must follow such
exercise procedures as may be established by the Committee from time to time in
its sole discretion. Such procedures may include requiring that the Optionee
provide certain information including, inter alia, Optionee's election to
exercise this Option, the number of Shares being purchased, any restrictions
imposed on the Shares and any representations, warranties and agreements
regarding Optionee's investment intent and access to information as may be
required by the Company to comply with applicable securities laws. If someone
other than Optionee exercises this Option, then such person may be required to
submit documentation reasonably acceptable to the Company that such person has
the right to exercise this Option.
6.2 Limitations on Exercise. This Option may not be exercised
unless such exercise is in compliance with all applicable federal and state
securities laws, as they are in effect on the date of exercise.
6.3 Payment. An exercise of this Option shall be accompanied
by full payment of the aggregate Exercise Price for the Shares being purchased
(a) in cash (by check), or (b) provided that a public market for the Company's
stock exists: (1) through a "same day sale" commitment from Optionee and a
broker-dealer that is a member of the National Association of Securities Dealers
(an "NASD Dealer") whereby Optionee irrevocably elects to exercise this Option
and to sell a portion of the Shares so purchased to pay for the aggregate
Exercise Price and whereby the NASD Dealer irrevocably commits upon receipt of
such Shares to forward the aggregate Exercise Price directly to the Company; or
(2) through a "margin" commitment from Optionee and an NASD Dealer whereby
Optionee irrevocably elects to exercise this Option and to
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pledge the Shares so purchased to the NASD Dealer in a margin account as
security for a loan from the NASD Dealer in the amount of the aggregate Exercise
Price, and whereby the NASD Dealer irrevocably commits upon receipt of such
Shares to forward the aggregate Exercise Price directly to the Company.
Notwithstanding the foregoing, the Board of Directors or the Committee, in their
sole discretion, may allow for the full payment of the aggregate Exercise Price
for the Shares being purchased to be made by any other method which is in
accordance with the provisions of the Plan.
6.4 Tax Withholding. Prior to the issuance of the Shares upon
exercise of this Option, Optionee must pay or provide for any applicable federal
or state withholding obligations of the Company. If the Committee permits,
Optionee may provide for payment of withholding taxes upon exercise of this
Option by requesting that the Company retain Shares with a Fair Market Value
equal to the minimum amount of taxes required to be withheld determined on the
date that the amount of tax to be withheld is to be determined. In such case,
the Company shall issue the net number of Shares to the Optionee by deducting
the Shares retained from the Shares issuable upon exercise.
6.5 Issuance of Shares. Provided that both the exercise
procedures established by the Committee and payment are in manner, form and
substance satisfactory to the Company, and upon the Company's request to counsel
for the Company, the Company shall issue the Shares registered in the name of
Optionee, Optionee's authorized assignee, or Optionee's legal representative,
and shall deliver certificates representing the Shares with the appropriate
legends affixed thereto.
7. COMPLIANCE WITH LAWS AND REGULATIONS. The exercise of this Option
and the issuance and transfer of Shares to the Optionee shall be subject to
compliance by the Company and Optionee with (i) all applicable requirements of
federal and state securities laws, (ii) all applicable requirements of any stock
exchange on which the Company's Common Stock may be listed and (iii) any
applicable policy of the Company regarding the trading of securities of the
Company, each at the time of such issuance and transfer. Optionee understands
that the Company is under no obligation to register or qualify the Shares with
the SEC, any state securities commission or any stock exchange to effect such
compliance.
8. NONTRANSFERABILITY OF OPTION. This Option may not be transferred
in any manner other than transfers by will or by the laws of descent and
distribution or to members of the Optionee's immediate family, to trusts solely
for the benefit of such immediate family members and to partnerships or limited
liability companies in which such family members and/or trusts are the only
partners or members, as the case may be. For this purpose, "immediate family"
means the Optionee's spouse, parents, children, stepchildren, grandchildren and
legal dependants. Any transfer of Options made under this provision will not be
effective until notice of such transfer is delivered to the Company. The terms
of this Option shall be binding upon the executors, administrators, successors
and assigns of Optionee.
9. PRIVILEGES OF STOCK OWNERSHIP. Optionee shall not have any of the
rights of a stockholder with respect to any Shares until the Shares are issued
to Optionee.
10. INTERPRETATION. Any dispute regarding the interpretation of this
Agreement shall be submitted by Optionee or the Company to the Committee for
review. The resolution of such a dispute by the Committee shall be final and
binding on the Company and Optionee.
11. ENTIRE AGREEMENT. The Plan is incorporated herein by reference.
This Agreement and the Plan and any exercise procedures as may be established by
the Committee constitute the entire agreement and understanding of the parties
hereto with respect to the subject matter hereof and supersede all prior
understandings and agreements with respect to such subject matter.
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12. NOTICES. Any notice required to be given or delivered to the
Company under the terms of this Agreement shall be in writing and addressed to
the Corporate Secretary of the Company at its principal corporate offices. Any
notice required to be given or delivered to Optionee shall be in writing and
addressed to Optionee at the address indicated above or to such other address as
such party may designate in writing from time to time to the Company. All
notices shall be deemed to have been given or delivered upon: personal delivery;
three (3) days after deposit in the United States mail by certified or
registered mail (return receipt requested); one (1) business day after deposit
with any return receipt express courier (prepaid); or one (1) business day after
transmission by facsimile.
13. SUCCESSORS AND ASSIGNS. The Company may assign any of its rights
under this Agreement. This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of the Company. Subject to the
restrictions on transfer set forth herein, this Agreement shall be binding upon
Optionee and Optionee's heirs, executors, administrators, legal representatives,
successors and assigns.
14. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, applicable to agreements
made and to be performed entirely within such state, other than conflict of laws
principles thereof directing the application of any law other than that of
Delaware.
15. ACCEPTANCE. Optionee hereby acknowledges receipt of a copy of the
Plan and this Agreement. Optionee has read and understands the terms and
provisions of the Plan, and accepts this Option subject to all the terms and
conditions of the Plan and this Agreement. This Option is subject to, and the
Company and the Optionee agree to be bound by, all of the terms and conditions
of the Plan under which this Option was granted, as the same shall have been
amended, restated or otherwise modified from time to time in accordance with the
terms thereof. Pursuant to said Plan, the Board of Directors of the Company, or
the Committee is vested with final authority to interpret and construe the Plan
and this Option, and its present form is available for inspection during the
business hours by the Optionee or other persons entitled to exercise this Option
at the Company's principal office. Optionee acknowledges that there may be
adverse tax consequences upon exercise of this Option or disposition of the
Shares and that the Company has advised Optionee to consult a tax advisor prior
to such exercise or disposition.
16. COVENANTS OF THE OPTIONEE
The Optionee agrees (and for any heir, executor, administrator,
legal representative, successor, or assignee hereby agrees), as a condition upon
exercise of the Option granted hereunder:
(a) Upon the request of the Committee, to execute and deliver
a certificate, in form satisfactory to the Committee, certifying that the Shares
being acquired upon exercise of the Option are for such person's own account for
investment only and not with any view to or present intention to resell or
distribute the same. The Optionee hereby agrees that the Company shall have no
obligation to deliver the Shares issuable upon exercise of the Option unless and
until such certificate shall be executed and delivered to the Company by the
Optionee or any successor.
(b) Upon the request of the Committee, to execute and deliver
a certificate, in form satisfactory to the Committee, certifying that any
subsequent resale or distribution of the Shares by the Optionee shall be made
only pursuant to either (i) a Registration Statement on an appropriate form
under the Securities Act of 1933, as amended (the "Securities Act"), which
Registration Statement has become effective and is current with regard to the
Shares being 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 of sale or sale of such Shares, obtain a prior
favorable written opinion of counsel, in form and substance satisfactory to
counsel for the
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Company, as to the application of such exemption thereto. The foregoing
restriction contained in this subparagraph (b) shall not apply to (i) issuances
by the Company so long as the Shares being issued are registered under the
Securities Act and a prospectus in respect thereof is current, or (ii)
re-offerings of Shares by Affiliates of the Company (as defined in Rule 405 or
any successor rule or regulation promulgated under the Securities Act) if the
Shares being re-offered are registered under the Securities Act and a prospectus
in respect thereof is current.
(c) That certificates evidencing Shares purchased upon
exercise of the Option shall bear a legend, in form satisfactory to counsel for
the Company, manifesting the investment intent and resale restrictions of the
Optionee described in this Section.
(d) That upon exercise of the Option granted hereby, or upon
sale of the Shares purchased upon exercise of the Option, as the case may be,
the Company shall have the right to require the Optionee to remit to the
Company, or in lieu thereof, the Company may deduct, an amount of shares or cash
sufficient to satisfy federal, state or local withholding tax requirements, if
any, prior to the delivery of any certificate for such Shares or thereafter, as
appropriate.
17. OBLIGATIONS OF THE COMPANY
17.1 Upon the exercise of this Option in whole or in part, the
Company shall cause the purchased Shares to be issued only when it shall have
received the full payment of the aggregate Exercise Price in accordance with the
terms of this Agreement.
17.2 The Company shall cause certificates for the Shares as to
which the Option shall have been exercised to be registered in the name of the
person or persons exercising the Option, which certificates shall be delivered
by the Company to the Optionee only against payment of the full Exercise Price
in accordance with the terms of this Agreement for the portion of the Option
exercised.
17.3 In the event that the Optionee shall exercise this Option
with respect to less than all of the Shares of Common Stock that may be
purchased under the terms hereof, the Company shall issue to the Optionee a new
Option, duly executed by the Company and the Optionee, in form and substance
identical to this Option, for the balance of Shares of Common Stock then
issuable pursuant to the terms of this Option.
17.4 Notwithstanding anything to the contrary contained
herein, neither the Company nor its transfer agent shall be required to issue
any fraction of a Share of Common Stock in connection with the exercise of this
Option, and the Company shall, upon exercise of this Option in whole or in part,
issue the largest number of whole Shares of Common Stock to which this Option is
entitled upon such full or partial exercise and shall return to the Optionee the
amount of the aggregate Exercise Price paid by the Optionee in respect of any
fractional Share.
17.5 The Company may endorse such legend or legends upon the
certificates for Shares issued to the Optionee pursuant to the Plan and may
issue such "stop transfer" instructions to its transfer agent in respect of such
Shares as, in its discretion, it determines to be necessary or appropriate to:
(i) prevent a violation of, or to perfect an exemption from, the registration
requirements of the Securities Act; (ii) implement the provisions of the Plan
and any agreement between the Company and the Optionee with respect to such
Shares; or (iii) permit the Company to determine the occurrence of a
disqualifying disposition, as described in Section 421(b) of the Code, of Shares
transferred upon exercise of an incentive stock option granted pursuant to this
Agreement and under the Plan.
17.6 The Company shall pay all issue or transfer taxes with
respect to the issuance or transfer of Shares to the Optionee, as well as all
fees and expenses necessarily incurred by the Company in connection with such
issuance or transfer, except fees and expenses
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which may be necessitated by the filing or amending of a Registration Statement
under the Securities Act, which fees and expenses shall be borne by the
Optionee, unless such Registration Statement under the Securities Act has been
filed by the Company for its own corporate purposes (and the Company so states)
in which event the Optionee shall bear only such fees and expenses as are
attributable solely to the inclusion of the Shares he or she receives in the
Registration Statement.
17.7 All Shares issued following exercise of the Option and
the payment of the Exercise Price in accordance with the terms of this Agreement
therefore shall be fully paid and non-assessable to the extent permitted by law.
18. MISCELLANEOUS
18.1 If the Optionee loses this Agreement representing the
Option granted hereunder, or if this Agreement is stolen or destroyed, the
Company shall, subject to such reasonable terms as to indemnity as the
Committee, in its sole discretion shall require, enter into a new option
agreement pursuant to which the Company shall issue a new Option, in form and
substance identical to this Option, and in substitution for, the Option so lost,
stolen or destroyed, and in the event this Agreement representing the Option
shall be mutilated, the Company shall, upon the surrender hereof, enter into a
new option agreement pursuant to which the Company shall issue a new Option, in
form and substance identical to this Option, and in substitution for, the Option
so mutilated.
18.2 This Agreement cannot be amended, supplemented or
changed, and no provision hereof can be waived, except by a written instrument
making specific reference to this Agreement and signed by the party against whom
enforcement of any such amendment, supplement, modification or waiver is sought.
A waiver of any right derived hereunder by the Optionee shall not be deemed a
waiver of any other right derived hereunder.
18.3 This Agreement may be executed in any number of
counterparts, but all counterparts will together constitute but one agreement.
18.4 In the event of a conflict between the terms and
conditions of this Agreement and the Plan, the terms and conditions of the Plan
shall govern.
18.5 Any dispute regarding the interpretation of this
Agreement shall be submitted by Optionee or the Company to the Committee for
review. The resolution of such a dispute by the Committee shall be final and
binding on the Company and Optionee.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed in duplicate by its duly authorized representative and Optionee has
executed this Agreement in duplicate as of the date first above written.
XXXXXX, INC.
By:
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Name:
Title:
OPTIONEE:
KANDERS & COMPANY, INC.
By:
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Xxxxxx X. Xxxxxxx, President
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