EXHIBIT 10.38
STOCK OPTION AGREEMENT
PURSUANT TO THE
XXXXXX HOLDINGS, INC.
1999 EQUITY AWARD PLAN
AGREEMENT, dated as of September 5, 2002, by and between Xxxxxx
Holdings, Inc. (the "Company"), and Xxxxxx X. Xxxxxx (the "Participant").
PRELIMINARY STATEMENT
The Board of Directors of the Company (the "Board"), which administers
the Xxxxxx Holdings, Inc. 1999 Equity Award Plan (the "Plan"), has authorized
this grant of a non-qualified stock option (the "Option") on September 5, 2002
(the "Grant Date") to purchase the number of shares of the Company's common
stock, par value $.01 per share (the "Common Stock") set forth below to the
Participant, as an Eligible Employee of the Company or an Affiliate of the
Company (collectively, the Company and all such Affiliates of the Company shall
be referred to as the "Employer"). Unless otherwise indicated herein, any
capitalized term used but not defined herein shall have the meaning ascribed to
such term in the Plan. A copy of the Plan has been delivered to the Participant.
By signing and returning this Agreement, the Participant acknowledges having
received and read a copy of the Plan and agrees to comply with it, this
Agreement and all applicable laws and regulations.
Accordingly, the parties hereto agree as follows:
1. TAX MATTERS. No part of the Option granted hereby is intended to
qualify as an "incentive stock option" under Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code").
2. GRANT OF OPTION. Subject in all respects to the terms and
conditions of the Plan and this Option Agreement, the Participant is hereby
granted an Option to purchase from the Company 12,508 shares of Common Stock, at
a price per share of $31.50 (the "Option Price").
3. EXERCISE.
(a) The Option shall become vested and exercisable in installments on
the dates provided below, which shall be cumulative; PROVIDED, HOWEVER, that the
Option shall become vested and exercisable in full on a date, if any, that the
Board determines that the Company's EBITDA for the year ended December 31, 2002
is at least $244 million; PROVIDED, FURTHER that the Participant has not
incurred a Termination of Employment with the Employer prior to any such date.
To the extent that the Option has become vested and exercisable with respect to
a percentage of shares of Common Stock granted as provided below, the Option may
thereafter be exercised by the Participant, in whole or in part, at any time or
from time to time prior to the expiration of the Option as provided herein and
in accordance with Section 6.3(d) of the Plan, including, without limitation, by
(i) the filing of such written form of exercise notice, if any, as may be
required by the Board, (ii) the execution and delivery by the Participant of the
subscription agreement referred to in Section 7 below, and (iii) the payment in
full of the Option Price multiplied by the number of shares of Common Stock for
which the Option is so exercised. Upon expiration of the Option, the Option
shall be canceled and no longer exercisable. The following table indicates the
dates (the "Vesting Dates") upon which the Participant shall become vested and
be entitled to exercise the Option with respect to the number of shares granted
as indicated beside that date:
Vesting Date Percent of Option Shares
------------ ------------------------
September 1, 2003 33%
September 1, 2004 33%
September 1, 2005 34%
There shall be no proportionate or partial vesting in the periods prior to each
Vesting Date, and all vesting and exercisability increases shall occur only on
the appropriate Vesting Date.
(b) Notwithstanding any other provision to the contrary, any portion
of this Option that is not vested upon the Participant's Termination of
Employment shall be canceled and be non-exercisable upon such Termination of
Employment.
4. OPTION TERM. The term of each Option shall be ten (10) years
after the Grant Date, subject to earlier termination in the event of a
Participant's Termination of Employment as specified in Section 5 below.
5. TERMINATION.
Subject to Section 4 above and the terms of the Plan, this Option, to
the extent vested at the time of a Participant's Termination of Employment,
shall be exercisable as follows:
(a) In the event of the Participant's Termination of Employment for
any reason other than as described in Section 5(b) below, this Option shall
remain exercisable until the earlier of (i) ninety (90) days from the date of
such Termination of Employment or (ii) the expiration of the stated term of this
Option pursuant to Section 4 hereof.
(b) In the event of the Participant's Termination of Employment for
Cause or in the event of a Participant's voluntary termination at any time after
an event that would be grounds for a Termination of Employment for Cause, this
entire Option (whether or not vested) shall be forfeited and canceled in its
entirety upon such Termination of Employment.
6. RESTRICTION ON TRANSFER OF OPTION. The Option granted hereby
shall not be transferable other than by will or by the laws of descent and
distribution and during the lifetime of the Participant, may be exercised only
by the Participant or the Participant's guardian or legal representative. In
addition, the Option shall not be assigned, negotiated, pledged or hypothecated
in any way (except as provided by law or herein), and the Option shall not be
subject to execution, attachment or similar process. Upon any attempt to
transfer, assign, negotiate, pledge or hypothecate the Option or in the event of
any levy upon the Option by reason of any execution, attachment or similar
process contrary to the provisions hereof, the Option shall immediately become
null and void.
7. RESTRICTIONS ON TRANSFER AND SALE OF SHARES. Shares of Common
Stock acquired by the Participant (or his or her estate or legal representative)
through the exercise of this Option shall be subject to the provisions of a
subscription agreement which shall be provided to the Participant immediately
prior to the earliest Vesting Date hereunder.
8. RIGHTS AS A STOCKHOLDER. The Participant shall have no rights as
a stockholder with respect to any shares covered by the Option unless and until
the Participant has become the holder of record of the shares, and no
adjustments shall be made for dividends in cash or other property, distributions
or other rights in respect of any such shares, except as otherwise specifically
provided for in the subscription agreement referred to in Section 7 above.
9. PROVISIONS OF PLAN CONTROL. This Agreement is subject to all the
terms, conditions and provisions of the Plan (including, without limitation, the
amendment provisions thereof, and to such rules, regulations and interpretations
relating to the Plan as may be adopted by the Board or any committee thereof and
as may be in effect from time to time) and, as provided in Section 7 of this
Agreement, the subscription agreement. The Plan is specifically incorporated
herein by reference. If and to the extent that this Agreement conflicts or is
inconsistent with the terms, conditions and provisions of the Plan, the Plan
shall control, and this Agreement shall be deemed to be modified accordingly.
10. NOTICES. Any notice or communication given hereunder shall be in
writing and shall be deemed to have been duly given when delivered in person, or
by United States mail, to the appropriate party at the address set forth below
(or such other address as the party shall from time to time specify):
If to the Company, to:
Xxxxxx Holdings, Inc.
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Secretary
If to the Participant, to:
The address indicated after the Participant's signature at the
end of this Agreement.
11. NO OBLIGATION TO CONTINUE EMPLOYMENT. This Agreement is not an
agreement of employment. This Agreement does not guarantee that the Employer
will employ the Participant for any specific time period, nor does it modify in
any respect the Employer's right to terminate or modify the Participant's
employment or compensation.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first above written.
PARTICIPANT: XXXXXX HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxx
-------------------------- ------------------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxx X. Xxxxxx
Social Security No: ###-##-#### Title: Chief Financial Officer
Home Address: 0 Xxxxxxx Xx
Xxxxxxxxx, XX 00000
