Exhibit 10.34
STOCK OPTION AGREEMENT (this "Agreement") dated as of the date set
forth on the signature page hereto, between QUALITY DISTRIBUTION, INC., a
Florida corporation (the "Company"), and the optionee set forth on the signature
page hereto (the "Optionee").
The Company, whether acting through its Board of Directors (the
"Board") or a committee thereof (the "Committee") has granted to the Optionee,
effective as of the date of this Agreement, an option under the Company's 2003
Stock Option Plan (the "Plan") to purchase up to the number of shares of the
common stock of the Company (the "Shares") set forth on the signature page
hereto, on the terms and subject to the conditions set forth in this Agreement
and the Plan.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements contained herein the parties hereto agree as follows:
1. The Plan.
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The terms and provisions of the Plan are hereby incorporated into this
Agreement as if set forth herein in their entirety. In the event of a conflict
between any provision of this Agreement and the Plan, the provisions of the Plan
shall control. A copy of the Plan is attached hereto as Exhibit A. Capitalized
terms used herein and not otherwise defined shall have the meanings ascribed
thereto in the Plan.
2. Option; Option Price.
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On the terms and subject to the conditions of this Agreement, the
Optionee is hereby granted the option (the "Option") to purchase up to the
number of Shares set forth on the signature page hereto at the Option Price per
Share set forth on the signature page hereto. Such number of Shares and Option
Price are subject to adjustment pursuant to Section 9 of the Plan. The Option is
not intended to qualify for federal income tax purposes as an "incentive stock
option" within the meaning of Section 422 of the Internal Revenue Code of 1986,
as amended (the "Code").
3. Term.
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The term of the Option (the "Option Term") shall commence on the date
hereof and expire on the tenth anniversary of the date hereof, unless the Option
shall have sooner been terminated in accordance with the terms of the Plan or
this Agreement.
4. Vesting.
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The Option shall vest in accordance with Section 5(f) of the Plan.
5. Optionee's Employment.
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Nothing in the Option shall confer upon the Optionee any right to
continue to be employed by the Company or any of its affiliates or interfere in
any way with the right of the Company or its affiliates or stockholders, as the
case may be, to terminate the
Optionee's employment or retention by the Company or any of its affiliates or to
increase or decrease the Optionee's compensation at any time. No proportionate
vesting shall be granted for service between specified vesting dates.
6. Notices.
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All notices, claims, certificates, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given and delivered if personally delivered or if sent by
nationally-recognized overnight courier guaranteeing next day delivery, by
telecopy, or by registered or certified mail, return receipt requested and
postage prepaid, addressed as follows:
(a) if to the Company, to it at:
Quality Distribution, Inc.
0000 Xxxxxxxx Xxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: General Counsel
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
O'Melveny & Xxxxx, X.X.
x/x Xxxxxxx Xxxxx, Xxx.
00 Xxxxxxxxxxx Xxxxx 00/xx/ Xxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
(b) if to the Optionee, to him at his address set forth in the Company's
records or to such other address as the party to whom notice is to be given may
have furnished to the other party in writing in accordance herewith. Any such
notice or communication shall be deemed to have been received (i) in the case of
personal delivery, on the date of such delivery (or if such date is not a
business day, on the next business after the date sent), (ii) in the case of
nationally-recognized overnight courier, on the next business day after the date
sent, (iii) in the case of telecopy transmission, when received (or if not sent
on a business day, on the next business day after the date sent), and (iv) in
the case of mailing, on the third business day following that on which the piece
of mail containing such communication is posted.
7. Waiver of Breach.
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The waiver by either party of a breach of any provision of this
Agreement must be in writing and shall not operate or be construed as a waiver
of any other or subsequent breach.
8. Optionee's Undertaking.
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The Optionee hereby agrees to take whatever additional actions and
execute whatever additional documents the Company may in its reasonable judgment
deem necessary or advisable in order to carry out or effect one or more of the
obligations or restrictions imposed on the Optionee pursuant to the express
provisions of this Agreement and the Plan.
9. Modification of Rights.
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Anything contained in this Agreement or the Plan to the contrary
notwithstanding, no provision of this Agreement may be modified or amended
without the prior written consent of the Company and the Optionee, and no
interpretation, modification, amendment or termination of any provision of the
Plan that would adversely affect the rights of the Optionee under or with
respect to the Plan or this Agreement shall be effective as to the Optionee
without the Optionee's prior written consent; provided, however, that
notwithstanding the foregoing, the Board or the Committee, as the case may be,
shall be expressly permitted to modify, revise or amend the Plan in any manner,
including a manner that would adversely affect the rights of the Optionee
hereunder, if such modification, revision or amendment would affect all other
holders of Options granted under the Plan in a similar manner.
10. Governing Law.
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All questions concerning the construction, interpretation and validity
of this Agreement shall be governed by and construed and enforced in accordance
with the domestic laws of the State of Florida, without giving effect to any
choice or conflict of law provision or rule (whether in the State of Florida or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Florida. In furtherance of the foregoing,
the internal law of the State of Florida will control the interpretation and
construction of this Agreement, even if under such jurisdiction's choice of law
or conflict of law analysis, the substantive law of some other jurisdiction
would ordinarily apply.
11. Counterparts.
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This Agreement may be executed in one or more counterparts, and each
such counterpart shall be deemed to be an original, but all such counterparts
together shall constitute but one agreement.
12. Entire Agreement.
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This Agreement and the Plan (and the other writings referred to
herein) constitute the entire agreement between the parties with respect to the
subject matter hereof and thereof and supersede all prior written or oral
negotiations, commitments, representations and agreements with respect thereto.
* * * * *
3
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date written hereunder.
QUALITY DISTRIBUTION, INC.
By:
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Name:
Title:
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Optionee: [______________]
Option Price: $[____]
Total Number of Shares: [____]
Dated: [_____________]
