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Exhibit 10.17
STOCK OPTION AGREEMENT
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THIS AGREEMENT is entered into effective as of the ___ day of
_____, 19__, by and between Wastequip, Inc., an Ohio corporation (the
"Company"), and ___________________ (the "Optionee").
WITNESSETH:
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WHEREAS, the Board of Directors of the Company has appointed a
Compensation Committee (the "Committee") to administer the Wastequip, Inc. Key
Employees Stock Option Plan (the "Plan"); and
WHEREAS, the Committee has determined that the Optionee, as a
Key Employee (as such term is defined in the Plan), should be granted a stock
option under the Plan upon the terms and conditions set forth in this Agreement,
and for the number of Class A Common Shares, without par value, of the Company
set forth hereinbelow (the "Shares");
NOW, THEREFORE, the Company and the Optionee hereby agree as
follows:
1. DEFINITIONS. The following terms shall have the meanings
set forth below whenever used in this instrument:
(a) The word "Affiliate" shall mean any
corporation which is, within the meaning of
Section 1563(a) of the Code, a member of a
controlled group of corporations which
includes the Company.
(b) The word "Agreement" shall mean this
instrument.
(c) The word "Board" shall mean the Board of
Directors of the Company.
(d) The word "Code" shall mean the United States
Internal Revenue Code (Title 26 of the
United States Code).
(e) The word "Committee" shall mean the
Compensation Committee appointed by the
Board.
(f) The word "Company" shall mean Wastequip,
Inc., an Ohio corporation, and any successor
thereto which shall maintain the Plan.
(g) The word "Disability" shall mean the
Optionee's "permanent and total disability"
as determined under the standards set forth
in Section 22(e)(3) of the Code.
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(h) The words "Effective Date" shall mean the
effective date of this Agreement.
(i) The word "Employee" shall mean any person
who is an employee of either the Company or
any Subsidiary.
(j) The words "Incentive Stock Option" shall
mean any Option which qualifies as an
incentive stock option under the terms of
Section 422A of the Code.
(k) The word "Option" shall mean the right and
option of the Optionee to purchase Shares
pursuant to the terms of this Agreement.
(l) The words "Option Price" shall mean the
price at which Shares may be acquired upon
the exercise of any Option.
(m) The word "Optionee" shall mean the person to
whom an Option has been granted pursuant to
this Agreement.
(n) The words "Personal Representative" shall
mean, following the Optionee's death, the
person who shall have acquired, by Will or
by the laws of descent and distribution, the
right to exercise any Option.
(o) The word "Plan" shall mean the Wastequip,
Inc. Key Employees Stock Option Plan, as it
was originally adopted and as it may later
be amended.
(p) The word "Shares" shall mean Class A Common
Shares, without par value, of the Company.
(q) The word "Subsidiary" shall mean any
corporation at least 50% of the common stock
of which is owned directly or indirectly by
the Company.
2. GRANT OF OPTION. Effective as of the date of this
Agreement, subject to all of the terms and provisions of this Agreement, the
Company grants to the Optionee the right and option to purchase all or any
lesser number of an aggregate of twenty-five thousand (25,000) Shares. The
number of Shares subject to an Incentive Stock Option, the number of Shares
subject to a nonqualified stock option, and the Option Price are as set forth
below.
(a) ________ Shares shall be subject to an
Incentive Stock Option; and
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(b) _____________________________ Shares shall
be subject to a nonqualified stock option at
an Option Price of ________ Dollars ($_____)
per Share.
3. TERM OF OPTION. Except as otherwise provided herein, the
term of the Option shall be for a period of ten (10) years from the date
hereof, and the Option shall expire at 5:00 p.m. Eastern Standard Time on the
last day of the term of the Option, or, if earlier, on the applicable expiration
date provided for in Section 5 or 6 hereof.
4. EXERCISABILITY. The Optionee shall be entitled to exercise
the Option with respect to the number of Shares indicated below on or after the
date indicated opposite such number below:
(a) Initial and Additional
Number of Shares with Total Shares with Date Beginning On
Respect to which IN- Respect to which IN- which INCENTIVE STOCK
CENTIVE STOCK OPTION CENTIVE STOCK OPTION OPTION May be
MAY BE EXERCISED MAY BE EXERCISED EXERCISED
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(b) Initial and Additional
Number of Shares with Total Shares with Date Beginning on
Respect to which NON- Respect to which NON- which NONQUALIFIED
QUALIFIED STOCK OPTION QUALIFIED STOCK OPTION STOCK OPTION May be
MAY BE EXERCISED MAY BE EXERCISED EXERCISED
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To the extent that the Option becomes exercisable with respect to any Shares, as
provided above, the Option may thereafter be exercised by the Optionee either
with respect to all or any number of such Shares at any time or from time to
time prior to the expiration of the Option. Except as provided in Section 5 or 6
hereof, the Option may not be exercised at any time unless the Optionee shall be
an Employee at such time.
5. TERMINATION OF EMPLOYMENT, ETC. So long as the Optionee
shall continue to be an Employee, the Option shall not be affected by (a) any
temporary leave of absence
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approved in writing by the Company or a Subsidiary and described in Section
1.421-7(h) of the federal income tax regulations under the Code or any lawful
successor regulations thereto, or (b) any change of duties or position
(including transfer to or from a Subsidiary). If the Optionee ceases to be an
Employee for any reason other than death or Disability, the Option may be
exercised only to the extent of the purchase rights, if any, which pursuant to
Section 4 hereof existed as of the date the Optionee ceases to be an Employee
and which have not theretofore been exercised; PROVIDED, HOWEVER, that the
Committee may in its absolute discretion determine (but shall not be under any
obligation to determine) that such purchase rights shall be deemed to include
additional Shares which are subject to the Option. Except as provided blow, upon
an Optionee's ceasing to be an Employee for any reason, the Option shall
terminate upon the earlier to occur of either (a) three (3) months (one (1) year
if the Optionee ceases to be an Employee because of death or Disability) after
the date the Optionee ceases to be an Employee, or (b) the last day of the term
of the Option. Notwithstanding the preceding provisions of this Section 5,
unless the Committee shall otherwise determine, if the Optionee ceases to be an
Employee (a) by reason of the Optionee's decision to voluntarily terminate his
employment with the Company and all Subsidiaries, or (b) pursuant to the mutual
agreement of the Company and/or a Subsidiary and the Optionee to terminate the
Employee's employment with the Company and all Subsidiaries, then the Optionee's
right to purchase Shares pursuant to the exercise of the Option shall terminate
immediately. Nothing in this Agreement shall confer upon the Optionee any right
to continue in the employ of the Company or a Subsidiary, or to serve as a
member of the Board, or to interfere with or limit either the right of the
Company or a Subsidiary to terminate his employment at any time or the right of
the shareholders of the Company to remove him as a member of the Board with or
without cause.
6. OPTIONEE'S DEATH OR DISABILITY. If, while the Optionee is
an Employee, or within three (3) months of the Optionee's having ceased to be an
Employee (other than under circumstances which resulted in the termination of
the Optionee's right to purchase Shares pursuant to the exercise of the Option),
the Optionee dies or becomes Disabled, the Option shall continue in full force
and effect and may be exercised by the Optionee or the Optionee's Personal
Representative, as the case may be, only to the extent of the purchase rights,
if any, which pursuant to Section 4 hereof existed as of the date the Optionee
ceases to be an Employee and which have not theretofore been exercised;
PROVIDED, HOWEVER, that the Option shall terminate upon the earlier to occur of
either (a) the first anniversary of the date the Optionee ceases to be an
Employee, or (b) the last day of the term of the Option.
7. DISSOLUTION, LIQUIDATION AND CERTAIN MERGERS.
Notwithstanding the provisions of Section 3 hereof, upon either the dissolution
or liquidation of the Company (but only if the distributee of substantially all
of the Company's assets upon the liquidation of the Company was not, immediately
prior to the liquidation, an Affiliate) or upon the occurrence of a merger or
consolidation in which the Company is not the surviving corporation (but only if
the corporation which is the surviving corporation of such merger or
consolidation was not, immediately prior to the merger or consolidation, an
Affiliate) and immediately following which the surviving corporation fails to
maintain the Plan, the Option shall terminate unless the surviving corporation
assumes the Option. The Company shall notify the Optionee of any such
dissolution, liquidation
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or merger at least thirty (30) days before the occurrence of such event but only
if the Option is exercisable at such time.
8. ADJUSTMENT OF NUMBER OF SHARES, ETC. In the event that
subsequent to the date of this Agreement, the outstanding Shares are, as a
result of a stock split, stock dividend, combination or exchange of shares,
exchange for other securities, reclassification, reorganization, redesignation,
merger, consolidation, recapitalization, spin-off, split-off, split-up or other
such change (including, without limitation, any transaction described in Section
425(a) of the Code), or a special dividend or other distribution to the
Company's shareholders, increased or decreased or changed into or exchanged for
a different number or kind of shares of stock or other securities of the
Company, then (i) there shall automatically be substituted for each Share
subject to the Option the number and kind of shares of stock or other securities
into which each outstanding Share shall be exchanged, (ii) the option price per
Share or unit of securities shall be increased or decreased proportionately so
that the aggregate purchase price for the securities subject to the Option shall
remain the same as immediately prior to such event, and (iii) the Committee
shall make such other adjustments to the securities subject to the Option as may
be appropriate, equitable and in compliance with the provisions of Section
425(a) of the Code to the extent applicable and any such adjustment shall be
final, binding and conclusive as to the Optionee. Any such adjustment may
provide for the elimination of fractional shares if the Committee shall so
direct.
9. EXERCISE OF OPTION. The Option may be exercised by
delivering to the Secretary of the Company at its principal office a completed
Notice of Exercise of Option (obtainable from the Secretary of the Company)
setting forth the number of Shares with respect to which the Option is being
exercised. Such Notice shall be accompanied by payment in full for the Shares.
Such payment shall be made by certified or cashier's check payable to the
Company in the amount of the aggregate purchase price for such Shares or, with
the consent of the Committee, payment may be made in whole or in part in Shares
having a fair market value on the date the Option is exercised equal to that
portion of the purchase price for which payment in cash is not made.
10. ISSUANCE OF SHARE CERTIFICATES. Subject to the last
sentence of this Section 10, upon receipt by the Company prior to expiration of
the Option of a duly completed Notice of Exercise of Option to exercise the
Option accompanied by full payment for the Shares being purchased pursuant to
such Notice (and, with respect to any Option exercised pursuant to Section 11
hereof by someone other than the Optionee, accompanied in addition by proof
satisfactory to the Committee of the right of such person to exercise the
Option), the Company shall cause to be made or otherwise delivered to the
Optionee, within thirty (30) days of such receipt, a certificate for the number
of Shares so purchased. The Optionee shall not have any of the rights of a
shareholder with respect to the Shares which are subject to the Option unless
and until a certificate representing such Shares is issued to the Optionee. The
Company shall not be required to issue any certificates for Shares upon the
exercise of the Option prior to (i) obtaining any approval from any governmental
agency which the Committee shall, in its sole discretion, determine to be
necessary or advisable, and/or (ii) at the Committee's option, the execution by
the Optionee of an instrument, in form satisfactory to the Company, which
provides that any
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Shares he shall obtain pursuant to the exercise of the Option shall be subject
to all of the terms and provisions of the Amended and Restated Shareholders
Agreement dated as of February 16, 1996, by and among the Company and certain
security holders of the Company, and/or (iii) the completion of any registration
or other qualification of the Shares under any state or federal laws or rulings
or regulations of any governmental body or private organization (including,
without limitation, stock exchanges) which the Committee shall, in its sole
discretion, determine to be necessary or advisable, or the determination by the
Committee, in its sole discretion, that any registration or other qualification
of the Shares is not necessary or advisable.
11. SUCCESSORS IN INTEREST, ETC. This Agreement shall be
binding upon and inure to the benefit of any successor of the Company and the
heirs, estate, and Personal Representative of the Optionee. The Option shall not
be transferable other than by Will or the laws of descent and distribution, and
the Option may be exercised during the lifetime of the Optionee only by the
Optionee; PROVIDED, HOWEVER, that a guardian or other legal representative who
has been duly appointed for the Optionee may exercise the Option on behalf of
the Optionee. A deceased Optionee's Personal Representative shall act in the
place and stead of the deceased Optionee with respect to exercising an Option or
taking any other action pursuant to this Agreement.
12. PROVISIONS OF PLAN CONTROL. This Agreement is subject to
all of the terms, conditions, and provisions of the Plan and to such rules,
regulations, and interpretations relating to the Plan as may be adopted by the
Committee and as may be in effect from time to time. A copy of the Plan is
attached hereto as Exhibit A and is incorporated herein by reference. In the
event and to the extent that this Agreement conflicts with 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.
13. NO LIABILITY UPON DISTRIBUTION OF SHARES. The liability of
the Company under this Agreement and any distribution of Shares made hereunder
is limited to the obligations set forth herein with respect to such distribution
and no term or provision of this Agreement shall be construed to impose any
liability on the Company or the Committee in favor of any person with respect to
any loss, cost or expense which the person may incur in connection with or
arising out of any transaction in connection with this Agreement.
14. WITHHOLDING. The Optionee agrees that the Company may make
appropriate provision for tax withholding with respect to the transactions
contemplated by this Agreement, including such withholding as may be appropriate
with respect to any disqualifying disposition of an Incentive Stock Option.
15. NOTICE OF DISQUALIFYING DISPOSITION. The Optionee agrees
that if he should dispose of any Shares acquired upon the exercise of an
Incentive Stock Option, including a disposition by sale, exchange, gift or
transfer of legal title within two (2) years after the date such Incentive Stock
Option was granted to the Optionee or within one (1) year after the transfer of
such Shares to the Optionee upon the exercise of such Incentive Stock Option,
the Optionee shall notify the Company within three (3) days after such
disposition.
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16. CAPTIONS. The captions and section numbers appearing in
this Agreement are inserted only as a matter of convenience. They do not define,
limit, construe or describe the scope or intent of the provisions of this
Agreement.
17. NUMBER. The use of the singular or plural herein shall not
be restrictive as to number and shall be interpreted in all cases as the context
shall require.
18. GENDER. The use of the feminine, masculine or neuter
pronoun shall not be restrictive as to gender and shall be interpreted in all
cases as the context may require.
19. INVESTMENT REPRESENTATION. The Optionee hereby represents
and warrants that any Shares which he may acquire by virtue of the exercise of
the Option shall be acquired for investment purposes only and not with a view to
distribution or resale; PROVIDED, HOWEVER, that this restriction shall become
inoperative in the event the Shares which are subject to the Option shall be
registered under the Securities Act of 1933, as amended, or in the event there
is presented to the Company evidence satisfactory to the Company to the effect
that the offer or sale of the Shares which were acquired upon exercise of the
Option may lawfully be made without registration under the Securities Act of
1933, as amended.
20. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio, without giving
effect to the conflict of law principles thereof, and any applicable federal
law.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed on its behalf by its duly authorized officer, and the Optionee has
hereunto set his hand, all as of the day and year first above written.
WASTEQUIP, INC.
(the "Company")
By:_________________________________
Xxxxxx X. Xxxxxxxxx
President and C.E.O.
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(the "Optionee")
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