NONSTATUTORY STOCK OPTION GRANT AGREEMENT
Exhibit
10.41
I.C.
XXXXXX & COMPANY, INC. AMENDED AND RESTATED OMNIBUS STOCK
PLAN
This Grant Agreement (the “Agreement”) is
entered into with effect from December 27, 2005 by and between I.C. XXXXXX
&
COMPANY, INC., a Delaware corporation (the “Corporation”), and Xxxxx X. Xxxxx
(“Optionee”).
WHEREAS, the Corporation’s wholly owned
subsidiary, I.C. Xxxxxx & Company LP (the “Company”), has entered into an
employment agreement dated as of the 19th day of December 2005 with the Optionee
(the “Employment Agreement”); and
WHEREAS, pursuant to the I.C. Xxxxxx &
Company, Inc. Amended and Restated Omnibus
Stock Plan (the “Plan”), the
Compensation Committee of the Board[1]
determined, pursuant to a unanimous written consent dated as of and with
effect
from December 27, 2005, 2005 (the “Grant Date”), to grant an option to the
Optionee, subject to the provisions of the Plan and this Agreement, to purchase
up to 100,000 shares of the Common Stock, par value of $.0001 per share,
of the
Corporation (the “Common Stock”) at the exercise price in effect under the Plan
for the Grant Date,
NOW, THEREFORE, in consideration of the
premises, mutual covenants and agreements herein, the Corporation and Optionee
agree as follows:
ARTICLE
1
GRANT
OF OPTION
Section 1.1 Grant of
Option. The Corporation hereby grants to
Optionee, pursuant to the provisions of the Plan, a non-qualified stock option
to purchase from the Corporation, at a price of $4.40 per share (the “Exercise
Price”), up to 100,000 shares of Common Stock, subject to the provisions of this
Agreement (the “Option”). The Option shall expire at 5:00 p.m. Eastern
Time on December 26, 2010 (the “Expiration Date”), unless fully exercised or
terminated earlier pursuant to this Agreement. Unless stated otherwise
herein, capitalized terms in this Agreement shall have the meaning set forth
in
the Plan.
ARTICLE
2
VESTING
Section 2.1 Vesting
Schedule. Unless the Option has earlier terminated pursuant
to the provisions of this Agreement, the Optionee’s right to purchase Common
Stock pursuant to the Option shall vest ratably on the first, second and
third
anniversaries of the Grant Date, (i) the Optionee shall have been in the
continuous employ of the Company during the period commencing on the Effective
Date and continuing through each date on which Executive exercises the Option
or
the last date of the Initial Term, whichever shall occur first; and (ii)
the
Optionee’s employment shall not be terminated for “Cause” (as such term is
defined in the Employment Agreement) at any time during the Option Term.
Section 2.2 Acceleration of
Vesting. Unless the Option has earlier terminated pursuant to
the provisions of this Agreement, vesting of the Option granted to Optionee
hereunder shall be accelerated so that the unvested portion of the Option
shall
become 100% vested in Optionee upon the earliest to occur of:
(i) Optionee’s termination of employment or consulting relationship due to
Disability, as defined in Article 4 hereunder; (ii) termination of
Optionee’s employment or consulting relationship with the Corporation as a
result of Optionee’s death; or (iii) a Change of Control that occurs while
Optionee is employed by or in a consulting relationship with the Corporation
or
an Affiliate.
ARTICLE
3
EXERCISE
OF OPTION
Section 3.1 Exercisability of
Option. Pursuant to the terms of this Agreement, the Option
shall be exercisable, for a period of five years commencing on the Grant
Date
(the “Option Term”), provided that, the Optionee’s employment shall not be
terminated for “Cause;” and further provided, that in the event that vesting of
the Option shall be accelerated pursuant to Section 2.2 hereof, Optionee
(or the
legal representative of his estate) shall be entitled to exercise the Option,
to
the extent that it shall not have been exercised prior thereto, during the
one
year period ending on the date immediately preceding the first anniversary
of
the Termination Date or such shorter period as shall remain until the Expiration
Dates
Section 3.2 Manner of
Exercise. The Option may be exercised, in whole or in part,
by delivering written notice to the Corporation’s Secretary in such form as the
Administrator may require from time to time; provided, however, that the
Option
may not be exercised at any one time as to fewer than ten shares (or such
lesser
number of shares as to which the Option is then exercisable). Such notice
shall specify the number of shares of Stock subject to the Option as to which
the Option is being exercised, and shall be accompanied by full payment of
the
Exercise Price for such shares in accordance with this Section 3.2. The exercise
shall be effective upon receipt by the Corporation’s Secretary of such written
notice accompanied by the required payment.
Payment of the Exercise Price shall be made
(a) in cash (or via certified or cashier’s check, or money order);
(b) by a broker-assisted cashless exercise in accordance with Regulation T
of the Board of Governors of the Federal Reserve System and the provisions
of
the next paragraph; or (c) by any combination of the foregoing. In
the Administrator’s sole and absolute discretion, the Administrator may
authorize payment of the Exercise Price to be made, in whole or in part,
by such
other means as the Administrator may prescribe. The Option may be
exercised only in multiples of whole shares and no fractional shares shall
be
issued.
If the Stock is publicly traded on a national
exchange, payment of the exercise price may be made, in whole or in part,
subject to such limitations as the Administrator may determine, by delivery
of a
properly executed exercise notice, together with irrevocable instructions:
(i) to a brokerage firm approved by the Corporation to deliver promptly to
the
Corporation the aggregate amount of sale or loan proceeds to pay the exercise
price and any withholding tax obligations that may arise in connection with
the
exercise, and (ii) to the Corporation to deliver the certificates for such
purchased shares directly to such brokerage firm.
Section 3.3 Issuance of
Shares and Payment of Cash upon Exercise. Upon exercise of
the Option, in whole or in part, in accordance with the terms of this Agreement
and upon payment of the Exercise Price for the shares of Stock as to which
the
Option is exercised, the Corporation shall issue to Optionee, the brokerage
firm
specified in the Optionee’s delivery instructions pursuant to a broker-assisted
cashless exercise, or such other person exercising the Option, as the case
may
be, the number of shares of Stock so paid for, in the form of fully paid
and
nonassessable Stock and shall deliver certificates therefor as soon as
practicable thereafter. The stock certificates for any shares of Stock
issued hereunder shall, unless such shares are registered or an exemption
from
registration is available under applicable federal and state law, bear a
legend
restricting transferability of such shares.
ARTICLE
4
TERMINATION
OF OPTION
Section 4.1 Termination, In
General. The Option granted hereby shall terminate and be of
no force or effect after the Expiration Date set forth in Section 1.1, unless
terminated prior to such time as provided in accordance with the provisions
of
the Employment Agreement. For purposes of the Option granted by this
Agreement, “Termination Date” shall have the applicable meaning ascribed thereto
pursuant to the Employment Agreement.
Section 4.2 Termination of
Employment for Cause or by the Optionee Without Cause. In the
event that the Optionee’s employment with the Company, any successor entity
thereto or any of the Corporation’s other subsidiaries is terminated for Cause
pursuant to Section 10 of the Employment Agreement, or by the Optionee without
Cause pursuant to Section 12 of the Employment Agreement, the Option granted
hereby shall terminate on the Termination Date with respect to all shares
of
Common Stock not purchased hereunder prior to such Termination Date. For
purposes of this Agreement, “Cause” shall have the meaning attributed thereto by
Section 10(a) of the Employment Agreement.
Section 4.3 Upon Optionee’s
Death. Unless the Option granted hereby has earlier
terminated for Cause, by the giving of notice of such termination by the
Optionee without Cause or due to the non-extension of the Employment Agreement
beyond the Initial Term (as such term is defined in the Employment Agreement),
upon Optionee’s death, Optionee's executor, personal representative, or the
person(s) to whom the Option shall have been transferred by will or the laws
of
descent and distribution, as the case may be, shall be entitled to exercise
the
Option, and purchase any and all shares that remain issuable thereunder,
provided such exercise occurs within one year after the date of Optionee’s
death, but not later than the Expiration Date of the Option. Unless sooner
terminated, the Option shall terminate upon the expiration of such one
yearperiod.
Section 4.4 Non-Extension of
the Employment Agreement Beyond its Initial Term. In the
event that either party to the Employment Agreement gives notice to the other
of
its or his intention not to extend the Employment Agreement beyond the end
of
the Initial Term, and the Optionee shall be employed by the Company on the
last
day of the Initial Term, he shall be entitled to exercise the Option granted
hereby, and purchase any and all shares that remain issuable thereunder,
during
the six month period ending on June 30, 2009
Section 4.5 Termination of
Employment For any Other Reason. In the event that Optionee’s
employment is terminated (a) by the Company without cause pursuant to Section
11
of the Employment Agreement; (b) due to the Optionee’s resignation for good
reason pursuant to Section 13 of the Employment Agreement; or (c) as a result
of
a Change of Control pursuant to Section 14 of the Employment Agreement, Optionee
shall be entitled to exercise the Option granted hereby, and purchase any
and
all shares that remain issuable thereunder, provided such exercise occurs
within
one year after the Termination Date, but not later than the Expiration Date
of
the Option. Unless sooner terminated, the Option shall terminate upon the
expiration of such one yearperiod.
ARTICLE
5
ADJUSTMENTS;
BUSINESS COMBINATIONS
Section 5.1 Adjustments for
Events Affecting Common Stock. In the event of changes in the
Common Stock of the Corporation by reason of any stock dividend, split-up,
recapitalization, merger, consolidation, business combination or exchange
of
shares and the like, the Administrator shall, in its discretion, make
appropriate adjustments to the number, kind and price of shares covered by
the
Option, and shall, in its discretion and without the consent of the Optionee,
make any other adjustments in the Option, including but not limited to reducing
the number of shares subject to the Option or providing or mandating alternative
settlement methods such as settlement of the Option in cash or in shares
of
Common Stock or other securities of the Corporation or of any other entity,
or
in any other matters which relate to the Option as the Administrator shall,
in
its sole discretion, determine to be necessary or appropriate.
Section 5.2 Adjustments for
Unusual Events. The Administrator is authorized to make, in
its discretion and without the consent of the Optionee, adjustments in the
terms
and conditions of, and the criteria included in, the Option in recognition
of
unusual or nonrecurring events affecting the Corporation, or the financial
statements of the Corporation or any Subsidiary, or of changes in applicable
laws, regulations, or accounting principles, whenever the Administrator
determines that such adjustments are appropriate in order to prevent dilution
or
enlargement of the benefits or potential benefits intended to be made available
under the Option or the Plan.
Section 5.3 Binding Nature of
Adjustments. Adjustments under this Article 5 will be made by
the Administrator, whose determination as to what adjustments, if any, will
be
made and the extent thereof will be final, binding and conclusive. No
fractional shares will be issued pursuant to the Option on account of any
such
adjustments.
ARTICLE
6
MISCELLANEOUS
Section 6.1 Non-Guarantee of
Employment. Nothing in the Plan or this Agreement shall alter
the employment status of Optionee, nor be construed as a contract of employment
between the Corporation, the Company, any successor entity thereto or any
of the
Corporation’s other subsidiaries, and Optionee, or as a contractual right of
Optionee to continue in the employ of the Company, or as a limitation of
the
right of the Company, any successor entity thereto or any of the Corporation’s
other subsidiaries to discharge Optionee at any time with or without cause
or
notice.
Section 6.2 No Rights of
Stockholder. Optionee shall not have any of the rights of a
stockholder with respect to the shares of Stock that may be issued upon the
exercise of the Option until such shares of Stock have been issued to him
upon
the due exercise of the Option. No adjustment shall be made for dividends
or distributions or other rights for which the record date is prior to the
date
such certificate or certificates are issued.
Section 6.3 Non-Qualified
Nature of Option. This Agreement is intended to be an
agreement concerning a stock option arrangement which does not qualify
under section 422 of the Internal Revenue Code, and this Agreement shall
be so
construed. Optionee acknowledges that, upon exercise of the Option,
Optionee will recognize taxable income in an amount equal to the excess of
the
then Fair Market Value of the shares over the Exercise Price and must comply
with the provisions of Section 6.6 of this Agreement with respect to any
tax
withholding obligations that arise as a result of such exercise.
Section 6.4 Confidential
Information. In consideration of the Option granted to the
Optionee pursuant to this Agreement, Optionee agrees and covenants that,
except
as specifically authorized by the Corporation, the Optionee will keep
confidential any trade secrets or confidential or proprietary information
of the
Corporation or any Affiliate which are now or which hereafter may become
known
to Optionee as a result of Optionee's employment by the Corporation, the
Company, any successor entity thereto or any of the Corporation’s other
subsidiaries, and shall not at any time, directly or indirectly, disclose
any
such information to any person, firm, corporation or other entity, or use
the
same in any way other than in connection with the business of the Corporation
or
any Affiliate, at all times during and after Optionee's employment.
Section 6.5 The Corporation's
Rights. The existence of the Option shall
not affect in any way the right or power of the Corporation or its stockholders
to make or authorize any or all adjustments, recapitalizations, reorganizations
or other changes in the Corporation's capital structure or its business,
or any
merger or consolidation of the Corporation, or any issue of bonds, debentures,
preferred or other stocks with preference ahead of or convertible into, or
otherwise affecting the Stock or the rights thereof, or the dissolution or
liquidation of the Corporation, or any sale or transfer of all or any part
of
the Corporation's assets or business, or any other corporate act or proceeding,
whether of a similar character or otherwise.
Section 6.6 Withholding of
Taxes. The Corporation, the Company, any successor entity
thereto or any of the Corporation’s other subsidiaries shall have the right to
deduct from any compensation or any other payment of any kind (including
withholding the issuance of shares of Stock) due Optionee the amount of any
foreign, federal, state or local taxes required by law to be withheld as
the
result of the exercise of the Option or the lapsing of any restriction with
respect to any shares of Stock acquired on exercise of the Option; provided,
however, that the value of the shares of Stock withheld may not exceed the
statutory minimum withholding amount required by law. In lieu of such
deduction, the Administrator may require Optionee to make a cash payment
to the
Corporation or an Affiliate equal to the amount required to be withheld.
If Optionee does not make such payment when requested, the Corporation may
refuse to issue any Stock certificate under the Plan until arrangements
satisfactory to the Administrator for such payment have been made.
Section 6.7
Optionee. Whenever the word
“Optionee” is used in any
provision of this Agreement under circumstances where the provision should
logically be construed to apply to the estate, personal representative or
beneficiary to whom the Option may be transferred by will or by the laws
of
descent and distribution, the word “Optionee” shall be deemed to include such
person.
Section 6.8
Nontransferability of Option. The Option shall
be
nontransferable otherwise than by will or the laws of descent and distribution
and during the lifetime of Optionee, the Option may be exercised only by
Optionee or, during the period Optionee is under a legal disability, by
Optionee’s guardian or legal representative. Except as provided above, the
Option may not be assigned, transferred, pledged, hypothecated or disposed
of in
any way (whether by operation of law or otherwise) and shall not be subject
to
execution, attachment or similar process.
Section 6.9
Notices. All notices and
other communications made or given
pursuant to this Agreement shall be in writing and shall be sufficiently
made or
given if hand delivered or mailed by certified mail, addressed to Optionee
at
the address contained in the records of the Corporation, or addressed to
the
Administrator, care of the Corporation for the attention of its Corporate
Secretary at its principal office or, if the receiving party consents in
advance, transmitted and received via telecopy or via such other electronic
transmission mechanism as may be available to the parties.
Section 6.10 Entire
Agreement. This Agreement contains the entire agreement
between the parties with respect to the subject matter contained herein.
Any oral or written agreements, representations, warranties, written
inducements, or other communications made prior to the execution of this
Agreement shall be void and ineffective for all purposes.
Section 6.11
Amendments. This Agreement
may not be modified, except as
provided in the Plan or in a written document signed by each of the parties
hereto.
Section 6.12 Conformity with
Plan. Except for the provisions of this Agreement that are
contrary to the provsions of the Plan, (a) this Agreement is intended to
conform
in all respects with, and is subject to all applicable provisions of, the
Plan,
which is incorporated herein by reference; and (b) any inconsistencies between
this Agreement and the Plan shall be resolved in accordance with the terms
of
this Agreement. In the event of any ambiguity in this Agreement or any
matters as to which this Agreement is silent, the Plan shall govern. A
copy of the Plan is available upon request to the Administrator.
Section 6.13 Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, other than the conflict
of
laws principles thereof.
Section 6.14
Headings. The headings in
this Agreement are for reference
purposes only and shall not affect the meaning or interpretation of this
Agreement.
IN WITNESS WHEREOF, the Corporation has
caused
this Agreement to be executed by its duly authorized officer as of the date
first above written.
I.C. XXXXXX & COMPANY, INC.
By: /s/ Xxxxx
X Xxxxx
Xxxxx X. Xxxxx, Chief Executive Officer
The undersigned hereby acknowledges that
he/she has carefully read this Agreement and the Plan and agrees to be bound
by
all of the provisions set forth in such documents.
OPTIONEE
/s/ Xxxxx X.
Xxxxx
Date: January 9,
2006
CORPORATE SECRETARY
I.C. XXXXXX & COMPANY,
INC.
0000 XXXX XXXXXX
XXXXXXXXX, XXXXXXXX
00000
Gentlemen:
I hereby elect to exercise the Nonstatutory
Stock Option Grant Agreement dated December 27, 2005 (the “Option”) made
by I.C. XXXXXX & COMPANY, INC. (the “Corporation”), subject to all the terms
and provisions of the Option and the I.C. XXXXXX & COMPANY, INC. AMENDED AND
RESTATED OMNIBUS STOCK PLAN. Pursuant to this election, I wish to purchase
____________ shares of Common Stock of the Corporation at a price of
$___________ per share.
Enclosed
is payment for such shares in the amount of $_____________ in the form of:
£
Cash
£ Certified or Cashier’s
Check £ Money
Order
£
Irrevocable Broker-Assisted Cashless Exercise Instructions
I understand that my election will be
effective the date this election notice, together with the cash, check or other
payment of the purchase price, is received by the Company as indicated
below.
My
address of record is:
And
my
Social Security Number is:
Date:________________________
______________________________________
(Optionee)
Received by I.C. XXXXXX & COMPANY, INC. on
___________________________, ______
By:
Title:
[1]
Unless
otherwise specified, all capitalized terms employed herein without definition
shall have the meanings ascribed therto in the Employment
Agreement.
