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Exhibit 10.17
STOCK OPTION AGREEMENT
(Non-Qualified Stock Options)
THIS AGREEMENT is made to be effective as of __________________, by and
between X. X. Xxxxx Corporation, an Ohio corporation (the "COMPANY"), and
_____________ (the "OPTIONEE").
WITNESSETH:
WHEREAS, the Board of Directors of the COMPANY has adopted and the
shareholders of the COMPANY have approved the X. X. Xxxxx Corporation 1994 Stock
Option Plan (the "PLAN"); and
WHEREAS, pursuant to the provisions of the PLAN, the Board of Directors of
the COMPANY has appointed a Compensation Committee (the "COMMITTEE") to
administer the PLAN and the COMMITTEE has determined that an option to acquire
common shares, $1.00 par value (the "COMMON SHARES"), of the COMPANY should be
granted to the OPTIONEE upon the terms and conditions set forth in this
Agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereto make
the following agreement, intending to be legally bound thereby:
(1) Grant of OPTION. The COMPANY hereby grants to the OPTIONEE an option
(the "OPTION") to purchase _____ COMMON SHARES of the COMPANY. The OPTION is not
intended to qualify as an incentive stock option under Section 422 of the
Internal Revenue Code of 1986, as amended (the "CODE").
(2) Terms and Conditions of the OPTION.
(A) OPTION Price. The purchase price (the "OPTION PRICE") to be paid by
the OPTIONEE to the COMPANY upon the exercise of the OPTION shall be $_____ per
share, subject to adjustment as provided in Section 3.
(B) Exercise of the OPTION. The OPTION may not be exercised until the
OPTIONEE shall have completed twelve months of continuous employment with the
COMPANY and/or its subsidiaries immediately following the date hereof.
Thereafter, the OPTION may be exercised as follows:
(i) at any time after such twelve-month period, as to ____ of the
COMMON SHARES subject to the OPTION;
(ii) at any time after twenty-four months from the date of this
Agreement, as to an additional ____ of the COMMON SHARES subject to the OPTION;
(iii) at any time after thirty-six months from the date of this
Agreement, as to an additional ____ of the COMMON SHARES subject to the OPTION;
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(iv) at any time after forty-eight months from the date of this
Agreement, as to an additional ____ of the COMMON SHARES subject to the OPTION;
and
(iv) at any time after sixty months from the date of this
Agreement, as to the remaining ____ of the COMMON SHARES subject to the OPTION.
Subject to the other provisions of this Agreement, if the OPTION
becomes exercisable as to certain COMMON SHARES, it shall remain exercisable as
to those COMMON SHARES until the date of expiration of the OPTION term. The
COMMITTEE may, but shall not be required to (unless otherwise provided in this
Agreement), accelerate the schedule of the time or times when the OPTION may be
exercised.
The grant of the OPTION shall not confer upon the OPTIONEE any right to
continue in the employment of the COMPANY nor limit in any way the right of the
COMPANY to terminate the employment of the OPTIONEE at any time in accordance
with law or the COMPANY'S governing corporate documents.
(C) OPTION Term. The OPTION shall in no event be exercisable after the
expiration of ten (10) years from the date of this Agreement.
(D) Method of Exercise. The OPTION may be exercised by giving written
notice of exercise to the COMMITTEE in care of the Treasurer of the COMPANY
stating the number of full COMMON SHARES subject to the OPTION in respect of
which it is being exercised. Payment for all such COMMON SHARES shall be made to
the COMPANY at the time the OPTION is exercised in United States dollars in cash
(including check, bank draft or money order). If permitted by the COMMITTEE,
payment for such COMMON SHARES may be made (i) by delivery of COMMON SHARES of
the COMPANY already owned by the OPTIONEE and having a Fair Market Value (as
that term is defined in the PLAN) on the date of delivery equal to the OPTION
PRICE, or (ii) by delivery of a combination of cash and already owned COMMON
SHARES. After payment in full for the COMMON SHARES purchased under the OPTION
has been made, the COMPANY shall take all such action as is necessary to deliver
appropriate share certificates evidencing the COMMON SHARES purchased upon the
exercise of the OPTION as promptly thereafter as is reasonably practicable.
(E) Satisfaction of Taxes and Tax Withholding Requirements. The
COMMITTEE shall determine the appropriate arrangements for the satisfaction by
the COMPANY and the OPTIONEE of all federal, state, local or other income,
excise or employment taxes or tax withholding requirements applicable to the
exercise of the OPTION or the later disposition of the COMMON SHARES or other
property thereby acquired.
(3) Adjustments and Changes in the COMMON SHARES.
(A) In the event that the outstanding COMMON SHARES of the COMPANY
shall be changed into or exchanged for a different kind of shares or other
securities of the COMPANY or of another corporation or for any other property
(whether by reason of merger, consolidation, recapitalization, reclassification,
split-up, combination of shares or otherwise) or if the number of such COMMON
SHARES shall be increased through the payment of a stock dividend, then unless
such change results in the termination of all outstanding options granted
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pursuant to the PLAN, there shall be substituted for or added to each COMMON
SHARE of the COMPANY subject to the OPTION, the number and kind of shares or
other securities or other property into which each outstanding COMMON SHARE of
the COMPANY shall be changed, or for which each such COMMON SHARE shall be
exchanged, or to which the holder of each such COMMON SHARE shall be entitled,
as the case may be. The OPTION shall also be appropriately amended as to the
OPTION PRICE and other terms as may be necessary to reflect the foregoing
events. The number of COMMON SHARES that will vest on the dates set forth in
Section 2(B) shall be appropriately adjusted to reflect any such change in the
outstanding COMMON SHARES. In the event there shall be any other change in the
number or kind of the outstanding shares of the COMPANY, or of any shares or
other securities or other property into which such shares shall have been
changed, or for which they shall have been exchanged, then if the COMMITTEE
shall, in its sole discretion, determine that such change equitably requires an
adjustment in the OPTION, such adjustment shall be made by the COMMITTEE in
accordance with such determination. Fractional shares resulting from any
adjustment in the OPTION pursuant to this Section 3(A) shall be rounded down to
the nearest whole number of shares.
(B) Notice of any adjustment pursuant to this Section 3 shall be given
by the COMPANY to the OPTIONEE.
(4) Acceleration of OPTIONS.
(A) In the event that the COMPANY or its shareholders enter into one or
more agreements to dispose of all or substantially all of the assets or fifty
percent (50%) or more of the outstanding capital stock of the COMPANY by means
of sale (whether as a result of a tender offer or otherwise), merger,
reorganization or liquidation in one or a series of related transactions (each,
an "ACCELERATION EVENT"), then the OPTION shall become exercisable during the
fifteen (15) days immediately prior to the scheduled consummation of the
ACCELERATION EVENT with respect to the full number of COMMON SHARES subject to
the OPTION; provided, however, that no such ACCELERATION EVENT will occur in the
event that (i) the primary purpose of the transaction is to change the COMPANY'S
domicile solely within the United States, (ii) the terms of the agreement(s)
require as a prerequisite for the consummation of the transaction that each
option granted by the COMPANY pursuant to the PLAN either be assumed by the
successor corporation or parent thereof or be replaced with a comparable option
to purchase shares of capital stock of the successor corporation or parent
thereof, or (iii) the transaction is approved by a majority of the members of
the Board of Directors of the COMPANY who had either been in office for more
than twelve (12) months prior to such transaction or had been elected, or
nominated for election by the COMPANY's shareholders, by the vote of
three-fourths of the directors then still in office who were directors at the
beginning of such twelve-month period; and provided further that any exercise of
the OPTION during such fifteen (15) day period shall be conditioned upon the
consummation of such transaction and shall be effective only immediately before
such consummation, except to the extent that the OPTIONEE may indicate, in
writing, that such exercise is unconditional with regard to all or part of the
unaccelerated portion of the OPTION. Upon consummation of the ACCELERATION
EVENT, the OPTION, whether or not accelerated, shall terminate and cease to be
exercisable, unless assumed by the successor corporation or parent thereof.
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(B) In the event of the occurrence of an ACCELERATION EVENT, if the
OPTIONEE is subject to the filing requirements imposed under Section 16(a) of
the Securities Exchange Act of 1934 with respect to the COMPANY, the OPTIONEE
shall receive a payment of cash equal to the difference between the aggregate
"Fair Value" of the COMMON SHARES subject to such accelerated OPTION and the
aggregate OPTION PRICE of such COMMON SHARES. Notwithstanding the provisions of
the foregoing sentence, no payment of cash shall be made in respect of the
accelerated OPTION unless a period of at least six (6) months has elapsed from
the date of grant of the OPTION. For purposes of this Section 4(B), "Fair Value"
shall mean the highest aggregate fair market value of the subject COMMON SHARES
during the 60-day period immediately preceding the date of the consummation of
the ACCELERATION EVENT. Payment of said cash shall be made within ten (10) days
after said consummation of the ACCELERATION EVENT. The foregoing payments under
this section 4(B) shall be made in lieu of and in full discharge of any and all
obligations of the COMPANY in respect of the OPTION.
(C) The grant of this OPTION shall not affect in any way the right of
the COMPANY to adjust, reclassify, reorganize, or otherwise change its capital
or business structure or to merge, consolidate, dissolve, liquidate or sell or
transfer all or any part of its business or assets.
(5) Non-Assignabilitv of OPTION. The OPTION shall not be assignable or
otherwise transferable by the OPTIONEE except by will or by the laws of descent
and distribution. The OPTION may not be exercised during the lifetime of the
OPTIONEE except by him, his guardian or legal representative.
(6) Substitution for OPTION. The COMMITTEE shall have the authority to
effect, at any time and from time to time, with the consent of the OPTIONEE, the
cancellation of the OPTION and the grant in substitution therefor of one or more
new options under the PLAN covering the same or a different number of COMMON
SHARES.
(7) Exercise After Termination of Employment.
(A) Except as otherwise provided in this Agreement, the OPTION shall be
exercisable only by the OPTIONEE, shall be exercisable only while the OPTIONEE
is in the employment of the COMPANY and then only if the OPTION has become
exercisable by its terms, and if not exercisable by its terms at the time the
OPTIONEE ceases to be in the employment of the COMPANY, shall immediately expire
on the date of termination of employment.
(B) If the OPTION is exercisable by its terms at the time the OPTIONEE
ceases to be in the employment of the COMPANY other than by reason of the death,
permanent disability or normal retirement of the OPTIONEE, the OPTION must be
exercised on or before the earlier of three (3) months after the date of
termination of employment or the fixed expiration date of the OPTION after which
period the OPTION shall expire. Notwithstanding the foregoing, if the OPTIONEE's
employment is terminated for willful, deliberate or gross misconduct (such as,
for example, dishonesty), the OPTION shall, to the extent not previously
exercised, expire immediately upon such termination.
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(C) In the event of the death of the OPTIONEE (i) while in the
employment of the COMPANY or (ii) within three (3) months after his termination
of employment other than for other than will, deliberate or gross misconduct,
the unexercised portion of the OPTION (whether or not then exercisable by its
terms) shall become immediately exercisable by his estate for a period ending on
the earlier of the fixed expiration date of the OPTION or twelve months after
the date of death, after which period the OPTION shall expire. For purposes
hereof, the estate of an OPTIONEE shall be defined to include the legal
representatives thereof or any person who has acquired the right to exercise the
OPTION by reason of the death of the OPTIONEE.
(D) In the event of the termination of employment of the OPTIONEE by
reason of the "permanent disability" of the OPTIONEE, the unexercised portion of
the OPTION (whether or not then exercisable by its terms) shall become
exercisable for a period ending on the earlier of the fixed expiration date of
the OPTION or twelve (12) months from the date of termination, after which
period the OPTION shall expire. For purposes hereof, "permanent disability"
shall be deemed to be the inability of the OPTIONEE to perform the duties of his
job with the COMPANY because of a physical or mental disability as evidenced by
the opinion of a COMPANY-approved doctor of medicine licensed to practice
medicine in the United States of America.
(E) In the event of the termination of employment of the OPTIONEE by
reason of the "normal retirement" of the OPTIONEE, the unexercised portion of
the OPTION (whether or not then exercisable by its terms) granted to the
OPTIONEE on or before his 65th birthday shall become immediately exercisable for
a period ending on the earlier of the fixed expiration date of the OPTION or
twelve (12) months after the date of death, after which period the OPTION shall
expire. Also, in the event of the "normal retirement" of the OPTIONEE, the
unexercised portion of the OPTION (whether or not then exercisable by its terms)
granted to the OPTIONEE after his 65th birthday and held for a period of at
least twelve (12) consecutive months of active employment with the COMPANY after
the date of grant shall become immediately exercisable for a period ending on
the earlier of the fixed expiration date of the OPTION or twelve (12) months
after the date of death, after which period the OPTION shall expire. For
purposes hereof, "retirement" shall be deemed to be "normal retirement" if the
OPTIONEE is at least 65 years of age and has completed at least five (5)
consecutive years of employment with the COMPANY at the date of retirement.
(8) Restrictions on Transfers of COMMON SHARES. Anything contained in this
Agreement or elsewhere to the contrary notwithstanding, the COMPANY may postpone
the issuance and delivery of COMMON SHARES upon any exercise of the OPTION until
completion of any stock exchange listing or registration or other qualification
of such COMMON SHARES under any state or federal law, rule or regulation as the
COMPANY may consider appropriate; and may require the OPTIONEE when exercising
the OPTION to make such representations and furnish such information as the
COMPANY may consider appropriate in connection with the issuance of the COMMON
SHARES in compliance with applicable law.
COMMON SHARES issued and delivered upon exercise of the OPTION shall be
subject to such restrictions on trading, including appropriate legending of
certificates to that
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effect, as the COMPANY, in its discretion, shall determine are necessary to
satisfy applicable legal requirements and obligations.
(9) Rights of OPTIONEE as Shareholder. The OPTIONEE shall have no rights as
a shareholder of the COMPANY with respect to any COMMON SHARES of the COMPANY
covered by the OPTION until the date of issuance of a certificate to him
evidencing such COMMON SHARES.
(10) PLAN as Controlling. All terms and conditions of the PLAN applicable
to the OPTION which are not set forth in this Agreement shall be deemed
incorporated herein by reference. In the event that any term or condition of
this Agreement is inconsistent with the terms and conditions of the PLAN, the
PLAN shall be deemed controlling.
(11) Government Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio.
(12) Rights and Remedies Cumulative. All rights and remedies of the COMPANY
and of the OPTIONEE enumerated in this Agreement shall be cumulative and, except
as expressly provided otherwise in this Agreement, none shall exclude any other
rights or remedies allowed by law or in equity, and each of said rights or
remedies may be exercised and enforced concurrently.
(13) Captions. The captions contained in this Agreement are included only
for convenience of reference and do not define, limit, explain or modify this
Agreement or its interpretation, construction or meaning and are in no way to be
construed as a part of this Agreement.
(14) Severability. If any provision of this Agreement or the application of
any provision hereof to any person or any circumstance shall be determined to be
invalid or unenforceable, then such determination shall not affect any other
provision of this Agreement or the application of said provision to any other
person or circumstance, all of which other provisions shall remain in full force
and effect, and it is the intention of each party to this Agreement that if any
provision of this Agreement is susceptible of two or more constructions, one of
which would render the provision enforceable and the other or others of which
would render the provision unenforceable, then the provision shall have the
meaning which renders it enforceable.
(15) Number and Gender. When used in this Agreement, the number and gender
of each pronoun shall be construed to be such number and gender as the context,
circumstances or its antecedent may required.
(16) Entire Agreement. This Agreement constitutes the entire agreement
between the COMPANY and the OPTIONEE in respect of the subject matter of this
Agreement, and this Agreement supersedes all prior and contemporaneous
agreements between the parties hereto in connection with the subject matter of
this Agreement. No officer, employee or other servant or agent of the COMPANY,
and no servant or agent of the OPTIONEE, is authorized to make any
representation, warranty or other promise not contained in this Agreement. No
change,
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termination or attempted waiver of any of the provisions of this Agreement shall
be binding upon any party hereto unless contained in a writing signed by the
party to be charged.
(17) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns (including successive, as well as
immediate, successors and assigns) of the COMPANY.
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signatures on following page]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the date first above written.
COMPANY:
X. X. XXXXX CORPORATION
By:
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Its:
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OPTIONEE:
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Signature of Optionee
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Xxxxxx Xxxxxxx
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Xxxx Xxxxx Zip Code
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Telephone Number
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Social Security Number
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