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EXHIBIT 10.2(f)
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FORM OF
NON-QUALIFIED STOCK OPTION AGREEMENT
EKCO GROUP, INC.
AGREEMENT made as of the ____ of __________, 199__ (the "Grant Date"),
between Ekco Group, Inc. (the "Company"), a Delaware corporation having a
principal place of business in Nashua, New Hampshire, and [NAME AND ADDRESS OF
CONSULTANT], a Consultant ("Consultant") to the Company. The term the
"Consultant" as used in this Agreement shall include, where the context so
requires, the legal representatives of Consultant, and/or any person or persons
who acquired Consultant's rights hereunder by will or by the laws of descent and
distribution. WHEREAS, the Company desires to grant to Consultant an Option to
purchase shares of its common stock of a par value of $.01 a share (the
"Shares") under and for the purposes of the Company's 1987 Stock Option Plan, as
amended (the "Plan") pursuant to Article XII thereof as a non-qualified stock
option;
WHEREAS, the Company and Consultant understand and agree that any terms
used herein have the same meanings as in the Plan;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth and for other good and valuable consideration, the parties hereto
agree as follows:
1. GRANT OF OPTION
The Company hereby irrevocably grants to Consultant the right and
option to purchase at one time or from time to time all or any part of an
aggregate of [NUMBER OF SHARES] (______) Shares, subject to adjustment as
provided in the Plan, on the terms and conditions and subject to all the
limitations set forth herein and in the Plan, which is incorporated herein by
reference. Consultant acknowledges receipt of a copy of the Plan.
2. PURCHASE PRICE
The purchase price of the Shares covered by this Option shall be
[EXERCISE PRICE] Dollars ($_______) per Share, subject to adjustment as provided
in the Plan (the "Purchase Price").
3. EXERCISE OF OPTION
(a) Subject to the provisions of this Agreement, the Option granted
hereby shall be exercisable within the term set forth in Section 4 below as
follows:
(i) As to up to [20% OF THE SHARES] (______) Shares covered by this
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Option: at any time and from time to time on or after the first Award
Anniversary;
(ii) As to up to an additional [20% OF THE SHARES] (______) Shares
covered by this Option: at any time and from time to time on or after
the second Award Anniversary;
(iii) As to up to an additional [20% OF THE SHARES] (______) Shares
covered by this Option: at any time and from time to time on or after
the third Award Anniversary;
(iv) As to up to an additional [20% OF THE SHARES] (______) Shares
covered by this Option: at any time and from time to time on or after
the fourth Award Anniversary; and
(v) As to up to all Shares covered by this Option: at any time and
from time to time on or after the fifth Award Anniversary.
For purposes of this Subsection (a), the term "Award Anniversary" shall mean any
twelve month anniversary of the Grant Date.
Notwithstanding the foregoing and except as provided in Section
4 below providing for exercises under other circumstances, this Option may not
be exercised in whole or in part unless Consultant is then a Consultant of the
Company.
(b) Notwithstanding the provisions of the foregoing Subsection (a) and
except as otherwise provided herein or in the Plan, this Option, to the extent
not previously exercised, shall become fully exercisable to the same extent and
in the same manner as if it had become exercisable by the passage of time
specified in Subsection (a) above in the event of, and immediately upon, the
occurrence of:
(i) The termination of Consultant's consultancy as a result of death;
or
(ii) In the event of, and immediately upon, a Change of Control that
occurs at any time before Consultant has ceased to be a Consultant of
the Company. As used herein, a "Change of Control" shall be deemed to
have occurred (i) if any "person" (as such term is used in Sections
13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended
[the "1934 Act"]) becomes the beneficial owner (within the meaning of
Rule 13d-3 under the ▇▇▇▇ ▇▇▇) of securities of the Company
representing fifteen percent (15%) or more of the combined voting
power of the Company's then outstanding securities; or (ii) if the
stockholders of the Company approve any merger of, or consolidation
involving, the Company in which the Company's stock is converted into
securities of another corporation or into cash and such merger or
consolidation shall be consummated, or the stockholders of the Company
approve any plan of complete liquidation of the Company (whether or
not in connection with a sale of all or substantially all of the
Company's assets) and such
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liquidation is consummated, excluding in each case a transaction
solely for the purpose of reincorporating the Company in a different
jurisdiction or recapitalizing the Company's stock or a merger of the
Company in which the holders of the voting stock of the Company
immediately prior to the merger have the same proportionate ownership
of voting stock of the surviving corporation immediately after the
merger.
4. TERM OF OPTION
(a) This Option shall terminate ten (10) years from the Grant Date of
this Option, but shall be subject to earlier termination as provided herein or
in the Plan.
(b) If Consultant ceases to be a Consultant of the Company (for any
reason other than death or termination by the Company for cause), then
Consultant may exercise this Option (subject to the provisions herein and in the
Plan regarding exercise of the Option) but only within six (6) months and one
(1) day after the date on which Consultant ceased to be a Consultant, provided,
however, in no event may this Option be exercised any later than ten (10) years
after the Grant Date of this Option, and may not be exercised thereafter. In
such event, this Option shall be exercisable only to the extent that the right
to purchase shares under the Plan has accrued and is in effect at the date of
such cessation of the consultancy. The provisions of this Subsection (b), and
not the provisions of Subsection (d) below, shall apply to Consultant if
Consultant subsequently dies after the termination of Consultant's consultancy;
however, in the case of Consultant's death, Consultant's Survivors may exercise
this Option within six (6) months after the date of Consultant's death, but in
no event beyond ten (10) years after the Grant Date of this Option.
(c) If Consultant's consultancy is terminated for "cause," Consultant
shall forthwith upon such termination cease to have any right to exercise this
Option. For purposes of this Subsection 4(b), "cause" shall be deemed to include
(but shall not be limited to) dishonesty with respect to the Company or any
Affiliate, substantial malfeasance or non-feasance of duty, unauthorized
disclosure of confidential information, or conduct substantially prejudicial to
the business or reputation of the Company or any Affiliate.
(d) In the event of the death of Consultant while a Consultant of the
Company, this Option may be exercised only by Consultant's legal representatives
and/or any person or persons who acquired Consultant's rights to this Option by
will or by the laws of descent and distribution. This Option must be exercised,
if at all, within one (1) year after the date of death of Consultant, or, if
earlier, within the originally prescribed term of this Option.
5. NON-ASSIGNABILITY
This Option shall not be transferable by Consultant otherwise
than by will or by the laws of descent and distribution and shall be
exercisable, during Consultant's lifetime, only by Consultant (or his duly
appointed legal
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representative). This Option shall not be assigned, pledged or hypothecated in
any way (whether by operation of law or otherwise) and shall not be subject to
execution, attachment or similar process. Any attempted transfer, assignment,
pledge, hypothecation or other disposition of this Option or of any rights
granted hereunder contrary to the provisions of this Section 5, or the levy of
any attachment or similar process upon this Option or such rights, shall be null
and void.
6. EXERCISE OF OPTION AND ISSUE OF SHARES
This Option may be exercised, in whole or in part, at one time
or from time to time (to the extent that it is exercisable in accordance with
its terms) by giving written notice to the Company. Such written notice shall be
signed by the person exercising this Option, shall state the number of Shares
with respect to which this Option is being exercised, shall contain any warranty
required by Section 7 below, and shall otherwise comply with the terms and
conditions of this Agreement and the Plan. Such notice must be received by the
Company within the relevant exercise period specified in Section 4 of this
Agreement. Such notice shall either: (i) be accompanied by payment of the full
purchase price of such Shares, in which event the Company, subject to the
provisions of Section 7, shall deliver a certificate or certificates
representing such Shares as soon as practicable after the notice shall be
received, or (ii) fix a date (not less than five nor more than ten business days
after such notice shall be received by the Company, which date must be within
the relevant exercise period specified in Section 4 of this Agreement) for the
payment of the full purchase price of such Shares against delivery subject to
the provisions of Section 7, of a certificate or certificates representing such
Shares. Payment of such purchase price shall, in either case, be made by check
payable to the order of the Company, or in such other manner as the Committee
shall permit. The certificate or certificates for the Shares as to which this
Option shall have been so exercised shall be registered in the name of the
person or persons so exercising this Option and shall be delivered as provided
above to the person or persons exercising this Option. All Shares that shall be
purchased upon the exercise of this Option as provided herein shall be fully
paid and non-assessable.
The Company shall pay all original issue taxes with respect to
the issue of the Shares pursuant hereto and all other fees and expenses
necessarily incurred by the Company in connection herewith. Except as
specifically set forth herein, the holder acknowledges that any income or other
taxes due from him with respect to this Option or the shares issuable pursuant
to this Option shall be the responsibility of the holder. The holder of this
Option shall have rights as a shareholder only with respect to any Shares
covered by this Option after due exercise of this Option and tender of the full
exercise price for the Shares being purchased pursuant to such exercise.
Pursuant to the Plan, the Company shall make delivery of the Shares against
payment of the Option price therefor.
7. PURCHASE FOR INVESTMENT
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Unless the offering and sale of the Shares to be issued upon
the particular exercise of this Option shall have been effectively registered
under the Securities Act of 1933, as now in force or hereafter amended, or any
successor legislation (the "Act"), the Company shall be under no obligation to
issue the Shares covered by such exercise unless and until the following
conditions have been fulfilled:
(a) The person(s) who exercise this Option shall warrant to the
Company, at the time of such exercise, that such person(s) are
acquiring such Shares for his or her own account, for investment
and not with a view to, or for sale in connection with, the
distribution of any such Shares, in which event the person(s)
acquiring such Shares shall be bound by the provisions of the
following legend which shall in substantially the following form
be endorsed upon the certificate(s) evidencing the option Shares
issued pursuant to such exercise:
"The shares represented by this certificate have been taken for
investment and they may not be sold or otherwise transferred by
any person, including a pledgee, in the absence of an effective
registration statement for the shares under the Securities Act of
1933 or an opinion of counsel satisfactory to the Company that an
exemption from registration is then available."
(b) The Company shall have received an opinion of its counsel that
the Shares may be issued upon such particular exercise in
compliance with the Act without registration thereunder.
Without limiting the generality of the foregoing, the Company may delay issuance
of the Shares until completion of any action or obtaining of any consent, which
the Company deems necessary under any applicable law (including without
limitation state securities or "blue sky" laws).
8. REGISTRATION RIGHTS
(a) In the event that the Company has an effective registration
statement covering the sale and resale of securities issued pursuant to the
Plan, then Consultant agrees to sign a waiver in substantially the following
form:
"For so long as a registration statement under the Securities Act of
1933, as amended, is in effect covering the sale and resale of
securities issued pursuant to the 1987 Stock Option Plan of Ekco Group,
Inc. (the "Company"), the undersigned Consultant waives his rights to
require the Company to file a registration statement pursuant to Section
8 of the Non-Qualified Stock Option and Repurchase Agreement dated as of
[DATE OF AGREEMENT], between the undersigned [NAME OF CONSULTANT] and
the Company."
(b) Consultant acknowledges that option agreements have been executed by
the Company with [NO. OF EMPLOYEES) (____) employees of the Company and its
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Affiliates and [NO. OF BOARD MEMBERS] (____) Board Members and may be executed
with other employees, Board Members and Consultants (collectively "Other
Holders"), each containing or to contain a section substantially identical to
this Section 8. Subject to the terms hereinafter set forth, at any time after
the Grant Date, the holder shall have the right, by written notice to the
Company, to require the Company to file and use its best efforts to cause to
become effective a registration statement under the Securities Act of 1933, as
amended (the "Act") on Form ▇-▇, ▇▇▇▇ ▇-▇ or Form S-3 or other like form, if
available, covering such number of Shares acquired or to be acquired prior to
the effective date of such registration statement, subject to the limitations
that (i) the Company shall be required to file no more than an aggregate of two
(2) registration statements pursuant to such notices and/or pursuant to notices
received from Other Holders, and (ii) if, in the opinion of counsel to the
Company, the holder can then sell, subject to such limitations as to the number
of Shares which may be sold as may be imposed by Rule 144 under the Act or any
successor rule, Shares requested to be included in any such registration
statement, without such registration, the Company need not so register such
Shares. In no event will the Company be required to register Shares which are
subject to the Purchase Obligation. The Company agrees to promptly notify a
holder in the event that it receives notices from any of the Other Holders
requiring it to file a registration statement and to permit the holder to
require the Company to include Shares owned by the holder in such registration
statement, subject to the limitations set forth above.
(c) In connection with any registration statement pursuant to this
Section 8:
(i) the holder will furnish to the Company in writing such appropriate
information as the Company, or the Securities and Exchange Commission
(the "Commission") or any other regulatory authority may request;
(ii) the holder agrees to execute, deliver and/or file with or supply
to the Company, the Commission, any underwriters and/or any state or
other regulatory authority such information, documents,
representations, undertakings and/or agreements necessary to carry out
the provisions of the registration agreements contained in this
Agreement and/or to effect the registration or qualification of the
Shares under the Act and/or any of the laws and regulations of any
state or governmental instrumentality;
(iii) the Company will furnish to the holder of Shares included in the
registration statement such number of copies of such prospectus
(including each preliminary, amended or supplemental prospectus) as the
holder may reasonably request; and
(iv) in the event an offering of securities by the Company is pending,
the Company shall have the right to require that the holder delay any
offering of Shares for a period of ninety (90) days after the effective
date of such pending offering (upon the Company's having first
delivered to the holder the written opinion of its principal
underwriter, or if there be none, then from an officer of the Company
based upon a good
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faith resolution of the Board of Directors to the effect that the
offering of such Shares will have an adverse effect on the marketing
of such pending offering).
(d) The Company will pay all of its out-of-pocket expenses and
disbursements in connection with any registration statement filed under this
Section 8, including, without limitation, printing expenses, fees of the
Company's counsel and auditors, registration fees, blue sky fees and similar
costs to the extent permitted by state and regulatory authorities.
(e) The Company will be obligated to keep any registration statement
filed by it under this Section 8 effective under the Act for a period of ninety
(90) days after the actual effective date of such registration statement and to
prepare and file such supplements and amendments necessary to maintain an
effective registration statement for such period. As a condition to the
Company's obligation under this Subsection (e), the holder will execute and
deliver to the Company such written undertakings as the Company and its counsel
may reasonably require in order to assure full compliance with relevant
provisions of the Act.
(f) The Company will use its best efforts to register or qualify the
Shares covered by a registration statement filed pursuant hereto under such
securities or Blue Sky laws in such jurisdictions within the United States as
the holder may reasonably request, provided, however, that the Company reserves
the right, in its sole discretion, not to register or qualify such stock in any
jurisdiction where such stock does not meet with the requirements of such
jurisdiction or where the Company is required to qualify as a foreign
corporation to do business in such jurisdiction and is not so qualified therein
or is required to file any general consent to service of process.
(g) In the event that a holder has not sold all of his Shares on or
prior to the expiration of the period specified in Subsection (e) above, the
holder hereby agrees that the Company may deregister by post-effective amendment
any of his Shares covered by the registration statement or notification but not
sold on or prior to such date. The Company agrees that it will notify the holder
of the filing and effective date of such post-effective amendment.
(h) The holder agrees that upon notification by the Company that the
prospectus in respect to any public offering covered by the provisions hereof is
in need of revision, the holder will immediately upon receipt of such
notification (i) cease to offer or sell any securities of the Company which must
be accompanied by such prospectus; (ii) return to the Company all such
prospectuses in the hands of the holder; and (iii) not offer or sell any
securities of the Company until the holder has been provided with a current
prospectus and the Company has given the holder notification permitting the
holder to resume offers and sales.
9. NOTICES
Any notices required or permitted by the terms of this Agreement
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or the Plan shall be given by registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
To the Company: Ekco Group, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Associate General Counsel
To Consultant: To Consultant's last address in the records
of the Company
or to such other address as either party furnishes to the other by like notice.
Any such notice shall be deemed to have been given when mailed in accordance
with the foregoing provisions.
10. GOVERNING LAW
This Agreement shall be construed and enforced in accordance
with the law of the State of New Hampshire, except to the extent the law of the
State of Delaware may be applicable.
11. BENEFIT OF AGREEMENT
This Agreement shall be for the benefit of and shall be
binding upon the heirs, executors, administrators, legal representatives and
successors of the parties hereto, except as otherwise provided herein.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and delivered by its duly authorized officer and its corporate seal to
be hereunto affixed and the Consultant has hereunto set his hand and seal all as
of the day and year first above written in duplicate originals.
EKCO GROUP, INC.
[SEAL]
By_________________________________________
Title______________________________________
___________________________________________
, Consultant
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Schedule of Exercises
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Number of Shares
Purchased Pursuant Consideration Date of Notation
to this option Received purchase Made By
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EKCO GROUP, INC.
SCHEDULE TO
FORM OF NON-QUALIFIED STOCK OPTION AGREEMENT
The following Consultant of the Company has a Non-Qualified Stock
Option Agreement with the Company which is identical in form to the foregoing
Form of Non-Qualified Stock Option Agreement, except as to the date, the number
of shares and the exercise price:
No. of
Date of Shares Exercise
Name Agreement Granted Price
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 10-28-97 15,000 $6.4688
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