EXHIBIT 10.13
THE XXXXXXX COMPANIES, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
This Option is granted the 19th day of March, 2002 by THE XXXXXXX
COMPANIES, INC. (the "Company") to Xxxx X. Xxxx (the "Optionee").
1. Option Governed by Terms of Option Agreement and Plan. This Option
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shall be exercisable only in accordance with the terms of this Option Agreement.
This Option is also subject in all respects to the provisions of The Xxxxxxx
Companies, Inc. 1998 Stock Incentive Plan (the "Plan"). In the event of any
conflict between any provisions of this Option and the provisions of the Plan,
the provisions of the Plan shall control. Terms defined in the Plan where used
herein shall have the meanings as so defined. Optionee hereby acknowledges
receipt of a copy of the Plan.
2. Number of Shares Optioned; Option Price. The Company grants to
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Optionee the right and option to purchase, on the terms and conditions hereof,
all or any part of an aggregate of 2,000 (two thousand) shares of Company Stock,
at the purchase price of $14.00 (fourteen dollars) per share.
3. Vesting of Option. Except as otherwise provided herein or in the
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Plan, this Option shall be exercisable only prior to the expiration date hereof,
and then only as set forth in the following table:
Number of Completed Years of Percentage of Shares
Continuous Employment After Becoming Exercisable
the Date of Option Grant Under the Option
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Less than 1 year Zero
At least 1 but less than 2 33-1/3
At least 2 but less than 3 66-2/3
At least 3 years 100%
Notwithstanding the foregoing, if a "Change of Control" occurs while
Optionee is employed by the Company this Option shall be fully exercisable. For
this purpose, "Change of Control" means: (a) a sale of over 50% of the stock of
the Company measured in terms of voting power, other than in a public offering
or in connection with the acquisition by the Company of a business filing
reports under Section 13 or 15(d) of the Securities Exchange Act of 1934; or (b)
the sale by the Company of over 50% of its business or assets in one or more
transactions over a consecutive 12 month period; or (c) a merger or
consolidation by the Company with or into any other corporation or entity such
that the Company's shareholders prior to the transaction or transactions do not
own at least 50% of the surviving entity measured in terms of voting power. No
fractional shares shall be issuable on exercise of this Option and if the
application of the maximum percentage set forth above would result in a
fractional share, the number of shares exercisable shall be rounded up to the
next full share.
4. Term of Option and Restriction On Exercise. During the Optionee's
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lifetime this Option may be exercised only by him/her. All rights to exercise
this Option shall expire ten years from the date this Option is granted. Except
as provided in paragraphs 5 and 6, this Option may not be exercised unless
Optionee is, at the date of the exercise, in the employ of the Company and shall
have been continuously so employed since the date hereof.
5. Death or Disability. In the event that the employment of Optionee
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shall cease because of death or disability (as defined in Section 22(e)(3) of
the Internal Revenue Code) this Option, whether or not otherwise exercisable at
the time of such termination, shall be exercisable at any time within one year
after such termination of employment (or such longer time as is determined by
the Committee), in the case of Optionee's death, by the estate of Optionee or by
a person who acquired the right to exercise this Option by bequest or
inheritance from Optionee or, in the case of disability, by Optionee subject to
the condition that this Option shall not be exercisable after the expiration of
ten years from the date it is granted. This Option or any portion of this
Option not so exercised shall terminate.
6. Other Termination. Unless otherwise determined by the Committee, if
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Optionee's employment is terminated for any reason other than death or
disability as defined in paragraph 5, but is not terminated for cause, this
Option to the extent that it is otherwise exercisable on the date of such
termination shall be exercisable at any time within three months thereafter, but
not later than the date on which this Option would otherwise expire. This
Option or any portion of this Option not so exercised shall terminate. However,
notwithstanding any other provisions hereof, if the employment of Optionee is
terminated for cause, as determined by the Committee, this Option shall be
deemed terminated and not exercisable by such Optionee.
7. Method of Exercising Option. This Option may be exercised by Optionee
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delivering to the corporate secretary at its principal business office on any
business day, a written notice specifying the number of shares the Optionee
desires to purchase. The option price may be paid in full in cash or, in the
discretion of the Committee, in shares of Common Stock, valued at its Fair
Market Value determined as of the date of exercise of the Option, or, in a
combination of cash and shares of Company Stock. Following the option exercise,
the Company shall issue shares of Common Stock to the Optionee; provided,
however that if at the time of Option exercise, (1) the Company does not have a
class of securities subject to the registration requirements under the
Securities Exchange Act of 1934 (the "1934 Act"), (2) there are at least 450
Company shareholders (as determined by the Committee in accordance with the
methods for calculating shareholders under Section 12 of the 1934 Act), and (3)
Optionee is not a Company shareholder, the Committee may elect, in its sole
discretion, to pay Optionee an amount of cash equal to the "Fair Market Value"
of the Common Stock in lieu of the shares that would otherwise be issued. In
the event, the "Fair Market Value" of the Common Stock can not be determined as
provided in the Plan, the Committee, in its sole discretion, shall determine
Fair Market Value and that determination shall be binding on all parties.
8. Nontransferability. This Option shall not be transferable by the
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Optionee except by will or the laws of descent and distribution and shall be
exercisable during Optionee's lifetime only by Optionee. The Option herein
granted and the rights and privileges pertaining thereto shall not be
transferred, 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.
9. Rights as Shareholder. Optionee shall not be deemed the holder of any
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shares covered by this Option until such shares are fully paid and issued to
him/her upon exercise of this Option.
10. Changes in Stock. If any stock dividend is declared upon the Company
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Stock, or if there is any stock split, stock distribution, or other
recapitalization of the Company with respect to the Company Stock, resulting in
a split or combination or exchange of shares, the number and kind of shares then
subject to option and the per share option price therefore shall be
proportionately and appropriately adjusted, without any change in the aggregate
purchase price to be paid therefore.
MISCELLANEOUS
11. No Employment Agreement Intended. This Agreement does not confer upon
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Optionee any right to continuation of employment in any capacity by the Company
and does not constitute an employment agreement of any kind.
12. Successors. This Agreement shall be binding upon and inure to the
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benefit of any successor or successors of the Company.
13. Government and Other Regulations. The obligation of the Company to
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sell and deliver shares of stock under this Plan shall be subject to all
applicable laws, rules and regulations and the obtaining of all such approvals
by governmental agencies as may be deemed necessary or desirable by the Board,
including (without limitation) the satisfaction of all applicable federal, state
and local tax withholding requirements.
14. Wisconsin Contract. This Option has been granted in Wisconsin and
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shall be construed under the laws of that state.
IN WITNESS WHEREOF, the Company has caused these presents to be executed in
its behalf by its President or a Vice President, and the Optionee has hereunto
set his hand and seal, all as of the day and year first above written, which is
the date of the granting of this option.
THE XXXXXXX COMPANIES, INC.
By:
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Optionee: Xxxx X. Xxxx
