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EXHIBIT 10.2(e)
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FORM OF
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NON-QUALIFIED STOCK OPTION AGREEMENT
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EKCO GROUP, INC.
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AGREEMENT made as of the 5th day of February 1997 (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
EMPLOYEE], an employee of the Company (the "Employee");
WHEREAS, the Company awarded the Employee a number of Performance Unit
Rights ("Rights") pursuant to the Company's 1996 Performance Unit Rights Award
Plan, as amended, as provided in that certain Award Agreement dated as of
September 25, 1996 by and between the Company and the Employee (the "Award
Agreement");
WHEREAS, the Employee and the Company desire to exchange the Rights
for an Option to purchase shares of Company's common stock of a par value of
$.01 a share (the "Shares") under 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 the Employee understand and agree that any
terms used herein have the same meanings as in the Plan;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants set forth herein and for other good and valuable consideration, the
parties hereto agree as follows:
1. GRANT OF OPTION AND CANCELLATION OF RIGHTS
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The Company hereby grants to the Employee 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 GRANTED] ( ) 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. The Employee
acknowledges receipt of a copy of the Plan.
The Employee hereby cancels the Rights and the Award Agreement is
hereby terminated and of no force and effect.
2. PURCHASE PRICE
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The purchase price of the Shares covered by this Option shall be Four
and One-Eighth Dollars ($4.125) per Share, subject to adjustment as provided in
the Plan (the "Purchase Price").
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3. EXERCISE OF OPTION
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The Option granted hereby shall be exercisable immediately, within the
term set forth in Section 4 below, subject to the provisions of this Agreement.
4. TERM OF OPTION
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(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 the Employee ceases to be an employee of the Company or of an
Affiliate (for any reason other than death or Disability or termination by the
Employee's employer for cause), then this Option may be exercised (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 the Employee
ceases to be an employee, or within ten (10) years from the granting of this
Option, whichever is earlier, and may not be exercised thereafter. In such
event, this Option shall be exercisable only to the extent that the right to
purchase Shares hereunder is in effect at the date of such cessation of
employment.
The provisions of this Subsection (b), and not the provisions of
Subsection (c) and (d) below, shall apply to the Employee if the Employee
subsequently becomes Disabled or dies after the Employee's termination of
employment; however, in the case of the Employee's death which occurs within the
six (6) months and one (1) day following the termination of employment, the
Employee's Survivors may exercise this Option within six (6) months after the
date of the Employee's death, but in no event beyond the originally prescribed
term hereof.
(c) In the event of the Disability of the Employee (as determined by the
1987 Stock Option Plan Committee of the Company, and as to the fact and date of
which the Employee is notified by that Committee in writing), this Option shall
be exercisable within one (1) year after the date of such Disability or, if
earlier, the term originally prescribed by this Agreement.
(d) In the event of the death of the Employee while an employee of the
Company or of an Affiliate, this Option may be exercised only by the Employee's
legal representatives and/or any person or persons who acquired the Employee's
rights to this Option by will or by the laws of descent and distribution.
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The Company shall use reasonable efforts to notify the Employee's
legal representative, if known, or his or her next of kin or other persons
likely to know his or her legal representative, promptly after the date of death
of the existence of this Option. Any failure by the Company to give such notice
will not extend the period of time during which this Option may be exercised or
otherwise entitle the holder to any greater rights than stated in this Agreement
or in the Plan. This Option must be exercised, if at all, within one (1) year
after the date of death of the Employee, or, if earlier, within the originally
prescribed term of this Option.
(e) In the event the Employee's employment is terminated by the Employee's
employer for "cause" (as defined in the Plan), the Employee's right to exercise
any unexercised portion of this Option shall cease forthwith, and this Option
shall thereupon terminate.
5. NON-ASSIGNABILITY
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This Option shall not be transferable by the Employee otherwise than
by will or by the laws of descent and distribution and shall be exercisable,
during the Employee's lifetime, only by the Employee (or by the Employee's duly
appointed legal 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
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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
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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 Employee agrees to pay to the Company upon exercise of this Option
that amount which is equal to the amount the Company is required to withhold as
a result of such exercise.
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 or
her 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:
(i) The person(s) who exercise this Option shall warrant to the
Company, at the time of such exercise, that
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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."
(ii) 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 reasonable action or obtaining of any
consent, which the Company deems reasonably necessary under any applicable law
(including without limitation state securities or "blue sky" laws).
8. REGISTRATION RIGHTS
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(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 the
Employee 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 Employee waives his/her
rights to require the Company to file a registration statement
pursuant to Section 9 of the Non-Qualified Stock Option and Repurchase
Agreement dated as of February 3, 1997, between the undersigned
Employee and the Company."
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(b) The Employee acknowledges that option agreements have been executed by
the Company with one hundred nineteen (119) other employees of the Company and
its Affiliates and five (5) Outside Directors of the Company and may be executed
with other employees and Directors (collectively "Other Holders"), each
containing or to contain a section substantially identical to this Section 9.
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. The Company agrees
to promptly notify a holder in the event that it receives a notice 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
9:
(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;
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(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 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 its out-of-pocket expenses and disbursements
in connection with any registration statement filed under this Section 9,
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 9 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.
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(g) In the event that a holder has not sold all of his or her 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 or her 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
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Any notices required or permitted by the terms of this Agreement 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 the Employee: To Employee'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
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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.
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11. BENEFIT OF AGREEMENT
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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, subject to the provisions of Section 5 above.
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 Employee has hereunto set his or her hand and seal
all as of the day and year first above written in duplicate originals.
EKCO GROUP, INC.
[SEAL]
By _______________________________
Title ____________________________
__________________________________
EMPLOYEE
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EXHIBIT 10.2(e)
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EKCO GROUP, INC.
SCHEDULE TO
FORM OF NON-QUALIFIED STOCK OPTION AGREEMENT
DATED AS OF FEBRUARY 5, 1997
Each of the following employees of the Company has a Non-Qualified Stock
Option Agreement with the Company dated as of February 5, 1997 which cancels the
following number of Rights and grants the following number of shares of the
Company's Common Stock pursuant to the Company's 1987 Stock Option Plan which
agreement is identical in form to the foregoing Form of Non-Qualified Stock
Option Agreement, except as to the number of shares:
No. of No. of
Rights Shares
Name and Positions Canceled Granted
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 100,000 110,000
Executive Vice President,
Finance and Administration
of the Company and
Senior Vice President
and Chief Financial Officer
of Ekco Housewares, Inc.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 100,000 110,000
Chairman and Chief Executive
Officer
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 250,000 275,000
Vice President of Marketing
of the Company and
Senior Vice President--Sales
& Marketing of Ekco Housewares,
Inc. and
President, B. VIA International
Housewares, Inc.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 50,000 55,000
Executive Vice President,
Secretary & General Counsel
of the Company and
President, Ekco Consumer
Plastics, Inc.
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