EXHIBIT 10.1
Optionee: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Grant Date: February 25, 2003
Number of Shares of
Class A-3 Common Stock: 7,500
Price Per Share: $6.70
This option and any securities issued upon exercise of this option are
subject to restrictions on voting and transfer and requirements of sale and
other provisions as set forth in a Stockholders Agreement (the "Stockholders
Agreement") among the Company, certain of its subsidiaries and certain of its
shareholders, dated as of December 21, 1998 and this option and any securities
issued upon exercise of this option constitute Other Investor Shares as defined
therein. The Company will furnish a copy of such Stockholders Agreement to the
holder of this option without charge upon written request.
TISM, Inc.
Stock Option
▇▇▇▇▇▇▇▇▇ Class A Option Agreement
This option agreement (the "Agreement") is made as of the Grant Date by and
between TISM, Inc., a Michigan corporation (the "Company"), and the Optionee,
pursuant to the Company's Third Amended and Restated Stock Option Plan (the
"Plan"). The initially capitalized terms Optionee, Grant Date, Number of Shares
and Price Per Share shall have the meanings set forth above; initially
capitalized terms not otherwise defined herein shall have the meaning provided
in the Plan. The Company and the Optionee hereby agree as follows:
1. Grant of Option.
A. This Agreement evidences the grant by the Company on the Grant Date to
the Optionee of an option to purchase, in whole or in part, on the terms
provided herein and in the Plan, the Number of Shares of Class A-3 Common Stock,
par value $.001 per share, of the Company set forth above (the "Shares") at the
Price Per Share. The price at which the Option may be exercised is the Price Per
Share. The number of Shares for which the Option may be exercised is the Number
of Shares set forth above.
B. For so long as the Optionee is a member of the Board of Directors of the
Company (the "Board"), this Option shall become exercisable as to 100% of the
total Number of Shares on February 25, 2003; provided, that the Option shall
cease to vest and shall terminate as to the Number of Shares not then
exercisable on the date the Optionee no longer serves as a member of the Board;
provided, further, that the total Number of Shares then eligible for vesting
under this Option shall immediately vest and become exercisable upon a Change of
Control.
The latest date on which this Option may be exercised (the "Final Exercise
Date") is the earliest of (i) ten years following the Grant Date, or (ii) the
termination hereof in accordance with this Agreement or the Plan.
C. As used herein, the following terms shall have the meanings set forth
below:
"Change of Control" shall have the meaning of that term as defined in the
Stockholders Agreement.
"Option" shall mean the option to purchase the Shares of Class A-3 Common
Stock granted to the Optionee pursuant to this Agreement.
"Person" shall mean any individual, partnership, corporation, company,
association, trust, joint venture, unincorporated organization, entity, or any
government, governmental department or agency or political subdivision thereof.
2. Exercise of Option. Any election to exercise this Option shall be in
writing, signed by the Optionee or by such Person's executor or administrator
(the "Legal Representative"), and received by the Company at its principal
office, accompanied by payment in full and by such additional reasonable
documentation evidencing the right to exercise (or, in the case of a Legal
Representative, of the authority of such person) as the Company may require. The
purchase price shall be paid by bank check or wire transfer of immediately
available federal funds, or such other form of consideration as is designated by
the Board.
3. Other Agreements. In addition to the terms and provisions of this Agreement
and the Plan, this Option and any Shares received upon the exercise of this
Option shall be subject to certain rights, restrictions and obligations set
forth in the Stockholders Agreement and shall constitute Other Investor Shares
thereunder and the Optionee shall be party thereto and bound thereby as an Other
Investor thereunder with respect to such Shares as fully as if he were an
original signatory thereto.
4. Withholding. No Shares will be transferred pursuant to the exercise of this
Option unless and until the person exercising this Option shall have remitted to
the Company an amount sufficient to satisfy any federal, state or local
withholding tax requirements, or shall have made other arrangements reasonably
satisfactory to the Company with respect to such taxes.
5. Representations and Warranties. The Optionee represents and warrants to the
Company as follows:
The Optionee has been advised that the Shares to be received upon the
exercise of this Option have not been registered under the Securities Act
or any state securities laws and, therefore, cannot be resold unless they
are registered under the Securities Act and applicable state securities
laws or unless an exemption from such registration requirements is
available. The Optionee is aware that the Company is under no obligation to
effect any such registration with respect to the Shares or to file for or
comply with any exemption from registration. Any election by the Optionee
to exercise
-2-
this Option to purchase the Shares will be made by the Optionee hereunder
for its own account and not with a view to, or for resale in connection
with, the distribution of the Shares in violation of the Securities Act.
The Optionee has such knowledge and experience in financial and business
matters that the Optionee is capable of evaluating the merits and risks of
an investment in the Shares, is able to incur a complete loss of such
investment and is able to bear the economic risk of such investment for an
indefinite period of time. The Optionee is an accredited investor as that
term is defined in Regulation D under the Securities Act.
6. Effect on Board Membership. Neither the grant of this Option, nor the
issuance of Shares upon exercise of this Option, shall give the Optionee any
right to serve as a member of the Board, affect the right of the Board or the
stockholders of the Company to elect or remove such Optionee at any time, or
affect any right of such Optionee to resign from his membership on the Board at
any time.
7. Notices. Any notices or other communications required or permitted
hereunder shall be effective if in writing and delivered in the manner required
by the Stockholders Agreement, to the Company addressed as provided in the
Stockholders Agreement and to the Optionee at its address specified on the
signature page hereto.
8. Provisions of the Plan, Etc. This Option is subject in its entirety to the
provisions of the Plan, a copy of which is furnished to the Optionee with this
Option, provided that in the event of any conflict between the terms of this
Option and the Plan, the terms of the Option shall control. The Option evidenced
by this Agreement is not intended to qualify as an incentive stock option under
Section 422 of the Internal Revenue Code (the "Code").
9. Remedies. The Company and the Optionee shall have all remedies available at
law, in equity or otherwise in the event of any breach or violation of this
Agreement or any default hereunder by the Company or the Optionee. The parties
acknowledge and agree that in the event of any breach of this Agreement, in
addition to any other remedies which may be available, each of the parties
hereto shall be entitled to specific performance of the obligations of the other
parties hereto and, in addition, to such other equitable remedies (including
without limitation preliminary or temporary relief) as may be appropriate in the
circumstances.
10. Miscellaneous.
A. Governing Law. This Agreement shall be governed and construed in
accordance with the laws of Michigan.
B. Entire Agreement/Amendments. This Agreement and the other agreements
referred to herein contain the entire understanding of the parties with respect
its subject matter. There are no restrictions, agreements, promises, warranties,
covenants or undertakings between the parties with respect to the subject matter
herein other than those expressly set forth herein. This Agreement may not be
altered, modified, or amended except by written instrument signed by the parties
hereto.
-3-
C. No Waiver. The failure of a party to insist upon strict adherence to any
term of this Agreement on any occasion shall not be considered a waiver of such
party's rights or deprive such party of the right thereafter to insist upon
strict adherence to that term or any other term of this Agreement.
D. Severability. In the event that any one or more of the provisions of
this Agreement shall be or become invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
of this Agreement shall not be affected thereby.
E. Consent to Jurisdiction. Each party to this Agreement, by its execution
hereof, (x) hereby irrevocably submits to the jurisdiction of the state courts
of the State of Michigan sitting in the County of Washtenaw or the United States
District Court for the Eastern District of Michigan for the purpose of any
action, claim, cause of action or suit (in contract, tort or otherwise),
inquiry, proceeding or investigation arising out of or based upon this Agreement
or relating to the subject matter hereof, (y) hereby waives to the extent not
prohibited by applicable law, and agrees not to assert, and agrees not to allow
any of its subsidiaries to assert, by way of motion, as a defense or otherwise,
in any such action, any claim that it is not subject personally to the
jurisdiction of the above-named courts, that its property is exempt or immune
from attachment or execution, that any such proceeding brought in one of the
above-named courts is improper, or that this Agreement or the subject matter
hereof or thereof may not be enforced in or by such court and (z) hereby agrees
not to commence or maintain any action, claim, cause of action or suit (in
contract, tort or otherwise), inquiry, proceeding or investigation arising out
of or based upon this Agreement or relating to the subject matter hereof or
thereof other than before one of the above-named courts nor to make any motion
or take any other action seeking or intending to cause the transfer or removal
of any such action, claim, cause of action or suit (in contract, tort or
otherwise), inquiry, proceeding or investigation to any court other than one of
the above-named courts whether on the grounds of inconvenient forum or
otherwise. Notwithstanding the foregoing, (i) to the extent that any party
hereto is or becomes a party in any litigation in connection with which it may
assert indemnification rights set forth in this agreement, the court in which
such litigation is being heard shall be deemed to be included in clause (a)
above and (ii) judgments obtained in any court referred to in clause (a) above
may be enforced in any jurisdiction. Each party hereto hereby consents to
service of process in any such proceeding in any manner permitted by Michigan
law, and agrees that service of process by registered or certified mail, return
receipt requested, at its address specified on the signature page hereto is
reasonably calculated to give actual notice.
▇. ▇▇▇▇▇▇ of Jury Trial. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW
WHICH CANNOT BE WAIVED, EACH PARTY HERETO HEREBY WAIVES AND COVENANTS THAT IT
WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO
TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE OR ACTION, CLAIM, CAUSE OF
ACTION OR SUIT (IN CONTRACT, TORT OR OTHERWISE), INQUIRY, PROCEEDING OR
INVESTIGATION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER
HEREOF OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE TRANSACTIONS
CONTEMPLATED HEREBY, IN EACH CASE WHETHER NOW
-4-
EXISTING OR HEREAFTER ARISING. EACH PARTY HERETO ACKNOWLEDGES THAT IT HAS BEEN
INFORMED BY THE OTHER PARTIES HERETO THAT THIS SECTION 10(F) CONSTITUTES A
MATERIAL INDUCEMENT UPON WHICH THEY ARE RELYING AND WILL RELY IN ENTERING INTO
THIS AGREEMENT. ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS SECTION 10(F) WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH
SUCH PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
G. Authority; Effect; etc. Each party hereto represents and warrants to and
agrees with each other party that the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized on behalf of such party and do not violate any agreement or other
instrument applicable to such party or by which its assets are bound. This
Agreement does not, and shall not be construed to, give rise to the creation of
a partnership among any of the parties hereto, or to constitute any of such
parties members of a joint venture or other association.
H. Assignment. This Agreement shall not be assignable by the Optionee and
shall be assignable by the Company only with the consent of the Optionee,
provided, however, that the Company shall require any successor to substantially
all of the stock, assets or business of the Company to assume this Agreement.
I. Successors; Binding Agreement. This Agreement shall inure to the benefit
of and be binding upon the Optionee and the Company and their respective
personal or legal representatives, executors, administrators, successors,
including successors to all or substantially all of the stock, business and/or
assets of the Company, heirs, distributees, devisees and legatees of the
parties.
J. Counterparts. This Agreement may be signed in counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
-5-
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date first written above.
TISM, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Address:
