EXHIBIT 10.5
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OPTION AGREEMENT
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This OPTION AGREEMENT (the "Agreement") dated effective as of December
31, 1997 provides for the granting of an option by NCI Acquisition Corporation,
a Delaware corporation (the "Company") and the parent of Nationwide Credit, Inc.
("NCI"), to Xxxxx Xxxxx, an employee of NCI (the "Optionee").
The Company has duly adopted the NCI Acquisition Corporation 1997
Management Performance Option Plan (the "Plan"), a copy of which is attached
hereto as Exhibit A and which is incorporated herein by reference. In
accordance with Section 6 of the Plan, the Board of Directors of the Company has
determined that the Optionee is to be granted options under the Plan to buy
shares of the Company's common stock, $0.01 par value (the "Shares"), on the
terms and subject to the conditions hereinafter provided.
1. Number of Shares, Option Prices. (a) The Company hereby grants
to the Optionee an option (the "Class A Option") to purchase up to 7,208 Shares
(the "Class A Option Shares") at a price of $100.00 per Share, exercisable by
the payment of the exercise price in cash.
(b) In addition to the Class A Options, the Company hereby grants to
the Optionee an option (the "Class B Option") to purchase up to 7,208 Shares
(the "Class B Option Shares") at a price of $100.00 per Share, exercisable by
the payment of the exercise price in cash.
(c) The Company also hereby grants to the Optionee an option (the
"Class C Option") to purchase up to 4,805 Shares (the "Class C Option Shares")
at a price of $100.00 per Share, exercisable by the payment of the exercise
price in cash. The Class C Options, together with the Class B Options and the
Class A Options are collectively referred to herein as the "Options". The Class
C Option Shares, together with the Class B Option Shares and the Class A Option
Shares are collectively referred to herein as the "Option Shares".
2. Period of Options and Conditions of Exercise. The period of the
Options and the conditions to exercise the Options are set forth in the Plan.
3. Termination Upon Termination of Employment. Except as otherwise
provided in Section 8 of the Plan, the Options shall terminate immediately upon
the Optionee's ceasing to be a full-time employee of the Company.
4. Non-Transferability of Performance Options; Death of Optionee.
The Options and this Option Agreement shall not be transferred by the Optionee
except to a living trust for the benefit of any or all of the Optionee's spouse
or descendants or to a deceased Optionee's executors, legal heirs, devisees,
administrators or testamentary trustees and beneficiaries, and the Option may be
exercised during the lifetime of the Optionee only by the Optionee. Except to
the extent provided above, the Options and this Option Agreement may not be
assigned, transferred, pledged, hypothecated or disposed of in any way (whether
by operation of law or otherwise) and shall not be subject to execution,
attachment or similar process.
5. Exercise of Options. The Options shall be exercised in the
manner set forth in the Plan.
6. Specific Restrictions Upon Option Shares. The Optionee hereby
agrees with the Company as follows:
(a) The Optionee is acquiring the Options and shall acquire the
Option Shares for investment purposes only and not with a view to resale or
other distribution thereof to the public in violation of the Securities Act of
1933, as amended (the "Securities Act"), and shall not dispose of any Option or
Option Shares in transactions which, in the opinion of counsel to the Company,
violate the Securities Act, or the rules and regulations thereunder, or any
applicable state securities or "blue sky" laws; and further
(b) If any Option Shares shall be registered under the Securities
Act, no public offering (otherwise than on a national securities exchange, as
defined in the Securities Exchange Act of 1934, as amended) of any Option Shares
shall be made by the Optionee (or any other persons) under such circumstances
that he or she (or such person) may be deemed an underwriter, as defined in the
Securities Act; and further
(c) The Company shall have the authority to endorse upon the
certificate or certificates representing the Option Shares such legends
referring to the foregoing restrictions, any restrictions resulting from the
fact that the Optionee is a party to the Stockholders' Agreement (as defined in
the Plan) and any other applicable restrictions as it may deem appropriate.
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(d) The Optionee is, by reason of his, her or its business or
financial experience described below, capable of evaluating the merits and risks
of this investment and of protecting the Optionee's own interests in connection
with the purchase of the Options and the Option Shares.
List any information the Optionee believes is relevant in showing that
he, she or it is able to evaluate adequately the risks and merits of
this investment or has knowledge and experience in financial or
business matters:
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
7. Notices. Any notice required or permitted under this Option
Agreement shall be deemed given when delivered (i) personally or by recognized
overnight courier, or (ii) when deposited in a United States Post Office as
registered mail, postage prepaid, addressed, as appropriate, either to the
Optionee at his or her address set forth below or such other address as he or
she may designate in writing to the Company, and to the Company at 0000 Xxxxxx
Xxxxx Xxxx, 0xx Xxxxx, Xxxxxxx, Xxxxxxx 00000, Attention: President, or such
other address as the Company may designate in writing to the Optionee.
8. Failure to Enforce Not a Waiver. The failure of the Company to
enforce at any time any provision of this Option Agreement shall in no way be
construed to be a waiver of such provision or of any other provision hereof.
9. Governing Law. This Option Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to the conflict of laws principles thereof.
10. Provisions of Plan. The Options provided for herein are granted
pursuant to the Plan, and said Options and this Option Agreement are in all
respects governed by the Plan and subject to all of the terms and provisions
thereof, whether such terms and provisions are incorporated in this Option
Agreement solely by reference or are expressly cited herein. A copy of the Plan
has been furnished to the Optionee, and the Optionee hereby acknowledges receipt
thereof.
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IN WITNESS WHEREOF, the Company has executed this Option Agreement on
the day and year first above written.
NCI ACQUISITION CORPORATION
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: President and Chief Executive Officer
The undersigned hereby accepts, and agrees to, all terms and provisions of the
foregoing Option Agreement.
/s/ Xxxxx Xxxxx
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Signature
Printed Name and Address:
Xxxxx Xxxxx
0000 Xxxxxx Xxxxx
Xxxxxxx, XX 00000
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EXHIBIT A
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NCI Acquisition Corporation
1997 Management Performance Option Plan
[Filed as Exhibit 10.3]
