EXHIBIT 10.3
DIRECTOR COMMON STOCK OPTION AGREEMENT
DIRECTOR COMMON STOCK OPTION AGREEMENT, dated as of November 15,
2001, by and between X'XXXXXXXX INDUSTRIES HOLDINGS, INC., a Delaware
corporation (the "Company"), and __________________ (the "Optionee").
Capitalized terms used but not otherwise defined herein shall have the meanings
assigned to such terms in Section 1.
WHEREAS, the Optionee is currently an outside director of the
Company, and the Company desires to grant the Optionee certain Common Stock
options in accordance with the terms hereof pursuant to the Company's 2001
Director Common Stock Option Plan; and
WHEREAS, the options are not intended to qualify as "incentive
stock options" as defined in Section 422 of the Internal Revenue Code of 1986,
as amended (the "Code");
NOW THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties to this Agreement agree as follows:
1. DEFINITIONS. As used herein, the following terms shall have
the following meanings:
"Board" means the Board of Directors of the Company.
"BRS" means Bruckmann, Xxxxxx, Xxxxxxxx & Co. II, L.P.
"Cause" means (i) a material breach of this Agreement by the
Optionee, (ii) a breach of the Optionee's duty of loyalty to the Company and its
Subsidiaries, or (iii) the Optionee's commission of a crime involving an act of
moral turpitude or which constitutes a felony, regardless of whether the crime
involves the Company or any of its Subsidiaries.
"Committee" means such committee of the Board as the Board may
designate to administer the Stock Option Plan. The Committee, if any, shall be
composed of not fewer than two directors as appointed from time to time by the
Board.
"Common Stock" means the Common Stock, par value $0.01 per share,
of the Company.
"Expiration Date" means the close of business on November 15,
2011 subject to earlier expiration as provided in Section 4.
"Fair Market Value" per share on any given date means the average
of the closing prices of the sales of the Common Stock on all securities
exchanges on which such stock may at the time be listed, or, if there have been
no sales of Common Stock on any such exchange on any day, the average of the
highest bid and lowest asked prices for such stock on all such exchanges at the
end of such day, or, if on any day such stock is not so listed, the average of
the representative bid and asked prices quoted for such stock on the NASDAQ
National Market System as of 4:00 P.M., New York time, or, if on any day such
stock is not quoted on the Nasdaq National Market System, the average of the
highest bid and lowest asked prices for such stock on such day in the domestic
over-the-counter market as reported by the National Quotation Bureau,
Incorporated, or any similar successor organization. If at any time the Common
Stock is not listed or quoted, the Fair Market Value per share shall be the fair
market value of the Common Stock determined by the Board in good faith, giving
effect to the preferences and priorities set forth in the Company's Certificate
of Incorporation (as amended from time to time) with respect to other series or
classes of the Company's capital stock, and also based on such other factors as
the members thereof in the exercise of their business judgment, consider
relevant.
"Form" means those forms of the Internal Revenue Service used by
taxpayers to file federal income tax returns or reports required under the Code
or applicable Treasury Regulations promulgated thereunder.
"Measurement Date" means the date on which any taxable income
resulting from the exercise of an Option is determined under applicable federal
income tax law.
"Options" has the meaning set forth in Article IV of the Stock
Option Plan.
"Option Shares" shall mean (i) all shares of Common Stock issued
or issuable upon the exercise of an Option and (ii) all shares of Common Stock
issued with respect to the Common Stock referred to in clause (i) above by way
of stock dividend or stock split or in connection with any conversion, merger,
exchange, consolidation, reclassification or recapitalization or other
reorganization affecting the Common Stock. Unless provided otherwise herein,
Option Shares will continue to be Option Shares in the hands of any holder other
than the Optionee (except for the Company), and each such transferee thereof
will succeed to the rights and obligations of a holder of Option Shares
hereunder.
"Person" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization, or a government entity (or any
department, agency or political subdivision thereof).
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of November 30, 1999, by and among the Company and certain
other parties thereto.
"Sale of the Company" means a merger or consolidation effecting a
change in control of the Company, a sale of all or substantially all of the
assets of the Company or a sale of a majority of the outstanding voting
securities of the Company effecting a change in control of the Company.
"Securities Act" has the meaning ascribed thereto in Article 1 of
the Stock Option Plan.
"Stockholders Agreement" means the Stockholders Agreement, dated
as of November 30, 1999, by and among the Company and certain other parties
thereto.
"Stock Option Plan" means the Company's 2001 Directors Common
Stock Option Plan as it may be amended from time to time.
"Subsidiary" means any subsidiary corporation (as such term is
defined in Section 424(f) of the Code) of the Company.
"Termination Date" shall mean the date upon which such
Participant's services as a director of the Company terminate.
Other capitalized terms used in this Agreement without definition
shall have the respective meanings ascribed to them in the Stock Option Plan.
2. THE OPTIONS.
(a) Terms of the Options. The Company hereby grants to the
Optionee, as of the date hereof, an option (the "Option" or "Options") to
purchase up to _______ shares of the Company's Common Stock (the "Option
Shares") at the exercise price of $______ per Option Share (the "Exercise
Price"), subject to the terms and conditions of the Stock Option Plan and those
set forth herein. All rights of the Optionee as the holder of the Options issued
hereunder shall be solely determined by the provisions of this Agreement. The
Optionee's Options will expire as provided in Section 4 hereof.
(b) Form of the Options. The Options granted hereunder are not
intended to be "incentive stock options" as defined in Section 422 of the Code.
(c) Payment of Exercise Price. Subject to Section 3 below, the
Options may be exercised in whole or in part, at any time and from time to time,
upon payment of an amount (the "Option Price") equal to the product of (i) the
applicable Exercise Price for the applicable Options multiplied by (ii) the
number of Option Shares to be acquired. Payment shall be made (x) in cash, by
bank or certified check, (y) by delivering to the Company for cancellation
certificates for shares of the Company's Common Stock owned by the Optionee for
a period of at least six months having a Fair Market Value equal to the full
purchase price of the shares being acquired, or (z) a combination of cash and
such shares.
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(d) Procedure for Exercise. The Optionee may exercise all or any
portion of the Options at any time and from time to time prior to their
expiration as set forth in Section 3, by filing written notice of exercise to
the Company, together with payment of the Option Price in accordance with the
provisions of Section 2(c) above. As a condition to any exercise of any Option,
the Optionee will (i) permit the Company to deliver to him all financial and
other information regarding the Company (if any) it believes necessary to enable
the Optionee to make an informed investment decision and (ii) execute a joinder
to the Stockholders Agreement and the Registration Rights Agreement.
(e) Non-Transferability of Options. The Optionee's Options are
personal to the Optionee and are not transferable by the Optionee other than by
will or the laws of descent and distribution. During the Optionee's lifetime,
only the Optionee may exercise the Options. In the event of the Optionee's
death, the Options may be exercised only (i) by the executor or administrator of
the Optionee's estate or the Person or Persons to whom the Optionee's rights
under the Options shall pass by will or the laws of descent and distribution
(provided that each beneficiary shall execute and deliver an undertaking in
writing to be bound by the terms of this Agreement in form and substance
acceptable to the Committee) and (ii) to the extent that the Optionee was
entitled to exercise such Options hereunder at the date of the Optionee's death.
(f) Adjustments. If and to the extent specified by the Board, the
number of shares of Common Stock which may be issued pursuant to the exercise of
the Options, and the Exercise Price of the Options, shall be equitably adjusted
for any stock dividend, stock split, recapitalization, merger, consolidation or
other recapitalization with respect to the Common Stock; provided, that any
Options to purchase fractional shares of Common Stock resulting from any such
adjustment shall be rounded to the nearest whole share. Adjustments under this
Section 2(f) shall be made by the Board in its reasonable discretion, whose
determination as to what adjustments shall be made, and the extent thereof,
shall be final, binding and conclusive.
3. VESTING.
(a) Vesting of Options. Unless otherwise provided in this
Agreement or the Stock Option Plan, one-third of the Options will become vested
on the first three anniversaries of the date of this Agreement provided the
Optionee has continuously served as a Director of the Company since the date of
this Agreement. Any fractional number of shares of Common Stock resulting from
the application of the formula set forth in the preceding sentence shall be
rounded to the next higher whole number of shares in the first (and second if
necessary) year, but no more than the number granted shall result from the
rounding up.
All of the Options which have become vested are referred to herein as "Vested
Options," and all other Options are referred to herein as "Unvested Options."
(b) Sale of the Company. Notwithstanding anything contained in
Section 3(a)(i) to the contrary, if the Optionee has served as a director of the
Company from the date hereof through the earlier of the date of (i) the
consummation of a Sale of the Company or (ii) the consummation of an IPO, all
Unvested Options beneficially owned by the Optionee shall automatically become
Vested Options. All Options shall terminate if not exercised as of the date of
the Sale of the Company and all such Options shall thereafter represent only the
right to receive the excess of the consideration per share of Common Stock
offered in such Sale of the Company over the exercise price of such Options. The
Company shall give the Optionee notice of an impending Sale of the Company at
least 15 days prior to the date of such Sale of the Company.
4. EXPIRATION. The Options not exercised shall expire on the
Expiration Date. Furthermore, if any part of any Option is not exercised prior
to the date the Optionee's service as a Director of the Company is terminated
(the "Termination Date"), such unexercised portion of the Options shall expire
and be forfeited on such date; provided, however, that if the Optionee (i) dies
or becomes subject to any Disability, the part of the Option that is unexercised
shall expire one year from the date of death or Disability, but in no event
after November 15, 2011, and (ii) is discharged other than for Cause, the part
of the Option that is unexercised shall expire 30 days from the date of
discharge, but in no event after November 15, 2011. In the event that the
Optionee (or the Optionee's executor, administrator or permitted successor as
described Section 2 (e)) exercises any Option following the Optionee's
Termination Date, the repurchase right of the Company set forth in Section 5
shall be extended for a period of sixty (60) days.
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5. REPURCHASE OPTION. In the event the Optionee's service as a
director of the Company is terminated (the "Termination") for any reason, all of
the Option Shares (whether held or beneficially owned by the Optionee or any
transferee, executor, administrator or permitted successor of the Optionee) will
be subject to repurchase by the Company and BRS (or its designee) pursuant to
the terms and conditions set forth in this Section 5 (the "Repurchase Option").
(a) With respect to each holder of Option Shares, the purchase
price for each Option Share will be the Fair Market Value for such share.
Notwithstanding the foregoing to the contrary, in the event any such Termination
is by the Company for Cause, the purchase price for each shall be the Exercise
Price paid to acquire such Option Share.
(b) The Board may elect to cause the Company to purchase all or
any portion of the Option Shares by delivering written notice (the "Repurchase
Notice") to the holder or holders of the Option Shares within 45 days after the
Termination. The Repurchase Notice will set forth the number of Option Shares to
be acquired from each holder, the aggregate consideration to be paid for such
securities and the time and place for the closing of the transaction. The number
of shares to be repurchased by the Company shall first be satisfied to the
extent possible from the Option Shares held by the Optionee at the time of
delivery of the Repurchase Notice. If the number of Option Shares held by the
Optionee is less than the total number of Option Shares the Company has elected
to purchase, the Company shall purchase the remaining shares elected to be
purchased from the other holder(s) of Option Shares (i.e., any transferee or
other holder of such Option Shares) under this Agreement, pro rata according to
the number of Option Shares held by such other holder(s) at the time of delivery
of such Repurchase Notice (determined as nearly as practicable to the nearest
share).
(c) If for any reason the Company does not elect to purchase all
of the Option Shares pursuant to the Repurchase Option, BRS (or its designee)
shall be entitled to exercise the Repurchase Option for all or any portion of
the Option Shares that the Company has not elected to purchase (the "Available
Shares"). As soon as practicable after the Company has determined that there
will be Available Shares, but in any event within 45 days after the Termination,
the Company shall give written notice (the "Option Notice") to BRS (or its
designee) setting forth the number of any Available Shares. BRS (or its
designee) may elect to purchase all or a portion of the Available Shares by
giving written notice to the Company within 30 days after the Option Notice has
been given by the Company. As soon as practicable, and in any event within ten
days after the expiration of the 30-day period set forth above, the Company
shall notify each holder of Option Shares as to the number of Available Shares
being purchased from such holder by BRS (or its designee) (the "Supplemental
Repurchase Notice"). At the time the Company delivers the Supplemental
Repurchase Notice to the holder(s) of Option Shares, the Company shall also
deliver written notice to BRS (or its designee) setting forth the number of
Option Shares which BRS (or its designee) is entitled to purchase, the aggregate
purchase price and the time and place of the closing of the transaction.
(d) The closing of the purchase of the Option Shares pursuant to
the Repurchase Option shall take place on the date designated by the Company in
the Repurchase Notice or Supplemental Repurchase Notice, which date shall not be
later than the 60th day after the delivery of the later of such notices to be
delivered (or, if later, the 15th day after the Fair Market Value is finally
determined) nor earlier than the fifth day after such delivery. The Company
and/or BRS (or its designee) will pay for the Option Shares to be purchased
pursuant to the Repurchase Option by delivery of a certified or cashier's check
or wire transfer of funds. The purchasers of Option Shares hereunder will be
entitled to receive customary representations and warranties from the sellers
thereof as to title, authority and capacity to sell and to require all sellers'
signatures to be guaranteed.
(e) Notwithstanding anything to the contrary contained in this
Agreement, all repurchases of Option Shares by the Company shall be subject to
applicable restrictions contained in the Delaware General Corporation Law. If
any such restrictions prohibit the repurchase of Option Shares hereunder which
the Company is otherwise entitled to make, the Company may make such repurchases
as soon as it is permitted to do so under such restrictions.
6. RESTRICTIONS ON OPTION SHARES; SECURITIES LAWS MATTERS.
(a) Restrictions on Transfer of Option Shares. The Optionee may
not sell, pledge, or otherwise transfer any interest in any Option Shares
without the prior written consent of the Company. If the Optionee or anyone
claiming under or through the Optionee attempts to violate this Section 6(a),
such attempted violation shall be null, void,
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and without effect. The Optionee acknowledges that the Option Shares will also
be subject to the provisions of the Stockholders Agreement.
(b) Securities Laws Matters. The Optionee hereby agrees that the
Option Shares that the Optionee may acquire by exercising the Option will not be
sold or otherwise disposed of in any manner that would constitute a violation of
any applicable federal or state securities laws. The Optionee acknowledges that
all Common Stock issued pursuant to the terms of this Agreement shall not be
transferred except in compliance with the registration requirements of the
Securities Act or an exemption therefrom. In connection with any such transfer,
the Company may require the transferor to provide a written opinion of counsel
to the effect that such transfer complies with the Securities Act and other
applicable securities laws.
(c) Listing, Registration, and Legal Compliance. If at any time
the Board determines that the listing, registration, or qualification of the
Option Shares upon any securities exchange or under any state or federal
securities or other law or regulation, or the consent or approval of any
governmental regulatory body, is reasonably required as a condition to or in
connection with the purchase or issuance of Option Shares upon the exercise of
Options, no Options may be granted or exercised, in whole or in part, unless
such listing, registration, qualification, consent, or approval shall have been
effected or obtained free of any conditions not acceptable to the Board. The
Optionee agrees to supply the Company with such certificates, representations,
and information as the Company shall request and shall otherwise cooperate with
the Company in obtaining such listing, registration, qualification, consent, or
approval. The Company hereby agrees to make all such filings and registrations
as are reasonably required to effectuate the terms of this Agreement. The
Company may impose, at any time, any limitations upon the exercise of Options
that the Company, upon advice of its General Counsel, determines are necessary
or desirable in order to comply with such Section 16(b) and the rules and
regulations thereunder.
7. AMENDMENT AND WAIVER. The Board may amend or modify any
Option; provided, that no amendment or modification shall impair or adversely
affect the rights of the Optionee without the consent of the Optionee. To the
extent any amendment of the Stockholders Agreement or Registration Rights
Agreement requires the consent of holders of Common Stock, such amendment shall
require the consent of holders of a majority of the Common Stock on an
as-exercised basis (i.e., assuming full exercise of all options to purchase
Common Stock).
8. WITHHOLDING TAX REQUIREMENTS.
(a) Amount of Withholding. It shall be a condition to the
exercise of any Option that the Optionee make appropriate payment or other
provision acceptable to the Company with respect to any withholding tax
requirement arising from such exercise. The amount of withholding tax required,
if any, with respect to any Option exercise (the "Withholding Amount") shall be
determined by the Company, upon advice of its Chief Financial Officer, and the
Optionee shall furnish such information as the company requests in order to make
such determination.
(b) Withholding Procedure. If the Company determines that
withholding tax is required with respect to any Option exercise, the Company
shall notify the Optionee of the Withholding Amount, and the Optionee shall pay
to the Company an amount not less than the Withholding Amount. In lieu of making
such payment, the Optionee may pay the Withholding Amount by either (i)
delivering to the Company a number of shares of Common Stock having an aggregate
Fair Market Value as of the Measurement Date not less than the Withholding
Amount, or (ii) directing the Company to withhold and not deliver or issue to
the Optionee a number of shares of Common Stock, otherwise issuable upon the
exercise of the Option, having an aggregate Fair Market Value as of the
Measurement Date not less than the Withholding Amount. Any fractional interests
resulting from the delivery or withholding of shares of Common Stock to meet
withholding tax requirements shall be settled in cash. All amounts paid to or
withheld by the Company and the value of all shares of Common Stock delivered to
or withheld by the Company pursuant to this Section 8 shall be deposited in
accordance with applicable law by the Company as withholding tax for the
Optionee's account. If the Company, upon advice of its Chief Financial Officer,
determines that no withholding tax is required with respect to the exercise of
any Option, but it is determined subsequently that the exercise resulted in
taxable income as to which withholding is required (as a result of a disposition
of the Option Shares or otherwise), the Optionee shall promptly, upon being
notified of the withholding requirement, pay to the Company (by means acceptable
to the Company) the amount required to be withheld, and the Company may, at its
election, condition any transfer of Option Shares issued upon exercise of the
Option upon receipt of such payment.
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(c) Notification of Inquiries and Agreements. The Optionee shall
notify the Company in writing within 10 days after the date the Optionee (i)
first obtains knowledge of any Internal Revenue Service inquiry, audit,
assertion, determination, investigation, or question relating in any manner to
the value of Options granted hereunder; (ii) includes or agrees (including,
without limitation, in any settlement, closing, or other similar agreement) to
include in gross income with respect to any Option granted under this Agreement
(A) any amount in excess of the amount reported on Form 1099 or Form W-2 to the
Optionee by the Company, or (B) if the Optionee received no such Form, any
amount; or (iii) sells, disposes, or otherwise transfers Option Shares acquired
pursuant to this Agreement. Upon request, the Optionee shall provide to the
Company any information or document relating to any event described in the
preceding sentence which the Company (in its sole discretion) requires in order
to calculate and substantiate any change in the Company's tax liability as a
result of such event.
9. REPRESENTATIONS AND WARRANTIES OF THE OPTIONEE. As an
inducement to the Company to enter into this Agreement and grant the Options,
the Optionee hereby represents and warrants to the Company as follows:
(a) Capacity and Power. The Optionee has full capacity, power and
authority to execute and deliver this Agreement, to perform his or her
obligations under this Agreement and to consummate the transactions contemplated
hereby. This Agreement has been duly executed and delivered by the Optionee and
constitutes a valid and binding agreement, enforceable against him or her in
accordance with its terms, subject to applicable bankruptcy, insolvency and
other similar laws affecting the enforceability of creditors' rights generally,
general equitable principles and the discretion of courts in granting equitable
remedies.
(b) No Conflict. The execution, delivery and performance by the
Optionee of this Agreement and the transactions contemplated hereby and the
fulfillment by him or her of and compliance by him or her with the terms and
conditions of this Agreement do not and will not, violate or conflict with any
terms or provisions of (i) any contract, deed, lease or other agreement to which
he or she is a party or to which any of his or her assets are subject or (ii)
any judgment, decree, order, statute, rule or regulation applicable to, him or
her or any of his or her assets, except for such violations which could not
reasonably be expected to materially impair or delay his or her ability to
consummate the transactions contemplated hereby. No consent, approval, order or
authorization of, or registration, declaration or filing with, any government
agency or public or regulatory share, agency, body or authority with respect to
him or her is required in connection with his or her execution, delivery or
performance of this Agreement or the consummation of the transactions
contemplated hereby other than any of the foregoing, the failure of which to
receive or make, as the case may be, could not reasonably be expected to
materially impair or delay his or her ability to consummate the transactions
contemplated hereby.
10. REPRESENTATIONS AND WARRANTS OF THE COMPANY. As an inducement
to enter into this Agreement, the Company hereby represents and warrants to each
Optionee as follows:
(a) The Company is a corporation validly existing and in good
standing under the laws of the State of Delaware and is qualified to do business
in every jurisdiction in which its ownership of property or conduct of business
requires it to qualify, except for such jurisdictions in which the failure to so
qualify, would not have a material adverse effect on the Company.
(b) The execution, delivery and performance of this Agreement
have been duly authorized by the Company. This Agreement constitutes a valid and
binding obligation of the Company, enforceable in accordance with its terms,
except to the extent that the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting
creditors' rights generally and by general principles of equity.
11. CONFIDENTIAL INFORMATION. The Optionee acknowledges that the
information, observations and data obtained by him/her while serving as a
director of the Company concerning the business or affairs of the Company or any
Subsidiary ("Confidential Information") are the property of the Company and its
Subsidiaries. Therefore, the Optionee agrees that he/she will not disclose to
any unauthorized person or use for his own account any Confidential Information
without the prior written consent of the Board, unless and to the extent that
the aforementioned matters (i) become generally known to and available for use
by the public other than as a result of the Optionee's acts or omissions to act
or (ii) are required to be disclosed under applicable law or a duly issued
subpoena. The Optionee shall deliver to the Company at the termination of the
Optionee's service as a director, or at any other time the Company
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may request, all memoranda, notes, plans, records, reports, computer tapes and
software and other documents and data (and copies thereof) relating to the
Confidential Information, work product (as defined below) and the business of
the Company or any Subsidiary which he/she may then possess or have under
his/her control.
12. MISCELLANEOUS.
(a) Rights of the Optionee. Nothing in this Agreement shall
interfere with or limit in any way the right of the Company to terminate the
Optionee's service as a director at any time (with or without Cause), or to
confer upon the Optionee any right to continue to serve as a director of the
Company or any of its Subsidiaries for any period of time, or to continue to
receive the Optionee's current (or other) rate of compensation. Except as
otherwise provided herein, unless and until a certificate or certificates
representing the Option Shares shall have been issued to the Optionee, the
Optionee shall not be a securityholder or have any of the rights or privileges
of a securityholder of the Company with respect to shares of Common Stock
acquired upon exercise of the Option.
(b) Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
(c) Entire Agreement. Except as otherwise expressly set forth
herein, this Agreement embodies the complete agreement and understanding among
the parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
(d) Successors and Assigns. Except as otherwise provided herein,
this Agreement shall bind and inure to the benefit of and be enforceable by the
parties hereto and their respective successors and assigns.
(e) Counterparts. This Agreement may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
(f) Remedies. The parties hereto shall be entitled to enforce
their rights under this Agreement specifically to recover damages by reason of
any breach of any provision of this Agreement and to exercise all other rights
existing in their favor. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that the Company and the Optionee may in its sole discretion apply
to any court of law or equity of competent jurisdiction for specific performance
and/or injunctive relief (without posting a bond or other security) in order to
enforce or prevent any violation of the provisions of this Agreement.
(g) Notices. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement will
be in writing and will be deemed to have been given when delivered personally,
mailed by certified or registered mail, return receipt requested and postage
prepaid, or sent via a nationally recognized overnight courier, or sent via
facsimile to the recipient. Such notices, demands and other communications will
be sent to the address indicated below:
If to the Optionee:
[address]
Facsimile No.:
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If to the Company, to:
X'Xxxxxxxx Industries Holdings, Inc.
0000 Xxxx Xxxxxx
Xxxxx, XX 00000-0000
Attention: Vice President, General Counsel & Secretary
Facsimile No.: (000) 000-0000
or such other address or to the attention of such other Person as the recipient
party shall have specified by prior written notice to the sending party. The
Company further agrees to provide the Optionee with copies of all notices and
other communications that the Company is required to provide or otherwise
provide to holders of its Common Stock in their capacity as such, whether or not
the Optionee actually holds any shares of Common Stock at the time any such
notice is given.
(h) Time of the Essence; Computation of Time. Time is of the
essence for each and every provision of this Agreement. Whenever the last day
for the exercise of any privilege or the discharge of any duty hereunder shall
fall upon a Saturday, Sunday, or any date on which banks in New York, New York
are authorized to be closed, the party having such privilege or duty may
exercise such privilege or discharge such duty on the next succeeding day which
is a regular business day.
(i) Waiver of Jury Trial. Each of the parties hereto waives any
right it may have to trial by jury in respect of any litigation based on,
arising out of, under or in connection with this Agreement or any course of
conduct, course of dealing, verbal or written statement or action of any party
hereto.
(j) GOVERNING LAW. ALL QUESTIONS CONCERNING THE CONSTRUCTION,
VALIDITY AND INTERPRETATION OF THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE
STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF
THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
(k) Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
IN WITNESS WHEREOF, the Company and the Optionee have executed
this Common Stock Option Agreement as of the date first above written.
X'XXXXXXXX INDUSTRIES HOLDINGS, INC.
By:
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Name
Title
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Optionee
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