EXHIBIT 10.20
STOCK OPTION AGREEMENT
[Employee Non-Qualified Under Plan]
AGREEMENT, made as of April 3, 2001 and between Xxxxxx Holding Corp., a
Delaware corporation (the "Company"), and Xxxxxx X. Xxxxxxxx (the "Employee").
WHEREAS, on April 3, 2001 ("Grant Date"), pursuant to the terms and
conditions of the Company's 1994 Stock Plan (the "Plan"), the Board of Directors
of the Company or the Committee (as such term is defined in the Plan) authorized
the grant to the Employee of an option to purchase an aggregate of 569,921
shares of the authorized but unissued common stock of the Company, $.0001 par
value ("Common Stock"), conditioned upon the Employee's acceptance thereof upon
the terms and conditions set forth in this Agreement and subject to the terms of
the Plan (capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Plan); and
WHEREAS, the Employee desires to acquire the option on the terms and
conditions set forth in this Agreement.
IT IS AGREED:
1. Grant of Stock Option. The Company hereby grants to the Employee the
right and option ("Option") to purchase all or any part of an aggregate of
569,921 shares of Common Stock ("Option Shares") on the terms and conditions set
forth herein and subject to the provisions of the Plan.
2. Non-Incentive Stock Option. The Option represented hereby is not
intended to be an Option which qualifies as an "Incentive Stock Option" under
Section 422 of the Internal Revenue Code of 1986, as amended ("Code").
3. Exercise Price. The exercise price ("Exercise Price") of the Option
shall be $1.50 per share, subject to adjustment as provided in the Plan.
4. Exercisability. This Option shall become exercisable, subject to the
terms and conditions of the Plan and this Agreement, as follows: (i) the right
to purchase 28.575% of the Option Shares (hereinafter called the "First
Installment") shall be exercisable on and after the Commencement Date (as such
term is defined in Employee's Employment Agreement of even date herewith with
the Company's subsidiary, Xxxxxx Securities, Inc. ("Employment Agreement"));
(ii) the right to purchase 28.575% of the Option Shares shall be exercisable on
and after the first anniversary of the Commencement Date and (iii) the right to
purchase the remaining 42.85% of the Option Shares shall be exercisable on and
after the second anniversary of the Commencement Date. After a portion of the
Option becomes exercisable, it shall remain exercisable except as otherwise
provided herein, until the close of business on April 2, 2011 (the "Exercise
Period").
5. Effect of Termination of Employment.
5.1 Termination Due to Death. Except for the First Installment
portion of the Option, if Employee's employment by the Company terminates by
reason of death, the portion of the Option, if any, that was exercisable as of
the date of death may thereafter be exercised by the legal representative of the
estate or by the legatee of the Employee under the will of the Employee, for a
period of two years from the date of such death or until the expiration of the
Exercise Period, whichever period is shorter. The portion of the Option, if any,
that was not exercisable as of the date of death shall immediately expire.
5.2 Termination Due to Disability. Except for the First Installment
portion of the Option, if Employee's employment by the Company terminates by
reason of disability (as such term is defined in the Employment Agreement), the
portion of the Option, if any, that was exercisable as of the date of disability
may thereafter be exercised by the Employee or legal representative for a period
of one year from the date of such termination or until the expiration of the
Exercise Period, whichever period is shorter. The portion of the Option, if any,
that was not exercisable as of the date of termination shall immediately expire.
5.3 Termination For Cause.
5.3.1 Except for the First Installment portion of the Option, if
Employee's employment is terminated for cause (as such term is defined in the
Employment Agreement), the Option, whether or not then exercisable, shall expire
on the date of termination of employment.
5.3.2 Except for the First Installment portion of the Option, in
the event the Employee's employment is terminated for "cause" as defined in the
Employment Agreement, the Company may require the Employee to return to the
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Company the economic benefit of any Option Shares purchased hereunder by the
Employee within the six month period prior to the date of termination. In such
event, the Employee hereby agrees to remit to the Company, in cash, an amount
equal to the difference between the Fair Market Value (on the date of
termination) of the Option Shares so purchased by Employee (or the sales price
of such Option Shares if the Option Shares were sold during such six month
period) and the Exercise Price.
5.3.3 Other Termination. Except for the First Installment portion
of the Option, if Employee's employment is terminated for any reason other than
(i) death, (ii) disability or (iii) for cause, including, but not limited to a
termination by Employee or a termination by the Company other than for cause,
then that portion of the Option that is exercisable on the date of termination
shall continue to be exercisable as follows: (a) 1/3 may be exercised until two
months after termination, (b) 1/3 may be exercised until four months after
termination and (c) 1/3 may be exercised until six months after termination.
That portion of the Option that is not exercisable on the date of termination
shall expire on the date of termination.
5.4 Other Circumstance. If the Purchase Agreement of even date
herewith among X.X. Xxxxxxx Co., Inc., Xxxxxx Securities, Inc., the Company, et
al. (the "April 2001 Agreement") is terminated for any reason whatsoever
pursuant to the provisions of Section 10 thereof, the Option shall immediately
terminate.
5.5 Competing With the Company. Except for the First Installment
portion of the Option, in the event that Employees breaches his obligations
under Section 5 of the Employment Agreement, the Company, in its sole
discretion, may require such Employee to return to the Company the economic
value of any Option Shares purchased hereunder by the Employee within the
six-month period prior to the date of termination. In such event, Employee
agrees to remit the economic value to the Company in accordance with Section
5.3.2.
6. Withholding Tax. Not later than the date as of which an amount first
must be included in the gross income of the Employee for Federal income tax
purposes with respect to the Option, the Employee shall pay to the Company (or
other entity identified by the Company), or make arrangements satisfactory to
the Company (or other entity identified by the Company) regarding the payment
of, any Federal, state, local or foreign taxes of any kind required by law to be
withheld with respect to such amount ("Withholding Tax"). With the prior
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approval of the Company, in its sole discretion, withholding obligations may be
settled with Common Stock, including Common Stock underlying the subject option,
provided that any applicable requirements under Section 16 of the Exchange Act
are satisfied so as to avoid liability thereunder. The obligations of the
Company under the Plan and pursuant to this Agreement shall be conditioned upon
such payment or arrangements with the Company and the Company shall, to the
extent permitted by law, have the right to deduct any Withholding Taxes from any
payment of any kind otherwise due to the Employee from the Company.
7. Method of Exercise.
7.1 Notice to the Company. The Option may be exercised in whole or in
part by written notice in the form attached hereto as Exhibit A directed to the
Company at its principal place of business accompanied by full payment as
hereinafter provided of the exercise price for the number of Option Shares
specified in the notice and of the Withholding Taxes, if any.
7.2 Delivery of Option Shares. The Company shall deliver a
certificate for the Option Shares to the Employee as soon as practicable after
payment therefor.
7.3 Payment of Purchase Price.
7.3.1 Cash Payment. The Employee shall make cash payments by wire
transfer, certified or bank check or personal check, in each case payable to the
order of the Company. The Company shall not be required to deliver certificates
for Option Shares until the Company has confirmed the receipt of good and
available funds in payment of the purchase price thereof.
7.3.2 Payment through Bank or Broker. The Company, in its sole
discretion, may permit the Employee to make arrangements satisfactory to the
Company with a bank or a broker who is member of the National Association of
Securities Dealers, Inc. to either (a) sell on the exercise date a sufficient
number of the Option Shares being purchased so that the net proceeds of the sale
transaction will at least equal the Exercise Price multiplied by the number of
Option Shares being purchased pursuant to such exercise, plus the amount of the
Withholding Tax and pursuant to which the bank or broker undertakes irrevocably
to deliver the full Exercise Price multiplied by the number of Option Shares
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being purchased pursuant to such exercise, plus the amount of the Withholding
Tax to the Company on a date satisfactory to the Company, but no later than the
date on which the sale transaction would settle in the ordinary course of
business or (b) obtain a "margin commitment" from the bank or broker pursuant to
which the bank or broker undertakes irrevocably to deliver the full Exercise
Price multiplied by the number of Option Shares being purchased pursuant to such
exercise, plus the amount of the Withholding Tax to the Company, immediately
upon receipt of the Option Shares.
7.3.3 Stock Payment. The Company, in its sole discretion, may
allow Employee to use Common Stock of the Company owned by him to make any
required payments by delivery of stock certificates in negotiable form which are
effective to transfer good and valid title thereto to the Company, free of any
liens or encumbrances. Shares of Common Stock used for this purpose shall be
valued at the Fair Market Value.
7.3.4 Cashless Payment. At the election of the Employee, the
Exercise Price for any or all of the Option Shares to be acquired may be paid by
the surrender of any exercisable but unexercised portion of the Option having a
"value" equal to the Exercise Price multiplied by the number of Option Shares to
be exercised. The "value" of a surrendered portion of the Option means, as of
the exercise date, an amount equal to the excess of the total Fair Market Value
of the shares of Common Stock underlying the surrendered portion of the Option
over the total Exercise Price of such shares of Common Stock underlying the
surrendered portion of the Option.
7.3.5 Payment of Withholding Tax. Any required Withholding Tax may
be paid in cash or with Common Stock in accordance with Sections 7.3.1 and
7.3.2, respectively, and Section 6.
7.3.6 Exchange Act Compliance. Notwithstanding the foregoing, the
Company shall have the right to reject payment in the form of Common Stock if in
the opinion of counsel for the Company, (i) it could result in an event of
"recapture" under Section 16(b) of the Securities Exchange Act of 1934; (ii)
such shares of Common Stock may not be sold or transferred to the Company; or
(iii) such transfer could create legal difficulties for the Company.
8. Security Interest in Option Shares Collateralizing Obligations Owed
to the Company. Notwithstanding anything in this Agreement to the contrary,
except for the First Installment portion of the Option, the Employee hereby
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grants Xxxxxx Securities a security interest in the Option Shares as follows: in
the event that the Employee owes Xxxxxx Securities any sum ("Amount Due")
arising from the obligations of the Employee under the April 2001 Agreement or
as a result of his employment by Xxxxxx Securities, Xxxxxx Securities shall have
a security interest in the Option Shares. The Employee hereby agrees to execute,
promptly upon request by Xxxxxx Securities, such instruments and to take such
action as may be useful for Xxxxxx Securities to perfect and/or exercise such
security interest, and hereby irrevocably grants Xxxxxx Securities the right to
retain, in full or partial payment of the Amount Due, up to the following number
of Option Shares upon any whole or partial exercise of the Option: a fraction,
the numerator of which is the Amount Due, and the denominator of which is the
Fair Market Value of the Company's common stock (as defined in the Plan) as of
the date of such exercise; provided that the fraction set forth in the preceding
clause shall be rounded up to the nearest whole number. The security interest
set forth herein shall be cumulative to all, and not in lieu of any, other
remedies to available to the Company with respect to any Amount Due. This
security interest shall be reduced and expire as follows: the security interest
shall be reduced to 50% of the Option Shares initially subject to the Security
Interest two years after the Closing Date (as defined in the April 2001
Agreement) unless on the second anniversary there is still pending a claim by
Xxxxxx Securities against the Employee under the April 2001 Agreement, in which
case the security interest shall remain in full until the final resolution of
such claim. Once the security interest has been reduced to 50% pursuant to the
preceding sentence, it shall then expire three years after the Closing Date
unless on the third anniversary of the termination of employment there is still
pending some other claim by Xxxxxx Securities against the Employee for an Amount
Due arising from his employment by Xxxxxx Securities, in which case the security
interest shall remain until the final resolution of such claim.
9. Nonassignability. The Option shall not be sold, pledged, assigned,
hypothecated, transferred or disposed of in any manner, except by will or by the
laws of descent and distribution in the event of the death of the Employee. No
transfer of the Option by the Employee by will or by the laws of descent and
distribution shall be effective to bind the Company unless the Company shall
have been furnished with written notice thereof and a copy of the will and/or
such other evidence as the Company may deem necessary to establish the validity
of the transfer and the acceptance by the transferee or transferees of the terms
and conditions of the Option.
10. Company Representations. The Company hereby represents and warrants
to the Employee that:
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(a) the Company, by appropriate and all required action, is duly
authorized to enter into this Agreement and consummate all of
the transactions contemplated hereunder; and
(b) the Option Shares, when issued and delivered by the Company to
the Employee in accordance with the terms and conditions hereof,
will be duly and validly issued and fully paid and
non-assessable.
11. Employee Representations. The Employee hereby represents and
warrants to the Company that:
(a) he or she is acquiring the Option and shall acquire the Option
Shares for his own account and not with a view towards the
distribution thereof;
(b) he or she has received a copy of the Plan as in effect as of the
date of this Agreement;
(c) he or she has received a copy of all reports and documents
required to be filed by the Company with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of
1934, as amended, within the last 24 months and all reports
issued by the Company to its stockholders;
(d) he or she understands that he or she is subject to the Company's
Xxxxxxx Xxxxxxx Policy and has received a copy of such policy as
of the date of this Agreement;
(e) he or she understands that he or she must bear the economic risk
of the investment in the Option Shares, which cannot be sold by
him unless they are registered under the Securities Act of 1933
(the "1933 Act") or an exemption therefrom is available
thereunder and that the Company is under no obligation to
register the Option Shares for sale under the 1933 Act;
(f) in his or her position with the Company, he or she has had both
the opportunity to ask questions and receive answers from the
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officers and directors of the Company and all persons acting on
its behalf concerning the terms and conditions of the offer made
hereunder and to obtain any additional information to the extent
the Company possesses or may possess such information or can
acquire it without unreasonable effort or expense necessary to
verify the accuracy of the information obtained pursuant to
clause (iii) above;
(g) he or she is aware that the Company shall place stop transfer
orders with its transfer agent against the transfer of the
Option Shares in the absence of registration under the 1933 Act
or an exemption therefrom as provided herein; and
(h) if, at the time of issuance of the Option Shares, the issuance
of such shares have not been registered under the 1933 Act, the
certificates evidencing the Option Shares shall bear the
following legend:
"The shares represented by this certificate have been
acquired for investment and have not been registered
under the Securities Act of 1933. The shares may not
be sold or transferred in the absence of such
registration or an exemption therefrom under said
Act."
12. Restriction on Transfer of Option Shares.
12.1 Anything in this Agreement to the contrary notwithstanding,
Employee hereby agrees that he shall not sell, transfer by any means or
otherwise dispose of the Option Shares acquired by him without registration
under the 1933 Act, or in the event that they are not so registered, unless (i)
an exemption from the 1933 Act registration requirements is available
thereunder, and (ii) the Employee has furnished the Company with notice of such
proposed transfer and the Company's legal counsel, in its reasonable opinion,
shall deem such proposed transfer to be so exempt.
12.2 Anything in this Agreement to the contrary notwithstanding,
Employee hereby agrees that he shall not sell, transfer by any means or
otherwise dispose of the Option Shares acquired by him except in accordance with
Company's Xxxxxxx Xxxxxxx Policy regarding the sale and disposition of
securities owned by employees and/or directors of the Company.
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12.3 Anything in this Agreement to the contrary notwithstanding,
Employee hereby agrees that he shall not sell, transfer by any means or
otherwise dispose of the Option Shares acquired by him until the first
anniversary of the vesting date with respect to such Option Shares without the
prior written consent of the Company. Employee further agrees that the Company
shall place stop transfer orders with its transfer agent against the Option
Shares and shall place an appropriate restrictive legend on the Option Shares
until such restriction has expired.
13. Adjustments. The number of shares subject to the Option, the
Exercise Price, the Exercise Period and the vesting of the Option shall all be
subject to adjustment under Section 3.2 of the Plan.
14. Miscellaneous.
14.1 Notices. All notices, requests, deliveries, payments, demands
and other communications which are required or permitted to be given under this
Agreement shall be in writing and shall be either delivered personally or sent
by registered or certified mail, or by private courier to the parties at their
respective addresses set forth herein, or to such other address as either shall
have specified by notice in writing to the other. Notice shall be deemed duly
given hereunder when delivered or mailed as provided herein.
14.2 Plan Paramount; Conflicts with Plan. This Agreement and the
Option shall in all respects, be subject to the terms and conditions of the
Plan, whether or not stated herein. In the event of a conflict between the
provisions of the Plan and the provisions of this Agreement, the provisions of
the Plan shall in all respects be controlling.
14.3 Employee and Stockholder Rights. The Employee shall not have
any of the rights of a stockholder with respect to the Option Shares until such
shares have been issued after the due exercise of the Option. Nothing contained
in this Agreement shall be deemed to confer upon Employee any right to continued
employment with the Company or any subsidiary thereof, nor shall it interfere in
any way with the right of the Company to terminate Employee in accordance with
the provisions regarding such termination set forth in Employee's written
employment agreement with the Company, or if there exists no such agreement, to
terminate Employee at will.
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14.4 Waiver. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
other or subsequent breach.
14.5 Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supercedes any and all prior agreements with respect to the Option. This
Agreement may not be amended except by writing executed by the Employee and the
Company.
14.6 Binding Effect; Successors. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and, to the extent not
prohibited herein, their respective heirs, successors, assigns and
representatives. Nothing in this Agreement, expressed or implied, is intended to
confer on any person other than the parties hereto and as provided above, their
respective heirs, successors, assigns and representatives any rights, remedies,
obligations or liabilities.
14.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York (without regard
to choice of law provisions).
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14.8 Headings. The headings contained herein are for the sole
purpose of convenience of reference, and shall not in any way limit or affect
the meaning or interpretation of any of the terms or provisions of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the day and year first above written:
Xxxxxx Holding Corp. Address: 0000 Xxxxxxx Xxxxxxxx
Xxxxxxx, Xxx Xxxx 00000
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxxx, President
EMPLOYEE: Address:
---------------------
---------------------
/s/ Xxxxxx X. Xxxxxxxx ---------------------
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Xxxxxx X. Xxxxxxxx
EXHIBIT A
FORM OF NOTICE OF EXERCISE OF OPTION
----------------------------
DATE
Xxxxxx Holding Corp.
Attention: Stock Option Committee of
the Board of Directors
Re: Purchase of Option Shares
Gentlemen:
In accordance with my Stock Option Agreement dated as of April 3, 2001
with Xxxxxx Holding Corp. (the "Company"), I hereby irrevocably elect to
exercise the right to purchase _________ shares of the Company's common stock,
par value $.0001 per share ("Common Stock"), which are being purchased for
investment and not resale.
As payment for my shares, enclosed is (check and complete applicable
box[es]):
|_| a [personal check] [certified check] [bank check] payable to the
order of the Company in the sum of $_________;
|_| confirmation of wire transfer in the amount of $_____________;
|_| with the consent of the Company, a certificate for __________
shares of the Company's Common Stock, free and clear of any
encumbrances, duly endorsed, having a Fair Market Value (as such
term is defined in the Agreement of $_________;
|_| with the consent of the Company, through broker payment as
provided in Section 7.3.2 (see broker letter attached); and/or
|_| I hereby surrender the portion of the unexercised, but
exercisable, portion of the Option have a value equal to the
Exercise Price multiplied by the number of shares of common
stock being purchase hereunder, to wit: the Option to purchase
____ Option Shares.
(i) I am acquiring the Option and shall acquire the Option
Shares for my own account, for investment, and not with a view towards
the distribution thereof;
(ii) I have received a copy of the Plan and all reports and
documents required to be filed by the Company with the Commission
pursuant to the Exchange Act within the last 24 months and all reports
issued by the Company to its stockholders;
(iii) I understand that I must bear the economic risk of the
investment in the Option Shares, which cannot be sold by me unless they
are registered under the Securities Act of 1933 (the "1933 Act") or an
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exemption therefrom is available thereunder and that the Company is
under no obligation to register the Option Shares for sale under the
1933 Act;
(iv) I understand I am subject to the Company's Xxxxxxx Xxxxxxx
Policy and have received a copy of such policy as of the date of this
Agreement;
(v) I agree that I will not sell, transfer by any means or
otherwise dispose of the Option Shares acquired by me hereby except in
accordance with Company's policy, if any, regarding the sale and
disposition of securities owned by employees and/or directors of the
Company;
(vi) I agree that I will not sell, transfer by any means or
otherwise dispose of the Option Shares acquired by me hereby until the
first anniversary of the vesting date for such Option Shares without the
prior written consent of the Company. I agree that the Company shall
place stop transfer orders with its transfer agent against the transfer
of the Option Shares and the Certificates evidencing the Option Shares
shall bear an appropriate restrictive legend until such restriction
expires;
(vii) in my position with the Company, I have had both the
opportunity to ask questions and receive answers from the officers and
directors of the Company and all persons acting on its behalf concerning
the terms and conditions of the offer made hereunder and to obtain any
additional information to the extent the Company possesses or may
possess such information or can acquire it without unreasonable effort
or expense necessary to verify the accuracy of the information obtained
pursuant to clause (ii) above;
(viii) I am aware that the Company shall place stop transfer
orders with its transfer agent against the transfer of the Option Shares
in the absence of registration under the 1933 Act or an exemption
therefrom as provided herein; and
(ix) My rights with respect to the Option Shares, in all
respects, be subject to the terms and conditions of this Company's 1994
Stock Plan and this Agreement; and
(x) if, at the time of issuance of the Option Shares, the
issuance of such shares have not been registered under the 1933 Act, the
certificates evidencing the Option Shares shall bear the following
legend:
"The shares represented by this certificate have been acquired
for investment and have not been registered under the Securities
Act of 1933. The shares may not be sold or transferred in the
absence of such registration or an exemption therefrom under
said Act."
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Kindly forward to me my certificate at your earliest convenience.
Very truly yours,
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(Signature) (Address)
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---------------------------------
(Print Name)
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