EXHIBIT 10.40
XXXXX ENTERPRISES, INCORPORATED
STOCK OPTION AGREEMENT
FOR 2001 EQUITY INCENTIVE PLAN
This Stock Option Agreement ("Option Agreement") is entered into as of
the 1st day of October, 2001 by and between Xxxxx Enterprises, Incorporated, a
Florida corporation (the "Corporation"), and Xxxxx X. Xxxxxx, an employee of the
Corporation or one of its subsidiaries (the "Optionee").
WHEREAS, the board of directors of the Corporation (the "Board") has
duly adopted the 2001 Equity Incentive Plan (the "Plan"), which authorizes the
Corporation to grant to eligible individuals options for the purchase of shares
of voting common stock, par value $.01 per share, of the Corporation (the
"Stock"); and
WHEREAS, the Corporation has determined that it is desirable and in its
best interests to grant to the Optionee, pursuant to the Plan, an option to
purchase a certain number of shares of Stock in order to provide the Optionee
with an incentive to advance the interests of the Corporation and its
subsidiaries, all according to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties hereto, intending to be legally bound hereby,
agree as follows:
1. GRANT OF OPTION. Subject to the terms of the Plan (attached hereto
as Exhibit A, the terms of which are incorporated herein by this reference), the
Corporation hereby grants to the Optionee the right and option (the "Option") to
purchase from the Corporation, on the terms and subject to the conditions set
forth herein and in the Plan, 15,000 shares of Stock. The Option shall
constitute an incentive stock option within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code"), to the fullest extent
permissible thereunder, taking into account such Option and any other incentive
stock options issued to the Optionee under the Plan and all other plans of the
Optionee's employer corporation and its parent and subsidiary corporations
within the meaning of Section 422(d) of the Code, in the order in which the
Option issued hereunder and any such other incentive stock options were granted.
Any portion of the Option issued hereunder which is not treated as an incentive
stock option shall be treated as a nonqualified stock option. The date of grant
of the Option is October 1, 2001 (the "Grant Date"), the date on which the grant
of the Option was approved in accordance with the terms and conditions of the
Plan.
2. PRICE. The purchase price (the "Exercise Price") for the shares of
Stock subject to the Option granted by this Option Agreement is $5.786 per
share, which may not be less than one hundred percent (100%) (or, in the case of
a Ten Percent Stockholder, one hundred and ten percent (110%)) of the Fair
Market Value of the Stock on the date of grant, unless otherwise determined by
the Administrator of the Plan.
3. EXERCISE OF OPTION. Except as otherwise provided herein and in the
Plan, the Option granted pursuant to this Option Agreement shall be subject to
exercise as follows:
3(a). TIME OF EXERCISE OF OPTION. The Optionee may exercise the
Option (subject to the limitations on exercise set forth in Section 3(d)
hereof), in whole or in part, as follows: (i) the Option may not be exercised to
any extent prior to one year following the Grant Date; and (ii) the Option may
be exercised to the extent of 25% of the shares of Stock specified in Section 1
hereof after one year following the Grant Date and may be exercised to the
extent of 25% of the shares of Stock specified in Section 1 hereof after each of
the second, third, and fourth years following the Grant Date.
3(b).RETIREMENT, DEATH OR DISABILITY. If the Optionee: (i) dies while
employed by the Corporation or a Subsidiary or within the period when an Option
could have otherwise been exercised by the Optionee; (ii) terminates employment
with the Corporation or a Subsidiary by reason of the "permanent and total
disability" (within the meaning of Section 22(e)(3) of the Code) of the
Optionee; or (iii) terminates employment with the Corporation or a Subsidiary as
a result of the Optionee's retirement, provided that the Corporation or such
Subsidiary has consented in writing to the Optionee's retirement, then, in each
such case, the Optionee, or the duly authorized representatives of the Optionee,
shall have the right, at any time within three (3) months after the death,
disability or retirement of the Optionee, as the case may be, and prior to the
termination of the Option pursuant to Section 3(d) below, to exercise any Option
to the extent such Option was exercisable by the Optionee immediately prior to
the Optionee's death, disability or retirement. In the discretion of the
Administrator of the Plan, the three-month period referenced in the immediately
preceding sentence may be extended for a period of up to one year. For the
purposes of this Option Agreement, the terms "Subsidiary" and "Administrator"
shall have the respective meanings set forth in the Plan.
3(c). TERMINATION OF EMPLOYMENT. During the life of the Optionee, an
Option shall be exercisable only by the Optionee and only within three (3)
months after the termination of the Optionee's employment with the Corporation
or a Subsidiary, other than by reason of the Optionee's death, permanent
disability or retirement with the consent of the Corporation or a Subsidiary as
provided in Section 3(b) above, but only if and to the extent the Option was
exercisable immediately prior to such termination, and subject to the provisions
of Section 3(d) below. Notwithstanding the foregoing, if the Optionee's
employment is terminated for cause, or the Optionee terminates his own
employment with the Corporation, all Options theretofore granted and not yet
exercised (whether or not vested) shall terminate immediately on the date of
termination of employment. "Cause" shall have the meaning set forth in any
employment agreement then in effect between the Optionee and the Corporation or
any of its Subsidiaries, or if the Optionee does not have any employment
agreement, "cause" shall mean (i) if the Optionee engages in conduct which has
caused, or is reasonably likely to cause, demonstrable and serious injury to the
Corporation, (ii) the material negligence of, or failure to perform, the
Optionee's duties to the Corporation or (iii) if the Optionee is convicted of a
felony or a misdemeanor which substantially impairs the Optionee's ability to
perform his or her duties to the Corporation.
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3(d). LIMITATIONS ON EXERCISE OF OPTION. If the Optionee owned
capital stock of the Corporation possessing more than 10% of the total combined
voting power or value of all classes of capital stock of the Corporation as of
the Grant Date (a "Ten Percent Stockholder"), then in no event may the Option be
exercised, in whole or in part, after five (5) years following the Grant Date.
If the Optionee is not a Ten Percent Stockholder, then in no event may the
Option be exercised, in whole or in part, after ten (10) years following the
Grant Date. In no event may the Option be exercised for a fractional share.
3(e). ASSIGNMENT OF OPTION. Options shall not be assignable or
transferable by the Optionee other than by will or by the laws of descent and
distribution. Except as provided herein, no Option, and no right under any such
Option, may be pledged, alienated, attached, or otherwise encumbered, and any
purported pledge, alienation, attachment, or encumbrance thereof shall be void
and unenforceable against the Corporation.
4. METHOD OF EXERCISE OF OPTION. Any payment for shares of Stock
purchased upon exercise of an Option granted hereunder shall be made in cash.
Notwithstanding the foregoing, if permitted by the Administrator, the payment
may be made by delivery of shares of Stock beneficially owned by the Optionee,
or attestation by the Optionee to the ownership of a sufficient number of shares
of Stock, or by a combination of cash and Stock, at the election of the Optionee
with the consent of the Administrator; provided, however, that any shares of
Stock so delivered or attested shall have been beneficially owned by the
Optionee for a period of not less than six (6) months prior to the date of
exercise. Any such shares of Stock so delivered or attested shall be valued at
their Fair Market Value (as defined in the Plan) on the date of such exercise.
The Administrator shall determine whether and if so the extent to which actual
delivery of share certificates to the Corporation shall be required. The
Administrator also may authorize payment in accordance with a cashless exercise
program under which, if so instructed by the Optionee, Stock may be issued
directly to the Optionee's broker upon receipt of the Option purchase price in
cash directly to the broker.
5. EFFECT OF CHANGES IN CAPITALIZATION. Section 10 of the Plan shall
apply to the Option.
6. WITHHOLDING OF TAXES. The parties hereto recognize that the
Corporation or any subsidiary thereof may be obligated to withhold federal and
local income taxes and Social Security taxes to the extent that the Optionee
realizes ordinary income in connection with the exercise of the Option or in
connection with certain dispositions of any shares of Stock acquired by exercise
of the Option. The Optionee agrees that the Corporation or any subsidiary
thereof may withhold amounts needed to cover such taxes from payments otherwise
due and owing to the Optionee, and also agrees that upon demand the Optionee
will promptly pay to the Corporation or any subsidiary thereof having such
obligation any additional amounts as may be necessary to satisfy such
withholding tax obligation. Such payment shall be made in cash or by certified
check payable to the order of the Corporation or a subsidiary thereof. With the
prior approval of the Corporation, however, which may be withheld by the
Corporation in its
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sole discretion, the Optionee may elect to satisfy such obligations, in whole or
in part, (a) by causing the Corporation to withhold shares of Stock otherwise
issuable pursuant to the exercise of the Option or (b) by delivering to the
Corporation shares of Stock already owned by the Optionee. The shares so
delivered or withheld shall have a fair market value equal to such withholding
obligations. The fair market value of the shares used to satisfy such
withholding obligation shall be determined by the Corporation in accordance with
the Plan as of the date that the amount of tax to be withheld is to be
determined.
7. DELIVERY OF SHARES. Shares of Stock purchased by the Optionee upon
the partial or complete exercise of the Option shall be delivered to the
Optionee upon notice of issuance given by the Corporation to its transfer agent.
8. INTERPRETATION OF THIS OPTION AGREEMENT. In the event that there is
any inconsistency between the provisions of this Option Agreement and of the
Plan, the provisions of the Plan shall govern.
9. GOVERNING LAW. This Option Agreement is executed pursuant to and
shall be governed by the internal laws of the State of Florida without reference
to the conflict of law principles thereof.
10. NOTICE. Any notice hereunder by the Optionee to the Corporation
shall be in writing and shall be deemed duly given: (i) when mailed or delivered
to the Corporation at its principal office, addressed to the attention of the
Board, or if so mailed or delivered to such other address as the Corporation may
hereafter designate by notice to the Optionee; or (ii) when sent by facsimile,
telecopy, telex or other form of written electronic transmission, upon
confirmation of receipt thereof by the Corporation. Any notice or delivery
hereunder by the Corporation or its transfer agent to the Optionee shall be in
writing and shall be deemed duly given: (i) when mailed or delivered to the
Optionee at the address specified below by the Optionee for such purpose, or if
so mailed or delivered to such other address as the Optionee may hereafter
designate by written notice given to the Corporation; or (ii) when sent by
facsimile, telecopy, telex or other form of written electronic transmission,
upon confirmation of receipt thereof by the Optionee.
11. ENTIRE AGREEMENT. This Option Agreement (including Exhibit A
hereto) constitutes the entire agreement and supersedes all prior understandings
and agreements, written or oral, of the parties hereto with respect to the
subject matter hereof. Neither this Option Agreement nor any term hereof may be
amended, waived, discharged or terminated except by a written instrument signed
by the Corporation and the Optionee; provided, however, that the Corporation
unilaterally may waive any provision hereof in writing to the extent that such
waiver does not adversely affect the interests of the Optionee hereunder or
otherwise cause the Option granted hereunder not to qualify as an "incentive
stock option" within the meaning of Section 422 of the Code (if applicable), but
no such waiver shall operate as or be construed to be a subsequent waiver of the
same provision or a waiver of any other provision hereof.
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12. SUCCESSORS AND ASSIGNS. This Option Agreement shall be binding
upon, inure to the benefit of, and be enforceable by, the respective successors,
personal representatives and permitted assigns of the parties hereto.
13. COUNTERPARTS. This Option Agreement may be executed in one or more
counterparts, each of which shall constitute an original, but all of which
together shall be one and the same instrument.
14. FACSIMILE SIGNATURE. This Option Agreement may be executed by
either of the parties (the "Originating Party") and transmitted to the other
party (the "Receiving Party") by facsimile, telecopy, telex or other form of
written electronic transmission, and, upon confirmation of receipt thereof by
the Receiving Party, this Option Agreement shall be deemed to have been duly
executed by the Originating Party. Upon the request of the Receiving Party, the
Originating Party shall provide the Receiving Party with an executed duplicate
original of this Option Agreement.
15. TAX CONSEQUENCES. The Optionee should consult his or her tax
advisor regarding the tax consequences relating to the Option, including the
exercise of the Option and the sale of the stock purchased upon such exercise,
and the Corporation makes no representations regarding such tax consequences nor
the ability for the Option or any part thereof to constitute an incentive stock
option within the meaning of Section 422 of the Code.
IN WITNESS WHEREOF, the parties hereto have duly executed this Stock
Option Agreement, or caused this Stock Option Agreement to be duly executed on
their behalf, as of the day and year first above written.
XXXXX ENTERPRISES, INCORPORATED
By: /S/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Senior Vice President, Human Resources
OPTIONEE:
/S/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
ADDRESS FOR NOTICE TO OPTIONEE:
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