Exhibit 10
STOCK OPTION AGREEMENT
AGREEMENT made as of January 28, 1999, by and between
Niagara Corpora tion (formerly International Metals Acquisition Corporation),
a Delaware corporation ("Niag ara"), and Xxxxxxx Xxxxxx (the "Executive").
WHEREAS, on August 15, 1995, Niagara's Board of Directors
(the "Board") approved the International Metals Acquisition Corporation 1995
Stock Option Plan (the "Plan");
WHEREAS, on May 16, 1996, Niagara's stockholders approved
the Plan; and
WHEREAS, the Compensation Committee of the Board desires to
grant to the Executive a Non-Qualified Stock Option under the Plan to acquire
an aggregate of 600,000 shares of Niagara common stock, par value $.001 per
share (the "Stock"), on the terms set forth herein.
NOW, THEREFORE, the parties hereby agree as follows:
1. Definitions. Capitalized terms not otherwise defined
herein shall have the meanings set forth in the Plan.
2. Grant of Option. The Executive is hereby granted a
Non-Qualified Stock Option (the "Option") to purchase an aggregate of 600,000
shares of Stock, pursuant to the terms of this Agreement and the provisions
of the Plan.
3. Option Price. The exercise price of the Option shall be
$5.875 per share of Stock issuable pursuant to the exercise thereof.
4. Conditions to Exercisability.
(a) The Option shall become exercisable as to
twenty percent (20%) of the shares of Stock covered by the Option on each of
the next five anniversaries of this Agree ment, provided that the Executive
continues to be employed by Niagara or one of its subsidiaries (collectively,
the "Company") on such date.
(b) Notwithstanding the foregoing, the Option
shall become exercis able in full upon the occurrence of the Change in
Control of Niagara (as defined in the Plan).
5. Period of Option. This Option shall expire on the
earliest to occur of:
(a) the tenth anniversary of the date of this
Agreement; and
(b) 90 days after the termination of the
Executive's employment with the Company for any reason.
6. Exercise of Option.
(a) The Option shall be exercised in the following
manner: the Executive shall deliver to Niagara written notice specifying the
number of shares of Stock which he elects to purchase. The Executive must
included with such notice full payment of the exercise price for the Stock
being purchased pursuant to such notice. Payment of the exercise price must
be made in cash or in shares of Stock having a Fair Market Value equal to
such Option price or in a combination of cash and Stock. In lieu of full
payment of the exercise price in cash, upon request of the Executive, Niagara
may, at its discretion, allow the Executive to exercise the Option or a
portion thereof through a cashless exercise procedure.
(b) Upon the disposition of shares of Stock
acquired pursuant to the exercise of the Option, Niagara shall have the right
to require the payment of the amount of any taxes which are required by law
to be withheld with respect to such disposition.
(c) The Executive will not be deemed to be a
holder of any shares of Stock pursuant to exercise of the Option until the
date of the issuance of a stock certificate to him for such shares and until
such shares are paid for in full.
7. Entire Agreement. This Agreement and the Plan contain
all the under standings between the parties hereto pertaining to the matters
referred to herein, and supersedes all undertakings and agreements, whether
oral or in writing, previously entered into by them with respect thereto. The
Executive represents that, in executing this Agreement, he does not rely and
has not relied upon any representation or statement not set forth therein
made by the Company with regard to the subject matter, bases or effect of
this Agreement or otherwise.
8. Amendment or Modification; Waiver. No provision of this
Agreement may be amended or waived unless such amendment or waiver is agreed
to in writing, signed by the Executive and by a duly authorized director or
officer of Niagara. No waiver by any party hereto of any breach by another
party hereto of any condition or provision of this Agreement to be performed
by such other party shall be deemed a waiver of a similar or dissimilar
condition or provision at the same time, any prior time or any subsequent
time.
9. Notices. Any notice to be given hereunder shall be in
writing and shall be deemed given when delivered personally, sent by courier
or telecopy or registered or certified mail, postage prepaid, return receipt
requested, addressed to the party concerned at the address indicated below or
to such other address as such party may subsequently give notice of hereunder
in writing:
To the Executive at:
c/o 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
To Niagara at:
Niagara Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx
Vice President & General Counsel
Any notice delivered personally or by courier under this
Section 9 shall be deemed given on the date delivered and any notice sent by
telecopy of registered or certified mail, postage prepaid, return receipt
requested, shall be deemed given on the date telecopies or mailed.
10. Severability. If any provision of this Agreement or the
application of any such provision to any party or circumstances shall be
determined by any court of competent jurisdiction to be invalid or
unenforceable to any extent, the remainder of this Agreement or the
application of such provision to such person or circumstances other than
those to which it is so determined to be invalid and unenforceable, shall not
be affected thereby, and each provision hereof shall be validated and shall
be enforced to the fullest extent permitted by law.
11. Survival. The respective rights and obligations of the
parties hereunder shall survive any termination of this Agreement to the
extent necessary to the intended preserva tion of such rights and
obligations.
12. Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of Delaware, without
regard to its conflicts of laws principles.
13. Headings. All descriptive headings of sections and
paragraphs in this Agreement are intended solely for convenience, and no
provision of this Agreement is to be construed by reference to the heading of
any section or paragraph.
14. Construction. This Agreement is made under and subject
to the provisions of the Plan, and all of the provisions of the Plan are
hereby incorporated herein as provisions of this Agreement. If there is a
conflict between the provisions of this Agreement and the provisions of the
Plan, the provisions of the Plan will govern. By signing this Agreement, the
Executive confirms that he has received a copy of the Plan and has had an
opportunity to review the contents thereof.
15. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
NIAGARA CORPORATION
By: /s/ Xxxx Xxxxxxxx
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Xxxx X. Xxxxxxxx
Vice President
/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
