1
EXHIBIT 10.9
▇▇▇▇▇▇ INDUSTRIES, INC.
[▇▇▇▇▇▇ LOGO] INCENTIVE STOCK OPTION AGREEMENT
=============================================================================================================================
NUMBER OF SHARES OF ▇▇▇▇▇▇ OPTION PRICE
GRANTED TO: GRANT DATE INDUSTRIES COMMON STOCK PER SHARE EMPLOYEE NUMBER
---------- -------------------------- ------------ ---------------
------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------
EXPIRATION DATE DIVISION
------------------------------------------------------------------------------------------
=============================================================================================================================
This Agreement is made between ▇▇▇▇▇▇ Industries, Inc., an Ohio corporation,
having its principal office In Houston, Texas (the "Company"), and the
undersigned, an employee of the Company or a subsidiary of the Company (the
"Employee"). The parties hereto have agreed as follows:
1. Pursuant to the ▇▇▇▇▇▇ Industries, Inc. Stock Incentive Plan (the "Plan"),
the Company grants to the Employee an Incentive Stock Option ("Option") to
purchase the above stated number of shares of the Company's Common Stock, par
value $5 per share (the "Shares"), at the price stated above, subject to the
following conditions:
(a) The Option rights are exercisable only if and after the Employee shall have
remained in the employ of the Company for one year from the date of grant
of this Option (the "Grant Date"). The Option shall become exercisable to
the extent of only 33 1/3% of the aggregate number of Shares above
specified, after one year, 66 2/3% after two years, and 100% after three
years from the Grant Date.
(b) During the lifetime of the Employee, the Option rights are exercisable
only by the Employee, and, except as otherwise provided in Sections 2,3 and
4 below, only if the Employee has remained continuously in the employ of
the Company from the Grant Date.
(c) The Option rights shall expire at the end of the period of 10 years
commencing with the Grant Date, or upon such earlier expiration or
termination date as may be provided by Sections 2,3,4 or 9 hereof and such
Option rights shall not be exercisable thereafter.
2. It, after the expiration of one year from the Grant Date, the Employee shall
cease to be employed by the Company for any reason other than death, disability
or retirement, the Option rights shall terminate immediately. If, after the
expiration of one year from the Grant Date, cessation of employment is
occasioned by retirement in accordance with any retirement plan of the Company
then in effect, then the Employee may exercise the Option rights following such
retirement for a period of five years after retirement or until the Expiration
Date, whichever is lesser. However, if an Employee retires in accordance with
any retirement plan of the Company then in effect and accepts employment with
any competitor of, or otherwise engages in competition with, the Company, the
Committee, in its sole discretion, may require such Employee to forfeit any
unexercised Options under this Agreement. Incentive Stock Options must be
exercised within 90 days from retirement in order to retain favorable tax
treatment, Options exercised more than 90 days from retirement will be
considered to be nonqualified exercises and applicable taxes will be collected
at the time of exercise.
3. If, after the expiration of one year from the Grant Date, the Employee shall
cease employment as the direct result of disability (as defined in the Company's
qualified Salaried Pension Plan), all outstanding options granted to the
Employee become exercisable immediately and the Employee may exercise such
outstanding options for a period of one year after the cessation of employment
resulting from disability or until the Expiration Date, whichever in lesser,
irrespective of any restrictions to the contrary contained in Section 1(a)
above.
4. If, after the expiration of one year from the Grant Date, the Employee shall
die while in the employ of the Company, or while retired with exercisable
Options under Section 2, all outstanding options granted to the Employee become
exercisable immediately and the person entitled by will or the applicable laws
of descent and distribution may exercise such outstanding Options for a period
of one year after the date of death or until the Expiration Date, whichever is
lesser, irrespective of any restrictions to the contrary contained in Section 1
(a) above.
5. The Option may be exercised by delivering to the Company at its principal
executive office (directed to the attention of the Secretary or Assistant
Secretary) a written notice, signed by the Employee or a person entitled by will
or the laws of descent and distribution to exercise the Option, as the case may
be, of the election to exercise the Option and stating the number of Shares in
respect of which it is then being exercised. The Option shall be deemed
exercised as of the date the Company receives such notice. Such notice shall,
and as an essential part thereof, be accompanied by the payment of the full
purchase price of the Shares then to be purchased. In the event the Option shall
be exercised, as provided herein, by any person other than the Employee, such
notice shall be accompanied by appropriate evidence of the right of such person
to exercise the Option. Payment of the full purchase price may be made in (a)
cash, (b) shares of the Company's Common Stock ("Stock") or (c) any combination
of cash and Stock, provided that any Stock used by the Employee in payment of
the purchase price must have been acquired (whether by purchase, exchange or
otherwise) by the Employee and held for a period of more than six months, and
provided further that the Company reserves the right to prohibit the use of
Stock as payment of the purchase price. Stock used in payment of the purchase
price shall be valued at the average of the high and low trading prices of such
Stock on the New York Stock Exchange or as reported in the consolidated
transaction reporting
2
system for the date of exercise. Upon the proper exercise of the Option, the
Company shall issue in the name of the person exercising the Option, and deliver
to such person, a certificate for the Shares purchased. The Employee agrees that
as holder of the Option he or she shall have no rights as shareholder in respect
of any of the Shares as to which the Option shall not have been effectively
exercised as herein provided and that no rights as a shareholder shall arise in
respect of any Shares as to which the Option shall have been duly exercised
until and unless a certificate for such Shares shall have been issued.
6. This Option shall not be exercisable if such exercise would violate:
(a) Any applicable state securities law;
(b) Any applicable registration or other requirements under the Securities Act
of 1933, as amended (the "Act"), the Securities Exchange Act of 1934, as
amended, or the listing requirements of any stock exchange; or
(c) Any applicable legal requirement of any other governmental authority.
Furthermore, if registration statement with respect to the Shares to be issued
upon the exercise of this Option is not in effect or if counsel for the Company
deems it necessary or desirable in order to avoid possible violation of the Act,
the Company may require, as a condition to its issuance and delivery of
certificates for the Shares, the delivery to the Company of a written statement
that the Employee is acquiring such Shares for investment only and not with a
view to, or for resale in connection with, the distribution thereof; that such
person understands that the Shares may be "restricted securities" as defined in
Rule 144 issued under the Act; and that any resale, transfer or other
disposition of said Shares will be accomplished only in compliance with Rule
144, the Act, or other or subsequent applicable rules and regulations
thereunder. The Company may place on the certificates evidencing such Shares an
appropriate legend reflecting the aforesaid statement and the Company may refuse
to permit transfer of such certificates until it has been furnished evidence
satisfactory to it that no violation of the Act or the rules and regulations
thereunder would be involved in such transfer.
7. In consideration of the granting of this Option by the Company, the
Employee agrees that he or she will remain in the employ of the Company for a
period of not less than one year from the Grant Date unless during said period
his or her employment shall be terminated on account of incapacity or with the
consent of the Company. Nothing herein contained shall limit or restrict any
right which the Company would otherwise have to terminate the employment of the
Employee.
8. This Option and the Option rights granted hereunder are not assignable or
transferable or subject to any disposition by the Employee otherwise than by
will or by the laws of descent and distribution.
9. In the event of a reorganization, recapitalization or other change in the
capital stock, corporate structure or business of the Company, the Board of
Directors shall make appropriate adjustments to the number of Shares subject to
the Option and the exercise price so as to maintain the proportionate interest
of the Employee and preserve the value of the Option. In the event of a Change
in Control of the Company, outstanding Options shall be settled by a cash
payment in accordance with Section 18.2 of the Plan.
10. For purposes of this Agreement, employment by a parent or subsidiary of or a
successor to the Company shall be considered employment by the Company.
11. The Committee shall have authority, subject to the express provisions of the
Plan, to construe this Agreement and the Plan, to establish, amend and rescind
rules and regulations relating to the Plan, and to make all other determinations
in the judgment of said Committee necessary or desirable for the administration
of the Plan. The Committee may correct any defect or supply any omission or
reconcile any inconsistency in the Plan or in this Agreement in the manner and
to the extent it shall deem expedient to carry the Plan into effect. All action
by the Committee under the provisions of this paragraph shall be conclusive for
all purposes.
12. The Employee hereby agrees to notify the Company promptly of the
disposition, whether by sale, exchange or otherwise, of any Shares acquired
pursuant to this Option within a period of one year from their acquisition. Such
notice shall state the date and manner of disposition and the proceeds, if any,
received by the Employee as a result thereof.
13. Notwithstanding any provisions hereof, this Agreement and the Option granted
hereunder shall be subject to all of the provisions of the Plan as are in effect
from time to time, which provisions are incorporated herein by reference.
14. This Agreement shall be governed and construed in accordance with the laws
of the State of Texas, excluding any conflicts or choice of law rule or
principle that might otherwise refer construction or interpretation of the
Agreement to the substantive law of another jurisdiction.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in duplicate
as of the Grant Date first above written.
▇▇▇▇▇▇ INDUSTRIES, INC.
BY
--------------------------------------------
Employee Signature
----------------------------
Social Security No.
---------------------------
Home Address
---------------------------------
----------------------------------------------
THIS DOCUMENT CONSTITUTES PART OF A PROSPECTUS COVERING SECURITIES
THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933.