Exhibit 10.7.1
▇▇▇▇▇▇'▇ TRADING COMPANY, INC.
1999 STOCK OPTION PLAN, AS AMENDED
FORM OF STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "Agreement") is entered into as of
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___________ by and between ▇▇▇▇▇▇'▇ Trading Company, Inc., an Indiana
corporation (the "Company"), and _____________ ("Optionee") pursuant to the
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▇▇▇▇▇▇'▇ Trading Company, Inc. 1999 Stock Option Plan, as amended (the "Plan").
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All capitalized terms not otherwise defined herein shall have the meanings set
forth in the Plan.
R E C I T A L S
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A. Optionee is an employee of the Company and the Company considers
it desirable to give Optionee an added incentive to advance the Company's
interests.
B. The Committee has determined to grant Optionee the right to
purchase shares of common stock of the Company pursuant to the terms and
conditions of this Agreement and the Plan.
A G R E E M E N T:
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NOW, THEREFORE, in consideration of the covenants hereinafter set
forth, the parties agree as follows:
1. Options; Number of Shares.
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(a) The Company hereby grants to Optionee the right to
purchase (each an "Option" and collectively, the "Options") up to _________
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shares of common stock, no par value, of the Company (the "Common Stock" or the
"Shares") at the per share price (the "Purchase Price") of $__________.*
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Subject to adjustment under Section 10 of the Plan.
(b) The Options and the right to purchase all or any portion
of the Shares are subject to the terms and conditions stated in this Agreement
and in the Plan. Upon exercise of an Option and payment of the Purchase Price,
Optionee shall become a shareholder of the Company, with all rights and
privileges of a shareholder of the Company in respect of any Shares issuable
upon such exercise. It is intended that the Options will not qualify for
treatment as an incentive stock option under Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code").
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* Subject to adjustment under Section 10 of the Plan.
2. Exercise Criteria; Termination of Options.
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(a) Exercise Criteria. The Options shall become vested and
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exercisable as set forth on Schedule A.
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(b) Termination. The Options and Optionee's right to exercise
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the Options, shall terminate on the expiration of seven (7) years from the date
hereof unless terminated earlier pursuant to Section 3 hereof or pursuant to the
Plan (including, without limitation, pursuant to Section 13(b) of the Plan).
3. Effect of Termination of Employment or Death. If the Optionee's
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employment by the Company terminates for any reason (including, without
limitation, by reason of Optionee's death, disability, retirement, voluntary
resignation or dismissal by the Company, with or without cause) (the date of
such termination is referred to as the "Termination Date"), the Options and all
other rights and benefits under this Agreement terminate, except that the
Optionee may, at any time within the following applicable period after the
Termination Date, exercise the Options to the extent the Options were
exercisable on the Termination Date and have not otherwise expired or do not
otherwise expire prior to the end of such periods:
(a) Termination of Optionee's employment or other
relationship with the Company by the Company (other than termination for cause):
for a period of 90 days; provided that if Optionee dies within 90 days after his
Termination Date, such period shall be extended to 120 days after his
Termination Date;
(b) Voluntary resignation (other than in anticipation of or
in connection with a termination for cause): for a period of 90 days; provided
that if Optionee dies within 90 days after his Termination Date, such period
shall be extended to 120 days after his Termination Date; or
(c) Optionee's death or disability (within the meaning of
Section 22(e)(3) of the Code): for a period of 120 days.
In the case of a termination for cause (as determined in good faith by the Board
of Directors of the Company (the "Board")) or a voluntary resignation in
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anticipation of or in connection with a termination for cause, the Options shall
terminate immediately, in their entirety and shall not be exercisable in whole
or part thereafter.
4. Termination of Employment or Other Relationship. The termination
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for any reason of Optionee's employment or other relationship with the Company
shall not accelerate the vesting of the Options. The Options may only be
exercised with respect to that number of Shares which could have been exercised
under the Options had such Options been exercised by Optionee on the date of
such termination (for a termination other than cause) and only for the limited
period of time set forth in Section 3.
5. Death of Optionee: No Assignment. The rights of Optionee under
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this Agreement may not be assigned or transferred except by will, by the laws of
descent or distribution and may be exercised during the lifetime of Optionee
only by such Optionee; provided, however, that in the event of disability
(within the meaning of Section 22(e)(3) of the
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Code) of Optionee, a designee of Optionee (or the Optionee's legal
representative if Optionee has not designated anyone) may exercise the Options
on behalf of Optionee (provided the Options would have been exercisable by
Optionee) until the right to exercise the Options otherwise expires. Any attempt
to sell, pledge, assign, hypothecate, transfer or otherwise dispose of the
Options in contravention of this Agreement or the Plan shall be void. If
Optionee should die while Optionee is engaged in an employment relationship with
the Company or within 90 days after termination of such relationship, and
provided Optionee's rights hereunder shall have vested, in whole or in part,
pursuant to Section 2 hereof, Optionee's designee, legal representative, or
legatee, the successor trustee of Optionee's inter vivos trust or the person who
acquired the right to exercise the Options by reason of the death of Optionee
(individually, a "Successor") shall succeed to Optionee's rights under this
Agreement. After the death of Optionee, only a Successor may exercise the
Options.
6. Exercise of Options. No Option granted under this Agreement
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shall be exercisable until and except to the extent that it has vested. On or
after the vesting of the Options in accordance with Section 2 hereof and until
termination of the Options in accordance with this Agreement and the Plan, the
Options may be exercised by Optionee (or such other person specified in Section
5 hereof) to the extent exercisable as determined under Section 2 hereof, upon
delivery of the following to the Company at its principal executive offices:
(a) a written notice of exercise which identifies this
Agreement, the type of Option to be exercised, and states the number of Shares
to be purchased;
(b) a check, cash or any combination thereof in the amount
of the aggregate Purchase Price (or payment of the aggregate Purchase Price in
such other form of lawful consideration as the Committee may approve from time
to time under the provisions of Section 7 of the Plan);
(c) a check or cash in the amount reasonably requested by
the Company to satisfy the Company's withholding obligations under federal,
state or other applicable tax laws with respect to the taxable income, if any,
recognized by Optionee in connection with the exercise, in whole or in part, of
the Options (unless the Company and Optionee shall have made other arrangements
for deductions or withholding from Optionee's wages, bonus or other income paid
to Optionee by the Company, provided, however, such arrangements must satisfy
the requirements of all applicable tax laws);
(d) any written representations and/or undertakings, in such
form and substance as the Company may deem necessary or desirable to assure
compliance with all applicable legal and accounting requirements; and
(e) such further acts as may be necessary to register
Optionee as a shareholder of the Company.
Fractional share interests shall be disregarded, but may be cumulated. No fewer
than 100* Options may be exercised at any one time, unless the number is the
total number of Options exercisable at the time.
7. Continuance of Employment Required; No Employment
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Commitment. The vesting schedule requires continued employment through each
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applicable vesting date as a condition to the vesting of the applicable
installment of the Options and the rights and benefits under this Agreement.
Partial employment, even if substantial, during any vesting period will not
entitle Optionee to any proportionate vesting or avoid or mitigate a termination
of rights and benefits upon or following a termination of employment as provided
in Section 3 above or under the Plan.
Nothing contained in this Agreement or the Plan constitutes an
employment or service commitment by the Company or any of its affiliates,
affects Optionee's status as an employee at will (subject to the terms and
conditions of any employment contract to which the Optionee may be a party) who
is subject to termination without cause, confers upon Optionee any right to
remain employed by the Company or any affiliate, interferes in any way with the
right of the Company or any affiliate at any time to terminate such employment,
or affects the right of the Company or any Subsidiary to increase or decrease
Optionee's other compensation.
8. No Rights as a Stockholder. Neither the Optionee nor any other
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person entitled to exercise any Option shall have any of the rights or
privileges of a stockholder of the Company as to any shares of Common Stock
until the issuance and delivery to him or her of a certificate evidencing the
shares registered in his or her name. No adjustment will be made for dividends
or other rights as to a stockholder for which a record date is prior to such
date of delivery.
9. Limitation of Company's Liability for Nonissuance. Inability of
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the Company to obtain, from any regulatory body having jurisdiction, authority
reasonably deemed by the Company's counsel to be necessary for the lawful
issuance and sale of any Shares hereunder and under the Plan shall relieve the
Company of any liability in respect of the nonissuance or sale of such Shares as
to which such requisite authority shall not have been obtained.
10. The Plan. The Options and all rights of Optionee thereunder
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and/or hereunder are subject to, and the Optionee agrees to be bound by, all of
the terms and conditions of the provisions of the Plan, incorporated herein by
this reference. Unless otherwise expressly provided in these terms and
conditions, provisions of the Plan that confer discretionary authority on the
Board or the Committee do not (and shall not be deemed to) create any additional
rights in the Optionee not expressly set forth in this Agreement or in a written
amendment hereto signed by the Company. If there is any conflict or
inconsistency between the terms and conditions of this Agreement and of the
Plan, the terms and conditions of the Plan shall govern. The Optionee
acknowledges receipt of a complete copy of the Plan and agrees to be bound by
its terms. The Optionee acknowledges reading and understanding the Plan.
(a) Further Assurances. Each party hereto agrees to perform any
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further acts and execute and deliver any documents which may be reasonably
necessary to carry out the intent of this Agreement.
(b) Notices. Except as otherwise provided herein, all notices,
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requests, demands and other communications under this Agreement shall be in
writing, and if by telegram
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or telecopy, shall be deemed to have been validly served, given or delivered
when sent, or if by personal delivery or messenger or courier service, or by
registered or certified mail, shall be deemed to have been validly served, given
or delivered upon actual delivery, at the following addresses, telephone and
facsimile numbers (or such other address(es), telephone and facsimile numbers a
party may designate for itself by like notice):
If to Optionee:
To the Optionee's most recent address or telecopy number reflected on
the Company's records.
If to the Company:
▇▇▇▇▇▇'▇ Trading Company, Inc.
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chief Executive Officer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(c) Amendments. This Agreement may be amended only by a written
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agreement executed by both of the parties hereto. The Company may, however,
unilaterally waive any provision hereof in writing to the extent such waiver
does not adversely affect the interests of the Optionee hereunder, 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.
(d) Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of New York without regard to conflict
of law principles thereunder.
(e) Disputes. In the event of any dispute among the parties arising
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out of this Agreement, the prevailing party shall be entitled to recover from
the nonprevailing party the reasonable expenses of the prevailing party
including, without limitation, reasonable attorneys' fees.
(f) Entire Agreement. This Agreement constitutes the entire agreement
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and understanding among the parties pertaining to the subject matter hereof and
supersedes any and all prior agreements, whether written or oral, relating
hereto.
(g) Headings. Introductory headings at the beginning of each section
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and subsection of this Agreement are solely for the convenience of the parties
and shall not be deemed to be a limitation upon or description of the contents
of any such section and subsection of this Agreement.
(h) Counterparts. This Agreement may be executed in two counterparts,
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each of which shall be deemed an original and both of which, when taken
together, shall constitute one and the same agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Company and Optionee have executed this
Agreement as of the date first above written.
THE COMPANY:
▇▇▇▇▇▇'▇ Trading Company, Inc.
an Indiana corporation
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OPTIONEE:
__________________________________
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SCHEDULE A
OPTION VESTING SCHEDULE
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Vesting Schedule % of Options Vesting Date of Vesting
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