This Nonqualified Stock Option Agreement (the "Agreement"), effective
as of August 17, 2000 (the "Date of Grant"), is made by and between
The ▇▇▇▇▇ Group Inc., a New York corporation (the "Company"), and
▇▇▇▇ ▇▇▇▇▇▇ (the "Recipient").
Background
The Company has established the ▇▇▇▇▇ Group Inc. Stock Incentive Plan
(the "Plan"). The Company wishes to grant to the Recipient a Nonqualified
Stock Option pursuant to the terms of the Plan.
Therefore, in consideration of the mutual covenants contained in this
Agreement and other good and valuable consideration, the Company and the
Recipient agree as follows:
1. Grant of Option. In consideration of service to the Company and
for other good and valuable consideration, the Company grants to the
Recipient a Nonqualified Stock Option (the "Option") to purchase 65,000
Shares in accordance with the terms and conditions of the Plan and this
Agreement. The Option is granted in accordance with the terms and
conditions of the Plan, the terms of which are incorporated herein by
reference, and the Agreement shall in all respects be interpreted in
accordance with the Plan. Any term used in the Agreement that is not
otherwise defined in the Agreement shall have the meaning assigned to it
by the Plan.
2. Option Price. The purchase price of the Shares subject to the
Option shall be the par value $.01 per Share.
3. Adjustments in Option. If a reorganization, merger, consolidation,
reclassification, recapitalization, combination or exchange of shares,
stock split, stock dividend, rights offering, or other expansion or
contraction of the Common Stock occurs, the Committee will equitably adjust
the number and class of Shares then subject to the Option, and the price
per Share payable upon exercise of the Option. To the extent deemed
equitable and appropriate by the Board, subject to any required action by
shareholders, the Option will pertain to the securities and other property
to which a holder of the number of Shares covered by the Option would have
been entitled to receive in connection with any merger, consolidation,
reorganization, liquidation or dissolution. Any adjustment in the Option
pursuant to this Section 3 shall be made without change in the total price
applicable to the unexercised portion of the Option (except for any change
in the aggregate price resulting from rounding-off of share quantities or
prices) and with any necessary corresponding adjustment in the Option
price per share. Any such adjustment made by the Committee shall be final
and binding upon the Recipient, the Company and all other interested persons.
4. Person Eligible to Exercise Option. During the lifetime of the
Recipient, only the Recipient may exercise the Option or any portion of
the Option. After the death of the Recipient, any exercisable portion of
the Option may, prior to the time when the Option becomes unexercisable
under the terms of the Plan, be exercised by the Recipient's personal
representative or by any other person empowered to do so under the
Recipient's will, trust or under then applicable laws of descent and
distribution.
5. Manner of Exercise. The Option, or any portion of the Option,
shall be exercised only in accordance with the provisions of the Plan and
this Agreement. The person exercising the Option shall give to the
Company a written notice that shall: (i) state the number of Shares
with respect to which the Option is being exercised; and (ii) specify a
date (other than a Saturday, Sunday or legal holiday) not more than ten
days after the date of such written notice, as the date on which the
Shares will be purchased. Such tender and conveyance shall take place at
the principal office of the Company during ordinary business hours,
or at such other hour and place agreed upon by the Company and the
person or persons exercising the Option. On the date specified in such
written notice, the Company shall accept payment for the Option Shares
in cash, by bank or certified check, by wire transfer, by delivery of a
notice instructing the Company to deliver the Shares to a broker subject
to the broker's delivery of cash to the Company equal to the exercise
price, or by such other means as may be approved by the Committee, and
shall deliver to the person or persons exercising the Option in exchange
therefor an appropriate certificate or certificates for fully paid
nonassessable Shares or undertake to deliver certificates within a
reasonable period of time. In the event of any failure to take up and
pay for the number of Shares specified in such written notice on the date
set forth therein (or on the extended date as above provided), the right
to exercise the Option shall terminate with respect to such number of
Shares, but shall continue with respect to the remaining Shares covered
by the Option and not yet acquired pursuant thereto.
The person who exercises the Option shall warrant to the Company that,
at the time of such exercise, such person is acquiring his or her
Option Shares for investment and not with a view to, or for or in connection
with, the distribution of any such Shares, and shall make such other
representations, warranties, acknowledgments, and affirmations, if any,
as the Committee may require. In such event, the person acquiring such
Shares shall be bound by the provisions of an appropriate legend which
shall be endorsed upon the certificate(s) evidencing his or her Option
Shares issued pursuant to such exercise. The Company may delay issuance
of the Shares until completion of any action or obtaining any consent
that the Company deem necessary under any applicable law (including without
limitation state securities or "blue sky" laws).
6.Conditions to Issuance of Stock Certificates. The shares of stock
deliverable upon the exercise of the Option, or any portion thereof, may
be either previously authorized but unissued shares or issued shares which
have been reacquired by the Company. Such shares shall be fully paid
and nonassessable.
7.Rights of Shareholders. The Recipient shall not be, nor have any of the
rights or privileges of, a shareholder of the Company in respect of any
shares purchasable upon the exercise of any part of the Option unless and
until certificates representing such shares shall have been issued by the
Company to the Recipient.
8.Vesting and Exercisability. A Recipient's interest in the Option
shall vest according to the provisions of this Section 8 and shall be
exercisable as to not more than the vested percentage of the shares subject
to the Option at any point in time. Furthermore, the Option is exercisable
only if the issuance of Shares upon exercise would comply with applicable
securities laws. To the extent the Option is either unexercisable or
unexercised, the unexercised portion shall accumulate until the Option
both becomes exercisable and is exercised, subject to the provisions of
Section 9 of the Agreement. The Option shall become vested as follows:
Anniversary of Date of Grant
Date of Grant
August 17, 2001 , August 16, 2002
After August 16, 2003
Vested Percentage of Option
50%
75%
100%
The Committee, in its sole and absolute discretion, may accelerate
the vesting of the Optionat any time. The Option shall automatically
become 100% vested upon the occurrence of a Change of Control.
(b) A Change of Control means the occurrence of one or more of the
following events: (i) any sale, lease, exchange or other transfer
(in one transaction or a series of related transactions) of all or
substantially all of the assets of the Company and its Subsidiaries, taken
as a whole, to any Person or group of related Persons, as defined in Section
13(d) of the Exchange Act (a "Group"), other than to Permitted Holders;
(ii) the approval by the holders of Capital Stock of the Company of any
plan or proposal for the liquidation or dissolution of the Company;
(iii) any Person or Group (other than Permitted Holders) shall become
the owner, directly or indirectly, beneficially or of record, of shares
representing more than 50% of the aggregate ordinary voting power
represented by the issued and outstanding Voting Stock of the Company or
any successor to all or substantially all of its assets; or (iv) the first
day on which a majority of the members of the board of directors of the
Company are not Continuing Directors.
(c)For purposes of Section 8(b) above, the following terms shall have
the following meanings:
(i) "Capital Stock" of any Person means any and all shares,
interests, participation or other equivalents (however designated) of
corporate stock or other equity participations, including partnership
interests, whether general or limited, of such Person.
(ii) "Continuing Directors" means, as of any date of
determination, any member of the board of directors of the Company who
(A) was a member of such board of directors on August 16, 2000 or (B) was
nominated for election or elected to such board of directors by any of
the Permitted Holders or with the approval of a majority of the Continuing
Directors who were members of such board of directors at the time of
such nomination or election.
(iii) "Exchange Act" refers to the Securities Exchange Act of
1934 as it may be amended and any successor act thereto.
(iv) "Permitted Holder" means as of the date of determination
(A) ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇ and any of their
respective spouses, estates, lineal descendants (including adoptive
children), heirs, executors, personal representatives, administrators
and trusts for any of their benefit and (B) any other Person, the
majority of whose Voting Stock is directly or indirectly owned by any
Person described in clause (A) above.
(v) "Person" means any individual, corporation, partnership,
joint venture, trust, unincorporated organization or government or any
agency or political subdivision thereof.
(vi) "Subsidiary" of any Person means (A) a corporation more
than 50% of the combined voting power of the outstanding Voting Stock
of which is owned, directly or indirectly, by such Person or by one or more
other Subsidiaries of such Person, or (B) any other Person (other than a
corporation) in which such Person, or one or more other Subsidiaries of
such Person or such Person and one or more other Subsidiaries thereof,
directly or indirectly, has at least a majority ownership and power to
direct the policies, management and affairs thereof.
(vii) "Voting Stock" of any Person means Capital Stock of such
Person which ordinarily has voting power for the election of directors
(or persons performing similar functions) of such Person, whether at all
times or only so long as no senior class of securities has such voting
power by reason of any contingency.
9. Duration of Option. Except as specified below, the Option shall
expire on August 16,2010. Notwithstanding the foregoing, the Option may
expire prior to August 16, 2010, in the following circumstances:
a. In the case of the Recipient's death, the Option shall
expire on the one-year anniversary of the Recipient's death.
b. If the Recipient's employment or affiliation with the
Company terminates as a result of his total and permanent Disability,
the Option shall expire on the one-year anniversary of the Recipient's
last day of employment.
c. If the Recipient ceases employment or affiliation with
the Company as a result of his retirement in accordance with the Company's
normal retirement policies, or if the Company terminates the Recipient's
employment other than for Cause, the Option shall expire 90 days following
the last day of the Recipient's employment.
d. If the Recipient ceases employment or affiliation with the
Company for any reason other than the reasons described in Sections 9.a,
9.b. or 9.c. of this Agreement, the Option shall expire 30 days following
the last day that the Recipient is employed by
the Company.
e. During the period following the last day that the Recipient
is employed by the Company (whether or not employment is terminated as
referenced in Sections 9.a, 9.b, 9.c or 9.d of this Agreement), the Option
will be exercisable only to the extent the Recipient's interest in the
Option is vested on the date the Recipient's employment terminates.
f. Notwithstanding any provisions set forth above in this
Section 9, if the Company terminates the Recipient's employment for Cause,
any unexercised part of the Option shall expire immediately upon the earlier
of the occurrence that constitutes Cause or the last day the Recipient is
employed by the Company.
10. Administration. The Committee shall have the power to interpret this
Agreement and to adopt such rules for the administration, interpretation
and application of the Agreement as are consistent herewith and to interpret
or revoke any such rules. All actions taken and all interpretations and
determinations made by the Committee in good faith shall be final and
binding upon the Recipient, the Company and all other interested persons.
No member of the Committee shall be personally liable for any action,
determination or interpretation made in good faith with respect to this
Agreement or any similar agreement to which the Company is a party.
11. Transfer of Option. Unless otherwise permitted by applicable laws and
approved in advance by the Committee, the Option shall not be transferable
by the Recipient and shall be exercisable, during the Recipient's lifetime,
only by such Recipient or, in the event of the Recipient's incapacity, his
guardian or legal representative. Except as otherwise permitted herein,
the Option shall not be assigned, pledged, or hypothecated in any way
(whether by operation of law or otherwise) and shall not be subject to
execution, attachment, or similar process and any attempted transfer,
assignment, pledge, hypothecation or other disposition of the Option or of
any rights granted thereunder contrary to the provisions of this Section
11, or the levy of any attachment or similar process upon an option or such
rights, shall be null and void. This Section 11 shall not prevent transfers
by will or by the applicable laws of descent and distribution.
12. Shares to be Reserved. The Company shall at all times during
the term of the Option reserve and keep available such number of shares
of stock as will be sufficient to satisfy the requirements of this Agreement.
13. Termination. Without the consent of Recipient or the holder
currently entitled to exercise the Option, the Board may establish a date
or event upon which the Plan and the unexercised portion of the Option will
terminate; provided, however, that the Board must provide to the Recipient
or the holder currently entitled to exercise the Option written notice of
the termination of the Plan and the Option no less than 30 days prior to
the date or event upon which the Plan and the unexercised portion of the
Option will terminate.
14. Notices. Any notice to be given under the terms of this Agreement
to the Company shall be addressed to the Company in care of its President
(or the President's delegate, in the President's absence). Any notice to
be given to the Recipient shall be addressed to him at the address given
beneath his signature below. By a notice given pursuant to this Section
14, either party may hereafter designate a different address for notices to
be given to him. Any notice which is required to be given to the Recipient
shall, if the Recipient is then deceased, be given to the Recipient's
personal representative if such representative has previously informed the
Company of his status and address by written notice under this Section 14.
Any notice shall have been deemed duly given when enclosed in a properly
sealed envelope addressed as aforesaid, deposited (with postage prepaid) in
a United States postal receptacle.
15. Titles. Titles are provided herein for convenience only and are
not to serve as a basis for interpretation or construction of this Agreement.
The Company and the Recipient have executed this Agreement effective as of
the date first written above.
THE ▇▇▇▇▇ GROUP INC.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
/s/ ____________________________________
Signature of Recipient
Address of Recipient