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EXHIBIT 10.2(b)(1)
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FORM OF NON-QUALIFIED STOCK OPTION AND REPURCHASE AGREEMENT, AS AMENDED
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CENTRONICS CORPORATION
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AGREEMENT made as of the 8th day of September 1987 between
Centronics Corporation (the "Company"), a Delaware corporation having a
principal place of business in Nashua, New Hampshire, and [NAME OF EMPLOYEE], of
[ADDRESS OF EMPLOYEE], an employee of the Company (the "Employee");
WHEREAS, the Company desires to grant to the Employee an
Option to purchase shares of its common stock of a par value of $.01 a share
(the "Shares") under and for the purposes of the Company's 1987 Stock Option
Plan of the Company, (the "Plan") pursuant to Article XII thereof;
WHEREAS, the Company and the Employee understand and agree
that any terms used herein have the same meanings as in the Plan;
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter set forth and for other good and valuable consideration, the parties
hereto agree as follows:
1. GRANT OF OPTION
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The Company hereby irrevocably grants to the Employee the
right and option to purchase at one time or from time to time all or any part of
an aggregate of [NUMBER OF SHARES GRANTED] ( ) Shares, subject to adjustment as
provided in the Plan (the "Option"), on the terms and conditions and subject to
all the limitations set forth herein and in the Plan, which is incorporated
herein by reference. The Employee acknowledges receipt of a copy of the Plan.
2. PURCHASE PRICE
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The purchase price of the Shares covered by this Option shall
be Three and Eleven Sixteenths Dollars ($3.6875) per Share, subject to
adjustment as provided in the Plan (the "Purchase Price").
3. EXERCISE OF OPTION
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(a) The Option granted hereby shall be exercisable as of the date first
above written (the "Grant Date").
(b) Notwithstanding the provisions of the foregoing Subsection (a) and
except as otherwise provided herein or in the Plan, if the Employee ceases to be
an employee of the Company or of an Affiliate for any reason, then if such
termination occurs:
(i) during the period on or after the Grant Date and before the date
which is twelve months thereafter (the "First Anniversary Date") and
the Employee has theretofore exercised the Option for any Shares, then
the Company may purchase any or all of those Shares from the Employee
at the price paid by the Employee upon exercise;
(ii) if such termination occurs on or after the First Anniversary
Date and before the date which is twelve months thereafter (the "Second
Anniversary Date") and the Employee has theretofore exercised the
Option
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for more than [ONE THIRD OF THE NUMBER OF SHARES GRANTED] ( ) Shares,
the Company may purchase any excess over [ONE THIRD OF THE NUMBER OF
SHARES GRANTED] ( ) Shares purchased by the Employee at the price paid
by the Employee upon exercise; or
(iii) if such termination occurs on or after the Second Anniversary
Date and before the date which is twelve months thereafter and the
Employee has theretofore exercised the Option for more than [TWO THIRDS
OF THE NUMBER OF SHARES GRANTED] ( ) Shares, the Company may purchase
any excess over [TWO THIRDS OF THE NUMBER OF SHARES GRANTED] ( ) Shares
purchased by the Employee at the price paid by the Employee upon
exercise.
Notwithstanding the foregoing, in the event the Employee's
employment shall terminate as a result of death or Disability, the Purchase
Option (as hereinbelow defined) shall cease and terminate.
The right of the Company to purchase Shares pursuant to this
Subsection 3(b) is hereinafter referred to as the "Purchase Option" and such
Shares are hereinafter referred to as the "Purchase Stock."
(c) Notwithstanding the foregoing Subsection (b), but not subject to
the other provisions hereof, the Purchase Option shall cease and terminate in
the event of, and immediately upon, a Change of Control that occurs at any time
before the Employee has ceased to be an employee of the Company or of an
Affiliate. As used herein, a "Change of Control" shall be deemed to have
occurred (i) if any "person" (as such term is used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended (the "1934 Act")),
other than the Company or any employee stock plan of the Company, is or becomes
the beneficial owner, directly or indirectly, of securities of the Company
representing fifteen percent (15%) or more of the outstanding Common Stock of
the Company; or (ii) ten (10) days following the commencement of, or
announcement of an intention to make, a tender offer or exchange offer the
consummation of which would result in the beneficial ownership by any "person"
of fifteen percent (15%) or more of the outstanding Common Stock of the Company,
provided, however, that at the conclusion of such ten (10) day period such
person has not discontinued or rescinded his intention to make such a tender or
exchange offer, or (iii) if during any consecutive twelve (12) month period
beginning on or after the date on or after November 6, 1991 individuals who at
the beginning of such period were directors of the Company cease, for any
reason, to constitute at least a majority of the Board of Directors of the
Company; or (iv) if a merger of, or consolidation involving, the Company in
which the Company's stock is converted into securities of another corporation or
into cash shall be consummated, or a plan of complete liquidation of the Company
(whether or not in connection with a sale of all or substantially all of the
Company's assets) shall be adopted and consummated, or substantially all of the
Company's operating assets are sold (whether or not a plan of liquidation shall
be adopted or a liquidation occurs), excluding in each case a transaction solely
for the purpose of reincorporating the Company in a different jurisdiction or
recapitalizing the Company's stock.
4. TERM OF OPTION
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The Option shall terminate eleven (11) years from the date of
this Agreement, but shall be subject to earlier termination as provided herein
or in the Plan.
If the Employee ceases to be an employee of the Company or of
an
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Affiliate (for any reason other than death or Disability or termination by the
Employee's employment [sic] for cause), the Option may be exercised within six
(6) months and one (1) day after the date the Employee ceases to be an employee,
or within eleven (11) years from the granting of the Option, whichever is
earlier, but may not be exercised thereafter.
In the event of the Disability of the Employee (as determined
by the Company pursuant to the provisions of the Employment Agreement, and as to
the fact and date of which the Employee is notified in writing), the Option
shall be exercisable within one (1) year after the date of such Disability or,
if earlier, the term originally prescribed by this Agreement.
In the event of the death of the Employee while an employee of
the Company or of an Affiliate, the Option may be exercised by the Employee's
legal representatives and/or any person or persons who acquired the Employee's
rights to the Option by will or by the laws of descent and distribution. The
Company shall give a notice to the Employee's legal representative, if known, or
his next of kin or other persons likely to know his legal representative, within
three (3) months of the date of death. In such event, the Option must be
exercised, if at all, prior to the happening of the later to occur of one (1)
year after the date of death of the Employee or nine (9) months from the date of
notice by the Company, but in no event later than the expiration of the
originally prescribed term of the Option.
5. NON-ASSIGNABILITY
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The Option shall not be transferable by the Employee otherwise
than by will or by the laws of descent and distribution and shall be
exercisable, during the Employee's lifetime, only by the Employee or by the
Employee's duly appointed legal representative. 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.
Any attempted transfer, assignment, pledge, hypothecation or other disposition
of the Option or of any rights granted hereunder contrary to the provisions of
this Section 5, or the levy of any attachment or similar process upon the Option
or such rights, shall be null and void.
6. EXERCISE OF OPTION AND ISSUE OF SHARES
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The Option may be exercised, in whole or in part, at one time
or from time to time (to the extent that it is exercisable in accordance with
its terms) by giving written notice to the Company. Such written notice shall be
signed by the person exercising the Option, shall state the number of Shares
with respect to which the Option is being exercised, shall contain any warranty
required by Section 7 below, and shall otherwise comply with the terms and
conditions of this Agreement and the Plan. The Company shall pay all original
issue taxes with respect to the issue of the Shares pursuant hereto and all
other fees and expenses necessarily incurred by the Company in connection
herewith. Except as specifically set forth herein, the holder acknowledges that
any income or other taxes due from him with respect to the Option or the shares
issuable pursuant to the Option shall be the responsibility of the holder. The
holder of the Option shall have rights as a shareholder only with respect to any
Shares covered by the Option after due exercise of the Option and tender of the
full exercise price for the shares being purchased pursuant to such exercise.
Pursuant to the Plan, the Company shall make delivery of the Shares against
payment of the Option price therefor.
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7. PURCHASE FOR INVESTMENT
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Unless the offering and sale of the Shares to be issued upon
the particular exercise of the Option shall have been effectively registered
under the Securities Act of 1933, as now in force or hereafter amended, or any
successor legislation (the "Act"), the Company shall be under no obligation to
issue the Shares covered by such exercise unless and until the following
conditions have been fulfilled:
(a) The person(s) who exercise the Option shall warrant to the Company,
at the time of such exercise, that such person(s) are acquiring such
Shares for his or her own account, for investment and not with a view
to, or for sale in connection with, the distribution of any such
Shares, in which event the person(s) acquiring such Shares shall be
bound by the provisions of the following legend which shall be endorsed
upon the certificate(s) evidencing their option Shares issued pursuant
to such exercise:
"The shares represented by this certificate have been taken
for investment and they may not be sold or otherwise
transferred by any person, including a pledgee, in the absence
of an effective registration statement for the shares under
the Securities Act of 1933 or an opinion of counsel
satisfactory to the Company that an exemption from
registration is then available."
(b) The Company shall have received an opinion of its counsel that the
Shares may be issued upon such particular exercise in compliance with
the Act without registration thereunder.
Without limiting the generality of the foregoing, the Company may delay issuance
of the Shares until completion of any reasonable action or obtaining of any
consent, which the Company deems reasonably necessary under any applicable law
(including without limitation state securities or "blue sky" laws).
8. RESTRICTIONS ON TRANSFER OF SHARES; DETAILS OF THE PURCHASE
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OPTION
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(a) Any Shares which are subject to the Purchase Option shall not be
transferred by the Employee except as permitted herein. Until the termination of
this Agreement, the Shares which are subject to the Purchase Option may not be
transferred by the Employee unless and until the transferee agrees, in a form
satisfactory to the Company, to be bound by this Agreement and to sell any
transferred Shares to the Company as herein provided.
(b) In the event the Company shall be entitled to elect to exercise the
Purchase Option, the Company shall be deemed to have made such election unless
it shall give to the Employee notice of its non-election to exercise the
Purchase Option, in whole or in part, within ninety (90) days of the date of the
event entitling the Company to exercise the Purchase Option.
(c) In the event the Company shall be entitled to and shall have
determined to elect to exercise the Purchase Option, it shall give to the
Employee a written notice specifying a date for the Closing, which date shall be
not more than ten (10) business days after the giving of such notice. The
Closing shall take place at the Company's principal offices in New Hampshire, or
such other location as the Company may reasonably designate in such notice. If
the Company shall be deemed to have elected to exercise the Purchase Option by
virtue of the provisions of Subsection (b) above, the Closing will take
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place on the tenth business day after the Company will be deemed to have so
elected under said Subsection (b).
(d) At the Closing, the Employee shall deliver the Purchase Stock being
purchased by the Company against the simultaneous delivery to the Employee of
the purchase price (by certified or bank cashier's check or in such other form
as mutually agreed to) for the number of shares of the Purchase Stock then being
purchased. In the event that the Employee fails so to deliver the shares of
Purchase Stock to be purchased, the Company may elect (a) to establish a
segregated account in the amount of the Purchase Price, such account to be
turned over to the Employee upon delivery of such shares of Purchase Stock, and
(b) immediately to take such action as is appropriate to transfer record title
of such of the Purchase Stock from the Employee to the Company and to treat the
Employee and such shares of the Purchase Stock in all respects as if delivery of
such shares of the Purchase Stock had been made as required by this Agreement.
The Employee hereby irrevocably grants the Company a power of attorney for the
purpose of effectuating the preceding sentence.
(e) If the Company shall pay a stock dividend or declare a stock split
on or with respect to any of the Company's Common Stock, or otherwise distribute
securities of the Company to the holders of its Common Stock, whether before or
after the exercise of the Option, the number of shares of stock or other
securities of the Company issued with respect to the Purchase Stock then subject
to the Purchase Option shall be added to the Purchase Stock then subject to the
Purchase Option without any change in the aggregate purchase price. If the
Company shall distribute to its stockholders shares of stock of another
corporation, the shares of stock of such other corporation distributed with
respect to the Purchase Stock then subject to the Purchase Option shall be added
to the Purchase Stock covered by the Purchase Option without any change in the
aggregate purchase price. Without limiting the generality of the foregoing, the
Employee shall be entitled to retain any and all cash dividends paid by the
Company on the Shares.
(f) If the outstanding shares of Common Stock of the Company shall be
subdivided into a greater number of shares or combined into a smaller number of
shares, or in the event of a reclassification of the outstanding shares of
Common Stock of the Company, or if the Company shall be a party to any capital
reorganization, whether before or after the exercise of the Option, there shall
be substituted for the Purchase Stock then covered by the Purchase Option such
amount and kind of securities as are issued in such subdivision, combination,
reclassification, or capital reorganization in respect of the Purchase Stock
subject to the Purchase Option immediately prior thereto, without any change in
the aggregate purchase price.
(g) If the Company shall be completely liquidated, then the Purchase
Option shall cease and terminate as of the date of such liquidation and the
Employee shall hold the Shares free of the Purchase Option.
(h) The Company shall not be required to transfer any Shares on its
books which shall have been sold, assigned or otherwise transferred in violation
of this Agreement, or to treat as owner of such Shares, or to accord the right
to vote as such owner or to pay dividends to, any person or organization to
which any such Shares shall have been sold, assigned or otherwise transferred,
from and after any sale, assignment or transfer of any Shares made in violation
of this Agreement.
(i) All certificates representing any Shares to be issued to the
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Employee pursuant to the exercise of the Option which are subject to the
Purchase Option shall have endorsed thereon a legend substantially as follows:
"The shares represented by this certificate are subject to a Stock Option and
Repurchase Agreement dated as of September 8, 1987 between the Corporation and
[NAME OF EMPLOYEE], a copy of which Agreement is available for inspection at the
principal offices of the Company or will be made available upon request."
(j) This Agreement shall not restrict the transfer by the Employee of
shares, if any, which are not acquired pursuant to the exercise of the Option or
which are not, or cease to be, subject to the Purchase Option in accordance with
the terms hereof.
9. REGISTRATION RIGHTS
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The Employee acknowledges that simultaneously with the
execution of the Option Agreement, comparable option agreements have been
executed by the Company with [NO. OF HOLDERS] other employees ("Other Holders"),
each containing a section identical to this Section 9. Subject to the terms
hereinafter set forth, at any time after the Grant Date, the holder shall have
the right, by written notice to the Company, to require the Company to file and
use its best efforts to cause to become effective a registration statement under
the Securities Act of 1933, as amended (the "Act") on Form S-2 or Form S-3 or
other like form, if available, covering such number of Shares acquired or to be
acquired prior to the effective date of such registration statement, subject to
the limitations that (i) the Company shall be required to file no more than an
aggregate of two (2) registration statements pursuant to such notices and/or
pursuant to notices received from Other Holders, and (ii) if, in the opinion of
counsel to the Company, the holder can then sell, subject to such limitations as
to the number of Shares which may be sold as may be imposed by Rule 144 under
the Act or any successor rule, Shares requested to be included in any such
registration statement, without such registration, the Company need not so
register such Shares. In no event will the Company be required to register
Shares which are subject to the Purchase Option. The Company agrees to promptly
notify a holder in the event that it receives a notice from any of the Other
Holders requiring it to file a registration statement and to permit the holder
to require the Company to include Shares owned by the holder in such
registration statement, subject to the limitations set forth above.
(a) In connection with any registration statement pursuant to this
Section 9 [sic]:
(i) the holder will furnish to the Company in writing such appropriate
information as the Company, or the Securities and Exchange Commission
(the "Commission") or any other regulatory authority may request;
(ii) the holder agrees to execute, deliver and/or file with or supply
to the Company, the Commission, any underwriters and/or any state or
other regulatory authority such information, documents,
representations, undertakings and/or agreements necessary to carry out
the provisions of the registration agreements contained in this
Agreement and/or to effect the registration or qualification of the
Shares under the Act and/or any of the laws and regulations of any
state or governmental instrumentality;
(iii) the Company will furnish to the holder of Shares included in the
registration statement such number of copies of such prospectus
(including each preliminary, amended or supplemental prospectus) as the
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holder may reasonably request;
(iv) in the event an offering of securities by the Company is pending,
the Company shall have the right to require that the holder delay any
offering of Shares for a period of ninety (90) days after the effective
date of such pending offering (upon the Company's having first
delivered to the holder the written opinion of its principal
underwriter, or if there be none, then from an officer of the Company
based upon a good faith resolution of the Board of Directors to the
effect that the offering of such Shares will have an adverse effect on
the marketing of such pending offering).
(b) The Company will pay all its out-of-pocket expenses and
disbursements in connection with any registration statement filed under this
Section 9 [sic], including, without limitation, printing expenses, fees of the
Company's counsel and auditors, registration fees, Blue Sky fees and similar
costs.
(c) The Company will be obligated to keep any Demand Registration
Statement filed by it under this Section 9 [sic] effective under the Act for a
period of ninety (90) days after the actual effective date of such registration
statement and to prepare and file such supplements and amendments necessary to
maintain an effective registration statement for such period. As a condition to
the Company's obligation under this Section (c), the holder will execute and
deliver to the Company such written undertakings as the Company and its counsel
may reasonably require in order to assure full compliance with relevant
provisions of the Act.
(d) The Company will use its best efforts to register or qualify the
Shares covered by a registration statement filed pursuant hereto under such
securities or Blue Sky laws in such jurisdictions within the United States as
the holder may reasonably request, provided, however, that the Company reserves
the right, in its sole discretion, not to register or qualify such stock in any
jurisdiction where such stock does not meet with the requirements of such
jurisdiction or where the Company is required to qualify as a foreign
corporation to do business in such jurisdiction and is not so qualified therein
or is required to file any general consent to service of process.
(e) In the event that a holder has not sold all of his Shares on or
prior to the expiration of the period specified in Subsection (d) above, the
holder hereby agrees that the Company may deregister by post-effective amendment
any of his Shares covered by the registration statement or notification but not
sold on or prior to such date. The Company agrees that it will notify the holder
of the filing and effective date of such post-effective amendment.
(f) The holder agrees that upon notification by the Company that the
prospectus in respect to any public offering covered by the provisions hereof is
in need of revision, the holder will immediately upon receipt of such
notification (i) cease to offer or sell any securities of the Company which must
be accompanied by such prospectus; (ii) return to the Company all such
prospectuses in the hands of the holder; and (iii) not offer or sell any
securities of the Company until the holder has been provided with a current
prospectus and the Company has given the holder notification permitting the
holder to resume offers and sales.
10. HOLDING PERIOD APPLICABLE TO PERSONS SUBJECT TO
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SECTION 16 OF THE SECURITIES EXCHANGE ACT OF 1934
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If the Participant to whom the Option has been granted
pursuant to this Agreement is subject to Section 16 of the Securities Exchange
Act of 1934, as amended, Section 16 requires that at least six (6) months must
elapse from the date of grant of the Option to the date of disposition of the
Shares.
11. NOTICES
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Any notices required or permitted by the terms of this
Agreement or the Plan shall be given by registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
To the Company: Centronics Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
To the Employee: [NAME AND ADDRESS OF EMPLOYEE]
or to such other address as either party furnishes to the other by like notice.
Any such notice shall be deemed to have been given when mailed in accordance
with the foregoing provisions.
12. GOVERNING LAW
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This Agreement shall be construed and enforced in accordance
with the law of the State of New Hampshire.
13. BENEFIT OF AGREEMENT
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This Agreement shall be for the benefit of and shall be
binding upon the heirs, executors, administrators, legal representatives and
successors of the parties hereto.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed and delivered by its duly authorized officer and its corporate seal
to be hereunto affixed and the Employee has hereunto set his or her hand and
seal as of the day and year first above written in duplicate originals.
CENTRONICS CORPORATION
[SEAL]
By
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EMPLOYEE
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EKCO GROUP, INC.
SCHEDULE TO
FORM OF NON-QUALIFIED STOCK OPTION AND REPURCHASE AGREEMENT
DATED SEPTEMBER 8, 1987, AS AMENDED
Each of the following employees and former employees of the Company has
a Non-Qualified Stock Option and Repurchase Agreement, as amended, with the
Company dated September 8, 1987 which covers the following number of shares of
the Company's Common Stock pursuant to the Company's 1987 Stock Option Plan
which is identical in form to the foregoing Form of Non-Qualified Stock Option
and Repurchase Agreement, as amended, except as to the number of shares:
No. of
Shares
Name and Position Granted
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▇▇▇▇▇▇ ▇▇▇▇▇ 200,000
President & Chief
Executive Officer
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 120,000
Executive Vice Presid-
dent, Secretary &
General Counsel
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 30,000
Vice President &
Controller
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 30,000
Associate General
Counsel & Asst.
Secretary
▇▇▇▇ ▇. ▇▇▇▇▇▇ 30,000
Former Executive
Officer