Exhibit 10.1
INCENTIVE STOCK OPTION AGREEMENT
THIS AGREEMENT is made this ___ day of _________, 20__ (the "Grant Date")
by and between DAYTON SUPERIOR CORPORATION, a Delaware corporation (the
"Company"), and [Name of Employee], an employee of the Company ("Optionee"),
under the following circumstances:
A. The Dayton Superior Corporation 2000 Stock Option Plan, as amended
(the "Plan"), provides that the Company may grant options to purchase
shares of the Company's common stock, $.01 per share ("Common Stock"), to
employees of the Company as an inducement to remain in the service of the
Company and as an incentive for increased efforts during such service.
B. On _______, 20__, the Compensation Committee of the Board of
Directors of the Company recommended, and the Board of Directors approved,
the grant to Optionee of this stock option to purchase Common Stock
pursuant to the Plan.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
Section 1. Definitions. Capitalized terms used in this Agreement and not
defined in this Agreement shall have the meaning given such terms in the Plan.
In addition, the following terms shall have the meaning specified below, unless
the context clearly indicates to the contrary:
"Affiliate" means, with respect to any Person, a Person directly or
indirectly, through one or more intermediaries, controlling, controlled by,
or under common control with, such Person, and with respect to the Company,
also any entity designated by the Board in which the Company or one of its
Affiliates has an interest, and with respect to Odyssey, also any Affiliate
of any partner of Odyssey.
"Cause" means the Optionee's: (i) willful or gross misconduct or
material failure in the performance of the Optionee's duties and
responsibilities to the Company, other than any such failure resulting from
the Optionee's Disability, which misconduct or failure continues beyond 14
days after the Company notifies the Optionee, in writing, of the Company's
finding of such misconduct or failure; or (ii) conviction of, or plea of
guilty or nolo contendre to, a felony or a crime involving moral turpitude;
or (iii) fraud or personal dishonesty involving the Company's assets.
"Change in Control" means the occurrence of any of the following: (i) a
change in ownership or control of the Company effected through a
transaction or series of transactions whereby any "person" or related
"group" of "persons" (as such terms are used in Sections 13(d) and 14(d)(2)
of the Exchange Act) (other than the Company, any of its subsidiaries, an
employee benefit plan maintained by the Company or any of its subsidiaries,
a Principal Stockholder or a "person" that, prior to such transaction,
directly or indirectly controls, is controlled by, or is under common
control with, the Company or a Principal Stockholder) directly or
indirectly acquires beneficial ownership (within the meaning of Rule 13d-3
under the Exchange Act) of securities of the Company possessing more than
50% of the total combined voting power of the Company's securities
outstanding immediately after such transaction or series of transactions,
(ii) the sale, lease, transfer, conveyance or other disposition (other than
by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of the Company, or
the Company and its Subsidiaries taken as a whole, to any "person" (as
defined above), or (iii) any consolidation or merger of the Company with or
into any other corporation or entity or "person" (as defined above) in
which the stockholders of the Company prior to such consolidation or merger
own less than 50% of the Company's voting power immediately after such
consolidation or merger, excluding any consolidation or merger affected
exclusively to change the domicile of the Company.
"Disability" means the inability of the Optionee to perform his duties
with the Company or a Subsidiary on a full time basis for more than six
months within any 12-month period due to reasonably documented physical or
mental illness.
"Odyssey" means Odyssey Investment Partners Fund, L.P.
"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, governmental authority or other
entity of whatever nature.
"Principal Stockholder" mean: (a) Odyssey and Odyssey Coinvestors, LLC
(together, the "Odyssey Stockholders"), (b) any general or limited partner
or member of any Odyssey Stockholder (an "Odyssey Partner"), (c) any
corporation, partnership, limited liability company or other entity that is
an Affiliate of any Odyssey Stockholder or of any Odyssey Partner
(collectively, the "Odyssey Affiliates"), (d) any managing director,
member, general partner, director, limited partner, officer or employee of
(i) any Odyssey Stockholder, (ii) any Odyssey Partner or (iii) any Odyssey
Affiliate, or the heirs, executors, administrators, testamentary trustees,
legatees or beneficiaries of any of the foregoing Persons referred to in
this clause (d) (collectively, the "Odyssey Associates"), (e) any trust,
the beneficiaries of which, or corporation, limited liability company or
partnership, the stockholders, members or general or limited partners of
which, include only Odyssey Stockholders, Odyssey Partners, Odyssey
Affiliates, Odyssey Associates, their spouses or their lineal descendants;
and (f) a voting trustee for one or more Odyssey Stockholders, Odyssey
Affiliates, Odyssey Partners or Odyssey Associates; provided that in no
event shall the Company or any Subsidiary be considered an Odyssey Partner,
Odyssey Affiliate, or Odyssey Associate; and provided, further, that an
underwriter or other similar intermediary engaged by the Company in an
offering of the Company's debt or equity securities or other instruments
shall not be deemed a Principal Stockholder with respect to such
engagement.
2
"Subsidiary" of any entity shall mean any corporation or other entity
in an unbroken chain of entities beginning with such entity if each of the
entities other than the last entity in the unbroken chain then owns stock
or other equity possessing 50% or more of the total combined voting power
of all classes of stock or other equity in one of the other entities in
such chain.
Section 2. Grant of Option. The Company hereby grants to Optionee on the
Grant Date an option (the "Option") to purchase all or any of _____ shares of
Common Stock (the "Option Shares") at a purchase price of $____ per share (the
"Exercise Price"), payable upon exercise of the Option as set forth in Section 4
below. The Option is granted subject to all of the terms and conditions set
forth in the Plan (including, without limitation, the provisions of the Plan
with respect to adjustments to the options granted under the Plan in certain
events) and this Agreement.
Section 3. Exercisability. (a) Except as otherwise provided in this Section
3 or in Section 5, the Option shall become exercisable with respect to 25% of
the Option Shares on the first anniversary of the Grant Date and shall become
exercisable as to an additional 25% of the Option Shares on each of the
following three anniversaries of the Grant Date. Each installment of the Option
which becomes exercisable pursuant to this Section 3 shall remain exercisable
until it is exercised or the Option expires as provided in Section 5.
(b) Notwithstanding the provisions of Section 3(a), but subject to Section
3(c) and Section 5, the Option shall become fully vested and exercisable
immediately prior to the effective date of a Change in Control.
(c) Any portion of the Option which is not exercisable at the Optionee's
Termination of Employment shall not thereafter become exercisable.
(d) Optionee may not exercise the Option during the six month period after
receipt of a deemed hardship distribution (as defined for purposes of Treasury
Regulation Section 1.401(k)-1(d)(3)(iv)(E)) from a plan of the Company (or of a
related party, as defined for purposes of Code Section 414(b), (c), (m) or (o))
which contains a cash or deferred arrangement under Section 401(k) of the Code;
provided, however, that the foregoing shall not apply if and to the extent that
the Committee determines it is not necessary to qualify any such plan as a cash
or deferred arrangement under Section 401(k) of the Code.
Section 4. Procedure for Exercise of the Option and Payment. (a) Optionee
may exercise the Option in full or in part by giving written notice of exercise
to the Secretary of the Company, specifying in such notice the number of Shares
for which the Option is being exercised. At the time the Optionee gives notice
of exercise, the Optionee must pay the full Exercise Price for the Option Shares
purchased in cash, by delivery of Common Stock owned by Optionee ("Already-Owned
Shares"), duly endorsed for transfer to the Company, or by any combination of
cash and Already-Owned Shares. If payment of the Exercise Price is to be made by
delivery of Already-Owned Shares, the Optionee may use the attestation procedure
set forth in Section 4(b) below, subject to the limitations described therein.
The Option shall be deemed exercised on the day the Secretary of the Company
receives written notice of the exercise, together with full payment of the
Exercise Price for the Option Shares purchased. To the extent that any portion
of the Exercise Price is paid by delivery of Already-Owned Shares, the amount
credited to such payment shall be the Fair Market Value of the Already-Owned
Shares delivered on the date the Option is exercised.
3
(b) If Optionee pays any portion of the Exercise Price by delivery of
Already-Owned Shares, Optionee either shall physically deliver Already-Owned
Shares to the Company or shall follow the attestation procedure set forth in
this Section 4(b). To attest to the ownership of Already-Owned Shares, Optionee
shall submit to the Secretary of the Company a signed statement at the time the
Option is exercised that: (i) sets forth the number of Already-Owned Shares that
are to be used to pay the Exercise Price (the "Payment Shares"), (ii) confirms
that Optionee is the owner of the Payment Shares, and (iii) if the Payment
Shares are registered in Optionee's name, sets forth the certificate number(s)
of the Payment Shares. If the attestation procedure is used, the Payment Shares
shall be treated as having been delivered to the Secretary of the Company by
Optionee on the date the Option is exercised, and the Company shall issue to
Optionee a certificate for the number of Option Shares being purchased, less the
number of Payment Shares.
(c) No shares shall be delivered by the Company upon exercise of the Option
until all taxes, if any, payable with respect to the exercise of the Option have
been withheld by the Company or paid by Optionee. Subject to such rules or
limitations as may be established from time to time by the Committee, Optionee
may use shares of Common Stock to pay the Company all or any part of the
mandatory federal, state or local withholding tax payments at the time of
exercise of the Option by following the method of payment set forth in Section
4(b).
(d) Any exercise of the Option must be for at least 100 shares (or the
remaining shares covered by the Option, if fewer than 100 shares), and for whole
shares only.
Section 5. Expiration of Option. The Option may not be exercised to any
extent after the first to occur of the following events (the "Expiration Date"):
(i) the expiration of ten years from the Grant Date; or
(ii) the 90th day following the date of the Termination of Employment of
Optionee for any reason other than for Cause; or
(iii) Except as the Committee otherwise may approve, the date of Optionee's
Termination of Employment by the Company for Cause.
Section 6. Incentive Stock Option. The Option is intended to be an
Incentive Stock Option. Optionee acknowledges that, to the extent that the
aggregate fair market value of stock with respect to which "incentive stock
options" (within the meaning of Section 422 of the Code, but without regard to
Section 422(d) of the Code), including the Option, are exercisable for the first
time by Optionee during any fiscal year (under the Plan and all other stock
option plans of the Company, any Subsidiary and any parent corporation) exceeds
$100,000, such options shall be treated as not qualifying under Section 422 of
the Code but rather shall be treated and taxable as non-qualified options.
4
Optionee further acknowledges that the rule set forth in the preceding sentence
shall be applied by taking options into account in the order in which they were
granted, and the stock certificate issued upon exercise of the options shall
designate whether such stock was acquired upon exercise of an incentive stock
option. For purposes of these rules, the Fair Market Value of shares shall be
determined as of date of grant of the applicable option covering such shares.
Section 7. Construction. This Agreement shall be administered, interpreted
and enforced under the laws of the State of Ohio.
Section 8. Conformity to Securities Laws. Optionee acknowledges that the
Plan is intended to conform to the extent necessary with all provisions of all
applicable federal securities laws and any and all regulations and rules
promulgated thereunder by the Securities and Exchange Commission or any
securities exchange on which the Common Stock may be listed (including, without
limitation Rule 16b-3, and the requirements of the Nasdaq Global Market).
Notwithstanding anything herein to the contrary, the Plan shall be administered,
and the Option is granted and may be exercised only in such a manner as to
conform to, such laws, rules and regulations. To the extent permitted by
applicable law, the Plan and this Agreement shall be deemed amended to the
extent necessary to conform to such laws, rules and regulations.
Section 9. Option Not Transferable. (a) Without the prior written consent
of the Company, the Option may not be sold, pledged, assigned or transferred in
any manner other than by will or the laws of descent and distribution.
Notwithstanding the foregoing, however, Optionee may designate (on a form or
forms provided by, and in the manner otherwise approved by the Company) one or
more beneficiaries to receive all or part of the Option in case of Optionee's
death, and may change or revoke such designation at any time, and in the event
of Optionee's death, any portion of the Option that is subject to such
designation shall be distributed to such beneficiary or beneficiaries, subject
to all of the terms of the Option. Any portion of the Option for which a
beneficiary is not so designated shall be distributable to Optionee's estate,
subject to all of the terms of the Option.
(b) Neither the Option nor any interest or right in the Option shall be
liable for the debts, contracts or engagements of Optionee or Optionee's
successors in interest or shall be subject to disposition by transfer,
alienation, anticipation, pledge, encumbrance, assignment or any other means
whether such disposition be voluntary or involuntary or by operation of law by
judgment, levy, attachment, garnishment or any other legal or equitable
proceedings (including bankruptcy), and any attempted disposition thereof shall
be null and void and of no effect, except to the extent that such disposition is
permitted by the preceding sentence.
(c) During Optionee's lifetime, only Optionee may exercise the Option (or
any portion thereof). After the death of Optionee, any portion of the Option not
previously exercised may, prior to the Expiration Date, be exercised by
Optionee's personal representative or by any person empowered to exercise the
Option under Optionee's will or under the then applicable laws of descent and
distribution.
5
Section 10. Not a Contract of Employment. Nothing in this Agreement or in
the Plan shall confer upon Optionee any right to continue in the employ of the
Company or any of its Subsidiaries or shall interfere with or restrict in any
way the rights of the Company or its Subsidiaries, which are hereby expressly
reserved, to discharge Optionee at any time for any reason whatsoever, with or
without Cause.
Section 11. No Rights as Stockholder. Optionee shall not be, nor have any
of the rights or privileges of, a stockholder of the Company in respect of any
of the Common Stock purchasable upon the exercise of any part of the Option
unless and until the Option has been exercised in accordance with this Agreement
and the Plan and a certificate representing such stock has been issued by the
Company to Optionee and Optionee's name has been entered as the stockholder of
record with respect to such Common Stock on the books of the Company.
Section 12. Notices. Any notice relating to this Agreement shall be in
writing and delivered in person or by certified or registered mail. Each notice
to the Company shall be addressed as follows: Dayton Superior Corporation,
Secretary, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
Attention: Secretary (or such other address as the Company may specify in
writing). Each notice to Optionee shall be addressed to Optionee at the address
of Optionee maintained by the Company on its books and records or to such other
address as Optionee may designate by written notice to the Company to that
effect.
Section 13. Amendment and Waiver. No provision of this Agreement may be
amended or waived unless such amendment or waiver is reflected in a writing
signed by a duly authorized officer of the Company and, if required by the Plan,
by Optionee. No waiver of any breach of any provision of this Agreement shall
constitute a waiver of any prior, concurrent or subsequent breach of the same or
any other provision of this Agreement.
Section 14. Entire Agreement. This Agreement and the Plan contain all of
the understandings between the parties hereto pertaining to the matters referred
to herein, and supersede all undertakings and agreements, whether oral or in
writing, previously entered into by them with respect thereto.
Section 15. Construction. This Agreement is made under and subject to the
provisions of the Plan, and all of the provisions of the Plan hereby are
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 shall govern. By signing this Agreement, Optionee
confirms that he has received a copy of the Prospectus with respect to the Plan
and has had an opportunity to review the contents thereof.
6
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
DAYTON SUPERIOR CORPORATION
By
------------------------------
Name:
Title:
---------------------------------
Name
---------------------------------
Address
---------------------------------
Taxpayer Identification Number
7