Exhibit 10.18
2003 MANAGEMENT AND DIRECTORS INCENTIVE PLAN
OF GENTEK INC.
STOCK OPTION AGREEMENT
THIS AGREEMENT (the terms of which are hereby incorporated by reference
and made a part of this Agreement) is made by and between GenTek Inc., a
Delaware corporation, hereinafter referred to as the "Company," and the employee
of the Company, or a Subsidiary of the Company, identified on Exhibit A and
hereinafter referred to as "Optionee" and is dated as of the date signed by the
Optionee.
WHEREAS, the Company wishes to afford the Optionee the opportunity to
purchase shares of its Stock, no par value; and
WHEREAS, the Company wishes to carry out the 2003 Management and
Directors Incentive Plan of GenTek, Inc. (the "Plan") (the terms of which are
hereby incorporated by reference and made a part of this Agreement); and
WHEREAS, the Committee appointed to administer the Plan has determined
that it would be to the advantage and best interest of the Company and its
stockholders to grant the Option provided for herein to the Optionee as an
inducement to enter into or remain in the service of the Company or its
Subsidiaries and as an incentive during such service, and has advised the
Company thereof and instructed the undersigned officer to issue said Option.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 General. Wherever the following terms are used in this Agreement
they shall have the meanings specified below, unless the context clearly
indicates otherwise. Capitalized terms not specifically defined herein shall
have the meanings specified in the Plan.
1.2 Exercise Notice. "Exercise Notice" shall mean a written notice to
the Company, substantially in the form attached hereto as Exhibit B (or such
other form as the Committee shall approve), stating that the Option or a portion
of the Option is exercised.
1.3 Grant Date. "Grant Date" shall mean the date of grant set forth on
Exhibit A.
1.4 Managing Underwriter. "Managing Underwriter" shall have the meaning
set forth in Section 5.3.
1.5 Market Standoff Period. "Market Standoff Period" shall have the
meaning set forth in Section 5.3.
1.6 Retirement. "Retirement" shall mean a termination of employment
with the Company by an Optionee who has reached the "normal retirement age" as
defined in any
defined contribution plan maintained by the Company, and in each case as
determined by the Committee.
1.6 Secretary. "Secretary" shall mean the Secretary of the Company.
ARTICLE II
GRANT OF OPTION
2.1 Grant of Option. In consideration of the Optionee's agreement to
remain in the employ of the Company or its Subsidiaries and for other good and
valuable consideration, effective as of the Grant Date, the Company irrevocably
grants to the Optionee the Option to purchase any part or all of an aggregate of
the number of shares of Stock set forth on Exhibit A, upon the terms and
conditions set forth in this Agreement.
2.2 Purchase Price. The purchase price of the shares of Stock subject
to the Option per share shall be as set forth on Exhibit A hereto, without
commission or other charge.
2.3 Consideration to the Company. In consideration of the granting of
the Option by the Company, the Optionee agrees to render faithful and efficient
services to the Company or any Subsidiary, with such duties and responsibilities
as the Company shall from time to time prescribe. Nothing in the Plan or this
Agreement shall confer upon the Optionee any right to continue in the employ of
the Company or any Subsidiary or shall interfere with or restrict in any way the
rights of the Company and its Subsidiaries, which are hereby expressly reserved,
to discharge the Optionee, at any time for any reason whatsoever, with or
without Cause, except to the extent expressly provided otherwise in a written
agreement between the Company and the Optionee.
ARTICLE III
PERIOD OF EXERCISABILITY
3.1 Commencement of Exercisability.
(a) Subject to Sections 3.3 and 5.11, the Option shall become
exercisable in such amounts and at such times as are set forth in Exhibit A
hereto.
(b) No portion of the Option which has not become exercisable at
Termination of Employment shall thereafter become exercisable, except as may be
otherwise provided by the Committee or as set forth in a written agreement
between the Company and the Optionee.
3.2 Duration of Exercisability. The installments provided for in
Section 3.1(a) and Exhibit A hereto are cumulative. Each such installment which
becomes exercisable pursuant to Section 3.1 shall remain exercisable until it
becomes unexercisable under Section 3.3.
3.3 Expiration of Option. The Option may not be exercised to any extent
by anyone and will be forfeited and will expire immediately, irrespective of
whether any portion of such Option is vested or unvested, upon the first to
occur of the following events:
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(a) The expiration of ten years from the Grant Date;
(b) The date of the Optionee's Termination of Employment by reason of
the Optionee's discharge for Cause or any voluntary Termination of Employment by
the Optionee, except a Termination of Employment by reason Optionee's death,
Disability or Retirement;
(c) The expiration of one year following the date of the Optionee's
Termination of Service by reason of the Optionee's death or Disability; or
(d) The expiration of ten years from the Grant Date if Termination of
Employment is by reason of Retirement.
ARTICLE IV
EXERCISE OF OPTION
4.1 Person Eligible to Exercise. Except as provided in Sections 5.2(b)
and 5.2(c), during the lifetime of the Optionee, only the Optionee may exercise
the Option or any portion thereof. After the death of the Optionee, any
exercisable portion of the Option may, prior to the time when the Option becomes
unexercisable under Section 3.3, be exercised by the Optionee's legal
representative or legatee designated in accordance with Section 5(b)(v) of the
Plan.
4.2 Partial Exercise. Any exercisable portion of the Option or the
entire Option, if then wholly exercisable, may be exercised in whole or in part
at any time prior to the time when the Option or portion thereof becomes
unexercisable under Section 3.3.
4.3 Manner of Exercise. The Option, or any exercisable portion thereof,
may be exercised solely by delivery to the Secretary or the Secretary's office
of all of the following prior to the time when the Option or such portion
thereof becomes unexercisable under Section 3.3:
(a) An Exercise Notice in writing signed by the Optionee or the other
person then entitled to exercise the Option or portion thereof, stating that the
Option or portion thereof is thereby exercised, such notice complying with all
applicable rules established by the Committee. Such notice shall be
substantially in the form attached as Exhibit B (or such other form as is
prescribed by the Committee); and one or more of the following:
(i) In cash, by certified or bank check or other instrument
acceptable to the Committee;
(ii) In the form of shares of Stock that are not then subject
to restrictions under any plan and that have been held by the optionee
for at least six (6) months (or such other period as established from
time to time by the Committee in order to avoid adverse accounting
treatment applying generally accepted accounting principles), if
permitted by the Committee in its discretion. Such surrendered shares
shall be valued at Fair Market Value on the exercise date; or
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(iii) In the sole discretion of the Committee, at any time
during which the Stock is traded on a national stock exchange or
quotation system, by the optionee delivering to the Company a properly
executed exercise notice together with irrevocable instructions to a
broker to promptly deliver to the Company cash or a check payable and
acceptable to the Company to pay the purchase price; provided that in
the event the optionee chooses to pay the purchase price as so
provided, the optionee and the broker shall comply with such procedures
and enter into such agreements of indemnity and other agreements as the
Committee shall prescribe as a condition of such payment procedure.
(b) (i) Full payment (in cash or by check) for the shares with
respect to which the Option or portion thereof is exercised, to the
extent permitted under applicable laws; or
(ii) With the consent of the Committee, such payment may
be made, in whole or in part, through the delivery of shares of Stock
which have been owned by the Optionee for at least six months, duly
endorsed for transfer to the Company with a Fair Market Value on the
date of delivery equal to the aggregate exercise price of the Option or
exercised portion thereof; or
(iii) To the extent permitted under applicable laws,
through the delivery of a notice that the Optionee has placed a market
sell order with a broker with respect to shares of Stock then issuable
upon exercise of the Option, and that the broker has been directed to
pay a sufficient portion of the net proceeds of the sale to the Company
in satisfaction of the Option exercise price, provided, that payment of
such proceeds is made to the Company upon settlement of such sale; or
(iv) With the consent of the Committee, any combination of
the consideration provided in the foregoing subparagraphs (i), (ii) and
(iii); and
(c) A bona fide written representation and agreement, in such form as
is prescribed by the Committee, signed by the Optionee or other person then
entitled to exercise such Option or portion thereof, stating that the shares of
Stock are being acquired for the Optionee's own account, for investment and
without any present intention of distributing or reselling said shares or any of
them except as may be permitted under the Securities Act and then applicable
rules and regulations thereunder, and that the Optionee or other person then
entitled to exercise such Option or portion thereof will indemnify the Company
against and hold it free and harmless from any loss, damage, expense or
liability resulting to the Company if any sale or distribution of the shares by
such person is contrary to the representation and agreement referred to above.
The Committee may, in its absolute discretion, take whatever additional actions
it deems appropriate to ensure the observance and performance of such
representation and agreement and to effect compliance with the Securities Act
and any other federal or state securities laws or regulations. Without limiting
the generality of the foregoing, the Committee may require an opinion of counsel
acceptable to it to the effect that any subsequent transfer of shares acquired
on an Option exercise does not violate the Securities Act, and may issue
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stop-transfer orders covering such shares. Share certificates evidencing Stock
issued on exercise of the Option shall bear an appropriate legend referring to
the provisions of this subsection (c) and the agreements herein. The written
representation and agreement referred to in the first sentence of this
subsection (c) shall, however, not be required if the shares to be issued
pursuant to such exercise have been registered under the Securities Act, and
such registration is then effective in respect of such shares; and
(d) Full payment to the Company (or other employer corporation) of all
amounts which, under federal, state or local tax law, it is required to withhold
upon exercise of the Option. With the consent of the Committee, (i) shares of
Stock owned by the Optionee for at least six months duly endorsed for transfer
or (ii) shares of Stock issuable to the Optionee upon exercise of the Option,
having a Fair Market Value at the date of Option exercise equal to the statutory
minimum sums required to be withheld, may be used to make all or part of such
payment; and
(e) In the event the Option or portion thereof shall be exercised
pursuant to Section 4.1 by any person or persons other than the Optionee,
appropriate proof of the right of such person or persons to exercise the Option.
4.4 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
then been reacquired by the Company. Such shares shall be fully paid and
nonassessable. The Company shall not be required to issue or deliver any
certificate or certificates for shares of Stock purchased upon the exercise of
the Option or portion thereof prior to fulfillment of all of the following
conditions:
(a) The admission of such shares to listing on any stock exchange or
national quotation system on which such Stock is then listed; and
(b) The completion of any registration or other qualification of such
shares under any state or federal law or under rulings or regulations of the
Securities and Exchange Commission or of any other governmental regulatory body,
which the Committee shall, in its absolute discretion, deem necessary or
advisable; and
(c) The obtaining of any approval or other clearance from any state or
federal governmental agency which the Committee shall, in its absolute
discretion, determine to be necessary or advisable; and
(d) The receipt by the Company of full payment for such shares,
including payment of all amounts which, under federal, state or local tax law,
the Company (or other employer corporation) is required to withhold upon
exercise of the Option; and
(e) The lapse of such reasonable period of time following the exercise
of the Option as the Committee may from time to time establish for reasons of
administrative convenience.
4.5 Rights as Stockholder. The holder of the Option shall not be, nor
have any of the rights or privileges of, a stockholder of the Company in respect
of any shares purchasable
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upon the exercise of any part of the Option unless and until certificates
representing such shares shall have been issued by the Company to such holder.
ARTICLE V
OTHER PROVISIONS
5.1 Administration. The Committee shall have the power to interpret the
Plan and this Agreement and to adopt such rules for the administration,
interpretation and application of the Plan as are consistent therewith and to
interpret, amend 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 Optionee, 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 the Plan,
this Agreement or the Option. In its absolute discretion, the Board may at any
time and from time to time exercise any and all rights and duties of the
Committee under the Plan and this Agreement.
5.2 Option Not Transferable.
(a) Subject to Section 5.2(b), the Option may not be sold, pledged,
assigned or transferred in any manner other than by will or the laws of descent
and distribution unless and until the Option has been exercised, or the shares
underlying such Option have been issued, and all restrictions applicable to such
shares have lapsed. Neither the Option nor any interest or right therein shall
be liable for the debts, contracts or engagements of the Optionee or his or her
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.
(b) Notwithstanding any other provision in this Agreement, with the
consent of the Committee the Option may be transferred to, and exercised by and
paid to certain persons or entities related to the Optionee, including but not
limited to members of the Optionee's family, charitable institutes or trusts or
other entities whose beneficiaries or beneficiary owners are members of the
Optionee's family or to such other persons or entities as may be expressly
approved by the Committee (each a "Permitted Transferee"), pursuant to such
conditions and procedures as the Committee may require.
(c) Unless transferred to a Permitted Transferee in accordance with
Section 5.2(b), during the lifetime of the Optionee, only the Optionee may
exercise the Option (or any portion thereof). Subject to such conditions and
procedures as the Committee may require, a Permitted Transferee may exercise the
Option or any portion thereof during the Optionee's lifetime. After the death of
the Optionee, any exercisable portion of the Option may, prior to the time when
the Option portion becomes unexercisable under Section 3.3, be exercised by the
Optionee's beneficiary designated in accordance with Section 5(b)(v) of the
Plan. If no beneficiary has been designated or survives the Optionee, the Option
may be exercised by the
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person entitled to such exercise pursuant to the Optionee's will or the laws of
descent and distribution.
5.3 Lock-Up Period. The Optionee hereby agrees that, if so requested by
the Company or any representative of the underwriters (the "Managing
Underwriter") in connection with any registration of the offering of any
securities of the Company under the Securities Act, the Optionee shall not sell
or otherwise transfer any shares of Stock or other securities of the Company
during such period as may be requested in writing by the Managing Underwriter
and agreed to in writing by the Company (which period shall not be longer than
180 days) (the "Market Standoff Period") following the effective date of a
registration statement of the Company filed under the Securities Act; provided,
however, that such restriction shall apply only to the first registration
statement of the Company to become effective under the Securities Act that
includes securities to be sold on behalf of the Company to the public in an
underwritten public offering under the Securities Act.
5.4 Restrictive Legends and Stop-Transfer Orders.
(a) The share certificate or certificates evidencing the shares of
Stock purchased hereunder shall be endorsed with any legends that may be
required by state or federal securities laws.
(b) The Optionee agrees that, in order to ensure compliance with the
restrictions referred to herein, the Company may issue appropriate "stop
transfer" instructions to its transfer agent, if any, and that, if the Company
transfers its own securities, it may make appropriate notations to the same
effect in its own records.
(c) The Company shall not be required: (i) to transfer on its books any
shares of Stock that have been sold or otherwise transferred in violation of any
of the provisions of this Agreement, or (ii) to treat as owner of such shares of
Stock or to accord the right to vote or pay dividends to any purchaser or other
transferee to whom such shares shall have been so transferred.
5.5 Notices. Any notice to be given under the terms of this Agreement
to the Company shall be addressed to the Company in care of the Secretary, and
any notice to be given to the Optionee shall be addressed to the Optionee at the
address given beneath the Optionee's signature hereto. By a notice given
pursuant to this Section 5.5, either party may hereafter designate a different
address for notices to be given to that party. Any notice which is required to
be given to the Optionee shall, if the Optionee is then deceased, be given to
the Optionee's designated beneficiary, if any, or the person otherwise entitled
to exercise his or her Option pursuant to Section 4.1 by written notice under
this Section 5.5. Any notice shall be deemed duly given when sent via email or
enclosed in a properly sealed envelope or wrapper addressed as aforesaid and
deposited (with postage prepaid) in a post office or branch post office
regularly maintained by the United States Postal Service.
5.6 Titles. Titles are provided herein for convenience only and are not
to serve as a basis for interpretation or construction of this Agreement.
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5.7 Construction. This Agreement shall be administered, interpreted and
enforced under the laws of the State of Delaware without regard to conflicts of
laws thereof.
5.8 Conformity to Securities Laws. The Optionee acknowledges that the
Plan is intended to conform to the extent necessary with all provisions of the
Securities Act and the Exchange Act and any and all regulations and rules
promulgated by the Securities and Exchange Commission thereunder, and state
securities laws and regulations. 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. Notwithstanding the exercisability of any Option,
the Company shall be under no obligation to issue any shares of Stock upon
exercise of an Option unless and until the Company has on file with the
Securities Exchange Commission an effective registration statement with respect
to such shares of Stock or unless some other exemption from the securities laws
registration requirements is otherwise available.
5.9 Amendments. This Agreement may not be modified, amended or
terminated except by an instrument in writing, signed by the Optionee or such
other person as may be permitted to exercise the Option pursuant to Section 4.1
and by a duly authorized representative of the Company.
(signature page follows)
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IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties hereto.
GENTEK INC.
BY:__________________________
▇▇▇▇▇▇ ▇. Novo
Vice President, Human Resources
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Optionee Signature
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Date
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Name
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Address
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City, State, ZIP
Optionee's Social Security Number or
National ID Number:
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EXHIBIT A
NON-QUALIFIED STOCK OPTION AGREEMENT
by and between
GenTek Inc.
and
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Optionee's Name:
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Optionee's Address:
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Optionee's Social Security Number or
National ID Number:
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Date of Grant: March 19, 2004
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Vesting Commencement Date: March 19, 2004
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1. Pursuant to Section 2.1 of the Agreement, the Company grants an
option to purchase any part or all of an aggregate of __________ shares of
Common Stock ("Option Shares") at a price per share of $36.00 upon the terms and
conditions set forth in the Agreement.
2. In accordance with Section 3.1(a) of the Agreement, the Option shall
become exercisable in cumulative installments, rounded down to the nearest whole
number of shares, as follows:
(a) One-third of the Option Shares shall vest one year after
the Vesting Commencement Date.
(b) One-third of the Option Shares shall vest two years after
the Vesting Commencement Date.
(c) One-third of the Option Shares shall vest three years
after the Vesting Commencement Date.
EXHIBIT A
(d) Notwithstanding the foregoing, 100% of the Option Shares
shall vest upon the earlier of (i) a Change in Control, (ii) the
Optionee's death; or (iii) the Optionee's Disability.
3. Capitalized terms not otherwise defined herein shall have the
meanings assigned thereto in the Agreement.
4. Notwithstanding the foregoing, the Holder recognizes and hereby
acknowledges that by virtue of receiving this Award, the Holder is no longer
eligible for an enhanced severance payment payable under Section 4.02 of the
GenTek, Inc. Key Employee Retention Plan.
EXHIBIT B
FORM OF EXERCISE NOTICE
GenTek Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Secretary
Re: Exercise of Stock Option
Ladies and Gentlemen:
1. Exercise of Option. The undersigned Optionee,
_______________________, was granted an option (the "Option") to purchase shares
of the Common Stock, with no par value per share ("Common Stock"), of GenTek
Inc., a Delaware corporation (the "Company"), effective as of ____________,
pursuant to the Stock Option Agreement, dated ________________ (the "Option
Agreement"). The undersigned hereby elects to exercise the Option as follows:
(a) The undersigned hereby elects to exercise the Option as to
___________ shares of the Common Stock, in accordance with
Section 3.1 of the Option Agreement (the "Shares").
(b) This date of this exercise is _________ __, ____.
2. Payment. The undersigned has enclosed herewith __________
(representing full payment for such Shares in accordance with Section 4.3 of the
Option Agreement). The undersigned authorizes payroll withholding and otherwise
will make adequate provision for the tax withholding obligations of the Company,
if any, with respect to such exercise.
3. Binding Effect. The undersigned agrees that the Shares are being
acquired in accordance with and subject to the terms, provisions and conditions
of the Option Agreement set forth therein, to all of which the undersigned
hereby expressly assent. This Agreement shall inure to the benefit of and be
binding upon the heirs, executors, administrators, successors and assigns of the
undersigned.
The undersigned understands that she is purchasing the Shares pursuant
to the terms of the Option Agreement, a copy of which the undersigned has
received and carefully read and understands.
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Receipt of the above is hereby acknowledged
GENTEK INC.,
a Delaware corporation
By:____________________________
Title:__________________________