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EXHIBIT 10.2
WINDMERE-DURABLE HOLDINGS, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
FOR
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AGREEMENT
1. Grant of Option. Windmere-Durable Holdings, Inc. (the
"Company") hereby grants, as of _______________, 1998 (the "Grant Date"), to
________________ (the "Optionee") an option (the "Option") to purchase up to
___________ shares (the "Shares") of the Company's Common Stock, $.10 par value
per share (the "Common Stock"), at an exercise price per share equal to
$_________. The Option shall be subject to the terms and conditions set forth
herein. The Option is a Non-Qualified Stock Option, and not an Incentive Stock
Option.
2. Exercise Schedule. Except as otherwise provided in Sections 5
or 8 of this Agreement, the Option is exercisable on _____________, 2000.
3. Method of Exercise. The vested portion of this Option shall be
exercisable in whole or in part in accordance with the exercise schedule set
forth in Section 3 hereof by written notice which shall state the election to
exercise the Option, the number of Shares in respect of which the Option is
being exercised, and such other representations and agreements as to the
holder's investment intent with respect to such Shares as may be required by the
Company. Such written notice shall be signed by the Optionee and shall be
delivered in person or by certified mail to the Vice President, Finance of the
Company. The written notice shall be accompanied by payment of the exercise
price. This Option shall be deemed to be exercised when (i) the Company has
received written notice of such exercise in accordance with the terms of the
Option, (ii) full payment of the aggregate option price of the Shares as to
which the Option is exercised has been made, and (iii) arrangements that are
satisfactory to the Compensation Committee of the Board of Directors of the
Company (the "Committee) or the Board of Directors of the Company (the "Board")
in its sole discretion have been made for the Optionee's payment to the Company
of the amount that is necessary for the Company or the subsidiary employing the
Optionee to withhold in accordance with applicable Federal or state tax
withholding requirements. No Shares will be issued pursuant to the Option unless
and until such issuance and such exercise complies with all relevant provisions
of applicable law, including the requirements of any stock exchange upon which
the Shares then may be traded.
4. Method of Payment.
(a) Payment of the exercise price shall be by any of the
following, or a combination thereof, at the election of the Optionee: (i) cash;
(ii) check or money order; (iii) with Shares that have been held by the Optionee
for at least 6 months (or such other Shares as the Company determines will not
cause the Company to recognize for financial accounting purposes a charge for
compensation expense), (iv) pursuant to a "cashless exercise" procedure, be
delivery of a properly executed notice together with such other documentation,
and subject to such guidelines, as the Board or the Committee shall require to
effect an exercise of the Option and delivery to the Company by a licensed
broker acceptable to the Company of proceeds from the sale of the Shares, or (v)
such other consideration or in such other manner as may be determined by the
Board or the Committee in its absolute discretion. The Committee or the Board in
its sole discretion may accept a personal check in full or partial payment of
any Shares. If the exercise price is paid in whole or in part with Shares that
have been held for at least 6 months, the value of the Shares surrendered or
withheld shall be their Fair Market Value on the date the Option is exercised.
(b) "Fair Market Value" of a Share on any date of
reference shall mean the "Closing Price" (as defined below) of the Common Stock
on the business day immediately preceding such date,
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unless the Committee or the Board in its sole discretion shall determine
otherwise in a fair and uniform manner. For the purpose of determining Fair
Market Value, the "Closing Price" of the Common Stock on any business day shall
be (i) if the Common Stock is listed or admitted for trading on any United
States national securities exchange, or if actual transactions are otherwise
reported on a consolidated transaction reporting system, the last reported sale
price of Common Stock on such exchange or reporting system, as reported in any
newspaper of general circulation, (ii) if the Common Stock is quoted on the
National Association of Securities Dealers Automated Quotations System
("Nasdaq"), or any similar system of automated dissemination of quotations of
securities prices in common use, the last reported sale price of Common Stock on
such system or, if sales prices are not reported, the mean between the closing
high bid and low asked quotations for such day of Common Stock on such system,
as reported in any newspaper of general circulation or (iii) if neither clause
(i) or (ii) is applicable, the mean between the high bid and low asked
quotations for the Common Stock as reported by the National Quotation Bureau,
Incorporated if at least two securities dealers have inserted both bid and asked
quotations for Common Stock on at least five of the ten preceding days. If
neither (i), (ii), or (iii) above is applicable, then Fair Market Value shall be
determined in good faith by the Committee or the Board in a fair and uniform
manner.
(c) The Company in its sole discretion may lend money to
the Optionee, guarantee a loan to the Optionee, or otherwise assist the Optionee
to obtain the cash necessary to exercise all or a portion of the Option or to
pay any tax liability of the Optionee attributable to such exercise. If the
exercise price is paid in whole or part with Optionee's promissory note, such
note shall (i) provide for full recourse to the maker, (ii) be collateralized by
the pledge of the Shares that the Optionee purchases upon exercise of such
Option, (iii) bear interest at the prime rate of the Company's principal lender,
and (iv) contain such other terms as the Committee or the Board in its sole
discretion shall reasonably require. The Optionee shall not be deemed to be a
holder of any Shares subject to an Option unless and until a stock certificate
or certificates for such Shares are issued to the Optionee under the terms of
this Agreement. No adjustment shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property) or distributions
or other rights for which the record date is prior to the date such stock
certificate is issued, except as expressly provided in Section 9 hereof.
5. Termination of Option.
(a) The unexercised portion of the Option shall
automatically and without notice terminate and become null and void at the time
of the earliest to occur of the following:
(i) unless the Committee or Board shall otherwise
determine in writing in its sole discretion, the date on which the
Optionee's employment is terminated other than by reason of (A) Cause,
which, solely for purposes of this Agreement, shall mean the
termination of the Optionee's employment by reason of the Optionee's
willful misconduct or gross negligence, (B) a mental or physical
disability (within the meaning of Internal Revenue Code Section 22(e))
of the Optionee as determined by a medical doctor satisfactory to the
Committee or the Board, as applicable, or (C) death of the Optionee;
(ii) immediately upon the termination of the Optionee's
employment for Cause;
(iii) twelve months after the date on which the Optionee's
employment is terminated by reason of a mental or physical disability
(within the meaning of Internal Revenue Code Section 22(e)) as
determined by a medical doctor satisfactory to the Committee or the
Board;
(iv) (A) twelve months after the date of termination of
the Optionee's employment by reason of death of the Optionee, or, if
later, (B) three months after the date on which the Optionee shall die
if such death shall occur during the one-year period specified in
Subsection 5(a)(iii) hereof;
(v) _____________, 2003.
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(vi) All references herein to the termination of the
Optionee's employment shall, in the case of a Optionee who is not an
employee of the Company or a subsidiary, refer to the termination of
the Optionee's service with the Company.
(b) To the extent not previously exercised, (i) the
Option shall terminate immediately in the event of (1) the liquidation or
dissolution of the Company, or (2) any reorganization, merger, consolidation or
other form of corporate transaction in which the Company does not survive,
unless the successor corporation, or a parent or subsidiary of such successor
corporation, assumes the Option or substitutes an equivalent option or right
pursuant to Section 9(c) hereof, and (ii) the Committee or the Board in its sole
discretion may by written notice ("cancellation notice") cancel, effective upon
the consummation of any corporate transaction described in Subsection 8(a)(i)
hereof in which the Company does survive, the portion of the Option that remains
unexercised on such date. The Committee or the Board shall give written notice
of any proposed transaction referred to in this Section 5(b) a reasonable period
of time prior to the closing date for such transaction (which notice may be
given either before or after approval of such transaction), in order that the
Optionee may have a reasonable period of time prior to the closing date of such
transaction within which to exercise the portion of the Option that then is
exercisable (including any portion of the Option that may become exercisable
upon the closing date of such transaction). The Optionee may condition his
exercise of the Option upon the consummation of a transaction referred to in
this Section 5(b).
(c) Notwithstanding the provisions of this Section 5, the
exercise of the Option shall be subject to satisfaction of the conditions
precedent that, without the prior written consent of the Company, the Optionee
(i) does not intend to take employment or render services to others within six
months of the exercise of the Option (ii) has neither taken other employment nor
rendered services to others and (iii) has not and does not intend to engage in
conduct that adversely effects the Company.
6. Transferability.
(a) Unless the prior written consent of the Committee or
the Board is obtained (which consent may be withheld for any reason) and the
transaction does not violate the requirements of Rule 16b-3 promulgated under
the Securities Exchange Act, the Option shall not be subject to alienation,
assignment, pledge, charge or other transfer other than by the Optionee by will
or the laws of descent and distribution, and any attempt to make any such
prohibited transfer shall be void. The Option shall be exercisable during the
Optionee's lifetime only by the Optionee, or if the Option has been assigned or
transferred with the prior written consent of the Committee or the Board, only
by the permitted assignee.
(b) Unless the prior written consent of the Committee or
the Board is obtained and the transaction does not violate the requirements of
Rule 16b-3 promulgated under the Securities Exchange Act, no Shares acquired by
an Officer or director pursuant to the exercise of an Option may be sold,
assigned, pledged or otherwise transferred prior to the expiration of the
six-month period following the date on which the Option was granted. "Officer"
shall mean the Company's Chairman of the Board, President, Chief Executive
Officer, principal financial officer, principal accounting officer, any
vice-president of the Company in charge of a principal business unit, division
or function (such as sales, administration or finance), any other officer who
performs a policy-making function, or any other person who performs similar
policy-making functions for the Company. Officers of subsidiaries shall be
deemed Officers of the Company if they perform such policy-making functions for
the Company. As used in this paragraph, the phrase "policy-making function" does
not include policy-making functions that are not significant. If pursuant to
Item 401(b) of Regulation S-K (17 C.F.R. ss. 229.401(b)) the Company identifies
a person as an "executive officer," the person so identified shall be deemed an
"Officer" even though such person may not otherwise be an "Officer" pursuant to
the foregoing provisions of this paragraph.
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7. No Rights of Stockholders. Neither the Optionee nor any
personal representative (or beneficiary) shall be, or shall have any of the
rights and privileges of, a stockholder of the Company with respect to any
shares of Stock purchasable or issuable upon the exercise of the Option, in
whole or in part, prior to the date of exercise of the Option.
8. Acceleration of the Option.
(a) Each outstanding Option shall become immediately
fully exercisable in the event of a "Change in Control" or in the event that the
Committee or the Board exercises its discretion to provide a cancellation notice
with respect to the Option pursuant to Section 5(b) hereof. For this purpose,
the term "Change in Control" shall mean:
(i) if there occurs any transaction (which shall include
a series of transactions occurring within 60 days or occurring pursuant
to a plan), that has the result that shareholders of the Company
immediately before such transaction cease to own at least 51% of the
voting stock of the Company or of any entity that results from the
participation of the Company in a reorganization, consolidation,
merger, liquidation or any other form of corporate transaction;
(ii) if the shareholders of the Company shall approve a
plan of merger, consolidation, reorganization, liquidation or
dissolution in which the Company does not survive (unless the approved
merger, consolidation, reorganization, liquidation or dissolution is
subsequently abandoned); or
(iii) if the shareholders of the Company shall approve a
plan for the sale, lease, exchange or other disposition of all or
substantially all the property and assets of the Company (unless such
plan is subsequently abandoned).
(b) The Committee or the Board may in its sole
discretion, accelerate the date on which the Option may be exercised and may
accelerate the vesting of any Shares subject to the Option or previously
acquired by the exercise of the Option.
9. Adjustment of Shares.
(a) If at any time while the Option is outstanding, there
shall be any increase or decrease in the number of issued and outstanding Shares
through the declaration of a stock dividend or through any recapitalization
resulting in a stock split-up, combination or exchange of Shares, then and in
such event, appropriate adjustment shall be made in the number of Shares and the
exercise price per Share thereof then subject to any outstanding portion of the
Option, so that the same percentage of the Company's issued and outstanding
Shares shall remain subject to purchase at the same aggregate exercise price.
(b) The Committee or the Board may change the terms of
the Option, with respect to the option price or the number of Shares subject to
the Options, or both, when, in the Committee's or Board's sole discretion, such
adjustments become appropriate so as to preserve but not increase benefits under
this Agreement.
(c) In the event of a proposed sale of all or
substantially all of the Company's assets or any reorganization, merger,
consolidation or other form of corporate transaction in which the Company does
not survive, where the securities of the successor corporation, or its parent
company, are issued to the Company's shareholders, then the successor
corporation or a parent of the successor corporation may, with the consent of
the Committee or the Board, assume the outstanding portion of the Option or
substitute an equivalent option or right. If the successor corporation, or its
parent, does not cause such an assumption or substitution to occur, or the
Committee or the Board does not consent to such an assumption or substitution,
then each Option shall terminate pursuant to Section 5(b) hereof upon the
consummation of sale, merger, consolidation or other corporate transaction.
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(d) Except as otherwise expressly provided herein, the
issuance by the Company of shares of its capital stock of any class, or
securities convertible into shares of capital stock of any class, either in
connection with a direct sale or upon the exercise of rights or warrants to
subscribe therefor, or upon conversion of shares or obligations of the Company
convertible into such shares or other securities, shall not affect, and no
adjustment by reason thereof shall be made to, the number of or exercise price
for Shares then subject to the Option.
(e) Without limiting the generality of the foregoing, the
existence of this Option shall not affect in any manner the right or power of
the Company to make, authorize or consummate (i) any or all adjustments,
recapitalizations, reorganizations or other changes in the Company's capital
structure or its business; (ii) any merger or consolidation of the Company;
(iii) any issue by the Company of debt securities, or preferred or preference
stock that would rank above the Shares subject to outstanding Options; (iv) the
dissolution or liquidation of the Company; (v) any sale, transfer or assignment
of all or any part of the assets or business of the Company; or (vi) any other
corporate act or proceeding, whether of a similar character or otherwise.
10. Issuance of Shares.
(a) Notwithstanding any other provision of this
Agreement, the Company shall not be obligated to issue any Shares unless it is
advised by counsel of its selection that it may do so without violation of the
applicable Federal and state laws pertaining to the issuance of securities, and
may require any stock so issued to bear a legend, may give its transfer agent
instructions, and may take such other steps, as in its judgment are reasonably
required to prevent any such violation.
(b) As a condition to any sale or issuance of Shares upon
exercise of the Option, the Committee or the Board may require such agreements
or undertakings as the Committee or the Board may deem necessary or advisable to
facilitate compliance with any applicable law or regulation including, but not
limited to, the following:
(i) a representation and warranty by the Optionee to the
Company, at the time the Option is exercised, that he is acquiring the
Shares to be issued to him for investment and not with a view to, or
for sale in connection with, the distribution of any such Shares; and
(ii) a representation, warranty and/or agreement to be
bound by any legends endorsed upon the certificate(s) for such Shares
that are, in the opinion of the Committee or the Board, necessary or
appropriate to facilitate compliance with the provisions of any
securities laws deemed by the Committee or the Board to be applicable
to the issuance and transfer of such Shares.
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11. Withholding or Deduction for Taxes. If at any time specified
herein for the making of any issuance or delivery of the Option or Common Stock
to the Optionee or beneficiary, any law or regulation of any governmental
authority having jurisdiction in the premises shall require the Company to
withhold, or to make any deduction for, any taxes or take any other action in
connection with the issuance or delivery then to be made, such issuance or
delivery shall be deferred until such withholding or deduction shall have been
provided for by the Optionee or beneficiary, or other appropriate action shall
have been taken.
12. No Right to Continued Employment. Neither the Option nor this
Agreement shall confer upon the Optionee any right to continued employment or
service with the Company.
13. Law Governing. This Agreement shall be governed in accordance
with and governed by the internal laws of the State of Florida.
14. Interpretation. The Optionee accepts the Option subject to all
the terms and provisions of the Agreement. The undersigned Optionee hereby
accepts as binding, conclusive and final all decisions or interpretations of the
Committee or the Board upon any questions arising under this Agreement.
15. Notices. Any notice under this Agreement shall be in writing
and shall be deemed to have been duly given when delivered personally or when
deposited in the United States mail, registered, postage prepaid, and addressed,
in the case of the Company, to the Company's Vice President, Finance at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or if the Company should
move its principal office, to such principal office, and, in the case of the
Optionee, to the Optionee's last permanent address as shown on the Company's
records, subject to the right of either party to designate some other address at
any time hereafter in a notice satisfying the requirements of this Section.
16. Tax Consequences. Set forth below is a brief summary as of the
date of this Option of some of the federal tax consequences of exercise of this
Option and disposition of the Shares. THIS SUMMARY IS NECESSARILY INCOMPLETE,
AND THE TAX LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. OPTIONEE SHOULD CONSULT
A TAX ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE SHARES.
(a) Exercise of Option. There may be a regular federal
income tax liability upon the exercise of the Option. The Optionee will be
treated as having received compensation income (taxable at ordinary income tax
rates) equal to the excess, if any, of the fair market value of the Shares on
the date of exercise over the Exercise Price. If Optionee is an employee, the
Company will be required to withhold from Optionee's compensation or collect
from Optionee and pay to the applicable taxing authorities an amount equal to a
percentage of this compensation income at the time of exercise.
(b) Disposition of Shares. If Shares are held for at
least one year, any gain realized on disposition of the Shares will be treated
as long-term capital gain for federal income tax purposes.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the ____ day of _________, 1998.
COMPANY:
WINDMERE-DURABLE HOLDINGS, INC.
By:
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Name:
Title:
OPTIONEE:
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Print name and sign above