EXHIBIT 10(h)
NO. 01-2
REX Stores Corporation
NONQUALIFIED
EXECUTIVE STOCK OPTION
REX Stores Corporation (the "Company") hereby grants to LAWRENCE
TOMCHIN (the "Optionee"), effective April 17, 2001 (the "Effective Date"), as a
matter of separate inducement and agreement in connection with Optionee's
employment by the Company, and not in lieu of any salary or other compensation
for his services, an option to purchase a maximum of One Hundred Fifty Thousand
(150,000) shares of its Common Stock, One Cent ($.01) par value (the "Shares"),
at a price of $18.015 per share, subject to the following terms and conditions:
1. Time of Exercise. This option may not be exercised prior to the
first anniversary of the Effective Date. On or after December 31, 2003, this
option shall be exercisable only up to a maximum of one-third (1/3) of the total
number of Shares originally subject to the option, or Fifty Thousand (50,000)
shares. On or after December 31, 2004, this option shall be exercisable only up
to a maximum of two-thirds (2/3) of the total number of Shares originally
subject to the option, or One Hundred Thousand (100,000) Shares. On or after
December 31, 2005, the option shall be exercisable in full.
Notwithstanding anything to the contrary herein contained, so long as
the Optionee shall be employed by the Company or any of its subsidiaries, this
option may not be exercised if, in the opinion of counsel for the Company, the
issuance of the Shares pursuant thereto, either alone or in combination with the
issuance of other securities by the Company, would constitute a violation of
applicable federal or state securities laws or regulations or orders thereunder.
In the event this option may not otherwise be exercised by reason of the
foregoing sentence, the Company shall use its best efforts to register said
shares with the Securities and Exchange Commission on Form S-8 (or successor
form) as soon as practicable after said form may be used by the Company and,
concurrently therewith, to take such steps as may be necessary to
comply with applicable state securities laws in connection with such issuance.
2. Term of Option. This option shall expire on the tenth (10th)
anniversary of the effective date of this Agreement.
3. Methods of Exercise. This option shall be exercisable by a written
notice in the form attached hereto as Exhibit "A", which specifies the number of
Shares to be purchased. Upon receipt of payment acceptable to the Company for
the Shares, the Company will thereafter deliver or cause to be delivered to the
Optionee (or any other individual or individuals exercising this option if
permitted under the terms of this option) at the office of the Company, a
certificate or certificates for the number of Shares with respect to which this
option is being exercised, registered in the name of the Optionee or other
individual or individuals exercising the option (if permitted under this
option), provided, however, that if any law or regulation or order of the
Securities and Exchange Commission or other body having jurisdiction in the
premises shall require the Company or Optionee (or other individual or
individuals exercising this option if permitted under the terms of this option)
to take any action in connection with the Shares then being purchased, the
delivery of the certificate or certificates for such shares shall be delayed for
the period necessary to take and complete such action.
4. Purchase for Investment. This option is granted on the condition
that the purchase of Shares of stock hereunder shall be for the account of the
Optionee (or other individuals or individuals exercising this option) for
investment purposes and not with a view to resale or distribution, except that
such condition shall be inoperative if the offering of Shares subject to the
option is registered under the Securities Act of 1933, as amended, or if in the
opinion of counsel for the Company such shares may be resold without
registration. At the time of any exercise of the option, the Optionee (or other
individual or individuals exercising this option) will execute such further
agreements as the Company may require to implement the foregoing condition and
to acknowledge the Optionee's (or such other individual's) familiarity with
restrictions on the resale of the shares under applicable securities laws.
5. Non-Transferability. This option may not be sold, pledged,
hypothecated, or transferred by the Optionee, except as otherwise provided in
Paragraph 6(iii) herein.
6. Termination of Options. This Agreement, and the options granted
hereunder, shall terminate and may no longer be exercised if the Optionee ceases
for any reason to be an employee of the Company, or any of its subsidiaries,
except that:
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(i) If the Optionee's employment shall have been terminated for
any reason other than cause, disability or death, he may at any time within a
period of one hundred eighty (180) days after such termination of employment
exercise his option to the extent permitted in Paragraph 1 of this Agreement on
the date of termination of his employment; and/or
(ii) If the Optionee's employment shall have been terminated
because of disability, he may at any time within a period of one (1) year after
such termination of employment exercise his option to the extent permitted in
Paragraph 1 of this Agreement on the date of termination of his employment;
and/or
(iii) If the Optionee dies at a time when the option was
exercisable by him, then his estate, personal representative or beneficiary to
whom it has been transferred may, within six (6) months following the death,
exercise the option to the extent permitted in Paragraph 1 of this Agreement at
the time of Optionee's death, provided, however, that no option may be exercised
to any extent by anyone after the date of expiration of the option.
7. Rights as Shareholder. The Optionee shall have no rights as a
shareholder with respect to any Shares covered by this option until the date of
issuance of a stock certificate to him for such Shares.
8. Stock Dividends; Splits; Stock Combination; Recapitalization.
Appropriate adjustment shall be made in the maximum number of Shares of Common
Stock subject to this option and in the number, kind, and option price of Shares
covered by outstanding options granted hereunder to give effect to any stock
dividends or other distribution, stock splits, stock combinations,
recapitalizations and other similar changes in the capital structure of the
Company after the Effective Date.
9. Merger; Sale of Assets; Dissolution. In the event of a change of the
Common Stock resulting from a merger or similar reorganization as to which the
Company is the surviving corporation, the number and kind of Shares which
thereafter may be subject to options granted hereunder and the price per share
thereof shall be appropriately adjusted in such a manner as the Board of
Directors of the Company may deem equitable to prevent substantial dilution or
enlargement of the rights available or granted hereunder. If the Company at any
time should elect to dissolve, sell all or substantially all of its assets,
undergo a reorganization, or merge or consolidate with any corporation and the
Company is not the surviving corporation, then (unless in the case of a
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reorganization, merger, or consolidation, the surviving corporation assumes the
optionees' rights hereunder or issues substantially equivalent substitute rights
in place hereof) the Optionee shall be notified by the Company of his right to
exercise all outstanding options prior to any such dissolution, sale,
reorganization, merger or consolidation. The failure to exercise such
outstanding options within thirty (30) days of such notification shall cause the
option hereunder to be terminated.
10. Effect of the Option on Employment Relationship. This option shall
in no way, now or hereafter, reduce, enlarge or modify the employment
relationship between the Company and the Optionee. Nothing contained herein
shall be construed as conferring upon the Optionee any right to continue in the
employ of the Company.
11. Acceleration of Exercise Date Upon Change In Control.
Notwithstanding anything to the contrary herein, upon the occurrence of a Change
in Control (as defined in the Company's 1999 Omnibus Stock Incentive Plan), this
option, if outstanding at such time, shall become fully and immediately
exercisable and shall remain exercisable until its expiration, termination or
cancellation.
12. General. This option shall be governed by and be construed in
accordance with the laws of the State of Ohio.
IN WITNESS WHEREOF, the Company has caused this Stock Option to be
executed this 17th day of April, 2001.
REX Stores Corporation
By /s/ Edward M. Kress
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Edward M. Kress, Secretary
/s/ Lawrence Tomchin
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Lawrence Tomchin
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EXHIBIT A
WRITTEN NOTICE OF EXERCISE OF
STOCK OPTION
REX Stores Corporation
The undersigned hereby exercises his option granted to him pursuant to
the 2001 Nonqualified Executive Stock Option No. 01-2, subject to and in
accordance with the terms and conditions thereof, to purchase ________________
shares of the Common Stock of REX Stores Corporation, at a price of $18.015 per
share, said number of shares not to exceed the number permitted in Paragraph 1
of the Option. The undersigned hereby makes payment to REX Stores Corporation of
the purchase price in full. Kindly issue all shares to the undersigned and
deliver to the undersigned at the address stated below.
Name: Lawrence Tomchin
Address: 2875 Needmore Road, Dayton, Ohio 45414
Social Security Number: ###-##-####
Signature:
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Purchase Price Attached:
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Dated:
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