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Exhibit 4.5 Form "A"
SENIOR EXECUTIVE OFFICER NON-QUALIFIED STOCK OPTION AGREEMENT
PURSUANT TO THE MEDUSA CORPORATION 1991
LONG-TERM INCENTIVE PLAN
THIS AGREEMENT, made and entered into as of this 8th day of May, 1995,
by and between Medusa Corporation, an Ohio corporation having its principal
executive offices at Monticello & Lee Boulevards, Cleveland Heights, Ohio 44118
(the "Company"), and [Fill-in: Participant] (the "Participant"),
W I T N E S S E T H :
WHEREAS, the Participant is employed by the Company or by a Subsidiary
thereof, and pursuant to Article VI of the Medusa Corporation 1991 Long-Term
Incentive Plan (the "Plan"), the Company desires to award the Participant
certain Non-Qualified Stock Options pursuant to the Plan (the "Award").
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration each to the other in hand paid, the receipt and adequacy
whereof is hereby mutually acknowledged, the Company and the Participant hereby
mutually covenant and agree as follows:
1. GRANT OF NON-QUALIFIED STOCK OPTIONS
The Company hereby grants to the Participant, and the
Participant hereby accepts, [ Fill-in: Stock Options] Options to
purchase Common Shares of Medusa Corporation (the "Company Common
Shares") under the Plan. The purchase price for each Company Common
Share shall be $24.375, which is the Fair Market Value of a Company
Common Share on May 8, 1995, the Date of Grant. (The "Fair Market
Value", as defined in the Plan, is the average of the high and low
quoted sales prices of a Company Common Share, as reported on the
composite tape for the New York Stock Exchange.)
2. TIMING OF EXERCISE
Each Option granted hereunder shall be exercised in whole or
in part (in lots of ten shares or any multiple thereof) from
time-to-time beginning from the Date of Grant, subject to the
following time limitations:
a.) VESTING
Except in the event of a Change in Control, Options
may not be exercised in excess of (i) 50% of the total number
of Company Common Shares awarded to the Participant during the
second year after the Date of Grant; (ii) 75% during the third
year; and (iii) 100% thereafter. In the event of a "Change of
Control", (as defined in the Plan) all Options shall become
immediately and fully exercisable.
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b.) RIGHTS UPON TERMINATION, PRIOR TO VESTING
Options shall immediately expire if unvested as of
the date of Termination of Employment, except where the
Participant is a Senior Executive.
c.) RIGHTS UPON TERMINATION, AFTER VESTING
(i) DEATH, DISABILITY, OR RETIREMENT
In the event that the Participant terminates
his or her employment with the Company by reasons of
death, disability, or retirement, then the
Participant (or the Participant's Beneficiary, in
the case of death) shall have five (5) years from
the date of such event to exercise Options, or until
the expiration of the Options, whichever occurs
earlier. (Reference should be made to the Plan
document for the additional information with respect
to the meaning of the terms "Termination of
Employment", disability, "Normal Retirement Date"
and "Other Retirement Date".)
(ii) SENIOR EXECUTIVES
For purpose of this Agreement, the term
"Senior Executive" shall mean the Chairman or the
President of the Company. By Board action on May 8,
1995, Normal Retirement Date for a Senior Executive
may be any age (it is not limited to retirement at
age at 65 or thereafter).
(iii) TERMINATION FOR REASONS OTHER THAN THE ABOVE
Options shall expire if unexercised three
months after the date of Termination of Employment
for reasons other than those described in Subsection
(i), above.
d.) EXPIRATION
Options shall expire if not exercised within ten years
from the Date of Grant.
3. EXERCISE PROCEDURE
Each option shall be exercised by giving written notice to the
Secretary of the Company on the Date of Exercise. The Purchase Price
of shares purchased upon exercise of an Option granted hereunder shall
be paid by the Participant in full in cash, Company Common Shares, any
combination of cash and Company Common Shares, or in accordance with a
cash-less exercise program, under which, if so instructed by the
Participant, Company Common Shares may be issued directly to the
Participant's broker or dealer upon receipt of the Purchase Price in
cash from the broker or dealer ("Cash-Less Exercise"). In the event
that any Company Common Shares shall be transferred to the Company to
satisfy all or any part of the Purchase Price, the part of the
Purchase Price deemed to have been satisfied by such transfer of
Company Common Shares shall be equal to the product derived by
multiplying the fair market value (as defined in the Plan) as of the
date of exercise times the number of Company Common Shares transferred
to the Company. The Participant may not transfer to the Company in
satisfaction of the Purchase Price any fraction of a Company Common
Share. As used
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above in this paragraph, the term "Company Common Shares" is defined
as those shares which have been held by the Participant for six months
or longer.
4. ASSIGNABILITY
Other than for the purpose of a Cash-Less Exercise, as
provided above, the Participant's rights and interest under this
Agreement may not be assigned or transferred other than by will or the
laws of descent and distribution, and during the lifetime of a
Participant, only the Participant personally (or the Participant's
Beneficiary) may exercise rights under this Agreement. The
Participant's Beneficiary may exercise the Participant's rights to the
extent they are exercisable under the Plan following the death of the
Participant.
5. DILUTION AND OTHER ADJUSTMENTS
a.) RECAPITALIZATION
The number of shares awarded hereunder, the Purchase
Price or the Exercise Price for such shares, shall be
appropriately adjusted to reflect any stock dividend, stock
split, combination or exchange of shares, merger,
consolidation or other change in capitalization with a similar
substantive effect upon this Award. The Organization and
Compensation Committee of the Board of Directors (hereinafter
called the "Committee") shall have the power and sole
discretion to determine the amount of the adjustment to be
made in each case.
b.) MERGER
After any Merger in which the Company is the
surviving corporation, the Participant shall, at no additional
cost, be entitled upon any exercise of an Option to receive
(subject to any required action by shareholders), in lieu of
the number of Company Common Shares receivable or exercisable
pursuant to this Award, the number of shares or other
securities to which the Participant would have been entitled
pursuant to the terms of the Merger if, at the time of the
Merger, the Participant had been the holder of record of a
number of shares equal to the number of shares receivable or
exercisable pursuant to this Award. Comparable rights shall
accrue to the Participant in the event of successive Mergers
of the character described above.
6. TAXES
a.) With respect to a Participant who is subject to the
provisions of Section 16(b) of the Exchange Act on the date on
which the withholding requirements apply, the Company shall
withhold from the Award the appropriate number of Company
Common Shares, rounded up to the next whole share, whose Fair
Market Value is equal to such amount, or, in the case of a
cash payment, the amount of cash, as is determined by the
Company to be sufficient to satisfy applicable tax withholding
requirements.
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b.) With respect to a Participant who is not subject to
the provisions of Section 16(b) of the Exchange Act on the
date on which the withholding requirements apply, the
Participant shall have the right to elect to meet his or her
withholding requirement through the method described in
Subsection (a) above or by direct payment to the Company of
the amount of any taxes required to be withheld with respect
to the Award.
7. MISCELLANEOUS PROVISIONS
a.) RIGHTS AS A SHAREHOLDER
The Participant or a transferee of any Options under
this Agreement shall have no rights as a shareholder with
respect to Company Common Shares covered by an Option until
the Participant or transferee shall have become the holder of
record of any such shares, and no adjustment shall be made for
dividends in cash or other property or distributions or other
rights with respect to any such Company Common Shares for
which the record date is prior to the date on which the
Participant or a transferee of the Option shall have become
the holder of record of any such shares covered by the Option;
provided, however, that Participants are entitled to share
adjustments to reflect capital changes under Section 5.
b.) PLAN PROVISIONS CONTROL AWARD TERMS
The terms of the Plan shall govern this Award. In
the event any provision of this Award conflicts with any term
in the Plan as constituted on the Date of Grant of this Award,
the term in the Plan as constituted on the Date of Grant of
this Award shall control. Except as provided in Subsection
(c) below, the terms of this Award may not be changed after
the Date of Grant of this Award so as to materially decrease
the value of this Award without the express written approval
of the Participant or transferee.
c.) MODIFICATION OF AWARD AFTER GRANT
This Award may not be modified (unless such
modification does not materially decrease the value of this
Award) after the Date of Grant except by express written
agreement between the Company and the Participant, provided
that any such modification (a) shall not be inconsistent with
the terms of the Plan, and (b) shall be approved by the
Committee. No modification may be made to this Award while
the Participant is subject to Section 16(b) of the Exchange
Act except in compliance with Rule 16b-3.
d.) SURRENDER OF AWARDS
This Award may be surrendered to the Company for
cancellation on such terms as the Committee and the
Participant approve.
e.) NO RIGHT TO EMPLOYMENT
By this Award, neither the Participant or any other
person shall have any claim of right to be granted any
additional Awards under the Plan. Neither the
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Plan, this Award, nor any other action taken under the Plan
shall be construed as giving the Participant any right to be
retained in the employ of the Company or any of its
Subsidiaries.
f.) AWARDS NOT INCLUDABLE FOR BENEFIT PURPOSES
Any payments received by the Participant pursuant to
the provisions of this Award shall not be included in the
determination of benefits under any pension, group insurance
or other benefit plan applicable to the Participant which are
maintained by the Company or any of its Subsidiaries, except
as may be provided under the terms of such plans.
g.) NO STRICT CONSTRUCTION
No rule of strict construction shall be implied
against the Company, the Committee, or any other person in the
interpretation of this Award.
h.) COMPLIANCE WITH RULE 16B-3
It is intended that this Award shall be administered
in compliance with Rule 16b-3. If any provision of this Award
would be in violation of Rule 16b-3 if applied as written,
such provision shall not have effect as written and shall be
given effect so as to comply with rule 16b3. The Board of
Directors of the Company is authorized to make any such
modifications to this Agreement as are required to comply with
Rule 16b-3, as such rule may be amended from time to time.
i.) CAPTIONS
The captions (i.e., all Section headings) used in
this Agreement are for convenience only, do not constitute a
part of the Agreement, and shall not be deemed to limit,
characterize or affect in any way any provisions of the
Agreement, and all provisions of this Agreement shall be
construed as if no captions have been used in the Agreement.
j.) SEVERABILITY
Whenever possible, this Award shall be interpreted
in such manner as to be effective and valid under applicable
law, but if any provision of this Award shall be held to be
prohibited by or invalid under applicable law, then (i) such
provision shall be deemed amended to accomplish the objectives
of the provision as originally written to the fullest extent
permitted by law and (ii) all other provisions of this Award
shall remain in full force and effect.
k.) AMENDMENT
No amendment of the Plan may, without the consent of
the Participant, adversely affect the right of the Participant
under this Award.
l.) PLAN TERMINATION
In the event that the Participant is vested in this
Award at the time of the termination of the Plan, then the
Participant may exercise his or her rights under
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this Award at any time prior to the expiration date of this
Award to the same extent this Award would have been
exercisable had the Plan not terminated.
m.) NOTICES
Except as otherwise expressly set forth in this
Agreement, any notice required to be given to the Participant
shall be sent to the address of the Participant as the same
appears on the records of the Company, or at such other
address as the Participant may hereafter designate in writing
and all notices required to be given to the Company shall be
addressed to the Secretary of the Company at the address set
forth above. Any such notice shall be deemed to be duly given
if and when enclosed in a properly sealed envelope or wrapper
addressed as aforesaid, registered and deposited, postage and
registry fee prepaid, in a post office or branch post office
regularly maintained by the United States, via messenger or
facsimile transmissions.
MEDUSA CORPORATION
By:____________________________
George E. Uding, Jr., President
PARTICIPANT
By:____________________________
[Fill-in: Participant]
Signed this ____ day of May, 1995
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