EX-10.4



 





EXHIBIT 10.4




SOI HOLDINGS, INC. 2005 OMNIBUS PLAN



AMENDED AND RESTATED NONQUALIFIED COMMON STOCK OPTION



AGREEMENT




     THIS AMENDED AND RESTATED COMMON STOCK OPTION AGREEMENT (the “Agreement”), dated as of
                               , 2007, is made by and between SOI Holdings, Inc., a Delaware corporation (the
“Company”), and                      (the “Participant”).



     WHEREAS, the Company has adopted the SOI Holdings, Inc. 2005 Omnibus Plan (the
“Plan”), pursuant to which options may be granted to purchase shares of the Company’s
common stock, par value, $0.01 per share (“Common Stock”); and



     WHEREAS, effective as of August 15, 2005, (the “Date of Grant”) the Company and the
Participant entered into that certain Nonqualified Common Stock Option Agreement (the “Original
Agreement”) pursuant to which the Company granted the Participant an option to purchase                      shares of Common Stock; and



     WHEREAS, the Company and the Participant have determined to amended and restate the terms and
conditions of the Original Agreement as set forth herein;



     NOW, THEREFORE, for and in consideration of the premises and the covenants of the parties
contained in this Agreement, and for other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto, for themselves, their successors and assigns, hereby agree
as follows:



          1. Grant of Option.




               Grant. The Company hereby confirms the grant to the Participant, as of the Date of
Grant, of an option (the “Option”) to purchase            shares of Common Stock (such shares
of Common Stock, the “Option Shares”), on the terms and conditions set forth in this
Agreement and as otherwise provided in the Plan. This Option is not intended to be an Incentive
Stock Option.



          2. Incorporation by Reference, Etc.




               The provisions of the Plan are hereby incorporated herein by reference. Except as otherwise
expressly set forth herein, this Agreement shall be construed in accordance with the provisions of
the Plan and any capitalized terms not otherwise defined in this Agreement shall have the
definitions set forth in the Plan. The Committee shall have final authority to interpret and
construe the Plan and this Agreement and to make any and all determinations under them, and its
decision shall be binding and conclusive upon the Participant and his legal representative in
respect of any questions arising under the Plan or this Agreement.



          3. Terms and Conditions




               (a) Option Price. The price at which the Participant shall be entitled to purchase the Option Shares upon the
exercise of all or any portion of this Option shall be $0.74 per share.



 









 





               (b) Expiration Date. Subject to Section 3(d) hereof, the Option shall expire at 11:59 p.m. Eastern Time on the
day immediately preceding the tenth anniversary of the Date of Grant.



               (c) Exercisability of the Option.




               (i) The exercise of the Option shall be subject to the Participant’s having executed
(if he or she is not already a party thereto) the Stockholders Agreement by and among the
Company, Trumpet Investors L.P., a Delaware limited partnership, Trumpet SBIC Partners,
L.P., a Delaware Limited partnership, Regions Bank, a bank chartered under the laws of the
State of Alabama and the stockholders who are party thereto, dated as of August 3, 2005 (the
“Stockholders Agreement”).




               (ii) Except as may otherwise be provided herein, pursuant to the terms of the Original
Agreement: (i) as of the date of this Agreement, the Option is vested and exercisable as to
           of the Option Shares and (ii) the Option was scheduled to vest and become exercisable
with respect to the remaining            Option Shares,            on August 15, 2007 and            on
August 15, 2008 (the “Original Vesting Schedule”). For the purposes of this
Agreement, the term “Accelerated Vested Option Share” shall include any Option Share
with respect to which the vesting was accelerated by this Agreement ahead of the Original
Vesting Schedule; provided that each such Option Share shall no longer be an Accelerated
Vested Option Share upon the date that such Option Share would have vested in accordance
with the Original Vesting Schedule. As of the date of this Agreement the Option is vested
and exercisable as to all of the Option Shares.




               (iii) The Option may be exercised only by written notice, substantially in the form
attached hereto as Exhibit A (or a successor form provided by the Committee) delivered in
person or by mail in accordance with Section 6(a) hereof and accompanied by payment
therefor. The purchase price of the Option Shares shall be paid by the Participant to the
Company (A) by certified check, (B) by transferring to the Company shares of Common Stock as
described in Section 7(b) of the Plan, (C) following an initial public offering by the
Company of shares of Common Stock registered under the Securities Act of 1933, as amended
(an “Initial Offering”), by a “cashless exercise” procedure if and in the manner
approved by the Committee or (D) by any other method approved by the Committee in writing.
If requested by the Committee, the Participant shall promptly deliver his copy of this
Agreement evidencing the Option to the Secretary of the Company who shall endorse thereon a
notation of such exercise and promptly return such Agreement to the Participant. The Option
may be exercised only for whole shares.



               (d) Termination of Option. In the event of a termination of Participant’s employment with the Company, the Option
shall remain exercisable by the Participant, provided, that such Option shall expire upon the
earliest to occur of (i) the tenth anniversary of the Date of Grant, (ii) the date of the termination of the Participant’s employment with the Company and its Affiliates either (x) by
the Company with “Cause” or (y) by the Participant other than for “Good Reason” (iii) the date
sixty (60) days following the date of termination of the Participant’s employment with the Company
and its Affiliates by the Company without Cause or by the Participant for Good Reason; (iv) the
first anniversary of the termination of the Participant’s



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 employment with the Company and its
Affiliates (A) by reason of the Participant’s death, or (B) by the Company on account of
Disability; or (v) as otherwise described in Section 12 of the Plan.




          “Cause” shall be deemed to occur at the time the Company gives written notice to the
Participant that Participant has participated in any of the following conduct while an employee of
the Company: (1) willful and knowing dishonesty in communication of any kind on any material
subject for any purpose either to the Company or to any person or entity for or on behalf of the
Company; (2) theft, embezzlement, false entries on records, misapplication of funds or property,
misappropriation of any asset, and conduct resulting in conversion of any kind, or any actual or
constructive fraud; (3) imparting confidential information in violation of the Company’s policies;
(4) gross neglect of duty or willful refusal to perform his duties of employment at the Company;
(5) conduct involving moral turpitude which results in public disgrace for which there is probable
cause to believe that, if criminally prosecuted, such conduct would be adjudged felonious; or (6)
receiving, while an employee of the Company, compensation, income, or a future interest in or
future entitlement to compensation, or income from any person or entity who or which is engaged in
the same or substantially the same business as the Company in the same product, service or
geographical market, except stock dividends and/or gains from passive investments in financial
institutions or professional employer organizations by Participant made in the ordinary course of
business, as part of the Participant’s investment portfolio.




          “Good Reason” shall mean: (1) any reduction in Participant’s base salary or target bonus
opportunity; or (2) any material reduction in benefits to which Participant shall be entitled under
the plans and programs of the Company (unless such reduction is equally applicable to all
executives of the Company at the same level as Participant).




          “Disability” shall mean the Participant’s inability, by reason of mental or physical
impairment, to perform the essential functions of his position with the Company, with or without
reasonable accommodation, for a period of twelve (12) consecutive work weeks, or for intermittent
periods totaling in the aggregate, more than twelve (12) work weeks in any twelve (12) month
period.




               (e) Compliance with Legal Requirements. The granting and exercising of the Option, and any other obligations of the Company under
this Agreement shall be subject to all applicable federal and state laws, rules and regulations and
to such approvals by any regulatory or governmental agency as may be required. The Committee, in
its sole discretion, may postpone the issuance or delivery of Option Shares as the Committee may
consider appropriate and may require the Participant to make such representations and furnish such
information as it may consider appropriate in connection with the issuance or delivery of Option
Shares in compliance with applicable laws, rules and regulations (in addition to those
representations required pursuant to Section 5).



               (f) Company Call Option. Any Option Shares purchased by the Participant through the exercise of the Option shall be
subject to the Company’s Call Option as follows:




               (i) Other than as set forth in the second sentence of Section 3(f)(vii), upon and
following the termination of the Participant’s employment with the



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Company for any reason
(or no reason), the Company shall have the right and option (the “Call Option”), but
not the obligation, to purchase from the Participant (or his estate or permitted
transferees) any or all of the Option Shares (whether purchased pursuant to the exercise of
the Option prior to, on or following such termination or of employment). The purchase price
(the “Call Price”) of the Option Shares subject to purchase under this provision
(the “Called Shares”) shall be (x) in the case of a termination of the Participant’s
employment by the Company for Cause, the lower of the purchase price of such Called Shares,
or the Fair Market Value of such Called Shares on the date of the applicable “Call Notice”
(as defined below) and (y) in the case of any other termination of employment, the Fair
Market Value of such Called Shares on the date of the applicable Call Notice.
Notwithstanding the foregoing, if within three years of the Date of Grant, the Participant’s
employment with the Company is terminated, other than: (A) by the Participant for Good
Reason, (B) by the Company on account of Disability, or (C) by reason of the Participant’s
death, (x) the purchase price of any Called Shares that are Accelerated Vested Option Shares
on the date of the Call Notice shall be the lower of the purchase price of such Called
Shares, or the Fair Market Value of such Called Shares on the date of the applicable Call
Notice and (y) the Participant shall be obligated to repay the Company the aggregate amount
of any dividends or distributions paid to the Participant on any of the Called Shares that
are Accelerated Vested Option Shares as of the date of the Call Notice.




If the Company’s Call Option is for less than all of the Option Shares then outstanding and
if any Accelerated Vested Option Shares are outstanding on the date of the Company’s Call
Notice, the Company’s Call Option shall first be applied with respect to Option Shares that
are Accelerated Vested Option Shares.




               (ii) The Company may exercise the Call Option by delivering or mailing to the
Participant (or to his estate, if applicable), in accordance with Section 6(a) of this
Agreement, written notice of exercise (a “Call Notice”). The Call Notice shall
specify the date thereof, the number of Called Shares and the Call Price.




               (iii) Within ten (10) days after his receipt of the Call Notice, the Participant (or
his estate) shall tender to the Company, at its principal office the certificate or
certificates representing the Called Shares, duly endorsed in blank by the Participant (or
his estate) or with duly endorsed stock powers attached thereto, all in form suitable for
the transfer of such shares to the Company. Upon its receipt of such shares, the Company
shall pay to the Participant the aggregate Call Price therefor, in cash.




               (iv) The Company will be entitled to receive customary representations and warranties
from the Participant regarding the sale of the Called Shares pursuant to the exercise of the
Call Option as may reasonably requested by the Company,
including but not limited to the representation that the Participant has good and
marketable title to the Called Shares to be transferred free and clear of all liens, claims
and other encumbrances.




               (v) If the Company delivers a Call Notice, then from and after the time of delivery of
the Call Notice, the Participant shall no longer have any rights as a holder of the Called
Shares subject thereto (other than the right to receive payment of the



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Call Price as
described above), and such Called Shares shall be deemed purchased in accordance with the
applicable provisions hereof and the Company shall be deemed to be the owner and holder of
such Called Shares.




               (vi) Any Option Shares as to which the Call Option is not exercised will remain subject
to all terms and conditions of this Agreement, including the continuation of the Company’s
right to exercise the Call Option.




               (vii) This Section 3(f) is in addition to, and not in lieu of, any rights and
obligations of the Participant and the Company in respect of the Option Shares contained in
the Stockholders Agreement. Notwithstanding the above, this Section 3(f) shall be
ineffective as to each Option Share on and following an Initial Offering or any other event
which causes the Common Stock, or other securities for which all or substantially all of the
Common Stock may have been exchanged, to be or become listed for trading on or over an
established securities market or established trading system.




               (viii) Notwithstanding anything in the Plan to the contrary, solely for purposes of
this Section 3(f), the term “Fair Market Value” shall have the meaning that such term is
given in the Stockholders Agreement.



               (g) Drag-Along Right. The Option shall be subject to the drag along rights of the “Drag-Along Rightholders” (as
that term is defined in the Stockholders Agreement) to the same extend as if the Option were
“Common Stock Equivalents” (as that term is defined in the Stockholders Agreement).



               (h) Transferability. The Option shall not be transferable by the Participant other than by will or the laws of
descent and distribution.



               (i) Rights as Stockholder. The Participants shall not be deemed for any purpose to be the owner of any Common Stock
subject to this Option unless, until and to the extent that (i) this Option shall have been
exercised pursuant to its terms, (ii) the Participant shall have executed the Stockholders
Agreement, (iii) the Company shall have issued and delivered to the Participant the Option Shares,
and (iv) the Participant’s name shall have been entered as a stockholder of record with respect to
such Option Shares on the books of the Company.



               (j) Tax Withholding. Prior to the delivery of a certificate or certificates representing the Option Shares, the
Participant must pay in the form of a certified check to the Company any such additional amounts as
the Company determines that it is required to withhold under applicable federal, state or local tax
laws in respect of the exercise or the transfer of Option Shares; provided that the Committee may,
in its sole discretion, allow such withholding obligation to be satisfied by any other method
described in Section 11(d) of the Plan.



          4. Restrictive Legend. Unless otherwise determined by the Company, all certificates representing Stock shall have
affixed thereto a legend in substantially the following form, in addition to any other legends that
may be required under federal or state securities laws:



THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON



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TRANSFER AND AN OPTION TO PURCHASE SET FORTH IN THE
SOI HOLDINGS, INC. 2005 OMNIBUS PLAN, A CERTAIN STOCK OPTION
AGREEMENT BETWEEN SOI HOLDINGS, INC. AN THE REGISTERED OWNER OF THIS
CERTIFICATE (OR HIS PREDECESSOR IN INTEREST) AND A STOCKHOLDERS
AGREEMENT TO WHICH SOI HOLDINGS, INC. AND THE REGISTERED OWNER OF
THIS CERTIFICATE (OR HIS PREDECESSOR IN INTEREST) ARE PARTIES, WHICH
AGREEMENTS ARE BINDING UPON ANY AND ALL OWNERS OF ANY INTEREST IN
SAID SHARES. SAID PLAN AND AGREEMENTS ARE AVAILABLE FOR INSPECTION
WITHOUT CHARGE AT THE PRINCIPAL OFFICE OF SOI HOLDINGS, INC. AND
COPIES THEREOF WILL BE FURNISHED WITHOUT CHARGE TO ANY OWNER OF SAID
SHARES UPON REQUEST.




THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR
APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR
RESALE, AND MAY NOT BE SOLD, MORTGAGED, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
FOR SUCH SECURITIES UNDER THE SECURITIES ACT OF 1933, AND ANY
APPLICABLE STATE SECURITIES LAWS, UNLESS SOI HOLDINGS, INC. HAS
RECEIVED AN OPINION OF COUNSEL, WHICH OPINION IS SATISFACTORY TO IT,
TO THE EFFECT THAT SUCH REGISTRATIONS ARE NOT REQUIRED.



          5. Securities Laws. As a condition to the exercise of the Option, unless otherwise determined by the Company,
the Participant will be required to represent, warrant and covenant as follows:




               (a) The Participant is acquiring the Option Shares for his own account and not with a view to,
or for sale in connection with, any distribution of the Option Shares in violation of the
Securities Act of 1933, as amended, or any rule or regulation under the Securities Act or in
violation of any applicable state securities law.



               (b) The Participant has had such opportunity as he has deemed adequate to obtain from
representatives of the Company such information as is necessary to permit him to evaluate the
merits and risks of his investment in the Company.



               (c) The Participant has sufficient experience in business, financial and investment matters to
be able to evaluate the risks involved in acquiring the Option Shares and to make an informed
investment decision with respect to such investment.



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               (d) The Participant can afford the complete loss of the value of the Option Shares and is able
to bear the economic risk of holding such Option Shares for an indefinite period.



               (e) The Participant understands that (i) the Option Shares have not been registered under the
Securities Act and constitute “restricted securities” within the meaning of Rule 144 under the
Securities Act; (ii) the Option Shares cannot be sold, transferred or otherwise disposed of unless
they are subsequently registered under the Securities Act or an exemption from registration is then
available; and (iii) there is now no registration statement on file with the Securities and
Exchange Commission with respect to the Option Shares and there is no commitment on the part of the
Company to make any such filing.



               (f) In addition, upon the exercise of any Option, and as a condition thereof, Participant will
make or enter into such other written representations, warranties and agreements as the Committee
may reasonably request in order to comply with applicable securities laws or with this Agreement.



          6. Miscellaneous.




               (a) Notices. All notices, demands and other communications provided for or permitted hereunder shall be
made in writing and shall be by registered or certified first-class mail, return receipt requested,
telecopier, courier service or personal delivery:


if to the Company:



SOI Holdings, Inc.

110 East 59th Street

New York, NY 10022

Facsimile: (212) 371-7597

Attention: Marc A. Utay



with a copy to:



Duane Morris LLP

30 South 17th Street

Philadelphia, PA 19103

Facsimile: (215) 979-1020

Attention: David C. Toner



If to the Participant, to the last known address of the Participant on file with the Company.




               All such notices, demands and other communications shall be deemed to have been duly given
when delivered by hand, if personally delivered; when delivered by courier, if delivered by
commercial courier service; five (5) business days after being deposited in the mail, postage
prepaid, if mailed; and when receipt is mechanically acknowledged, if telecopied.



               (b) Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this



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Agreement, and each other provision of
this Agreement shall be severable, and enforceable to the extent permitted by law.




               (c) No Rights to Employment. Nothing contained in this Agreement shall be construed as giving the Participant any right
to be retained, in any position, as an employee, consultant or director of the Company or its
Affiliates or shall interfere with or restrict in any way the right of the Company of its
Affiliates, which are hereby expressly reserved, to remove, terminate or discharge the Participant
at any time for any reason whatsoever.



               (d) Bound by Plan. By signing this Agreement, the Participant acknowledges that he has received a copy of the
Plan and has had an opportunity to review the Plan and agrees to be bound by all the terms and
provisions of the Plan.



               (e) Beneficiary. The Participant may file with the Committee a written designation of a beneficiary on such
form as may be prescribed by the Committee and may, from time to time, amend or revoke such
designation. If no designated beneficiary survives the Participant, the executor or administrator
of the Participant’s estate shall be deemed to be the Participant’s beneficiary.



               (f) Successors. The terms of this Agreement shall be binding upon and inure to the benefit of the Company
and its successors and assigns, and of the Participant and the beneficiaries, executors,
administrators, heirs and successors of the Participant.



               (g) Entire Agreement. This Agreement and the Plan contain the entire agreement and understanding of the parties
hereto with respect to the subject matter contained herein and supersede all prior communications,
representations and negotiations in respect thereto. No change, modification or waiver of any
provision of this Agreement shall be valid unless the same be in writing and signed by the parties
hereto.



               (h) Governing Law. This Agreement shall be construed and interpreted in accordance with the laws of the State
of New York without regard to principles of conflicts of law thereof, or principals of conflicts of
laws of any other jurisdiction which could cause the application of the laws of any jurisdiction
other than the State of New York.



               (i) Headings. The headings of the Sections hereof are provided for convenience only and are not to serve
as a basis for interpretation or construction, and shall not constitute a part, of this Agreement.



               (j) Signature in Counterparts. This Agreement may be signed in counterparts, each of which shall be an original, with the
same effect as if the signatures thereto and hereto where upon the same instrument.



[Remainder of page intentionally left blank; signature page to follow]




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     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day first
written above.



	 	 	 	 	 
	 	SOI HOLDINGS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signature Page to Nonqualified Common Stock Option Agreement]




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Exhibit A




NOTICE OF OPTION EXERCISE




PURSUANT TO THE SOI HOLDINGS, INC. 2005 OMNIBUS PLAN





     To exercise your option to purchase shares of SOI Holdings, Inc. (the “Company”) Common
Stock (“Shares”), please fill out this form and return it to the Corporate Secretary of the
Company, together with either a certified check in the amount of the exercise price due, which is
the product of the number of Shares with respect to which you are exercising the Option and the per
share exercise price of $[ ], or shares of Common Stock with a fair market value (as confirmed by
the Company) equal to the exercise price due. You are not required to exercise your option with
respect to all Shares thereunder. You also must include, as applicable, either a certified check
in the amount of any required payroll taxes and income tax withholding due in connection with your
exercise or shares of Common Stock with a fair market value (as confirmed by the Company) equal to
the amount of any required payroll taxes and income tax withholding due in connection with your
exercise, unless the Committee administering the SOI Holdings, Inc. 2005 Omnibus Plan specifically
provides for such obligation to be satisfied in a different manner.



     I hereby exercise my right to purchase _________ Shares under the option granted to me pursuant to the
Nonqualified Common Stock Option Agreement between myself and the Company, dated as of August 3,
2005. I am vested in my option as to the Shares being purchased hereunder. I have enclosed either
(a) one or more certified checks covering both the exercise price of $_________ and the required
payroll taxes and income tax withholding of $_________ (if applicable) or (b)  shares of Common Stock
with a fair market value (as confirmed by the Company) equal to both the exercise price of $_________
and the required payroll taxes and income tax withholding of $_________ (if applicable). (Please
contact the office of the Chief Executive Officer of the Company to determine the amount of any
required payroll taxes and income tax withholding). I hereby represent that, to the best of my
knowledge and belief, I am legally entitled to exercise this option. I hereby represent and
warrant that I have signed and agreed to be bound by the Stockholders Agreement by and among the
Company, Trumpet Investors L.P., a Delaware limited partnership, Trumpet SBIC Partners, L.P., a
Delaware Limited partnership, Regions Bank, a bank chartered under the laws of



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the State of Alabama and the stockholders who are party thereto, as described in the Nonqualified
Common Stock Option Agreement.



	 	 	 	 	 
	 

	 	Signature:	 	 
	 

	 	 	  

	 
	 

	 	Printed Name:	 	 
	 

	 	 	 	 
	 
	 

	 	Social Security Number:
	 

	 	 	 	  

	 
	 

	 	Date:	 	 
	 

	 	  







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