Nonqualified Stock Option Agreement
(Officer Participants In the Executive Retirement Plan)
THIS STOCK OPTION AWARD AGREEMENT (the "Agreement") is made and
entered into this <> (the "Grant Date"), between Xxxxxxxx'x
International, Inc., a Delaware corporation (the "Corporation"),
and <> (the "Holder") in connection with the grant of a
Nonqualified Stock Option under the XXXXXXXX'X INTERNATIONAL,
INC. AMENDED AND RESTATED 1995 EQUITY INCENTIVE PLAN (the
"Plan").
WITNESSETH:
WHEREAS, the Holder is either an employee of the Corporation or one of its
Affiliates in a key position or a director of the Corporation or one of its
Affiliates and the Corporation desires to encourage him to own Shares and to
give him added incentive to advance the interests of the Corporation through the
Plan and desires to grant the Holder a Nonqualified Stock Option to purchase
Shares under terms and conditions established by the Board of Directors.
NOW, THEREFORE, in consideration of these premises, the parties agree that the
following, along with the terms and conditions set forth in the Plan, shall
constitute the Agreement between the Corporation and the Holder:
1. Definitions. Capitalized terms used in this Agreement but not
defined herein shall have the meaning set forth in the Plan. In
addition, the following terms shall have the meanings specified
below:
1.1 "Retirement" shall mean the satisfaction of all conditions
necessary for the Holder to become entitled to receive
benefits under the Corporation's Executive Retirement Plan.
1.2 "Securities Act" shall mean the Securities Act of 1933, as
amended.
2. Grant of Nonqualified Stock Option. Subject to the terms and
conditions set forth herein and in the Plan, the Corporation
grants to the Holder a Nonqualified Stock Option to purchase from
the Corporation during the period ending <> years from the
Grant Date <> Shares at a price of
<> per share, subject to adjustment as provided in
the Plan. This Nonqualified Stock Option shall vest and become
exercisable in full on and after <> and, except as
specifically provided otherwise herein or in the Plan, not before
such date.
3. Notice of Exercise. This Nonqualified Stock Option may be
exercised in whole or in part, from time to time, in accordance
with Paragraph 2, by written notice to the Corporation at the
address provided in Paragraph 14, which notice shall:
(a) specify the number of Shares to be purchased and the
Exercise Price to be paid therefor;
(b) if the person exercising this Nonqualified Stock Option is
not the Holder himself, contain or be accompanied by
evidence satisfactory to the Committee of such person's
right to exercise this Nonqualified Stock Option; and
(c) be accompanied by payment in full of the Exercise Price in
a form permitted by the Committee.
4. Investment Letter. The Holder agrees that the Shares acquired on
exercise of this Nonqualified Stock Option shall be acquired for
his own account for investment only and not with a view to, or for
resale in connection with, any distribution or public offering
thereof within the meaning of the Securities Act, or other
applicable securities laws. If the Board of Directors or Committee
so determines, any stock certificates issued upon exercise of this
Nonqualified Stock Option shall bear a legend to the effect that
the shares have been so acquired. The Corporation may, but in no
event shall be required to, bear any expenses of complying with
the Securities Act, other applicable securities laws or the rules
and regulations of any national securities exchange or other
regulatory authority in connection with the registration,
qualification, or transfer, as the case may be, of this
Nonqualified Stock Option or any Shares acquired upon the exercise
thereof. The foregoing restrictions on the transfer of the Shares
shall be inoperative if (a) the Corporation previously shall have
been furnished with an opinion of counsel, satisfactory to it, to
the effect that such transfer will not involve any violation of
the Securities Act or other applicable laws or (b) the Shares
shall have been duly registered in compliance with the Securities
Act and other applicable securities laws. If this Nonqualified
Stock Option is registered under the Securities Act, the Holder
agrees that he will not make a public offering of the said shares
except on a national securities exchange on which the Shares of
the Corporation is then listed.
5. Transfer and Exercise of Nonqualified Stock Option. The Committee
may, in its discretion, authorize all or a portion of this
Nonqualified Stock Option to be transferred by the Holder, without
value, to or for the benefit of (i) the Holder's Immediate Family
Members (as defined below), (ii) a trust or trusts for the
exclusive benefit of such Immediate Family Members, or (iii) a
partnership, limited liability company, or other business entity
in which the Holder's Immediate Family Members are the only
holders of ownership interests in such business entity; provided
that (x) such transfers are subject to any limits or restrictions
as the Committee may establish from time to time, (y) subsequent
transfers of this Nonqualified Stock Option, or any portion
thereof, shall be prohibited except transfers by will or in
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accordance with the laws of descent and distribution, and (z)
following transfer, this Nonqualified Stock Option shall continue
to be subject to the same terms and conditions as were applicable
immediately prior to transfer, provided that for the purposes of
this Agreement, the term "Holder" shall be deemed to refer to the
transferee. The foregoing right to transfer this Nonqualified
Stock Option shall apply to the right to consent to amendments to
this Agreement and, in the discretion of the Committee, shall also
apply to the right to transfer ancillary rights associated with
the Nonqualified Stock Option. The term "Immediate Family Members"
shall mean the Holder's spouse, parents, children, stepchildren,
sisters, brothers, and grandchildren, including those
relationships resulting from adoption, and shall also include the
Holder. The event of a Termination of Service shall continue to be
applied with respect to the original Holder, following which the
Nonqualified Stock Option shall be exercisable by the transferee
only to the extent, and for the periods, specified herein. Neither
the Committee nor the Company shall have any obligation to provide
notice to a transferee of termination of this Nonqualified Stock
Option under the terms of this Agreement.
6. Issue of Shares. The Corporation shall not be required to issue or
transfer any certificates for Shares purchased upon exercise of
this Nonqualified Stock Option until all applicable requirements
of law have been complied with and such shares shall have been
duly listed on any securities exchange on which the Shares may
then be listed.
7. No Effect on Capital Structure. This Nonqualified Stock Option
shall not affect the right of the Corporation or any Affiliate
thereof to reclassify, recapitalize or otherwise change its
capital or debt structure or to merge, consolidate, convey any or
all of its assets, dissolve, liquidate, windup, or otherwise
reorganize.
8. Expiration of Nonqualified Stock Option. This Nonqualified Stock
Option expires <> years from the date hereof. In the event
of a Termination of Service of the Holder prior to the expiration
of this Nonqualified Stock Option, the following rules shall
apply:
(a) Termination of Employment - Other than Disability, Death or
Retirement. If there is a Termination of Service of the
Holder for a reason other than the Holder's death,
Disability or Retirement, the portion, if any, of this
Nonqualified Stock Option that remains unexercised, shall
terminate and cease to be exercisable ninety (90) days
after the date of such Termination of Service and that
portion, if any, that pursuant to this Agreement is not yet
exercisable on such date, shall terminate and cease to be
exercisable as of such date.
(b) Termination of Employment - Disability. If there is a
Termination of Service of the Holder by reason of
Disability, this Nonqualified Stock Option shall
immediately vest in full, and the Holder shall have the
right for three (3) years after the date of Termination of
Service to exercise this Nonqualified Stock Option, and
thereafter, this Nonqualified Stock Option shall terminate
and cease to be exercisable.
(c) Termination of Employment - Death. If there is a
Termination of Service of the Holder by reason of death,
this Nonqualified Stock Option shall immediately vest in
full, and shall be exercisable by the Holder's legal
representatives, legatees, or distributes for three (3)
years following the date of the Termination of Service, and
thereafter this Nonqualified Stock Option shall terminate
and cease to be exercisable.
(d) Termination of Employment - Retirement. If there is a
Termination of Service of the Holder by reason of
Retirement, the vesting and exercisability of this
Nonqualified Stock Option shall be determined under the
Xxxxxxxx'x International, Inc. Executive Retirement Plan.
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9. Change in Control. The effect of a Change in Control shall be as
set forth in either the Change in Control and Noncompete Agreement
entered into between the Holder and the Corporation, or, in the
event Holder has not entered into a Change in Control and
Noncompete Agreement, the Holder's employment agreement with the
Corporation. In the event the Holder has not entered into either a
Change in Control and Noncompete Agreement or an employment
agreement with the Corporation (or Holder has entered into an
agreement but such agreement does not address the effect of a
Change in Control on this Agreement), the effect of a Change in
Control shall be as set forth in the Plan.
10. Right of Set-off. By accepting this agreement, Holder consents to
a deduction from any amounts the Corporation owes Holder from time
to time (including amounts owed to Holder as wages or other
compensation, fringe benefits, or vacation pay), to the extent of
the amounts owed by Holder to the Corporation hereunder. Whether
or not the Corporation elects to make any set-off in whole or in
part, if the Corporation does not recover by means of set-off the
full amount owed it by Holder, calculated as set forth above,
Holder agrees to pay immediately in cash the unpaid balance to the
Corporation.
11. Committee Discretion. Holder may be released from its obligations
under paragraph 10 above only if the Committee determines in its
sole discretion that such action is in the best interests of the
Corporation.
12. Committee Authority. Any questions concerning the interpretation
of this Agreement or the Plan, and any controversy which arises
under this Agreement or the Plan shall be settled by the Committee
in its sole discretion.
13. Plan Controls. The terms of this Agreement are governed by the
terms of the Plan and in the case of any inconsistency between the
terms of this Agreement and the terms of the Plan, the terms of
the Plan shall control.
14. Notice. Whenever any notice is required or permitted hereunder,
such notice must be in writing and personally delivered or sent by
mail. Any notice required or permitted to be delivered hereunder
shall be deemed to be delivered on the date which it was
personally delivered, or, whether actually received or not, on the
third business day after it is deposited in the United States
mail, certified or registered, postage prepaid, addressed to the
person who is to receive it at the address which such person has
theretofore specified by written notice delivered in accordance
herewith. The Corporation or Holder may change, at any time and
from time to time, by written notice to the other, the address
previously specified for receiving notices. Until changed in
accordance herewith, the Corporation and the Holder specify their
respective addresses as set forth below:
Corporation: XXXXXXXX'X INTERNATIONAL, INC.
0000 X. 000XX XXXXXX
XXXXXXXX XXXX, XX 00000
Holder: <>
0000 X. 000XX XXXXXX
XXXXXXXX XXXX, XX 00000
15. Information Confidential. As partial consideration for the
granting of this Nonqualified Stock Option, the Holder agrees that
he will keep confidential all information and knowledge that he
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has relating to the manner and amount of his participation in the
Plan, provided, however, that such information may be disclosed as
required by law and may be given in confidence to the Holder's
spouse, tax and financial advisors, or to a financial institution
of the extent that such information is necessary to secure a loan.
16. Governing Law. Where applicable, the provisions of this Agreement
shall be governed by the contract law of the State of Kansas.
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IN WITNESS WHEREOF, the Corporation has caused this Agreement to be executed and
the Holder has hereunto set his hand on the day and year first above written.
XXXXXXXX'X INTERNATIONAL, INC.
Name:
--------------------------------------
Name: Xxxxx X. Xxxx
Title: Chairman & Chief Executive Officer
Holder
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Name: <>
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