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EXHIBIT 10(m)
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[Non-Employee Director]
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THE XXXXX-XXXXXXX STORES CORP.
EQUITY AND PERFORMANCE INCENTIVE PLAN
Nonqualified Stock Option Agreement
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WHEREAS, (the "Optionee") is a Non-Employee Director of The Xxxxx-
Xxxxxxx Stores Corp. (the "Corporation");
WHEREAS, the grant of a stock option to the Optionee has been duly
authorized by a resolution of the Board of Directors (the "Board") of the
Corporation duly adopted on _______________ (the "Date of Grant"); and
WHEREAS, the option granted hereunder is intended to be a
nonqualified stock option and will not be treated as an "incentive stock option"
within the meaning of that term under Section 422 of the Internal Revenue Code
of 1986 (the "Code").
NOW, THEREFORE, pursuant to the Corporation's Equity and
Performance Incentive Plan (the "Plan"), the Corporation hereby grants to the
Optionee an option (the "Option") pursuant to this Nonqualified Stock Option
Agreement (the "Agreement") to purchase shares of the Corporation's common
stock, par value $0.01 per share ("Stock"), at the price of Dollars ($ )
per share (the "Option Price"), and agrees to cause certificates for any shares
of Stock purchased hereunder to be delivered to the Optionee upon full payment
of the Option Price, subject to the applicable terms and conditions of the Plan
and this Agreement.
1. EXERCISE OF OPTION. (a) Unless and until terminated as hereinafter
provided, the Option will become exercisable to the extent of one-third of the
Stock hereinabove specified on each of the first 3 anniversaries of the Date of
Grant for so long as the Optionee remains a Non-Employee Director of the
Corporation.
(b) Notwithstanding the provisions of Subsection (a) of this
Section, the Option will become immediately exercisable in full upon the
occurrence of the Optionee's death or disability or a Change of Ownership.
2. PAYMENT OF OPTION PRICE. The Option Price is payable (a) in cash or by
certified or cashier's check or other cash equivalent acceptable to the
Corporation payable to the order of the Corporation, (b) by Stock (including by
attestation) owned by the Optionee for (i) more than one year prior to the date
of exercise and for more than 2 years from the date on which the option was
granted, if such Stock was originally acquired by the Optionee pursuant to the
exercise of an incentive stock option, or (ii) more than 6 months prior to the
date of exercise, if such Stock was
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originally acquired by the Optionee other than pursuant to the exercise of an
incentive stock option, or (c) by a combination of Stock and cash or certified
or cashier's check. The requirement of payment in cash will be deemed satisfied
if the Optionee has made arrangements satisfactory to the Corporation with a
bank or broker that is a member of the National Association of Securities
Dealers, Inc. to sell on the date of exercise a sufficient number of shares of
Stock being purchased so that the net proceeds of the sale transaction will at
least equal the aggregate Option Price and pursuant to which the bank or broker
undertakes to deliver the aggregate Option Price to the Corporation not later
than the date on which the sale transaction will settle in the ordinary course
of business.
3. TERM OF OPTION. The Option will terminate on the earliest of the
following dates:
(a) Three months after the Optionee ceases to be a Non-Employee
Director of the Corporation for any reason other than death or disability;
(b) One year after the death or disability of the Optionee, if the
Optionee dies or becomes disabled while a Non-Employee Director of the
Corporation;
(c) Ten years from the Date of Grant.
4. TRANSFERABILITY. The Option may not be transferred except by will or
the laws of descent and distribution and may not be exercised during the
lifetime of the Optionee except by the Optionee or the Optionee's guardian or
legal representative acting on behalf of the Optionee in a fiduciary capacity
under state law and court supervision.
5. COMPLIANCE WITH LAW. The Corporation will make reasonable efforts to
comply with all applicable federal and state securities laws; provided, however,
notwithstanding any other provision of this Agreement, the Corporation will not
be obligated to issue any Stock pursuant to this Agreement if the issuance
thereof would result in a violation of any such law.
6. ADJUSTMENTS. The Committee may make any adjustments in the Option
Price and in the numbers of shares of Stock covered by this Agreement as the
Committee, in its sole discretion, exercised in good faith, may determine is
equitably required to prevent dilution or enlargement of the Optionee's rights
under this Agreement that otherwise would result from (a) any stock dividend,
stock split, combination of shares, recapitalization or other change in the
capital structure of the Corporation, or (b) any merger, consolidation,
spin-off, split-off, spin-out, split-up, reorganization, partial or complete
liquidation or other distribution of assets, issuance of rights or warrants to
purchase securities, or (c) any other corporate transaction or event having an
effect similar to any of the foregoing. Moreover, in the event of any such
transaction or event, the Committee, in its discretion, may provide in
substitution for any or all of the Optionee's rights under this Agreement such
alternative consideration as it, in good faith, may determine to be equitable in
the circumstances and may require in connection therewith the surrender of all
grants so replaced.
7. WITHHOLDING. To the extent that the Corporation is required to
withhold federal, state, local or foreign taxes in connection with Stock
obtained upon the exercise of the Option, and the
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amounts available to the Corporation for such withholding are insufficient, it
will be a condition to the receipt of such Stock that the Optionee make
arrangements satisfactory to the Corporation for payment of the balance of such
taxes required to be withheld. If necessary, the Committee may require
relinquishment of a portion of such Stock.
8. NOTICES. Any notice necessary under this Agreement must be addressed
to the Corporation or the Committee at the principal executive office of the
Corporation and to the Optionee at the address appearing in the personnel
records of the Corporation or a Subsidiary for such Optionee, or to either party
at such other address as either party may designate in writing to the other. Any
such notice will be deemed effective upon receipt thereof by the addressee.
9. AGREEMENT SUBJECT TO THE PLAN. The Option Rights granted under this
Agreement and all of the terms and conditions hereof are subject to all of the
terms and conditions of the Plan. In the event of any inconsistency between this
Agreement and the Plan, the terms of the Plan will govern.
10. AMENDMENTS. Any amendment to the Plan will be deemed to be an
amendment to this Agreement to the extent that the amendment is applicable
hereto; provided, however, that no amendment will adversely affect the rights of
the Optionee under this Agreement without the Optionee's consent.
11. SEVERABILITY. In the event that one or more of the provisions of this
Agreement is invalidated for any reason by a court of competent jurisdiction,
any provision so invalidated will be deemed to be separable from the other
provisions hereof, and the remaining provisions hereof will continue to be valid
and fully enforceable.
12. DEFINITIONS. All terms used herein with initial capital letters have
the meanings assigned to them in the Plan or in this Agreement.
13. GOVERNING LAW. This Agreement will be construed and governed in
accordance with the laws of the State of Ohio.
This Agreement is executed on _____________________, 1997.
THE XXXXX-XXXXXXX STORES CORP.
By:
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The undersigned Optionee hereby acknowledges receipt of an
executed original of this Nonqualified Stock Option Agreement and accepts the
Option subject to the applicable terms and conditions of the Plan and the terms
and conditions hereinabove set forth.
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Optionee
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