EXHIBIT 10.11
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "AGREEMENT") is made this 8th day of
July, 2002 between Bestway, Inc., a Delaware corporation (the "COMPANY"), and
Xxxxx X. Xxxxxxx, a resident of the State of Texas (the "EMPLOYEE").
WHEREAS, the parties hereto wish to enter into an employment agreement
to set forth certain terms and conditions of employment between the Employee and
the Company.
NOW, THEREFORE, in consideration of the mutual covenants and
representations contained herein, the parties hereto agree as follows:
1. TERM
The Company will employ the Employee as President and Chief Executive Officer of
the Company commencing on the 8th day of July, 2002 (the "EFFECTIVE DATE") for a
period ending on the 31st day of December, 2007 (such term being the "INITIAL
TERM" and such date on which the Initial Term ends being the "INITIAL TERM
EXPIRATION DATE"), subject to earlier termination in accordance with the
provisions of Sections 5 and 6 hereof. The period of time between the Effective
Date and the termination of the Employee's employment hereunder shall be
referred to herein as the "EMPLOYMENT PERIOD."
2. REPRESENTATIONS AND WARRANTY
The Employee represents and warrants that the Employee is entering into this
Agreement voluntarily and that the Employee's employment hereunder and
compliance with the terms and conditions of this Agreement will not conflict
with or result in the breach of any agreement to which the Employee is a party
or by which the Employee may be bound, or any legal duty owed by the Employee to
another Person (as defined herein). The Employee further agrees that during the
Employment Period he shall not disclose to the Board of Directors of the Company
(the "BOARD") or to any employee of the Company any Confidential Information (as
defined herein) of any organization that employed the Employee prior to the
Employment Period.
3. DUTIES AND EXTENT OF SERVICES
The Employee shall exercise such authority, perform such duties and functions
and discharge such responsibilities as President and Chief Executive Officer of
the Company commensurate with the authority vested in the Employee by the Board.
The Bylaws of the Company shall be amended to the extent same are inconsistent
with this Agreement. During the Employment Period, the Employee shall devote
full business time, skill and efforts to the business of the Company.
Notwithstanding the foregoing, the Employee may (i) make and manage personal
business investments and serve in any capacity with any civic, educational or
charitable organization, or any trade association, without seeking or obtaining
the approval of the Board, provided such activities and service do not
materially interfere or conflict with the performance of the Employee's duties
hereunder, and (ii) with the approval of the
Board, serve on the board of directors of other entities. In connection with
this Agreement, the Company shall increase the number of directors on the Board
by one prior to next annual meeting of the Company's stockholders. The Company
further agrees, with respect to such annual meeting (or with respect to a
consent in lieu of such meeting), (a) to propose the Employee as a nominee for
election to the Board at such meeting, (b) to include the name of the Employee
on the Company's proxy card for such meeting, (c) to recommend the election of
the Employee as a director to its stockholders, (d) to solicit proxies on behalf
of the Employee to the same extent proxies are solicited on behalf of any other
nominee for election to the Board and (v) to cause the attorneys-in-fact named
in the applicable proxy cards to vote the shares with respect to which proxies
are given for the election of the Employee to the Board unless such proxy card
gives contrary instructions. Furthermore, the Company agrees to cause its
controlling stockholder as of the date of this Agreement to execute a letter for
the benefit of the Employee pursuant to which such stockholder shall agree to
vote all of its shares for the election of the Employee to the Board of
Directors during the Employment Period; provided, however, that if such
controlling stockholder ceases to be a controlling stockholder at any time
during the Employment Period, the Company shall use commercially reasonable
efforts to cause its stockholder's to vote in favor of the Employee in
connection with any election of directors.
4. COMPENSATION AND BENEFITS
(a) Salary. During the Employment Period, the Company shall pay to the
Employee, as compensation for the performance of the Employee's duties and
obligations under this Agreement, a base salary of $300,000 per year (the "BASE
SALARY"). Such Base Salary will be payable in arrears not less frequently than
monthly in accordance with the normal payroll practices of the Company.
(b) Incentive Loan. In connection with the execution and delivery of
this Agreement by the Employee, the Company shall loan the sum of $1,000,000 to
the Employee pursuant to that certain promissory note (the "NOTE"), a copy of
which is attached hereto as Exhibit A.
(c) Calendar Bonus. Commencing on January 1, 2003 and ending on
December 31, 2007, the Employee shall be eligible to receive a bonus (a
"CALENDAR BONUS") for each full calendar year of the Company during the
Employment Period (a "FULL CALENDAR YEAR"). Each Calendar Bonus will be paid to
the Employee on or before the seventh (7th) business day following the receipt
of the audited financial statements for such year by the Company, but in no
event later than April 7th. The Calendar Bonus for each Full Calendar Year will
be equal to the product of ten percent (10%) multiplied by the Profits (as
defined below) of the Company for the relevant Full Calendar Year. For purposes
of this Agreement, the "PROFITS" of the Company shall be the earnings of the
Company before deductions for taxes for the relevant year as determined in
accordance with audited financial statements prepared in accordance with
generally acceptable accounting principles.
(d) Benefits. During the Employment Period, the Employee shall be
eligible to receive pension, holiday and sick pay benefits, excluding payment
for unused sick days, and other benefits, which the Company extends, as a matter
of policy, to employees of like position. Notwithstanding anything else in this
Section 4(d), this Section 4(d) shall not create any obligation on the part of
the Company to provide vacation benefits or insurance benefits to the Employee.
Vacation benefits shall be provided for only to the extent provided for by
Section 4(e) hereof and insurance benefits shall be provided only to the extent
provided for by Section 4(g) hereof.
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(e) Vacation. The Employee shall be entitled to vacation time in
accordance with the Company's policies to senior management.
(f) Travel Expenses. During the Employment Period, the Company shall
promptly reimburse the Employee for all documented reasonable travel expenses
incurred by the Employee in the performance of the Employee's duties under this
Agreement, in accordance with the Company's written policies. The Employee will
be provided with use of a company car during the Employment Period, including
reimbursement for any expenses reasonably incurred by the Employee to repair
such company car, subject to reasonable terms and conditions as may be required
by, or a result of, insurance considerations.
(g) Insurance Benefits. Upon the Effective Date, the Employee and his
dependents will be immediately eligible for participation in any group medical
and dental insurance benefits plans of the Company, subject to the terms of such
plans and applicable law. In addition, the Employee shall be entitled to
long-term disability and life insurance coverage pursuant to the terms of the
Company's current plan, subject to the terms of such plans and applicable law.
(h) Stock Options. In further consideration of this Agreement, on the
date hereof, the Company will grant to the Employee, at Fair Market Value (as
defined in the Plan (as defined below)), unvested incentive stock options to
purchase 100,000 shares of the Company's common stock, par value $0.01 per share
("COMMON STOCK"), to be subject to, and to vest in accordance with, the terms of
(i) a separate Incentive Stock Option Agreement to be entered into by and
between the Company and the Employee, substantially in the form attached hereto
as Exhibit B, and (ii) the Incentive Stock Option Plan of the Company, as
amended from time to time in accordance with its terms, attached hereto as
Exhibit C (the "PLAN"). On January 1, 2003, the Company further agrees to grant
to the Employee, at Fair Market Value, unvested incentive stock options to
purchase 70,005 shares of Common Stock (the "SECONDARY OPTIONS"), to be subject
to, and vest in accordance with, the Plan and a separate Incentive Stock Option
Agreement, substantially in the form attached hereto as Exhibit D, to be entered
into on such date. The Company shall reserve a sufficient number of options
under the Plan to consummate the grant of such Secondary Options on such date.
5. TERMINATION OF EMPLOYMENT
This Agreement and the Employee's employment with the Company may be terminated
in any of the following ways:
(a) Termination Upon Death or Disability. The Employment Period shall
be terminated by the death of the Employee. In the event of a Disability (as
hereinafter defined) of the Employee during the Employment Period, the Company
shall have the right to terminate the Employment Period upon giving thirty (30)
days' advance written notice to that effect to the Employee. For purposes of
this Agreement, the term "DISABILITY" means any disability as defined under the
Company's applicable disability insurance policy or, if no such policy is
available, any physical or mental disability or incapacity that renders the
Employee incapable of performing the essential functions required of the
Employee in accordance with the obligations under Section 3 hereof for a period
of three (3) consecutive months or for shorter periods aggregating to four (4)
months during any twelve (12) months of the Employment Period.
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(b) Termination for Cause. The Company may terminate the Employee's
employment hereunder for Cause. For purposes of this Agreement, the Company
shall have "CAUSE" to terminate the Employee's employment hereunder if the Board
shall have determined that the Employee has committed any of the following:
(i) any act or omission which shall represent a breach of any
of the material terms of this Agreement, and such breach is not cured
within ten (10) days after prior written notice from the Company to the
Employee providing in reasonable detail the nature of such breach;
(ii) gross negligence or wanton and reckless acts or omissions
in the performance of the Employee's duties, in any such case which are
to the material detriment of the Company;
(iii) bad faith in the performance of the Employee's duties,
consisting of willful acts or omissions, to the material detriment of
the Company; or
(iv) any conviction or pleading of guilty to a crime that
constitutes a felony or a crime of moral turpitude under the laws of
the United States or any political subdivision thereof.
(c) Termination for Good Reason. The Employee, upon thirty (30) days'
prior written notice given to the Company, shall have the right at any time to
terminate the Employee's employment with the Company for any Good Reason (as
defined below). For purposes of this Agreement and subject to the Company's
opportunity to cure as provided in Section 5(d) hereof, the Employee shall have
"GOOD REASON" to terminate employment hereunder if such termination shall be the
result of:
(i) a failure of the Company to pay the Base Salary or
Calendar Bonus;
(ii) a material breach by the Company of any material terms of
this Agreement;
(iii) the relocation of the principal offices of the Company
to a new location more than sixty (60) miles away from its current
location; or
(iv) a material diminution in the duties and responsibilities
of the Employee or a change in the direct report of the Employee to the
Board.
(d) Notice and Opportunity to Cure. Notwithstanding the foregoing, it
shall be a condition precedent to the Employee's right to terminate employment
for Good Reason that (i) the Employee shall first have given the Company written
notice stating with specificity the reason for the termination ("BREACH"), and
(ii) a period of thirty (30) days from and after the giving of such notice shall
have elapsed without the breaching party having effectively cured or remedied
such breach during such thirty (30) day period.
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6. CONSEQUENCES OF TERMINATION
(a) Termination without Cause or for Good Reason. In the event of
termination of the Employee's employment hereunder by the Company without Cause
(other than upon death or Disability) or by the Employee for Good Reason, each
of the following shall occur:
(i) the Company shall forgive the outstanding amounts due
under the Note as they become due, as more fully described in the Note.
(ii) during the period, if any (but in no event for more than
ten (10) months after the date of the Employee's termination of
employment), that the Employee elects to continue coverage for himself
and any of his eligible dependents under any applicable group health
plans of the Company pursuant to the continuation of coverage
provisions contained in Sections 601 through 608 of the Employee
Retirement Income Security Act of 1974, as amended, the Employee's
premiums for such coverage shall be no greater than that charged by the
Company generally to its active executive employees for coverage under
such plans.
(iii) the unvested stock options shall become fully vested.
(b) Termination with Cause or not for Good Reason. In the event of
termination of the Employee's employment hereunder by the Company with Cause or
by the Employee not for Good Reason, the Employee shall pay to the Company
certain outstanding amounts under the Note, as more fully described in the Note.
(c) Other Terminations. In the event of termination of the Employee's
employment hereunder for any reason other than those specified in Section 6(a)
and (b) hereof, including in the event of a termination of this Agreement by the
Company for death or Disability, the Employee shall not be entitled to any
separation pay, termination payments or continued benefits coverage hereunder,
except as may otherwise be provided under any applicable benefit plans or award
agreements relating to the Employee, and the Company shall forgive the
outstanding amounts due under the Note as they become due, as more fully
described in the Note.
(d) Accrued Rights. Notwithstanding the foregoing provisions of this
Section 6, in the event of termination of the Employee's employment hereunder
for any reason, the Employee shall be entitled to payment of any unpaid portion
of the Base Salary through the effective date of termination.
(e) Condition to Termination Benefits. As a condition to receiving the
items set forth in this Section 6, at the time of termination, the Employee
shall be required to execute a release in favor of the Company waiving any and
all claims, whether know or unknown, that the Employee may have against the
Company.
7. CONFIDENTIALITY
(a) The Company will give the Employee access to the Confidential
Information (as defined herein) of the Company. "CONFIDENTIAL INFORMATION"
includes, without limitation, information and knowledge pertaining to products,
inventions, discoveries, improvements, innovations, designs, ideas, trade
secrets, proprietary information, manufacturing, packaging, advertising,
marketing, distribution and sales methods, business strategies, market
assessments, sales and profit figures, customer and client lists and
relationships between the Company and dealers, distributors, sales
representatives,
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wholesalers, customers, clients, suppliers and others who have business dealings
with them, and expressly excludes the substantial amount of information and
knowledge pertaining to any of the above-mentioned topics that was known or
possessed by the Employee prior to the Employment Period. The Employee
acknowledges that such Confidential Information is a valuable and unique asset
of the Company and covenants that, both during and after the Employment Period,
the Employee will not disclose any Confidential Information to any person,
company, corporation, partnership, limited liability company, business, group,
venturer or other entity (each, a "PERSON") (except as the Employee's duties as
an employee of the Company may require) or use any Confidential Information
outside of the performance of his duties under this Agreement without the prior
written authorization of the Board. The obligation of confidentiality imposed by
this Section 7 shall not apply to Confidential Information that otherwise
becomes generally known to the public through no act of the Employee in breach
of this Agreement or any other party in violation of an existing confidentiality
agreement with the Company or which is required to be disclosed by order or
requirement of a court, administrative agency, or other governmental body;
provided, however, that the Employee shall provide prompt notice of such court
order or requirement to the Company to enable the Company to seek a protective
order or otherwise prevent or restrict such disclosure.
(b) All records, designs, business plans, financial statements,
customer lists, manuals, memoranda, lists, research and development plans,
Intellectual Property (as defined herein) and other property delivered to or
compiled by the Employee by or on behalf of the Company or its vendors or
customers during the Employment Period that pertain to the business of the
Company shall be and remain the property of the Company and be subject at all
times to their discretion and control. Likewise, all correspondence, reports,
records, charts, advertising materials and other similar data pertaining to the
business, activities, research and development, Intellectual Property or future
plans of the Company that is collected by the Employee during the Employment
Period, other than Employee's personal calendars, notes and diaries or journals,
shall be delivered promptly to the Company upon written request by it upon
termination of the Employee's employment. For purposes of this Section 7(b),
"INTELLECTUAL PROPERTY" shall mean patents, copyrights, trademarks, trade dress,
trade secrets, other such rights, and any applications thereof.
8. UNFAIR COMPETITION
(a) Business Relationships and Goodwill. The Employee acknowledges and
agrees that as an employee and representative of the Company, the Employee will
be responsible for building and maintaining business relationships and goodwill
with current and future customers, clients, and prospects on a personal level.
The Employee acknowledges and agrees that this responsibility creates a special
relationship of trust and confidence between the Company, the Employee, and
these persons or entities. The Employee also acknowledges that this creates a
high risk and opportunity for the Employee to misappropriate these relationships
and the goodwill existing between the Company and such persons. The Employee
acknowledges and agrees that it is fair and reasonable for the Company to take
steps to protect itself from the risk of such misappropriation.
(b) Consideration. The Employee acknowledges and agrees that in
exchange for his agreement in Section 8(c) below, he will receive substantial,
valuable consideration from the Company including, but not limited to, (a)
access to Confidential Information, (b) compensation and other benefits, and (c)
access to the Company's customers, clients, and prospects.
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(c) Scope of Non-Competition Obligation. The Employee acknowledges and
agrees that for a period of twenty-four (24) months following termination of the
Employment Period by the Employee without Good Reason, the Employee will not
provide the same or similar services the Employee provides to the Company in the
Same or Similar Business (as defined below), including working for any Person as
an agent, consultant, employee, partner, or independent contractor that has the
Same or Similar Business located in the Company's Market Area (defined below).
The Company hereby confirms, acknowledges and agrees that this Section 8(c)
shall not apply if the Employment Period terminates on the Initial Term
Expiration Date as contemplated herein.
(d) Definitions. For purposes of this Section 8, the following
definitions apply:
(1) The term "SAME OR SIMILAR BUSINESS" shall be defined
as any company that engages in a rental-purchase
business pertaining to consumer goods.
(2) The term "MARKET AREA" shall be defined as the areas
located within a 150-mile radius of any of the stores
currently operated by the Company on the Effective
Date and any stores opened by the Company prior to
the termination of the Employee's employment with the
Company.
(e) Nonsolicitation of Customers. The Employee further agrees that he
shall not at any time during the Employment Period divert away or attempt to
divert away any business from the Company to another Person. Additionally, he
shall not, for a period of twenty-four (24) months following the termination by
the Employee of the Employee's employment with the Company without Good Reason,
contact, solicit, attempt to solicit, divert away, or attempt to divert away
business, either directly or indirectly, from any Company Customer (as defined
herein). "COMPANY CUSTOMER" is defined as any Person that is or was a customer
of the Company during the Employee's employment and that the Employee contacted,
solicited, serviced, or sold products or services to as an employee of the
Company.
(f) Nonsolicitation of Employees. The Employee agrees that during the
Employment Period and for a period of twenty-four (24) months after termination
of the Employment Period, the Employee shall not, on his own behalf or on behalf
of any other person or entity, hire, solicit, seek to hire, or offer employment
to any person who was employed by the Company on the date of the Employee's
termination, or who is a current employee of the Company. The Employee further
agrees that he will not in any other manner attempt, directly or indirectly, to
influence, induce, or encourage any person who was employed by the Company on
the date of the Employee's termination or who is a current employee of the
Company to leave the employment of the Company during the twenty-four (24) month
period following the Employment Period.
(g) Reasonableness. It is agreed by the parties that the foregoing
covenants in this Section 8 (i) impose a reasonable restraint on the Employee in
light of the activities and business of the Company on the date of the execution
of this Agreement and the current plans of the Company, and (ii) are necessary
to protect the Confidential Information and Intellectual Property of the
Company. The Employee acknowledges that the covenants in this Section 8 shall
not prevent the Employee from earning a livelihood upon the termination of
employment hereunder, but merely prevent unfair competition with the Company for
a limited period of time. Notwithstanding the foregoing, it is the intent of the
Company and the Employee that such covenants be construed and enforced in
accordance
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with the changing activities, business and locations of the Company and its
subsidiaries throughout the term of this covenant.
(h) Severability. The covenants in this Section 8 are severable and
separate, and the unenforceability of any specific covenant shall not affect the
provisions of any other covenant. In the event any court of competent
jurisdiction shall determine that the scope, time or territorial restrictions
set forth herein are unreasonable, then it is the intention of the parties that
such restrictions be enforced to the fullest extent that such court deems
reasonable, and this Agreement shall thereby be reformed.
(i) Enforcement by the Company not Limited. All of the covenants in
this Section 8 shall be construed as an agreement independent of any other
provision in this Agreement, and the existence of any claim or cause of action
of the Employee against the Company, whether predicated in this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Company of
such covenants.
(j) Ownership Interests. Notwithstanding anything else in this Section
8, nothing in this Section 8 shall be construed to preclude the Employee from
making any investments in the securities of any business enterprise whether or
not engaged in competition with the Company or its subsidiaries, to the extent
that such securities are actively traded on a national securities exchange or in
the over-the-counter market in the United States or on any foreign securities
exchange; provided, however, that any such investment does not exceed five
percent (5%) of the outstanding voting securities of such enterprise; provided,
further, that such permitted activity shall not relieve the Employee from any
other provisions of this Agreement.
10. BREACH OF RESTRICTIVE COVENANTS
The Employee understands and agrees that, in the event the Employee breaches
Sections 7 or 8 of this Agreement, the Company will suffer immediate and
irreparable harm which cannot be accurately calculated in monetary damages.
Consequently, the Employee acknowledges and agrees that the Company shall be
entitled to immediate injunctive relief, either by temporary or permanent
injunction, to prevent such violation. The Employee acknowledges and agrees that
this injunctive relief shall be in addition to any other legal or equitable
relief to which the Company would be entitled. If a bond is required to be
posted in order for the Company to secure an injunction or other equitable
remedy, threatened or actual, the Employee agrees that the bond need not be more
than a nominal sum. The Company shall be entitled to recover its attorneys' fees
and costs from the Employee should the Employee breach Sections 7 or 8 of this
Agreement.
11. NOTICES
For the purposes of this Agreement, notices, demands and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or (unless otherwise specified)
mailed by United States certified or registered mail, return receipt requested,
postage prepaid, addressed as follows:
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(a) If to the Company, to:
Bestway, Inc.
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Legal Department
with a mandatory copy to:
Xxxxx X. Xxxx, Esq.
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
(b) If to the Employee, to:
Xxxxx X. Xxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
with a mandatory copy to:
Xxxxx X. Xxxxxx, Esq.
Xxxx Xxxxxxxx & Xxxxxx LLP
1400 One XxXxxxxx Plaza
0000 XxXxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
or to such other respective addresses as the parties hereto shall designate to
the other by like notice, provided that notice of a change of address shall be
effective only upon receipt thereof.
12. NON-ASSIGNMENT; SUCCESSORS
Neither party hereto may assign any rights or delegate any duties under this
Agreement without the prior written consent of the other party; provided,
however, that this Agreement shall inure to the benefit of and be binding upon
the successors and assigns of the Company, including, but not limited to, any
successors and assigns of the Company as a result of a change in control of the
Company, upon any sale of all or substantially all of the Company's assets, or
upon any merger, consolidation or reorganization of the Company with or into any
other corporation, all as though such successors and assigns of the Company and
their respective successors and assigns were the Company.
13. WITHHOLDING OF TAXES
All payments required to be made by the Company to the Employee under this
Agreement shall be subject to the withholding of such amounts, if any, relating
to tax, and other payroll deductions as the Company may reasonably determine it
should withhold pursuant to any applicable law or regulation.
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14. WAIVER OF BREACH
Any waiver of any breach of this Agreement shall not be construed to be a
continuing waiver or consent to any subsequent breach on the part either of the
Employee or of the Company.
15. SEVERABILITY
To the extent any provision of this Agreement or portion thereof shall be
invalid or unenforceable, including, without limitation, Sections 7 and 8
hereof, the specific provision found invalid or unenforceable shall be
considered deleted therefrom and the remainder of such provision and of this
Agreement shall be unaffected and shall continue in full force and effect.
16. GOVERNING LAW
This Agreement shall be construed, interpreted and enforced in accordance with
the laws of the State of Texas, without giving effect to the choice of law
provisions thereof.
17. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which shall
be deemed to be an original but all of which together will constitute one and
the same instrument.
18. SEPARATION
The covenants in Section 8 hereof shall survive the termination or expiration of
this Agreement for the periods provided therein
19. ATTORNEY'S FEES
If any action at law or in equity, including any action for declaratory or
injunctive relief, is brought to enforce or interpret the provisions of this
Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees from the nonprevailing party, which fees may be set by the court
in the trial of such action, or may be enforced in a separate action brought for
that purpose, and which fees shall be in addition to any other relief which may
be awarded.
20. HEADINGS
The headings of sections contained in this Agreement are for convenience only
and shall not be deemed to control or affect the meaning or construction of any
provision of this Agreement.
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21. COMPLETE AGREEMENT
This Agreement constitutes the entire agreement by the Company and the Employee
with respect to the subject matter hereof and supersedes any and all prior
agreements or understandings between the Employee and the Company with respect
to the subject matter hereof, including any employment agreements, arrangements
or understandings existing or that arose prior to the Effective Date, whether
written or oral. This Agreement may be amended or modified only by a written
instrument executed by the Employee and the Company.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
8th day of July, 2002.
COMPANY:
BESTWAY, INC.
By: /s/ R. XXXXXX XXXX
-------------------------------
Name: R. Xxxxxx Xxxx
Title: Chairman and CEO
EMPLOYEE:
/s/ XXXXX X. XXXXXXX
-----------------------------------
Xxxxx X. Xxxxxxx
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EXHIBIT A
Promissory Note
[ATTACHED]
PROMISSORY NOTE
$1,000,000 July 8, 2002
For value received, the undersigned, XXXXX X. XXXXXXX, a resident of
the State of Texas (the "MAKER"), hereby promises to pay to the order of
Bestway, Inc., a Delaware corporation (the "PAYEE"), the principal sum of ONE
MILLION AND NO/100THS dollars ($1,000,000), with interest as specified in this
promissory note (this "NOTE").
This Note is subject to the following additional provisions, terms and
conditions:
1. Interest.
(a) The Maker agrees to pay interest with respect to any unpaid
principal amount of this Note from the date hereof to maturity (whether by
acceleration or otherwise) at a rate equal to the lesser of (i) the mid-term
"Applicable Federal Rate" in effect on the date hereof, as determined in
accordance with Section 1274(d) of the Internal Revenue Code of 1986, as amended
from time to time, and (ii) the maximum nonusurious interest rate permitted by
applicable law (the "MAXIMUM RATE"). Overdue principal shall bear interest,
before and after judgment, for each day that such amounts are overdue at a rate
equal to the lesser of (i) 18% per annum, and (ii) the Maximum Rate.
(b) Interest shall accrue from and including the date hereof. All
computations of interest, both before and after maturity, shall be made on the
basis of a year of 365 days for the actual number of days (including the first
day but excluding the last day) occurring in the period for which such interest
is payable.
2. Principal. Subject to the terms and conditions of this Note, the
entire unpaid principal balance of this Note plus all accrued but unpaid
interest thereon shall be due and payable on January 1, 2008 (the "MATURITY
DATE"). Notwithstanding the foregoing, if the Maker is an employee of the Payee
at 5:00 pm (Dallas, Texas time) on the 31st day of December of each of 2003,
2004, 2005, 2006 and 2007 (collectively, the "FORGIVENESS DATES") or if the
Maker's employment with the Payee is terminated without Cause (as defined in
that certain Employment Agreement, dated July 8, 2002 (the "EMPLOYMENT
AGREEMENT"), between the Maker and the Payee) by the Payee or for Good Reason
(as defined in the Employment Agreement) by the Maker, the Payee shall forgive
one-fifth of the principal amount of this Note on each Forgiveness Date and all
accrued interest thereon (the "ANNUAL FORGIVEN AMOUNT"); provided, however, that
if the Maker's employment with the Payee is terminated prior to a Forgiveness
Date, the Payee shall forgive the amount of the applicable Annual Forgiven
Amount equal to such applicable Annual Forgiven Amount multiplied by the
percentage derived by dividing (a) the number of days in the applicable time
period prior to the date of such termination by (b) 365 days. If the Maker's
employment with the Payee is terminated with Cause by the Payee or not for Good
Reason by the Maker, then the Maker shall repay the unpaid principal amount of
this Note as of the date of such termination and any accrued interest thereon
within thirty (30) calendar days of the date of such termination. All principal
payments shall be accompanied by accrued interest and fees, if any, on
the principal amount being repaid to the date of payment. The Maker may at any
time and from time to time prepay all or any part of the unpaid principal
balance of this Note without premium or penalty, but prepayments of less than
all of the unpaid principal balance of this Note shall be in the minimum amount
of $1,000 and in integral multiples thereof.
3. Payments. All payments under this Note shall be made without
defense, setoff or counterclaim to the Payee not later than 12:00 noon (Dallas,
Texas time) on the date when due and shall be made in lawful money of the United
States of America in immediately available funds at such place as from time to
time may be designated by the Payee. Whenever any payment to be made under this
Note shall be stated to be due on a day that is not a business day, the due date
thereof shall be extended to the next succeeding business day, and, with respect
to payments of principal, interest thereon shall be payable at the applicable
rate during such extension. Each payment received by the Payee shall be applied
first to late charges and collection expenses, if any, then to the payment of
accrued but unpaid interest due hereunder, and then to the reduction of the
unpaid principal balance hereof.
4. Recordkeeping. The Payee shall, and is hereby authorized by the
Maker to, record in the Payee's internal records an appropriate notation
evidencing the date and amount of each payment and prepayment of principal, and
each payment of interest; provided, however, that the failure of the Payee to
make such a notation or any error in such a notation shall not affect the
obligation of the Maker to repay this Note in accordance with the terms hereof.
5. Remedies. On the Maturity Date, the entire unpaid principal balance
of this Note, together with all accrued but unpaid interest thereon, shall
automatically and immediately become due and payable, and thereafter the Payee
may proceed to enforce payment of the same and to exercise any and all of the
rights and remedies afforded herein as well as all other rights and remedies
possessed by the Payee by law or otherwise.
6. No Waiver by the Payee. No failure or delay on the part of the Payee
in exercising any right, power or privilege hereunder and no course of dealing
between the Maker and the Payee shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege.
7. Waivers. Except as otherwise expressly provided for herein, the
makers, signers, sureties, guarantors and endorsers of this Note severally waive
notice of acceptance of this Note, notice of extension of credit, demand,
presentment, notice of presentment, notice of dishonor, notice of intent to
demand or accelerate payment hereof, notice of demand, notice of acceleration,
diligence in collecting, grace, notice and protest, and agree to one or more
renewals or extensions for any period or periods of time, partial payments and
releases or substitutions of security, in whole or in part, with or without
notice, before or after maturity. If this Note shall be collected by legal
proceedings or through a bankruptcy court, or shall be placed in the hands of an
attorney for collection after default or maturity, the Maker agrees to pay all
costs of collection, including reasonable attorneys' fees.
2
8. Limitations on Interest. Notwithstanding any other provision of this
Note, interest on the indebtedness evidenced by this Note is expressly limited
so that in no contingency or event whatsoever, whether by acceleration of the
maturity of this Note or otherwise, shall the interest contracted for, charged
or received by the Payee exceed the maximum amount permissible under applicable
law. If from any circumstances whatsoever fulfillment of any provisions of this
Note or of any other document evidencing, securing or pertaining to the
indebtedness evidenced hereby, at the time performance of such provision shall
be due, shall involve transcending the limit of validity prescribed by law,
then, ipso facto, the obligation to be fulfilled shall be reduced to the limit
of such validity, and if from any such circumstances the Payee shall ever
receive anything of value as interest or deemed interest by applicable law under
this Note or any other document evidencing, securing or pertaining to the
indebtedness evidenced hereby or otherwise an amount that would exceed the
highest lawful rate, such amount that would be excessive interest shall be
applied to the reduction of the principal amount owing under this Note or on
account of any other indebtedness of the Maker to the Payee, and not to the
payment of interest, or if such excessive interest exceeds the unpaid balance of
principal of this Note and such other indebtedness, such excess shall be
refunded to the Maker. In determining whether or not the interest paid or
payable with respect to any indebtedness of the Maker to the Payee, under any
specific contingency, exceeds the highest lawful rate, the Maker and the Payee
shall, to the maximum extent permitted by applicable law, (a) characterize any
non-principal payment as an expense, fee or premium rather than as interest, (b)
exclude voluntary prepayments and the effects thereof, (c) amortize, prorate,
allocate and spread the total amount of interest throughout the full term of
such indebtedness so that the actual rate of interest on account of such
indebtedness does not exceed the maximum amount permitted by applicable law,
and/or (d) allocate interest between portions of such indebtedness to the end
that no such portion shall bear interest at a rate greater than that permitted
by applicable law. The terms and provisions of this paragraph shall control and
supersede every other conflicting provision of this Note and all other
agreements between the Maker and the Payee.
9. Choice of Law. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAWS RULES OR CHOICE OF LAWS RULES THEREOF.
10. Integration. THIS NOTE REPRESENTS THE FINAL AGREEMENT OF THE MAKER
AND THE PAYEE AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS
OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.
EXECUTED as of the date first written above.
---------------------------
Xxxxx X. Xxxxxxx
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EXHIBIT B
Incentive Stock Option Agreement
[ATTACHED]
INCENTIVE STOCK OPTION AGREEMENT
THIS INCENTIVE STOCK OPTION AGREEMENT (the "Agreement") is made this
8th day of July, 2002, between Bestway, Inc., a Delaware corporation (the
"Company"), and Xxxxx X. Xxxxxxx, an employee of the Company or one or more of
its Subsidiaries (the "Employee"). All capitalized terms not otherwise defined
herein shall have the meaning set forth in the Bestway, Inc. Incentive Stock
Option Plan, as amended from time to time (the "Plan").
RECITALS
WHEREAS, the Company desires to carry out the purposes of the Plan by
affording Employee the opportunity to purchase shares of Common Stock;
STATEMENT OF AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants hereinafter set
forth and for other good and valuable consideration, the parties hereto agree as
follows:
1. Grant of Option. The Company hereby grants to Employee the right and
option (the "Option") to purchase an aggregate of 100,000 shares (the "Shares")
of Common Stock, such Shares being subject to adjustment as provided in
Paragraph 7 hereof, on the terms and conditions herein set forth. The Option is
intended to constitute an incentive stock option pursuant to Section 422 of the
Code, and subject to the terms of the Plan and applicable law, this Agreement
shall be construed so that the Option shall qualify as an incentive stock
option.
2. Purchase Price. The purchase price of the Shares shall be $4.00 per
Share, which is the Fair Market Value of a Share on the date first set forth
above (the "Date of Grant").
3. Exercise of Option. Unless expired as provided in Paragraph 5 below,
this Option may be exercised from time to time after the date first set forth
above (the "Date of Grant") to the extent of Shares that have vested in
accordance with the vesting schedule set forth below. Employee's right to
exercise the Option accrues only in accordance with the following vesting
schedule and, except as otherwise provided herein, only to the extent that the
Employee remains in the continuous employ or service of the Company or a
Subsidiary.
Number of Shares that are Vested On and After
Vesting Date the Vesting Date and Before the Next Vesting Date
------------ -------------------------------------------------
December 31, 2002 15,455
July 1, 2003 30,910
January 1, 2004 46,365
July 1, 2004 61,820
January 1, 2005 77,275
Number of Shares that are Vested On and After
Vesting Date the Vesting Date and Before the Next Vesting Date
------------ -------------------------------------------------
July 1, 2005 92,730
January 1, 2006 100,000
4. Manner of Exercise, Payment of Purchase Price.
(a) Subject to the terms and conditions of this Agreement, the
Option shall be exercised by written notice to the Company at its
principal office. Such notice shall state the election to exercise the
Option and specify the number of Shares to be purchased. Such notice of
exercise shall be signed by Employee and shall be irrevocable when
given.
(b) The notice of exercise shall be accompanied by full
payment of the purchase price for the Shares to be purchased. The
purchase price may be paid in cash or certified funds, by cashless
exercise (deducting from the number of Shares to be delivered upon
exercise of the Option the number of Shares having a Fair Market Value
equal to the purchase price of the Shares purchased upon exercise of
the Option), by the surrender (or deemed surrender) of stock
certificates representing Common Stock or of other securities of the
Company or a Subsidiary already owned by Employee having an aggregate
Fair Market Value on the date of exercise equal to the purchase price
of the Shares, or by a combination of any of the methods described
above. In the event Employee wishes to pay all or any portion of the
purchase price by any of the above methods, Employee shall, not less
than fourteen (14) days prior to the date of exercise, give written
notice to the Secretary of the Company requesting approval of such
payment method, setting forth the particulars of the proposed payment
method. The Committee shall approve, disapprove or modify (to the
extent consistent with the above options) the proposed payment method
within fourteen (14) days of its receipt of the request.
(c) Upon receipt of the purchase price, and subject to the
terms of Paragraph 10, the certificate or certificates representing the
Shares purchased shall be registered in the name of the person or
persons so exercising the Option. If the Option shall be exercised by
Employee and, if Employee shall so request in the notice exercising the
Option, the Shares shall be registered in the name of Employee and
another person as joint tenants with right of survivorship, and shall
be delivered as provided above to or upon the written order of the
person or persons exercising the Option. All Shares that shall be
purchased upon the exercise of the Option as provided herein shall be
fully paid and nonassessable.
5. Expiration of Option. The Option shall expire and become null and
void upon the first to occur of the following: (a) the expiration of three (3)
months after Employee ceases to be employed by the Company or any of its
Subsidiaries for any reason other than termination due to death or total and
permanent disability; (b) a period of six (6) months shall have elapsed since
Employee's death or total and permanent disability; or (c) a period of ten (10)
years shall have elapsed since the Date of Grant.
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6. Acceleration of Exercise Dates. Notwithstanding the provisions of
Paragraph 3 hereof:
(a) If the Company terminates the Employee's employment with
the Company without cause or the Employee terminates such employment
for good reason, this Option shall be immediately exercisable, until
the expiration date provided in Paragraph 5 above, for the entire
number of Shares covered hereby;
(b) Upon Employee's death or total disability, this Option
shall be immediately exercisable, until the expiration date provided in
Paragraph 5 above, for the entire number of Shares covered hereby;
(c) If the Company terminates the Employee's employment with
the Company with cause or the Employee terminates such employment not
for good reason, this Option shall be immediately exercisable, until
the expiration date provided in Paragraph 5 above, for the number of
Shares vested as of the date of such termination;
(d) Upon Employee's retirement from service with the Company
and its Subsidiaries on or after the attainment of age 65, this Option
shall be immediately exercisable, until the expiration date provided in
Paragraph 5 above, for the entire number of shares covered hereby; and
(e) Upon a Change in Control (as defined below), this Option
may be immediately exercised for the entire number of Shares covered
hereby. For purposes of this Agreement, "Change in Control" shall mean
a transaction in which (a) all or substantially all of the assets of
the Company are sold, leased, exchanged or otherwise transferred to any
person or entity or group of persons or entities acting in concert as a
partnership, limited partnership, syndicate or other group
(collectively, a "Group of Persons") other than a person, entity or
Group of Persons at least fifty percent (50%) of the combined voting
power of which is held by persons who, as of July 8, 2002, were holders
of Common Stock or rights to acquire Common Stock, (b) the Company is
merged or consolidated with or into another corporation and the Company
is not the surviving entity, or (c) the Company is liquidated or
dissolved or the holders of Common Stock approve any plan or proposal
for the liquidation or dissolution of the Company, in each case unless
all or substantially all of the assets of the Company, after giving
effect to such liquidation or dissolution, will be owned by a
corporation, at least fifty percent (50%) of the combined voting power
of the outstanding securities of which ordinarily (and apart from
rights accruing under special circumstances) having the right to vote
in the election of directors will be held by the existing holders of
Common Stock immediately prior thereto.
7. Adjustments of Shares Subject to Option. The Shares subject to the
Option shall be adjusted from time to time as set forth in Section 8 of the
Plan. The determination of any such adjustment by the Committee shall be final,
binding and conclusive.
3
8. No Contract. This Agreement does not constitute a contract for
employment and shall not affect the right of the Company to terminate Employee's
employment for any reason or no reason whatsoever.
9. Rights as Stockholder. This Option shall not entitle Employee to any
rights of a stockholder of the Company or to any notice of proceedings of the
Company with respect to any Shares issuable upon exercise of this Option unless
and until the Option has been exercised for such Shares and such Shares have
been registered in the Employee's name upon the stock records of the Company.
10. Registration Statement. The Company shall use its best efforts to
ensure that a registration statement on Form S-8 under the Securities Act of
1933, as amended, covering the number of Shares subject to this Option has been
filed and declared effective on or before January 1, 2003.
11. Restriction on Issuance of Shares. The Company shall not be
required to issue or deliver any certificates for Shares purchased upon the
exercise of an Option prior to: (a) the obtaining of any approval from any
governmental agency which the Company shall, in its sole discretion, determine
to be necessary or advisable; (b) the completion of any registration or other
qualification of such Shares under any state or federal law or ruling or
regulation of any governmental body which the Company shall, in its sole
discretion, determine to be necessary or advisable; and (c) the determination by
the Committee that Employee has tendered to the Company any federal, state or
local tax owed by Employee as a result of exercising the Option when the Company
has a legal liability to satisfy such tax. In addition, if the Common Stock
reserved for issuance upon the exercise of Options shall not then be registered
under the Securities Act of 1933, as amended, the Company may upon Employee's
exercise of an Option, require Employee or his permitted transferee to represent
in writing that the Shares being acquired are for investment and not with a view
to distribution, and may xxxx the certificate for the Shares with a legend
restricting transfer and may issue stop transfer orders relating to such
certificate to the Company's transfer agent (if applicable).
12. Lapse of Option. This Agreement shall be null and void in the event
Employee shall fail to sign and return a counterpart hereof to the Company
within thirty (30) days of its delivery to Employee.
13. Binding Effect. This Agreement shall be binding upon the heirs,
executors, administrators, and successors of the parties hereto.
14. Governing Instrument and Entire Agreement. This Option and any
Shares issued hereunder shall in all respects be governed by the terms and
provisions of the Plan. In the event of a conflict between the terms of this
Agreement and the terms of the Plan (a copy of which is attached), the terms of
the Plan shall control. There are no oral agreements between the parties
relating to the subject matter hereof, and this Agreement and the terms of the
Plan constitute the entire agreement of the parties with respect to the subject
matter hereof. This Agreement may not be amended except by written agreement
executed by the Company and Employee.
4
COMPANY:
BESTWAY, INC.
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
Accepted and Agreed:
EMPLOYEE:
---------------------------------- Date:
Xxxxx X. Xxxxxxx -----------------------------------
5
EXHIBIT C
Incentive Stock Option Plan
[ATTACHED]
BESTWAY, INC.
INCENTIVE STOCK OPTION PLAN
1. PURPOSE. The purpose of this Bestway, Inc. Incentive Stock Option
Plan (hereinafter referred to as the "Plan") is to further the success of
Bestway, Inc., a Delaware corporation (the "Company"), and its affiliates by
making available Common Stock of the Company for purchase by officers and
employees of the Company or its affiliates, and thus to provide an additional
incentive to such individuals to continue in the service of the Company or its
affiliates and to give them a greater interest as shareholders in the success of
the Company.
2. DEFINITIONS. As used in this Plan, the terms set forth below shall
have the indicated meanings:
(a) "BOARD" means the Board of Directors of the Company.
(b) "CODE" means the Internal Revenue Code of 1986.
(c) "COMMITTEE" means the Committee administering the Plan described in
Paragraph 3 hereof.
(d) "COMMON STOCK" means the Company's common stock, par value $.01 per
share.
(e) "COMPANY" means Bestway, Inc., a Delaware corporation, and any
successor in interest.
(f) "DATE OF GRANT" means the date on which an Option is granted under
a written Option Agreement executed by the Company and a Participant pursuant to
the Plan.
(g) "DISINTERESTED PERSON" means a "disinterested person" as defined in
Rule 16b-3 promulgated under the Exchange Act or any successor provision. In
general, and subject to Rule 16b-3, a "disinterested person" is a director who,
during the one-year period prior to his or her service on the Committee, was not
granted a stock option or other equity security of the Company or any of its
affiliates, except as expressly permitted under the Rule.
(h) "EFFECTIVE DATE" means the effective date of this Plan specified in
Paragraph 14 hereof.
(i) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as it may
be amended from time to time.
(j) "FAIR MARKET VALUE" means, as of a particular date, the last price
at which shares of the Common Stock were traded on such date as reported on the
over-the-counter exchange or market on which the Common Stock is traded or, if
the Common Stock is not traded on such exchange or market, as reported on any
other national securities exchange or market on
which the Common Stock may be traded, including the New York Stock Exchange, if
applicable. If the Common Stock was not traded on such date, the nearest
preceding trading date shall be substituted in the preceding sentence.
Notwithstanding the foregoing, however, Fair Market Value shall be determined
consistent with Code Section 422(b)(4) or any successor provisions.
(k) "OPTION" means an option granted pursuant to this Plan that
qualifies as an incentive stock option under Section 422 of the Code.
(l) "OPTION AGREEMENT" means a written agreement between the Company
and a Participant pursuant to which Options are granted to a Participant under
this Plan.
(m) "OPTION PRICE" means the price per share of Common Stock,
determined under Paragraph 7(a) hereof, for which an Option may be exercised.
(n) "OPTIONEE" shall mean the person who is entitled to exercise an
Option.
(o) "PARENT" means a parent corporation of the Company as defined in
Section 424(e) of the Code.
(p) "PARTICIPANTS" means the employees and officers of the Company, its
Subsidiaries, and its Parents and those directors of the Company who are also
employees of the Company.
(q) "PLAN" means this Bestway, Inc. Incentive Stock Option Plan.
(r) "RELINQUISHED OPTIONS" means Options relinquished pursuant to
Paragraph 9 hereof.
(s) "SUBSIDIARY" means a subsidiary corporation of the Company as
defined in Section 424(f) of the Code.
3. ADMINISTRATION OF PLAN. The Board of Directors of the Company shall
appoint a committee (the "Committee") composed of not less than two persons to
administer the Plan. Only Disinterested Persons shall be eligible to serve as
members of the Committee. The Committee shall report all action taken by it to
the Board, which shall review and ratify or approve those actions that are by
law required to be so reviewed and ratified or approved by the Board. The
Committee shall have full and final authority in its discretion, subject to the
provisions of the Plan, to determine the Participants to whom, and the time or
times at which, Options shall be granted and the number of shares covered by
each Option; to construe and interpret the Plan and any agreements made pursuant
to the Plan; to determine the terms and provisions (which need not be identical
or consistent with respect to each Participant) of the respective Option
Agreements and any agreements ancillary thereto, including, without limitation,
terms covering the payment of the Option Price; and to make all other
determinations and take all other actions deemed necessary or advisable for the
proper administration of this Plan. All such actions and determinations shall be
conclusively binding for all purposes and upon all persons.
2
4. OPTIONS AUTHORIZED. The Options granted under this Plan shall be
incentive stock options within the meaning of Section 422 of the Code. The
Committee shall have the full power and authority, subject to the Code and other
applicable law, to grant to an Optionee, in exchange for the surrender and
cancellation of an Option, a new Option having a purchase price lower than that
provided in the Option so surrendered and cancelled and containing such other
terms and conditions as the Committee may prescribe in accordance with the
provisions of this Plan. No Options may be granted under the Plan prior to the
Effective Date. In addition to any other limitations set forth herein, the
aggregate Fair Market Value (determined in accordance with Paragraph 7(a) of the
Plan as of the time the Option is granted) of the Common Stock with respect to
which Options are exercisable for the first time by a Participant in any
calendar year (under all plans of the Company and of any Parent or Subsidiary)
shall not exceed $100,000.
5. COMMON STOCK SUBJECT TO OPTIONS. The aggregate number of shares of
the Company's Common Stock that may be issued upon the exercise of Options shall
not exceed 225,000 shares, subject to adjustment under the provisions of
Paragraph 8. The shares of Common Stock to be issued upon the exercise of
Options may be authorized but unissued shares, or shares issued and reacquired
by the Company. In the event any Option shall, for any reason, terminate or
expire or be surrendered without having been exercised in full, the shares
subject to such Option shall again be available for Options to be granted under
the Plan, except that shares for which Relinquished Options (or portions
thereof) are exercisable shall not again be available for the grant of Options
under the Plan.
6. PARTICIPANTS. Except as hereinafter provided, Options may be granted
under the Plan to any Participant. In determining the Participants to whom
Options shall be granted and the number of shares to be covered by such Option,
the Committee may take into account the nature of the services rendered by the
respective Participants, their present and potential contributions to the
Company's success, and such other factors as the Committee in its discretion
shall deem relevant. A Participant who has been granted an Option under the Plan
may be granted an additional Option or Options under the Plan, in the
Committee's discretion.
7. TERMS AND CONDITIONS OF OPTIONS. The grant of an Option under the
Plan shall be evidenced by an Option Agreement executed by the Company and the
applicable Participant and shall contain such terms and be in such form as the
Committee may from time to time approve, subject to the following limitations
and conditions:
(a) OPTION PRICE. The Option Price per share with respect to each
Option shall be determined by the Committee, but shall in no instance be less
than the Fair Market Value of the shares subject to the Option as of the Date of
Grant.
(b) PERIOD OF OPTION. The expiration date of each Option shall be fixed
by the Committee, but, notwithstanding any provision of the Plan to the
contrary, such expiration date shall not be more than 10 years from the Date of
Grant.
(c) VESTING OF SHAREHOLDER RIGHTS. Neither an Optionee nor his
successor in interest shall have any of the rights of a shareholder of the
Company solely by virtue
3
of the ownership of such Option until the Option is exercised and a certificate
or certificates for shares relating to the Option are issued to such Optionee or
successor.
(d) EXERCISE OF OPTION. Each Option shall be exercisable from time to
time (but not sooner than six months after the Date of Grant) over such period
and upon such terms and conditions as the Committee shall determine, but not at
any time as to less than 25 shares unless the remaining shares that have become
so purchasable are less than 25 shares. After the death of the Optionee, an
Option may be exercised as provided in Paragraph 16 hereof.
(e) NONTRANSFERABILITY OF OPTION. No Option shall be transferable or
assignable by an Optionee, other than by will or the laws of descent and
distribution, and each Option shall be exercisable, during the Optionee's
lifetime, only by him or her or, during periods of legal disability, by his or
her legal representative. No Option shall be subject to execution, attachment,
or similar process.
(f) DISQUALIFYING DISPOSITION. The Option Agreement evidencing any
Options granted under this Plan shall provide that if the Optionee makes a
disposition, within the meaning of Section 424(c) of the Code and regulations
promulgated thereunder, of any share or shares of Common Stock issued to him or
her pursuant to exercise of the Option within the two-year period commencing on
the day after the Date of Grant of such Option or within the one-year period
commencing on the day after the date of issuance of the share or shares to him
or her pursuant to the exercise of such Option, he or she shall, within 10 days
of such disposition date, notify the Company of the sales price or other value
ascribed to or used to measure the disposition of the share or shares thereof
and immediately deliver to the Company any amounts required by law to be
withheld.
(g) LIMITATION ON GRANTS TO CERTAIN SHAREHOLDERS. An Option may be
granted to a Participant only if such Participant, at the time the Option is
granted, does not own, after application of the attribution rules of Section
424(d) of the Code, stock possessing more than 10% of the total combined voting
power of all classes of Common Stock of the Company or of its Parent or
Subsidiary. The preceding restriction shall not apply if at the time the Option
is granted the Option Price is at least 110% of the Fair Market Value, as of the
Date of Grant, of the Common Stock subject to the Option and such Option by its
terms is not exercisable after the expiration of five years from the Date of
Grant.
(h) CONSISTENCY WITH CODE. Notwithstanding any other provision in this
Plan to the contrary, the provisions of all Option Agreements shall not violate
the requirements of the Code applicable to the Options authorized hereunder.
8. ADJUSTMENTS. The Committee, in its discretion, may make such
adjustments in the Option Price and the number of shares covered by outstanding
Options if such adjustments are required to prevent any dilution or enlargement
of the rights of the holders of such Options that would otherwise result from
any reorganization, recapitalization, stock split, stock dividend, combination
of shares, merger, consolidation, change of control of the Company, issuance of
rights, or other change in the capital structure of the Company. The Committee,
in its discretion, may also make such adjustments in the aggregate number of
shares that may be subject to the
4
future grant of Options if such adjustments are appropriate to reflect any
transaction or event described in the preceding sentence.
9. RELINQUISHMENT of Options.
(a) The Committee, in granting Options hereunder, shall have discretion
to provide that an Optionee, or his or her heirs or other legal representatives
(to the extent entitled to exercise the Option under the terms of applicable law
and this Plan), in lieu of purchasing the entire number of shares subject to
purchase pursuant to such Option, shall have the right to relinquish all or any
part of the unexercised portion of the Option (such portion of the Option
relinquished being hereinafter referred to as the "Relinquished Option") for a
number of whole shares of Common Stock equal to the product of (i) the number of
shares of Common Stock subject to the Relinquished Option and (ii) a fraction,
the numerator of which is the excess of (A) the current Fair Market Value per
share, as of the date of relinquishment, of Common Stock covered by the
Relinquished Option over (B) the Option Price of such Relinquished Option, and
the denominator of which is the Fair Market Value per share of such Common
Stock. No fractional shares of Common Stock will be issued pursuant to the
exercise of Relinquished Options. Rather, cash equal to the fractional amount of
such share multiplied by the Fair Market Value per share will be paid to the
Optionee, subject to any federal income tax withholding and other withholding
requirements described in Paragraph 13 hereof that are applicable.
(b) The Committee, in granting Options hereunder, shall have discretion
to determine the terms upon which such Options shall be relinquishable, subject
to the applicable provisions of the Code and the Plan, and including such
provisions as deemed advisable to permit the exemption from the operation of
Section 16b of the Exchange Act, in whole or in part, of any such transaction
involving such relinquishment. Outstanding Option Agreements may be amended, if
necessary, to permit such exemption.
10. RESTRICTIONS ON ISSUING SHARES. The exercise of each Option shall
be subject to the condition that if at any time the Company shall determine in
its discretion that the satisfaction of withholding tax or other withholding
liabilities, or that the listing, registration, or qualification of any shares
otherwise deliverable upon such exercise upon any securities exchange or under
any state or federal law, or that the consent or approval of any regulatory
body, is necessary or desirable as a condition of, or in connection with, such
exercise or the delivery or purchase of shares pursuant thereto, then in any
such event, such exercise shall not be effective unless such withholding,
listing, registration, qualification, consent, or approval shall have been
effected or obtained free of any conditions not acceptable to the Company. 11.
USE OF PROCEEDS. The proceeds received by the Company from the sale of Common
Stock pursuant to the exercise of Options granted under the Plan shall be added
to the Company's general funds and used for general corporate purposes.
12. AMENDMENT, SUSPENSION, AND TERMINATION OF PLAN. The Board may at
any time suspend or terminate the Plan or may amend it from time to time in such
respects as the Board may deem advisable in order that the Options granted
thereunder may conform to any changes in the law or in any other respect which
the Board may deem to be in the best
5
interests of the Company, provided, however, that without approval by the
shareholders of the Company voting the proper percentage of its voting power, no
such amendment shall make any change in the Plan for which shareholder approval
is required of the Company by (a) Rule 16b-3, promulgated under the Exchange
Act; (b) the Code or regulatory provisions dealing with incentive stock options
pursuant to Code section 422; (c) any rules for listed companies promulgated by
any national stock exchange on which the Company's stock is traded; or (d) any
other applicable rule or law. Unless sooner terminated hereunder, the Plan shall
terminate 10 years after the Effective Date. No Option may be granted during any
suspension or after the termination of the Plan. Except as provided in Paragraph
13, no amendment, suspension, or termination of the Plan shall, without an
Optionee's consent, impair or negate any of the rights or obligations under any
Option theretofore granted to such Optionee under the Plan.
13. WITHHOLDING. If and to the extent withholding of any amount is
required by law, the Committee may, in its sole discretion, (a) require an
Optionee to remit to the Company a cash amount sufficient to satisfy, in whole
or in part, any federal, state, and local withholding requirements prior to the
delivery of any certificate for shares pursuant to the exercise of an Option
hereunder; (b) grant to an Optionee the right to satisfy, in whole or in part,
any such withholding requirements by electing to require that the Company, upon
any exercise or relinquishment of the Option, withhold from the shares of Common
Stock issuable to the Optionee upon the exercise or relinquishment of the Option
that number of full shares of Common Stock having a Fair Market Value as of the
date of exercise or relinquishment equal to the amount or portion of the amount
required to be withheld; or (c) satisfy such withholding requirements through
another lawful method, including through additional withholdings against the
Optionee's other wages with the Company.
14. EFFECTIVE DATE OF PLAN. This Plan shall become effective on the
date (the "Effective Date") of the last to occur of (a) the adoption of the Plan
by the Board; and (b) the approval, within 12 months of such adoption, by a
majority (or such other proportion as may be required by state law or the
Articles of Incorporation of the Company) of the outstanding voting shares of
stock of the Company, voted either in person or by proxy, at a duly held
stockholders meeting.
15. TERMINATION OF EMPLOYMENT. Except as may otherwise be provided in
an Option Agreement, in the event of the retirement (with the written consent of
the Company), or other termination of the employment of, a Participant to whom
an Option has been granted under the Plan, other than (a) a termination that is
either (i) for cause (as defined in the applicable Option Agreement) or (ii)
voluntary on the part of the employee and without the written consent of the
Company; or (b) a termination by reason of death, the employee may exercise his
Option at any time within three months after such retirement or other
termination of employment (or within one year after termination of employment
due to disability within the meaning of Code Section 422(c)(6)), or within such
other time as the Committee shall authorize consistent with Code Section 422,
but in no event after 10 years from the date of granting thereof (or such lesser
period as may be specified in the Option Agreement), but only to the extent of
the number of shares for which his Options were exercisable by him at the date
of the termination of his employment. Except as may otherwise be provided in an
Option Agreement, in the event of the termination of the employment of an
employee to whom an Option has been granted under the
6
Plan that is either (i) for cause (as defined in the applicable Option
Agreement) or (ii) voluntary on the part of the employee and without the written
consent of the Company, any Option held by him under the Plan, to the extent not
previously exercised, shall forthwith terminate on the date of such termination
of employment. Options granted under the Plan shall not be affected by any
change of employment so long as the holder continues to be an employee of the
Company, a Subsidiary, or a Parent. The employment relationship of a Participant
shall be treated as continuing intact with an employer for any period that the
Optionee is on military or sick leave or other bona fide leave of absence,
provided that the period of such leave does not exceed ninety (90) days or a
longer period so long as the Participant's right to reemployment is guaranteed
either by statute or by contract. Nothing in the Plan or in any Option granted
pursuant to the Plan shall confer on any individual any right to continue in the
employ of the Company or any of its Subsidiaries or Parents or interfere in any
way with the right of the Company or any of its Subsidiaries or Parents to
terminate his employment at any time.
16. DEATH OF HOLDER OF OPTION. In the event a Participant to whom an
Option has been granted under the Plan dies during, or within three months after
the termination of, his employment by the Company or a Subsidiary or Parent,
such Option (unless it shall have been previously terminated pursuant to the
provisions of the Plan or unless otherwise provided in his Option Agreement) may
be exercised (to the extent of the entire number of shares covered by the Option
whether or not purchasable by the employee at the date of his death) by the
executor or administrator of the Optionee's estate or by the person or persons
to whom the Optionee shall have transferred such Option by will or by the laws
of descent and distribution, at any time within a period of 12 months after his
death, but not after the exercise termination date set forth in the relevant
Option Agreement.
17. LOANS TO ASSIST IN EXERCISE OF OPTIONS. If approved by the Board,
the Company or any Parent or Subsidiary may lend money or guarantee loans by
third parties to an individual to finance the exercise of any Option granted
under the Plan to carry Common Stock thereby acquired. No such loan to finance
the exercise of an Option shall have an interest rate or other terms that would
cause any part of the principal amount to be characterized as interest for
purposes of the Code. No Optionee shall have any right to receive such a loan.
7
AMENDMENT NUMBER ONE
TO THE
BESTWAY, INC.
INCENTIVE STOCK OPTION PLAN
Bestway, Inc., a corporation organized under the laws of the State of
Delaware (the "Company"), previously adopted a stock option plan designated as
the Bestway, Inc. Incentive Stock Option Plan (the "Plan"), originally approved
by the Company's stockholders on May 31, 1995. The Company reserved the right to
amend the Plan under Paragraph 12 thereof. Accordingly, the Company hereby
amends the Plan as follows, effective as of December 4, 2000:
1. Paragraph 2(g) of the Plan is hereby amended and restated in its
entirety to read as follows:
"(g) "Non-Employee Director" means a member of the Board who
is a "non-employee director" within the meaning of Rule 16b-3
promulgated under the Exchange Act (or any successor to Rule
16b-3) and who is also an "outside director" within the
meaning of Section 162(m) of the Code."
2. Paragraph 3 of the Plan is hereby amended and restated to read as
follows:
"3. ADMINISTRATION OF PLAN. The Board of Directors of the
Company shall appoint a committee (the "Committee") composed
of not less than two persons to administer the Plan. Only
Non-Employee Directors shall be eligible to serve as members
of the Committee. The Committee shall report all action taken
by it to the Board, which shall review and ratify or approve
those actions that are by law required to be so reviewed and
ratified or approved by the Board. The Committee shall have
full and final authority in its discretion, subject to the
provisions of the Plan, to determine the Participants to whom,
and the time or times at which, Options shall be granted and
the number of shares covered by each Option; to construe and
interpret the Plan and any agreements made pursuant to the
Plan; to determine the terms and provisions (which need not be
identical or consistent with respect to each Participant) of
the respective Option Agreements and any agreements ancillary
thereto, including, without limitation, terms covering the
payment of the Option Price; and to make all other
determinations and take all other actions deemed necessary or
advisable for the proper administration of this Plan. All such
actions and determinations shall be conclusively binding for
all purposes and upon all persons."
3. Paragraph 4 of the Plan is hereby amended to add the following
sentence at the end thereof:
"Subject to adjustment under the provisions of Paragraph 8, no
Participant shall be eligible to be granted options covering
more than 100,000 shares of the Company's Common Stock during
any calendar year, in accordance with Section 162(m) of the
Code."
4. The first paragraph in Paragraph 5 of the Plan is hereby amended and
restated to read as follows:
"The aggregate number of shares of the Company's Common Stock
that may issued upon the exercise of options shall not exceed
285,000 shares, subject to adjustment under the provisions of
Paragraph 8."
5. Paragraph 12 of the Plan is hereby amended and restated in its
entirety to read as follows:
"12. AMENDMENT, SUSPENSION, AND THE TERMINATION OF PLAN. The
Board may at any time suspend or terminate the Plan or may
amend it from time to time in such respects as the Board may
deem advisable in order that the Options granted thereunder
may conform to any changes in the law or in any other respect
which the Board may deem to be in the best interests of the
Company, provided, however, that without approval by the
shareholders of the Company voting the proper percentage of
its voting power, no such amendment shall make any change in
the Plan for which shareholder approval is required of the
Company by (a) the Code or regulatory provisions dealing with
incentive stock options pursuant to Code section 422; (b) any
rules for listed companies promulgated by any national stock
exchange on which the Company's stock is traded; or (c) any
other applicable rule or law. Unless sooner terminated
hereunder the Plan shall terminate 10 years after the
Effective Date. No Option may be granted during any suspension
or after the termination of the Plan. Except as provided in
Paragraph 13, no amendment, suspension, or termination of the
Plan shall, without an Optionee's consent, impair or negate
any of the rights or obligations under any Option theretofore
granted to such Optionee under the Plan."
2
IN WITNESS WHEREOF, the Company has caused these presents to be duly
executed by its duly authorized officers in a number of copies, all of which
shall constitute one and the same instrument, which may be sufficiently
evidenced by any executed copy hereof, this 4th day of December, 2000.
BESTWAY, INC.
By: /s/ R. XXXXXX XXXX
--------------------------------
Name: R. Xxxxxx Xxxx
Title: Chief Executive Officer
3
EXHIBIT D
Incentive Stock Option Agreement-Secondary Options
[ATTACHED]
INCENTIVE STOCK OPTION AGREEMENT
THIS
INCENTIVE STOCK OPTION AGREEMENT (the "Agreement") is made this
1st day of January, 2003, between Bestway, Inc., a Delaware corporation (the
"Company"), and Xxxxx X. Xxxxxxx, an employee of the Company or one or more of
its Subsidiaries (the "Employee"). All capitalized terms not otherwise defined
herein shall have the meaning set forth in the Bestway, Inc. Incentive Stock
Option Plan, as amended from time to time (the "Plan").
RECITALS
WHEREAS, the Company desires to carry out the purposes of the Plan by
affording Employee the opportunity to purchase shares of Common Stock;
STATEMENT OF AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants hereinafter set
forth and for other good and valuable consideration, the parties hereto agree as
follows:
1. Grant of Option. The Company hereby grants to Employee the right and
option (the "Option") to purchase an aggregate of 70,005 shares (the "Shares")
of Common Stock, such Shares being subject to adjustment as provided in
Paragraph 7 hereof, on the terms and conditions herein set forth. The Option is
intended to constitute an incentive stock option pursuant to Section 422 of the
Code, and subject to the terms of the Plan and applicable law, this Agreement
shall be construed so that the Option shall qualify as an incentive stock
option.
2. Purchase Price. The purchase price of the Shares shall be $____ per
Share, which is the Fair Market Value of a Share on the date first set forth
above (the "Date of Grant").
3. Exercise of Option. Unless expired as provided in Paragraph 5 below,
this Option may be exercised from time to time after the date first set forth
above (the "Date of Grant") to the extent of Shares that have vested in
accordance with the vesting schedule set forth below. Employee's right to
exercise the Option accrues only in accordance with the following vesting
schedule and, except as otherwise provided herein, only to the extent that the
Employee remains in the continuous employ or service of the Company or a
Subsidiary.
Number of Shares that are Vested On and After
Vesting Date the Vesting Date and Before the Next Vesting Date
------------ -------------------------------------------------
January 1, 2006 8,185
July 1, 2006 23,640
January 1, 2007 39,095
July 1, 2007 54,550
January 1, 2008 70,005
4. Manner of Exercise, Payment of Purchase Price.
(a) Subject to the terms and conditions of this Agreement, the
Option shall be exercised by written notice to the Company at its
principal office. Such notice shall state the election to exercise the
Option and specify the number of Shares to be purchased. Such notice of
exercise shall be signed by Employee and shall be irrevocable when
given.
(b) The notice of exercise shall be accompanied by full
payment of the purchase price for the Shares to be purchased. The
purchase price may be paid in cash or certified funds, by cashless
exercise (deducting from the number of Shares to be delivered upon
exercise of the Option the number of Shares having a Fair Market Value
equal to the purchase price of the Shares purchased upon exercise of
the Option), by the surrender (or deemed surrender) of stock
certificates representing Common Stock or of other securities of the
Company or a Subsidiary already owned by Employee having an aggregate
Fair Market Value on the date of exercise equal to the purchase price
of the Shares, or by a combination of any of the methods described
above. In the event Employee wishes to pay all or any portion of the
purchase price by any of the above methods, Employee shall, not less
than fourteen (14) days prior to the date of exercise, give written
notice to the Secretary of the Company requesting approval of such
payment method, setting forth the particulars of the proposed payment
method. The Committee shall approve, disapprove or modify (to the
extent consistent with the above options) the proposed payment method
within fourteen (14) days of its receipt of the request.
(c) Upon receipt of the purchase price, and subject to the
terms of Paragraph 10, the certificate or certificates representing the
Shares purchased shall be registered in the name of the person or
persons so exercising the Option. If the Option shall be exercised by
Employee and, if Employee shall so request in the notice exercising the
Option, the Shares shall be registered in the name of Employee and
another person as joint tenants with right of survivorship, and shall
be delivered as provided above to or upon the written order of the
person or persons exercising the Option. All Shares that shall be
purchased upon the exercise of the Option as provided herein shall be
fully paid and nonassessable.
5. Expiration of Option. The Option shall expire and become null and
void upon the first to occur of the following: (a) the expiration of three (3)
months after Employee ceases to be employed by the Company or any of its
Subsidiaries for any reason other than termination due to death or total and
permanent disability; (b) a period of six (6) months shall have elapsed since
Employee's death or total and permanent disability; or (c) a period of ten (10)
years shall have elapsed since the Date of Grant.
6. Acceleration of Exercise Dates. Notwithstanding the provisions of
Paragraph 3 hereof:
(a) If the Company terminates the Employee's employment with
the Company without cause or the Employee terminates such employment
for good reason, this Option
2
shall be immediately exercisable, until the expiration date provided in
Paragraph 5 above, for the entire number of Shares covered hereby;
(b) Upon Employee's death or total disability, this Option
shall be immediately exercisable, until the expiration date provided in
Paragraph 5 above, for the entire number of Shares covered hereby;
(c) If the Company terminates the Employee's employment with
the Company with cause or the Employee terminates such employment not
for good reason, this Option shall be immediately exercisable, until
the expiration date provided in Paragraph 5 above, for the number of
Shares vested as of the date of such termination;
(d) Upon Employee's retirement from service with the Company
and its Subsidiaries on or after the attainment of age 65, this Option
shall be immediately exercisable, until the expiration date provided in
Paragraph 5 above, for the entire number of shares covered hereby; and
(e) Upon a Change in Control (as defined below), this Option
may be immediately exercised for the entire number of Shares covered
hereby. For purposes of this Agreement, "Change in Control" shall mean
a transaction in which (a) all or substantially all of the assets of
the Company are sold, leased, exchanged or otherwise transferred to any
person or entity or group of persons or entities acting in concert as a
partnership, limited partnership, syndicate or other group
(collectively, a "Group of Persons") other than a person, entity or
Group of Persons at least fifty percent (50%) of the combined voting
power of which is held by persons who, as of July 8, 2002, were holders
of Common Stock or rights to acquire Common Stock, (b) the Company is
merged or consolidated with or into another corporation and the Company
is not the surviving entity, or (c) the Company is liquidated or
dissolved or the holders of Common Stock approve any plan or proposal
for the liquidation or dissolution of the Company, in each case unless
all or substantially all of the assets of the Company, after giving
effect to such liquidation or dissolution, will be owned by a
corporation, at least fifty percent (50%) of the combined voting power
of the outstanding securities of which ordinarily (and apart from
rights accruing under special circumstances) having the right to vote
in the election of directors will be held by the existing holders of
Common Stock immediately prior thereto.
7. Adjustments of Shares Subject to Option. The Shares subject to the
Option shall be adjusted from time to time as set forth in Section 8 of the
Plan. The determination of any such adjustment by the Committee shall be final,
binding and conclusive.
8. No Contract. This Agreement does not constitute a contract for
employment and shall not affect the right of the Company to terminate Employee's
employment for any reason or no reason whatsoever.
9. Rights as Stockholder. This Option shall not entitle Employee to any
rights of a stockholder of the Company or to any notice of proceedings of the
Company with respect to any
3
Shares issuable upon exercise of this Option unless and until the Option has
been exercised for such Shares and such Shares have been registered in the
Employee's name upon the stock records of the Company.
10. Registration Statement. The Company shall use its best efforts to
ensure that a registration statement on Form S-8 under the Securities Act of
1933, as amended, covering the number of Shares subject to this Option has been
filed and declared effective as of the date hereof.
11. Restriction on Issuance of Shares. The Company shall not be
required to issue or deliver any certificates for Shares purchased upon the
exercise of an Option prior to: (a) the obtaining of any approval from any
governmental agency which the Company shall, in its sole discretion, determine
to be necessary or advisable; (b) the completion of any registration or other
qualification of such Shares under any state or federal law or ruling or
regulation of any governmental body which the Company shall, in its sole
discretion, determine to be necessary or advisable; and (c) the determination by
the Committee that Employee has tendered to the Company any federal, state or
local tax owed by Employee as a result of exercising the Option when the Company
has a legal liability to satisfy such tax. In addition, if the Common Stock
reserved for issuance upon the exercise of Options shall not then be registered
under the Securities Act of 1933, as amended, the Company may upon Employee's
exercise of an Option, require Employee or his permitted transferee to represent
in writing that the Shares being acquired are for investment and not with a view
to distribution, and may xxxx the certificate for the Shares with a legend
restricting transfer and may issue stop transfer orders relating to such
certificate to the Company's transfer agent (if applicable).
12. Lapse of Option. This Agreement shall be null and void in the event
Employee shall fail to sign and return a counterpart hereof to the Company
within thirty (30) days of its delivery to Employee.
13. Binding Effect. This Agreement shall be binding upon the heirs,
executors, administrators, and successors of the parties hereto.
14. Governing Instrument and Entire Agreement. This Option and any
Shares issued hereunder shall in all respects be governed by the terms and
provisions of the Plan. In the event of a conflict between the terms of this
Agreement and the terms of the Plan (a copy of which is attached), the terms of
the Plan shall control. There are no oral agreements between the parties
relating to the subject matter hereof, and this Agreement and the terms of the
Plan constitute the entire agreement of the parties with respect to the subject
matter hereof. This Agreement may not be amended except by written agreement
executed by the Company and Employee.
4
COMPANY:
BESTWAY, INC.
By:
--------------------------------
Name:
---------------------------
Title:
--------------------------
Accepted and Agreed:
EMPLOYEE:
----------------------------------- Date:
Xxxxx X. Xxxxxxx ------------------------------
5
