Exhibit 10-5
XXXXXXXXX FARMS, INC.
ALTERNATE STOCK APPRECIATION RIGHTS AGREEMENT
THIS ALTERNATE STOCK APPRECIATION RIGHTS AGREEMENT ( Agreement ),
dated as of the ______ day of _______________ , _____ (the Date of
Grant ), is delivered by Xxxxxxxxx Farms, Inc., and its subsidiaries and
affiliates (collectively referred to as "SFI") to
______________________________________ (the Optionee ), who is an
executive officer or key employee of SFI.
WHEREAS, the Board of Directors of Xxxxxxxxx Farms, Inc. (the
Board ), recommended stockholder approval of, the stockholders approved
and the Board adopted, the Xxxxxxxxx Farms, Inc. Stock Option Plan (as
amended and restated to the date hereof, the Plan );
WHEREAS, the Plan provides for the granting of alternate stock
appreciation rights by the Board (or, if applicable, a committee thereof
appointed pursuant to Section 1.02(d) of the Plan) to executive officers
and key employees of SFI to receive the appreciation in value of shares
of the Common Stock of SFI, par value of $1.00 per share (the "Stock"),
in accordance with the terms and provisions thereof; and
WHEREAS, the Board (or, if applicable, a committee thereof
appointed pursuant to Section 1.02(d) of the Plan) considers the
Optionee to be a person who is eligible for a grant of an alternate
stock appreciation right under the Plan, and has determined that it
would be in the best interest of SFI to grant the alternate stock
appreciation right documented herein.
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Grant of Alternate Stock Appreciation Right.
(a) Subject to the terms and conditions hereinafter set forth,
SFI, with the approval and at the direction of the Board (or, if
applicable, a committee thereof appointed pursuant to Section 1.02(d) of
the Plan), hereby grants to the Optionee, as of the Date of Grant, an
alternate stock appreciation right related to a certain __________ Stock
Option granted pursuant to a certain __________ Stock Option Agreement
dated _______________, _____. The shares of stock purchasable upon
exercise of the related __________ Stock Option are hereinafter referred
to as "Option Shares." Notwithstanding any provision herein to the
contrary, the Alternate Stock Appreciation Right is not intended by the
parties hereto to be, and shall not be treated as, an "incentive stock
option," pursuant to and as such term is defined under Sections 421 and
422 of the Internal Revenue Code of 1986, as amended (the "Code").
(b) This Alternate Stock Appreciation Right is granted subject
to the following additional terms and conditions (if none, so indicate):
2. Exercise of Alternate Stock Appreciation Right.
The Optionee may, in lieu of the exercise of the ____________
Stock Option or portion thereof to which this Alternate Stock
Appreciation Right relates, exercise this Alternate Stock Appreciation
Right or portion hereof with respect to all or part of the option shares
then exercisable and shall be entitled to receive from SFI the
appreciated value of the option shares. The appreciated value of the
option shares shall be equal to 100% of the amount, if any, by which the
fair market value of a share of Common Stock on the date this Alternate
Stock Appreciation Right is exercised exceeds the fair market value of a
share of Common Stock on the date the option, to which this Alternate
Stock Appreciation Right was awarded as an alternate, was granted. This
Alternate Stock Appreciation Right shall be exercisable only to the
extent that, and subject to the same conditions as, the option to which
it relates is exercisable and only when the fair market value of a share
of Common Stock on the exercise date exceeds the exercise price of the
option to which this Alternate Stock Appreciation Right relates. The
Optionee may exercise this Alternate Stock Appreciation Right by giving
the Secretary of SFI written notice of intent to exercise substantially
in the form attached hereto as Exhibit A. The notice of exercise shall
specify the number of Option Shares as to which this Alternate Stock
Appreciation Right is to be exercised and the date of exercise thereof,
which date shall be at least five days after the giving of such notice
unless an earlier date shall have been mutually agreed upon. Payment of
the appreciated value of the Option Shares may be made in cash or in
Common Stock or a combination of both, provided that no fractional share
of Common Stock shall be issued as a result of the exercise of this
Alternate Stock Appreciation Right. The exercise of this Alternate Stock
Appreciation Right or portion hereof shall cancel the related option on
an equal number of shares of Common Stock under the __________ Stock
Option to which this Alternate Stock Appreciation Right relates.
3. Termination of Alternate Stock Appreciation Right Related to
Nonstatutory Stock Option.
(a) Except as provided in Sections 3(b) and 3(c) of this
Agreement, upon termination of the Optionee's employment, this Alternate
Stock Appreciation Right, to the extent not previously exercised, shall
terminate immediately upon such termination of employment, or if the
optionee is no longer eligible to participate in the Plan by virtue of
his or her appointment to a position that no longer falls within the
description set forth in Section 1.03 of this Plan.
(b) Upon termination of the Optionee's employment by reason of
death of the Optionee, this Alternate Stock Appreciation Right may be
exercised, but only to the extent exercisable on the date of such death,
within one (1) year from and after the date of the Optionee's death.
This Alternate Stock Appreciation Right may be exercised by the executor
or administrator of the deceased Optionee's estate or by a person
receiving this Alternate Stock Appreciation Right by will or under the
laws of descent and distribution of the state in which the Optionee
resided.
(c) Upon termination of the Optionee's employment by reason of
retirement or disability (as defined by the Board (or, if applicable, a
committee thereof appointed pursuant to Section 1.02(d) of the Plan),
this Alternate Stock Appreciation Right may be exercised, but only to
the extent exercisable on the date of such retirement or disability,
during the three (3) month period following the date of such termination
of the Optionee's employment.
(d) A transfer of the Optionee's employment from one affiliate
of SFI to another shall not be deemed to be a termination of the
Optionee's employment.
(e) Notwithstanding any other provisions set forth herein or in
the Plan, if the Optionee shall (i) commit any act of malfeasance or
wrongdoing affecting SFI, (ii) breach any covenant not to compete or
employment contract with SFI, or (iii) engage in conduct that would
warrant the Optionee's discharge for cause (excluding general
dissatisfaction with the performance of the Optionee's duties, but
including any act of disloyalty or any conduct clearly tending to bring
discredit upon SFI), then any unexercised portion of the Alternate Stock
Appreciation Right shall immediately terminate and be void.
4. Termination of Alternate Stock Appreciation Right Related to
Incentive Stock Option.
(a) Except as provided in Sections 4(b), 4(c) and 4(d) of this
Agreement, upon termination of the Optionee's employment, this Alternate
Stock Appreciation Right, to the extent not previously exercised, shall
terminate immediately upon such termination of employment, or if the
optionee is no longer eligible to participate in the Plan by virtue of
his or her appointment to a position that no longer falls within the
description set forth in Section 1.03 of this Plan.
(b) Upon termination of the Optionee's employment by reason of
death of the Optionee, this Alternate Stock Appreciation Right may be
exercised, but only to the extent exercisable on the date of such death,
within one (1) year from and after the date of the Optionee's death.
This Alternate Stock Appreciation Right may be exercised by the executor
or administrator of the deceased Optionee's estate or by a person
receiving the Alternate Stock Appreciation Right by will or under the
laws of descent and distribution of the state in which the Optionee
resided.
(c) Upon termination of the Optionee's employment by reason of
permanent and total disability as defined under Section 22(e)(3) of the
Code, this Alternate Stock Appreciation Right may be exercised, but only
to the extent exercisable on the date of such permanent and total
disability, during the one (1) year period following the date of such
termination of the Optionee's employment.
(d) Upon termination of the Optionee's employment by reason of
retirement or disability, other than disability defined by Section 4(c)
of this Agreement, this Alternate Stock Appreciation Right may be
exercised, but only to the extent exercisable on the date of such
retirement or disability, during the three (3) month period following
the date of such termination of the Optionee's employment.
(e) A transfer of the Optionee's employment from one affiliate
to another of SFI shall not be deemed to be a termination of the
Optionee's employment.
(f) Notwithstanding any other provision set forth herein or in
the Plan, if the Optionee shall (i) commit any act of malfeasance or
wrong-doing affecting SFI, (ii) breach any covenant not to compete or
employment contract with SFI, or (iii) engage in conduct that would
warrant the Optionee's discharge for cause (excluding general
dissatisfaction with the performance of the Optionee's duties, but
including any act of disloyalty or any conduct clearly tending to bring
discredit upon SFI), then any unexercised portion of the Alternate Stock
Appreciation Right shall immediately terminate and be void.
5. Adjustment of and Changes in Stock of SFI.
In the event of a reorganization, recapitalization, change of
shares, stock split, spinoff, stock dividend, reclassification,
subdivision or combination of shares, merger, consolidation, rights
offering, or any other change in the corporate structure or shares of
capital stock of SFI, the Board (or, if applicable, a committee thereof
appointed pursuant to Section 1.02(d) of the Plan) shall make such
adjustment as it deems appropriate in the number and kinds of shares of
Stock subject to the Alternate Stock Appreciation Right; provided,
however, that no such adjustment shall give the Optionee any additional
benefits under the Alternate Stock Appreciation Right.
6. Fair Market Value.
"Fair market value" as of any date and in respect of any share of
Common Stock means the closing price on such date or on the next
business day, if such date is not a business day, of a share of Common
Stock reflected in the NASDAQ National Market System traded under the
Symbol SAFM, provided that, if shares of Common Stock shall not have
been traded on NASDAQ for more than 10 days immediately preceding such
date or if deemed appropriate by the Board (or, if applicable, a
committee thereof appointed pursuant to Section 1.02(d) of the Plan) for
any other reason, the fair market value of shares of Common Stock shall
be as determined by the Board (or, if applicable, a committee thereof
appointed pursuant to Section 1.02(d) of the Plan) in such other manner
as it may deem appropriate. In no event shall the fair market value of
any share of Common Stock be less than its par value.
7. No Rights as a Stockholder.
Neither the Optionee nor any personal representative shall be, or
shall have any of the rights and privileges of, a stockholder of SFI
with respect to any shares of Stock related to the exercise of the
Alternate Stock Appreciation Right, in whole or in part, prior to the
issuance of certificates for shares of Common Stock to said person.
8. Xxxxxxx Xxxxxxx Short-Swing Profit Liability Exemption
Requirements.
Notwithstanding any other provision of this Agreement to the
contrary, the Alternate Stock Appreciation Right granted under this
Agreement shall be transferrable (i) by the option holder only by will
or under the laws of descent and distribution of the state in which the
option holder resided on the date of his death or (ii) by the Company
pursuant to a qualified domestic relations order as defined by the Code
or Title I of the Employee Retirement Income Security Act or the Rules
thereunder [, except that, if the Alternate Stock Appreciation Right
granted hereby relates to a Nonstatutory Stock Option, it may be
transferred to members of the Optionee s immediate family or to trusts
for their benefit or partnerships in which such members hold the entire
partnership interest].
9. No Rights of Employment.
Neither the granting of this Alternate Stock Appreciation Right
nor its exercise shall be construed as granting to the Optionee any
right with respect to continuance of employment with SFI. Except as may
otherwise be limited by a written agreement between SFI and the
Optionee, and acknowledged by the Optionee, the right of SFI to
terminate at will the Optionee's employment with it at any time (whether
by dismissal, discharge, retirement or otherwise) is specifically
reserved by SFI.
10. Amendment of Alternate Stock Appreciation Right.
The Board (or, if applicable, a committee thereof appointed
pursuant to Section 1.02(d) of the Plan) may, without further action by
the stockholders and without the consent of or further consideration
from the Optionee, amend, condition or modify this Alternate Stock
Appreciation Right in response to changes in securities or other laws or
rules, regulations or regulatory interpretations thereof applicable to
the Alternate Stock Appreciation Right or to comply with stock exchange
rules or requirements. The Board (or, if applicable, a committee thereof
appointed pursuant to Section 1.02(d) of the Plan) may amend this
Alternate Stock Appreciation Right otherwise with the written consent of
the Optionee.
11. Notice.
Any notice to SFI provided for in this instrument shall be
addressed to it in care of its Secretary at its executive offices at
Xxxx Xxxxxx Xxx 000, Xxxxxx, Xxxxxxxxxxx 00000, and any notice to the
Optionee shall be addressed to the Optionee at the current address shown
on the payroll records of SFI. Any notice shall be deemed to be duly
given if and when properly addressed and posted by registered or
certified mail, postage prepaid.
12. Incorporation of Plan by Reference.
This Alternate Stock Appreciation Right is granted pursuant to the
terms of the Plan, which terms are incorporated herein by reference, and
the Alternate Stock Appreciation Right shall in all respects be
interpreted in accordance with the Plan. The Board (or, if applicable, a
committee thereof appointed pursuant to Section 1.02(d) of the Plan)
shall interpret and construe the Plan and this instrument, and its
interpretations and determinations shall be conclusive and binding on
the parties hereto and any other person claiming an interest hereunder,
with respect to any issue arising hereunder or thereunder.
13. Governing law.
The validity, construction, interpretation and effect of this
instrument shall exclusively be governed by and determined in accordance
with the laws of the State of Mississippi, except to the extent
preempted by federal law, which shall to that extent govern.
IN WITNESS WHEREOF, SFI has caused its duly authorized officers to
execute and attest this Alternate Stock Appreciation Right Agreement,
and to apply the corporate seal hereto, and the Optionee has placed his
or her signature hereon, effective as of the Date of Grant.
XXXXXXXXX FARMS, INC.
ATTEST:
By:
Name:
Title:
ACCEPTED AND AGREED TO:
Optionee
NOTICE OF EXERCISE OF ALTERNATE STOCK APPRECIATION RIGHT
XXXXXXXXX FARMS, INC.
ATTENTION: The Board of Directors
Stock Option Committee
Gentlemen:
Notice is hereby given of the undersigned's intent to exercise the
Alternate Stock Appreciation Right granted to the undersigned pursuant
to the Alternate Stock Appreciation Rights Agreement dated
________________, _____ , entered into by and between the undersigned
and Xxxxxxxxx Farms, Inc. The Alternate Stock Appreciation Right shall
be exercised with respect to ______________ (______) shares of the
Common Stock, $1.00 par value, of Xxxxxxxxx Farms, Inc. The date of
exercise shall be _______________, ____, which is five days or more
after the date of this notice.
In connection with the exercise of the Alternate Stock
Appreciation Right, the undersigned authorizes SFI to withhold all
appropriate federal and state income and payroll taxes where cash is
paid. Where only stock is transferred, the undersigned will remit to SFI
an amount in cash equal to the appropriate federal and state income and
payroll taxes upon being advised of the amount. Alternatively, SFI may
reduce the number of shares distributed by an amount or number equal in
value to the withholding amount.
Employee/Optionee
Dated: _______________. _____
Exhibit A
