XXXXX MART, INC.
2001 OMNIBUS PLAN
OPTION AWARD AGREEMENT FOR KEY EMPLOYEES
THIS AGREEMENT is made and entered into as of the date set
forth on the signature page hereof by and between XXXXX MART, INC., a Florida
corporation ("Company"), and the Key Employee of the Company whose signature is
set forth on the signature page hereof (the "Key Employee").
W I T N E S S E T H
WHEREAS, the Company has adopted the Xxxxx Mart, Inc. 2001
Omnibus Plan ("Plan"), the terms of which, to the extent not stated herein, are
specifically incorporated by reference in this Agreement;
WHEREAS, the purpose of the Plan is to permit Awards under the
Plan to be granted to certain Key Employees of the Company and its Affiliates
and to further specify the terms and conditions under which such individuals may
receive such Awards;
WHEREAS, the Key Employee is now employed or engaged by the
Company or an Affiliate in a key employee capacity and the Company desires him
or her to remain in such capacity, and to secure or increase his or her
ownership of Shares in order to increase his or her incentive and personal
interest in the success and growth of the Company; and
WHEREAS, defined terms used herein and not otherwise defined
herein shall have the meanings set forth in the Plan.
NOW, THEREFORE, in consideration of the premises and of the
covenants and agreements herein set forth, the parties hereby mutually covenant
and agree as follows:
1. Option Grant. (a) Subject to the terms and conditions
set forth herein, the Company hereby grants to the Key Employee an option (the
"Option") to purchase from the Company all or any part of the aggregate number
of Shares (hereinafter referred to as the "Option Stock") set forth on the
signature page hereof, at the purchase price per Share set forth on the
signature page hereof. The Option may not be exercised prior to the Initial
Exercise Date set forth on the signature page hereof or after the Expiration
Date set forth thereon, except that other than as provided herein, the Option
shall not be exercisable after the termination of the Key Employee's employment
with the Company and all Affiliates. Absence of the Key Employee on leave
approved by a duly elected officer of the Company, other than the Key Employee,
shall not be considered a termination of employment during the period of such
leave. The Option may be exercised in whole or in part (but any exercise shall
be for whole Shares) by notice in writing to the Company. The aggregate purchase
price for the Shares for which the Option is exercised shall be paid to the
Company at the time of exercise in cash, Shares registered in the name of the
Key Employee, or by a combination thereof, all
as provided on the signature page hereof. The approval of the board of directors
of the Company is required in order for Shares held by the Key Employee for
fewer than six months to be used in payment of the exercise price of the Option.
Unless otherwise provided on the signature page hereof, the Option shall not be
an Incentive Stock Option for purposes of Section 422 of the Code. Unless
otherwise provided on the signature page hereof, the Option shall not have the
"reload feature" described in Section 6.1 of the Plan, as of the date of grant.
(b) If the purchase price may be paid wholly or
partly in Shares, any Shares tendered in payment thereof shall be free of all
adverse claims and duly endorsed in blank by the Key Employee or accompanied by
stock powers duly endorsed in blank. Shares tendered shall be valued at Fair
Market Value on the date on which the Option is exercised. As used herein, "Fair
Market Value" means the per Share closing price on the date in question in the
principal market in which the Shares are then traded or, if no sales of Shares
have taken place on such date, the closing price on the most recent date on
which selling prices were quoted; provided, however, that for any Option that is
not an Incentive Stock Option, the Committee in its discretion may elect to
determine Fair Market Value with respect to such Shares, based on the average of
the closing prices, as of the date of determination and a period of up to 20
trading days immediately preceding such date. If such proviso is to be
applicable, the signature page hereof sets forth the number of trading days in
such period.
2. Nontransferability of Option. This Option is not
transferable other than by will or by the laws of descent and distribution. The
Option may be exercised during the life of the Key Employee only by the Key
Employee (or his/her legal representative).
3. Exercise of Option. (a) Except as provided herein, the
Option shall be exercisable only prior to the Expiration Date, and then only as
set forth in the following table:
Cumulative Fraction
-------------------
of Shares Optioned
------------------
Years From Grant Date Which Is Exercisable
--------------------- --------------------
After 3 Years 33%
After 4 Years 66%
After 5 Years 100%
(b) If the Key Employee's employment with the
Company and all Affiliates is terminated because of death or Total Disability
(as such terms are defined below) on or after the Initial Exercise Date, the Key
Employee or, in the case of his death, his Beneficiary (as defined herein) shall
be entitled to exercise the Option until twelve months after the date of
termination until the Expiration Date. If such a termination of employment
occurs prior to the Initial Exercise Date, the Key Employee, or in the case of
his death, his Beneficiary, shall be entitled to exercise the Option to the
extent, if any, as the Committee may determine.
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(c) If the Key Employee's employment with the
Company is terminated on or after the Initial Exercise Date for any reason other
than Cause (as defined below), death or Total Disability, the Key Employee shall
be entitled to exercise the Option, to the extent exercisable pursuant to
paragraph (a), above, until 3 months after such termination of employment. If
such a termination of employment occurs prior to the Initial Exercise Date, the
Key Employee shall be entitled to exercise the Option during such 3-month period
to the extent, if any, as the Committee may determine.
(d) As used herein, "Cause" means theft or
destruction of property of the Company or any Affiliate, disregard of Company
rules or policies, or conduct evidencing willful or wanton disregard of the
interest of the Company. Such determination shall be made by the Committee based
on information presented by the Company and the Key Employee and shall be final
and binding on all parties hereto.
(e) If the Key Employee's employment with the
Company is terminated for Cause, the Key Employee shall have no right to
exercise any portion of any Option not yet exercised as of the date of such
termination for Cause.
4. Beneficiary. (a) The person whose name appears on the
signature page hereof after the caption "Beneficiary" or any successor
designated by the Key Employee in accordance herewith (the person who is the Key
Employee's Beneficiary at the time of his death herein referred to as the
"Beneficiary") shall be entitled to exercise the Option, to the extent it is
exercisable, after the death of the Key Employee. The Key Employee may from time
to time revoke or change his Beneficiary without the consent of any prior
Beneficiary by filing a new designation with the Committee. The last such
designation received by the Committee shall be controlling; provided, however,
that no designation, or change or revocation thereof, shall be effective unless
received by the Committee prior to the Key Employee's death, and in no event
shall any designation be effective as of a date prior to such receipt.
(b) If no such Beneficiary designation is in effect
at the time of a Key Employee's death, or if no designated Beneficiary survives
the Key Employee or if such designation conflicts with law, the Key Employee's
estate shall be entitled to exercise the Option, to the extent it is exercisable
after the death of the Key Employee. If the Committee is in doubt as to the
right of any person to exercise the Option, the Company may refuse to recognize
such exercise, without liability for any interest or dividends on the Option
Stock, until the Committee determines the person entitled to exercise the
Option, or the Company may apply to any court of appropriate jurisdiction and
such application shall be a complete discharge of the liability of the Company
therefor.
5. No Rights As Stockholder. The Key Employee shall have
no rights as a holder of the Option Stock until the issuance of a certificate
for the Option Stock.
6. Tax Withholding. (a) It shall be a condition of the
obligation of the Company to issue Option Stock to the Key Employee or the
Beneficiary, and the Key Employee agrees, that the Key Employee shall pay to the
Company upon its demand, such amount as may be
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requested by the Company for the purpose of satisfying its liability to withhold
federal, state, or local income or other taxes incurred by reason of the
exercise of the Option.
(b) If the Option is not an Incentive Stock Option,
the Key Employee may elect to have the Company withhold that number of Shares of
Option Stock otherwise issuable to the Key Employee upon exercise of the Option
or to deliver to the Company a number of Shares, in each case, having a Fair
Market Value on the Tax Date (as defined below) equal to the minimum amount
required to be withheld as a result of such exercise. The election must be made
in writing and must be delivered to the Company prior to the Tax Date. If the
number of shares so determined shall include a fractional share, the Key
Employee shall deliver cash in lieu of such fractional share. All elections
shall be made in a form approved by the committee and shall be subject to
disapproval, in whole or in part by the Committee. As used herein, Tax Date
means the date on which the Key Employee must include in his gross income for
federal income tax purposes the fair market value of the Option Stock over the
purchase price therefor.
7. Adjustments in Event of Change in Shares. In the event
that the Committee shall determine that any dividend or other distribution
(whether in the form of cash, Shares, other securities, or other property),
recapitalization, stock split, reverse stock split, reorganization, merger,
consolidation, split-up, spin-off, combination, repurchase, or exchange of
securities of the Company, or other similar corporate transaction or event
affects the Shares issuable on exercise of the Option, such that an adjustment
is determined by the Committee to be appropriate in order to prevent dilution or
enlargement of the benefits or potential benefits intended to be made available
under the Plan, then the Committee may, in such manner as it may deem equitable,
adjust the number and type of Shares awarded pursuant to this Agreement, or the
terms, conditions, or restrictions of this Agreement; provided, however, that
with respect to Awards of Incentive Stock Options no such adjustment shall be
authorized to the extent that such authority would cause the Plan to violate
Section 422(b)(1) of the Code or any successor provision thereto; and provided
further, that the number of Shares subject to any Award payable or denominated
in Shares shall always be a whole number.
8. Powers of Company Not Affected. The existence of the
Option shall not affect in any way the right or power of the Company or its
stockholders to make or authorize any combinations, subdivision or
reclassification of the Shares or any reorganization, merger, consolidation,
business combination, exchange of Shares, or other change in the Company's
capital structure or its business, or any issue of bonds, debentures or stock
having rights or preferences equal, superior or affecting the Option Stock or
the rights thereof or dissolution or liquidation of the Company, or any sale or
transfer of all or any part of its assets or business, or any other corporate
act or proceeding, whether of a similar character or otherwise. Nothing in this
Agreement shall confer upon the Key Employee any right to continue in the
employment of the Company or any Affiliate, or interfere with or limit in any
way the right of the Company or any Affiliate to terminate the Key Employee's
employment at any time.
9. Interpretation by Committee. The Key Employee agrees
that any dispute or disagreement which may arise in connection with this
Agreement shall be resolved by the Committee, in its sole discretion, and that
any interpretation by the Committee of the terms of
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this Agreement or the Plan and any determination made by the Committee under
this Agreement or the Plan may be made in the sole discretion of the Committee
and shall be final, binding, and conclusive. Any such determination need not be
uniform and may be made differently among Key Employees awarded Option Stock.
10. Miscellaneous. (a) This Agreement shall be governed
and construed in accordance with the laws of the State of Florida applicable to
contracts made and to be performed therein between residents thereof.
(b) This Agreement may not be amended or modified
except by the written consent of the parties hereto.
(c) The captions of this Agreement are inserted for
convenience of reference only and shall not be taken into account in construing
this Agreement.
(d) Any notice, filing or delivery hereunder or with
respect to Option Stock shall be given to the Key Employee at either his usual
work location or his home address as indicated in the records of the Company,
and shall be given to the Committee or the Company at 0000 Xxxxxxxxxx Xxxxxxxxx,
Xxxxxxxxxxxx, Xxxxxxx 00000, Attention Corporate Secretary. All such notices
shall be given by first class mail, postage prepaid, or by personal delivery.
(e) This Agreement shall be binding upon and inure
to the benefit of the Company and its successors and assigns and shall be
binding upon and inure to the personal benefit of the Key Employee, the
Beneficiary and the personal representative(s) and heirs of the Key Employee.
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IN WITNESS WHEREOF, the Company has caused this instrument to
be executed by its duly authorized officer, and the Key Employee has hereunto
affixed his hand, all on the day and year set forth below.
XXXXX MART, INC.
By:______________________________________
Its:_________________________________
_________________________________________
Key Employee [Signature]
[Print Name]:____________________________
This Option is a Non-Qualified Stock Option
-------------------------------------------
No. of Shares of Option Stock:________________________
Purchase Price Per Share:_____________________________
Grant Date:___________________________________________
Initial Exercise Date:________________________________
Expiration Date:______________________________________
PLEASE PRINT BENEFICIARY INFORMATION
Beneficiary:__________________________________________
Address of Beneficiary:
______________________________________________________
______________________________________________________
Beneficiary Tax Identification No. or Social Security No.:
______________________________________________________
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