EXHIBIT 4.5
XXXXX XXXXXXXXXXX COMPANY
INCENTIVE STOCK OPTION AGREEMENT
THIS AGREEMENT dated _____________ ____ , 19___ (the
"Granting Date"), is made by and between Xxxxx Xxxxxxxxxxx
Company, a Delaware corporation (the "Company"), and
___________________________ (the "Optionee").
WHEREAS, the Company has adopted the 1992 Stock Option
Plan of Xxxxx Xxxxxxxxxxx Company (the "Plan") pursuant to which
the Company may, from time to time, grant options to key
employees to purchase shares of the Company's common stock;
WHEREAS, the Stock Option Committee has determined that
the Optionee is a key employee of the Company or a Subsidiary who
has made or is expected to make a significant contribution to the
Company or a Subsidiary; and
WHEREAS, the Company desires to grant to the Optionee
an incentive stock option (under Section 422 of the Internal
Revenue Code of 1986, as amended) to purchase shares of the
Company's common stock on the terms and conditions hereinafter
set forth;
NOW, THEREFORE, in consideration of the mutual
covenants contained herein and other good and valuable
consideration, the receipt of which is hereby acknowledged, the
parties hereto agree as follows:
1. INCORPORATION OF PLAN. The Plan is attached
hereto as EXHIBIT A and incorporated herein by this reference,
and all of the terms and conditions therein shall be deemed to be
included as part of the terms and conditions of this Agreement.
In the event of a conflict, the terms and conditions of the Plan
shall control. All terms used herein which are defined in the
Plan shall have the meanings given them in the Plan.
2. GRANT OF STOCK OPTION. The Company hereby grants
the Optionee an option (the "Option") to purchase at the times
hereinafter set forth, in one or more exercises, all or any part
of an aggregate of ____________ shares of the Company's common
stock (the "Shares") for an exercise price of $___________ per
share.
3. CONSIDERATION TO THE COMPANY. In consideration of
the granting of this Option by the Company, the Optionee agrees
to render faithful and efficient services to the Company or a
Subsidiary, with such duties and responsibilities as the Company
shall from time to time prescribe. Nothing in this Agreement or
in the Plan shall confer upon the Optionee any right to continue
in the employ of the Company or any Subsidiary or shall interfere
with or restrict in any way the rights of the Company and its
Subsidiaries, which are hereby expressly reserved, to discharge
the Optionee at any time for any reason whatsoever, with or
without cause. In addition, nothing in this Agreement or in the
Plan shall require the Optionee to continue in the employ of the
Company or any Subsidiary.
4. TIMING AND MANNER OF EXERCISE. The Option shall
be and become exercisable as follows: 20% on the day after the
first anniversary of the Granting Date, 40% on the day after the
second anniversary of the Granting Date, 60% on the day after the
third anniversary of the Granting Date, 80% on the day after the
fourth anniversary of the Granting Date, and 100% on the day
after the fifth anniversary of the Granting Date.
Provided, however, that the Option shall be 100%
exercisable upon and after a "Change in Control." A Change in
Control shall be deemed to exist if during any 24-month period,
individuals who at the beginning of such period constituted the
Company's Board of Directors (together with any new directors
whose election by the Company's Board of Directors or whose
nomination for election by the Company's shareholders was
approved by a vote of a majority of the directors who either were
directors at the beginning of such period or whose election or
nomination was previously so approved) cease for any reason to
constitute a majority of the Board of Directors of the Company;
provided, however, that any such change in the composition of the
Board of Directors shall not constitute a Change in Control if it
occurs in connection with any public offering of any shares of
Stock held by Marley Holdings, L.P., a Delaware limited
partnership, and/or Kohlberg Kravis Xxxxxxx & Co., L.P. and/or
any of their affiliates.
No additional portion of the Option shall become
exercisable after the Optionee's Termination of Employment.
The Option shall expire as to all of the Shares ten
(10) years after the Granting Date except the Option (or a
portion thereof) shall terminate earlier as provided in Section
4.3(a) of the Plan.
The Optionee may exercise the Option for all or any
part of the Shares subject to each installment listed above on or
after the respective exercise date listed above by delivering to
the Company a written notice in accordance with Section 4.3(d) of
the Plan.
5. NOTICES. Any notice to be given under the terms
of this Agreement to the Company shall be addressed to the
Secretary of the Company at Xxxxx Xxxxxxxxxxx Company, 0000
Xxxxxxx Xxxxxxx Xxxxxxx, Xxxxxxx Xxxxx, Xxxxxx 00000, and any
notice to be given to the Optionee shall be addressed to him at
the address given beneath his signature hereto. By a notice
given pursuant to this Section 5, either party may hereafter
designate a different address for notices to be given to him.
Any notice which is required to be given to the Optionee shall,
if the Optionee is then deceased, be given to the Optionee's
personal representative if such representative has previously
informed the Company of his status and address by written notice
under this Section 5. Any notice shall be deemed duly given when
enclosed in a properly sealed envelope or wrapper addressed as
aforesaid, deposited (with postage prepaid) in a post office or
branch post office regularly maintained by the United States
Postal Service.
6. NOTIFICATION OF DISPOSITION. The Optionee shall
give prompt notice to the Company of any disposition or other
transfer of any shares of stock acquired under this Agreement if
such disposition or transfer is made (a) within two (2) years
from the Granting Date of the Option with respect to such shares
or (b) within one (1) year after the transfer of such shares to
him. Such notice shall specify the date of such disposition or
other transfer and the amount realized, in cash, other property,
assumption of indebtedness or other consideration, by the
Optionee in such disposition or other transfer.
7. TITLES. Titles are provided herein for
convenience only and are not to serve as a basis for
interpretation or construction of this Agreement.
8. AMENDMENT. This Agreement may be amended only by
a writing executed by the parties hereto which specifically
states that it is amending this Agreement.
9. GOVERNING LAW. The laws of the State of Kansas
shall govern the interpretation, validity and performance of the
terms of this Agreement regardless of the law that might be
applied under principles of conflicts of laws.
10. NON-ASSIGNABILITY. Except as otherwise provided
herein or in the Plan, the Option and the rights and privileges
conferred hereby shall not be transferred, assigned, pledged or
hypothecated in any way (whether by operation of law or
otherwise) and shall not be subject to execution, attachment, or
similar process. Upon any attempt to transfer, assign, pledge,
hypothecate or otherwise dispose of the Option, or of any right
or privilege conferred hereby, or upon the levy of any attachment
or similar process upon the rights and privileges conferred
hereby, contrary to the provisions hereby, this Option and the
rights and privileges conferred hereby shall immediately become
null and void.
11. BINDING EFFECT. Except as expressly stated herein
to the contrary, the Agreement shall be binding upon and inure to
the benefit of the respective heirs, legal representatives,
successors and assigns of the parties hereto.
IN WITNESS WHEREOF, this Agreement has been executed
and delivered by the parties hereto.
THE COMPANY: XXXXX XXXXXXXXXXX COMPANY
By:
Name:
Its:
THE OPTIONEE:
Name:
Address of the Optionee:
