EXHIBIT 10.2
X. XXXXXXXXX'X CORPORATION
FORM OF NON-QUALIFIED STOCK OPTION AGREEMENT (DIRECTORS)
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (this "Agreement") is made
and entered into as of this _____ day of ______, 200__ (the "Grant Date"), by
and between X. Xxxxxxxxx'x Corporation, a Tennessee corporation (together with
its Subsidiaries and Affiliates, the "Company"), and __________________ (the
"Optionee"). Capitalized terms not otherwise defined herein shall have the
meaning ascribed to such terms in the X. Xxxxxxxxx'x Corporation 2004 Equity
Incentive Plan (the "Plan").
WHEREAS, the Company has adopted the Plan, which permits the issuance
of stock options for the purchase of shares of the common stock, par value $.05
per share, of the Company (the "Shares"); and
WHEREAS, the Company desires to afford the Optionee an opportunity to
purchase Shares as hereinafter provided in accordance with the provisions of the
Plan;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, agree as follows:
1. Grant of Option.
(a) The Company grants as of the date of this Agreement the right
and option (the "Option") to purchase __________ Shares, in whole or in part
(the "Option Stock"), at an exercise price of $_________ per Share, on the terms
and conditions set forth in this Agreement and subject to all provisions of the
Plan. The Optionee, holder or beneficiary of the Option shall not have any of
the rights of a shareholder with respect to the Option Stock until such person
has become a holder of such Shares by the due exercise of the Option and payment
of the Option Payment (as defined in Section 3 below) in accordance with this
Agreement.
(b) The Option shall be a non-qualified stock option. In order to
provide the Company with the opportunity to claim the benefit of any income tax
deduction which may be available to it upon the exercise of the Option, and in
order to comply with all applicable federal or state tax laws or regulations,
the Company may take such action as it deems appropriate to insure that, if
necessary, all applicable federal, state or other taxes are withheld or
collected from the Optionee.
2. Exercise of Option. The Optionee may exercise the Option beginning
on the first anniversary of the date of this Agreement provided that Optionee
has been a director of the Company at all times from the Grant Date to such
first anniversary (such one-year period being referred to as the "Vesting
Period"). Notwithstanding the above, each outstanding Option shall vest and
become exercisable upon the occurrence of a Change in Control and shall be
governed by the provisions of Section 13 of the Plan.
3. Manner of Exercise. The Option may be exercised in whole or in part
at any time within the period permitted hereunder for the exercise of the
Option, with respect to whole Shares only, by serving written notice of intent
to exercise the Option delivered to the Company at its principal office (or to
the Company's designated agent), stating the number of Shares to be purchased,
the person or persons in whose name the Shares are to be registered and each
such person's address and social security number. Such notice shall not be
effective unless accompanied by payment in full of the Option Price for the
number of Shares with respect to which the Option is then being exercised (the
"Option Payment") and cash equal to the required withholding taxes as set forth
by Internal Revenue Service and applicable State tax guidelines for the
employer's minimum statutory withholding. The Option Payment shall be made in
cash or cash equivalents or in whole Shares that have been held by the Optionee
for at least six months prior to the date of exercise valued at the Shares' Fair
Market Value on the date of exercise (or next succeeding trading date if the
date of exercise is not a trading date), together with any applicable
withholding taxes, or by a combination of such cash (or cash equivalents) and
Shares. The Optionee shall not be entitled to tender Shares pursuant to
successive, substantially simultaneous exercises of the Option or any other
stock option of the Company. Subject to applicable securities laws, the Optionee
may also exercise the Option by delivering a notice of exercise of the Option
and by simultaneously selling the Shares of Option Stock thereby acquired
pursuant to a brokerage or similar agreement approved in advance by proper
officers of the Company, using the proceeds of such sale as payment of the
Option Payment, together with any applicable withholding taxes. For purposes of
this Agreement, "Fair Market Value" means the closing sales price of the Shares
on the American Stock Exchange.
4. Termination of Option. The Option will expire ten years from the
date of grant of the Option (the "Term") with respect to any then unexercised
portion thereof, unless terminated earlier as set forth below:
(a) Termination by Death. If the Optionee's position as a director
of the Company terminates by reason of death, or if the Optionee dies within one
year after termination of Optionee's position as a director for any reason other
than Cause, this Option may thereafter be exercised by the legal representative
of the estate or by the legatee of the Optionee under the will of the Optionee,
to the extent that the Optionee was entitled to exercise it at the date of
Optionee's death, for a period of one year from the date of death or until the
expiration of the Term of the Option, whichever period is the shorter.
(b) Termination by Reason of Disability. If the Optionee's position
as a director of the Company terminates by reason of Disability, this Option may
thereafter be exercised by the Optionee or personal representative or guardian
of the Optionee, as applicable, to the extent that the Optionee was entitled to
exercise it at the date of Optionee's Disability for a period of three years
from the date of such termination of employment or until the expiration of the
Term of the Option, whichever period is the shorter.
(c) Termination for Cause. If the Optionee's position as a director
of the Company is terminated for Cause, this Option shall terminate immediately
and become void and of no effect.
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(d) Other Termination. If the Optionee's position as a director of
the Company is voluntarily terminated or is involuntarily terminated for any
reason other than for Cause, death or Disability, this Option may be exercised,
to the extent the Option was exercisable at the time of such termination, by the
Optionee for a period of one year from the date of such termination or the
expiration of the Term of the Option, whichever period is the shorter.
5. Adjustment to Option Stock. The Board of Directors may make
adjustments in the terms and conditions of, and the criteria included in, this
Option in recognition of unusual or nonrecurring events (including, without
limitation, the events described in Section 4.2 of the Plan) affecting the
Company or the financial statements of the Company or of changes in applicable
laws, regulations, or accounting principles, whenever the Committee determines
that such adjustments are appropriate in order to prevent dilution or
enlargement of the benefits or potential benefits intended to be made available
under the Plan.
6. Amendments to Option. Subject to the restrictions contained in
Sections 6.2 and 14 of the Plan, the Board of Directors may waive any conditions
or rights under, amend any terms of, or alter, suspend, discontinue, cancel or
terminate, the Option, prospectively or retroactively; provided that any such
waiver, amendment, alteration, suspension, discontinuance, cancellation or
termination that would adversely affect the rights of the Optionee or any holder
or beneficiary of the Option shall not to that extent be effective without the
consent of the Optionee, holder or beneficiary affected.
7. Limited Transferability. During the Optionee's lifetime this Option
can be exercised only by the Optionee, except as otherwise provided in Section
4(a) above or in this Section 7. This Option may not be assigned, alienated,
pledged, attached, sold or otherwise transferred or encumbered by Optionee other
than (i) to a Permitted Transferee or (ii) by will or the laws of descent and
distribution. Any attempt to otherwise transfer this Option shall be void. No
transfer of this Option by the Optionee by will or by laws of descent and
distribution shall be effective to bind the Company unless the Company shall
have been furnished with written notice thereof and an authenticated copy of the
will and/or such other evidence as the Board of Directors may deem necessary or
appropriate to establish the validity of the transfer. Any transfer of this
Option by the Optionee to a Permitted Transferee must be for no consideration
and, after the transfer, the Permitted Transferee shall have the sole
responsibility for determining whether and when to exercise the Option. A
Permitted Transferee may not transfer any such Option other than by will or the
laws of descent and distribution. For purposes of this Agreement, "Permitted
Transferee" means the Optionee's Immediate Family, a Permitted Trust or a
partnership of which the only partners are members of the Optionee's Immediate
Family. For purposes of this Agreement, "Immediate Family" means the Optionee's
children and grandchildren, including adopted children and grandchildren,
stepchildren, parents, stepparents, grandparents, spouse, siblings (including
half brothers and sisters), father-in-law, mother-in-law, daughters-in-law and
sons-in-law. For purposes of this Agreement, a "Permitted Trust" means a trust
solely for the benefit of the Optionee or Optionee's Immediate Family.
8. Reservation of Shares. At all times during the term of this Option,
the Company shall use its best efforts to reserve and keep available such number
of Shares as shall be sufficient to satisfy the requirements of this Agreement.
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9. Plan Governs. The Optionee hereby acknowledges receipt of a copy of
the Plan and agrees to be bound by all the terms and provisions thereof. The
terms of this Agreement are governed by the terms of the Plan, and in the case
of any inconsistency between the terms of this Agreement and the terms of the
Plan, the terms of the Plan shall govern.
10. Severability. If any provision of this Agreement is, or becomes, or
is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to
any Person or the Award, or would disqualify the Plan or Award under any laws
deemed applicable by the Board of Directors, such provision shall be construed
or deemed amended to conform to the applicable laws, or if it cannot be
construed or deemed amended without, in the determination of the Board of
Directors, materially altering the intent of the Plan or the Award, such
provision shall be stricken as to such jurisdiction, Person or Award, and the
remainder of the Plan and Award shall remain in full force and effect.
11. Notices. All notices required to be given under this Option shall
be deemed to be received if delivered or mailed as provided for herein to the
parties at the following addresses, or to such other address as either party may
provide in writing from time to time.
To the Company: X. Xxxxxxxxx'x Corporation
Suite 260
0000 Xxxx Xxx Xxxxxx
Xxxxxxxxx XX 00000
Attn: Chief Financial Officer
To the Optionee: The address then maintained with respect to
the Optionee in the Company's records.
12. Governing Law. The validity, construction and effect of this
Agreement shall be determined in accordance with the laws of the State of
Tennessee without giving effect to conflicts of laws principles.
13. Resolution of Disputes. Any dispute or disagreement which may arise
under, or as a result of, or in any way related to, the interpretation,
construction or application of this Agreement shall be determined by the Board
of Directors. Any determination made hereunder shall be final, binding and
conclusive on the Optionee and the Company for all purposes.
14. Successors in Interest. This Agreement shall inure to the benefit
of and be binding upon any successor to the Company. This Agreement shall inure
to the benefit of the Optionee's legal representative and assignees. All
obligations imposed upon the Optionee and all rights granted to the Company
under this Agreement shall be binding upon the Optionee's heirs, executors,
administrators, successors and assignees.
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IN WITNESS WHEREOF, the parties have caused this Non-Qualified Stock
Option Agreement to be duly executed effective as of the day and year first
above written.
X. XXXXXXXXX'X CORPORATION
By:
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Optionee:
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Please Print
Optionee:
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Signature
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