Incentive Stock Option Agreement
(Officer Participants in Executive Retirement Plan)
THIS STOCK OPTION AWARD AGREEMENT (the "Agreement") is made and entered into
this <> (the "Grant Date") between Xxxxxxxx'x International, Inc., a
Delaware corporation (the "Corporation"), and <> (the "Holder") in
connection with the grant of an Incentive Stock Option under the
XXXXXXXX'X INTERNATIONAL, INC. AMENDED AND RESTATED 1995 EQUITY
INCENTIVE PLAN (the "Plan").
WITNESSETH:
WHEREAS, the Holder is an employee of the Corporation or one of its Affiliates
and the Corporation desires to encourage him to own Shares and to give him added
incentive to advance the interests of the Corporation through the Plan and
desires to grant the Holder an Incentive Stock Option to purchase Shares under
terms and conditions established by the Board of Directors.
NOW, THEREFORE, in consideration of these premises, the parties agree that the
following, along with the terms and conditions set forth in the Plan, shall
constitute the Agreement between the Corporation and the Holder:
1. Definitions. Capitalized terms used in this Agreement but not
defined herein shall have the meaning set forth in the Plan. In
addition, the following terms shall have the meanings specified
below:
1.1 "Retirement" shall mean the satisfaction of all conditions
necessary for the Holder to become entitled to receive
benefits under the Corporation's Executive Retirement Plan.
1.2 "Securities Act" shall mean the Securities Act of 1933, as
amended.
2. Grant of Incentive Stock Option and Termination. Subject to the
terms and conditions set forth herein and in the Plan, the
Corporation grants to the Holder an Incentive Stock Option to
purchase from the Corporation during the period ending <>
years from the Grant Date (the "Expiration Date")
<> Shares at a price of <> per
share, subject to adjustment as provided in the Plan.
3. Exercise. During the Holder's lifetime, only he may exercise this
Incentive Stock Option, as the case may be. This Incentive Stock
Option shall vest and become exercisable in full on or after
<> and, except as specifically provided otherwise
herein or in the Plan, not before such date.
4. Notice of Exercise. This Incentive Stock Option may be exercised
in whole or in part, from time to time, in accordance with
Paragraphs 2 and 3, by written notice to the Corporation at the
address provided in Paragraph 17, which notice shall:
(a) specify the number of Shares to be purchased and the
Exercise Price to be paid therefor;
(b) if the person exercising this Incentive Stock Option is not
the Holder himself, contain or be accompanied by evidence
satisfactory to the Committee of such person's right to
exercise this Incentive Stock Option; and
(c) be accompanied by payment in full of the Exercise Price in
a form permitted by the Committee.
5. Investment Letter. The Holder agrees that the Shares acquired on
exercise of this Incentive Stock Option shall be acquired for his
own account for investment only and not with a view to, or for
resale in connection with, any distribution or public offering
thereof within the meaning of the Securities Act, or other
applicable securities laws. If the Board of Directors or Committee
so determines, any stock certificates issued upon exercise of this
Incentive Stock Option shall bear a legend to the effect that the
shares have been so acquired. The Corporation may, but in no event
shall be required to, bear any expenses of complying with the
Securities Act other applicable securities laws or the rules and
regulations of any national securities exchange or other
regulatory authority in connection with the registration,
qualification, or transfer, as the case may be, of this Incentive
Stock Option or any Shares acquired upon the exercise thereof. The
foregoing restrictions on the transfer of the Shares shall be
inoperative if (a) the Corporation previously shall have been
furnished with an opinion of counsel, satisfactory to it, to the
effect that such transfer will not involve any violation of the
Securities Act or other applicable laws or (b) the Shares shall
have been duly registered in compliance with the Securities Act
and other applicable securities laws. If this Incentive Stock
Option is so registered under the Securities Act, the Holder
agrees that he will not make a public offering of the said shares
except on a national securities exchange on which the Shares of
the Corporation are then listed.
6. Transfer of Option. The Incentive Stock Option shall not be
transferable except by will or by the laws of descent and
distribution. No assignment or transfer of this Incentive Stock
Option, whether voluntary or involuntary, by operation of law or
descent or distribution, shall vest in the assignee or transferee
any interest or right whatsoever in this Incentive Stock Option.
7. Issue of Shares. The Corporation shall not be required to issue or
transfer any certificates for Shares purchased upon exercise of
this Incentive Stock Option until all applicable requirements of
law have been complied with and such shares shall have been duly
listed on any securities exchange on which the Shares may then be
listed.
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8. No Effect on Capital Structure. This Incentive Stock Option shall
not affect the right of the Corporation or any Affiliate thereof
to reclassify, recapitalize or otherwise change its capital or
debt structure or to merge, consolidate, convey any or all of its
assets, dissolve, liquidate, windup, or otherwise reorganize.
9. Expiration of Option. This Incentive Stock Option shall expire on
the Expiration Date. In the event of a Termination of Service of
the Holder prior to the expiration of this Incentive Stock Option,
the following rules shall apply:
(a) Termination of Employment - Other than Disability, Death or
Retirement. If there is a Termination of Service of the
Holder for a reason other than the Holder's death,
Disability or Retirement, the portion of this Incentive
Stock Option, if any, that remains unexercised shall
terminate and cease to be exercisable three (3) months
after the date of such Termination of Service and that
portion, if any, that pursuant to this Agreement is not yet
exercisable on the date of such Termination of Service,
shall terminate and cease to be exercisable as of such
date.
(b) Termination of Employment - Disability. If there is a
Termination of Service of the Holder by reason of
Disability, this Incentive Stock Option shall immediately
vest in full, and the Holder shall have the right for one
(1) year after the date of Termination of Service to
exercise this Incentive Stock Option, and thereafter, this
Incentive Stock Option shall terminate and cease to be
exercisable.
(c) Termination of Employment - Death. If there is a
Termination of Service of the Holder by reason of death,
this Incentive Stock Option shall immediately vest in full,
and shall be exercisable by the Holder's legal
representatives, legatees, or distributes for three (3)
years following the date of the Termination of Service, and
thereafter this Incentive Stock Option shall terminate and
cease to be exercisable.
(d) Termination of Employment - Retirement. If there is a
Termination of Service of the Holder by reason of
Retirement, the vesting and exercisability of this
Incentive Stock Option shall be determined under the
Xxxxxxxx'x International, Inc. Executive Retirement Plan;
provided that exercise may not occur after the Expiration
Date.
10. Change in Control. The effect of a Change in Control shall be as
set forth in either the Change in Control and Noncompete Agreement
entered into between the Holder and the Corporation, or, in the
event Holder has not entered into a Change in Control and
Noncompete Agreement, the Holder's employment agreement with the
Corporation. In the event the Holder has not entered into either a
Change in Control and Noncompete Agreement or an employment
agreement with the Corporation (or Holder has entered into an
agreement but such agreement does not address the effect of a
Change in Control on this Agreement), the effect of a Change in
Control shall be as set forth in the Plan.
11. Committee Authority. Any questions concerning the interpretation
of this Agreement or the Plan, and any controversy which arises
under this Agreement or the Plan shall be settled by the Committee
in its sole discretion.
12. Right of Set-off. By accepting this agreement, Holder consents to
a deduction from any amounts the Corporation owes Holder from time
to time (including amounts owed to Holder as wages or other
compensation, fringe benefits, or vacation pay), to the extent of
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the amounts owed by Holder to the Corporation hereunder. Whether
or not the Corporation elects to make any set-off in whole or in
part, if the Corporation does not recover by means of set-off the
full amount owed it by Holder, calculated as set forth above,
Holder agrees to pay immediately in cash the unpaid balance to the
Corporation.
13. Committee Discretion. Holder may be released from its obligations
under paragraph 12 above only if the Committee determines in its
sole discretion that such action is in the best interests of the
Corporation.
14. Notice of Disqualifying Disposition. In order to enable the
Corporation to avail itself of any income tax deduction to which
it may be entitled, the Holder shall notify the Corporation of his
intent to dispose of any of the Shares purchased pursuant to this
Incentive Stock Option within two (2) years from the date of the
grant of the Incentive Stock Option and one (1) year from the date
of exercise of the Incentive Stock Option. Promptly after such
disposition the Holder shall notify the Corporation of the number
of Shares disposed of, the dates of acquisition and disposition of
such shares, and the consideration, if any, received on such
disposition. If, in connection with any such disposition, the
Corporation becomes liable for withholding taxes and has no
amounts owing the Holder with which to discharge its withholding
obligation, the Holder shall provide the Corporation with the
amount needed to discharge the Corporation's withholding
obligation and shall indemnify the Corporation against any
penalties it may incur through its inability to apply amounts
owing the Holder in discharge of its withholding obligations.
Nothing in this Paragraph 14 shall give the Holder any right to
dispose of the Shares in a manner that is inconsistent with any
Paragraph of this Agreement, the Plan, or any stock transfer
restriction agreement entered into by the Holder.
15. Incentive Option Qualification. This Incentive Stock Option is
intended to qualify as an "incentive stock option" within the
meaning of Section 422A of the Code, and shall be so construed;
provided, however, that nothing in this Agreement shall be
interpreted as a representation, guarantee or other undertaking on
the part of the Corporation that this Incentive Stock Option is or
will be determined to be an "incentive stock option" within such
section or any other section of the Code. Any acceleration,
exercise more than three (3) months after termination of
employment, or extension of exercisability pursuant to this
Agreement, the Plan, or pursuant to the Change in Control and
Noncompete Agreement between the Holder and the Corporation may
result in this Incentive Stock Option ceasing to qualify as any
incentive stock option, or may result in the tax benefits of such
status not being available, as of the date such acceleration or
extension takes effect, or as of the date of exercise more than
three (3) months after termination of employment.
16. Plan Controls. 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 control.
17. Notice. Whenever any notice is required or permitted hereunder,
such notice must be in writing and personally delivered or sent by
mail. Any notice required or permitted to be delivered hereunder
shall be deemed to be delivered on the date which it was
personally delivered, or, whether actually received or not, on the
third business day after it is deposited in the United States
mail, certified or registered, postage prepaid, addressed to the
person who is to receive it at the address which such person has
theretofore specified by written notice delivered in accordance
herewith. The Corporation or Holder may change, at any time and
from time to time, by written notice to the other, the address
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previously specified for receiving notices. Until changed in
accordance herewith, the Corporation and the Holder specify their
respective addresses as set forth below:
Corporation: XXXXXXXX'X INTERNATIONAL, INC.
0000 X. 000XX XXXXXX
XXXXXXXX XXXX, XX 00000
Holder: <>
0000 X. 000XX XXXXXX
XXXXXXXX XXXX, XX 00000
18. Information Confidential. As partial consideration for the
granting of this Incentive Stock Option, the Holder agrees that he
will keep confidential all information and knowledge that he has
relating to the manner and amount of his participation in the
Plan, provided, however, that such information may be disclosed as
required by law and may be given in confidence to the Holder's
spouse, tax and financial advisors, or to a financial institution
of the extent that such information is necessary to secure a loan.
19. Governing Law. Where applicable, the provisions of this Agreement
shall be governed by the contract law of the State of Kansas.
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IN WITNESS WHEREOF, the Corporation has caused this Agreement to be
executed and the Holder has hereunto set his hand on the day and year first
above written.
XXXXXXXX'X INTERNATIONAL, INC.
By:
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Name: Xxxxx X. Xxxx
Title: Chairman & Chief Executive Officer
Holder
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Name: <>
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