Exhibit 10.2
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1996 XXXXXXXX CORPORATION
STOCK INCENTIVE PLAN AGREEMENT
NONQUALIFIED
STOCK OPTION AWARD
You have been selected to be a Participant in the 1996 Xxxxxxxx
Corporation Stock Incentive Plan (the "Plan"), as specified below:
OPTIONEE: Xxxxxxx X. Xxxx
DATE OF GRANT: January 2, 1997
DATE OF EXPIRATION: January 1, 2007
NUMBER OF SHARES COVERED BY THIS AWARD: 58,300
OPTION PRICE: $65.078
THIS DOCUMENT CONSTITUTES PART OF THE PROSPECTUS COVERING SECURITIES THAT HAVE
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933.
THIS AGREEMENT, effective as of the Date of Grant set forth above, is
between Xxxxxxxx Corporation, an Iowa corporation (the "Company") and the
Optionee named above pursuant to the provisions of the Plan. The parties
hereto agree as follows:
1. Grant of Stock Option. The Company hereby grants to Optionee the
Option to purchase the number of shares of Common Stock of the Company, $1.00
par value ("Common Stock") set forth above at the stated Option Price, which is
125% of the Fair Market Value on the Date of Grant, subject to the terms and
conditions of the Plan and this Agreement.
2. Exercise of Stock Option. As long as the vesting requirements
provided herein are met and the Option has not otherwise terminated or expired,
the Optionee may exercise in whole or in part this Option at any time six
months after the Date of Grant. All Options shall be vested and exercisable on
and after January 2, 2002.
3. Procedure for Exercise of Options. This Option may be exercised by
giving written notice to the Company at its executive offices, addressed to the
attention of its Secretary. Such notice (a) shall be signed by the Optionee,
his legal representative or a permitted transferee under this Agreement; (b)
shall specify the number of full shares then elected to be purchased with
respect to the Option; (c) unless a Registration Statement under the Securities
Act of 1933 is in effect with respect to the shares to be purchased, shall
contain a representation of Optionee that the shares of Common Stock are being
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acquired by him or her for investment and with no present intention of selling
or transferring them, and that he or she will not sell or otherwise transfer
the shares except in compliance with all applicable securities laws and
requirements of any stock exchange upon which the shares of Common Stock may
then be listed; (d) shall be accompanied by payment in full of the Option Price
of the shares to be purchased; and (e) Optionee's copy of this Agreement.
The Option Price upon exercise of this Option shall be payable to the
Company in full either (a) in cash or its equivalent (acceptable cash
equivalents shall be determined at the sole discretion of the Committee); (b)
by tendering previously acquired Shares having an aggregate Fair Market Value
at the time of exercise equal to the total price of the shares for which the
Option is being exercised; (c) by a combination of (a) and (b); (d) by delivery
of a properly executed exercise notice together with irrevocable instructions
to a broker to promptly deliver to the Company the amount of sale proceeds from
the option shares or loan proceeds to pay the exercise price and withholding
taxes due to Company; or (e) such other methods of payment as the Committee at
its discretion deems appropriate.
As promptly as practicable after receipt of such notice and payment, the
Company shall cause to be issued and delivered to the Optionee, his or her
legal representative or permitted transferee under this Agreement, as the case
may be, certificates for the shares so purchased, which may, if appropriate, be
endorsed with appropriate restrictive legends as determined by the Committee.
The Company shall maintain a record of all information pertaining to Optionee's
rights under this Agreement, including the number of shares for which this
Option is exercisable. If the Option shall have been exercised in full, this
Agreement shall be returned to the Company and canceled.
4. Termination of Employment by Death. If, without having fully
exercised this Option, Optionee's employment with the Company is terminated by
reason of death, any outstanding Options granted to Optionee that are not
exercisable at the date of termination shall become fully exercisable, except
for Options granted within six (6) months prior to the date of death, which
Options shall become fully exercisable on the next business day after the sixth
month anniversary of the Date of Grant. Optionee's beneficiary (or such
persons that have acquired Optionee's rights under the Option by will or by the
laws of descent and distribution) shall have the same right to exercise this
Option as Optionee had during his or her lifetime, for a period ending on the
Date of Expiration set forth above.
5. Termination of Employment by Disability. If, without having fully
exercised this Option, Optionee's employment with the Company is terminated by
reason of Disability (as determined pursuant to the November 11, 1996,
Employment Agreement by and between Xxxx and Company, and any successor
employment agreement (the "Employment Agreement")), any outstanding Options
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granted to Optionee that are not exercisable at the date of termination shall
become fully exercisable, except for Options granted within six (6) months
prior to the date of termination, which Options shall become fully exercisable
on the next business day after the sixth month anniversary of the Date of
Grant. Optionee shall have the same right to exercise this Option as Optionee
had during his employment for a period ending on the Date of Expiration set
forth above.
6. Termination of Employment by Retirement. If Optionee's employment
with the Company is terminated by reason of Retirement (as defined under the
then established rules of the Company's tax-qualified retirement plans), any
outstanding options granted to Optionee that are not exercisable at the date of
termination shall be forfeited by Optionee and canceled by the Company. If,
without having fully exercised this Option, Optionee's employment is terminated
by reason of Retirement, Optionee shall have the same right to exercise options
that are exercisable on the date of the termination of employment as Optionee
had during his or her employment for a period ending on the Date of Expiration
set forth above.
7. Termination of Employment Voluntarily by Xxxx or for Due Cause. If,
without having fully exercised this Option, Optionee's employment with the
Company is terminated by Company for "Due Cause" as defined under Section 9.3
of the Employment Agreement or by Optionee as "Employee Voluntary" as defined
under Section 9.5 of the Employment Agreement, any outstanding options granted
to Optionee under this Option that are not exercisable at the date of
termination shall be forfeited by Optionee and canceled by the Company.
Further, Optionee's rights under this Option shall terminate as of the date of
the termination of employment, provided, however, that there shall be an
exercise period for options that are exercisable at the date of employment
termination of up to 30 days after the date of such termination, but such
extension period shall not continue beyond the expiration of the term of this
Option.
8. Termination of Employment for Other Reasons. If, without having fully
exercised this Option, Optionee's employment with the Company is terminated by
Company "At Will" as defined under Section 9.4 of the Employment Agreement, or
by Company for other reasons that are treated under the Employment Agreement in
the same manner as being "At Will," including, without limitation, failure to
renew as discussed under Section 9.8 of the Employment Agreement, or by
Optionee for failure by the Company to elect him to the office of Chairman of
the Company's Board of Directors effective on or about January 1, 1998, under
Section 9.6 of the Employment Agreement or by Optionee by reason of Optionee
not being re-elected to serve as Chief Executive Officer of the Company, a
Director of the Company or as a member of the Executive Committee of the
Company's Board of Directors under Section 9.7 of the Employment Agreement, any
outstanding Options granted to Optionee that are not exercisable at the date of
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termination shall become fully exercisable, except for Options granted within
six (6) months prior to the date of termination, which Options shall become
fully exercisable on the next business day after the sixth month anniversary of
the Date of Grant. Optionee shall have the same right to exercise this Option
as Optionee had during his employment for a period ending on the Date of
Expiration.
9. Restrictions on Transfer. This Option may not be sold, transferred,
pledged, assigned, or otherwise alienated or hypothecated, other than by will
or by the laws of descent and distribution. Notwithstanding the foregoing,
Optionee may transfer this Option, in whole or in part, to members of
Optionee's immediate family or trusts or family partnerships for the benefit of
such persons, provided, that Optionee receive the advance written permission of
the Company to make such a transfer and to further notify the Company upon the
completion of the transfer. Further, this Option shall be exercisable during
Optionee's lifetime only by Optionee, Optionee's legal representative or
permitted transferee, as provided above.
10. Adjustments in Authorized Shares. If the Company shall at any time
change the number of issued shares of Common Stock without new consideration to
the Company (such as by stock dividends or stock splits), the number of shares
to be delivered under this Option and the price of the shares subject to this
Option shall be equitably adjusted so that the aggregate consideration payable
to the Company, if any, shall not be changed. In the case of any merger,
consolidation or combination of the Company with or into another corporation,
other than a merger, consolidation or combination in which the Company is the
continuing corporation and which does not result in the outstanding Common
Stock of the Company being converted into or exchanged for different
securities, cash or other property, or any combination thereof (an
"Acquisition"), the Option shall have the right to receive upon exercise of
this Option the Acquisition Consideration receivable upon such Acquisition by a
holder of the number of shares of Common Stock which might have been obtained
upon exercise of the Option, as the case may be, immediately prior to such
Acquisition.
11. Change in Control. Immediately upon a change in control of the
Company all outstanding Options shall become exercisable. For purposes hereof,
a change in control of the Company shall be deemed to have occurred on the
first to occur of any of the following dates:
(a) on the date the Board of Directors of the Company votes to
approve and recommends a stockholder vote to approve:
(i) any consolidation or merger of the Company in which
the Company is not the continuing or surviving corporation or
pursuant to which shares of the Common Stock and Class B Stock
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would be converted into cash, securities or other property,
other than any consolidation or merger of the Company in which
the holders of the Common Stock and Class B Stock immediately
prior to the consolidation or merger have at least a majority
of the ownership in and voting power of the surviving
corporation immediately after the consolidation or merger; or
(ii) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company; or
(iii) any plan or proposal for the liquidation or
dissolution of the Company; or
(b) on the date any person (as such term is used in Section
13(d) of the Securities Exchange Act of 1934, hereinafter the "1934
Act"), other than the Company's Savings and Investment Plan or
similar successor plan, shall become the beneficial owner (within the
meaning of Rule 13d-3 under the 0000 Xxx) of thirty percent (30%) or
more of the outstanding voting power of the Company except as a
result of actions beyond the control of such person, including,
without limitation, as a result of a shift in voting power of the
Company as a result of the conversion by other persons of their Class
B Stock into Common Stock; or
(c) on the date, during any period of twenty-four (24)
consecutive months on which individuals who at the beginning of such
period constitute the entire Board of Directors of the Company shall
cease for any reason to constitute a majority thereof unless the
election of each new director comprising the majority was approved by
a vote of at least a 2/3 majority of the Directors still in office
who were Directors at the beginning of the period.
Notwithstanding anything to the contrary contained herein, no change in control
shall be deemed to have occurred for the purpose of the Plan and this Agreement
by virtue of any combination or agreement among shareholders of the Company who
are descendants of E. T. Xxxxxxxx, the founder of the Company, or trusts for
the benefit of such persons.
12. Rights as a Stockholder. Optionee shall have no rights as a
stockholder of the Company with respect to the shares of Common Stock subject
to this Agreement until such time as the purchase price has been paid and the
shares have been issued and delivered to him or her.
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13. Fair Market Value. For the purposes of this Agreement, Fair Market
Value shall mean the average of the high and low market prices at which a share
of the Company common stock shall have traded on the valuation date or on the
next preceding trading date if the valuation date is not a trading day as
reported in the Midwest edition of The Wall Street Journal.
14. Continuation of Employment. This Agreement shall not confer upon
Optionee any right to continuation of employment by the Company, nor shall this
Agreement interfere in any way with the Company's right to terminate his or her
employment at any time.
15. Miscellaneous.
(a) This Agreement and the rights of Optionee hereunder are subject
to all the terms and conditions (including Shareholder approval) of the
Plan, as the same may be amended from time to time, as well as to such
rules and regulations as the Committee may adopt for administration of the
Plan. The Committee shall have the right to impose such restrictions on
any shares acquired pursuant to the exercise of this Option, as it may
deem advisable, including, without limitation, restrictions under
applicable Federal securities laws, under the requirements of any stock
exchange or market upon which such shares are then listed and/or traded,
and under any blue sky or state securities laws applicable to such shares.
It is expressly understood that the Committee is authorized to
administer, construe, and make all determinations necessary or appropriate
to the administration of the Plan and this Agreement, all of which shall
be binding upon Optionee. Any inconsistency between this Agreement and
the Plan shall be resolved in favor of the Plan. All terms used herein
shall have the same meaning as in the Plan document.
(b) With the approval of the Board, the Committee may terminate,
amend, or modify the Plan; provided, however, that no such termination,
amendment, or modification of the Plan may in any way adversely affect
Optionee's rights under this Agreement.
(c) The Company shall have the authority to deduct or withhold, or
require Optionee to remit to the Company, an amount sufficient to satisfy
Federal, state, and local taxes (including Optionee's FICA obligation)
required by law to be withheld with respect to any exercise of Optionee's
rights under this Agreement without Optionee's written consent.
Optionee may elect, subject to the approval of the Committee, to
satisfy the withholding requirement, in whole or in part, with respect to
a Nonqualified Stock Option, by having the Company withhold shares of
Common Stock having an aggregate Fair Market Value, on the date the tax is
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to be determined, equal to the amount required to be withheld. All
elections shall be irrevocable and in writing, and shall be signed by
Optionee in advance of the day that the transaction becomes taxable.
(d) Optionee agrees to take all steps necessary to comply with all
applicable provisions of Federal and state securities law in exercising
Optionee's rights under this Agreement.
(e) The Plan and this Agreement are not intended to qualify for
treatment under the provisions of the Employee Retirement Income Security
Act of 1974 ("ERISA").
(f) This Agreement shall be subject to all applicable laws, rules,
and regulations, and to such approvals by any governmental agencies or
national securities exchanges as may be required.
(g) To the extent not preempted by Federal law, this Agreement shall
be governed by, and construed in accordance with the laws of the State of
Iowa.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the Date of Grant.
XXXXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
Its: Vice President-General
Counsel and Secretary
/s/ Xxxxxxx X. Xxxx
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Optionee, Xxxxxxx X. Xxxx
000 Xxxxxx, #0000
Xxx Xxxxxx, XX 00000
Social Security number: ###-##-####
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