Exhibit 10(a)(xxiii)
Stock Option Award and Agreement
[DATE]
Dear _______________:
X. X. Xxxxx Company is pleased to advise you that, effective ______, ____, you
have been granted options ("Options") to purchase _________ shares of X. X.
Xxxxx Company Common Stock, at an exercise price of $ _______ per share, in
accordance with the terms and conditions of the stock option plan under which
the Options were granted (the "Plan"), and a copy of which is attached together
with a copy of the Prospectus. The Options are also granted under and governed
by the terms and conditions of this letter agreement ("Agreement"), which shall
control in the event of a conflict with the terms and conditions of the Plan.
For purposes of this Agreement, the "Company" shall refer to X. X. Xxxxx Company
and its Affiliated Companies (as defined in Section 4 below) in the United
States, Canada and throughout the world. Unless otherwise specifically defined
herein, all other capitalized terms used in this Agreement shall have the same
defined meanings as provided in the X.X. Xxxxx Company Fiscal Year 2003 Stock
Incentive Plan (the "2003 Stock Incentive Plan"), a copy of which is included as
Exhibit A to the 2003 Stock Incentive Plan Prospectus that is attached hereto.
1. The Options are Non-Statutory Options, as defined in the Plan. The Options
will vest in _________________ _____________ on _________, and
will expire on __________, subject to earlier expiration in accordance with
the terms of this Agreement or the Plan.
2. Subject to paragraphs 3 and 4 of this Agreement, the exercise period for
the Options, including the effect of the termination of your employment
with the Company or a "Change in Control", shall be governed by and
determined in accordance with Section 8(B) of the 2003 Stock Incentive
Plan, which is incorporated herein by reference and which shall control
over and supersede any additional, different or inconsistent terms or
provisions contained in the Plan; provided, however, that in the event of
termination of your employment without "Cause", the "Expiration Date" shall
be five years after the "Date of Termination" or the date of expiration
specified in Section 1 above, whichever is sooner.
3. You agree that you shall not, during the term of your employment by the
Company and for 12 months after termination of your employment, regardless
of the reason for the termination, either directly or indirectly, solicit,
take away or attempt to solicit or take away any other employee of the
Company, either for your own purpose or for any other person or entity. You
further agree that you shall not, during the term of your employment by the
Company or at any time thereafter, use or disclose Confidential Information
(as defined in Section 4 below) except as directed by, and in furtherance
of the business purposes of, the
Company. You acknowledge that the breach or threatened breach of this
paragraph 3 will result in irreparable injury to the Company for which
there is no adequate remedy at law because, among other things, it is not
readily susceptible of proof as to the monetary damages that would result
to the Company. You consent to the issuance of any restraining order or
preliminary restraining order or injunction with respect to any conduct by
you that is directly or indirectly a violation or a threatened violation of
this paragraph. Any breach by you of the provisions of this paragraph 3
will, at the option of the Company and in addition to all other rights and
remedies available to the Company at law, in equity or under this
Agreement, result in the forfeiture of all unexercised options granted to
you under this Agreement as of the date of such breach.
4. As used in this paragraph 4, the following terms shall have the respective
indicated meanings:
"Affiliated Company or Companies" means any person, corporation, limited
liability company, partnership or other entity controlling, controlled by
or under common control with the Company.
"Confidential Information" means technical or business information not
readily available to the public or generally known in the trade, including
but not limited to inventions; ideas; improvements; discoveries;
developments; formulations; ingredients; recipes; specifications; designs;
standards; financial data; sales, marketing and distribution plans,
techniques and strategies; customer and supplier information; equipment;
mechanisms; manufacturing plans; processing and packaging techniques; trade
secrets and other confidential information, knowledge, data and know-how of
the Company, whether or not they originated with you, or information which
the Company received from third parties under an obligation of
confidentiality.
"Conflicting Product" means any product or process of any person or
organization, other than the Company, in existence or under development,
(1) that competes with a product or process of the Company upon or with
which you shall have worked during the two years prior to the termination
of your employment with the Company or (2) whose use or marketability could
be enhanced by application to it of Confidential Information acquired by
you in connection with your employment by the Company during such two year
period. For purposes of this definition, it shall be conclusively presumed
that you have knowledge of information to which you have been directly
exposed through actual receipt or review of memorandum or documents
containing such information or through actual attendance at meetings at
which such information was discussed or disclosed.
"Conflicting Organization" means any person or organization that is engaged
in or about to become engaged in research on or the development,
production,
marketing or selling of or the use in production, marketing or sale of a
Conflicting Product.
In partial consideration for the Options granted to you hereunder, you
agree that, for a period of eighteen (18) months following the date of the
termination of your employment with the Company, you shall not render
services, directly or indirectly, as a director, officer, employee, agent,
consultant or otherwise to any Conflicting Organization in any geographic
area or territory in which such Conflicting Organization is engaged in or
about to become engaged in the research on or the development, production,
marketing or sale of or the use in production, marketing or sale of a
Conflicting Product. The foregoing limitation does not apply to a
Conflicting Organization whose business is diversified and that, as to that
part of its business to which you render services, is not engaged in the
development, production, marketing, use or sale of a Conflicting Product,
provided that the Company shall receive separate written assurances
satisfactory to the Company from you and the Conflicting Organization that
you shall not render services during such period with respect to a
Conflicting Product or directly or indirectly provide or reveal
Confidential Information to such organization. If you shall render services
to any Conflicting Organization other than as expressly permitted herein or
shall provide or reveal Confidential Information to such Conflicting
Organization, you shall (i) immediately return to the Company the pre-tax
income resulting from any exercise of the Options or any portion thereof by
you, unless such exercise occurred more than twelve (12) months prior to
the date of the termination of your employment; and (ii) forfeit any
unexercised portion of the Options. You acknowledge and agree that the
restrictions set forth in this paragraph 4 are reasonable and necessary to
protect the goodwill and legitimate business interests of the Company and
to prevent the disclosure of the Company's Confidential Information and
trade secrets. If any of the provisions herein shall for any reason be
determined by a court of competent jurisdiction to be overly broad as to
scope of activity, duration or territory, such provision shall be limited
or reduced so as to be enforceable to the extent compatible with existing
law.
5. You acknowledge and agree that nothing in this Agreement, the Plan or the
2003 Stock Incentive Plan shall confer upon you any right with respect to
future awards or continuation of your employment, nor shall it constitute
an employment agreement or interfere in any way with your right or the
right of the Company to terminate your employment, with or without cause,
and with or without notice, subject to the terms of any written employment
contract that you may have with the Company that is signed by both you and
an authorized representative of the Company.
6. You consent to the collection, use, and processing of personal data
(including name, home address and telephone number, identification number
and number of options held) by the Company or a third party engaged by the
Company for the purpose of implementing, administering and managing the
Plan and other stock
option plans of the Company (the "Plans"). You further consent to the
release of personal data (a) to such a third party administrator, which, at
the option of the Company, may be designated as the exclusive broker in
connection with the Plans, or (b) to any Affiliated Company, wherever
located. You hereby waive any data privacy rights with respect to such data
to the extent that receipt, possession, use, retention, or transfer of the
data is authorized hereunder.
7. The Plan is discretionary in nature and the Company may modify, cancel or
terminate it at any time without prior notice. While stock options may be
granted under any of the Company's Plans on one or more occasions or even
on a regular schedule, each grant is a one time event, is not an
entitlement to an award of grants of stock options in the future, and does
not create any contractual or other right to receive an award of stock
options, compensation or benefits in lieu of stock options or any other
compensation or benefits in the future.
8. This Agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Pennsylvania, without regard to its choice of
law provisions.
THIS GRANT OF OPTIONS IS SUBJECT TO YOUR ON-LINE ACCEPTANCE OF THE TERMS AND
CONDITIONS OF THIS AGREEMENT.
X.X. XXXXX COMPANY
By:
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Accepted: Signed electronically
Date: Acceptance Date
