TO: [Name] (the “Grantee”) FROM: Robert C. Cornett, SVP, Human Resources & Chief People Officer SUBJECT: Option Agreement DATE: [Date]
Exhibit 10.29
Form of Xxxxxx Express Corporation Option Agreement under the Xxxxxx Express Corporation 2010
Equity and Incentive Plan
Xxxxxx Express Corporation
Memorandum
TO:
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[Name] (the “Grantee”) | |
FROM:
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Xxxxxx X. Xxxxxxx, SVP, Human Resources & Chief People Officer | |
SUBJECT:
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Option Agreement | |
DATE:
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[Date] |
You have been granted, pursuant [an incentive stock option/a nonstatutory stock option] (the
“Option”) under the terms of the Xxxxxx Express Corporation 2010 Equity and Incentive Plan (the
“Plan”). Attached to this Memorandum is an Agreement which, along with the Plan, governs your
Option. You will be receiving separately a copy of the Prospectus for the Plan. The Prospectus
contains important information regarding the Plan, including information regarding restrictions
on your rights with respect to the Option granted to you. You should read the Prospectus
carefully.
The Option does not give you rights as a shareholder of the Company unless and until you exercise
the Option, and you may not transfer or assign any rights in your Option. [If a NQSOs:
Please note that when you exercise your Option, the Company is required to withhold federal and
state income taxes, as well as employment taxes, and we will require you to make arrangements to
satisfy that withholding obligation prior to our issuance of any shares to you.]
Finally, by accepting this Option you are agreeing to abide by the terms of the Plan and the
attached Agreement. If you do not want to accept the Option, you must reject the Option in
writing by returning this Memorandum to Xxxxxxx Xxxxxx in the Human Resources Office in South
Portland by [date].
Date of Grant:
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[Date] | |||
Number of Options:
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[ ] | |||
Exercise Price:
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[Strike Price] | |||
Vesting Period:
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[ ] years ([ ] per year for [ ] years) | |||
Expiration Date:
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___ years | |||
Form of Xxxxxx Express Corporation Option Agreement under the Xxxxxx Express Corporation 2010
Equity and Incentive Plan
USE THE SPACE BELOW ONLY IF YOU WISH TO REJECT THE OPTION:
I reject the Option described in this Memorandum.
| Signature of Grantee | Date |
Form of Xxxxxx Express Corporation Option Agreement under the Xxxxxx Express Corporation 2010
Equity and Incentive Plan
XXXXXX EXPRESS CORPORATION
2010 Equity and Incentive Plan
[INCENTIVE STOCK/NONSTATUTORY STOCK] OPTION AGREEMENT
THIS [INCENTIVE STOCK/NONSTATUTORY STOCK] OPTION AGREEMENT (“Agreement”), dated as
of [ ], is entered into by and between XXXXXX EXPRESS CORPORATION, a Delaware corporation (the
“Company”), and the Grantee named on the attached Memorandum, dated [ ], (the “Memorandum”)
pursuant to the terms and conditions of the Xxxxxx Express Corporation 2010 Equity and Incentive
Plan (the “Plan”).
WHEREAS, the Company has the authority under and pursuant to the Plan to grant awards to
eligible employees of the Company and its subsidiaries; and
WHEREAS, the Company desires to grant [an incentive stock option as defined under Section 422
of the Internal Revenue Code and any regulations issued thereunder (the “Code”)/ a nonstatutory
stock option] (the “Option”) to the Grantee subject to the terms and conditions of the Plan and
this Agreement.
In consideration of the provisions contained in this Agreement, the Company and the Grantee
agree as follows:
1. The Plan. The Option granted to the Grantee hereunder is made pursuant to the Plan. A
copy of the prospectus for the Plan has been provided to you and the applicable terms of such Plan
are hereby incorporated herein by reference. Terms used in this Agreement which are not defined in
this Agreement shall have the meanings used or defined in the Plan.
2. Award. Concurrently with the execution of this Agreement, and subject to the terms and
conditions set forth in the Plan and this Agreement, the Company hereby awards to Grantee an Option
to acquire the number of shares of Company common stock, par value $.01 per share (the “Common
Stock”), indicated in the Memorandum at the exercise price per share of Common Stock (the “Exercise
Price”) indicated in the Memorandum. Unless earlier terminated, this Option shall expire at 5:00
p.m., Eastern time, on [_______] (the “Final Exercise Date”).
3. Vesting of Options.
(a) Subject to Paragraph 3(b), this Option will become exercisable (“vest”) as to [ ] of the
original number of shares of Common Stock subject to the Option on the [ ] anniversary of the
Grant Date, as to [ ]% of the original number of shares of Common Stock subject to the Option on
the [ ] anniversary of the Grant Date and as to the remaining [ ]% of the original number of
shares of Common Stock subject to the Option on the [ ] anniversary of the Grant Date. The right
of exercise shall be cumulative so that to the extent the Option is not exercised in any period to
the maximum extent permissible it shall continue to be exercisable, in whole or in part, with
respect to all shares of Common Stock subject thereto for which it is vested until the earlier of
the Final Exercise Date or the termination of this Option under Section 4 hereof or the Plan.
Form of Xxxxxx Express Corporation Option Agreement under the Xxxxxx Express Corporation 2010
Equity and Incentive Plan
(b)
Notwithstanding Paragraph 3(a), upon the Grantee’s death, the Option shall become
immediately and fully vested, subject to any terms and conditions set forth in the Plan or imposed
by the Compensation Committee appointed by the Board of Directors (the “Committee”).
4.
Exercise of Option.
(a)
Form of Exercise. Each election to exercise this Option shall be in writing,
signed by the Grantee, and received by the Company at its principal office, accompanied by this
agreement, and payment in full in the manner provided in the Plan. The Grantee may purchase less
than the number of shares of Common Stock covered hereby, provided that no partial exercise of this
Option may be for any fractional share.
(b)
Continuous Relationship with Company Required. Except as otherwise provided in
this Section 4, this Option may not be exercised unless the Grantee, at the time he or she
exercises this Option, is, and has been at all times since the Grant Date, an employee or officer
of, a director of, or consultant or advisor to, the Company or any parent or subsidiary of the
Company as defined in Section 424(e) or (f) of the Code (an “Eligible Grantee”).
(c)
Termination of Relationship with the Company. If the Grantee ceases to be an
Eligible Grantee for any reason, then, except as provided in paragraphs (d) and (e) below, the
right to exercise this Option shall terminate three months after such cessation (but in no event
after the Final Exercise Date), provided that this Option shall be exercisable only
to the extent that the Grantee was entitled to exercise this Option on the date of such cessation,
and provided further that the Committee may, in its sole and absolute
discretion, but subject to the terms of the Plan, agree to accelerate the vesting of the Option,
upon termination of employment or otherwise, for any reason or no reason, but shall have no
obligation to do so. Notwithstanding the foregoing, if the Grantee, prior to the Final Exercise
Date, violates the non-competition or confidentiality provisions of any employment contract,
confidentiality and nondisclosure agreement or other agreement between the Grantee and the Company,
the right to exercise this Option shall terminate immediately upon such violation.
(d)
Exercise upon Death or Disability. If the Grantee dies or becomes disabled
(within the meaning of Section 22(e)(3) of the Code) prior to the Final Exercise Date while he or
she is an Eligible Grantee and the Company has not terminated such relationship for “cause” as
specified in paragraph (e) below, this Option shall be exercisable, within the period of one year
following the date of death or disability of the Grantee, by the Grantee (or in the case of death
by an authorized transferee), provided that this Option shall be exercisable only
to the extent that this Option was exercisable by the Grantee on the date of his or her death or
disability (after taking into account the vesting provisions of Section 3 hereof), and further
provided that this Option shall not be exercisable after the Final Exercise Date.
(e)
Termination for Cause. If, prior to the Final Exercise Date, the Grantee’s
employment is terminated by the Company for Cause (as defined below), the right to exercise this
Option shall terminate immediately upon notification by the Company of such termination of
employment. If, prior to the Final Exercise Date, the Grantee is given notice by the Company of
Form of Xxxxxx Express Corporation Option Agreement under the Xxxxxx Express Corporation 2010
Equity and Incentive Plan
the termination of his or her employment by the Company for Cause, and the effective date of such
employment termination is subsequent to the date of delivery of such notice, the right to exercise
this option shall be suspended from the time of the delivery of such notice until the earlier of
(i) such time as it is determined or otherwise agreed that the Grantee’s employment shall not be
terminated for Cause as provided in such notice or (ii) the effective date of such termination of
employment (in which case the right to exercise this option shall, pursuant to the preceding
sentence, terminate upon the effective date of such termination of employment). If the Grantee is
party to an employment or severance agreement with the Company that contains a definition of
“cause” for termination of employment, “Cause” shall have the meaning ascribed to such term in such
agreement. Otherwise, “Cause” shall mean willful misconduct by the Grantee or willful failure by
the Grantee to perform his or her responsibilities to the Company (including, without limitation,
breach by the Grantee of any provision of any employment, consulting, advisory, nondisclosure,
non-competition or other similar agreement between the Grantee and the Company), as determined by
the Company, which determination shall be conclusive. The Grantee’s employment shall be considered
to have been terminated for Cause if the Company determines, within 30 days after the Grantee’s
resignation, that termination for Cause was warranted.
(f)
Date of Termination; Loss of Rights. For purposes of the Plan and the Option, a
termination of employment shall be deemed to have occurred on the date upon which the Grantee
ceases to perform active employment duties for the Company following the provision of any
notification of termination or resignation from employment, and without regard to any period of
notice of termination of employment (whether expressed or implied) or any period of severance or
salary continuation. Notwithstanding any other provision of the Plan or this Agreement or any
other agreement (written or oral) to the contrary, the Grantee shall not be entitled (and by
accepting the Option, thereby irrevocably waives any such entitlement) to any payment or other
benefit to compensate the Grantee for the loss of any rights under the Plan as a result of the
termination or expiration of the Option in connection with any termination of employment.
No amounts earned pursuant to the Plan or any Award shall be deemed to be eligible
compensation in respect of any other plan of the Company or any of its subsidiaries.
5.
No Assignment. Except as expressly permitted under the Plan, this Agreement may
not be assigned by the Grantee by operation of law or otherwise.
6.
No Rights to Continued Employment. Neither this Agreement nor the Option shall be
construed as giving the Grantee any right to continue in the employ of the Company or any of its
subsidiaries, or shall interfere in any way with the right of the Company to terminate such
employment.
7.
Governing Law. This Agreement and the legal relations between the parties shall be
governed by and construed in accordance with the internal laws of the State of Delaware, without
effect to the conflicts of laws principles thereof.
8.
Tax Obligations. As a condition to the granting of the Option, the Grantee acknowledges
and agrees that he/she is responsible for the payment of income and employment taxes (and any other
taxes required to be withheld), if any, payable in connection with the
Form of Xxxxxx Express Corporation Option Agreement under the Xxxxxx Express Corporation 2010
Equity and Incentive Plan
exercise of the Option. Accordingly, the Grantee agrees to remit to the Company or any applicable
subsidiary an amount sufficient to pay such taxes. Such payment shall be made to the Company or
the applicable subsidiary of the Company in a form that is reasonably acceptable to the Company, as
the Company may determine in its sole discretion. [If granting ISOs: If the Grantee
disposes of shares of Common Stock acquired upon exercise of this Option within two years from the
Grant Date or one year after such shares were acquired pursuant to exercise of this Option, the
Grantee shall notify the Company in writing of such disposition.]
9.
Notices. Any notice required or permitted under this Agreement shall be deemed given when
delivered personally, or when deposited in a United States Post Office, postage prepaid, addressed,
as appropriate, to the Grantee at the last address specified in the Grantee’s employment records
(or such other address as the Grantee may designate in writing to the Company), or to the Company,
00 Xxxxxxx Xxxxxx, Xxxxx Xxxxxxxx, XX 00000, Attention: General Counsel, or such other address as
the Company may designate in writing to the Grantee.
10.
Failure to Enforce Not a Waiver. The failure of the Company to enforce at any time any
provision of this Agreement shall in no way be construed to be a waiver of such provision or of any
other provision hereof.
11.
Amendments. This Agreement may be amended or modified at any time by an instrument in
writing signed by the parties hereto.
12.
Authority. The Committee has complete authority and discretion to determine awards under
the Plan, and to interpret and construe the terms of the Plan and this Agreement. The
determination of the Committee as to any matter relating to the interpretation or construction of
the Plan or this Agreement shall be final, binding and conclusive on all parties.
13.
Rights as a Stockholder. The Grantee shall have no rights as a stockholder of the Company
with respect to any shares of Common Stock of the Company underlying or relating to the Option
until the issuance of a stock certificate to the Grantee in respect of such Option following
exercise.
IN WITNESS WHEREOF, this Agreement is effective as of the date first above written.
XXXXXX EXPRESS CORPORATION
By: Xxxxxx X. Xxxxxxx
Its: SVP, Human Resources & Chief People Officer
Its: SVP, Human Resources & Chief People Officer
