XXXX IN THE BOX INC.
NON-EMPLOYEE DIRECTOR
STOCK OPTION AGREEMENT
UNDER THE 2004 STOCK INCENTIVE PLAN
THIS AGREEMENT is made as of ____________________, 200___ between Xxxx in
the Box Inc., a Delaware corporation (the "Company"), and ____________________
(the "Optionee").
RECITALS
The Compensation Committee (the "Committee") of the Board of Directors of
the Company which administers the Company's 2004 Stock Incentive Plan (the
"Plan") has granted to the Optionee as of the date of this Agreement an option
(the "Option") to purchase shares of the Common Stock of the Company, par value
$0.01 per share (the "Common Stock"), on the terms and conditions set forth
herein.
AGREEMENT
In consideration of the foregoing and of the mutual covenants set forth
herein and other good and valuable consideration, the parties hereto agree as
follows:
1. DEFINITIONS. Unless otherwise defined here, capitalized terms shall
have the meanings assigned to such terms in the Plan.
2. SHARES OPTIONED: OPTION PRICE. Optionee may purchase all or any part
of an aggregate of _________ shares of Common Stock, at the exercise price of
____________ per share (the "Option Exercise Price"), which shall be not less
than the fair market value on the date hereof, on the terms and conditions set
forth herein.
3. OPTION TERM: TIMES OF EXERCISE OR SALE. The Option shall terminate and
no portion of the Option may be exercised in whole or in part more than ten
years after the date hereof, subject to earlier termination under this
Agreement. This Option shall become exercisable in full six (6) months after the
date of this Agreement.
4. CONSIDERATION. The Option has been granted in consideration of the
Optionee's continued service as a non-employee director of the Company and
acceptance by the Optionee of the terms and conditions set forth below and in
the Plan.
5. EXERCISE DATES. Subject to the terms and conditions herein and in the
Plan, the Option shall become exercisable on the date as provided in Paragraph 3
above. Fractional shares may not be purchased or delivered hereunder. Once
exercisable and until terminated, all or any portion of the Option may be
exercised from time to time and at any time subject to procedures that the
Company shall establish from time to time, including, without limitation,
procedures regarding the frequency of exercise and the minimum number of option
shares which may be purchased at any time.
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6. EXERCISING THE OPTION. This Option may be exercised only by the
Optionee or his or her permitted transferees and only by the methods set forth
herein. Subject to the terms and conditions of the Plan, the Optionee may
exercise all or any portion of the Option by giving notice of exercise to the
Company or its designee in the manner specified from time to time by the
Company, accompanied by payment or instructions for payment in full of the
Option Exercise Price for the shares being purchased. Each such notice shall
specify the number of shares of Common Stock to be purchased, the Option
Exercise Price, the grant date, and such other matters as required by the
Committee. Each notice shall include such representations and documents as the
Board, in its sole discretion, deems necessary or advisable to comply with all
applicable provisions of the Securities Act of 1933, as amended, and any other
federal or state securities laws or regulations. In the event that the option
shall be exercised by any person other than the non-employee director, such
person shall provide appropriate proof of the right to exercise the option and
such representations as the Board deems necessary or advisable.
7. PAYMENT OF EXERCISE PRICE. The payment of the aggregate Option
Exercise Price shall be made (i) in cash or by cashiers check, (ii) by delivery
of a properly executed notice together with irrevocable instructions to a broker
providing for the assignment to the Company of the proceeds of a sale with
respect to some or all of the shares being acquired upon the exercise of the
Option (including, without limitation, through an exercise complying with the
provisions of Regulation T as promulgated from time to time by the Board of
Governors of the Federal Reserve System), or (iii) any combination of the
foregoing.
8. NON-TRANSFERABILITY. Except as otherwise provided in this Paragraph,
this Option: (a) shall be exercisable during the Optionee's lifetime only by the
Optionee, and is not transferable other than by will or the laws of descent and
distribution; (b) shall not be otherwise transferred, assigned, pledged, or
disposed of in any way, whether by operation of law or otherwise, and shall not
be subject to execution, attachment or similar process; (c) shall immediately
terminate and become null and void upon any attempt to transfer, assign, pledge,
or otherwise dispose of this Option, other than as permitted herein, or upon the
levy of any execution, attachment or similar process upon this Option.
Notwithstanding the foregoing, with the approval of the Committee, the Option
may be transferred to a trust for the benefit of the Optionee or the Optionee's
"family member" as that term is defined in the General Instructions to Form S-8
Registration Statement under the Securities Act.
9. EFFECT OF TERMINATION OF SERVICE. If the Optionee terminates service
to the Company because of the Optionee's removal as a director for cause, as
determined by the Company's Board of Directors in its sole discretion, this
Option shall expire concurrently with such termination of Service.
If the Optionee terminates service to the Company other than because of the
Optionee's removal as a director for cause, as determined by the Board of
Directors in its sole discretion, then this Option shall be exercisable by
Optionee, or his or her permitted transferees or the person or persons to whom
Optionee's rights under the Options have passed by will or by applicable laws of
descent and distribution, as to all shares granted to Optionee, without regard
to exercise limitations set forth in Section 3 "Option Term: Times of Exercise
or Sale" hereof; provided however, that all rights under such Option shall
expire in any event on the tenth anniversary of the date of grant.
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10. LEGALITY. Common Stock shall not be issued upon exercise of an option
granted hereunder unless and until counsel for the Company shall be satisfied
that any conditions necessary for such issuance to comply with applicable
federal, state or local securities, tax or other laws or rules or applicable
securities exchange requirements have been fulfilled.
11. ADJUSTMENTS IN STOCK. Subject to the provisions of the Plan, if the
outstanding shares of the Company Common Stock of the class subject to this
Option are increased or decreased, or are changed into or exchanged for a
different number or kind of shares or securities as a result of one or more
reorganizations, recapitalizations, stock splits, reverse stock splits, stock
dividends and the like, appropriate adjustments to be conclusively determined by
the Committee, shall be made in the number and/or type of shares or securities
subject to this Option and in the Option Exercise Price, so that the total
purchase price of the shares then subject to this Option shall remain unchanged.
12. CHANGE IN CONTROL. Upon the dissolution or liquidation of the Company,
this Option shall terminate. Upon the occurrence of a Change in Control, this
Option shall terminate unless provision be made in writing in connection with
such transaction for the assumption of the Option or the substitution for the
Option of a new option covering the stock of a successor employer corporation,
or a parent or subsidiary thereof or of the Company, with appropriate
adjustments as to the number and kind of shares and prices, in which event this
Option shall continue in the manner and under the terms so provided. If this
Option shall terminate pursuant to the foregoing sentence, the person then
entitled to exercise the Option shall have the right, at such time immediately
prior to the consummation of the Change in Control as the Company shall
designate, to exercise this Option to the full extent not theretofore exercised,
including any installments previously not exercisable prior to the Change in
Control. Adjustments under this section shall be made by the Committee, whose
determination as to what adjustments shall be made and the extent thereof shall
be conclusive. No fractional shares of stock shall be issued under this Option
or in connection with any such adjustment.
13. PLAN CONTROLS. The Option and all terms and conditions set forth in
this agreement are subject in all respects to the terms and conditions of the
Plan as may be amended from time to time, (but no amendment shall adversely
affect the Optionee's rights under this Option) and any rules and regulations
promulgated by the Committee, which shall be controlling. All constructions,
interpretations, rule determinations or other actions taken by the Committee
shall be final, binding and conclusive on all interested parties, including the
Company and its subsidiaries and all former, present and future employees of the
Company or its subsidiaries.
14. ARBITRATION. Any dispute or claim concerning any Options granted (or
not granted) pursuant to the Plan and this agreement and any other disputes or
claims relating to or arising out of the Plan and this agreement shall be fully,
finally and exclusively resolved by binding arbitration conducted in San Diego,
California, by either (i) the American Arbitration Association in accordance
with its rules and procedures, or (ii) by any party mutually agreed upon by the
Committee and the claimant. By accepting an Option, the Optionee and the Company
waive their respective rights to have any disputes or claims tried by a judge or
jury.
15. RESPONSIBILITY FOR EXERCISE. The Optionee hereby acknowledges that he
or she is responsible for taking any and all actions as may be required to
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exercise this Option in a timely manner and for properly executing any such
documents as may be required for exercise in accordance with such rules and
procedures as may be established by the Committee from time to time. By signing
this agreement the Optionee acknowledges that information regarding the
procedures and requirements for this exercise of the Option is available upon
request. The Company shall have no duty or obligation to notify the Optionee of
the expiration date of this Option.
16. LAWS GOVERNING. The Option and the Plan shall be construed and
enforced in accordance with the laws of the State of Delaware without regard to
the principles of conflicts of law.
17. RECEIPT OF PROSPECTUS. The Optionee hereby acknowledges that he or she
has received a copy of the prospectus relating to the Option and the shares
covered thereby and the Plan.
18. OPTION AGREEMENT. This agreement has no cash value or other legal
significance and the entitlement of any rights hereunder shall be governed by
the terms of the Plan and the books and records maintained by the Company.
IN WITNESS WHEREOF, the Company has caused this Option to be executed on
its behalf by its Chief Executive Officer, President or one of its Vice
Presidents and Optionee has hereunto set his hand as of the day and year first
above written.
XXXX IN THE BOX INC. OPTIONEE
By:
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Xxxxx X. Xxxx Signature
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Name
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Xxxxxx Xxxxxxx
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Xxxx, Xxxxx Zip
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Social Security Number
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