EXHIBIT 4.8
FORM OF ANNUAL GRANT TO NON-EMPLOYEE DIRECTOR
OF NONQUALIFIED STOCK OPTION
_______________________________________
X'XXXXXXXX INDUSTRIES HOLDINGS,INC.
AMENDED AND RESTATED 1994 INCENTIVE STOCK PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
FOR NON-EMPLOYEE DIRECTOR
NSO # 94-_____
THIS AGREEMENT, made as of the ____ day of _________, _____
(the "Grant Date"), between X'Xxxxxxxx Industries Holdings, Inc.,
a Delaware corporation (the "Company"), and
________________________________________ ( "Optionee").
WHEREAS, the Company has adopted the X'Xxxxxxxx Industries
Holdings, Inc. Amended and Restated 1994 Incentive Stock Plan (the
"Plan") in order to provide an additional incentive to its non-employee
directors and certain officers and employees of the Company and its
subsidiaries; and
WHEREAS, the Plan provides for the automatic grant of options
to non-employee directors on September 1 of each year;
NOW, THEREFORE, the parties hereto agree as follows:
1. Grant of Option.
1.1 The Company hereby grants to the Optionee the right and
option (the "Option") to purchase all or any part of an aggregate
of ______ whole shares of common stock, par value $1.00 per share,
of the Company ("Shares") subject to, and in accordance with, the
terms and conditions set forth in this Agreement.
1.2 The Option is not intended to qualify as an Incentive
Stock Option within the meaning of Section 422 of the Code.
1.3 This Agreement shall be construed in accordance and
consistent with, and subject to, the provisions of the Plan (the
provisions of which are incorporated herein by reference) and,
except as otherwise expressly set forth herein, the capitalized
terms used in this Agreement shall have the same definitions as set
forth in the Plan.
2. Purchase Price.
The price at which the Optionee shall be entitled to purchase
Shares upon the exercise of the Option shall be $________ per Share
(the "Purchase Price").
3. Duration of Option.
The Option shall be exercisable to the extent and in the
manner provided in Section 4 hereof for a period of 10 years from
the Grant Date (the "Exercise Term") and shall accordingly
terminate at the close of business on the tenth anniversary of the
date of grant of the Option; provided, however, that the Option may
be earlier terminated as provided in Section 6 hereof.
4. Exercisability of Option.
Unless otherwise provided in this Agreement or the Plan, the
Option shall entitle the Optionee to purchase, in whole at any time
or in part from time to time, one-third of the total number of
Shares covered by the Option after the expiration of one (1) year
from the Grant Date and an additional one-third of the total number
of Shares covered by the Option after the expiration of each of the
second and third anniversaries of the Grant Date, and each such
right of purchase shall be cumulative and shall continue, unless
sooner exercised or terminated as herein provided, during the
remaining period of the Exercise Term. Any fractional number of
Shares resulting from the application of the formula set forth in
this Section 4 shall be rounded to the next higher whole number of
Shares in the first (and second if necessary) year, but no more
than the number granted shall result from the rounding up.
5. Manner of Exercise and Payment.
5.1 Subject to the terms and conditions of this Agreement and
the Plan, the Option shall be exercised by timely delivery of
written notice to the Company, in person or by certified mail
return receipt requested to the Secretary of the Company at its
principal executive office. Such notice shall state that the
Optionee is electing to exercise the Option and the number of
Shares in respect of which the Option is being exercised and shall
be signed by the person or persons exercising the Option. If
requested by the Committee, such person or persons shall
(i) deliver this Agreement to the Secretary of the Company who
shall endorse thereon a notation of such exercise and (ii) provide
satisfactory proof as to the right of such person or persons to
exercise the Option.
5.2 The notice of exercise described in Section 5.1 shall be
accompanied by the full Purchase Price for the Shares in respect of
which the Option is being exercised, in cash or by certified or
cashier's check, or in whole or in part by transferring Shares to
the Company having a Fair Market Value on the day preceding the
date of exercise equal to the cash amount for which such Shares are
substituted.
5.3 Upon timely receipt of notice of exercise and full
payment for the Shares in respect of which the Option is being
exercised, the Company shall, subject to Section 17 of the Plan,
take such action as may be necessary to effect the transfer to the
Optionee of the number of Shares as to which such exercise was
effective.
5.4 The Optionee shall not be deemed to be the holder of, or
to have any of the rights of a holder with respect to any Shares
subject to the Option until (i) the Option shall have been
exercised pursuant to the terms of this Agreement and the Optionee
shall have paid the full Purchase Price for the number of Shares in
respect of which the Option was exercised, (ii) the Company shall
have issued and delivered the Shares to the Optionee, and (iii) the
Optionee's name shall have been entered as a stockholder of record
with respect to the Shares on the books of the Company, whereupon
the Optionee shall have full voting and other ownership rights with
respect to such Shares.
6. Termination of Service as a Director.
6.1 Termination of Option.
(a) If the Optionee's service as a Director terminates
for any reason other than Retirement, resignation, removal from the
Board due to Disability, death or Cause, he may, for a period of
three months after such termination, exercise the Option to the
extent, and only to the extent, that such Option or portion thereof
was vested and exercisable as of the date the Optionee's service as
a Director terminated, after which time the Option shall
automatically terminate in full.
(b) If the Optionee's service as a Director terminates
by reason of his Retirement or by resignation or removal from the
Board due to Disability, he may, for a period of twelve months
after such termination, exercise the Option to the extent, and only
to the extent that the Option or portion thereof was vested and
exercisable, as of the date his service as a Director terminated,
after which time the Option shall automatically terminate in full.
(c) If the Optionee's service as a Director terminates
for Cause, the Option shall immediately terminate in full and no
rights thereunder or hereunder may be exercised.
(d) If the Optionee dies while a Director or within
three months after termination of service as a Director as
described in clause (a) or (b) of this Section 6.1, the Option may
be exercised at any time within twelve months after his death by
the person or persons to whom such rights under the Option shall
pass by will, or by the laws of descent or distribution, after
which time the Option shall terminate in full; provided, however,
that the Option may be exercised to the extent, and only to the
extent, that the Option or portion thereof was exercisable on the
date of death or earlier termination of the Optionee's services as
a Director.
6.2 Acceleration of Exercise Dates. Notwithstanding the
provisions of Section 4 above relating to the exercise of the
Option in installments, upon any Change in Control of the Company
the Option shall become exercisable as provided below in Section
7(i). No portion of the Option shall be exercisable after
expiration of the Option as provided in Section 6.1.
7. Effect of Change in Control.
Notwithstanding anything contained in this Agreement to the
contrary, in the event of a Change in Control, (i) the Option shall
become immediately and fully exercisable through the expiration of
the Option as provided in Section 6.1 and (ii) the Optionee will be
permitted to surrender for cancellation within 60 days after such
Change in Control, the Option or any portion of the Option to the
extent not yet exercised and the Optionee shall be entitled to
receive immediately a cash payment in an amount equal to the
excess, if any, of (A) the greater of (1) the Fair Market Value, on
the date preceding the date of the surrender, of the Shares subject
to the Option or portion of the Option surrendered or (2) the
Adjusted Fair Market Value of the Shares subject to the Option or
the portion of the Option surrendered, over (B) the aggregate
Purchase Price for such Shares under the Option or portion of the
Option surrendered; provided, however, that if the Option was
granted within six (6) months prior to the Change in Control and
the Optionee may be subject to liability under Section 16(b) of the
Exchange Act, the Optionee shall be entitled to surrender
for cancellation the Option or any portion of the Option during the
60 day period commencing upon the expiration of six (6) months from
the Grant Date and receive the amount described above with respect
to such surrender for cancellation.
8. Non-transferability.
The Option shall not be transferable other than by will or by
the laws of descent and distribution. During the lifetime of the
Optionee, the Option shall be exercisable only by the Optionee or
the Optionee's personal representative.
9. No Right to Continued Service as a Director.
Nothing in this Agreement or the Plan shall be interpreted or
construed to confer upon the Optionee any right with respect to
continuance of service as a Director of the Company, nor shall this
Agreement or the Plan interfere in any way with the right of the
Company to terminate the Optionee's service as a Director of the
Company at any time.
10. Adjustments.
In the event of a Change in Capitalization, the Committee may
make appropriate adjustments to the number and class of Shares or
other stock or securities subject to the Option and the Purchase
Price for such Shares or other stock or securities. The
Committee's adjustment shall be made in accordance with the
provisions of Section 12 of the Plan and shall be effective and
final, binding and conclusive for all purposes of the Plan and this
Agreement.
11. Effect of Certain Transactions.
Subject to Section 7 hereof, upon the effective date of
(i) the liquidation or dissolution of the Company or (ii) a merger
or consolidation of the Company (a "Transaction"), the Option shall
continue in effect in accordance with its terms and the Optionee
shall be entitled to receive in respect of all Shares subject to
the Option, upon exercise of the Option, the same number and kind
of stock, securities, cash, property or other consideration that
each holder of Shares was entitled to receive in the Transaction.
12. Withholding of Taxes.
The Company shall have the right to deduct from any
distribution of cash to the Optionee, an amount equal to the
federal, state and local income taxes and other amounts as may be
required by law to be withheld (the "Withholding Taxes") with
respect to the Option. If the Optionee is to experience a taxable
event in connection with the receipt of Shares pursuant to an
Option exercise (a "Taxable Event"), the Optionee shall pay the
Withholding Taxes to the Company prior to the issuance, or release
from escrow, of such Shares. In satisfaction of the obligation to
pay Withholding Taxes to the Company, the Optionee may make a
written election (the "Tax Election"), which may be accepted or
rejected in the discretion of the Committee, to have withheld a
portion of the Shares then issuable to the Optionee having an
aggregate Fair Market Value, on the date preceding the date of such
issuance, equal to the Withholding Taxes, provided that if the
Optionee may be subject to liability under Section 16(b) of the
Exchange Act either: (i) (A) the Tax Election is made at least six
(6) months prior to the date of the Taxable Event and (B) the Tax
Election is irrevocable with respect to all Taxable Events of a
similar nature occurring prior to the expiration of six (6) months
following a revocation of the Tax Election, or (ii) (A) the
Optionee makes the Tax Election at least six (6) months after the
date the Option was granted, (B) the Option is exercised during the
10 day period beginning on the third business day and ending on the
12th business day following the release for publication of the
Company's quarterly or annual statement of sales and earnings (a
"Window Period") and (C) the Tax Election is made during the
Window Period in which the related Option is exercised or prior to
such Window Period and subsequent to the immediately preceding
Window Period.
13. Optionee Bound by the Plan.
The Optionee hereby acknowledges receipt of a copy of the Plan
and agrees to be bound by all the terms and provisions thereof.
The Optionee hereby acknowledges receipt of the Prospectus for the
Plan dated February 16, 1994.
14. Modification of Agreement.
This Agreement may be modified, amended, suspended or
terminated, and any terms or conditions may be waived, but only by
a written instrument executed by the parties hereto.
15. Severability.
Should any provision of this Agreement be held by a court of
competent jurisdiction to be unenforceable or invalid for any
reason, the remaining provisions of this Agreement shall not be
affected by such holding and shall continue in full force in
accordance with their terms.
16. Governing Law and Forum.
The validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of the state of
Delaware without giving effect to the conflicts of laws principles
thereof. Any suit brought under this Agreement may be brought in
the appropriate state or federal court for Xxxxxx County, Missouri,
or for the county wherein the Optionee maintains his residence.
Any suit brought by the Company under this Agreement may only be
brought in the county wherein the Optionee maintains his residence
unless the Optionee consents to suit elsewhere.
17. Successors in Interest.
This Agreement shall inure to the benefit of and be binding
upon any Successor Corporation. This Agreement shall inure to the
benefit of the Optionee's legal representatives. All obligations
imposed upon the Optionee and all rights granted to the Company
under this Agreement shall be final, binding and conclusive upon
the Optionee's heirs, executors, administrators, personal
representatives and successors.
18. Resolution of Disputes.
Any dispute or disagreement which may arise under, or as a
result of, or in any way relate to, the interpretation,
construction or application of this Agreement shall be determined
by the Committee. Any determination made hereunder shall be final,
binding and conclusive on the Optionee and Company for all
purposes.
19. Entire Agreement.
This Agreement, together with the documents incorporated
herein by reference, represents the entire agreement between the
parties with regards to the subject matter hereof and this
Agreement may not be modified by any oral or written agreement
unless same is in writing, signed by both parties and has been
approved by the Committee.
20. Effective.
To be effective this Agreement must be executed by the
Optionee and received by the Secretary of the Company within 30
days of the Optionee's receipt of this Agreement. Please retain
one copy of this Agreement for the Optionee's records.
X'XXXXXXXX INDUSTRIES HOLDINGS, INC.
By:_____________________________________
ATTEST:
________________________________________
________________________________________
(Optionee's Signature)
(Optionee's Social Security No. )
EXHIBIT A
NOTICE OF EXERCISE OF NONQUALIFIED STOCK OPTION
AMENDED AND RESTATED 1994 INCENTIVE STOCK PLAN
X'XXXXXXXX INDUSTRIES HOLDINGS, INC.
1. I hereby exercise the option granted to me by
Nonqualified Stock Option Agreement NSO # 94_______ dated the ____
day of _________, ______, as to __________ shares of the Common
Stock subject thereto.
2. I deliver herewith a certified or bank cashier's check
for $________________ [and/or certificate
No.(s) __________________________________ for an aggregate of
______________ shares of outstanding common stock of X'Xxxxxxxx
Industries Holdings, Inc.] in full payment for said shares at the
option price of $_______ per share.
3. I have enclosed (if stock certificates are tendered, but
not otherwise) a properly executed form of stock power for the
transfer of any shares of X'Xxxxxxxx Industries Holdings, Inc.
stock tendered in payment. If the stock certificates are for more
shares than are required for full payment, a certificate for the
excess shares is to be returned to me.
4. My social security number is: __________________
5. My name* and address on the Company's records should be
as follows:
Name: _____________________________________________
Address: _______________________________________________
__________________________________________________
SIGNED this ____ day of ________________, ______.
(NAME PRINTED OR TYPED)
___________________________________
Signature
* If joint ownership with spouse is desired, insert both names.
Registration will be as joint tenants with right of survivorship.
If joint ownership is not desired, show Optionee name only.
SEC\XXXXX\DirPros.wpd
