XXXXXX INDUSTRIES INC.
NON-QUALIFIED STOCK OPTION
FOR XXXXXX INDUSTRIES EMPLOYEES
THIS OPTION, Granted this ____ day of _________________, by
XXXXXX INDUSTRIES INC., a Delaware corporation (the "Company"), to _________
(the "Employee");
To further the purpose of the Company's Amended and Restated 1995 Incentive
Stock Plan (the "Plan"), and in consideration of the services required under
paragraph 2 to receive benefits hereunder, the Company hereby grants this option
to the Employee on the terms hereinafter expressed:
1. Option Grant. The Company hereby grants to the Employee a non-qualified
stock option to purchase a total of ___ shares of Common Stock of the
Company at the option price of $____ per share, being at least equal
to 100 percent of the fair market value of such shares on the date
hereof.
2. Time of Exercise. This option may be exercised (in the manner provided
in paragraph 3 hereof) in whole or in part, from time to time after the
date hereof, subject to the following limitations:
a. This option may not be exercised during the first ____ year(s)
from the date hereof. Thereafter, it may be exercised to a
maximum cumulative extent of ___percent of the total shares
covered by the option in the third year from the date hereof, ___
percent of the total shares in the fourth year from the date
hereof, and ___ percent of the total shares in the fifth year
from the date hereof. After the end of the fifth year from the
date hereof, this option may be exercised in full.
Notwithstanding the above, this option shall become immediately
exercisable in full upon:
(i) The death of the Employee; or
(ii)The occurrence of a "change of control" of the Company. A
change of control of the Company shall be deemed to occur
upon the happening of any of the following:
(a) Any person (as that term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, but
excluding the Company, its affiliates and any qualified
or non-qualified plan maintained by the Company or its
affiliates) becomes the "beneficial owner" (as defined
in Rule 13d-3 promulgated under such Act), directly or
indirectly, of securities of the Company representing
30 percent or more of the combined voting power of the
Company's then outstanding securities; unless the Board
of Directors determines that such event does not
constitute a change of control;
(b) During any period of two consecutive years, individuals
who at the beginning of any such period constitute the
directors of the Company cease for any reason to
constitute at least a majority thereof unless the
election, or the nomination for election by the
Company's shareholders, of each new director of the
Company was approved by a vote of at least two-thirds
of such directors of the Company then still in office
who were directors of the Company at the beginning of
any such period;
(c) Shareholder approval of a combination of the Company
(by merger, share exchange, consolidation, or
otherwise) with another corporation and, as a result of
such combination, less than 75 percent of the
outstanding securities of the surviving or resulting
corporation are owned in the aggregate by the former
shareholders of the Company; or
(d) The Company sells, leases, or otherwise transfers all
or substantially all of its properties or assets to
another person or entity.
(iii) The Employee's termination of employment on account of
Total and Permanent Disability, as defined in the Xxxxxx
Industries Retirement Savings and Investment Plan or the
Employee's retirement after 30 years of service and
attainment of age 60.
b. This option may not be exercised:
(i) More than three months after the
termination of the Employee's employment by the Company or a
subsidiary for any reason other than retirement, Total and
Permanent Disability, or death; or
(ii) More than twelve months after termination of employment by
reason of Total and Permanent Disability, retirement at age
60, or death; or
(iii) More than ten years from the date hereof.
c. This option shall not be affected by leaves of absence
approved in writing by the President of the Company or
by any change of employment so long as the Employee
continues to be an employee of the Company or of a
subsidiary. Nothing in this option shall confer on the
Employee any right to continue in the employ of the
Company or of any of its subsidiaries or to interfere
with the right of the Company or of such subsidiary to
terminate his employment at any time.
3. Exercise of Option. This option may be exercised only by appropriate
notice in writing delivered to the Secretary of the Company at
Louisville, Kentucky, and accompanied by:
a. Either (i) a certified or cashier's check payable to the order of
the Company for the full purchase price of the shares purchased
together with any required tax withholding, (ii) the tender (or
the certification of ownership) of shares of Common Stock of the
Company already owned by the Employee for a period of at least
six months and having a fair market value equal to the option
price and the required tax withholding, or (iii) a combination of
the foregoing; or (iv) 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 options shares to pay the option price and any required tax
withholding; and
b. Such other documents or representations (including, without
limitation, representations as to the intention of the Employee,
or other purchaser under paragraphs 4 and 5, to acquire the
shares for investment) as the Company may reasonably request in
order to comply with securities, tax, or other laws then
applicable to the exercise of the option. The Employee may
satisfy any tax withholding obligation in whole or in part by
electing to have the Company retain option shares, having a fair
market value on the date of exercise equal to the amount required
to be withheld.
2
4. Non-Transferability of Option. This option is not transferable by the
Employee otherwise than by will or the laws of descent and
distribution, and is exercisable, during the Employee's lifetime, only
by him. At the discretion of the Compensation Committee of the Board of
Directors (the "Committee"), this option may be transferred to members
of the employee's immediate family, or trusts or family partnership for
the benefit of such persons, subject to terms and conditions
established by the Company.
5. Death of Employee. If the Employee dies during the option period, this
option may be exercised in whole or in part, and from time to time, for
the period described in paragraph 2(b) hereof and in the manner
described in paragraph 3 hereof, by his estate or the person to whom
the option passes by will or the laws of descent and distribution.
6. Adjustment Provisions. In the event that there is any increase in the
number of issued Common Stock of the Company without new consideration
to the Company therefor, by reason of stock dividends, stock split-ups,
or like recapitalizations, the number of Common Stock which may
thereafter be purchased under this option shall be increased in the
same proportion as said increase in issued Common Stock. In such event,
the per share purchase price specified in paragraph 1 above shall be
reduced so that the total consideration payable to the Company for the
increased number of Common Stock remaining subject to this option shall
not be changed by reason of such increase in number of shares.
If, during the term of this option, the Common Stock of the Company
shall be combined or be changed into the same or another kind of stock
of the Company or into securities of another corporation, cash,
evidence of indebtedness, other property, or any combination thereof
(the "Acquisition Consideration"), whether through recapitalization,
reorganization, sale, merger, consolidation, or other similar
transaction, the Company shall cause adequate provision to be made
whereby the Employee shall thereafter be entitled to receive, upon the
due exercise of any then unexercised portion of this option, the
Acquisition Consideration the Employee would have been entitled to
receive for Common Stock acquired through exercise of such portion of
the option (regardless of whether or to what extent the option would
then have been exercisable) immediately prior to the effective date of
such transaction. If appropriate, due adjustment shall be made in the
per share or per unit price of the securities purchased on exercise of
this option following said transaction.
The terms and conditions of this option may also be subject to other
adjustments in accordance with Section 11 of the Plan in the event of
an extraordinary dividend or other distribution or the occurrence of
any other unusual or extraordinary corporate transaction involving the
Company's Common Stock or assets, as set forth in Section 11.
7. Applicable Plan. This option is granted under and subject to the terms
and conditions of the Company's 1995 Amended & Restated Incentive Stock
Plan.
IN WITNESS WHEREOF, The Company has caused this option to be executed
on the date first above written.
XXXXXX INDUSTRIES INC.
By_____________________________
