XXXXXXX CORPORATION
NONSTATUTORY STOCK OPTION AGREEMENT
Pursuant to the
XXXXXXX CORPORATION
1995 COMPREHENSIVE STOCK OPTION PLAN
THIS AGREEMENT, made and entered into as of the 6th
day of February, 1997, by and between Xxxxxxx Corporation, a North
Carolina corporation (the "Corporation") and XXXX X. XXXX
of Director "Optionee").
WHEREAS, the Corporation has adopted the Xxxxxxx Corporation
1995 Comprehensive Stock Option Plan (the "Plan"); and
WHEREAS, Optionee was a Director of the Corporation or one
of its subsidiaries on the Effective Date of the Plan; and
WHEREAS, pursuant to Section 9 of the Plan, all Directors on
the Effective Date are granted Nonstatutory Stock Options under
the Plan;
NOW, THEREFORE, the Corporation and Optionee agree as
follows:
1. Subject to the terms and conditions set forth herein
and in the Plan, the Corporation grants to Optionee, during the
ten-year period commencing on the Effective Date of the Plan and
ending on the date which is ten years thereafter (hereinafter
called the "Option Period"), the Option to purchase from the
Corporation at a price of $14.375 per share, up to but not
exceeding in the aggregate Ten Thousand (10,000) shares of the
Corporation's Common Stock (the "Option"), which Option may be
exercised in whole or in part, from time to time during the
Option Period, subject to the terms and provisions of the Plan
and this Agreement.
2. The Option granted to the Optionee hereunder may not be
exercised:
(a) Before the Plan is approved by the shareholders of
the Corporation;
(b) If and to the extent required by Rule 16b-3 of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), within the first six (6) months after the date the
Plan is approved by the shareholders of the Corporation;
provided that this six (6) month restriction shall not apply
if the Director dies during such period; or
(c) After the expiration of the Option Period;
provided, however, that the Option shall be subject to
termination before the expiration of the Option Period as
provided in Sections 3(b), 3(c) or 3(d) hereof.
3. The Option hereby granted shall terminate and be of no
force or effect upon the first to occur of the following events:
(a) The expiration of the Option Period;
(b) Except as set forth in Section 3(c) or 3(d)
hereof, the expiration of three months after the Optionee
ceases to be a Director; provided, however, that if the
Optionee ceases to be a Director before the lapse of the six
month period described in Section 2(b) hereof, the
expiration of three months after the lapse of such six month
period;
(c) If the Optionee ceases to be a Director by reason
of the Optionee's death or Disability, the expiration of one
(1) year after such date of death or Disability (during
which such one (1) year period the Option may be exercised
(to the extent otherwise exercisable) by the Optionee (in
the case of Disability) or the person to whom the Optionee's
rights hereunder shall have passed by will or by the laws of
descent and distribution); or
(d) If the Optionee dies after he ceases to be a
Director but within the period that his Option are still
exercisable pursuant to this Agreement, the expiration of
one (1) year after such date of death (during which such one
(1) year period the Option may be exercised (to the extent
otherwise exercisable) by the person to whom the Optionee's
rights hereunder shall have passed by will or by the laws of
descent and distribution).
4. The option hereby granted shall be exercised by an
Optionee by written notice (signed by the Optionee or the
Optionee's successors) delivered to the Corporation at its
offices at 2000 Two First Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000, from time to time, on any business day, specifying the
whole number of shares the Optionee then desires to purchase and
containing the representation that it is the Optionee's current
intention to acquire the shares being purchased for investment
and not for resale. Payment in full of the option price of such
shares must be made at the time the option is exercised and
payment may be made in cash for an amount in U.S. dollars equal
to the option price of such shares. Payment may also be made in
shares of Common Stock of the Corporation previously held by
Optionee or by combining cash and shares previously held.
Payment in shares may be made with shares received upon the
exercise or partial exercise of the Option hereby granted,
whether or not involving a series of exercises or partial
exercises and whether or not share certificates for such shares
surrendered have been delivered to Optionee. Shares of Common
Stock previously held by the Optionee, and surrendered in
accordance with rules and regulations adopted by the Committee
for the purpose of making full or partial payment of the Option
price, shall be valued for such purpose at the Fair Market Value
thereof on the date the Option is exercised. As soon as
practicable after said notice shall have been received, the
Corporation shall deliver to the Optionee a stock certificate
registered in the Optionee's name representing the Option shares.
5. The Options granted hereunder are Nonstatutory Options
and are not intended to qualify for tax treatment under Code
Section 422.
6. Whenever the word "Optionee" is used in any provision
of this Agreement under circumstances where the provision should
logically be construed to apply to the estate, personal
representative, or beneficiary to whom this Option may be
transferred by will or by the laws of descent and distribution,
it shall be deemed to include such person.
7. Optionee shall not be deemed for any purpose to be a
shareholder of the Corporation with respect to any shares as to
which this Option shall not have been exercised and payment made
as herein provided and a stock certificate for such shares
actually issued to Optionee. No adjustment will be made for
dividends or other rights for which the record date is prior to
the date of such issuance.
8. In addition to and notwithstanding anything to the
contrary contained in the Plan, in the event of (i) the adoption
of a plan of merger or consolidation of the Corporation with any
other corporation or association as a result of which the holders
of the voting capital stock of the Corporation as a group would
receive less than 50% of the voting capital stock of the
surviving or resulting corporation; (ii) the approval by the
Board of Directors of the Corporation of an agreement providing
for the sale or transfer (other than as security for obligations
of the Corporation) of substantially all the assets of the
Corporation, or (iii) in the absence of a prior expression of
approval of the Board of Directors, the acquisition of more than
20% of the Corporation's voting capital stock by any person
within the meaning of Section 13(d)(3) of the Act, other than a
person, or group including a person, who beneficially owned, as
of the Effective Date of the Plan, more than 7% of the
Corporation's securities; then, the Option granted hereunder
shall become immediately exercisable in full, subject to any
appropriate adjustments in the number of shares subject to the
Option and the option price, and shall remain exercisable for the
remaining term of such Option, regardless of whether such Option
has been outstanding for six months or of any provision contained
herein or in the Plan with limiting the exercisability of the
Option or any portion thereof for any length of time, but subject
to all of the terms hereof and of the Plan not inconsistent with
this paragraph.
The existence of this Option shall not affect in any way the
right or power of the Corporation or its subsidiaries to make
adjustments, reclassifications, reorganizations or other changes
in the Corporation's capital structure or its business, or to
issue any bonds, debentures, preferred or prior preference stocks
ahead of or convertible into, or otherwise affecting the Common
Stock or the rights thereof, or to merge or consolidate, or to
dissolve or liquidate, or to sell or transfer all or any part of
its assets or business, or any other corporation act or
proceeding, whether of a similar character or otherwise.
9. Anything in this Agreement to the contrary
notwithstanding, if, at any time specified herein for the issue
of shares to Optionee, any law, or any regulation or requirement
of the Securities and Exchange Commission or any other
governmental authority having jurisdiction in the premises, shall
require either the Corporation or Optionee to take any action in
connection with the shares then to be issued, the issue of such
shares shall be deferred until such action shall have been taken;
the Corporation shall be under no obligation to take such action;
and the Corporation shall have no liability whatsoever as a
result of the non-issuance of such shares, except to refund to
the Optionee any consideration tendered in respect of the
exercise price.
10. Any dispute or disagreement which shall arise under, or
as a result of, or pursuant to, this Agreement shall be
determined by the Committee (as that term is defined in the Plan)
in its absolute and uncontrolled discretion, and the
determinations or interpretations by the Committee shall be
final, binding and conclusive on all persons affected thereby.
The Plan and Agreement may be amended, modified, discontinued or
terminated as provided in Section 14 of the Plan.
11. Any notice which either party hereto may be required or
permitted to give to the other shall be in writing, and may be
delivered personally or by mail, postage prepaid, addressed as
follows: to the Secretary of the Corporation, at 2000 Two First
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, or at such other
address as the Corporation, by notice to Optionee, may designate
in writing from time to time; to Optionee, at Optionee's address
as shown herein, or at such other address as Optionee, by notice
to the Corporation, may designate in writing from time to time.
12. Shares of Common Stock issued pursuant to the exercise
of this Option will be issued only in the name of Optionee and
may not be transferred into the name of any agent of or nominee
for Optionee until such time as a disposition of such shares
would satisfy the holding period requirements of Section
422(a)(1) of the Internal Revenue Code of 1986, as amended.
13. This Agreement is subject in all respects to the terms
and conditions contained in the Plan, a copy of which is attached
hereto and incorporated herein by reference. All capitalized
terms used but not defined herein shall have the same meaning as
set forth in Section 1 of the Plan, unless the context clearly
indicates otherwise.
IN WITNESS WHEREOF, the Corporation has caused this
Agreement to be executed by its duly authorized officer, and
Optionee has hereunto set Optionee's hand and seal, all on the
day and year first above written.
XXXXXXX CORPORATION
Attest By: /S/ X. X. XXXXXXX
Title: Vice President - Finance
/S/ X. X. XXXXXXXXX
Title: Secretary
(Corporate Seal)
OPTIONEE:
/S/ XXXX X. XXXX (SEAL)
Address
Xxxx Stores Services
0000 X. Xxxxxx Xx.
Xxxxxxxxx, XX 00000-0000
Social Security No.
000 00 0000
