EXHIBIT 10.4
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FORM OF
NONQUALIFIED STOCK OPTION AGREEMENT
GRANTED TO: [name of employee]
DATE OF GRANT: [date]
GRANTED PURSUANT TO: Weiner's Stores, Inc. 1999 Stock Incentive
Plan
NUMBER OF UNDERLYING SHARES: [number of shares]
EXERCISE PRICE: [exercise price]
VESTING SCHEDULE: [brief description of vesting schedule]
1. This Nonqualified Stock Option Agreement (the "Agreement") is made
and entered into as of [ date ] (the "Date of Grant") between Weiner's Stores,
Inc., a Delaware corporation (the "Company") and [ name of employee ] (the
"Employee"). It is the intent of the Company and the Employee that the Option
(as defined in Paragraph 2 below) will not qualify as an "incentive stock
option" under Section 422 of the Internal Revenue Code of 1986, as amended from
time to time.
2. The Employee is granted an option to purchase [ number of shares ]
shares of Weiner's Stores, Inc. Common Stock (the "Option"). The Option is
granted under the Weiner's Stores, Inc. 1999 Stock Incentive Plan (the "Plan"),
a copy of which is enclosed herewith, and is subject to the terms of the Plan
and of this Agreement. Capitalized terms not defined herein shall have the
meanings ascribed thereto in the Plan [or, if not defined therein, in the
employment agreement between the Company and the Employee]. The Option granted
hereunder is a matter of separate inducement and is not in lieu of salary or
other compensation for the Employee's services.
3. The Option's Exercise Price is $__________ per share.
4. Subject to Paragraphs 5 and 6 below, the Option shall become
exercisable according to the vesting schedule set forth below:
[ number ] shares shall become exercisable on [ date ] and
shall remain exercisable until [ date ];
[ number ] shares shall become exercisable on [ date ] and
shall remain exercisable until [ date ]; and
[ number ] shares shall become exercisable on [ date ] and
shall remain exercisable until [ date ].
[Optional provisions:]
Notwithstanding anything contained in this Agreement to the contrary, the entire
Option shall immediately become exercisable on the date of a change in control
of the Company and shall remain exercisable until [ date ]. For purposes of this
Agreement, [whether a change in control of the Company has occurred shall be
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determined by applying the corresponding provision in the Employee's employment
agreement that determines whether a change in control of the Company has
occurred] [or] [a change in control of the Company shall occur when any "person"
(as such term is used in Sections 3(a)(9) and 13(d) of the Exchange Act) becomes
a "beneficial owner" (as such term is used in Rule 13d-3 under the Exchange Act)
of more than 50 percent of the Voting Stock of the Company, except as may
otherwise be provided for in a confirmed plan of reorganization. For purposes of
this Paragraph 4, "Voting Stock" shall mean capital stock of any class or
classes having general voting power under ordinary circumstances, in the absence
of contingencies, to elect the directors of a corporation].
5. The Option, unless sooner terminated or exercised in full, shall
expire on [ expiration date ] and, notwithstanding anything herein to the
contrary, no portion of the Option may be exercised after such date.
6. (a) Death of Employee. In the event of the death of the Employee,
the unexercisable portion of the Option held by the Employee on the date of the
Employee's death shall immediately become exercisable as of such date and the
entire Option held by the Employee on such date shall remain exercisable until
the earlier of (i) the end of the 12-month period following the date of the
Employee's death or (ii) the date the Option would otherwise expire.
(b) Retirement of Employee. If the Employee's employment is
terminated due to retirement, the unexercisable portion of the Option held by
the Employee on the date of the Employee's retirement shall immediately be
forfeited by the Employee as of such date, and the exercisable portion of the
Option held by the Employee on such date shall remain exercisable until the
earlier of (i) the end of the 3-month period following the date of the
Employee's retirement or (ii) the date the Option would otherwise expire.
(c) Termination of Employee's Employment for Cause or Voluntary
Termination of Employment. If the Employee's employment is terminated (i) by the
Company or any of its subsidiaries for Cause or (ii) by the Employee without
Good Reason (other than due to death, Disability or retirement), the entire
Option (both the exercisable and unexercisable portions of the Option) held by
the Employee on the date of the termination of his or her employment shall
immediately be forfeited by the Employee as of such date.
(d) Termination of Employee's Employment Due to Disability, or
Without Cause, or for Good Reason. If the Employee's employment is terminated
(i) due to Disability, (ii) by the Company or any of its subsidiaries without
Cause or (iii) by the Employee for Good Reason, the unexercisable portion of the
Option held by the Employee on the date of the termination of his or her
employment shall immediately become exercisable as of such date and the entire
Option held by the Employee on such date shall remain exercisable until the
earlier of (x) the end of the 3-month period following the date of the
termination of the Employee's employment or (y) the date the Option would
otherwise expire.
(e) Definitions. For purposes of this Agreement, the definitions of
the terms "Cause," "Good Reason" and "Disability" shall be the same definitions
of such terms as defined in the Employee's employment agreement with the Company
as in effect; if there is no employment agreement between the Company and the
Employee in effect, the definitions of the terms "Cause," "Good Reason" and
"Disability" are set forth on Exhibit A attached hereto.
7. During the Employee's lifetime, the Option shall not be subject in
any manner to alienation, anticipation, sale, assignment, pledge, encumbrance or
other transfer and shall be exercisable only by the Employee. Upon the death of
the Employee, (i) the Option shall be exercisable only by the executor or
administrator of the estate of the deceased Employee or the person or persons to
whom the deceased Employee's rights with respect to the Option shall pass by
will or the laws of descent and distribution and (ii) the Option shall be
exercisable (x) during the period specified in Paragraph 6(a) above, if the
Employee's employment terminated as a result of his or her death, or (y) during
the same period that the Option would have been exercisable by the Employee if
he or she had survived, if the Employee's death occurred after the Employee's
employment terminated.
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8. The Employee may exercise the Option regardless of whether any
other option that the Employee has been granted by the Company remains
unexercised. In no event may the Employee exercise the Option for a fraction of
a share or for less than 100 shares.
9. Any exercise of the Option shall be in writing addressed to the
Corporate Secretary of the Company at the principal place of business of the
Company, specifying the Option being exercised and the number of shares to be
purchased. The Option's Exercise Price shall be paid by the Employee on the date
the Option is exercised in cash or, if permitted by the Committee in its sole
discretion, in shares of Common Stock owned by the Employee or by a combination
of cash and previously owned shares. Any shares of Common Stock delivered in
payment of the Exercise Price shall be valued at their then Fair Market Value.
10. By his or her acceptance of this Agreement, the Employee agrees
to reimburse the Company for any taxes required by any government to be withheld
or otherwise deducted and paid by the Company with respect to the issuance or
disposition of the shares subject to the Option. In lieu thereof, the Company
shall have the right to withhold the amount of such taxes from any other sums
due or to become due from the Company to the Employee. The Company may, in its
discretion, hold the stock certificate or certificates to which the Employee is
entitled upon the exercise of the Option as security for the payment of such
withholding tax liability, until cash sufficient to pay that liability has been
accumulated. In addition, at any time that the Company becomes subject to a
withholding obligation under applicable law with respect to the exercise of a
Nonqualified Stock Option (the "Tax Date"), except as set forth below, a holder
of a Nonqualified Stock Option may elect to satisfy, in whole or in part, the
holder's related personal tax liabilities (an "Election") by (a) directing the
Company to withhold from shares issuable in the related exercise either a
specified number of shares or shares having a specified value (in each case not
in excess of the related personal tax liabilities), (b) tendering shares
previously issued pursuant to the exercise of an Award or other shares of the
Company's Common Stock owned by the holder or (c) combining any or all of the
foregoing Elections in any fashion. An Election shall be irrevocable. The
withheld shares and other shares of Common Stock tendered in payment shall be
valued at their Fair Market Value on the Tax Date. The Committee may disapprove
of any Election, suspend or terminate the right to make Elections or provide
that the right to make Elections shall not apply to particular shares or
exercises. The Committee may impose any additional conditions or restrictions on
the right to make an Election as it shall deem appropriate, including any
limitations necessary to comply with Section 16 of the Exchange Act.
11. The Employee shall not have any of the rights of a stockholder
with respect to the shares of Common Stock underlying the Option until the
Option is exercised and the Employee receives such shares.
12. If the Company, in its sole discretion, shall determine that it
is necessary, to comply with applicable securities laws, the certificate or
certificates representing the shares purchased pursuant to the exercise of the
Option shall bear an appropriate legend in form and substance, as determined by
the Company, giving notice of applicable restrictions on transfer under or with
respect to such laws.
13. The Employee covenants and agrees with the Company that if, at
the time of exercise of the Option, there does not exist a Registration
Statement on an appropriate form under the Securities Act of 1933, as amended
(the "Act"), which Registration Statement shall have become effective and shall
include a prospectus that is current with respect to the shares subject to the
Option, (i) that he or she is purchasing the shares for his or her own account
and not with a view to the resale or distribution thereof, (ii) that any
subsequent offer for sale or sale of any such shares shall be made either
pursuant to (x) a Registration Statement on an appropriate form under the Act,
which Registration Statement shall have become effective and shall be current
with respect to the shares being offered and sold, or (y) a specific exemption
from the registration requirements of the Act and any rules or regulations
thereunder and any applicable state securities laws and regulations, but in
claiming such exemption, the Employee shall, prior to any offer for sale or sale
of such shares, obtain a favorable written opinion from counsel for or approved
by the Company as to the applicability of such exemption and (iii) that the
Employee agrees that the certificate or certificates evidencing such shares
shall bear a legend to the effect of the foregoing.
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14. This Agreement is subject to all terms, conditions, limitations
and restrictions contained in the Plan, which shall be controlling in the event
of any conflicting or inconsistent provisions.
15. This Agreement is not a contract of employment and the terms of
the Employee's employment shall not be affected hereby or by any agreement
referred to herein except to the extent specifically so provided herein or
therein. Nothing herein shall be construed to impose any obligation on the
Company to continue the Employee's employment, and it shall not impose any
obligation on the Employee's part to remain in the employ of the Company.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the date written below.
WEINER'S STORES, INC.
By:
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Name:
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Title:
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ACCEPTED:
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Signature of Employee
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Name of Employee (please print)
Date:
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EXHIBIT A
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The terms "Cause," "Good Reason," and "Disability" shall have the
meanings set forth below:
I. "Cause" shall mean:
(1) fraud;
(2) material dishonesty relating to the conduct of the business
of the Company or dishonesty which does not relate to the
conduct of the business of the Company which adversely
affects the Company or the Employee's ability to manage the
business of the Company;
(3) the Employee engages in conduct that constitutes willful
gross neglect or willful gross misconduct in carrying out
the Employee's duties as an employee, resulting, in either
case, in material economic harm to the Company, other than:
(A) conduct which is the result of the Employee's
exercise of reasonable business judgment which
merely differs from the business judgment of
the Company's chief executive officer; or
(B) any act or omission which in the Employee's
reasonable and good faith belief was in or not
opposed to the best interests of the Company;
(4) embezzlement;
(5) chronic alcoholism or chronic drug dependency that in
either case precludes the Employee from performing his or
her duties as an employee of the Company; or
(6) the conviction of, or plea of guilty or nolo contendere to,
a felony or any crime involving (i) securities or
commodities laws violations or (ii) moral turpitude.
II. "Good Reason" shall mean the occurrence of any of the following
events within the 30-day period preceding the termination of employment by the
Employee:
(1) a reduction of the Employee's base salary (other than any
reduction applicable to management employees generally);
(2) a material reduction in the Employee's position, duties or
responsibilities with respect to his or her employment by
the Company without the Employee's prior consent;
(3) a change in the Employee's principal work location by more
than 50 miles and more than 50 miles from the Employee's
principal place of abode as of the date of such change in
job location without the Employee's prior consent; or
(4) the failure of the Company to obtain the assumption in
writing of its obligations to pay any earned compensation
under the Plan by any purchaser or other transferee of all
or substantially all of the assets of the Company within 15
days after a merger, consolidation, sale or similar
transaction.
III. "Disability" shall mean a disability as determined under the
Company's then existing long-term disability plan or program.
