OF FROZEN FOOD EXPRESS INDUSTRIES, INC. FORM OF AWARD AGREEMENT
Exhibit
10.3 (d)
OF
FROZEN
FOOD EXPRESS INDUSTRIES, INC.
FORM
OF
AWARD
AGREEMENT
This
Option Agreement (this “Agreement”) is made and entered into by and between
Frozen Food Express Industries, Inc., a Texas corporation (“FFE” or the
“Corporation”) and the
(“Optionee”), as of (the
“Date of Grant”). If the Optionee is presently or subsequently becomes employed
by a subsidiary of the Corporation, the term “Corporation” shall be deemed to
refer collectively to Frozen Food Express Industries, Inc., and the subsidiary
or subsidiaries which employ the Optionee.
W I T
N E S S E T H:
WHEREAS,
the Corporation has adopted the Frozen Food Express Industries, Inc., 1992
Incentive and Nonstatutory Option Plan (the “Plan”) to provide an incentive for
key employees and certain consultants and advisors of the corporation to remain
in the service of the Corporation and to extend them the opportunity to acquire
a proprietary interest in the Corporation so that they will apply their best
efforts for the benefit of the Corporation; and
WHEREAS,
the committee established pursuant to the Plan (the “Committee”) believes that
the granting of the stock option herein described to the Optionee is consistent
with the stated purposes for which the Plan was adopted;
NOW,
THEREFORE, in consideration of the mutual covenants and conditions hereinafter
set forth and for good and valuable consideration, the Corporation and the
Optionee agree as follows:
1. Grant
of Option. Under
the terms and conditions of Section 5 of the Plan, a copy of which is attached
hereto and incorporated herein by reference, FFE hereby grants to the Optionee
the right and option (the “Option”) to purchase an aggregate of shares
(such number being subject to adjustment as provided in Section 6 of the Plan)
of the common stock, $1.50 par value (“Common Stock”), of Frozen Food Express
Industries, Inc. (“Plan Shares”).
Subject
to Paragraph 9 herein, the Option granted hereunder is intended to qualify as an
“incentive stock option” under Section 422 of the Internal Revenue Code of 1986,
as amended (the “Code”) and shall be so construed; provided, however, that
nothing in this Agreement shall be interpreted as a representation, guarantee,
or other undertaking on the part of the Corporation that this Option is or will
be determined to be an “incentive stock option” within such section or any other
section of the Code.
2. Exercise
Price. The
price at which the Optionee shall be entitled to purchase the Plan Shares
covered by the Option shall be and
50/100 dollars ($ ) per
Plan Share (the “Exercise Price”).
3. Option
Period. The
Option hereby granted shall be and remain force and effect during the “Option
Period”. The Option Period shall begin on , and end
on the normal close of business of the Corporation on the “Expiration Date”. The
Expiration Date is the earliest of
(i) , or ii)
in the case of the Optionee’s termination of employment, loss of eligibility,
death, retirement or disability, the date specified in Sections 7.1, 7.2, 7.3,
7.4, or 7.5 of the Plan.
4. Exercise
of Option. The
Optionee may exercise the Option at any time during the Option Period, with
respect to all or any part of the Plan Shares covered hereby; provided, however,
that no Option may be exercised for a fraction of a Plan Share, by delivery to
the Committee of written notice of exercise and payment of the purchase price as
provided in Paragraphs 5 and 6 herein.
An Option
will cease to be exercisable with respect to the Plan Shares when the Optionee
purchases the Plan Shares, or when the Option expires or is
terminated.
5. Method
of Exercise. The
Option shall be exercisable only by written notice of exercise (the “Exercise
Notice”) delivered to the Corporation during the term of the Option, which
notice shall (a) state the number of Plan Shares with respect to which the
Option is being exercised, (b) be signed by the Optionee or, if the Optionee is
dead or disabled, by the person authorized to exercise the Option pursuant to
Paragraphs 7.3 and 7.5 of the Plan, (c) be accompanied by the Exercise Price for
all Plan Shares for which the Option is exercised, and (d) include such other
information, instruments, and documents as may be required to satisfy any other
condition to exercise contained herein. The Committee may require that the
Exercise Notice be provided on a form or forms prescribed by the
Committee.
6. Medium
and Time of Payment. The
Exercise Price shall be payable in full upon the exercise of the Option (a) in
cash or by an equivalent means acceptable to the committee, (b) on the
Committee’s prior consent, with shares of Common Stock owned by the Optionee
(including shares received upon exercise of the Option) and having a Fair Market
Value at least equal to the aggregate Exercise Price payable in connection with
such exercise, or (c) by any combination of clauses (a) and (b).
In
addition, at the request of the Optionee and to the extent permitted by
applicable law, the Committee may approve arrangements with a brokerage firm
under which that brokerage firm, on behalf of the Optionee, shall pay to FFE the
Exercise Price of the Option being exercised, and FFE shall promptly deliver the
exercised shares to the brokerage firm (the “Cashless Exercise”). To accomplish
the Cashless Exercise, the Optionee must deliver to FFE an Exercise Notice
containing irrevocable instructions from the Optionee to FFE to deliver the
stock certificates directly to the broker.
7. Nontransferability. The
Option granted by this Agreement shall be exercisable only during the Option
Period provided in Paragraph 3 herein and, except as provided in Sections 7.1,
7.2, 7.3, 7.4, and 7.5 of the Plan, only by the Optionee during the Optionee’s
lifetime and while an employee of the Corporation. No Option granted by this
Agreement is transferable by the Optionee other than by will or pursuant to
applicable laws of descent and distribution. Except as may be necessary to
accomplish the Cashless Exercise, the Option, and any rights and privileges in
connection therewith, cannot be transferred, assigned, pledged, or hypothecated
by the Optionee, or by any other person or persons, in any way, whether by
operation of law, or otherwise, and may not be subject to execution, attachment,
garnishment or similar process. In the event of any such occurrence, this
Agreement will automatically terminate and will thereafter be null and
void.
8. Delivery
of Plan Shares. No Plan
Shares shall be transferred to the Optionee upon exercise of the Option until
(i) the purchase price is paid in full in the manner herein provided, (ii) all
the applicable taxes required to be withheld have been paid or withheld in full,
(iii) the approval of any governmental authority required in connection with the
Option, or the issuance of Plan Shares there under, has been received by FFE,
and (iv) if required by the Committee, the Optionee has delivered to the
Committee assurances in form and content satisfactory to FFE as provided in
Section 7.10 of the Plan.
9. Notice
of Disqualifying Disposition. In
order for FFE to avail itself of any income tax deduction to which it may be
entitled, the Optionee must notify FFE of his disposal of any Plan Shares
purchased pursuant to this Agreement within two (2) years from the Date of Grant
and one (1) year from the date of exercise of this Option. Said notification
shall occur promptly after the disposition and shall include the number of Plan
Shares disposed of, the dates of acquisition and disposition of the Plan Shares,
and the consideration received for such disposition. If in connection with such
disposition FFE becomes liable for withholding taxes and has no amounts owing to
the Optionee with which to discharge its withholding obligation, the Optionee
shall provide FFE with the amount needed to discharge FFE’s withholding
obligation and shall indemnify FFE against any penalties it may incur through
its inability to apply amounts owing the Optionee in discharge of its
withholding obligations.
10. Information
Confidential. As
partial consideration for the granting of this Incentive Stock Option, the
Optionee agrees that he will keep confidential all information and knowledge
that he has relating to the manner and amount of his participation in the Plan;
provided, however, that such information may be disclosed as required by law and
may be given in confidence to the Optionee’s spouse, tax and financial advisors,
or to a financial institution to the extent that such information is necessary
to obtain a loan.
11. Definitions;
Copy of Plan. To the
extent not specifically provided herein, all capitalized terms used in this
Agreement shall have the same meanings ascribed to them in the Plan. By the
execution of this Agreement, the Optionee acknowledges receipt of a copy of the
Plan.
12. Administration. This
Agreement is subject to the terms and conditions of the Plan. The Plan will be
administered by the Committee in accordance with its terms. The Committee has
sole and complete discretion with respect to all matters reserved to it by the
Plan and decisions of the Committee with respect to the Plan and to this
Agreement shall be final and binding upon the Optionee and the Corporation. In
the event of any conflict between the terms and conditions of this Agreement and
the Plan, the provisions of the Plan shall control.
13. Continuation
of Employment. This
Agreement shall not be construed to confer upon the Optionee any right to
continue in the employ of the Corporation and shall not limit the right of the
Corporation, in its sole discretion, to terminate the employment of the Optionee
at any time.
14. Obligation
to Exercise. The
Optionee shall have no obligation to exercise any Option granted by this
Agreement.
15. Governing
Law. This
Agreement shall be interpreted and administered under the laws of the State of
Texas (excluding its conflict of law rules) except to the extent such law is
preempted by federal law.
16. Amendments. This
Agreement may be amended only by a written agreement executed by the Corporation
and the Optionee. Any such amendment shall be made only upon the mutual consent
of the parties, which consent (of either party) may be withheld for any
reason.
17. Termination. The
Corporation may terminate the Plan at any time; however, such termination will
not modify the terms and conditions of the Option granted hereunder unless the
Optionee’s prior written consent is obtained.
IN
WITNESS WHEREOF, the Corporation has caused this Agreement to be duly executed
by its officers thereunto duly authorized, and the Optionee has hereunto set his
hand as of the day and year first above written.
FROZEN FOOD EXPRESS
IDUSTRIES, INC.
By:
Its: Chairman
of the Board
OPTIONEE:
_______________________
