EXHIBIT 10.26
FIRST AMENDMENT TO NON-QUALIFIED STOCK OPTION AGREEMENT
This First Amendment to Non-Qualified Stock Option
Agreement dated as of this 15th day of December, 1995 (the
"Amendment") by and between Foodbrands America, Inc., formerly
known as Xxxxxxxx Companies Incorporated (the "Corporation"), and
Xxxxx X. Xxxxxx (the "Optionee").
WHEREAS, the Corporation and the Optionee entered into
that certain Non-Qualified Stock Option Agreement dated September
29, 1994 (the "Agreement"); and
WHEREAS, the Corporation and the Optionee mutually
desire to amend the Agreement; and
WHEREAS, in connection with his agreement to become an
employee of the Corporation, the Optionee received a letter dated
September 28, 1994 (the "Letter") from the Chairman, President
and Chief Executive Officer of the Corporation setting forth
certain provisions with respect to certain stock option grants to
be made to the Optionee; and
WHEREAS, certain provisions of the Agreement are in
conflict with certain provisions of the Letter and it is the
intent of the parties hereto that the Letter and the Agreement be
consistent; and
WHEREAS, the purpose of this Amendment is to
incorporate certain provisions from the Letter into the Agreement
so that the inconsistency between the Letter and the Agreement
can be corrected; and
WHEREAS, the Board of Directors has approved this
Amendment at a meeting held on December 14, 1995.
NOW, THEREFORE, in consideration of the foregoing and
the mutual covenants and agreements set forth herein, the
Corporation and the Optionee hereby amend the Agreement as
follows:
1. The Amendments.
(a) Section 3. Section 3 of the Agreement is
amended by adding the following new
subsections (d) and (e):
(d) If a Change of Control Event occurs, the
Option shall vest on the date of such
event provided the Optionee is an
employee of the Corporation on such date
(consistent with Section 7(c) of this
Agreement).
(e) Notwithstanding the foregoing, the
Option, to the extent it has not been
previously exercised, shall be cancelled
in the event of a material breach by the
Optionee of Section 6 of that certain
Transition Employment Agreement dated
November 1, 1994 between the Corporation
and the Optionee prior to the occurrence
of a Change of Control Event if such
breach causes financial injury to the
Corporation.
(b) Section 7(b). The Agreement is amended by
deleting Section 7(b) in its entirety and
replacing it with the following:
(b) If the Optionee dies (i) on or prior
to July 31, 1997 or (ii) on or after January
1, 2000 but before the Option Expiration Date
and is employed by the Corporation or a
Subsidiary of the Corporation at the time of
death, or if the Optionee dies within a
period of three months following the
termination of his or her employment (but
before the Option Expiration Date), the
Option may be exercised, to the extent the
Optionee was entitled to exercise the
Optionas of the date of his or her death,
within a period ending on the earlier to
occur of (A) the date which is one year
following the date of death, or (B) the
Option Expiration Date. Under such
circumstances, the Option may be exercised by
the Beneficiary named by the Optionee in a
valid Beneficiary designation filed with the
Committee, as more fully described in Section
12 hereof, and if no such Beneficiary
designation has been filed with the Committee
at such time, or if no such designated
Beneficiary has survived the Optionee, then
the Option may be exercised by the executor
or administrator of the estate of the
Optionee, or by the person or persons who
shall have acquired the Option directly from
the Optionee by bequest or inheritance.
(c) Section 7(d). Section 7(d) of the Agreement
is amended by deleting it in its entirety.
2. The Agreement. The term "Agreement" as used in
the Non-Qualified Stock Option Agreement and in this Amendment
shall hereafter mean the Non-Qualified Stock Option Agreement as
amended by this Amendment. The Non-Qualified Stock Option
Agreement, as amended hereby, shall continue in full force and
effect in accordance with the terms thereof.
3. Governing Law. This Amendment shall be governed
by and construed in accordance with the laws of the State of
Oklahoma.
IN WITNESS WHEREOF, the parties have caused this
Amendment to be duly executed on the date first above written.
FOODBRANDS AMERICA, INC.
By: (R. Xxxxxxxx Xxxxxxxx)
R. Xxxxxxxx Xxxxxxxx, Chairman,
President and Chief Executive
Officer
(Xxxxx X. Xxxxxx)
Xxxxx X. Xxxxxx
