Exhibit 10.(iii)(A)(11)
AWARD NUMBER
7-ELEVEN, INC.
1995 Stock Incentive Plan
1999 Award Agreement
GRANT OF NONQUALIFIED STOCK OPTION (NQSO)
7-Eleven, Inc. (the "Company") hereby grants to, SSN # (the
"Participant") on October 8, 1999 (the "Date of Grant"), pursuant to the
1995 Stock Incentive Plan (the "Plan"), a stock option subject to the
Plan and upon the terms and conditions set forth below. Capitalized
terms used and not otherwise defined herein have the meanings given to
them in the Plan.
1. GRANT OF OPTION
Subject to the terms and conditions hereinafter set forth, the
Company, with the approval and direction of the Committee and the Board
of Directors, grants to the Participant, as of the Date of Grant, an
option to purchase up to shares of Common Stock at a price of $1.875
per share, the Fair Market Value of the Common Stock on the Date of
Grant. Such option is hereinafter referred to as the "Option" and the
shares of stock purchasable upon exercise of the Option are hereinafter
referred to as the "Option Shares." This Option is a Nonqualified Stock
Option, and as such is not intended by the parties hereto to be an
Incentive Stock Option (as such term is defined under the Code).
2. EXERCISABILITY OF OPTIONS
Subject to such further limitations as are provided herein, the
Option shall become exercisable in five (5) installments, the
Participant having the right hereunder to purchase from the Company the
following number of Option Shares upon exercise of the Option, on and
after the following dates, in cumulative fashion:
(a) on and after the first anniversary of the Date of Xxxxx, up to
one-fifth (ignoring fractional shares) of the total number of Option
Shares;
(b) on and after the second anniversary of the Date of Xxxxx, up to
an additional one-fifth (ignoring fractional shares) of the total number
of Option Shares;
(c) on and after the third anniversary of the Date of Xxxxx, up to
an additional one-fifth (ignoring fractional shares) of the total number
of Option Shares;
(d) on and after the fourth anniversary of the Date of Xxxxx, up to
an additional one-fifth (ignoring fractional shares) of the total number
of Option Shares; and
(e) on and after the fifth anniversary of the Date of Xxxxx, the
remaining Option Shares.
Tab 5
3. PERFORMANCE ACCELERATED VESTING
After the first anniversary of the Date of Xxxxx, an additional one-
fifth (ignoring fractional shares) of the total number of Option Shares
shall become exercisable on and after each of the following events:
(a) on and after the twentieth consecutive trading day that the
Closing Price is equal to or greater than $4.00;
(b) on and after the twentieth consecutive trading day that the
Closing Price is equal to or greater than $5.00;
(c) on and after the twentieth consecutive trading day that the
Closing Price is equal to or greater than $6.50; and
(d) on and after the twentieth consecutive trading day that the
Closing Price is equal to or greater than $8.00.
4. Termination of Option
(a) The Option and all rights hereunder with respect thereto, to the
extent such rights shall not have been exercised, shall terminate and
become null and void after the expiration of ten (10) years from the
Date of Grant (the "Option Term") unless sooner terminated pursuant to
paragraphs (b) through (h) below.
(b) If the Participant has an exercisable Option (in whole or in
part) as of the date of the Participant's termination of employment with
the Company, whether voluntary or involuntary, and such termination is
for any reason other than those described in the following paragraphs
(c) through (h) of this Section 4, then the exercisable portion of such
Option shall remain exercisable for a period equal to the lesser of (1)
the remainder of the Option Term or (2) the date which is 60 days after
the date of Participant's termination of employment.
(c) Upon termination of the Participant's employment with the
Company by reason of Normal Retirement, the Option shall become
immediately one hundred percent (100%) vested, and the Participant shall
have until the expiration of the Option Term to exercise the Option.
(d) Upon termination of the Participant's employment with the
Company by reason of Early Retirement or Disability, any portion of the
Option that is not yet vested shall continue to vest and to be
exercisable in accordance with the provisions of Sections 2 and 3 of
this Award Agreement and, once vested, the Option shall remain
exercisable until the expiration of the Option Term unless, prior
thereto, the Participant reaches age 65, at which time all remaining
Options shall vest.
(e) Upon termination of the Participant's employment with the
Company by reason of Divestiture, any portion of the Option that as of
the date of termination is not yet exercisable shall become null and
void as of the date of termination and the portion, if any, of the
Option that is exercisable as of the date of termination shall remain
exercisable for a period equal to the lesser of (1) the remainder of the
Option Term or (2) the date which is one year after the date of
termination.
(f) In the event of death of the Participant, regardless whether the
Participant had previously retired (either Early Retirement or Normal
Retirement) or was Disabled at the time of death, the Option shall
become immediately one hundred percent (100%) vested and the
Participant's Designated Beneficiary shall have twelve (12) months
following the Participant's death during which to exercise the Option.
(g) A transfer of the Participant's employment between the Company
and any Subsidiary of the Company, shall not be deemed to be a
termination of the Participant's employment.
(h) Notwithstanding any other provisions set forth herein or in the
Plan, if the Participant shall (i) commit any act of malfeasance or
wrongdoing affecting the Company or any Subsidiary of the Company, (ii)
breach any covenant not to compete, or employment contract with the
Company or any Subsidiary of the Company, or (iii) engage in conduct
that would warrant the Participant's discharge for cause (excluding
general dissatisfaction with the performance of the Participant's
duties, but including any act of disloyalty or any conduct clearly
discrediting the Company or any Subsidiary or Affiliate of the Company),
any unexercised portion of the Option shall immediately terminate and be
void.
5. EXERCISE OF OPTIONS
(a) The Participant may exercise the Option from time to time with
respect to all or any part of the number of Option Shares then
exercisable hereunder by giving the Company's Manager of Compensation
and Benefits written notice of the intent to exercise. The notice of
exercise shall specify the number of Option Shares as to which the
Option is to be exercised, the Award Number (as indicated on the first
page of the applicable Award Agreement), and the date of the exercise
thereof (the "Exercise Date"), which date shall be within five days
after the giving of such notice.
(b) On or before the Exercise Date, the Participant shall pay the
full amount of the purchase price for the Option Shares in cash (U.S.
dollars) or through the surrender of previously acquired shares of Stock
valued at their Fair Market Value on the Exercise Date. In addition, to
the extent permitted by applicable law, the Participant may arrange with
a brokerage firm for that brokerage firm, on behalf of the Participant,
to pay the Company the Exercise Price of the Option being exercised
(either as a loan to the Participant or from the proceeds of the sale of
Stock issued pursuant to that exercise of the Option), and the Company
shall promptly cause the exercised shares to be delivered to the
brokerage firm. Such transactions shall be effected in accordance with
such further procedures as the Committee may establish from time to
time.
On the Exercise Date or as soon thereafter as is practicable,
the Company shall cause to be delivered to the Participant, a
certificate or certificates for the Option Shares then being purchased
(out of theretofore unissued Stock or reacquired Stock, as the Company
may elect) upon full payment for such Option Shares. The obligation of
the Company to deliver Option Shares shall, however, be subject to the
condition that if at any time the Committee shall determine in its
discretion that the listing, registration or qualification of the Option
or the Option Shares upon any securities exchange or such other
securities trading system or market or under any state or federal law,
or the consent or approval of any governmental regulatory body, is
necessary or desirable as a condition of, or in connection with, the
Option or the issuance or purchase of the Option Shares thereunder, the
Option may not be exercised in whole or in part unless such listing,
registration, qualification, consent or approval shall have been
effected or obtained free of any conditions not acceptable to the
Committee.
(c) If the Participant fails to pay for any of the Option Shares
specified in such notice or to pay any applicable withholding tax
relating thereto or fails to accept delivery of the Option Shares, the
Participant's right to purchase such Option Shares may be terminated by
the Committee.
6. FAIR MARKET VALUE
As used herein, the "fair market value" of a share of Stock shall
be the Closing Price per share of Stock on The Nasdaq Stock Market, or
such other securities trading system or exchange which is the primary
market on which the Stock may then be listed or traded on the date in
question, or if the Stock has not been traded on such date, the Closing
Price on the first day prior thereto on which the Stock was so traded.
7. NO RIGHTS OF SHAREHOLDERS
Neither the Participant nor any personal representative shall be, or
shall have any of the rights and privileges of, a shareholder of the
Company with respect to any shares of Stock purchasable or issuable upon
the exercise of the Option, in whole or in part, prior to the date of
exercise of the Option.
8. NON-TRANSFERABILITY OF OPTION
During the Participant's lifetime, the Option shall be exercisable
only by the Participant or any guardian or legal representative of the
Participant, and the Option shall not be transferable except, in case of
the death of the Participant, by will or the laws of descent and
distribution, nor shall the Option be subject to attachment, execution
or other similar process. In the event of (a) any attempt by the
Participant to alienate, assign, pledge, hypothecate or otherwise
dispose of the Option, except as provided for herein, or (b) the levy of
any attachment, execution or similar process upon the rights or interest
hereby conferred, the Company may terminate the Option by notice to the
Participant and it shall thereupon become null and void.
Notwithstanding the above, in the discretion of the Committee, Options
may be transferable pursuant to a QDRO.
9. RESTRICTIONS ON TRANSFER FOLLOWING EXERCISE
(a) Thirty percent (30%) of the Option Shares (the "Restricted
Option Shares") acquired upon exercise of the Option shall be delivered
to Participant via a stock certificate bearing a legend restricting the
transfer or sale of such Option Shares for a period of 24 months
following the Exercise Date. Seventy percent (70%) of the Option Shares
acquired upon exercise of the Option shall not be subject to any
restriction against the transfer or sale of such Option Shares by the
Participant.
(b) If the Participant's employment with the Company is voluntarily
terminated within the 24-month period following the Exercise Date (other
than due to Early Retirement or Normal Retirement) or is terminated due
to cause, the Company may repurchase the Restricted Option Shares at the
Exercise Price paid by the Participant. If the Company elects not to
purchase such Restricted Option Shares, the Participant shall continue
to hold such Shares subject to the restrictions thereon.
(c) Upon a termination of employment as a result of death,
Disability, Divestiture, Early Retirement or Normal Retirement, any
Restricted Option Shares then held by a Participant or a Participant's
Designated Beneficiary shall be released from, and no Option Shares
acquired after the date of termination shall be subject to, the
restrictions on transfer or sale set forth in paragraph 9(a) above.
Promptly after the date of any such termination, upon receipt of
certificates representing any Restricted Option Shares, the Company
shall exchange any such certificates for certificates representing such
Shares free of any restrictive legend relating to the lapsed
restrictions.
10. WITHHOLDING TAX REQUIREMENTS
Following receipt of each notice of exercise of the Option, the
Company shall deliver to Participant a notice specifying the amount that
Participant is required to pay to satisfy applicable tax withholding
requirements. Participant hereby agrees to either (i) deliver to the
Company by the due date specified in such notice from the Company a
check payable to the Company and equal to the amount set forth in such
notice or (ii) make other appropriate arrangements acceptable to the
Company to satisfy such tax withholding requirements.
11. NO RIGHT TO EMPLOYMENT
Neither the granting of the Option nor its exercise shall be
construed as granting to the Participant any right with respect to
continued employment with the Company.
12. CHANGE IN CONTROL
The Committee shall, in its sole discretion, have the right to
accelerate the vesting of any Option and to release any restrictions on
the Restricted Option Shares, in the event of a Change in Control.
13. ADJUSTMENT OF AWARDS
The terms of this Option and the number of Option Shares purchasable
hereunder shall be subject to adjustment pursuant to Sections 5(c)
through (h) of the Plan.
14. AMENDMENT OF OPTION
The Option may be amended by the Committee at any time (i) if the
Committee determines, in its sole discretion, that amendment is
necessary or advisable in the light of any additions to or changes in
the Code or in the regulations issued thereunder, or any federal or
state securities law or other law or regulation, which change occurs
after the Date of Grant and by its terms applies to the Option; or (ii)
other than in the circumstances described in clause (i), with the
consent of the Participant.
15. NOTICE
Any notice to the Company provided for in this Award Agreement shall
be in writing and addressed to the Company in care of the Manager of
the Company's Compensation and Benefits Department, and any notice to
the Participant shall be in writing and addressed to the Participant at
the Participant's current address shown on the records of the Company or
such other address as the Participant may submit to the Company in
writing. Any notice shall be deemed to be duly given if and when
properly addressed with postage prepaid, or if personally delivered to
the addressee or, in the case of notice to the Company, if sent via
telecopy to the Compensation and Benefits Department's facsimile machine
at such telephone number as may be published in the Company's published
telephone directory.
16. INCORPORATION OF PLAN BY REFERENCE
The Option is granted pursuant to the terms of the Plan, which
terms are incorporated herein by reference, and the Option shall in
all respects be interpreted in accordance with the Plan. The
Committee shall interpret and construe the Plan and this Award
Agreement, and its interpretations and determinations shall be
conclusive and binding on the parties hereto and any other person
claiming an interest hereunder, with respect to any issue arising
hereunder or thereunder. In the event of a conflict between the
terms of this Award Agreement and the Plan, the terms of the Plan
shall control.
17. GOVERNING LAW
The validity, construction, interpretation and effect of this Award
Agreement shall exclusively be governed by and determined in accordance
with the law of the State of Texas, except to the extent preempted by
federal law, which shall to that extent govern.
IN WITNESS WHEREOF, 7-Eleven, Inc., has caused its duly authorized
officer to execute this Grant of Nonqualified Stock Option, and the
Participant has placed his or her signature hereon, effective as of the
Date of Xxxxx.
7-ELEVEN, INC.
By: ---------------------------------------
President and Chief Executive Officer
ACCEPTED AND AGREED TO:
By: ------------------------------
Participant
Participant's Social Security Number:
