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EXHIBIT 10.19
WHITEHALL JEWELLERS, INC.
1997 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
Whitehall Jewellers, Inc., a Delaware corporation (the "Company"), hereby
grants to "FirstName" "LastName" (the "Optionee") as of "Date" (the "Option
Date"), pursuant to the provisions of the Company's 1997 Long-Term Incentive
Plan (the "Plan"), a non-qualified option to purchase from the Company (the
"Option") "Shares" shares of its Common Stock, $.001 par value ("Stock"), at the
price of "Price" per share upon and subject to the terms and conditions set
forth below. Capitalized terms not defined herein shall have the meanings
specified in the Plan.
1. Option Subject to Acceptance of Agreement. The Option shall be null and
void unless the Optionee shall accept this Agreement by executing it in the
space provided below and returning such original execution copy to the Company.
2. Time and Manner of Exercise of Option.
2.1. Maximum Term of Option. In no event may the Option be exercised, in
whole or in part, after the tenth anniversary of the Option Date (the
"Expiration Date").
2.2. Exercise of Option. (a) The Option shall not be exercisable during the
first year following the Option Date. Thereafter, the Option may be exercised:
(i) on or after the first anniversary of the Option Date, for up to one-third of
the shares of Stock subject to the Option on the Option Date, (ii) on or after
the second anniversary of the Option Date, for up to an additional one-third
(two-thirds on a cumulative basis) of the shares of Stock subject to the Option
on the Option Date, (iii) on or after the third anniversary of the Option Date,
for up to the remaining one-third (all shares on a cumulative basis) of the
shares of Stock subject to the Option on the Option Date, and (iv) as otherwise
provided herein or pursuant to any acceleration provisions of the Plan. An
exercisable option, or portion thereof, may be exercised in whole or in part
only with respect to whole shares of Common Stock.
(b) If the Optionee ceases to be a director of the Company by reason of
Disability, the Option shall be exercisable only to the extent it is exercisable
on the effective date of the Optionee's ceasing to be a director and may
thereafter be exercised by the Optionee (or the Optionee's Legal Representative
or Permitted Transferees) until the earliest to occur of (i) the date which is
three months after the effective date of the Optionee's ceasing to be a director
and (ii) the Expiration Date.
(c) If the Optionee ceases to be a director of the Company on or after age
65, the Option shall be exercisable only to the extent that it is exercisable on
the effective date of the Optionee's ceasing to be a director and may thereafter
be exercised by the Optionee (or the Optionee's Legal Representative or
Permitted Transferees) until the earliest to occur of (i) the date which is
three months after the effective date of the Optionee's ceasing to be a director
and (ii) the Expiration Date.
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(d) If the Optionee ceases to be a director of the Company by reason of
death, the Option shall be fully exercisable and may thereafter be exercised by
the Optionee's Legal Representative or Permitted Transferees, as the case may
be, until the earliest to occur of (i) the date which is one year after the date
of death and (ii) the Expiration Date.
(e) If the Optionee ceases to be a director of the Company for any reason
other than Disability, retirement on or after age 65 or death, the Option shall
be exercisable only to the extent it is exercisable on the effective date of the
Optionee's ceasing to be a director and may thereafter be exercised by the
Optionee (or the Optionee's Legal Representative or Permitted Transferees) until
the earliest to occur of (i) the date which is three months after the effective
date of the Optionee's ceasing to be a director and (ii) the Expiration Date.
(f) If the Optionee dies during the three-month period following the
Optionee's ceasing to be a director of the Company by reason of Disability, or
if the Optionee dies during the three-month period following the Optionee's
ceasing to be a director of the Company on or after age 65, or the Optionee dies
during the three-month period following the Optionee's ceasing to be a director
for any reason other than by reason of Disability or retirement on or after age
65, the Option shall be exercisable only to the extent that it is exercisable on
the date of the Optionee's death and may thereafter be exercised by the
Optionee's Legal Representative or Permitted Transferees, as the case may be,
until the earliest to occur of (i)the date one year after the date of death and
(ii) the Expiration Date.
2.3 Method of Exercise. Subject to the limitations set forth in this
Agreement, the Option may be exercised in whole or in part by the Optionee (1)
by giving written notice to the Company specifying the number of whole shares of
Stock to be purchased and accompanied by payment therefor in full (or
arrangement made for such payment to the Company's satisfaction) either (i) in
cash, (ii) by delivery of previously owned whole shares of Stock (which the
Optionee has held for at least six months prior to the delivery of such shares
or which the Optionee purchased on the open market and for which the Optionee
has good title, free and clear of all liens and encumbrances) having a Fair
Market Value, determined as of the date of exercise, equal to the aggregate
purchase price payable pursuant to the Option by reason of such exercise, (iii)
by authorizing the Company to withhold whole shares of Stock which would
otherwise be delivered upon exercise of the Option having a Fair Market Value,
determined as of the date of exercise, equal to the aggregate purchase price
payable pursuant to the Option by reason of such exercise, (iv) in cash by a
broker-dealer acceptable to the Company to whom the Optionee has submitted an
irrevocable notice of exercise or (v) a combination of (i), (ii) and (iii), and
(2) by executing such documents as the Company may reasonably request. The
Committee shall have sole discretion to disapprove of an election pursuant to
any of clauses (ii)-(v) and if the Optionee is subject to Section 16 of the
Exchange Act, the Company may require that the method of making such payment be
in compliance with Section 16 and the rules and regulations thereunder. Any
fraction of a share of Stock which would be required to pay such purchase price
shall be disregarded and the remaining amount due shall be paid in cash by the
Optionee. No certificate representing a share of Stock shall be delivered until
the full purchase price therefor has been paid.
2.4 Termination of Option. (a) In no event may the Option be exercised
after it terminates as set forth in this Section 2.4. The Option shall
terminate, to the extent not
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exercised pursuant to Section 2.3 or earlier terminated pursuant to Section 2.2,
on the Expiration Date.
(b) In the event that rights to purchase all or a portion of the shares of
Stock subject to the Option expire or are exercised, canceled or forfeited, the
Optionee shall, upon the Company's request, promptly return this Agreement to
the Company for full or partial cancellation, as the case may be. Such
cancellation shall be effective regardless of whether the Optionee returns this
Agreement. If the Optionee continues to have rights to purchase shares of Stock
hereunder, the Company shall, within 10 days of the Optionee's delivery of this
Agreement to the Company, either (i) mark this Agreement to indicate the extent
to which the Option has expired or been exercised, canceled or forfeited or (ii)
issue to the Optionee a substitute option agreement applicable to such rights,
which agreement shall otherwise be at least as favorable to the Optionee as this
Agreement in form and substance.
3. Additional Terms and Conditions of Option.
3.1. Nontransferability of Option. The Option may not be transferred by the
Optionee other than (i) by will or the laws of descent and distribution or
pursuant to beneficiary designation procedures approved by the Company or (ii)
as otherwise permitted under Rule 16b-3 under the Exchange Act. Except to the
extent permitted by the foregoing sentence, during the Optionee's lifetime the
Option is exercisable only by the Optionee or the Optionee's Legal
Representative. Except to the extent permitted by the foregoing, the Option may
not be sold, transferred, assigned, pledged, hypothecated, encumbered or
otherwise disposed of (whether by operation of law or otherwise) or be subject
to execution, attachment or similar process. Upon any attempt to so sell,
transfer, assign, pledge, hypothecate, encumber or otherwise dispose of the
Option, the Option and all rights hereunder shall immediately become null and
void.
3.2. Investment Representation. The Optionee hereby represents and
covenants that (a) any share of Stock purchased upon exercise of the Option will
be purchased for investment and not with a view to the distribution thereof
within the meaning of the Securities Act of 1933, as amended (the "Securities
Act"), unless such purchase has been registered under the Securities Act and any
applicable state securities laws; (b) any subsequent sale of any such shares
shall be made either pursuant to an effective registration statement under the
Securities Act and any applicable state securities laws, or pursuant to an
exemption from registration under the Securities Act and such state securities
laws; and (c) if requested by the Company, the Optionee shall submit a written
statement, in form satisfactory to the Company, to the effect that such
representation (x) is true and correct as of the date of purchase of any shares
hereunder or (y) is true and correct as of the date of any sale of any such
shares, as applicable. As a further condition precedent to any exercise of the
Option, the Optionee shall comply with all regulations and requirements of any
regulatory authority having control of or supervision over the issuance or
delivery of the shares and, in connection therewith, shall execute any documents
which the Board or the Committee shall in its reasonable judgment deem necessary
or advisable to comply with the Securities Act, applicable state securities laws
or the regulations or requirements of any such regulatory authority.
3.3. Withholding Taxes. (a) As a condition precedent to the delivery of
Stock upon exercise of the Option, the Optionee shall, upon request by the
Company, pay to the Company in addition to the purchase price of the shares,
such amount of cash as the Company
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may be required, under all applicable federal, state, local or other laws or
regulations, to withhold and pay over as income or other withholding taxes (the
"Required Tax Payments") with respect to such exercise of the Option. If the
Optionee shall fail to advance the Required Tax Payments after request by the
Company, the Company may, in its discretion, deduct any Required Tax Payments
from any amount then or thereafter payable by the Company to the Optionee.
(b) The Optionee may elect to satisfy his or her obligation to advance the
Required Tax Payments by any of the following means: (1) a cash payment to the
Company pursuant to Section 3.3(a), (2) delivery to the Company of previously
owned whole shares of Stock (which the Optionee has held for at least six months
prior to the delivery of such shares or which the Optionee purchased on the open
market and for which the Optionee has good title, free and clear of all liens
and encumbrances) having a Fair Market Value, determined as of the date the
obligation to withhold or pay taxes first arises in connection with the Option
(the "Tax Date"), equal to the Required Tax Payments, (3) authorizing the
Company to withhold whole shares of Stock which would otherwise be delivered to
the Optionee upon exercise of the Option having a Fair Market Value, determined
as of the Tax Date, equal to the Required Tax Payments, (4) a cash payment by a
broker-dealer acceptable to the Company to whom the Optionee has submitted an
irrevocable notice of exercise or (5) any combination of (1), (2) and (3). The
Committee shall have sole discretion to disapprove of an election pursuant to
any of clauses (2)-(5) and if the Optionee is subject to Section 16 of the
Exchange Act, the Company may require that the method of making such payment be
in compliance with Section 16 and the rules and regulations thereunder. Shares
of Stock to be delivered or withheld may have a Fair Market Value in excess of
the minimum amount of the Required Tax Payments, but not in excess of the amount
determined by applying the Optionee's maximum marginal tax rate. Any fraction of
a share of Stock which would be required to satisfy any such obligation shall be
disregarded and the remaining amount due shall be paid in cash by the Optionee.
No certificate representing a share of Stock shall be delivered until the
Required Tax Payments have been satisfied in full.
3.4. Adjustment. In the event of any stock split, stock dividend,
recapitalization, reorganization, merger, consolidation, combination, exchange
of shares, liquidation, spin-off or other similar change in capitalization or
event, or any distribution to holders of Stock other than a regular cash
dividend, the number and class of securities subject to the Option and the
purchase price per security shall be appropriately adjusted by the Committee
(such adjustment to be made reasonably and in good faith by the Committee)
without an increase in the aggregate purchase price. If any adjustment would
result in a fractional security being subject to the Option, the Company shall
pay the Optionee, in connection with the first exercise of the Option, in whole
or in part, occurring after such adjustment, an amount in cash determined by
multiplying (i) the fraction of such security (rounded to the nearest hundredth)
by (ii) the excess, if any, of (A) the Fair Market Value on the exercise date
over (B) the exercise price of the Option. Such a decision of the Committee
regarding any such adjustment shall be final, binding and conclusive.
3.5. Compliance with Applicable Law. The Option is subject to the condition
that if the listing, registration or qualification of the shares subject to the
Option upon any securities exchange or under any law, or the consent or approval
of any governmental body, or the taking of any other action is necessary or
desirable as a condition of, or in connection with, the purchase or delivery of
shares hereunder, the Option may not be exercised, in whole or in
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part, unless such listing, registration, qualification, consent or approval
shall have been effected or obtained, free of any conditions not approved by the
Company (which approval will not be unreasonably withheld). The Company agrees
to use all reasonable efforts to effect or obtain any such listing,
registration, qualification, consent or approval.
3.6. Delivery of Certificates. Upon the exercise of the Option, in whole or
in part, the Company shall deliver or cause to be delivered one or more
certificates representing the number of shares purchased against full payment
therefor. The Company shall pay all original issue or transfer taxes and all
fees and expenses incident to such delivery, except as otherwise provided in
Section 3.3.
3.7. Option Confers No Rights as Stockholder. The Optionee shall not be
entitled to any privileges of ownership with respect to shares of Stock subject
to the Option unless and until purchased and delivered upon the exercise of the
Option, in whole or in part, and the Optionee becomes a stockholder of record
with respect to such delivered shares; and the Optionee shall not be considered
a stockholder of the Company with respect to any such shares not so purchased
and delivered.
3.8. Decisions of Board or Committee. The Board or the Committee shall have
the right to resolve all questions and make all determinations which may arise
in connection with the Option or its exercise (which rights the Committee shall
exercise reasonably and in good faith), and any interpretation, determination or
other action so made or taken by the Board or the Committee regarding the Plan
or this Agreement shall be final, binding and conclusive.
3.9. Company to Reserve Shares. The Company shall at all times prior to the
expiration or termination of the Option reserve and keep available, either in
its treasury or out of its authorized but unissued shares of Stock, the full
number of shares subject to the Option from time to time.
3.10. Agreement Subject to the Plan. This Agreement is subject to the
provisions of the Plan and shall be interpreted in accordance therewith. The
Optionee hereby acknowledges receipt of a copy of the Plan.
4. Miscellaneous Provisions.
4.1. Designation as Nonqualified Stock Option. The Option is hereby
designated as not constituting an "incentive stock option" within meaning of
section 422 of the Internal Revenue Code of 1986, as amended (the "Code"); this
Agreement shall be interpreted and treated consistently with such designation.
4.2. Meaning of Certain Terms. (a) References in this Agreement to sections
of the Code shall be deemed to refer to any successor section of the Code or any
successor internal revenue law.
(b) As used herein, the term "Legal Representative" shall include an
executor, administrator, legal representative, guardian or similar person and
the term "Permitted Transferee" shall include any transferee pursuant to a
transfer permitted under the Plan and Section 3.1 hereof.
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4.3. Successors. This Agreement shall be binding upon and inure to the
benefit of any successor or successors of the Company and any person or persons
who shall, upon the death of the Optionee, acquire any rights hereunder in
accordance with this Agreement or the Plan.
4.4. Notices. All notices, requests or other communications provided for in
this Agreement shall be made, if to the Company, to Whitehall Jewellers, Inc.,
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, Attention:
Secretary, and if to the Optionee, to "FirstName" "LastName". All notices,
requests or other communications provided for in this Agreement shall be made in
writing either (a) by personal delivery to the party entitled thereto, (b) by
facsimile with confirmation of receipt, (c) by mailing in the United States
mails to the last known address of the party entitled thereto or (d) by express
courier service. The notice, request or other communication shall be deemed to
be received upon personal delivery, upon confirmation of receipt of facsimile
transmission or upon receipt by the party entitled thereto if by United States
mail or express courier service; provided, however, that if a notice, request or
other communication is not received during regular business hours, it shall be
deemed to be received on the next succeeding business day of the Company.
4.5. Governing Law. This Agreement, the Option and all determinations made
and actions taken pursuant hereto and thereto, to the extent not governed by the
laws of the United States, shall be governed by the laws of the State of
Delaware and construed in accordance therewith without giving effect to
principles of conflicts of laws.
4.6 Counterparts. This Agreement may be executed in two counterparts each
of which shall be deemed an original and both of which together shall constitute
one and the same instrument.
WHITEHALL JEWELLERS, INC.
By: ________________________________
Name:
Title:
Accepted this _______ day of
________________, 2001.
____________________________
"FirstName" "LastName"
