EXHIBIT 10(23)
XXXXX XXXXXXXXXXX COMPANY
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT dated __________________ (the "Granting Date"), is made by
and between Xxxxx Xxxxxxxxxxx Company, a Delaware corporation (the "Company"),
and ______________ (the "Optionee").
WHEREAS, the Company has adopted the Xxxxx Xxxxxxxxxxx Company 1996
District Stock Option Plan (the "Plan") pursuant to which the Company may, from
time to time, grant options to Key Employees to purchase shares of the Company's
common stock;
WHEREAS, the Administrative Committee has determined that the Optionee is
a Key Employee of the Company or a Subsidiary who has made or is expected to
make a significant contribution to the Company or a Subsidiary; and
WHEREAS, the Company desires to grant to the Optionee a Nonqualified stock
option to purchase shares of the Company's common stock on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. INCORPORATION OF PLAN. The Plan is attached hereto as EXHIBIT A and
incorporated herein by this reference, and all of the terms and conditions
therein shall be deemed to be included as part of the terms and conditions of
this Agreement. In the event of a conflict, the terms and conditions of the Plan
shall control. All terms used herein which are defined in the Plan shall have
the meanings given them in the Plan.
2. GRANT OF STOCK OPTION. The Company hereby grants the Optionee an option
(the "Option") to purchase at the times hereinafter set forth, in one or more
exercises, all or any part of an aggregate of _________ shares of the Company's
common stock (the "Shares") for an exercise price of $________ per share.
3. CONSIDERATION TO THE COMPANY. In consideration of the granting of this
Option by the Company, the Optionee agrees to render faithful and efficient
services to the Company or a Subsidiary, with such duties and responsibilities
as the Company shall from time to time prescribe. Nothing in this Agreement or
in the Plan shall confer upon the Optionee any right to continue in the employ
of the Company or any Subsidiary or shall interfere with or restrict in any way
the rights of the Company and its Subsidiaries, which are hereby expressly
reserved, to discharge the Optionee at any time for any reason whatsoever, with
or without cause. In addition, nothing in this Agreement or in the Plan shall
require the Optionee to continue in the employ of the Company or any Subsidiary.
4. TIMING AND MANNER OF EXERCISE. The Option shall be and become
exercisable as follows: 25% on the day after the first anniversary of the
Granting Date, 50% on the day after the second anniversary of the Granting Date,
75% on the day after the third anniversary of the Granting Date, and 100% on the
day after the fourth anniversary of the Granting Date.
Provided, however, that the Option shall be 100% exercisable upon and
after a "Change in Control." A Change in Control shall be deemed to exist if:
(i) less than a majority of the Directors are persons who were either
nominated or selected by the Board; or
(ii) any "person," as such term is used in Sections 13(d) and 14(d) of the
Exchange Act (other than a Director nominated or selected by the Board or an
Officer elected by the Board, the Company, a subsidiary, an affiliate, or a
Company employee benefit plan, including any trustee of such plan acting as
trustee) becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company (or a
successor to the Company) representing 35% or more of the combined voting power
of the then outstanding securities of the Company or such successor; or
(iii) (A) the stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than a merger or
consolidation which would result in the Voting Securities (as defined below) of
the Company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into Voting Securities of
the surviving entity) at least 80 percent of the total
voting power represented by the Voting Securities of the Company or such
surviving entity outstanding immediately after such merger or consolidation, or
(B) the stockholders of the Company approve a plan of complete liquidation of
the Company or an agreement for the sale or disposition by the Company of all or
substantially all of the Company's assets, or (C) any other event which the
Board determines, in its discretion, would materially alter the structure of the
Company or its ownership. As used in this paragraph, "Voting Securities" shall
mean any securities of the Company which vote generally in the election of
Directors.
No additional portion of the Option shall become exercisable after the
Optionee's Termination of Employment.
The Option shall expire as to all of the Shares ten (10) years after the
Granting Date except the Option (or a portion thereof) shall terminate earlier
as provided in Section 4.3(a) of the Plan.
The Optionee may exercise the Option for all or any part of the Shares
subject to each installment listed above on or after the respective exercise
date listed above by delivering to the Company a written notice in accordance
with Section 4.3(d) of the Plan.
5. NOTICES. Any notice to be given under the terms of this Agreement to
the Company shall be addressed to the Secretary of the Company at Xxxxx
Xxxxxxxxxxx Company, 0000 Xxxxxxx Xxxxxxx Xxxxxxx, Xxxxxxx Xxxxx, Xxxxxx 00000,
and any notice to be given to the Optionee shall be addressed to him at the
address given beneath his or her signature hereto. By a notice given pursuant to
this Section 5, either party may hereafter designate a different address for
notices to be given to him. Any notice which is required to be given to the
Optionee shall, if the Optionee is then deceased, be given to the Optionee's
personal representative if such representative has previously informed the
Company of his or her status and address by written notice under this Section 5.
Any notice shall be deemed duly given when enclosed in a properly sealed
envelope or wrapper addressed as aforesaid, deposited (with postage prepaid) in
a post office or branch post office regularly maintained by the United States
Postal Service.
6. TITLES. Titles are provided herein for convenience only and are not to
serve as a basis for interpretation or construction of this Agreement.
7. AMENDMENT. This Agreement may be amended only by a writing executed by
the parties hereto which specifically states that it is amending this Agreement.
8. GOVERNING LAW. The laws of the State of Kansas shall govern the
interpretation, validity and performance of the terms of this Agreement
regardless of the law that might be applied under principles of conflicts of
laws.
9. NON-ASSIGNABILITY. Except as otherwise provided herein or in the Plan,
the Option and the rights and privileges conferred hereby shall not be
transferred, assigned, pledged or hypothecated in any way (whether by operation
of law or otherwise) and shall not be subject to execution, attachment, or
similar process. Upon any attempt to transfer, assign, pledge, hypothecate or
otherwise dispose of the Option, or of any right or privilege conferred hereby,
or upon the levy of any attachment or similar process upon the rights and
privileges conferred hereby, contrary to the provisions hereby, this Option and
the rights and privileges conferred hereby shall immediately become null and
void.
10. BINDING EFFECT. Except as expressly stated herein to the contrary,
this Agreement shall be binding upon and inure to the benefit of the respective
heirs, legal representatives, successors and assigns of the parties hereto.
IN WITNESS WHEREOF, this Agreement has been executed and delivered by the
parties hereto.
THE COMPANY: XXXXX XXXXXXXXXXX COMPANY THE OPTIONEE:
By: ________________________ ________________________________
Name: Xxxxxx X. Xxxxxxx Name: __________________________
Title: President, Chief Executive Officer
Address of the Optionee:
_______________________________
_______________________________
_______________________________
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