EXHIBIT 10(22)
XXXXX XXXXXXXXXXX COMPANY
INCENTIVE 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 Amended and
Restated 2002 Stock Option Plan (the "Plan") pursuant to which the Company may,
from time to time, grant options to Key Employees and non-Employee directors to
purchase shares of the Company's common stock;
WHEREAS, the Board of Directors 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 an incentive stock
option (under Section 422 of the Internal Revenue Code of 1986, as amended) 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
incentive stock 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 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. NOTIFICATION OF DISPOSITION. The Optionee shall give prompt notice to
the Company of any disposition or other transfer of any shares of stock acquired
under this Agreement if such disposition or transfer is made (a) within two (2)
years from the Granting Date of the Option with respect to such shares or (b)
within one (1) year after the transfer of such shares to him. Such notice shall
specify the date of such disposition or other transfer and the amount realized,
in cash, other property, assumption of indebtedness or other consideration, by
the Optionee in such disposition or other transfer.
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7. TITLES. Titles are provided herein for convenience only and are not to
serve as a basis for interpretation or construction of this Agreement.
8. AMENDMENT. This Agreement may be amended only by a writing executed by
the parties hereto which specifically states that it is amending this Agreement.
9. 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.
10. 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 hereof, this Option and
the rights and privileges conferred hereby shall immediately become null and
void.
11. BINDING EFFECT. Except as expressly stated herein to the contrary, the
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: THE OPTIONEE:
XXXXX XXXXXXXXXXX COMPANY
By: _______________________________ ___________________________________________
Name: ________________________ Printed Name:______________________________
Title: _______________________ Address of the Optionee:
___________________________________________
___________________________________________
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