Nonqualified Stock Option Agreement
(Officer Participants In the Executive Retirement Plan)
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THIS STOCK OPTION AWARD AGREEMENT (the "Agreement") is made and entered into
this <> (the "Grant Date"), between Xxxxxxxx'x International, Inc., a
Delaware corporation (the "Corporation"), and <> (the "Holder") in
connection with the grant of a Nonqualified Stock Option under the XXXXXXXX'X
INTERNATIONAL, INC. AMENDED AND RESTATED 1995 EQUITY INCENTIVE PLAN (the
"Plan").
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WITNESSETH:
WHEREAS, the Holder is either an employee of the Corporation or one of its
Affiliates in a key position or a director of the Corporation or one of its
Affiliates and the Corporation desires to encourage him to own Shares and to
give him added incentive to advance the interests of the Corporation through the
Plan and desires to grant the Holder a Nonqualified Stock Option to purchase
Shares under terms and conditions established by the Board of Directors.
NOW, THEREFORE, in consideration of these premises, the parties agree that the
following, along with the terms and conditions set forth in the Plan, shall
constitute the Agreement between the Corporation and the Holder:
1. Definitions. Capitalized terms used in this Agreement but not defined
herein shall have the meaning set forth in the Plan. In addition, the
following terms shall have the meanings specified below:
1.1 "Retirement" shall mean the satisfaction of all conditions
necessary for the Holder to become entitled to receive benefits
under the Corporation's Executive Retirement Plan.
1.2 "Securities Act" shall mean the Securities Act of 1933, as
amended.
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2. Grant of Nonqualified Stock Option. Subject to the terms and conditions
set forth herein and in the Plan, the Corporation grants to the Holder
a Nonqualified Stock Option to purchase from the Corporation during the
period ending ten (10) years from the Grant Date <>
Shares at a price of <> per share, subject to adjustment
as provided in the Plan. This Nonqualified Stock Option shall vest and
become exercisable in full on and after the third anniversary of the
Grant Date and, except as specifically provided otherwise herein or in
the Plan, not before such date.
3. Notice of Exercise. This Nonqualified Stock Option may be exercised in
whole or in part, from time to time, in accordance with Paragraph 2, by
written notice to the Corporation at the address provided in Paragraph
14, which notice shall:
(a) specify the number of Shares to be purchased and the Exercise
Price to be paid therefor;
(b) if the person exercising this Nonqualified Stock Option is not the
Holder himself, contain or be accompanied by evidence satisfactory
to the Committee of such person's right to exercise this
Nonqualified Stock Option; and
(c) be accompanied by payment in full of the Exercise Price in a form
permitted by the Committee.
4. Investment Letter. The Holder agrees that the Shares acquired on
exercise of this Nonqualified Stock Option shall be acquired for his
own account for investment only and not with a view to, or for resale
in connection with, any distribution or public offering thereof within
the meaning of the Securities Act, or other applicable securities laws.
If the Board of Directors or Committee so determines, any stock
certificates issued upon exercise of this Nonqualified Stock Option
shall bear a legend to the effect that the shares have been so
acquired. The Corporation may, but in no event shall be required to,
bear any expenses of complying with the Securities Act, other
applicable securities laws or the rules and regulations of any national
securities exchange or other regulatory authority in connection with
the registration, qualification, or transfer, as the case may be, of
this Nonqualified Stock Option or any Shares acquired upon the exercise
thereof. The foregoing restrictions on the transfer of the Shares shall
be inoperative if (a) the Corporation previously shall have been
furnished with an opinion of counsel, satisfactory to it, to the effect
that such transfer will not involve any violation of the Securities Act
or other applicable laws or (b) the Shares shall have been duly
registered in compliance with the Securities Act and other applicable
securities laws. If this Nonqualified Stock Option is registered under
the Securities Act, the Holder agrees that he will not make a public
offering of the said shares except on a national securities exchange on
which the Shares of the Corporation is then listed.
5. Transfer and Exercise of Nonqualified Stock Option. This Nonqualified
Stock Option shall not be transferable except by will or by the laws of
descent and distribution. During the Holder's lifetime this
Nonqualified Stock Option may be exercised only by him. No assignment
or transfer of this Nonqualified Stock Option, whether voluntary or
involuntary, by operation of law or descent or distribution, shall vest
in the assignee or transferee any interest or right whatsoever in this
Nonqualified Stock Option.
6. Issue of Shares. The Corporation shall not be required to issue or
transfer any certificates for Shares purchased upon exercise of this
Nonqualified Stock Option until all applicable requirements of law have
been complied with and such shares shall have been duly listed on any
securities exchange on which the Shares may then be listed.
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7. No Effect on Capital Structure. This Nonqualified Stock Option shall
not affect the right of the Corporation or any Affiliate thereof to
reclassify, recapitalize or otherwise change its capital or debt
structure or to merge, consolidate, convey any or all of its assets,
dissolve, liquidate, windup, or otherwise reorganize.
8. Expiration of Nonqualified Stock Option. This Nonqualified Stock Option
expires ten (10) years from the date hereof. In the event of a
Termination of Service of the Holder prior to the expiration of this
Nonqualified Stock Option, the following rules shall apply:
(a) Termination of Employment - Other than Disability, Death or
Retirement. If there is a Termination of Service of the Holder for
a reason other than the Holder's death, Disability or Retirement,
the portion, if any, of this Nonqualified Stock Option that
remains unexercised, shall terminate and cease to be exercisable
ninety (90) days after the date of such Termination of Service and
that portion, if any, that pursuant to this Agreement is not yet
exercisable on such date, shall terminate and cease to be
exercisable as of such date.
(b) Termination of Employment - Disability. If there is a Termination
of Service of the Holder by reason of Disability, the Holder shall
have the right for one (1) year after the date of Termination of
Service to exercise this Nonqualified Stock Option to the extent
this Nonqualified Stock Option is exercisable on the date of such
Termination of Service, and thereafter, this Nonqualified Stock
Option shall terminate and cease to be exercisable.
(c) Termination of Employment - Death. If there is a Termination of
Service of the Holder by reason of death, this Nonqualified Stock
Option shall be exercisable by the Holder's legal representatives,
legatees, or distributes for one (1) year following the date of
the Termination of Service, to the extent this Nonqualified Stock
Option is exercisable on the date of such Termination of Service,
and thereafter this Nonqualified Stock Option shall terminate and
cease to be exercisable.
(d) Termination of Employment - Retirement. If there is a Termination
of Service of the Holder by reason of Retirement, the vesting and
exercisability of this Nonqualified Stock Option shall be
determined under the Xxxxxxxx'x International, Inc. Executive
Retirement Plan.
9. Change in Control. The effect of a Change in Control shall be as set
forth in either the Change in Control and Noncompete Agreement entered
into between the Holder and the Corporation, or, in the event Holder
has not entered into a Change in Control and Noncompete Agreement, the
Holder's employment agreement with the Corporation. In the event the
Holder has not entered into either a Change in Control and Noncompete
Agreement or an employment agreement with the Corporation (or Holder
has entered into an agreement but such agreement does not address the
effect of a Change in Control on this Agreement), the effect of a
Change in Control shall be as set forth in the Plan.
10. Right of Set-off. By accepting this agreement, Holder consents to a
deduction from any amounts the Corporation owes Holder from time to
time (including amounts owed to Holder as wages or other compensation,
fringe benefits, or vacation pay), to the extent of the amounts owed by
Holder to the Corporation hereunder. Whether or not the Corporation
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elects to make any set-off in whole or in part, if the Corporation does
not recover by means of set-off the full amount owed it by Holder,
calculated as set forth above, Holder agrees to pay immediately in cash
the unpaid balance to the Corporation.
11. Committee Discretion. Holder may be released from its obligations under
paragraph 10 above only if the Committee determines in its sole
discretion that such action is in the best interests of the
Corporation.
12. Committee Authority. Any questions concerning the interpretation of
this Agreement or the Plan, and any controversy which arises under this
Agreement or the Plan shall be settled by the Committee in its sole
discretion.
13. Plan Controls. The terms of this Agreement are governed by the terms of
the Plan and in the case of any inconsistency between the terms of this
Agreement and the terms of the Plan, the terms of the Plan shall
control.
14. Notice. Whenever any notice is required or permitted hereunder, such
notice must be in writing and personally delivered or sent by mail. Any
notice required or permitted to be delivered hereunder shall be deemed
to be delivered on the date which it was personally delivered, or,
whether actually received or not, on the third business day after it is
deposited in the United States mail, certified or registered, postage
prepaid, addressed to the person who is to receive it at the address
which such person has theretofore specified by written notice delivered
in accordance herewith. The Corporation or Holder may change, at any
time and from time to time, by written notice to the other, the address
previously specified for receiving notices. Until changed in accordance
herewith, the Corporation and the Holder specify their respective
addresses as set forth below:
Corporation: XXXXXXXX'X INTERNATIONAL, INC.
0000 X. 000XX XXXXXX
XXXXXXXX XXXX, XX 00000
Holder: <>
0000 X. 000XX XXXXXX
XXXXXXXX XXXX, XX 00000
15. Information Confidential. As partial consideration for the granting of
this Nonqualified Stock Option, the Holder agrees that he will keep
confidential all information and knowledge that he has relating to the
manner and amount of his participation in the Plan, provided, however,
that such information may be disclosed as required by law and may be
given in confidence to the Holder's spouse, tax and financial advisors,
or to a financial institution of the extent that such information is
necessary to secure a loan.
16. Governing Law. Where applicable, the provisions of this Agreement shall
be governed by the contract law of the State of Kansas.
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IN WITNESS WHEREOF, the Corporation has caused this Agreement to be executed and
the Holder has hereunto set his hand on the day and year first above written.
XXXXXXXX'X INTERNATIONAL, INC.
Name:
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Name: Xxxxx X. Xxxx
Title: Chairman & Chief Executive Officer
Holder
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Name: <>
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