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EXHIBIT 10.28
AMENDMENT TO
INFLO HOLDINGS CORPORATION
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AMENDMENT to the Non-Qualified Stock Option Agreement
("Option Agreement") entered as of ____________, by and between INFLO Holdings
Corporation of which Keebler Foods Company (the "Company") is the successor
through merger, and _________________________________ ______________ (the
"Optionee") is made to be effective as of the ______ day of January, 1998. This
Amendment is made in consideration of the mutual covenants reflected herein and
for other good and valuable consideration, the receipt and sufficiency of which
is acknowledged by the parties. The Option Agreement is hereby amended as
follows:
1.
Section 1.2 is amended by adding the following sentence to the
end of said section:
"(For a special definition of "Cause" with limited application, see Section
3.1(f) below.)"
2.
The schedule for exercise of the options is amended with respect
to the Time Options and the Performance Options by deleting the schedules
contained in paragraph (b) of Section 3.1 and in Schedule I and replacing them
with the following, respectively:
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3.1(b) The balance of Time Options shall become exercisable as
follows:
Percentage of Option Shares
Date Time Option as to Which Time Option is
Becomes Exercisable Exercisable
------------------- ---------------------------------
February 3, 1998 60%
February 3, 1999 70%
February 3, 2000 80%
February 3, 2001 100%
On February 3, 1998, the Performance Options will become
exercisable for seventy-five percent (75%) of the Shares subject
thereto. The Performance Options will become exercisable with respect to the
remaining Shares subject thereto as follows:
Schedule I
Percentage of
Plan Year EBITDA Target Shares Exercisable
--------- ------------- ------------------
1998 $222.8 million 6.25%
1999 $237.2 million 6.25%
2000 $241.9 million 12.5%
3.
Paragraph (e) of Section 3.1 is amended by deleting said
paragraph in its entirety and replacing it with the following:
(e) after (i) the termination of
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employment of the Optionee by the Company and its subsidiaries for Cause
(as defined in Section 1.2 or in subsection (f) below) or (ii) the
termination of his employment by the Optionee other than for Good Reason
(as defined in Section 1.5 or in subsection (g) below), any Option shall
be vested and exercisable only to those Shares as to which it was
exercisable immediately prior to the events set out in (i) or (ii) above.
In the event of a termination of employment for any other reason,
including death or Permanent Disability or by the Company (other than for
Cause as defined in Section 1.2 or in subsection (f) below) or by the
Optionee for Good Reason, all Time Options and Performance Options shall
become fully vested and exercisable.
4.
The following paragraphs (f) and (g) are added to Section 3.1:
(f) For purposes of paragraph (e) above, Cause shall also be
deemed to include the following:
(i) malfeasance or gross misconduct by Optionee
in connection with his employment or which
has a material adverse effect on the
reputation of the Company, which shall
include but not be limited to instances of
sexual harassment or violations of the
Company's nondiscrimination policies;
(ii) continuing refusal by Optionee to perform his
employment duties or any lawful direction of
the [CEO] [Chairman of the Board],
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within ten (10) days after written notice of any
such refusal to perform such duties or direction was
given to Optionee;
(iii) any breach of the provisions of any agreement
between the Optionee and the Company pertaining to
disclosure of confidential information or competition
with the Company by Optionee or any other material
breach of such an agreement by Optionee; or
(iv) the conviction of Optionee of, or plea of nolo
contendere by Optionee to,
(A) any felony under federal, state or local
laws; or
(B) a misdemeanor which involves
dishonesty or fraud or produces material
loss or damage to or material adverse
effect on the reputation of the Company.
(g) For purposes of paragraph (e) above, Good Reason
shall also be deemed to include the following:
(i) (A) the assignment to the Optionee of any duties
inconsistent in any material respect with the
Executive's authority, duties or responsibilities as
contemplated by any employment agreement which may
exist between the Optionee and the Company or (B) any
other action by the Company which results in a material
diminishment in such authority, duties or
responsibilities, other than action or in action
which is remedied by the Company within 15 days
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after receipt of written notice thereof given
by the Executive;
(ii) any failure by the Company to comply with any of the
provisions of any employment agreement which may exist
between the Optionee and the Company, other than any
failure which is remedied by the Company within 15 days
after receipt of written notice thereof given by the
Optionee;
(iii) if the Company and the Optionee have entered into an
employment agreement, any purported termination by the
Company of the Optionee's employment otherwise than as
permitted by said employment agreement;
(iv) any relocation by the Company of the Optionee's primary
office location outside the Standard Metropolitan
Statistical Area in which the Optionee's primary office
is located prior to said relocation;
(v) any reduction in the total potential annual compensation
of the Optionee, consisting of base salary and potential
bonus (but not including diminution in bonus as a
consequence of economic performance of the Company);
(vi) a change in Optionee's employee benefits other than a
change which results from an amendment or alteration of
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the Company's employee benefit plans which affect its
salaried employees generally.
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5.
Paragraph (c) of Section 3.2 is hereby amended by deleting said
paragraph in its entirety and replacing it with the following:
(c) The first business day which is ninety calendar days after
termination of employment of the Optionee for any reason other than
for Cause (as defined in Section 1.2), death or Permanent Disability;
6.
The remaining provisions of said Option Agreement shall continue
in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as
of the effective date indicated above
KEEBLER FOODS COMPANY
By:
______________________________
Title:________________________
Optionee:
__________________________________
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