EXHIBIT 4.5
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 Stock Option 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 (calculated as provided in
Section 4 below) of the Company's common stock (the "Shares") for
an exercise price of $_______ per share (calculated as provided
in Section 4 below).
3. CONSIDERATION TO THE COMPANY. In consideration of
the granting of this Option by the Company, the Optionee agrees
to pay to the Company $___________ per share (calculated as set
forth in Section 4 below) for a total payment of $_____________,
and 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. METHOD OF CALCULATING SHARES, PURCHASE PRICE AND
EXERCISE PRICE. The number of shares covered by this grant, the
purchase price to be paid by the optionee for the grant and the
exercise price per share for the Option shall be determined as
follows:
(i) EXERCISE PRICE. The price of the shares
subject to the Option as set forth in Section 2 above upon
exercise by the Optionee shall be equal to the Stock Price
(as hereinafter defined) multiplied by 0.75. Stock Price
shall mean the lower of (i) the average closing price (as
reported in THE WALL STREET JOURNAL or its equivalent) of
the Company's common stock on each trading day during the
last month of the Company's fiscal year, and (ii) the
average closing price (as reported in THE WALL STREET
JOURNAL or its equivalent) for the twenty (20) trading days
immediately preceding the final determination of the amount
of the incentive award by the Company in accordance with the
Xxxxx Xxxxxxxxxxx Company District Incentive Compensation
Plan (the "District IC Plan").
(ii) OPTION PURCHASE PRICE. The per share
purchase price for the Option shall be the Stock Price
multiplied by 0.25.
(iii) NUMBER OF SHARES. The number of shares
subject to the Option shall be the quotient resulting from
the division of (x) fifty percent (50%) of the total value
of the Optionee's incentive award under the District IC Plan
(after deducting withholdings required by law, including any
tax required by a governmental entity), by (y) the per share
purchase price as calculated under (ii) above.
5. TIMING AND MANNER OF EXERCISE. The Option shall
be and become exercisable as follows: 20% on the day after the
first anniversary of the Granting Date, 40% on the day after the
second anniversary of the Granting Date, 60% on the day after the
third anniversary of the Granting Date, 80% on the day after the
fourth anniversary of the Granting Date, and 100% on the day
after the fifth anniversary of the Granting Date.
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.
6. REIMBURSEMENT UPON CESSATION OF EMPLOYMENT. In
the event the Optionee's employment with the company ends for
whatever reason (including, without limitation, death,
disability, retirement, resignation or termination, with or
without cause) (collectively, the "Termination") prior to full
vesting of the Option as provided in Section 4 above, the Company
shall reimburse the Optionee an amount equal to the number of
shares for which the Option has not vested as of the date of the
Termination multiplied by $_________ per share. No interest will
be paid by the Company on the monies reimbursed to the Optionee
under this Section 6. Such reimbursement shall be paid by the
Company within ten (10) business days following the effective
date of the termination.
7. 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 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.
8. TITLES. Titles are provided herein for
convenience only and are not to serve as a basis for
interpretation or construction of this Agreement.
9. AMENDMENT. This Agreement may be amended only by
a writing executed by the parties hereto which specifically
states that it is amending this Agreement.
10. 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.
11. 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.
12. 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: XXXXX XXXXXXXXXXX COMPANY
By:
Name: X. X. Xxxxxxx
Its: President
THE OPTIONEE:
Name:
Address of the Optionee:
