Exhibit 10.5
XXXXXXXX CORPORATION
NONQUALIFIED STOCK OPTION AGREEMENT
Xxxxxxxx Corporation, a Missouri corporation (the "Company"), and the
person designated in Section 1 below (the "Optionee") hereby agree as
follows:
SECTION 1. BASIC TERMS.
Name of Optionee: Xxxxxxx X. X'Xxxx
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Social Security Number of Optionee: [OMITTED FOR CONFIDENTIALITY]
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Number of Shares Subject to Option: 50,000
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Option Price/Base Price Per Share: $30.00
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Grant Date of Option: September 15, 2003
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Expiration Date of Option: September 15, 2013
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Exercisability: The Option shall become immediately exercisable with respect
to all shares subject to the Option upon the closing stock price of the
Company's Common Stock, as reported by the New York Stock Exchange, being at
least $30.00 for five consecutive trading days at any time during the term
of this Option. The Option may become exercisable earlier than described in
the immediately preceding sentence upon the occurrence of a Change in
Control as set forth in Section 2 of this Agreement. The Optionee must be
employed by the Company on the date that the Option would have become
exercisable.
SECTION 2. ENTIRE AGREEMENT. This Agreement consists of the provisions set
forth on this cover page and the further provisions set forth on the
following pages. The Optionee represents that he has read and understood
such further provisions, which are binding on the parties as if set forth on
this cover page.
IN WITNESS WHEREOF, the parties have executed this Stock Option
Agreement in duplicate as of the Grant Date.
XXXXXXXX CORPORATION
By /s/ Xxx X. Xxxxxx /s/ Xxxxxxx X. X'Xxxx
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Chairman of the Board Optionee
XXXXXXXX CORPORATION
NONQUALIFIED STOCK OPTION AGREEMENT
This Stock Option Agreement (this "Agreement"), along with its cover
page, represents the agreement regarding the grant of a stock option (the
"Option") by and between the Company and the Optionee pursuant to that
certain Employment Agreement dated September 15, 2003 by and between the
Company and the Optionee.
1. GRANT OF OPTION. The Company hereby grants to the Optionee the right,
privilege and option to purchase the number of shares of common stock,
$1.00 par value per share (the "Common Stock"), of the Company at a
price per share, both as reflected in the cover page, in the manner
and subject to the conditions provided herein. The Option is not
intended to be an Incentive Stock Option, as defined in Section 422 of
the Internal Revenue Code of 1986, as amended, with respect to any
shares subject hereto.
2. TIME OF EXERCISE OF OPTION. The Option shall become exercisable as
provided on the cover page, except all options granted to Optionee
under the Agreement that are not then exercisable shall become
immediately exercisable upon the occurrence of a Change in Control.
The Option will become exercisable only to the extent that the
Optionee is employed by the Company on such date. Once exercisable,
the Option shall remain exercisable until such Option terminates
pursuant to Section 4 of this Agreement.
For purposes of this Agreement, a "Change is Control" means:
(i) the acquisition by any individual, entity or group, or a
Person (within the meaning of Section 13(d)(3) or 14(d)(2) of
the Exchange Act) of ownership of 20% or more of either (a) the
then outstanding shares of common stock of the Company (the
"Outstanding Company Common Stock") or (b) the combined voting
power of the then outstanding voting securities of the Company
entitled to vote generally in the election of directors (the
"Outstanding Company Voting Securities"); or
(ii) individuals who, as the date hereof, constitute the Board
(the "Incumbent Board") cease for any reason to constitute at
least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the date hereof
whose election, or nomination for election, by the Company's
stockholders was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the
Incumbent Board, but excluding, as a member of the Incumbent
Board, any such individual whose initial assumption of office
occurs as a result of either an actual or threatened election
contest (as such terms are used in Rule l4a-11 of Regulation
l4A promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on behalf
of a Person other than the Board; or
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(iii) approval by the stockholders of the Company of a
reorganization, merger or consolidation, in each case, unless,
following such reorganization, merger or consolidation, (1)
more than 50% of, respectively, the then outstanding shares of
common stock of the corporation resulting from such
reorganization, merger or consolidation and the combined voting
power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of
directors is then beneficially owned, directly or indirectly,
by all or substantially all of the individuals and entities who
were the beneficial owners, respectively, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities
immediately prior to such reorganization, merger or
consolidation in substantially the same proportions as their
ownership, immediately prior to such reorganization, merger or
consolidation, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be, (2)
of such corporation and the combined voting power of the then
outstanding voting securities of such corporation entitled to
vote generally in the election of directors is then
beneficially owned, directly or indirectly, by no Person
beneficially owns, directly or indirectly, 20% or more of,
respectively, the then outstanding shares of common stock of
the corporation resulting from such reorganization, merger or
consolidation or the combined voting power of the then
outstanding voting securities of such corporation, entitled to
vote generally in the election of directors, and (3) at least a
majority of the members of the board of directors of the
corporation resulting from such reorganization, merger or
consolidation were members of the Incumbent Board at the time
of the execution of the initial agreement providing for such
reorganization, merger or consolidation; or
(iv) approval by the stockholders of the Company of (a) a
complete liquidation or dissolution of the Company or (b) the
sale or other disposition of all or substantially all of the
assets of the Company, other than to a corporation, with
respect to which following such sale or other disposition, (1)
more than 50% of, respectively, the then outstanding shares of
common stock all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Outstanding Company Voting
Securities immediately prior to such sale or other disposition
in substantially the same proportion as their ownership,
immediately prior to such sale or other disposition, of the
Outstanding Company Common Stock and Outstanding Company Voting
Securities, as the case may be, (2) no Person beneficially
owns, directly or indirectly, 20% or more of, respectively, the
then outstanding shares of common stock of such corporation and
the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in
the election of directors and (3) at least a majority of the
members of the board of directors of such corporation were
members of the Incumbent Board at the time of the execution of
the initial agreement or action of the Board providing for such
sale or other disposition of assets of the Company.
3. METHOD OF EXERCISE OF OPTION. The Option shall be exercisable in whole
or in part to the extent then exercisable by written notice delivered
to the Office of General Counsel of the Company stating the number of
shares with respect to which the Option is
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being exercised, accompanied by payment (i) by check or, in the
discretion of the Compensation and Organization Committee, by either
(ii) the delivery to the Company of shares of Common Stock then owned
by the Optionee having a fair market value equal to the exercise price
of all shares of Common Stock subject to such exercise or (iii) by any
combination of cash and stock.
4. TERMINATION OF OPTION. The Option, to the extent exercisable on the
date that the Optionee ceases to be an employee of the Company, shall
terminate in all events on the earliest to occur of the following:
(i) the Expiration Date specified in the cover page; or
(ii) three months after the date on which the Optionee
ceases to be an employee of the Company for any reason
other than death, retirement or disability; or
(iii) twelve months after the date on which the Optionee
ceases to be an employee of the Company due to death;
or
(iv) twelve months after the date on which the Optionee
ceases to be an employee of the Company due to
retirement or disability, provided, however, that, if
the Optionee dies within the twelve-month period after
his or her termination of employment due to retirement
or disability, then three months after his death or
the remainder of the twelve-month period, whichever is
longer.
5. NON-TRANSFERABILITY OF OPTION. The Option is non-transferable by the
Optionee except by will or the laws of descent and distribution or
pursuant to a Qualified Domestic Relations Order (as defined in Section
206(d)(3) of the Employee Retirement Income Security Act of 1974, as
amended, and the rules promulgated thereunder) or to a Permissible
Transferee, and shall be exercisable during the Optionee's lifetime
only by the Optionee or by a Permissible Transferee. In the event of
the Optionee's death, a Permissible Transferee or the executor or
administrator of the Optionee's estate, as applicable, may exercise the
Option. For purposes of this Agreement, a "Permissible Transferee" is
(i) one or more members of the Optionee's family, (ii) one or more
trusts for the benefit of the Optionee and/or one or more members of
the Optionee's family, or (iii) one or more partnerships (general or
limited), corporations, limited liability companies or other entities
in which the aggregate interests of the Optionee and members of the
Optionee's immediate family exceed 80 percent of all interests. The
Optionee's immediate family for this purpose includes only the
Optionee's spouse, children and grandchildren.
6. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, ETC. If the Company shall
at any time change the number of issued shares of Common Stock without
new consideration to the Company (such as by stock dividends or stock
splits), there shall be a corresponding adjustment as to the number of
shares covered under the Option and in the purchase price per share,
to the end that the Optionee shall retain the Optionee's proportionate
interest without change in the total purchase price under the Option.
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