STOCK OPTION AGREEMENT
FOR THE GRANT OF
NON-QUALIFIED STOCK OPTIONS UNDER THE
XXXXXXX ENTERPRISES, INC.
1995 INCENTIVE COMPENSATION PLAN
THIS AGREEMENT is effective as of December 5, 1995, by
and between Xxxxxxx Enterprises, Inc., a Louisiana corpora-
tion ("SEI"), and Xxxxxxx X. Xxxxx ("Optionee").
WHEREAS Optionee is a key employee of SEI and SEI
considers it desirable and in its best interest that
Optionee be given an inducement to acquire a proprietary
interest in SEI and an added incentive to advance the
interests of SEI by possessing an option to purchase shares
of the Class A common stock of SEI, no par value per share
(the "Common Stock") in accordance with the Xxxxxxx
Enterprises, Inc. 1995 Incentive Compensation Plan (the
"Plan"), which was adopted by the Board of Directors on
August 24, 1995 and amended by the Board of Directors
effective December 5, 1995, subject to shareholder approval
of the Plan, as amended.
NOW, THEREFORE, in consideration of the premises, it is
agreed by and between the parties as follows:
X.
Xxxxx of Option
SEI hereby grants to Optionee effective December 5,
1995 (the "Date of Grant"), but subject to the approval by
the shareholders of SEI of the Plan, as amended, the right,
privilege and option to purchase 12,150 shares of Common
Stock (the "Option") at an exercise price of $33.25 per
share (the "Exercise Price"). The Option shall be
exercisable at the time specified in Section II. below. The
Option is a non-qualified stock option and shall not be
treated as an incentive stock option under Section 422 of
the Internal Revenue Code of 1986, as amended (the "Code").
II.
Time of Exercise
2.1 Subject to the provisions of the Plan, the other
provisions of this Agreement and the provisions of any
employment agreement between SEI and Optionee (the
"Employment Agreement") with respect to performance based
options granted under the Plan, the Option shall become
exercisable in full on the first day between December 5,
1995 and August 31, 2000 that the average of the "Closing
Sale Prices" of a share of Common Stock for the 20 preceding
consecutive trading days equals or exceeds $79.31.
Notwithstanding the foregoing, no portion of the Option
may be exercised prior to the approval of the Plan, as
amended, by the shareholders of the Company. If the
conditions described in this Section 2.1 are not met by
August 31, 2000, the Option may not be exercised and shall
terminate immediately.
2.2 "Closing Sale Price" is the closing sale price on
the applicable date for shares of the Common Stock on an
established stock exchange or any automated quotation system
that provides sale quotations.
2.3 The Option shall expire and may not be exercised
later than October 31, 2001.
2.4 Except as otherwise provided in the Employment
Agreement, if Optionee's employment is terminated, other
than as a result of death, disability or retirement on or
after reaching age 65 or early retirement with the approval
of the Board of Directors, the Option must be exercised, to
the extent exercisable at the time of termination of
employment, within the later of (i) 30 days after the date
on which Optionee ceases to be an employee or (ii) 30 days
after the date on which the exercise of the Option and sale
of the underlying securities will not cause the Optionee to
incur a liability to SEI under Section 16 of the Securities
Exchange Act of 1934, except that the Committee may upon
request extend the period after termination of employment
during which the Option may be exercised, but in no event
later than October 31, 2001.
2.5 If an Optionee ceases to be an employee because of
retirement, as described in Section 2.4, or disability
within the meaning of Section 22(e)(3) of the Code, the
Option must be exercised, to the extent exercisable at the
time of termination of employment, within one year from the
date on which Optionee ceases to be an employee, but in no
event later than October 31, 2001.
2.6 In the event of Optionee's death, the Option must
be exercised by his estate, or by the person to whom such
right evolves from him by reason of his death, to the extent
exercisable at the time of death, within one year from the
date of death, but in no event later than October 31, 2001.
III.
Method of Exercise of Option
Optionee may exercise all or a portion of the Option by
delivering to SEI a signed written notice of his intention
to exercise the Option, specifying therein the number of
shares to be purchased. Upon receiving such notice, and
after SEI has received payment of the Exercise Price as
provided in the Plan, the appropriate officer of SEI shall
cause the transfer of title of the shares purchased to
Optionee on SEI's stock records and cause to be issued to
Optionee a stock certificate for the number of shares being
acquired. Optionee shall not have any rights as a
shareholder until the stock certificate is issued to him.
IV.
Change of Control
4.1 No later than 30 days after the approval by the Board
of a Change of Control of the types described in Sections
12.12(a)(iii) and (iv) of the Plan, and no later than 30
days after a Change of Control of the type described in
Sections 12.12(a)(i) and (ii) of the Plan, the Committee (as
the Committee was composed immediately prior to such Change
of Control and notwithstanding any removal or attempted
removal of some or all of the members thereof as directors
or Committee members), acting in its sole discretion without
the consent or approval of any participant, may act to
effect one or more of the alternatives listed below and such
act by the Committee may not be revoked or rescinded by
persons not members of the Committee immediately prior to
the Change of Control:
(a) require that all outstanding options and/or
SARs be exercised on or before a specified date (before
or after such Change of Control) fixed by the
Committee, after which specified date all unexercised
options and SARs shall terminate,
(b) provide for mandatory conversion of some or
all of the outstanding options and SARs held by some or
all participants as of a date, before or after such
Change of Control, specified by the Committee, in which
event such options and SARs shall be deemed
automatically cancelled and SEI shall pay, or cause to
be paid, to each such participant an amount of cash per
share equal to the excess, if any, of the Change of
Control Value of the shares subject to such option or
SAR, as defined and calculated below, over the exercise
price(s) of such options or SARs, or, in lieu of such
cash payment, the issuance of Common Stock or
securities of an acquiring entity having a Fair Market
Value equal to such excess,
(c) make such equitable adjustments to Incentives
then outstanding as the Committee deems appropriate to
reflect such Change of Control (provided, however, that
the Committee may determine in its sole discretion that
no adjustment is necessary), or
(d) provide that thereafter upon any exercise of
an option or SAR the participant shall be entitled to
purchase under such option or SAR, in lieu of the
number of shares of Common Stock then covered by such
option, the number and class of shares of stock or
other securities or property (including, without
limitation, cash) to which the participant would have
been entitled pursuant to the terms of the agreement
providing for the merger, consolidation, asset sale,
dissolution or other Change of Control of the type
described in Sections 12.12(a)(iii) and (iv) of the
Plan, if, immediately prior to such Change of Control,
the participant had been the holder of record of the
number of shares of Common Stock then covered by such
options or SARs.
4.2 For the purposes of paragraph (b) of Section 4.1
"Change of Control Value" shall equal the amount determined
by whichever of the following items is applicable:
(a) the per share price to be paid to shareholders
of SEI in any such merger, consolidation or other
reorganization,
(b) the price per share offered to shareholders of
SEI in any tender offer or exchange offer whereby a
Change of Control takes place, or
(c) in all other events, the Fair Market Value per
share of Common Stock into which such options or SARs
being converted are exercisable, as determined by the
Committee as of the date determined by the Committee to
be the date of conversion of such options or SARs.
(d) In the event that the consideration offered
to shareholders of SEI in any transaction described in this
Section 4.2 consists of anything other than cash, the
Committee shall determine the fair cash equivalent of the
portion of the consideration offered that is other than
cash.
V.
No Contract of Employment Intended
Subject to the terms of any Employment Agreement that
may be in effect from time to time, nothing in this
Agreement shall confer upon Optionee any right to continue
in the employment of SEI or any of its subsidiaries, or to
interfere in any way with the right of SEI or any of its
subsidiaries to terminate Optionee's employment relationship
with SEI or any of its subsidiaries at any time, nor shall
any references herein to any employment agreement imply that
any such agreement is in effect or that the Optionee is
entitled to enter into any such agreement with SEI.
VI.
Binding Effect
This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs,
executors, administrators and successors.
VII.
Non-Transferability
The Option granted hereby may not be transferred,
assigned, pledged or hypothecated in any manner, by
operation of law or otherwise, other than by will or by the
laws of descent and distribution and shall not be subject to
execution, attachment or similar process.
VIII.
Inconsistent Provisions
The Option granted hereby is subject to the provisions
of the Plan as in effect on the date hereof and as it may be
amended. In the event any provision of this Agreement
conflicts with such a provision of the Plan, the Plan
provision shall control. In the event any provision of this
Agreement conflicts with a provision of any Employment
Agreement containing any provision relating to the Option,
the Employment Agreement provision shall control.
IN WITNESS WHEREOF the parties hereto have caused this
Agreement to be executed as of the day and year first above
written.
XXXXXXX ENTERPRISES, INC.
By: ____________________________
Xxxxxx X. Xxxxxxx, III
Vice Chairman of the Board and
Chief Executive Officer
_____________________________
Xxxxxxx X. Xxxxx
Optionee
