EXHIBIT 10.5
XXXXXXXX XXXXXXX CORPORATION
AMENDED AND RESTATED STOCK OPTION PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT (this "Agreement"), dated as of April 8, 1999, is made
by and between Xxxxxxxx Xxxxxxx Corporation, a Delaware corporation hereinafter
referred to as "Company," and Xxxxxx X. Xxxxxxxxxx, an employee of the Company
or Subsidiary of the Company, hereinafter referred to as "Optionee":
WHEREAS, the Company wishes to afford the Optionee the opportunity to
purchase shares of its $.01 par value Common Stock; and
WHEREAS, the Company wishes to carry out the Plan (as hereinafter
defined), the terms of which are hereby incorporated herein by reference and
made a part hereof; and
WHEREAS, the execution of a Nonqualified Stock Option Agreement in the
form hereof has been duly authorized by a resolution of the Board of Directors
of the Company duly adopted on April 8, 1999, and incorporated herein by
reference; and
WHEREAS, this Option is intended to be a nonqualified stock option and
shall not be treated as an "incentive stock option" within the meaning of that
term under Section 422 of the Code;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
Wherever the following terms are used in this Agreement with initial
capital letters, they shall have the meanings specified in the Plan unless the
context clearly indicates otherwise.
Section 1.1 - Beneficiary
Section 1.2 - Code
Section 1.3 - Common Stock
Section 1.4 - Company
Section 1.5 - Employee
Section 1.6 - Exchange Act
Section 1.7 - Fair Market Value
Section 1.8 - Subsidiary
Section 1.9 - Termination of Directorship
Section 1.10 - Termination of Employment
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Wherever the following terms are used in this Agreement with initial
capital letters, they shall have the meanings specified below unless the context
clearly indicates otherwise. The masculine pronoun shall include the feminine
and neuter, and the singular the plural, where the context so indicates.
Section 1.11 - Board
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"Board" shall mean the Board of Directors of the Company and shall
include any committee to which the Board of Directors may have delegated its
authority pursuant to Section 8.1 of the Plan.
Section 1.12 - Optionee
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"Optionee" shall mean the Employee named above to whom an Option is
awarded under this Agreement and the Plan.
Section 1.13 - Plan
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"Plan" shall mean The Xxxxxxxx Xxxxxxx Corporation Amended and Restated
Stock Option Plan, as amended and restated as of January 10, 1997, and as the
same may be further amended or restated.
Section 1.14 - Secretary
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"Secretary" shall mean the Secretary of the Company.
Section 1.15 - Securities Act
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"Securities Act" shall mean the Securities Act of 1933, as amended.
ARTICLE II
AWARD OF OPTION
Section 2.1 - Grant of Award
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In consideration of the Optionee's execution of this Agreement and for
other good and valuable consideration, on the date hereof the Company
irrevocably awards to the Optionee the option to purchase any part or all of an
aggregate of 2,000,000 shares of its $.01 par value Common Stock upon the terms
and subject to the conditions set forth in the Plan and in this Agreement.
Section 2.2 - Purchase Price
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The purchase price of the shares of stock covered by the Option shall
be $10.25 per share without commission or other charge.
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Section 2.3 - Adjustments in Option
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The Board may make or provide for such adjustments in the (a) number of
shares of Common Stock covered by outstanding Options awarded hereunder, (b)
prices per share applicable to such Options, and (c) kind of shares (including
shares of another issuer) covered thereby, as the Board in its sole discretion
may in good faith determine to be equitably required in order to prevent
dilution or enlargement of the rights of Optionees, that otherwise would result
from (x) any stock dividend, stock split, combination of shares,
recapitalization or other change in the capital structure of the Company, (y)
any merger, consolidation, spin-off, split-off, split-up, reorganization,
partial or complete liquidation or other distribution of assets, issuance of
rights or warrants to purchase securities or (z) any other corporate transaction
or event having an effect similar to any of the foregoing. In the event of any
such transaction or event, the Board may provide in substitution for any or all
outstanding awards under this Agreement such alternative consideration as it may
in good faith determine to be equitable under the circumstances and may require
in connection therewith the surrender of all awards so replaced.
ARTICLE III
PERIOD OF EXERCISABILITY
Section 3.1 - Commencement of Exercisability
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(a) This Option shall become exercisable in its entirety on April 8, 2002,
provided the Optionee continues to serve as Chairman of the Company
from the date of this Agreement until the date of exercisability.
(b) No portion of the Option which is unexercisable at the later of the
Optionee's Termination of Directorship or Termination of Employment
from the Company shall thereafter become exercisable.
Section 3.2 - Expiration of Option
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The Option may not be exercised to any extent by anyone after the first to occur
of the following events:
(a) The expiration of five (5) years from the date the Option was awarded;
or
(b) Except as set forth in 3.2(c), the expiration of three (3) months after
the later of the Optionee's Termination of Directorship or Termination
of Employment; or
(c) The expiration of twelve (12) months from the date of the later of the
Optionee's Termination of Directorship or Termination of Employment by
reason of permanent and total disability (within the meaning of Section
22(e) (3) of the Code) or retirement at or after age 65.
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ARTICLE IV
EXERCISE OF OPTION
Section 4.1 - Person Eligible to Exercise
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During the lifetime of the Optionee, only he or his guardian or legal
representative may exercise the Option or any portion thereof. After the death
of the Optionee, any exercisable portion of the Option may, prior to the time
when the Option becomes unexercisable under Section 3.2, be exercised by his
personal representative or by any person empowered to do so under the Optionee's
will or under the then applicable laws of descent and distribution.
Section 4.2 - Partial Exercise
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Any exercisable portion of the Option or the entire Option, if then
wholly exercisable, may be exercised in whole or in part at any time prior to
the time when the Option or portion thereof becomes unexercisable under Section
3.2; provided, however, that each partial exercise shall be for not less than
one hundred (100) shares and shall be for whole shares only.
Section 4.3 - Manner of Exercise
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The Option or any exercisable portion thereof, may be exercised solely
by delivery to the Secretary or his office of all of the following prior to the
time when the Option or such portion becomes unexercisable under Section 3.2:
(a) Notice in writing signed by the Optionee or the other person then
entitled to exercise the Option or portion, stating that the Option or
portion is thereby exercised, such notice complying with all applicable
rules established by the Board; and
(b) Full payment for the shares with respect to which such option or
portion is exercised, which payment shall be (i) in cash, (ii) through
the delivery of shares of Common Stock owned by the Optionee for at
least six months, duly endorsed for transfer to the Company with a Fair
Market Value on the date of delivery equal to the aggregate exercise
price of the Option or exercised portion thereof, or (iii) subject to
the timing requirements of Section 5.3 of the Plan, through any
combination of the consideration provided in the foregoing
subparagraphs (i) or (ii); and
(c) Such representations and documents as the Board deems necessary or
advisable to effect compliance with all applicable provisions of the
Securities Act of 1933, as amended, and any other federal or state
securities laws or regulations. The Board may also take whatever
additional actions it deems appropriate to effect such compliance
including (without limitation) placing legends on share certificates
and issuing stop-transfer notices to agents and registrars;
(d) Full payment to the Company (or other employer corporation) of all
amounts which under federal, state or local tax law, it is required to
withhold upon exercise of the Option; provided, however, the Company
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may permit the Optionee, upon delivery of a written
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election to the Secretary of the Company (or to such other person who
may be designated by the Board) to elect to have the Company withhold
shares of Common Stock otherwise issuable upon the exercise of the
Option. Shares of Common Stock so withheld will be credited against
this tax obligation at their Fair Market Value; and
(e) In the event the Option or portion shall be exercised pursuant to
Section 4.1 by any person or persons other than the Optionee,
appropriate proof of the right of such person or persons to exercise
the Option.
Section 4.4 - Conditions to Issuance of Stock Certificates
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The shares of stock deliverable upon the exercise of the Option, or any
portion thereof, may be either previously authorized but unissued shares or
issued shares which have then been repurchased by the Company. Such shares shall
be fully paid and non-assessable. The Company shall not be required to issue or
deliver any certificate or certificates for shares of stock purchased upon the
exercise of the Option or portion thereof prior to fulfillment of all of the
following conditions:
(a) The admission of such shares to listing on all stock exchanges on which
such class of stock is then listed; and
(b) The completion of any registration or other qualification of such
shares under any state or federal law or under rulings or regulations
of the Securities and Exchange Commission or of any other governmental
regulatory body, which the Board shall deem necessary or advisable; and
(c) The obtaining of any approval or other clearance from any state or
federal governmental agency which the Board shall determine to be
necessary or advisable; and
(d) The payment to the Company (or other employer corporation) of all
amounts which, under federal, state or local tax law, it is required to
withhold upon exercise of the Option; and
(e) The lapse of such reasonable period of time following the exercise of
the Option as the Board may from time to time establish for reasons of
administrative convenience.
Section 4.5 - Rights as Shareholder
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The holder of the Option shall not be, nor have any of the rights or
privileges of, a shareholder of the Company in respect of any shares purchasable
upon the exercise of any part of the Option unless and until certificates
representing such shares shall have been issued by the Company to such holder.
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ARTICLE V
OTHER PROVISIONS
Section 5.1 - Administration
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The Board shall have the power to interpret the Plan and this Agreement
and to adopt such rules for the administration, interpretation and application
of the Plan as are consistent therewith and to interpret, amend or revoke any
such rules. All actions taken and all interpretations and determinations made by
the Board in good faith shall be final and binding upon the Optionee, the
Company and all other interested persons. No member of the Board shall be
personally liable for any action, determination or interpretation made in good
faith with respect to the Plan or the Option.
Section 5.2 - Option Not Transferable
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Options under the Plan may not be sold, pledged, assigned or
transferred in any manner other than by will or the laws of descent and
distribution; provided, however, an Optionee may designate a Beneficiary to
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exercise his Option or other rights under the Plan after his death. Neither the
Option nor any interest or right therein or part thereof shall be liable for the
debts, contracts or engagements of the Optionee or his successors in interest or
shall be subject to disposition by transfer, alienation, anticipation, pledge,
encumbrance, assignment or any other means whether such disposition be voluntary
or involuntary or by operation of law by judgment, levy, attachment, garnishment
or any other legal or equitable proceedings (including bankruptcy), and any
attempted disposition thereof shall be null and void and of no effect; provided,
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however, that this Section 5.2 shall not prevent transfers by will or by the
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applicable laws of descent and distribution. An Option shall be exercised during
the Optionee's lifetime only by the Optionee or his guardian or legal
representative.
Section 5.3 - Shares to Be Reserved
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The Company shall at all times during the term of the Option reserve
and keep available such number of shares of stock as will be sufficient to
satisfy the requirements of this Agreement.
Section 5.4 - Notices
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Any notice to be given under the terms of this Agreement to the Company
shall be addressed to the Company in care of its Secretary, 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 5.4, 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 5.4. 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.
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Section 5.5 - Titles
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Titles are provided herein for convenience only and are not to serve as
a basis for interpretation or construction of this Agreement.
Section 5.6 - Construction
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This Agreement shall be administered, interpreted and enforced under
the internal substantive laws of the State of Delaware.
Section 5.7 - Conformity to Securities Laws
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The Optionee acknowledges that the Plan is intended to conform to the
extent necessary with all applicable federal and state laws, rules and
regulations, including provisions of the Securities Act and the Exchange Act and
any and all regulations and rules promulgated by the Securities and Exchange
Commission thereunder, including without limitation Rule 16b-3 under the
Exchange Act. Notwithstanding anything herein to the contrary, the Plan shall be
administered, and the Option is awarded and may be exercised, only in such a
manner as to conform to such laws, rules and regulations. To the extent
permitted by applicable law, the Plan and this Agreement shall be deemed amended
to the extent necessary to conform to such laws, rules and regulations.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered by
the parties hereto.
XXXXXXXX XXXXXXX CORPORATION
By:
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Xxxxxxx X. Xxxxx
Executive Vice President
OPTIONEE
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Xxxxxx X. Xxxxxxxxxx
Spousal Consent
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The undersigned has read and is familiar with the preceding Agreement
and the Plan and hereby consents and agrees to be bound by all the terms of the
Agreement and the Plan. Without limiting the foregoing, the undersigned
specifically agrees that the Company may rely on any authorization, instruction
or election made under the Agreement by the Optionee alone and that all of his
or her right, title or interest, if any, in the shares of Common Stock purchased
by the Optionee under the Agreement, whether arising by operation of community
property law, by property settlement or otherwise, shall be subject to all of
such terms.
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Printed Name
Exhibit A: Copy of the Plan
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EXHIBITS
The registrant agrees to provide the Securities and Exchange Commission,
upon request, with copies of the Exhibits hereto.
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