EXHIBIT 10.5
EXHIBIT C
PERFORMANCE OPTION AGREEMENT
PERFORMANCE OPTION AGREEMENT (the "Agreement") dated this _____ day
of _______________, 2000 providing for the granting of certain option by Xxxx
Holdings, Inc., a Delaware corporation (the "Corporation"), to ____________,
an [employee of] [consultant to] [non-employee director of] the Corporation
or of a subsidiary of the Corporation (the "Employee").
As of February 1, 2000, the Corporation has duly adopted the Xxxx
Holdings, Inc. Management Stock Performance Plan (the "Plan"), which is
incorporated herein by reference. Unless otherwise expressly stated, all
defined terms herein shall have the same meanings ascribed to them in the
Plan. In accordance with Section 7 of the Plan, the Employee is to be granted
an option under the Plan to buy shares of common stock, par value $.01 per
share (the "Shares"), of the Corporation.
1. NUMBER OF SHARES; PERFORMANCE OPTION PRICE. The Corporation
hereby irrevocably grants to the Employee an option (the "Performance
Option") to purchase, in the aggregate, _________ Shares (the "Performance
Option Shares") at an exercise price of $7.41 per Share (the "Option Price")
on the terms and subject to the conditions set forth herein and in the Plan.
The Performance Option is subject to the Employee executing a Restricted
Stock Agreement substantially in the form attached to the Plan as Exhibit A.
2. PERIOD OF PERFORMANCE OPTION AND CONDITIONS OF EXERCISE. (a) The
Option Period of the Performance Option (or any portion thereof) shall
commence on the date hereof (the "Date of Grant") and terminate upon the
earlier of the date that is ten (10) years from the Date of Grant (the
"Expiration Date") and the time at which such Performance Option (or any
portion thereof) is terminated pursuant to the Plan or Section 3 hereof. Upon
the termination of Performance Option in accordance with the provisions
hereof, all rights of the Employee with respect to such Performance Option
hereunder and in connection with such Performance Option
under the Plan shall cease. This Agreement shall terminate upon the complete
termination of the Performance Option granted pursuant hereto.
(b) The Performance Option granted pursuant hereto, subject
to the following provisions of this Section 2 and subject to the Yearly
Vesting Schedule set forth in Schedule I to the Plan (the "YVS"), shall vest
in specified increments as of the end of each fiscal year of the Corporation
commencing with calendar year 2000 and continuing through and including
calendar year 2003, and shall vest only if and to the extent the Corporation
attains certain operating performance objectives, all in accordance with the
provisions set forth in Schedule I attached hereto. The YVS sets forth the
maximum amount of Performance Options which may vest as of the end of each
fiscal year of the Corporation commencing with fiscal year 2000 and
continuing through and including fiscal year 2003.
(c) Upon the consummation of an Extraordinary Transaction
(as defined below), such portion, if any, of the Performance Option that has
not vested shall become fully vested.
(d) The Employee may exercise the Performance Option with
respect to all or any portion of the Performance Option Shares at any time
and from time to time after (and to the extent) the Performance Option has
vested and before the end of the Option Period with respect to the
Performance Option or such portion thereof.
(e) For purposes of this Agreement, an "Extraordinary
Transaction" means an event as a result of which Stonington Partners, Inc.
and its subsidiaries and affiliates ("Stonington") cease to be the beneficial
owners of at least 50% of the common equity of GGS on a fully diluted basis,
or any other event as a result of which: (i) the Corporation consolidates,
enters into a plan of reorganization with, or merges with or into another
corporation or conveys, transfers or leases all or substantially all of its
assets to any person, or any corporation consolidates with or merges with or
into the Corporation, in any such event pursuant to a transaction in which
the outstanding voting common stock of the Corporation is changed into or
exchanged for cash, securities or other property, other than any such
transaction where (A) the outstanding voting common stock of the Corporation
is changed into or exchanged for, in whole or in part, voting stock of the
surviving corporation which is not redeemable capital stock and
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(B) the holders of the voting common stock of the Corporation immediately
prior to such transaction own, directly or indirectly, not less than 50% of
the voting stock of the surviving corporation immediately after such
transaction; (ii) at any time, a majority of the members of the Board of
Directors of the Corporation then in office does not consist of (A)
individuals who two years prior to such date were members of the Board of
Directors of the Corporation, (B) new directors whose election to such Board
of Directors or whose nomination for election by the shareholders of the
Corporation was approved by a vote of 66-2/3% of the directors then still in
office who were either directors at the beginning of such two-year period or
whose election or nomination for election was previously approved by
directors elected or nominated in accordance with this clause (B) and (C)
such other directors as have been nominated or approved by Stonington; or
(iii) the Corporation is liquidated, dissolved, wound-up or adopts a plan of
liquidation.
3. TERMINATION UPON TERMINATION OF EMPLOYMENT. Except in
circumstances and to the extent specified in the following sentence or the
Plan, the Performance Option shall terminate immediately upon the Employee's
ceasing to be a full-time employee of, a director of or a consultant to the
Corporation or any of its subsidiaries. The time at which a vested
Performance Option shall terminate shall be the earliest to occur of (x) the
Expiration Date, or (y) the following dates:
(i) the thirtieth day after the date upon which the
Employee ceases to be a full-time employee of, a
director of or a consultant to the Corporation or any
of its subsidiaries unless he or she ceases to be an
employee, director or a consultant in a manner
described in subsection (ii) or (iii) below;
(ii) the one hundred and eightieth day after the date of
the death, retirement or Disability (as that term is
defined in the Company's Salaried Long Term
Disability Plan) of the Employee if the Employee
dies, retires or becomes disabled before the time at
which such Performance Option otherwise terminates;
or
(iii) immediately upon the Employee's voluntary termination
of employment, directorship or consultancy (other
than (i) due to the death of such
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Employee or (ii) upon the occasion of his or her
retirement or disability or termination of
employment, directorship or consultancy by the
Corporation or any of its subsidiaries for Cause.
4. NON-TRANSFERABILITY OF PERFORMANCE OPTION; DEATH OF EMPLOYEE. The
Performance Option and this Agreement (i) may not be assigned, transferred,
pledged or hypothecated in any way, (ii) shall not be assignable by operation
of law (except by will or by the laws of descent and distribution) and (iii)
shall not be subject to execution, attachment or similar process. During the
lifetime of the Employee, the Performance Option may be exercised only by him
or her. Any attempted assignment, transfer, pledge, hypothecation or other
disposition of the Performance Option contrary to the provisions hereof shall
be null and void and without effect.
5. PROCEDURE FOR EXERCISE AND PAYMENT FOR SHARES. (a) A Participant
shall exercise an Option by giving notice to the Corporation in the form
attached hereto as Schedule II. Such notice shall be deemed sufficient for
this purpose only if delivered to the Corporation at its principal office and
only if it states (i) the number of Shares with respect to which the Option
is being exercised, and (ii) the date, not more than ninety (90) days after
the date of such notice, upon which the Shares shall be purchased and payment
therefor shall be made (the "Exercise Date"). The exercise of an Option shall
be effective only if, on or before the Exercise Date, the Participant pays
the aggregate Option Price of the Shares being purchased in cash or by
certified or bank cashier's check, delivered to the principal office of the
Corporation. The Corporation shall, as soon as practicable after the Exercise
Date, deliver or cause to be delivered to the Participant a certificate or
certificates for the number of Shares with respect to which the Option is so
exercised and payment is so made, registered in the name of the exercising
Participant. Until such certificates have been issued, the exercising
Participant shall not have any of the rights of a shareholder of the
Corporation including, without limitation, the right to vote with respect to
the underlying Shares. Finally, the Corporation will require the Participant
to sign a Restricted Stock Agreement substantially in the form attached to
the Plan as Exhibit A as a condition precedent to receiving any Shares in
exercise of all or a portion of the Option.
(b) Notwithstanding the foregoing, if as of the Exercise
Date for an Option (i) the Corporation may not issue Shares with respect to
such Option by reason of any law or
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contract or (ii) any law or any regulation of any commission or agency having
jurisdiction shall require the Corporation or the exercising Participant to
take any action with respect to the Shares acquired by the exercise of an
Option, then the date upon which the Corporation shall issue or cause to be
issued the certificate or certificates for the Shares shall be postponed
until such issuance is permitted or full compliance has been made with all
such requirements of law or regulation, as applicable; provided, that the
Corporation shall use its reasonable efforts to take all necessary action to
comply with such requirements of law or regulation. Further, if requested by
the Corporation, at or before the time of the issuance of the Shares with
respect to which exercise of an Option has been made, the exercising
Participant shall deliver to the Corporation his or her written statements
satisfactory in form and content of the Corporation, that he or she intends
to hold the Shares so acquired by him or her on exercise of his or her
Option, for investment purposes only and not with a view to resale or other
distribution thereof to the public in violation of the Securities Act of
1933, as amended (the "Securities Act"). Moreover, in the event that the
Corporation shall determine that, in compliance with the Securities Act or
other applicable statutes or regulations, it is necessary to register any of
the Shares with respect to which an exercise of an Option has been made, or
to qualify any such Shares for exemption from any of the requirements of the
Securities Act or any other applicable statute or regulation, no Options may
be exercised and no Shares shall be issued to the exercising Participant
until the required action has been completed; provided, that the Corporation
shall use its reasonable efforts to take all necessary action to comply with
such requirements of law or regulation. Notwithstanding anything to the
contrary contained herein, neither the Board of Directors nor the members of
the Compensation Committee owe a fiduciary duty to any Participant in his or
her capacity as such.
6. WITHHOLDING. No later than the date as of which an amount first
becomes includable in the gross income of the Participant for federal income
tax purposes with respect to any Option hereunder, such Participant shall pay
to the Corporation any federal, state, local or foreign taxes of any kind
required by law to be withheld with respect to such amount. The obligations
of the Corporation hereunder shall be conditional on such payment, and the
Corporation shall, to the extent permitted by law, have the right to deduct
any such taxes from any payment otherwise due the Participant.
7. SPECIFIC RESTRICTIONS UPON PERFORMANCE OPTION SHARES. The
Employee hereby agrees with the Corporation as follows:
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(a) the Employee shall acquire the Performance Option
Shares for investment purposes only and not with a view to resale or other
distribution thereof to the public in violation of the Securities Act of
1933, as amended (the "Securities Act"), and shall not dispose of any
Performance Option Shares in any transaction which, in the opinion of counsel
to the Corporation, may violate the Securities Act, or the rules and
regulations thereunder, or any applicable state securities, or "blue sky",
laws;
(b) if any Performance Option Shares shall be registered
under the Securities Act, no public offering (otherwise than on a national
securities exchange, as defined in the Exchange Act) of any Performance
Option Shares shall be made by the Employee (or any other person) under such
circumstances that he or she (or such other person) may be deemed an
underwriter, as defined in the Securities Act; and
(c) the Corporation shall have the authority to endorse
upon the certificate or certificates representing the Performance Option
Shares such legends referring to the foregoing restrictions or any other
applicable restrictions, as the Corporation may deem appropriate.
8. CASH-OUT OF CERTAIN OPTION. Without limiting any rights of the
Corporation under the Stockholders' Agreement, the Compensation Committee or
the Board of Directors may cancel any outstanding Options in exchange for a
cash payment, or in the discretion of the Compensation Committee or the Board
of Directors payment of other property, to the Participant equal to the
excess of (x) the fair market value (as determined in good faith by the Board
of Directors of the Corporation) of the consideration received per Stonington
Share by Stonington in any Extraordinary Transaction (as defined in paragraph
2(e) above), over (y) the Option Price for such Options, multiplied by the
number of Shares subject to such cancelled Options, in each case effective
upon the consummation of the Extraordinary Transaction.
9. TERMINATION OF EMPLOYMENT. The employment, consultancy or
directorship of the Employee shall not be deemed to have terminated if the
Employee is absent from such employment, consultancy or directorship by
reason of an approved leave of absence (in accordance with the applicable
policy of the Corporation or the applicable subsidiary) or is transferred to
and becomes an employee, consultant or director of a subsidiary of the
Corporation
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or the Corporation, and, in the case of a consultant, the expiration of a
consulting arrangement without the prior termination thereof shall not be
deemed a termination of such arrangement (or cessation of being a consultant)
for purposes of this Agreement. If a subsidiary of the Corporation ceases to
be such a subsidiary, the employment, consultancy or directorship, as
applicable, of each employee, consultant and director of such subsidiary who
is not an employee, consultant or director of the Corporation or of another
(remaining) subsidiary of the Corporation immediately thereafter shall be
deemed to have ceased on the date such subsidiary ceases to be a subsidiary
of the Corporation unless proper provision is made for the conversion of such
Participant's Option into option of the surviving or acquiring company on
terms which are intended to preserve substantially the economic value thereof
as of the date such subsidiary ceases to be a subsidiary of the Corporation.
10. PAYMENT. Nothing herein contained or done pursuant hereto shall
obligate the recipient of an Performance Option to purchase and/or pay for
any Performance Option Shares except those Performance Option Shares in
respect of which the holder of the Performance Option shall have exercised
such option to purchase hereunder in the manner herein above provided.
11. SOLE AGREEMENT. This Agreement, together with the Plan and the
Restricted Stock Agreement, form the sole agreement between the parties to it
regarding the matters specified in it, and any and all prior written or oral
understandings regarding those matters are merged into it. This Agreement may
be amended only by written agreement between the Employee and the Corporation.
12. BINDING EFFECT. This Agreement shall inure to the benefit of and
be binding upon the parties hereto, their heirs, successors and permitted
assigns.
13. THE EMPLOYEE HEREBY REPRESENTS, WARRANTS AND ACKNOWLEDGES TO THE
CORPORATION THAT THE EMPLOYEE IS AN [EMPLOYEE OF] [CONSULTANT TO]
[NON-EMPLOYEE DIRECTOR OF] THE CORPORATION OR A SUBSIDIARY OF THE CORPORATION
AND THAT THE [EMPLOYEE] [CONSULTANT] [NON-EMPLOYEE DIRECTOR] WAS NOT AND IS
NOT BEING INDUCED TO ENTER INTO THIS AGREEMENT BY AN
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EXPECTATION OF [EMPLOYMENT] [CONSULTANCY][DIRECTORSHIP] OR CONTINUED
[EMPLOYMENT] [CONSULTANCY] [DIRECTORSHIP].
14. NOTICES. Any notice required or permitted under this Agreement
shall be deemed given when delivered personally, or when deposited in a
United States Post Office as registered mail, postage prepaid, addressed, as
appropriate, to the Employee at his or her address set forth below or such
other address as he or she may designate in writing to the Corporation, or to
the Corporation, c/o Office of Secretary, Xxxx Holdings, Inc., 000 Xxxxxxx
Xxxx, Xxxxxxxx, XX 00000 or such other address(es) as the Corporation may
designate in writing to the Employee.
15. FAILURE TO ENFORCE NOT A WAIVER. The failure of the Corporation
to enforce at any time any provision of this Agreement shall in no way be
construed to be a waiver of such provision or of any other provision hereof.
16. GOVERNING LAW. This Agreement shall be governed by and construed
according to the laws of the State of Delaware, without regard to principles
of conflict of laws.
17. PROVISIONS OF PLAN. The Performance Option provided for herein
is granted pursuant to the Plan, and said Performance Option and this
Agreement are in all respects governed by the Plan and subject to all of the
terms and provisions thereof, whether such terms and provisions are
incorporated in this Agreement solely by reference or are expressly cited
herein. In the event of any inconsistency between this Agreement and the
Plan, the terms of the Plan shall govern to the extent of such inconsistency.
For greater certainty, without limiting the generality of the foregoing, the
Employee agrees to be bound by any amendments to the Plan or this Agreement
made by the Compensation Committee of the Board of Directors of the
Corporation or the Board of Directors of the Corporation in accordance with
the provisions of the Plan to conform the Plan or this Agreement to the rules
and regulations of any appropriate regulatory authority or any national
securities exchange on which the Corporation proposes to list or lists any of
its shares. From and after the date, if any, on which any shares of the
Corporation are listed on any national securities exchange an/or subject to
the rules and regulations of any applicable regulatory authority, the terms
and conditions of this Agreement and the implementation thereof shall be
subject to the rules and regulations of such exchange and/or regulatory
authority, as the case may be, and, in the event of any inconsistency between
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the terms and conditions of this Agreement and the rules and regulations of
any such exchange and/or regulatory authority, as the case may be, shall
prevail.
* * *
IN WITNESS WHEREOF, the Corporation has executed this Agreement on
the day and year first above written.
XXXX HOLDINGS, INC.
By:
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Name: Xxxxxx X. Xxxxxx, III
Title: Executive Vice President
The undersigned hereby accepts, and agrees to, all terms and provisions of
the foregoing Agreement.
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(name)
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ADDRESS
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