Exhibit 10.46
The following table lists each executive officer of the Company who
entered into a Stock Option Agreement in the form that follows, the date
of such agreement, the exercise prices, and the number of performance-
based options granted.
NUMBER OF
NAME DATE EXERCISE PRICE OPTIONS GRANTED
Joseph P. Henican, III 7/17/98 $ 27.25 330,000
William E. Rowe 7/17/98 27.25 330,000
Kenneth C. Budde 7/17/98 27.25 165,000
Ronald H. Patron 7/17/98 27.25 110,220
Gerard C. Alexander 7/17/98 27.25 110,220
Richard O. Baldwin, Jr. 7/17/98 27.25 165,000
Brian J. Marlowe 7/17/98 27.25 165,000
Brent F. Heffron 7/17/98 27.25 165,000
Raymond C. Knopke, Jr. 7/17/98 27.25 165,000
Lawrence B. Hawkins 7/17/98 27.25 33,000
Charles L. Tilis 7/23/98 25.8l25 60,000
11/1/98 23.0625 56,670
THIS DOCUMENT CONSTITUTES PART OF A PROSPECTUS COVERING SECURITIES
ISSUED PURSUANT TO THE STEWART ENTERPRISES, INC. AMENDED AND RESTATED 1995
INCENTIVE COMPENSATION PLAN
THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933.
STOCK OPTION AGREEMENT
FOR THE GRANT OF
NON-QUALIFIED STOCK OPTIONS UNDER THE
STEWART ENTERPRISES, INC.
AMENDED AND RESTATED 1995 INCENTIVE COMPENSATION PLAN
THIS AGREEMENT (the "Agreement") is effective as of July 23, 1998, by
and between Stewart Enterprises, Inc., a Louisiana corporation ("SEI"), and
________ ________ ("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 Stewart Enterprises, Inc. Amended and Restated 1995
Incentive Compensation Plan (the "Plan").
NOW, THEREFORE, in consideration of the premises, it is agreed by and
between the parties as follows:
I.
Grant of Option
SEI hereby grants to Optionee effective July 23, 1998 (the "Date of
Grant") the right, privilege and option to purchase ______ shares of Common
Stock (the "Option") at an exercise price of $_______ 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 July 23, 1998 and July 17, 2003 that the average
of the "Closing Sale Prices" of a share of Common Stock for the 20
preceding consecutive trading days equals or exceeds $67.81. The average
price of $67.81 per share reflects a 20% compounded annual increase in the
price of a share of Common Stock over five years, beginning with the
Closing Sale Price on the Nasdaq Stock Market on July 16, 1998. In
determining whether the Option has become exercisable, the average of the
"Closing Sale Prices" shall be rounded to the nearest $0.01, with $.005 and
greater rounded up.
If the conditions described in this Section 2.1 are not met by July
17, 2003, 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 July
31, 2004.
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 July 31, 2004.
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 July 31, 2004.
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 July 31, 2004.
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 12.11(a)(iii) and (iv) of the
Plan, and no later than 30 days after a Change of Control of the types
described in Sections 12.11(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 Optionee, 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 the Option be exercised on or before a specified
date (before or after such Change of Control) fixed by the Committee,
after which specified date any unexercised portion of the Option shall
terminate,
(b) provide for mandatory conversion, before or after such Change
of Control, of all or part of the Option as specified by the
Committee, in which event such Option or portion thereof shall be
deemed automatically cancelled and SEI shall pay, or cause to be paid,
to Optionee an amount in cash equal to the excess, if any, of the
Change of Control Value of the shares subject to such Option or
portion thereof, as defined and calculated below, over the exercise
price of such Option or portion thereof, 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 the Option 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 all or part of
the Option, the Optionee shall be entitled to purchase under the
Option, in lieu of the number of shares of Common Stock then covered
by the Option, the number and class of shares of stock or other
securities or property (including, without limitation, cash) that the
Optionee would have been entitled to receive 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 12.11(a)(iii) and (iv) of the Plan, if, immediately prior to
such Change of Control, Optionee had been the holder of record of the
number of shares of Common Stock then covered by the Option.
4.2 For the purposes of paragraph (b) of Section 4.1 "Change of
Control Value" shall be 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 otherwise issuable upon exercise of the Option being
converted, as determined by the Committee and as of the date
determined by the Committee to be the date of conversion of the
Option.
(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.
Deferral
Optionee may elect to defer receipt of all or any portion of the
shares of Common Stock, or any payment of cash or other consideration in
lieu thereof, that Optionee otherwise would receive upon exercise of the
Option, pursuant to a deferral arrangement that may be established by the
Committee and is in effect at the time of such election; provided, however,
that the Committee shall have no obligation to establish or maintain any
such arrangement.
VI.
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.
VII.
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.
VIII.
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.
IX.
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. If any provision of this Agreement
relating to the Option conflicts with any provision of the Employment
Agreement, the provision in the Employment Agreement shall control.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
STEWART ENTERPRISES, INC.
By: ______________________
______________________
Joseph P. Henican, III
Vice Chairman of the Board of Directors
and Chief Executive Officer
___________________________
____________________
Optionee