EXHIBIT 10.5
TANDY BRANDS ACCESSORIES, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
FOR NON-EMPLOYEE DIRECTORS
This NONQUALIFIED STOCK OPTION AGREEMENT (the "Agreement") is made and
entered into effective as of the 16th day of October, 2001, by and between TANDY
BRANDS ACCESSORIES, INC., a Delaware corporation (herein called the "Company")
and ROGER R. HEMMINGHAUS (herein called the "Director").
WITNESSETH:
WHEREAS, the Board of Directors of the Company (the "Board") has
determined it is advisable and in the best interests of the Company and that the
interests of the Company will be advanced by encouraging and enabling
non-employee directors of the Company to acquire proprietary shares in the
Company, thus providing them with a more direct concern in the welfare of the
Company and assuring a closer identification of their interests with those of
the Company; and
WHEREAS, the Board believes that the acquisition of such an interest in
the Company will stimulate the endeavors of such directors on behalf of the
Company and strengthen their desire to remain in service with the Company by
adding long-term incentives for high levels of performance and for unusual
efforts designed to improve the financial performance of the Company; and
WHEREAS, the Board has determined it is advisable and in the best
interests of the Company to provide for option grants to the non-employee
directors of the Company in addition to those provided for under the Company's
Non-Qualified Formula Stock Option Plan for Non-Employee Directors; and;
WHEREAS, the individual above named is one of such directors; and
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained and other good and valuable consideration, the
parties hereto agree as follows:
1. Company grants to Director the right and option to purchase, at the
time and on the terms and conditions hereinafter set forth, 2,500 shares of the
presently authorized Common Stock of the Company (the "Option Shares") at the
purchase price of $15,225.00 (or $6.09 per share).
2. This option shall continue for ten (10) years from the effective
date hereof, except and to the extent that such term may be reduced as provided
in Paragraphs 5, 6, 7 and 10 hereof; provided, however, that if any termination
date provided for herein shall fall on a Saturday, Sunday or legal holiday, then
such termination date shall be deemed to be the first normal business day of the
Company, at its office specified in Paragraph 15 hereof, before such Saturday,
Sunday or legal holiday.
3. Except as otherwise provided herein, this option shall be
exercisable and one hundred percent (100%) vested six (6) months after the
effective date hereof. Under no
circumstances may this option be exercised on a date later than ten (10) years
from the effective date hereof. Director's right to exercise the option granted
hereunder accrues only in accordance with the foregoing provisions and, except
as otherwise provided herein, only to the extent that he remains in the
continuous service of the Company. This option shall be exercisable during the
lifetime of Director only by him, or by his duly appointed guardian or personal
representative. In no event may Director or any person exercising this option
pursuant to Paragraph 7 hereof exercise this option (before or after any
adjustment or substitution pursuant to Paragraphs 9, 10 or 16 hereof) for a
fraction of a share.
4. The option granted hereunder shall be exercised by delivering to the
Secretary of the Company from time to time within the time limits specified in
Paragraph 3 hereof a written notice specifying the number of vested shares
Director then desires to purchase together with either: (i) a cashier's check
payable in United States currency (unless a personal check shall be acceptable
to such officer) to the order of the Company for an amount equal to the option
price for such number of shares; or (ii) with the prior consent of the Board,
and upon receipt of all regulatory approvals, certificates for Common Stock of
the Company, valued at the Fair Market Value (as hereinafter defined) of such
Common Stock on the date of exercise of this option, as payment of all or any
portion of the option price for such number of shares; and (iii) such other
instruments or agreements duly signed by Director as in the opinion of counsel
for the Company may be necessary or advisable in order that the issuance of such
number of shares comply with applicable rules and regulations under the
Securities Act of 1933, as amended (the "Act"), any appropriate state security
laws or any requirement of any national securities exchange or market system on
which such stock may be traded. As used herein, the term "Fair Market Value" on
any date shall mean the closing price of the Common Stock as reported by the
Nasdaq National Market System on such date or, if no reported sale of the Stock
shall have occurred on such date, then the closing price of the Stock as
reported by the Nasdaq National Market System on the next preceding date on
which there was such a reported sale. As soon as practicable after any such
exercise of the option in whole or in part by Director, the Company will deliver
to Director at Director's address, as set forth below, a certificate for the
number of shares with respect to which the option shall have been so exercised,
issued in Director's name. Such stock certificate shall carry such appropriate
legend, and such written instructions shall be given to the Company's Transfer
Agent, as may be deemed necessary or advisable by counsel for the Company to
satisfy the requirements of the Act or any state securities laws.
5. (a) If the directorship of Director is terminated for any reason
other than (i) Disability (as hereinafter defined) of Director, (ii) death of
Director, or (iii) on account of any act of fraud or intentional
misrepresentation or embezzlement, misappropriation or conversion of assets or
opportunities of the Company or any Affiliate (as hereinafter defined), then
Director shall have the right at any time within thirty-six (36) months after
the termination of such directorship or, if shorter, during the unexpired term
of this option, to exercise this option for the full number of shares or any
portion thereof (except as to the issuance of fractional shares), but only to
the extent this option was exercisable on the date of such termination. For
purposes of this Agreement, the term "Affiliate" shall mean any entity in which
the Company directly or indirectly owns twenty-five percent (25%) or more of the
total combined voting power or value of all classes of stock or, in the case of
an unincorporated entity, a twenty-five percent (25%) or more interest in the
capital and profits.
(b) If the directorship of Director is terminated on account
of any act of fraud or intentional misrepresentation or embezzlement,
misappropriation or conversion of assets or opportunities of the Company or any
Affiliate, then his rights under the option granted hereunder shall terminate
immediately.
6. If Director's directorship is terminated by reason of Disability,
this option (whether or not exercisable on the date of Director's termination of
directorship by reason of Disability) may be exercised in full, or to the extent
of any part thereof (except as to the issuance of fractional shares) at any time
within thirty-six (36) months after the date of such termination or within the
unexpired term of this option, whichever is the shorter period. As used herein,
the term "Disability" shall have the same meaning given to such term in the
Tandy Brands Accessories, Inc. Key Executive Disability Plan. Disability shall
be determined in the sole and absolute discretion of the President and Chief
Financial Officer of the Company (the "Committee").
7. If Director dies while serving as a member of the Board, this option
may be exercised in full, or to the extent of any part thereof (except as to the
issuance of fractional shares), whether or not exercisable on the date of death
of Director, at any time within thirty-six (36) months from the date of death of
Director or within the unexpired term of this option, whichever is the shorter
period, by the person or persons entitled to do so under Director's will or if
Director fails to make testamentary disposition of this option or dies
intestate, by Director's legal representative or representatives, whichever is
applicable. If Director dies during either of the thirty-six (36) month periods
described in Paragraphs 5 or 6 above, this option may be exercised, but only to
the extent exercisable on the date of death of Director, by the person or
persons described above at any time within the thirty-six (36) month period
described in Paragraph 5 or 6 above, whichever is applicable, or within twelve
(12) months after the date of such death, whichever is the longer period, but in
no event after the expiration of the option.
8. Shares to be issued on the exercise of this option may, at the
election of the Company, be either authorized and unissued shares, or shares
previously issued and reacquired by the Company.
9. If, prior to the delivery of all the shares with respect to which
this option is granted, there shall be any change in the outstanding Common
Stock of the Company, through reorganization, recapitalization,
reclassification, stock dividend, stock split, amendment to the Company's
Certificate of Incorporation or reverse stock split, an appropriate and
proportionate adjustment shall be made in the number and/or kind of securities
allocated to the option hereby granted, without change in the aggregate purchase
price applicable to the unexercised portion of the option, but with a
corresponding adjustment in the number and price for each share or other unit of
any security covered by the option. Such adjustments shall be made by the
Committee, whose determination in the matter shall be conclusive and binding on
the Company, Director and Director's legal representatives.
10. If, prior to the delivery of all the shares in respect of which
this option is granted, a Change of Control (as hereinafter defined) of the
Company shall occur:
(a) If provision be made in writing in connection with such
transaction for the assumption and continuance of the option hereby granted, or
the substitution for such option of a new option covering the shares of the
successor corporation, with appropriate adjustment as to number and kind of
shares and prices, the option hereby granted, or the new option substituted
therefor, as the case may be, shall continue in the manner and under the terms
provided.
(b) If provision is not made in such transaction for the
continuance and assumption of the option hereby granted or for the substitution
of an option covering the shares of the successor corporation, then Director
shall be entitled, prior to the effective date of any such transaction to
purchase the full number of shares under this option (without regard to the
period of exercisability set forth in Paragraph 3) that have not at the time
expired or been cancelled, failing which purchase, any unexercised portion shall
be deemed cancelled as of the effective date of such transaction.
All adjustments under this paragraph shall be made by the Committee, whose
determination as to what adjustments shall be made and the extent thereof, shall
be final, binding and conclusive on the Company, Director and Director's legal
representatives. A "Change in Control" for purposes of this Agreement shall mean
the occurrence of any of the following events: (i) any "person" or "group" of
persons, as such terms are used in Sections 13 and 14 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act") other than any employee benefit
plan sponsored by the Company, becomes the "beneficial owner", as such term is
used in Section 13 of the Exchange Act, of thirty percent (30%) or more of the
outstanding shares of the Company's stock entitled to vote for the election of
directors; or (ii) any shares of any class of the Company's stock are purchased
pursuant to a tender of exchange offer other than an offer by the Company; or
(iii) the dissolution or liquidation of the Company or the consummation of any
merger or consolidation of the Company or any sale or other disposition of all
or substantially all of its assets, if the stockholders of the Company
immediately before such transaction own, immediately after consummation of such
transaction, equity securities (other than options and other rights to acquire
equity securities) possessing less than thirty (30%) of the voting power of the
surviving or acquiring corporation.
11. Neither Director nor his legal representatives shall be or have any
of the rights or privileges of a shareholder of the Company with respect to any
of the shares issuable upon the exercise of this option unless and until
certificates representing such shares shall have been issued and delivered to
Director or his legal representatives.
12. Neither the granting of this option, the exercise of any part
hereof, nor any provision of this Agreement shall constitute or be evidence of
any understanding, express or implied, on the part of the Company to continue
the service of Director as a member of the Board for any specified period.
13. Except as otherwise herein provided, this option and the rights and
privileges conferred hereby may not be transferred, assigned, pledged or
hypothecated in any way (whether by operation of law or otherwise) and shall not
be subject to execution, attachment or similar process. Upon any attempt to
transfer, assign, pledge, hypothecate or otherwise dispose of this
option or any right or privilege conferred hereby, contrary to the provisions
hereof, this option and the rights and privileges conferred hereby shall
immediately become null and void.
14. The Committee shall have authority to make reasonable constructions
of this option and to correct any defect or supply any omission or reconcile any
inconsistency in this option, and to prescribe reasonable rules and regulations
relating to the administration of this option and other similar options granted
under the Plan.
15. Any notice relating to this Agreement shall be in writing and
delivered in person or by registered mail to the Company at its main office, 690
E. Lamar Boulevard, Suite No. 200, Arlington, Texas 76011 or to such other
address as may be hereafter specified by the Company, to the attention of its
Secretary. All notices to Director or to any other person or persons then
entitled to exercise the option shall be delivered to Director or such other
person or persons at the Director's address specified below.
16. If, prior to the delivery of all of the shares with respect to
which this option is granted, there shall be a merger or consolidation of the
Company in which the Company is the surviving corporation and, if as a result
thereof, outstanding shares of Common Stock of the Company are changed,
converted or exchanged, then there shall be substituted for each share of stock
subject to the option granted hereby the number, kind or amount of shares of
stock or other securities or cash into which the outstanding shares of Common
Stock of the Company shall be so changed, converted or exchanged as a result of
such merger or consolidation. In the case of any such substitution or adjustment
as provided in this paragraph, the option price referred to in this Agreement
for the shares covered hereby shall be the option price for the shares or other
securities or cash which shall have been substituted for the shares covered
hereby or to which such shares shall have been adjusted. Any adjustment or
substitutions pursuant to this paragraph shall be made by the Committee, whose
determination in the matter shall be conclusive and binding on the Company,
Director and his legal representatives.
17. This option is non-transferable by the Director other than by will
or by the laws of descent and distribution. During the Director's lifetime, the
option shall be exercisable only by the Director or by the Director's duly
appointed guardian or personal representative.
18. Any payment or any issuance or transfer of shares of the Common
Stock to Director or to his legal representative, heir, legatee or distributee,
in accordance with the provisions hereof, shall, to the extent thereof, be in
full satisfaction of all claims of such persons hereunder. The Board may require
Director and any such legal representative, heir, legatee or distributee, as a
condition precedent to such payment, issuance or transfer, to execute a release
and receipt therefor in such form as it shall determine.
19. This option is not intended to qualify as an "incentive stock
option" within the meaning of Section 422 of the Internal Revenue Code and shall
not be so construed.
20. This Agreement shall be governed by the laws of the State of
Delaware, without regard to principles of conflicts of law.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed in its name by its President effective on the date and year first above
written, and Director has hereunto set his hand on the day and year specified
below.
TANDY BRANDS ACCESSORIES, INC. DIRECTOR
By: /s/ J.S.B. Jenkins /s/ Roger R. Hemminghaus
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J.S.B. Jenkins, President Roger R. Hemminghaus
28136 Aqueduct Lane
Fair Oaks Ranch, Texas 78015
Date: 11/15/01
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