EXHIBIT 10.5
PLAY-BY-PLAY TOYS & NOVELTIES, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
Date of Grant: November 4, 1996.
This Nonqualified Stock Option Agreement (this "Agreement"), dated as
of the date of grant first stated above (the "Date of Grant"), is delivered
BY PLAY-BY-PLAY TOYS & NOVELTIES, INC.,
a Texas corporation,
hereinafter referred to as
"COMPANY"
TO ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
an individual,
hereinafter referred to as
"GRANTEE"
WHEREAS, Company and Grantee have entered into a certain Employment
Agreement of even date herewith (the "Employment Agreement"), a copy of which is
attached hereto as Exhibit "A;" and
WHEREAS, Company and Grantee agree to enter into this Agreement in
order to provide to Grantee certain employment compensation.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, the Company and Grantee hereby agree as follows:
1. GRANT OF OPTION. Subject to the terms and conditions hereinafter set
forth, Company hereby grants to Grantee, as of the Date of Grant, an option to
purchase up to Two Hundred Thousand (200,000) shares of common stock of the
Company (the "Stock") at a purchase price per share of Eight Dollars ($8.00).
Such option is hereinafter referred to as the "Option" and the shares of stock
purchasable upon exercise of the Option are hereinafter sometimes referred to as
the "Option Shares."
2. VESTING OF EXERCISE RIGHTS. Subject to the other terms of this
Agreement, the Option shall become exercisable in installments, Grantee having
the right hereunder to purchase from Company the following number of Option
Shares upon exercise of the Option, on and after the following dates, in
cumulative fashion:
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(a) Immediately upon the commencement of employment by the Grantee
which must occur prior to January 3, 1997, up to one-half
(ignoring fractional shares) of the total number of Option
Shares; and
(b) On and after the first day of each calendar month during the
term of this Agreement, commencing February 1, 1997, through
and including January 1, 1999, up to an additional one
forty-eighth (1/48) (ignoring fractional shares) of the total
number of Option Shares.
3. TERMINATION OF OPTION.
(a) The Option and all rights hereunder with respect thereto, to
the extent such rights shall not have been exercised, shall
terminate and become null and void after the expiration of ten
(10) years from the Date of Grant (the "Option Term").
(b) Upon the occurrence of Grantee ceasing to be employed by
Company for Cause, as defined in the Employment Agreement, or
upon Grantee terminating employment with Company for any
reason, including death, the Option and all rights hereunder
with respect thereto, to the extent such rights shall not have
been exercised, shall terminate and become null and void after
the expiration of six (6) months from the effective date of
such termination of employment. In the event of the death of
Grantee, the Option may be exercised by Grantee's legal
representative.
(c) On the occurrence of Company terminating employment of Grantee
for any reason other than for Cause, the Option and all rights
hereunder with respect thereto, to the extent such rights
shall not have been exercised, shall terminate and become null
and void upon the expiration of the Option Term.
4. EXERCISE OF OPTIONS.
(a) Grantee may exercise the Option with respect to all or any
part of the number of Option Shares then exercisable hereunder
by giving the Secretary of the Company at the Company's
principal executive office written notice delivered in person
or by mail of Grantee's intent to exercise. The notice of the
exercise shall specify the number of Option Shares as to which
the Option is to be exercised and the date of exercise
thereof, which date shall be at least five (5) days after the
giving of the notice unless an earlier time shall have been
mutually agreed upon.
(b) Full payment (in U.S. dollars) by Grantee of the option price
for the Option Shares purchased shall be made on or before the
exercise date specified in the notice of exercise in cash, or,
with the prior written consent of the Company, in whole or in
part, through the surrender of previously acquired shares of
Stock at their Fair Market Value (as defined in Paragraph 12)
on the exercise date. On the exercise date specified in
Grantee's notice or as soon thereafter as is practicable, a
certificate or certificates for the Option Shares then being
purchased shall be issued to Grantee
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upon full payment of the exercise price for such Option
Shares. The obligation of Company to deliver Stock shall,
however, be subject to the condition that if at any time the
Company shall determine that the listing, registration or
qualification of the Option or the Option Shares upon any
securities exchange or under any state or federal law, or the
consent or approval of any governmental regulatory body, is
required as a condition of, or in connection with, the Option
or the issuance or purchase of Stock thereunder, the Option
may not be exercised in whole or in part unless such listing,
registration, qualification, consent or approval shall have
been effected or obtained free of any such required
conditions.
5. ADJUSTMENT OF OPTION SHARES AND OPTION PRICE. In the event of any
stock dividend, stock split or subdivision of the shares of common stock of
Company into a greater number of shares, the purchase price hereunder shall be
proportionately reduced and the number of shares subject to the Option shall be
proportionately increased; conversely, in the event of any combination of the
outstanding shares of common stock of Company, the purchase price hereunder
shall be proportionately increased and the number of shares of Stock subject to
the Option shall be proportionately reduced.
6. INVESTMENT REPRESENTATION. Upon demand by the Company, Grantee shall
deliver to Company, at the time of any exercise of the Option or portion
thereof, a written representation that the Stock to be acquired upon such
exercise are to be acquired for investment and not for resale or with a view to
the distribution thereof. Upon such demand by the Company, delivery of such
representation prior to the delivery of any certificate representing the Stock
issuable upon exercise of the Option and prior to the expiration of the Option
Term shall be a condition precedent to the right of Grantee to purchase any
shares of Stock.
7. RIGHTS AS A SHAREHOLDER. Neither Grantee nor any personal
representative shall be, or shall have any of the rights and privileges of, a
shareholder of Company with respect to any shares of Stock purchasable or
issuable upon the exercise of the Option, in whole or in part, prior to the date
of exercise of the Option.
8. NON-TRANSFERABILITY OF OPTION. During Grantee's lifetime, the Option
hereunder shall be exercisable only by Grantee or any guardian or legal
representative of Grantee, and the Option shall not be transferrable otherwise
by will or the laws of descent and distribution (but shall be exercisable by
Grantee's executor or administrator pursuant to Paragraph 3(b) hereof) or
pursuant to a qualified domestic relations order, nor shall the Option be
subject to attachment, execution or other similar process. In the event of (a)
any attempt by Grantee to alienate, assign, pledge, hypothecate or otherwise
dispose of the Option, except as provided for herein, or (b) the levy of any
attachment, execution or similar process upon the rights or interests hereby
conferred, then Company may terminate the Option by notice to Grantee and the
Option shall thereupon become null and void.
9. NO RIGHT TO CONTINUED EMPLOYMENT. Neither the granting of the Option
nor its exercise shall be construed as conferring upon Grantee any right with
respect to continuance of employment by the Company. Except as may otherwise be
limited by a written agreement between Company and Grantee, the right of Company
to terminate at will Grantee's employment with
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Company at any time (whether by dismissal, discharge, retirement or otherwise)
is specifically reserved by Company and acknowledged hereto by Grantee.
10. DISPOSITION OF SHARES. Company shall not be required to sell or
issue any shares on the exercise of the Option if the issuance of such shares
shall constitute a violation by Grantee or by Company of any provision of any
law or regulation of any governmental authority. The Option shall be subject to
the requirements that, if at any time the board of directors of the Company
shall determine that the listing, registration or qualification of the shares
subject thereto upon any securities exchange or under any state or federal law
of the United States or of any other country or governmental subdivision
thereof, or the consent or approval of any governmental regulatory body, or
investment or other representations, are required in connection with the
issuance or purchase of shares subject thereto, the Option may not be exercised
in whole or in part unless such listing, registration, qualification, consent,
approval or representation shall have been effected or obtained free of any
conditions so required. If required at any time by the Board of Directors of the
Company for all executive officers or by law, the Option may not be exercised
until Grantee has delivered an investment letter to Company. In addition,
specifically in connection with the Securities Act of 1933 (as now in effect or
hereafter amended), upon exercise of the Option, the Grantee will not transfer
such Shares, except pursuant to a registration statement in effect under such
Act or unless an opinion of counsel satisfactory to the Board of Directors has
been received by the Company to the effect that such registration is not
required. Any determination in this connection by the Board of Directors shall
be final, binding and conclusive. In the event the shares issuable on exercise
of the Option are not registered under the Securities Act of 1933, Company may
imprint on the certificate for such shares the following legend or any other
legend which counsel for the Company considers necessary or advisable to comply
with the Securities Act of 1933:
The shares of stock represented by this certificate have not been
registered under the Securities Act of 1933 or under the securities
laws of any state and may not be sold or transferred except upon
registration or upon receipt by the Corporation of an opinion of
counsel satisfactory to Corporation, in form and substance satisfactory
to Corporation, that registration is not required for such sale or
transfer.
Company shall be obligated to register any securities vested but not exercised
covered hereby pursuant to the Securities Act of 1933 prior to the termination
of the Option such that if Company has not registered the vested securities then
the Option, as to those vested securities, shall not terminate until sixty (60)
days after the effective date of such regisrtration.
11. AMENDMENT OF OPTION. The Option shall be amended by the Board of
Directors of the Company or by a committee appointed by the Board of Directors
(the "Committee") at any time that an amendment is necessary or advisable in the
light of any addition to or change in the Internal Revenue Code of 1986, as
amended, or in the regulations issued thereunder, or any federal or state
securities law or other law or regulation, which change occurs after the Date of
Grant and by its terms applies to the Option; or (b) other than in the
circumstances described in clause (a), with the consent of Grantee.
12. FAIR MARKET VALUE. For purposes of this Agreement, the term "Fair
Market Value" of a share of Stock shall mean the Fair Market Value of the Stock
as determined in good faith by the
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Company; provided, however, that (a) if the shares of Stock are admitted to
trading on a national securities exchange, Fair Market Value on any date shall
be the last sale price reported for the shares of Stock on such exchange on such
date or, if no sale was reported on such date, on the last date preceding such
date on which a sale was reported, (b) if the shares of Stock are admitted to
quotation on the National Association of Securities Dealers Automated Quotation
System ("NASDAQ") and have been designated as a National Market System ("NMS")
security, Fair Market Value on any date shall be the last sale price reported
for the shares of Stock on such system on such date or on the last day preceding
such date on which a sale was reported, or (c) if the shares of Stock are
admitted to quotation on NASDAQ and have not been designated a NMS security or
are listed on another comparable quotation system, Fair Market Value on any date
shall be the average of the highest bid and lowest asked prices of the shares of
Stock on such system on such date.
13. SUCCESSORS AND ASSIGNS. This Agreement shall bind the parties and
their heirs, legal representatives, successors and permitted assigns, and shall
inure to the benefit of the parties hereto.
14. ENTIRE AGREEMENT. This Agreement contains the entire agreement
between the parties and supersedes all prior agreements, arrangements and
understandings relating to the subject matter hereof.
15. COUNTERPARTS AND FACSIMILE SIGNATURES. This Agreement may be
executed simultaneously in two (2) or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument. Facsimile signatures of the parties hereto shall be binding.
16. HEADINGS. The headings contained in this Agreement are for
convenience and reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
17. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas.
IN WITNESS WHEREOF, Company and Grantee have executed this Agreement in
a manner appropriate to each as of the day and year first above written.
PLAY-BY-PLAY TOYS & NOVELTIES, INC.
By
Title
"COMPANY"
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
"GRANTEE"
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FIRST AMENDMENT TO
PLAY-BY-PLAY TOYS & NOVELTIES, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
THIS FIRST AMENDMENT TO PLAY-BY-PLAY TOYS & NOVELTIES, INC.
NONQUALIFIED STOCK OPTION AGREEMENT (this "Amendment"), is made as of this 29th
day of August, 1997,
BY AND BETWEEN PLAY-BY-PLAY TOYS & NOVELTIES, INC.,
a Texas corporation,
hereinafter referred to as
"COMPANY"
AND ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
hereinafter referred to as
"GRANTEE"
WHEREAS, Company granted a nonqualified stock option to Grantee pursuant
to that certain Play-By-Play Toys & Novelties, Inc. Nonqualified Stock Option
Agreement dated November 4, 1996 (the "Agreement") whereby Company granted
Grantee the option to purchase up to two hundred thousand (200,000) shares of
common stock of Company at a purchase price per share of $8.00; and
WHEREAS, Company and Grantee, in order to carry out the parties' original
intentions, desire to amend the Agreement as set forth herein.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, Company and Grantee hereby agree as follows:
1. The "Date of Grant" is hereby amended to January 2, 1997.
2. Paragraph 2 of the Agreement is hereby amended by deleting the same in
its entirety and inserting in lieu thereof the following:
2. VESTING OF EXERCISE RIGHTS. Subject to the terms of this Agreement,
the Option shall become exercisable in installments, Grantee having the
right hereunder to purchase from Company the following number of Option
Shares upon exercise of the Option, on and after the following dates, in
cumulative fashion:
(a) On and after the first day of each calendar month during the
term of this Agreement, commencing February 1, 1997, through and
including January 1, 2002, up to one sixtieth (1/60) (ignoring
fractional shares) of the total number of Option Shares; and
(b) Company may, from time to time, in its sole and absolute discretion,
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accelerate all or any portion of the vesting rights of Grantee in
and to the Option Shares. Within ten (10) business days of the
acceleration by Company of the vesting rights in and to the Option
Shares, written notice shall be provided to Grantee by Company.
3. Paragraph 3 of the Agreement is hereby amended by deleting the same in
its entirety and inserting in lieu thereof the following:
3. TERMINATION OF OPTION.
(a) The Option and all rights hereunder with respect thereto, to the
extent such rights shall not have been exercised, shall terminate
and become null and void after the expiration of twelve (12) years
from the Date of Grant (the "Option Term"); provided, however, in
the event that the employment relationship between Company and
Grantee is terminated for any reason before February 1, 1999, then
such Option Term shall be ten (10) years from the Date of Grant.
(b) Upon the occurrence of Grantee ceasing to be employed by Company
for Cause, as defined in the Employment Agreement, or upon Grantee
terminating employment with Company for any reason, including death,
Grantee shall be entitled to exercise One Hundred Thousand (100,000)
of the total number of Option Shares plus an additional number of
Option Shares equal to one forty-eighth (1/48) of the total number
of Option Shares for each calendar month lapsed during the term of
this Agreement, commencing February 1, 1997, through and including
the month of the termination of employment less the number of Option
Shares previously exercised by Grantee; provided, however, the
number of Option Shares which Grantee is entitled to exercise
pursuant to this subparagraph shall be vested and exercisable in
installments in accordance with the sixty (60) month schedule of
Subparagraph 2(a) hereof, and, also, as to each group of monthly
vesting Option Shares, such vested shares shall become null and void
to the extent such rights shall not have been exercised within the
Option Term.
(c) On the occurrence of Company terminating employment of Grantee
for any reason other than for Cause, Grantee shall be immediately
vested in the total number of unexercised Option Shares; provided,
however, the number of Option Shares which are vested pursuant to
this subparagraph shall be exercisable in installments in accordance
with the sixty (60) month schedule of Subparagraph 2(a) hereof, and
to the extent such rights shall not have been exercised within the
Option Term, such vested Option Shares shall become null and void.
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(d) In the event of the death of Grantee, the Option may be exercised by
Grantee's legal representative, but only to the extent that the
Option would otherwise have been exercisable by Grantee.
(e) A transfer of Grantee's employment between Company and any
subsidiary of Company, or between any subsidiaries of Company, shall
not be deemed to be a termination of Grantee's employment for
purposes of this Option.
4. Paragraph 4 of the Agreement is hereby amended by including the
following paragraph:
(c) Grantee shall be immediately vested in the total number of
unexercised Option Shares and shall have the right to immediately
exercise the Option in the event either (1) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ is no
longer serving Company in capacity as either Chairman of the Board
or Chief Executive Officer, or (2) Company is a party to a merger,
consolidation or other business combination whereby Company is not
the surviving entity.
5. Paragraph 8 of the Agreement is hereby amended by deleting the words
"Paragraph 3(b)" on line four of Paragraph 8 and inserting in lieu thereof
"Paragraph 3(d)."
6. All defined terms not defined herein shall have the same meaning as set
forth in the Agreement.
IN WITNESS WHEREOF, Company and Grantee have executed this Amendment in a
manner appropriate to each as of the day and year first above written.
PLAY-BY-PLAY TOYS & NOVELTIES, INC.
By:_________________________________________
Name:_______________________________________
Title:______________________________________
"COMPANY"
____________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
"GRANTEE"
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