Exhibit 10.10
NON-QUALIFIED STOCK OPTION
AGREEMENT
THIS AGREEMENT (the “
Agreement ”), dated <GRANT DATE> (the “
Grant Date ”), is made by and between Walter
Industries, Inc., a Delaware corporation (the “
Company ”) and <NAME>, <POSITION>, of the
Company (or one of its Subsidiaries, as defined herein),
hereinafter referred to as the “Optionee”:
WHEREAS, pursuant to the 2002
Long-Term Incentive Award Plan of Walter Industries, Inc. (the
“ Plan ”) the Company has granted to the
Optionee, effective as of the Grant Date, an option to purchase a
number of shares of its common stock, par value $0.01 per share
(the “ Common Stock ”) on the terms and subject
to the conditions set forth in this Agreement and the
Plan;
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
Whenever the following terms are
used in this Agreement, they shall have the meaning specified below
unless the context clearly indicates to the contrary. Capitalized
terms used in this Agreement and not defined below shall have the
meaning given such terms in the Plan. The masculine pronoun shall
include the feminine, and the singular the plural, where the
context so indicates.
Section 1.1
“ Administrator ” shall mean the Committee
unless the Board has assumed the authority for administration of
the Plan generally as provided in Section 10.2 of the
Plan.
Section 1.2
“ Board ” shall mean the Board of Directors of
the Company
Section 1.3
“ Cause ” shall mean (a) any form of
dishonesty or criminal conduct connected with the employment of
Optionee, (b) the refusal of Optionee to comply with the
Company’s lawful written instructions, policies or
rules as approved or mandated by the Board, (c) gross or
willful misconduct by Optionee during employment with the Company,
or (d) Optionee’s conviction of, or plea of guilty or
nolo contendere to, a felony. All disputes concerning whether a
particular termination is for “Cause” shall be
determined in good faith by the Administrator.
Section 1.4
“ Change in Control .” shall mean a change in
ownership or control of the Company effected through any of the
following transactions:
(a)
(i)
Any person or related group of persons (other than the Company or a
person that, prior to such transaction, directly or indirectly
controls, is controlled by, or is under common control with, the
Company or any person which as of the date of adoption of this Plan
by the Board, has “beneficial ownership” (within the
meaning of Rule 13d-3
under the Exchange Act) of
securities possessing more than 30% of the total combined voting
power of the Company’s outstanding securities) directly or
indirectly acquires beneficial ownership of securities possessing
more than 40% of the total combined voting power of the
Company’s outstanding securities, or
(ii)
Any person or related group of persons (other than the Company or a
person that, prior to such transaction, directly or indirectly
controls, is controlled by, or is under common control with, the
Company) who is not, as of the date of adoption of this Plan by the
Board, a beneficial owner of 1% or more of the total combined
voting power of the Company’s outstanding securities,
directly or indirectly acquires beneficial ownership of securities
possessing more than 25% of the total combined voting power of the
Company’s outstanding securities and is, upon the
consummation of such acquisition, the beneficial owner of the
largest percentage of the total combined voting power of the
Company’s outstanding securities; or
(b)
There is a change in the composition of the Board over a period of
36 consecutive months (or less) such that a majority of the Board
members (rounded up to the nearest whole number) ceases to be
comprised of individuals who either (i) have been Board
members continuously since the beginning of such period, or
(ii) have been elected or nominated for election as Board
members during such period by at least a majority of the Board
members described in clause (i) who were still in office at
the time such election or nomination was approved by the Board;
or
(c)
The consummation of a merger or consolidation of the Company
with any other corporation (or other entity) where such merger or
consolidation has been approved by the stockholders of the Company,
other than a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or
by being converted into voting securities of the surviving entity)
more than 66-2/3% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation; provided, however,
that a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which
no person acquires more than 25% of the combined voting power of
the Company’s then outstanding securities shall not
constitute a Change in Control; or
(d)
Notwithstanding the foregoing, a transaction or series of
transactions in which Walter Industries separates one or more of
its existing businesses, whether by sale, spin-off or otherwise,
and whether or not any such transaction or series of transactions
requires a vote of the stockholders, shall not be considered a
“Change in Control.”
(e)
The stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale, lease or
other disposition by the Company of all or substantially all of the
Company’s assets.
Section 1.5
“ Code ” shall mean the Internal Revenue Code of
1986, as amended.
Section 1.6
“ Committee ” shall mean the Compensation
Committee of the Board, or another committee or subcommittee of the
Board, appointed as provided in Section 10.2 of the
Plan.
2
Section 1.7
“ Common Stock ” shall mean the common stock of
the Company, par value $0.01 per share.
Section 1.8
“ Company ” shall mean Walter
Industries, Inc., a Delaware corporation.
Section 1.9
“ Disability ” shall mean any medical condition
whatsoever which leads to the absence of the Optionee from his or
her job function for a continuous period of six months without the
Optionee being able to resume such functions on a full time basis
at the expiration of such period, it being understood that
unsuccessful attempts to return to work for periods under thirty
days shall not be deemed to have interrupted said
continuity.
Section 1.10
“ Eligible Representative ” shall mean, upon the
Optionee’s death, the Optionee’s personal
representative or such other person as is empowered under the
deceased Optionee’s will or the then applicable laws of
descent and distribution to represent the Optionee
hereunder.
Section 1.11
“ Employee ” shall mean any officer or other
employee (as defined in accordance with
Section 3401(c) of the Code) of the Company, or of any
corporation which is a Subsidiary.
Section 1.12
“ Exchange Act ” shall mean the Securities
Exchange Act of 1934, as amended.
Section 1.13
“ Option ” shall mean the non-qualified option
to purchase Common Stock of the Company granted under this
Agreement, which option is not intended to qualify as an
“incentive stock option” under Section 422 of the
Code.
Section 1.14
“ Plan ” shall mean the 2002 Long-Term Incentive
Award Plan of Walter Industries, Inc
Section 1.15
“ Retirement ” shall mean the time when the
employee-employer relationship between the Optionee and the Company
or any Subsidiary is terminated (a) other than for Cause, and
(b) such termination occurs either (i) on or after the
date on which the Optionee attains the age of sixty (60), or
(ii) on or after the date on which the sum of the
Optionee’s age and completed years of employment (as
determined by the Administrator in its discretion) with the Company
and any Subsidiary is at least eighty (80).
Section 1.16 &n
