EXH 10.3
NABISCO HOLDINGS CORP.
1994 LONG TERM INCENTIVE PLAN
STOCK OPTION AGREEMENT
______________________
DATE OF GRANT: _____________________
W I T N E S S E T H :
1. GRANT OF OPTION. Subject to (i) the terms and conditions herein and
(ii) the provisions of the Nabisco Holdings Corp. 1994 Long Term Incentive Plan
(the "Plan"), Nabisco Holdings Corp. (the "Company") on the above date has
granted to
___________________ (THE "OPTIONEE"),
the right and option to exercise from the Company a total of
_____________ SHARES
of Class A Common Stock of the Company ("Common Stock"), at the exercise price
of $________ per share (the "Option"). A copy of the Plan is attached and made a
part of this Agreement with same effect as if set forth in the Agreement itself.
All capitalized terms used herein shall have the meaning set forth in the Plan,
unless the context requires a different meaning.
2. EXERCISE OF OPTION.
(a) Shares may be purchased by giving the Corporate Secretary of the
Company written notice of exercise, on a form prescribed by the Company,
specifying the number of shares to be purchased. The notice of exercise shall be
accompanied by
(i) tender to the Company of cash for the full purchase price of the
shares with respect to which such Option or portion thereof is
exercised; OR
(ii) the unsecured, demand borrowing by the Optionee from the Company
on an open account maintained solely for this purpose in the
amount of the full exercise price together with the instruction
from the Optionee to sell the shares exercised on the open market
through a duly registered broker-dealer with which the Company
makes an arrangement for the sale of such shares under the Plan.
This method is known as the "broker-dealer exercise method" and is
subject to the terms and conditions set forth herein, in the Plan
and in guidelines established by the
Committee. The Option shall be deemed to be exercised
simultaneously with the sale of the shares by the broker-dealer.
If the shares purchased upon the exercise of an Option or a
portion thereof cannot be sold for a price equal to or greater
than the full exercise price plus direct costs of the sales, then
there is no exercise of the Option. Election of this method
authorizes the Company to deliver shares to the broker-dealer and
authorizes the broker-dealer to xxxx said shares on the open
market. The broker-dealer will remit proceeds of the sale to the
Company which will remit net proceeds to the Optionee after
repayment of the borrowing, deduction of costs, if any, and
withholding of taxes. The Optionee's borrowing from the Company on
an open account shall be a personal obligation of the Optionee
which shall bear interest at the published Applicable Federal Rate
(AFR) for short-term loans and shall be payable upon demand by the
Company. Such borrowing may be authorized by telephone or other
telecommunications acceptable to the Company. Upon such borrowing
and the exercise of the Option or portion thereof, title to the
shares shall pass to the Optionee whose election hereunder shall
constitute instruction to the Company to register the shares in
the name of the broker-dealer or its nominee. The Company reserves
the right to discontinue this broker-dealer exercise method at any
time for any reason whatsoever. The Optionee agrees that if this
broker-dealer exercise method under this paragraph is used, the
Optionee promises unconditionally to pay the Company the full
balance in his open account at any time upon demand. Optionee also
agrees to pay interest on the account balance at the AFR for
short-term loans from and after demand.
(b) Notwithstanding provisions for regular exercise in Section 2(a),
if more than 80% of the aggregate value of all classes of Company common stock
is owned, directly or indirectly, by Nabisco Group Holdings on the date of
exercise then the Company may, in its absolute discretion, make a cash payment
to the Optionee, net of taxes, equal to the product of (x) and (y), where (x) is
the excess of the fair market value of Common Stock on the date of exercise over
the exercise price, and (y) is the number of shares subject to the Option(s)
being exercised. Such cash payment shall be in lieu of delivery of shares.
ANNUAL GRANT VESTS EACH JANUARY 1, FOLLOWING THE DATE OF GRANT AND THEREAFTER ON
EACH JANUARY 1:
(c) Subject to Sections 2(b), 2(d), and 4, this Option shall be vested
in three installments. The first installment shall be vested on the 1st of
January following the Date of Grant for 33% of the number of shares of Common
Stock subject to this Option. Thereafter, on each subsequent January 1st an
installment shall become vested for 33% and 34%, respectively, of the number of
shares subject to this Option until the Option has become fully vested. To the
extent that any portion of the Option is not exercised, it shall not expire, but
shall continue to be vested at any time thereafter until this Option shall
terminate, expire or be surrendered. An exercise shall be for whole shares only;
(d) This Option shall not be exercised prior to 36 months after the
Date of Xxxxx. NOTWITHSTANDING THE FOREGOING, IN THE EVENT THIS OPTION IS
SCHEDULED TO EXPIRE OR
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TERMINATE PURSUANT TO SECTION 4(b), THEN THE OPTIONEE SHALL HAVE THE RIGHT TO
EXERCISE THE OPTION (TO THE EXTENT THEN VESTED) AT ANY TIME PRIOR TO ITS
EXPIRATION.
OR FOR NEW HIRES, USE THIS SECTION INSTEAD:
VESTING SCHEDULE: VEST 33% ON EACH ANNIVERSARY FOLLOWING THE DATE OF GRANT:
(c) Subject to Sections 2(b), 2(d), and 4, this Option shall be vested
in three installments. The first installment shall be vested on the anniversary
of the Date of Grant for 33% of the number of shares of Common Stock subject to
this Option. Thereafter, on each anniversary of the Date of Grant an installment
shall become vested for 33% and 34%, respectively, of the number of shares
subject to this Option until the Option has become fully vested. To the extent
that any portion of the Option is not exercised, it shall not expire, but shall
continue to be vested at any time thereafter until this Option shall terminate,
expire or be surrendered. An exercise shall be for whole shares only.
(d) This Option shall not be exercised prior to 36 months after the
Date of Xxxxx. NOTWITHSTANDING THE FOREGOING, IN THE EVENT THIS OPTION IS
SCHEDULED TO EXPIRE OR TERMINATE PURSUANT TO SECTION 4(b), THEN THE OPTIONEE
SHALL HAVE THE RIGHT TO EXERCISE THE OPTION (TO THE EXTENT THEN VESTED) AT ANY
TIME PRIOR TO ITS EXPIRATION.
3. TERMINATION OF EMPLOYMENT.
Subject to Sections 2(b), 2(d) and 4:
(a) Unless otherwise provided in a written employment or termination
agreement between the Optionee and the Company, the Option shall not become
vested as to any additional shares following the Termination of Employment of
the Optionee for any reason other than a Termination of Employment because of
death, Permanent Disability or Retirement of the Optionee. In the event of
Termination of Employment because of death, Permanent Disability or Retirement,
the Option shall immediately become vested as to all shares.
(b) Unless otherwise defined in a written employment or termination
agreement between the Optionee and the Company, Termination for Cause shall mean
Termination by the Company where such termination results from: (a) criminal
dishonesty, (b) deliberate continual refusal to perform employment duties on
substantially a full time basis, (c) deliberate and continual refusal to act in
accordance with any specific lawful instructions of a majority of the Board of
Directors of the Company, or (d) deliberate misconduct which could be materially
damaging to the Company or any of its business operations without a reasonable
good faith belief by the Optionee that such conduct was in the best interests of
the Company. A termination of Optionee's employment shall not be deemed for
Cause hereunder unless the senior personnel executive of the Company shall
confirm that any such termination is for Cause as defined hereunder. Any
voluntary termination by the Optionee in anticipation of an involuntary
termination of the Optionee's employment for Cause shall be deemed to be a
termination of Optionee's employment for Cause.
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(c) Unless otherwise defined in a written employment or termination
agreement between the Optionee and the Company, termination for Good Reason
shall mean termination by Optionee where such termination results from (i) the
total amount of Optionee's base salary and targeted awards under the Long-Term
Incentive Plan and the Annual Incentive Award Plan (or successors thereto) being
reduced at any time without the Optionee's consent, (ii) Optionee's job
responsibilities being substantially reduced in importance without the
Optionee's consent, or (iii) Optionee being required as a condition of continued
employment to relocate more than 35 miles from the Optionee's place of
employment as of the date of a Change of Control without the Optionee's consent.
(d) The Optionee shall be deemed to have a "Permanent Disability" if
the Optionee totally and permanently disabled (as defined in Nabisco, Inc.'s
Long Term Disability Plan applicable to senior executive officers as in effect
on the date hereof), or if the Board of Directors or any committee thereof so
determines.
(e) "Retirement" as used herein means Retirement at age 65 or over, or
early retirement at age 55 or over with the approval of the Company, which
approval specifically states that the Option shall become fully vested as to all
shares.
(f) "Termination of Employment" as used herein means termination from
active employment; it does not mean termination of payment or benefits at the
end of salary continuation or other form of severance or pay in lieu of salary.
4. EXPIRATION OF OPTION. The Option shall expire or terminate and may
not be exercised to any extent by the Optionee after the first to occur of the
following events:
(a) The tenth anniversary of the Date of Grant, or such earlier time
as the Company may determine is necessary or appropriate in light of applicable
foreign tax laws; or
(b) The first anniversary of the date of the Optionee's Termination of
Employment for any reason other than the Optionee's death, Permanent Disability,
Retirement, termination for Good Reason or involuntary Termination of Employment
by the Company without Cause; or
(c) Immediately upon the Optionee's Termination of Employment for
Cause.
5. TRANSFERABILITY. Other than as specifically provided in the Plan
with regard to the death of the Optionee, this Option agreement and any benefit
provided or accruing hereunder shall not be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or
charge; and any attempt to do so shall be void. No such benefit shall, prior to
receipt thereof by the Optionee, be in any manner liable for or subject to the
debts, contracts, liabilities, engagements or torts of the Optionee.
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6. NO RIGHT TO EMPLOYMENT. The execution and delivery of this
agreement and the granting of the Option hereunder shall not constitute or be
evidence of any agreement or understanding, express or implied, on the part of
the Company or its subsidiaries to employ the Optionee for any specific period
or in any particular capacity shall not prevent the Company or its subsidiaries
from terminating the Optionee's employment at any time with or without Cause.
7. ADJUSTMENTS IN OPTION. In the event that the outstanding shares of
the Common Stock subject to the Option are, from time to time, changed into or
exchanged for a different number or kind of shares of the Company or other
securities by reason of a merger, consolidation, recapitalization,
reclassification, stock split, stock dividend, combination of shares, or
otherwise, the Committee may make an appropriate and equitable adjustment in the
number and kind of shares or other consideration as to which the Option, or
portions thereof then unexercised, shall be exercisable. Any adjustment made by
the Committee shall be final and binding upon the Optionee, the Company and all
other interested persons.
8. APPLICATION OF LAWS. The granting and the exercise of this Option
and the obligations of the Company to sell and deliver shares hereunder and to
remit cash under the broker-dealer exercise method shall be subject to all
applicable laws, rules, and regulations and to such approvals of any
governmental agencies as may be required.
9. TAXES. Any taxes required by federal, state, or local laws to be
withheld by the Company on exercise by the Optionee of the Option for Common
Stock shall be paid to the Company before delivery of the Common Stock is made
to the Optionee. When the Option is exercised under the broker-dealer exercise
method, the full amount of any taxes required to be withheld by the Company on
exercise of stock options shall be deducted by the Company from the proceeds.
10. NOTICES. Any notices required to be given hereunder to the Company
shall be addressed to The Secretary, Nabisco Holdings Corp., 0 Xxxxxx Xxxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000, and any notice required to be given hereunder to
the Optionee shall be sent to the Optionee's most recent address as shown on the
records of the Company.
11. ADMINISTRATION AND INTERPRETATION. In consideration of the grant,
the Optionee specifically agrees that the Committee shall have the exclusive
power to interpret the Plan and this Agreement and to adopt such rules for the
administration, interpretation and application of the Plan and Agreement as are
consistent therewith and to interpret or revoke any such rules. All actions
taken and all interpretations and determinations made by the Committee shall be
final, conclusive, and binding upon the Optionee, the Company and all other
interested persons. No member of the Committee shall be personally liable for
any action, determination or interpretation made in good faith with respect to
the Plan or the Agreement. The Committee may delegate its interpretive authority
to an officer or officers of the Company.
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12. NON-COMPETITION.
Provided that the Optionee is not party to a written employment or
termination agreement with the Company containing restrictions on Optionee's
eligibility to compete with the Company following Optionee's Termination of
Employment, in consideration for the Option Optionee agrees that:
(a) For the twelve (12) month period commencing on the date of
Optionee's Termination of Employment, Optionee shall not engage in Competitive
Employment. As used herein, "Competitive Employment" means providing any person,
company or other entity with any services, whether as a consultant, employee,
investor or otherwise, regarding any business, product, service or other matter
which: (i) is substantially similar to or competes with any business, product,
service or other matter regarding which Optionee worked for the Company, or any
of its affiliates, during the two (2) years prior to Optionee's Termination of
Employment; or (ii) concerns subject matters about which Optionee gained
proprietary information of the Company, or its affiliates, during the two (2)
year period prior to Optionee's Termination of Employment.
(b) If the Company reasonably determines that Optionee has
materially violated any of Optionee's obligations under subparagraph (a), above,
then, in addition to any other remedies at law or in equity it may have: (i) the
Company shall have the right to cease payment of any compensation, salary
continuation, benefits, perquisites and any other remuneration which is due or
may become due Optionee under any employment, salary continuation or similar
agreement between the Company, or any of its affiliates, and Optionee; and (ii)
all past, present and future stock option grants awarded Optionee under the
Plan, including grants which according to their terms are vested, shall
terminate, effective the date on which such violation began (the "Violation
Date"). The Company may demand the return of any gain realized by Optionee from
the exercise of any such grants by Optionee at any time on or after the date
sixty (60) days prior to the Violation Date. If after such demand Optionee fails
to return said amounts, Optionee acknowledges that the Company has the right to
offset against said amounts any amounts, including compensation, owed Optionee
by the Company or to commence judicial proceedings against Optionee to recover
said amounts and any attorneys' fees and costs.
(c) Optionee acknowledges and agrees that: (i) the restrictions
contained in this Section 12 are necessary to protect the legitimate interests
of the Company and impose no undue hardship on Optionee; (ii) the violation or
threatened violation of this Section 12 will result in irreparable injury to the
Company and Optionee consents to the issuance of any restraining order,
preliminary restraining order or injunction, without bond, which arises from
conduct by Optionee in violation of this Section 12, and the existence of any
claim Optionee may have against the Company will not constitute a defense
thereto; (iii) if the Company prevails in any suit or proceeding to enforce its
rights under this Section 12, Optionee shall indemnify the Company for all
expenses incurred by the Company, including reasonable attorneys' fees; and (iv)
no one employed by or representing the Company has any authority to make oral
statements which modify, waive or discharge in any manner any provision of this
Section 12.
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13. OTHER PROVISIONS.
(a) Titles are provided herein for convenience only and are not to
serve as a basis for interpretation of the Agreement.
(b) This Agreement may be amended only by a writing executed by
the parties hereto which specifically states that it is amending this Agreement.
(c) THE LAWS OF THE STATE OF DELAWARE SHALL GOVERN THE
INTERPRETATION, VALIDITY AND PERFORMANCE OF THE TERMS OF THIS AGREEMENT
REGARDLESS OF THE LAW THAT MIGHT BE APPLIED UNDER PRINCIPLES OF CONFLICTS OF
LAWS.
IN WITNESS WHEREOF, the Company, by its duly authorized officer, and
the Optionee have executed this Agreement as of the Date of Grant first above
written.
NABISCO HOLDINGS CORP.
By______________________
Authorized Signatory
______________________________________
Optionee
Optionee's Social Security Number:
______________________________________
Optionee's Home Address:
______________________________________
______________________________________
______________________________________
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