EXHIBIT 4.3
FORM OF
▇▇▇▇ FOODS COMPANY
NON-QUALIFIED STOCK OPTION AGREEMENTS
The following individuals were granted non-qualified stock options for the
purchase of shares of ▇▇▇▇ Foods Company common stock at the exercise price(s)
set forth below. Each option was granted on March 27, 1997 by the former ▇▇▇▇
Foods Company ("Old ▇▇▇▇"), which was acquired by Suiza Foods Corporation (which
subsequently changed its name to ▇▇▇▇ Foods Company) effective December 21,
2001. The share amounts and exercise prices set forth below have been adjusted
using the appropriate exchange ratios to reflect the terms of the acquisition of
Old ▇▇▇▇. The form of the non-qualified stock option agreement relating to these
stock options is attached hereto.
RECIPIENT NUMBER OF SHARES EXERCISE PRICE ($)
--------- ---------------- ------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 1,694 37.41
2,120 30.41
5,168 36.57
5,029 42.55
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 1,186 36.57
1,154 42.55
▇▇▇▇ ▇▇▇▇▇▇▇ 1,347 36.57
1,310 42.55
▇▇▇▇▇▇ ▇. ▇▇▇▇ 14,829 32.81
11,721 43.71
16,744 35.73
8,435 35.73
11,721 39.72
14,065 37.41
16,922 30.41
25,213 36.57
24,536 42.55
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 159 37.41
1,053 30.41
2,761 36.57
2,686 42.55
▇▇▇▇▇▇ ▇▇▇▇▇ 376 30.41
2,919 36.57
2,840 42.55
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 535 35.73
1,854 37.41
2,203 30.41
5,414 36.57
5,269 42.55
▇▇▇▇ ▇▇▇▇▇ 1,069 37.41
3,395 30.41
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 2,573 30.41
5,841 36.57
5,684 42.55
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RECIPIENT NUMBER OF SHARES EXERCISE PRICE ($)
--------- ---------------- ------------------
▇▇▇▇▇▇ ▇▇▇▇ 745 32.81
2,791 38.74
299 30.41
2,870 36.57
2,792 42.55
▇▇▇▇▇▇▇ ▇▇▇▇ 960 30.41
2,919 36.57
2,840 42.55
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 342 30.41
2,919 36.57
2,840 42.55
▇▇▇▇▇ ▇▇▇▇▇▇▇ 2,330 42.55
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 1,340 32.81
1,627 35.73
584 39.72
4,242 37.41
2,791 38.74
3,546 30.41
8,986 36.57
8,744 42.55
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FORM OF
NON-QUALIFIED STOCK OPTION AGREEMENT
December 8, 1997
[RECIPIENT]
[ADDRESS]
Dear __________:
I am pleased to advise you that on March 27, 1997 (the "Grant Date")
the Compensation Committee of the Company's Board of Directors granted the
following option, effective and speaking as of the grant date:
1. You are hereby granted the right and option to purchase, on
the terms and conditions hereinafter set forth, all or any
part of an aggregate of ________ shares of the Company's
Common Stock, par value $1 per share (herein the "Option
Shares") at a purchase price of $________ per Option Share.
Your option is not granted under the Company's 1989 Stock
Awards Plan, as amended. Your option is not intended to be,
and will not be treated as, an "incentive stock option" as
such term is defined in Section 422A(b) of the Internal
Revenue Code of 1986, as amended (the "Code").
2. Your option is irrevocable and will be exercisable as follows:
(a) At any time after the first anniversary of the Grant
Date, as to 33% of the Option Shares;
(b) At any time after the second anniversary of the Grant
Date, as to an additional 33% of the Option Shares;
(c) At any time after the third anniversary of the Grant
Date, as to all of the Option Shares;
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(d) In the event of your death or disability during your
employment, or upon your 65th birthday during your
employment, prior to the expiration of your option,
your option will thereupon be exercisable as to all
of the then remaining Option Shares; and
(e) In the event of any Change of Control prior to the
expiration of your option, your option will thereupon
be exercisable as to all of the then remaining Option
Shares. A "Change of Control" will be deemed to have
occurred if: (i) there is a change in control of the
Company that would be required to be reported in
response to Item 5(f) of Schedule 14A of Regulation
14A, promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act"); or (ii) any
person or entity (which includes any "group" as such
term is used in Section 13(d)(3) of the Exchange Act)
is, directly or indirectly, the "beneficial owner"
(as such term is used in Rule 13d-3 under the
Exchange Act) of securities of the Company
representing 20% or more of the combined voting power
of the Company's then outstanding securities
(computed as described in such Rule); or (iii) a
majority of the members of any class of directors of
the Company are persons who were neither nominated by
the Board for election by the stockholders nor
elected by the Board to fill vacancy(ies) on the
Board; or (iv) the Company (or any substantial
portion of its assets) is combined with or acquired
by another person or other entity; provided, however,
that (v) no "Change of Control" shall be deemed to
have occurred with respect to any transaction (or
series of transactions) which shall have been
approved in advance by a majority of the Board,
exclusive of members who are employed by or otherwise
affiliated with the person or other entity seeking to
effect the Change of Control; (vi) a "Change of
Control" shall not include any acquisition of voting
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stock by any underwriting syndicate or underwriter
for so long as such syndicate or underwriter holds
the voting stock for distribution to the public
pursuant to an underwriting agreement between the
Company and such syndicate or underwriter; and (vii)
a "Change of Control" shall not include any
acquisition by any defined contribution plan which is
qualified pursuant to the applicable provisions of
the Code and is maintained for the benefit of the
employees of the Company and/or its subsidiaries.
Except as otherwise provided in paragraph 3 hereof,
your option will expire on the tenth anniversary of the Grant
Date.
Each time you wish to exercise your option to
purchase Option Shares, you must give the Company written
notice of exercise (attention Secretary), which notice must
specify the number of full Option Shares to be purchased and
the purchase price to be paid therefor. You may exercise your
option with respect to all or any part of the Option Shares as
to which your option has become exercisable, but you may not
exercise your option as to a fraction of a full share. Your
written notice of exercise must be accompanied by payment in
full of the purchase price, in the form of cash or a check,
bank draft or money order payable to the order of the Company
or shares of Company Common Stock already owned by you (valued
at the fair market value thereof on the date of exercise) or a
combination thereof.
3. (a) Except as hereinafter set forth in this paragraph 3:
(i) if your employment with the Company terminates on
or before your 60th birthday for any reason other
than your death or disability, you must exercise your
option within one (1) year after the date of such
termination, to the extent to which your option is
exercisable at the date of such termination, but not
after the tenth anniversary of the Grant Date; and
(ii) if your employment with the Company terminates
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because of your death or disability or terminates for
any other reason after you have reached age sixty,
your option must be exercised within five (5) years
after the date of such termination (in the event of
your death, by your estate or by the person who
acquired the right to exercise your option by bequest
or inheritance or by reason of the laws of descent
and distribution), to the extent to which your option
is exercisable at the date of such termination, but
not beyond the tenth anniversary of the Grant Date.
If at any time you take an authorized leave of
absence, the Committee may (but need not) determine
that for this purpose you will be deemed to continue
in the Company's or a subsidiary's employment.
(b) You may not under any circumstances exercise your
option following termination of employment if you are
discharged because of fraud, embezzlement,
insubordination or other misconduct seriously
detrimental to the Company or any subsidiary of the
Company. The determination of whether or not you have
been discharged for any of the reasons specified in
the preceding sentence will be made by the Committee,
and the Committee's determination will be binding and
conclusive on the Company and you.
(c) In any event, if you are a member of the Board or an
officer of the Company, your option may not be
exercised during the first six months after it is
granted, except in the event of your death or
disability prior to the expiration of such six-month
period.
4. Exercise of your option may be suspended if the Board of
Directors or the Committee determines that securities exchange
listing or registration or qualification under any securities
laws is required in connection therewith and has not been
completed on terms acceptable to the Board of Directors or the
Committee.
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5. In the event of any Change of Control prior to the expiration
of your option, you may, at any time during the 90 days
following such event (but not after the expiration of your
option), in lieu of exercising your option, surrender your
option to the Company and receive therefor a cash payment
equal to the excess of (i) the highest aggregate fair market
value, during the period beginning 30 days before and ending
30 days after such event, of the Option Shares as to which
your option is surrendered, over (ii) the option price of such
Option Shares.
If you wish to so surrender your option, you must
give the Company written notice of surrender (attention
Secretary), which notice must specify the number of Option
Shares which then remain subject to your option.
6. By executing this Agreement, you agree that you will not
reoffer, resell or otherwise dispose of any Option Shares in
any manner which would violate the Securities Act of 1933 or
any other federal or state securities law, and further agree
to reimburse the Company for any loss, damage or expense of
any kind which it may suffer by reason of any breach at any
time of such agreement, including but not limited to any
liabilities which the Company may have under the Securities
Act of 1933 or any other federal or state securities law. You
hereby agree that the Company has no obligation to you to
effect any registration of any Option Shares under the
Securities Act of 1933 or any other federal or state
securities law or, if any such registration is effected, to
keep such registration effective or current.
7. (a) In the event of any reorganization, recapitalization,
reclassification, merger, consolidation, or sale of
all or substantially all of the Company's assets
followed by liquidation, which is effected in such a
way that holders of the Company's Common Stock are
entitled to receive securities or other assets with
respect to or in exchange for the Company's Common
Stock (an "Organic Change"), the Committee shall make
appropriate changes to insure that your option
thereafter
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represents the right to acquire, in lieu of or in
addition to the shares of the Company's Common Stock
immediately theretofore acquirable upon exercise,
such securities or assets as may be issued or payable
with respect to or in exchange for an equivalent
number of shares of the Company's Common Stock; and
in the event of any stock dividend, stock split or
combination of shares, the Committee shall make
appropriate changes in the number of shares covered
by your option and the exercise price specified
herein (and in the event of a spinoff, the Committee
may make similar changes), in order to prevent the
dilution or enlargement of your option rights.
However, no right to purchase or receive a fraction
of a share shall be created; and if, as a result of
any such change, a fractional share would result or
the right to purchase or receive the same would
result, the number of shares in question shall be
decreased to the next lower whole number of shares.
(b) As used in this Agreement, the term "Option Shares"
includes, in addition to the shares described in the
first paragraph hereof as the shares subject to your
option, any other shares or other securities which
may be issued as a result of subparagraph (a).
8. Your option will not be assignable or transferable by you
other than by will or by the laws of descent and distribution,
and during your lifetime will be exercisable only by you or
your legal representative.
9. Any notice to be given to the Company under the terms of this
Agreement will be addressed to the Company in care of its
Secretary at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, and any notice to be given to you will be addressed to
you at the address given beneath your signature hereto, or at
such other address as you may direct in writing. Any such
notice will be deemed to have been duly given if and when
enclosed
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in a properly sealed envelope addressed as aforesaid,
registered and deposited, postage and registry fee prepaid, in
a post office or branch post office regularly maintained by
the United States Government.
10. The Company may withhold from any amount owed to you by the
Company (or may require a subsidiary or other affiliate to
withhold from any amount owed to you by it and remit to the
Company), or may require you to remit to the Company, an
amount sufficient to satisfy any withholding or other tax due
with respect to any shares to be issued by the Company upon
the exercise of your option and/or any payment to be made by
the Company upon exercise or surrender of your option, and the
Committee may defer the issuance of such shares and/or the
making of such payment unless indemnified to its satisfaction.
11. Nothing in this Agreement confers any right on you to continue
in the employ of the Company or any subsidiary or other
affiliate or affects in any way the right of the Company or
any subsidiary or other affiliate, as the case may be, to
terminate your employment at any time.
12. This Agreement will be binding upon and inure to the benefit
of any successor or successors of the Company.
In order to evidence the grant of your option, please execute the extra
copy of this Agreement in the space provided and return the same to the Company,
whereupon this Agreement will constitute a binding option agreement between us.
Very truly yours,
▇▇▇▇ FOODS COMPANY
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, Chairman
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The undersigned hereby acknowledges that the undersigned has carefully
read all of the provisions in this Agreement, including, without limitation, the
provision of paragraph 6 hereof regarding the effect of the undersigned's
execution of this Agreement. The undersigned ▇▇▇▇▇▇ agrees to be bound by all
provisions set forth in this Agreement and the Plan.
NAME:
----------------------------
[RECIPIENT]
ADDRESS: [ADDRESS]
SOCIAL SECURITY #:
----------------------------
DATED:
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