STOCK OPTION AGREEMENT Phelps Dodge 2003 Stock Option and Restricted Stock Plan
Exhibit 10.44
▇▇▇▇▇▇ Dodge 2003 Stock Option and Restricted Stock Plan
STOCK OPTION AGREEMENT, dated ___, ___, between ▇▇▇▇▇▇ DODGE CORPORATION, a New
York corporation (the “Corporation”), and (the “Employee”).
The Compensation and Management Development Committee of the Board of Directors of the
Corporation (such Committee, and any successor committee appointed by the Board of Directors of the
Corporation to administer the Corporation’s 2003 Stock Option and Restricted Stock Plan (the
“Plan”), is hereinafter referred to as the “Committee”) has granted to the Employee an option under
the Plan to purchase Common Shares of the Corporation on the terms set forth below.
To evidence the option so granted, and to set forth their terms and conditions as provided in
the Plan, the Corporation and the Employee hereby agree as follows:
1. Confirmation of Grant of Option; Option Price. The Corporation hereby evidences
and confirms its grant to the Employee of (i) an option (the
“Option”) to purchase ___ of
the Corporation’s Common Shares at an option price of
$____ per share. The Option granted
hereby shall be subject to the provisions of the Plan. Capitalized terms used herein that are not
defined in this Agreement shall have the meanings assigned to such terms in the Plan.
2. Term for Exercise.
(a) The Option shall become exercisable, subject to the provisions of this Section 2 and
Sections 3 and 4 hereof, in installments of ___ Common Shares on the first anniversary of the
date of grant of the Option, ___ Common Shares on the
second anniversary and ___ Common Shares
on the third anniversary. Unless an earlier expiration date is specified by this Agreement (or, if
applicable, in Supplement A), the Option shall expire at 5:00 P.M., Arizona Mountain Standard Time
(such time shall hereinafter be referred to as the “End of Business”), on the day after the tenth
anniversary of the date on which the Option was granted (the “Termination Date”).
(b) In addition to the provisions of Section 2(a) of the Agreement as set forth above, in the
event a Participant’s employment with the Corporation, any Subsidiary, and any parent company or
successor to the Corporation terminates after a Change of Control by reason of the Participant’s
Retirement or by reason of a Qualifying Termination (as that term is defined in the Corporation’s
Change of Control Agreements in existence at the time of the Change of Control even if the
Participant has not entered into any such agreement) that occurs within two years after a Change of
Control, the Option shall
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become exercisable, no later than the date of such termination, for the purchase of the full
number of Common Shares specified in Section 1 above.
3. Who May Exercise. During the Employee’s lifetime the Option may be exercised only
by him. Each Participant having Nonqualified Stock Options may designate, on such forms as may be
approved by the Corporation from time to time, a beneficiary or beneficiaries with respect to the
Participant’s Nonqualified Stock Options should the Participant die prior to the exercise of the
Participant’s Nonqualified Stock Options. To be effective, any beneficiary designation forms
completed by a Participant must have been delivered to the Corporation. A Participant may change a
beneficiary designation by executing and delivering to the Corporation a new beneficiary
designation form. Upon receipt of such designation by the Corporation, such designation or change
of designation shall be effective as of the date of the notice, regardless of whether the
Participant is living at the time the notice is received by the Corporation. If the Employee dies
while in the employ of the Corporation or one of its Subsidiaries, the Option may be exercised for
the full number of Common Shares specified in Section 1 hereof less the number of Common Shares
with respect to which the Option has previously been exercised, by the Employee’s estate, personal
representative or beneficiary who acquired the right to exercise the Option by will or by the laws
of descent and distribution, at any time prior to the End of Business on the earlier of the
Termination Date or the fifth anniversary of the Employee’s death. If the Employee dies while he
is no longer employed by the Corporation or a Subsidiary, his Options may be exercised for the full
number of Common Shares as to which he could have exercised them on the date of his death, by his
estate, personal representative or beneficiary who acquired the right to exercise the Option by
will or by the laws of descent and distribution, at any time prior to the termination date provided
by Section 4 hereof. Following the End of Business on the earlier of the Termination Date, the
fifth anniversary of the Employee’s death or the termination date provided by Section 4, as the
case may be, the Option shall expire.
4. Exercise After Termination of Employment. If the Employee shall cease to be
employed by the Corporation or a Subsidiary other than by reason of death, Disability (as defined
in the Plan), Retirement (as defined in the Plan) or the Employee’s termination for Cause (as
defined in the Plan), the Option shall remain exercisable, to the extent exercisable on the date of
such termination, until the End of Business on the earlier of the Termination Date or the date
which is one month after the day his employment ends. If the Employee’s employment shall terminate
due to Disability or Retirement, the Option shall remain exercisable, to the extent exercisable on
the date of the Employee’s termination of employment, until the End of Business on the earlier of
the Termination Date or the fifth anniversary of the date of such termination of employment;
provided, however, that, in the event the Employee’s employment with the
Corporation terminates not earlier than six months from the Grant Date as a result of the
Employee’s Disability or Retirement, unless the Employee retires prior to his Normal Retirement
Date, as
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defined under the ▇▇▇▇▇▇ Dodge Retirement Plan (or any successor plan thereof) under
conditions determined by the Committee to be adverse to the Corporation or the Employee does not
sign a release of claims satisfactory to the Corporation, the Option shall become exercisable
immediately prior to the End of Business on the date the Employee’s employment terminates for the
purchase of the full number of Common Shares specified in Section 1 of the Agreement less the
number of Common Shares with respect to which the Option has previously been exercised. If the
Employee’s employment is terminated for Cause, all Options granted to the Employee which are then
outstanding shall be forfeited as of the effective time of such termination but in no event later
than the End of Business on such termination date. Any portion of the Option which is not
exercisable on the date the Employee’s employment terminates for any reason other than death,
Disability, or Retirement shall expire at the End of Business on such termination date. Any
portion of the Option which did not expire on the date the Employee’s employment terminates and
which is not exercised within the period established under this Section 4 shall expire following
the End of Business on the last day on which the Option could have been exercised.
5. Restrictions on Exercise. The Option may be exercised only with respect to full
Common Shares. No fractional shares shall be issued. The Option may not be exercised in whole or
part:
(a) if any requisite approval or consent of any governmental authority of any kind having
jurisdiction over the exercise of options shall not have been secured or if, as determined by the
Committee, a violation of any applicable securities law may result; or
(b) unless the Common Shares subject to the Option shall be effectively listed on the New York
Stock Exchange and registered under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), which listing and registration may be upon official notice of issuance of such Common
Shares.
The Corporation may require that, as a condition to any exercise of the Option, the Employee
represent to the Corporation in writing that he is acquiring the Common Shares subject to such
exercise for his own account for investment only and not with a view to the distribution thereof.
6. Manner of Exercise. To the extent the Option shall be exercisable in accordance
with the terms hereof, and subject to the applicable law and regulations and such administrative
regulations as the Committee may have adopted, the Option may be exercised in whole or from time to
time in part by written notice to the Committee, (i) identifying the Option by Grant Date,
the option price and whether or not the Agreement includes Supplement A, (ii) specifying
the number of Common Shares with respect to which the Option is being exercised, and (iii)
accompanied by full payment of the option price for such Common Shares (1) in United States
dollars by personal check or cash,
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including an assignment of the right to receive cash proceeds of the sale of Common Shares
subject to the Option, (2) in Common Shares of the Corporation owned by the Employee for at
least three months prior to the day of exercise, represented by certificates duly endorsed to the
Corporation or its nominee with any requisite transfer tax stamps attached, the market value of
which shall be equal to the option price for the Common Shares with respect to which the Option is
being exercised, or (3) in a combination of (1) and (2) above. The market value of any
Common Shares delivered pursuant to the immediately preceding sentence shall be the mean of the
high and low prices of such Common Shares on the Consolidated Trading Tape on the day of exercise
or, if there was no such sale on such day, on the day next preceding the day of exercise on which
there was a sale.
For valuation purposes, the day of exercise of the Option shall be deemed to be the day on
which notice, addressed to the Committee, either to exercise the Option in whole or in part by the
payment of Common Shares (together with duly endorsed certificates as provided above and any other
required payment) is received at the Corporation’s principal office, except that if such notice
(together with certificates and other payment if required) is received on a Saturday or Sunday or
on a holiday observed by the Corporation’s principal office, or after the End of Business on any
other day, the day of exercise shall be deemed to be the next business day. “Written notice” shall
include, without limitation, notice by telegram, telex, cable or telecopy facsimile.
In the event that the Option shall be exercised by a person other than the Employee in
accordance with the provisions of Section 3 hereof, such person shall furnish the Corporation with
evidence satisfactory to it of his or her right to exercise the same and of payment or provision
for payment of any estate, transfer, inheritance or death taxes payable with respect to the Option
or with respect to any related Common Shares or payment. The Corporation may require the Employee
or other person exercising the Option to furnish or execute such documents as the Corporation shall
deem necessary to evidence such exercise, to determine whether registration is then required under
the Securities Act of 1933, as amended, or to comply with or satisfy the requirements of the
Exchange Act, or any other law.
7. Nonassignability. Unless the Committee shall otherwise so specify by a supplement
to this Agreement approved in connection with the award hereof or at any subsequent time, the
Option shall not be assignable or transferable except by beneficiary designation, will or by the
applicable laws of descent and distribution to the extent contemplated by Section 3 hereof. At the
request of the Employee, Common Shares purchased on exercise of the Option may be issued or
transferred in the name of the Employee and another person jointly with the right of survivorship,
or in the name of a trust or other legal entity established to hold property for the benefit of the
Employee or members of his immediate family.
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8. Rights as Stockholder. The Employee shall have no rights as a stockholder with
respect to any Common Shares covered by the Option until the issuance of a certificate or
certificates to him for such Common Shares. No adjustment shall be made for dividends or other
rights for which the record date is prior to the issuance of such certificate or certificates.
9. Capital Adjustments. The number and price of the Common Shares covered by the
Option shall be proportionately adjusted to reflect, as deemed equitable and appropriate by the
Committee, any stock dividend, stock split or share combination of, or extraordinary cash dividend
on, the Corporation’s Common Shares or any recapitalization of the Corporation. To the extent
deemed equitable and appropriate by the Committee, subject to any required action by the
stockholders of the Corporation, in any merger, consolidation, reorganization, liquidation,
dissolution, or other similar transaction, the Option shall pertain to the securities and other
property, if any, which a holder of the number of Common Shares covered by the Option would have
been entitled to receive in connection with such event.
10. Withholding.
(a) The Corporation’s obligation to deliver Common Shares upon the exercise of the Option
shall be subject to payment by the Employee of any amount required to be withheld with respect to
such exercise pursuant to any applicable federal, state or local tax withholding requirements.
(b) Unless this Agreement includes Supplement A (making it an incentive stock option), the
Employee may elect to satisfy all or any part of his federal, state and local tax obligations
(including, without limitation, FICA) with respect to such exercise by having the Corporation
withhold from any Common Shares otherwise deliverable to him in connection with the exercise of the
Option a number of Common Shares, or by delivering Common Shares already owned by the Employee,
having a market value equal in amount to the obligations to be so satisfied. The market value of
Common Shares withheld or delivered shall be the mean of the high and low prices of such Common
Shares on the Consolidated Trading Tape on the day of exercise or, if there was no such sale on
such day, on the next preceding day on which there was a sale.
11. Governing Law. This Agreement shall be construed and enforced in accordance with,
and governed by, the laws of the State of New York.
12. Supplements. Attached hereto are the following supplements:
Any such supplements so attached are incorporated herein and constitute a part of this Agreement as
though set forth in full herein. Additional supplements may be added to
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this Agreement at a later date by the Committee; provided, however, that if any
such additional supplement adversely affects the rights of the Employee under this Agreement, such
supplement shall not be or become effective unless and until the Employee consents to its addition
in writing. All capitalized terms used in such supplements without definition shall have the
meaning determined under this Agreement.
13. Predecessor Plans. The Employee hereby acknowledges and agrees that all of the
Employee’s outstanding options that were granted pursuant to the Predecessor Plans (as defined in
the Plan) shall hereafter become subject to the terms of this Agreement.
IN WITNESS WHEREOF, the Corporation and the Employee have duly executed this Agreement as of
the date set forth above.
| ▇▇▇▇▇▇ DODGE CORPORATION | ||||
| By | ||||
| Senior Vice President | ||||
| Employee | ||||
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