STOCK OPTION AGREEMENT (NON-EMPLOYEE DIRECTOR)
Exhibit
10.2
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Name
of Grantee :
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Number
of Shares:
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Incentive
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N/A
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Nonqualified
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2,000
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(NON-EMPLOYEE
DIRECTOR)
STOCK
OPTION AGREEMENT dated as of the Grant Date (as hereafter defined), by and
between Cabela’s Incorporated, a Delaware corporation (the "Company"), and
[ ] (the "Grantee").
WITNESSETH:
WHEREAS,
to motivate key employees, consultants and non-employee directors of the
Company
and the Subsidiaries by providing them an ownership interest in the Company,
the
Board of Directors of the Company (the "Board") has established and the
stockholders of the Company have approved, the Cabela’s Incorporated 2004 Stock
Plan, as the same may be amended from time to time, (the "Plan"); and
WHEREAS,
pursuant to Section 5.6 of the Plan, the Grantee has been granted non-qualified
stock options to purchase Two Thousand (2,000) shares of Common Stock (each,
a
"Share" and, collectively, the "Shares"), at the exercise price per Share
set
forth in Section 2; and
WHEREAS,
the Grantee and the Company desire to enter into an agreement to evidence
and
confirm the grant of such stock options on the terms and conditions set forth
herein.
NOW,
THEREFORE, to evidence the stock options so granted, and to set forth the
terms
and conditions governing such stock options, the Company and the Grantee
hereby
agree as follows:
1. Certain
Definitions.
Capitalized terms used herein without definition shall have the meanings
set
forth in the Plan. As used in this Agreement, the following terms shall have
the
following meanings:
a. "Aggregate
Exercise Price" shall have the meaning set forth in Section 6 hereof.
b. "Alternative
Option" shall have the meaning set forth in Section 7(c) hereof.
c. “Committee”
means the Compensation Committee of the Board.
d. "Exercise
Date" shall have the meaning set forth in Section 6 hereof.
e. "Exercise
Price" shall have the meaning set forth in Section 2(b).
f. "Exercise
Shares" shall have the meaning set forth in Section 6 hereof.
g. "Grant
Date" shall mean [ ].
h. "Grantee"
shall have the meaning set forth in the introductory paragraph hereto.
i. "Normal
Expiration Date" shall mean the tenth anniversary of the Grant Date.
j. "Option"
shall mean the right granted to the Grantee hereunder to purchase one share
of
Common Stock for a purchase price equal to the Exercise Price and otherwise
subject to the terms and conditions of this Agreement.
k. "Securities
Act" shall mean the U.S. Securities Act of 1933, as amended.
l. "Share"
or "Shares" shall have the meaning specified in the preambles hereto.
2. Grant
of
Options.
a. Confirmation
of Grant.
The
Company hereby evidences and confirms its grant to the Grantee, effective
as of
the Grant Date, of Options to purchase Two Thousand (2,000) Shares. The Options
are not intended to be incentive stock options under the U.S. Internal Revenue
Code of 1986, as amended. This Agreement is subordinate to, and the terms
and
conditions of the Options granted hereunder are subject to, the terms and
conditions of the Plan, which are incorporated by reference herein. If there
is
any inconsistency between the terms hereof and the terms of the Plan, the
terms
of the Plan shall govern. The Grantee hereby acknowledges receipt of a copy
of
the Plan.
b. Exercise
Price.
Each
Share covered by an Option shall have an exercise price equal to
[ ] (the “Exercise Price").
3. Exercisability.
a. Options.
Except
as otherwise provided in Section 7(a) of this Agreement, the Options shall
be
exercisable with respect to one hundred percent (100%) of the Shares on the
first anniversary of the Grant Date.
b. Conditions.
Shares
covered by vested Options may, subject to the provisions hereof, be purchased
at
any time and from time to time on or after the date the corresponding Options
become vested in accordance with the provisions of this Section 3 until the
date
one day prior to the date on which such Options terminate.
4. Termination
of
Options.
a. Normal
Expiration Date.
Subject
to Sections 4 and 7, the Options shall terminate and be canceled on the Normal
Expiration Date.
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b. Early
Termination.
Subject
to the provisions of Section 7, if the Grantee ceases to be a member of the
Board for any reason, the Grantee may exercise any Options that are exercisable
on the date the Grantee ceases to be a member of the Board until the Normal
Expiration Date. Any Options that are not then exercisable shall be forfeited
and canceled as of the date the Grantee ceases to be a member of the Board.
5. Restrictions
on
Exercise; Non-Transferability of Options.
a. Restrictions
on Exercise.
The
Options may be exercised only with respect to full shares of Common Stock.
No
fractional shares of Common Stock shall be issued. Notwithstanding any other
provision of this Agreement, the Options may not be exercised in whole or
in
part, and no certificates representing Shares shall be delivered, (i) unless
all
requisite approvals and consents of any governmental authority of any kind
having jurisdiction over the exercise of the Options shall have been secured,
and (ii) unless Section 5(c) shall have been satisfied.
b. Non-Transferability
of Options.
The
Options may be exercised only by the Grantee or, following his death, by
the
Grantee's estate. The Options are not assignable or transferable, in whole
or in
part, and may not, directly or indirectly, be offered, transferred, sold,
pledged, assigned, alienated, hypothecated or otherwise disposed of or
encumbered (including without limitation by gift, operation of law or otherwise)
other than by will or by the laws of descent and distribution to the estate
of
the Grantee upon the Grantee's death, provided that the deceased Grantee's
beneficiary or the representative of the Grantee's estate shall acknowledge
and
agree in writing, in a form reasonably acceptable to the Company, to be bound
by
the provisions of this Agreement and the Plan as if such beneficiary or the
estate were the Grantee.
c. Withholding.
Whenever Shares are to be issued pursuant to the Options, the Company may
require the recipient of the Shares to remit to the Company an amount in
cash
sufficient to satisfy the statutory minimum U.S. federal, state and local
and
non-U.S. tax withholding requirements as a condition to the issuance of such
Shares. In the event any cash is paid to the Grantee or the Grantee's estate
or
beneficiary pursuant to Section 7 hereof or any provision of the Plan, the
Company shall have the right to withhold an amount from such payment sufficient
to satisfy the statutory minimum U.S. federal, state and local and non-U.S.
tax
withholding requirements. The Committee may, in its discretion, require or
permit the Grantee to elect, subject to such conditions as the Committee
shall
impose, to meet such obligations by having the Company withhold the number
of
Shares having a Fair Market Value sufficient to satisfy all or part of the
Grantee's estimated total statutory minimum U.S. federal, state, and local
and
non-U.S. tax obligation with respect to the issuance of Shares upon exercise
of
Options.
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6. Manner
of
Exercise.
To the
extent that any outstanding Options shall have become and remain exercisable
as
provided in Sections 3 and 4 and subject to such reasonable administrative
regulations as the Committee may have adopted, such Options may be exercised,
in
whole or in part, by notice to the designated officer of the Company (or
designated third party administrator, if any) in writing given at least 5
business days (or shorter period permitted by any third party administrator)
prior to the date as of which the Grantee will so exercise the Options (the
"Exercise Date"), specifying the number of whole Shares with respect to which
the Options are being exercised (the "Exercise Shares") and the aggregate
Exercise Price for such Exercise Shares. On or before the Exercise Date,
the
Grantee (i) shall deliver to the Company full payment for the Exercise Shares
in
United States dollars in cash, or cash equivalents satisfactory to the Company,
and in an amount equal to the product of the number of Exercise Shares,
multiplied by the Exercise Price (such product, the "Aggregate Exercise Price")
and (ii) the Company shall deliver to the Grantee a certificate or certificates
representing the Exercise Shares and registered in the name of the Grantee.
In
lieu of tendering cash, the Grantee may tender shares of Common Stock that
have
been owned by the Grantee for at least six months having an aggregate Fair
Market Value on the Exercise Date equal to the Aggregate Exercise Price or
may
deliver a combination of cash and such shares of Common Stock having an
aggregate Fair Market Value equal to the difference between the Aggregate
Exercise Price and the amount of such cash as payment of the Aggregate Exercise
Price, subject to such rules and regulations as may be adopted by the Committee
to provide for the compliance of such payment procedure with applicable law,
including Section 16(b) of the Exchange Act. The Company may require the
Grantee
to furnish or execute such other documents as the Company shall reasonably
deem
necessary (i) to evidence such exercise and (ii) to comply with or satisfy
the
requirements of the Securities Act, applicable state or non-U.S. securities
laws
or any other law.
7. Change
in
Control.
a. Options.
Subject
to Section 7(c), in the event of a Change in Control, all of the Options
outstanding immediately prior to the consummation of the transaction
constituting the Change in Control (regardless of whether such Options are
at
such time otherwise vested or exercisable) shall become exercisable or, at
the
discretion of the Committee, any or all of such Options shall be canceled
in
exchange for a payment in accordance with Section 7(b) of an amount equal
to the
product of (i) the Change in Control Price over the Exercise Price, multiplied
by (ii) the aggregate number of Shares covered by all such Options immediately
prior to the Change in Control.
b. Timing
of
Option Cancelation Payments.
Payment
of the amount calculated in accordance with Section 7(a) shall be made in
cash
or, if determined by the Committee (as constituted immediately prior to the
Change in Control), in shares of the common stock of the New Employer having
an
aggregate fair market value equal to such amount and shall be payable in
full,
as soon as reasonably practicable, but in no event later than 30 days, following
the Change in Control. For purposes hereof, the fair market value of a share
of
common stock of the New Employer shall be determined by the Committee (as
constituted immediately prior to the Change in Control), in good faith.
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c. Alternative
Options.
Notwithstanding Sections 7(a) and 7(b), no cancellation, termination,
acceleration of exercisability or vesting or settlement or other payment
shall
occur with respect to any Option if the Committee (as constituted immediately
prior to the consummation of the transaction constituting the Change in Control)
reasonably determines, in good faith, prior to the Change in Control that
the
Options shall be honored or assumed, or new rights substituted therefor (such
honored, assumed or substituted Option being hereinafter referred to as an
"Alternative Option") by the New Employer, provided that any Alternative
Options
must:
i.
be
based on shares of voting capital stock that are traded on an established
U.S.
securities market;
ii. provide
the Grantee with rights and entitlements substantially equivalent to or better
than the rights and entitlements applicable under the terms of the Options
immediately prior to the consummation of the transaction constituting the
Change
in Control, including, but not limited to, an identical or better exercise
and
vesting schedule and identical or better timing and methods of payment;
iii. have
substantially equivalent economic value to the Options (determined at the
time
of the Change in Control); and
iv. have
terms and conditions which provide that in the event that the Grantee suffers
an
involuntary termination within two years following the Change in Control
any
conditions on the Grantee's rights under, or any restrictions on transfer
or
exercisability applicable to, each such Alternative Option shall be waived
or
shall lapse, as the case may be.
8. No
Rights
as Stockholder.
The
Grantee shall have no voting or other rights as a stockholder of the Company
with respect to any Shares covered by the Options until the exercise of the
Options and the issuance of a certificate or certificates to the Grantee
for
such 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.
Subject
to the terms of the Plan, in the event of any Adjustment Event affecting
the
Common Stock such that an adjustment is required to preserve or to prevent
enlargement of the benefits or potential benefits made available to the Grantee
under the Plan or this Agreement, then the Committee shall, in such manner
as
the Committee shall deem equitable, adjust any or all of the number of shares
of
Common Stock covered by the Options and the grant, exercise or conversion
price
with respect to such Options. In addition, the Committee may make provision
for
a cash payment to the Grantee. The number of shares of Common Stock subject
to
any Option shall be rounded to the nearest whole number.
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10. Miscellaneous.
a. Notices.
All
notices and other communications required or permitted to be given under
this
Agreement shall be in writing and shall be deemed to have been given if
delivered personally or sent by certified or express mail, return receipt
requested, postage prepaid, or by any recognized international equivalent
of
such delivery, to the Company or the Grantee, as the case may be, at the
following addresses or to such other address as the Company or the Grantee,
as
the case may be, shall specify by notice to the others:
i. if
to the
Company, to:
Cabela's
Incorporated
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Legal Department
ii. if
to the
Grantee, to the Grantee at the address then appearing in the corporate records
of the Company for the Grantee. All such notices and communications shall
be
deemed to have been received on the date of delivery if delivered personally
or
on the third business day after the mailing thereof, provided that the party
giving such notice or communication shall have attempted to telephone the
party
or parties to which notice is being given during regular business hours on
or
before the day such notice or communication is being sent, to advise such
party
or parties that such notice is being sent.
b. Binding
Effect; Benefits.
This
Agreement shall be binding upon and inure to the benefit of the parties to
this
Agreement and their respective successors and assigns. Nothing in this
Agreement, express or implied, is intended or shall be construed to give
any
person other than the parties to this Agreement or their respective successors
or assigns any legal or equitable right, remedy or claim under or in respect
of
any agreement or any provision contained herein.
c. Waiver;
Amendment.
i. Waiver.
Any
party hereto or beneficiary hereof may by written notice to the other parties
(A) extend the time for the performance of any of the obligations or other
actions of the other parties under this Agreement, (B) waive compliance with
any
of the conditions or covenants of the other parties contained in this Agreement
and (C) waive or modify performance of any of the obligations of the other
parties under this Agreement. Except as provided in the preceding sentence,
no
action taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any party or beneficiary, shall be deemed
to
constitute a waiver by the party or beneficiary taking such action of compliance
with any representations, warranties, covenants or agreements contained herein.
The waiver by any party hereto or beneficiary hereof of a breach of any
provision of this Agreement shall not operate or be construed as a waiver
of any
preceding or succeeding breach and no failure by a party or beneficiary to
exercise any right or privilege hereunder shall be deemed a waiver of such
party's or beneficiary's rights or privileges hereunder or shall be deemed
a
waiver of such party's or beneficiary's rights to exercise the same at any
subsequent time or times hereunder.
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ii. Amendment.
This
Agreement may not be amended, modified or supplemented orally, but only by
a
written instrument executed by the Grantee and the Company.
d. Assignability.
Neither
this Agreement nor any right, remedy, obligation or liability arising hereunder
or by reason hereof shall be assignable by the Company or the Grantee without
the prior written consent of the other parties; provided that the Company
may
assign all or any portion of its rights hereunder to one or more persons
or
other entities designated by it in connection with a Change in Control of
the
Company.
e. Applicable
Law.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF
THE
STATE OF NEBRASKA, EXCEPT TO THE EXTENT THAT THE CORPORATE LAW OF THE STATE
OF
DELAWARE SPECIFICALLY AND MANDATORILY APPLIES.
f. Consent
to
Electronic Delivery.
By
executing this Agreement, Grantee hereby consents to the delivery of information
(including, without limitation, information required to be delivered to the
Grantee pursuant to applicable securities laws) regarding the Company and
the
Subsidiaries, the Plan, the Options and the Shares subject to the Options
via
Company web site or other electronic delivery.
g. Severability;
Blue
Pencil.
In the
event that any one or more of the provisions of this Agreement shall be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein shall not
be
affected thereby. Grantee and the Company agree that the covenants contained
in
this Agreement are reasonable covenants under the circumstances, and further
agree that if, in the opinion of any court of competent jurisdiction such
covenants are not reasonable in any respect, such court shall have the right,
power and authority to excise or modify such provision or provisions of these
covenants as to the court shall appear not reasonable and to enforce the
remainder of these covenants as so amended.
h. Section
and Other Headings, etc.
The
section and other headings contained in this Agreement are for reference
purposes only and shall not affect the meaning or interpretation of this
Agreement.
i. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original and all of which together shall constitute one and
the
same instrument.
j. Delegation.
All of
the powers, duties and responsibilities of the Committee specified in this
Agreement may, to the full extent permitted by applicable law, be exercised
and
performed by the Board or any duly constituted committee thereof to the extent
authorized by the Board or the Committee to exercise and perform such powers,
duties and responsibilities.
k. Gender
and Number.
Except
when otherwise indicated by the context, words in the masculine gender used
herein shall include the feminine gender, the singular shall include the
plural,
and the plural shall include the singular.
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IN
WITNESS WHEREOF, the Company and the Grantee have executed this Agreement
as of
the Grant Date.
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CABELA'S
INCORPORATED
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By:
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Its:
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,
Grantee
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