EXHIBIT 10.2
NABISCO GROUP HOLDINGS CORP.
1990 LONG TERM INCENTIVE PLAN
STOCK OPTION AGREEMENT
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DATE OF GRANT:
W I T N E S S E T H :
1. GRANT OF OPTION. Pursuant to the provisions of the 1990 Long Term
Incentive Plan (the "Plan"), Nabisco Group Holdings Corp. on the above
date has granted to
((FIRSTNAME)) ((LASTNAME)) (THE "OPTIONEE"),
subject to the terms and conditions which follow and the terms and conditions of
the Plan, the right and option to exercise from the Company a total of
((NGH_OPTIONS)) SHARES
of Common Stock of the Company, at the exercise price of per share (the
"Option"). A copy of the Plan is attached and made a part of this Agreement with
the 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. The "Company" shall refer to Nabisco Group
Holdings Corp. and, if the context so requires, may refer to Nabisco, Inc.
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 ▇▇▇▇ 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) Subject to Section 4, this Option shall be exercisable in three
installments. The first installment shall be exercisable on the first
anniversary following the Date of Grant for 33% of the number of shares of
Common Stock subject to this Option. Thereafter, on each subsequent anniversary
date an installment shall become exercisable for 33% and 34%, respectively, of
the number of shares subject to this Option until the Option has become fully
exercisable. To the extent that any of the above installments is not exercised
when it becomes exercisable, it shall not expire, but shall continue to be
exercisable at any time thereafter until this Option shall terminate, expire or
be surrendered. An exercise shall be for whole shares only.
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3. TERMINATION OF EMPLOYMENT
Subject to Section 4:
(a) Unless otherwise provided in a written employment or termination
agreement between the Optionee and the Company, the Option shall not become
exercisable 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. Notwithstanding the
foregoing, in the event of Termination of Employment because of death, Permanent
Disability or Retirement, the Option shall immediately become exercisable 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.
(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 the Company'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.
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(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 with Nabisco, Inc. or any of its subsidiaries or affiliates
(including the Company); it does not mean termination of payment of severance 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.
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 shall make an appropriate and equitable adjustment in
the number and kind of shares or other consideration as to which
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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 upon 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 Group Holdings Corp., ▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and any notice required to be given hereunder to
the Optionee shall be sent to the Optionee's 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.
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
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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.
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.
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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.
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