EXHIBIT 10.2
NUVEEN INVESTMENTS, INC. 2005 EQUITY INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
OPTIONEE: <> <>
GRANT DATE: ___________, 200_
OPTION AWARD
Option shares: <>
Exercise price: $________
First exercise date: _________
End of option term: _________
Nuveen Investments, Inc. (the "Company"), by action of the Compensation
Committee of its Board of Directors (the "Committee"), has selected you (the
"Optionee") to receive the options (the "Option") described in this agreement
(the "Agreement") pursuant to and in accordance with the Nuveen Investments,
Inc. 2005 Equity Incentive Plan (the "Plan"). All terms capitalized but not
defined herein shall have the meaning set forth in the Plan. The Company and the
Optionee agree as follows:
1. AWARD. The Company hereby grants to the Optionee the right and option to
purchase <> shares of the Company's Class A Common Stock (the
"Stock"), at the purchase price of $ ______ per share (the "Exercise
Price"), such price being not less than the Fair Market Value of the Stock
on the Grant Date, in the manner and subject to the conditions provided in
this Agreement and the Plan. The number of shares subject to this Option
and the Exercise Price are subject to adjustment as set forth in the Plan.
The Option is <> an "In Lieu Award," as defined under the Plan. The
Option is not intended to be an incentive stock option within the meaning
of Section 422 of the Code.
2. TERM, VESTING AND EXERCISE OF THE OPTION.
(a) The Option shall vest and first become exercisable on ________________,
if the Optionee remains continuously employed by the Company or other
Employer until that date. If the Optionee does not remain continuously
employed by the Company or other Employer until the vesting date, no
portion of the Option shall become vested or exercisable, except as
provided in the Plan.
(b) The Option shall be exercisable after the termination of the employment
of the Optionee with the Company or other Employer only to the extent
provided in the Plan.
(c) The Option shall have a term of ten (10) years from the Grant Date and
shall expire at the close of business ________________, subject to
earlier termination as provided herein or in the Plan.
(d) After the Option is vested, and while it is exercisable, the Optionee
may exercise the Option (or any portion thereof) by giving signed,
written notice thereof to the Secretary of the Company or his designee,
specifying the number of shares to be purchased and accompanied by
payment of the aggregate Exercise Price for the number of shares
purchased plus, if applicable, any required tax withholding, in
accordance with Section 4. No partial exercise of the Option may be for
less than 100 shares or the number of shares remaining subject to the
Option, whichever is less. The Option must be exercised as to a whole
number of shares. Payment of Exercise Price and tax withholding may be
made either (i) in cash or by check, bank draft or money order payable
to the order of the Company, or (ii) subject to the discretion of the
Committee, through the delivery (actual or constructive) of previously
acquired shares of Stock owned by the Optionee, to the extent that such
payment does not require the delivery of a fractional share, and
provided that such previously acquired shares have been held by the
Optionee for at least six (6) months, or (iii) subject to the
discretion of the Committee, through the authorization of a third party
broker-dealer acceptable to the Company to sell shares of Stock
acquired upon exercise of the Option (or a portion thereof) and remit
to the Company a portion of the proceeds sufficient to pay the
aggregate Exercise Price of, and the minimum amount of required income
tax withholding payments related to, such exercise, or (iv) subject to
the discretion of the Committee, through the election to sell shares of
Stock acquired upon exercise of the Option (or a portion thereof) and
remit to the Company or a third party broker-dealer acceptable to the
Company, an amount of the proceeds sufficient to pay the Exercise Price
of shares acquired immediately after such exercise, and the minimum
amount of required tax
withholding payments relating to such exercise, or (v) a combination of
(i) through (iv). For purposes of the preceding sentence, previously
acquired shares shall be valued at the closing price of the Stock on
the New York Stock Exchange Composite Tape as of the date of exercise.
Such exercise shall be effective upon receipt by the Secretary of such
written notice and payment. Neither the Optionee nor his or her legal
representative shall be, or have any of the rights or privileges of, a
shareholder of the Company in respect of any of the shares to be
purchased on the exercise of any part of the Option unless and until
certificates representing such shares shall have been delivered.
Cashless exercise must meet the requirements of the Federal Reserve
Board's Regulation T and any applicable securities law restrictions.
3. WITHHOLDING. The Optionee shall pay to the Company for retransmittal to the
appropriate tax authorities, all amounts necessary to satisfy federal,
state or local withholding and employment-related tax requirements arising
directly or indirectly in connection with the Option or any exercise of the
Option; the Company may require the Optionee to remit any such amounts to
it before it takes any further action with respect to any exercise of the
Option or it may withhold from amounts due to the Optionee an amount of
money equal to any such withholding. Withholding obligations may be settled
with shares of Stock.
4. TRANSFERABILITY OF OPTION AND SHARES ACQUIRED UPON EXERCISE OF OPTION. The
Option and the rights and privileges conferred by this Agreement shall not
be sold, transferred, assigned, pledged or hypothecated in any way (whether
by operation of law or otherwise) and shall not be subject to execution,
attachment or similar process, except as expressly permitted by the Plan
and except pursuant to a gift to the Optionee's spouse or children. The
Option may be exercised only by the Optionee, or by a legal representative
upon the incapacity of the Optionee, and after the Optionee's death, by his
or her Beneficiary, and not otherwise. Except as limited by applicable
federal or state securities laws, or the requirements of any stock exchange
or market upon which the Stock is listed or traded at any given time, and
the provisions of this Agreement, Stock acquired upon exercise of this
Option will be freely transferable.
5. PLAN AND AGREEMENT NOT A CONTRACT OF EMPLOYMENT OR SERVICE. Neither the
Plan nor this Agreement is a contract of employment or service, and no
terms of the Optionee's employment or service will be affected in any way
by the Plan, this Agreement or related instruments, except to the extent
specifically expressed therein. Neither the Plan nor this Agreement will be
construed as conferring any legal rights on the Optionee to continue in
service, nor will it interfere with the Company's or other Employer's right
to discharge the Optionee or to deal with him or her regardless of the
existence of the Plan, this Agreement or the Option.
6. OPTIONEE TO HAVE NO RIGHTS AS A STOCKHOLDER. Before the date as of which he
or she is recorded on the books of the Company as the holder of any shares
underlying the Option, the Optionee will have no rights as a stockholder
with respect to those shares.
7. NOTICE. Any notice to be given to the Company shall be addressed to the
Secretary of the Company at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and
any notice to be given to the Optionee shall be addressed to him or her or,
if the Optionee is deceased, to the Optionee's executors, personal
representatives or distributees, at the address then appearing for the
Optionee on the employment records of the Company or other Employer, or at
such other address as either party may hereafter designate in writing to
the other. Any such notice shall be deemed to have been duly given if and
when enclosed 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.
8. NO LIMITATION ON RIGHTS OF THE COMPANY. Nothing herein contained shall
affect the right of the Company or other Employer to retire the Optionee at
any time pursuant to its retirement rules or otherwise to terminate the
Optionee's services, responsibilities, duties and authority to represent
the Company or other Employer at any time for any reason whatsoever. The
grant of the Option does not and will not in any way affect the right or
power of the Company to make adjustments, reclassifications or changes in
its capital or business structure, or to merge, consolidate, dissolve,
liquidate, sell or transfer all or any part of its business or assets.
9. SUCCESSORS. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their successors-in-interest, including any
successor to the Company resulting from a direct or indirect purchase of
all or substantially all of the business and/or assets of the Company or a
merger, consolidation of otherwise, but this Agreement shall not be
assignable by the Optionee.
10. PLAN DOCUMENT GENERALLY CONTROLS. The terms and conditions of the Plan are
incorporated herein by reference and are thereby made a part of this
Agreement. This Agreement and all rights and obligations hereunder are
subject to the
provisions of the Plan, and this Agreement shall be construed consistent
with the Plan. In the event of any inconsistency or ambiguity, the Plan
shall control, except that the term "Retirement" as used in the Plan or
this Agreement, for purposes of this Option, notwithstanding anything to
the contrary in the Plan, shall mean the Optionee's (i) retirement from
employment with the Company or other Employer at his or her normal
retirement date upon reaching age 65, or (ii) early retirement with the
approval of the Committee. For purposes of this Option, there is no right
to retire when the combination of the Optionee's age and years working at
the Company reach 90. By accepting this Agreement, the Optionee hereby
waives all rights which he or she would otherwise have under the Plan with
regard to the definition of "Retirement" set forth therein. The Committee
shall have final authority to interpret and construe the Plan and this
Agreement and to make any and all determinations under them, and its
decisions shall be binding and conclusive upon the Optionee and his or her
legal representative in respect of any questions arising from the Plan or
this Agreement.
11. OPTIONEE AGREEMENT. By signing this Agreement, the Optionee agrees, and the
Company agrees, to be bound by the non-compete, non-disclosure and
non-solicitation covenants (the "Covenants") contained in Annex A hereto.
The Optionee agrees that in the event of a breach of any of the Covenants,
as determined by the Company, he or she shall forfeit, upon written notice
to such effect from the Company: (i) any and all Stock Options granted to
the Optionee pursuant to the Plan, including the Option described in this
Agreement, which are held by the Optionee more than 120 days after the
termination of employment with the Company or other Employer; and (ii) any
profit the Optionee has realized on the exercise of any vested Stock
Options granted pursuant to the Plan more than 120 days after the
termination of employment with the Company or other Employer. Profit for
this purpose is defined as the difference between the Exercise Price and
the Fair Market Value of any Stock Option exercised by the Optionee, which
difference the Optionee shall be required to repay to the Company. Nothing
contained in this Agreement shall limit the Company's right to protect its
legitimate business interests, including but not limited to its trade
secrets or confidential information, or to enforce any agreements with its
employees, former employees or third parties.
12. GOVERNING LAW. To the extent not preempted by federal law, this Agreement
shall be construed, administered and governed in all respects under and by
the laws of the State of Delaware, without giving effect to its conflict of
laws principles.
* * * * *
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of
________________.
NUVEEN INVESTMENTS, INC.
By
----------------------------
Vice President
---------------------------------
OPTIONEE*
---------------------------------
SOCIAL SECURITY NUMBER
------------------------
*By execution of this Agreement, the Optionee acknowledges having received a
copy of the Plan.
Annex A
RESTRICTIVE COVENANTS
(a) Nondisclosure and Nonuse of Trade Secrets. The Participant
acknowledges that he has had and will have access to confidential information of
the Company and its Affiliates (including, but not limited to, current and
prospective confidential know-how, specialized training, customer lists,
marketing plans, business plans, financial and pricing information, and
information regarding acquisitions, mergers and/or joint ventures) concerning
the business, customers, clients, contacts, prospects, and assets of the Company
and its Affiliates that is unique, valuable and not generally known outside the
Company and its Affiliates, and that was obtained from the Company or an
Affiliate or which was learned as a result of the performance of services by the
Participant on behalf of the Company or an Affiliate ("Trade Secrets"). Trade
Secrets shall not include any information that: (i) is now, or hereafter
becomes, through no act or failure to act on the part of the Participant that
constitutes a breach of this Annex A, generally known or available to the
public; (ii) is known to the Participant at the time such information was
obtained from the Company or an Affiliate; (iii) is hereafter furnished without
restriction on disclosure to the Participant by a third party, other than an
employee or agent of the Company or an Affiliate, who is not under any
obligation of confidentiality to the Company or an Affiliate; (iv) is disclosed
with the written approval of the Company or an Affiliate; or (v) is required to
be disclosed or provided by law, court order, or similar compulsion, including
pursuant to or in connection with any legal proceeding involving the parties
hereto; provided however, that such disclosure shall be limited to the extent so
required or compelled; and provided further, however, that if the Participant is
required to disclose such confidential information, he shall give the Company
notice of such disclosure and cooperate in seeking suitable protections. Other
than in the course of performing services for the Company and its Affiliates,
the Participant will not, at any time, either during the Participant's Service
or thereafter, directly or indirectly use, divulge, furnish or make accessible
to any person any Trade Secrets, but instead will keep all Trade Secrets
strictly and absolutely confidential. The Participant will deliver promptly to
the Company or the Affiliate that employed the Participant, at the termination
of his employment or at any other time at the request of the Company or an
Affiliate, without retaining any copies, all documents and other materials in
his possession relating, directly or indirectly, to any Trade Secrets.
(b) Non-Competition. The Participant acknowledges and agrees that (i)
in the course of the Participant's Service the Participant shall become familiar
with the Trade Secrets of the Company and its Affiliates, (ii) the Participant's
services to the Company and its Affiliates are unique in nature and of an
extraordinary value to the Company and its Affiliates, and (iii) the Company and
its Affiliates could be irreparably damaged if the Participant were to provide
similar services to any person or entity competing with the Company or any
Affiliate or engaged in a similar business. In connection with the issuance to
the Participant of the Award hereunder, and in consideration for and as an
inducement to the Company to enter into this Agreement, the Participant
covenants and agrees that during the period beginning on the Grant Date and
ending on the first anniversary of the date of the termination of the
Participant's Service (the "Restricted Period"), the Participant shall not
directly or indirectly operate, control or participate as a partner, director,
principal, officer, or agent of, enter into the employment of, act as a
consultant to, or perform any services for, any company, person, or entity
engaged in a "Competitive Business" as determined by the Company, which
determination shall be binding on the parties. In general, a Competitive
Business will include any company, person or entity that in the judgment of the
Company competes with the Company in any material way, including entities that
directly compete with the Company in (1) the asset management business or (2)
the business of wholesaler distribution of investment company products or
separately managed retail or institutional accounts. The Company may decide that
the employment of a terminated employee in a company that is engaged in
Competitive Business but is also a customer or business partner of the Company
is on balance advantageous to the Company and therefore waive the application of
this non-competition covenant.
(c) Nonsolicitation. During the Restricted Period, the Participant
shall not, directly or indirectly solicit or induce, or attempt to solicit or
induce, any current employee of the Company or an Affiliate, or any individual
who becomes an employee during the Restricted Period, to leave his or her
employment with the Company or an Affiliate or join or become affiliated with
any other business or entity, hire any employee of the Company or an Affiliate
or in any way interfere with the relationship between any employee and the
Company or an Affiliate. During the Restricted Period, the Participant shall
not, directly or indirectly, solicit or induce, or attempt to solicit or induce,
any customer, supplier, licensee, licensor or other business relation of the
Company or an Affiliate to terminate its relationship or contract with the
Company or an Affiliate, to cease doing business with the Company or an
Affiliate, or in any way interfere with the relationship between any such
customer, supplier, licensee or business
relation and the Company or an Affiliate (including making any negative
statements or communications concerning the Company or an Affiliate or their
employees).
(d) Judicial Modification. If the final judgment of a court of
competent jurisdiction declares that any term or provision of this Annex A or
Section 12 of this Agreement is invalid or unenforceable, the parties agree that
(i) the court making the determination of invalidity or unenforceability shall
have the power to reduce the scope, duration, or geographic area of the term or
provision, to delete specific words or phrases, or to replace any invalid or
unenforceable term or provision with a term or provision that is valid and
enforceable and that comes closest to expressing the intention of the invalid or
unenforceable term or provision, (ii) the parties shall request that the court
exercise that power, and (iii) this Agreement shall be enforceable as so
modified after the expiration of the time within which the judgment or decision
may be appealed.