Exhibit 10.1
Stock Option Agreement
Under
The Xxxxx Xxxxxx Companies Inc.
Amended and Restated Fiscal 2002 Share Incentive Plan (the "Plan")
The within STOCK OPTION AGREEMENT provides for the granting of options by
The Xxxxx Xxxxxx Companies Inc., a Delaware corporation (the "Company"), to the
participant, an employee of the Company or one of its subsidiaries (the
"Employee"), to purchase shares of the Company's Class A Common Stock, par value
$0.01 (the "Shares"), on the terms and subject to the conditions hereinafter
provided. The name of the "Participant", the "Grant Date", the aggregate number
of Shares that may be purchased pursuant to this agreement, and the "Exercise
Price" per Shares are stated in the attached "Notice of Grant", and incorporated
herein by reference. The other terms and conditions of the Options are stated in
this agreement and in the Plan.
The Stock Options described herein are being granted pursuant to the
Company's Amended and Restated Fiscal 2002 Share Incentive Plan, as may be
amended from time to time (the "Plan"), and are subject in all respects to the
provisions of the Plan. The Stock Options granted hereunder are not Incentive
Stock Options (as defined in Section 422(b) of the Internal Revenue Code of
1986, as amended).
1. Payment of Exercise Price. The Company will provide and communicate to
the Employee various methods of exercise. These methods may include the ability
to receive Shares of Class A Common Stock of the Company or cash at exercise. To
facilitate exercise, the Company may enter into agreements for coordinated
procedures with one or more brokerage firms or financial institutions.
2. Exercise Period.
a. General. Subject to other provisions contained herein and in
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the Plan, Stock Options granted hereunder shall be exercisable in installments
as specified under "Exercise Period" in the attached "Notice of Grant".
Subject to the last sentence of Paragraph 2b, no Stock Option awarded
hereunder shall be exercisable later than ten (10) years after the Grant Date.
b. Death or Disability. In the event of the Employee's death or the
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occurrence of the Employee's total and permanent disability (as such status
shall be determined under the Company's long term disability program), each
Stock Option awarded but not yet exercisable as of the date of death or the
determination of such disability, shall become immediately exercisable. Each
Stock Option awarded (i) in the case of death may be exercised for a period
commencing as of the day after the date of death and continuing for one year
thereafter and (ii) in the case of permanent disability, for a period commencing
as of the day after determination of such disability and continuing through the
earlier to occur of the first anniversary of such determination or the tenth
anniversary of the Grant Date.
c. Retirement. Subject to Paragraph 3, in the event of Employee's
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formal retirement under the terms of the Xxxxx Xxxxxx Inc. Retirement Growth
Account Plan (or an affiliate or a successor plan or program of similar
purpose), each Stock Option awarded but not yet exercisable as of the date of
retirement shall become immediately exercisable. Each Stock Option awarded may
thereafter be exercised until the tenth anniversary of the Grant Date.
d. Termination of Employment Without Cause.
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(1) Subject to Paragraph 3, in the event Employee is
terminated at the instance of the Employee (e.g., resigns voluntarily), each
Stock Option exercisable but unexercised as of the effective date of such
termination may be exercised until the first to occur of (i) the date which
shall be ninety (90) days after the effective date of such termination and (ii)
the tenth anniversary of the Grant Date. Each Stock Option awarded but
unexercisable as of the date of such termination shall be forfeited as of such
date.
(2) Subject to Paragraph 3, in the event Employee is
terminated at the instance of the Company or relevant subsidiary without Cause
(as defined below), each Stock Option awarded but unexercisable as of the date
of termination shall become immediately exercisable. Each Stock Option awarded
may be exercised until the first to occur of (i) the date which shall be ninety
(90) days after the effective date of such termination and (ii) the tenth
anniversary of the Grant Date. For purposes hereof, "Cause" means any breach by
the Employee of any of his or her material obligations under any Company policy
or procedure, including, without limiting the generality, the Code of Corporate
Conduct and the Policy on Avoidance of Xxxxxxx Xxxxxxx.
3. Post-Employment Exercises. No Stock Option represented by this
Agreement may be exercised after termination of the Employee's employment with
the Company (or any of its subsidiaries) unless as provided for in Paragraph 2b,
2c or 2d hereof. The exercise of any Stock Option after termination of the
Employee's employment by reason of retirement as provided in Xxxxxxxxx 0x or by
reason of termination by the Employee or termination by the Company or relevant
subsidiary without Cause as provided in Paragraph 2d shall be subject to
satisfaction of the conditions precedent that the Employee neither (i) competes
with, or takes other employment with or renders services to a competitor of, the
Company, its subsidiaries or affiliates without the written consent of the
Company, nor (ii) conducts herself or himself in a manner adversely affecting
the Company. All Stock Options that may not be exercised after termination of
the Employee's employment shall be forfeited.
4. Adjustment Provisions; Change in Control.
a. If there shall be any change in the Class A Common Stock of the
Company, through merger, consolidation, reorganization, recapitalization,
stock dividend, stock split, reverse stock split, split up, spin-off,
combination of Shares, exchange of Shares, dividend in kind or other like change
in capital structure or distribution (other than normal cash dividends) to
stockholders of the Company, an adjustment shall be made to each outstanding
Stock Option such that each such Stock Option shall thereafter be exercisable
for such securities, cash and/or other property as would have been received in
respect of the Class A Common Stock subject to such Stock Option had it been
exercised in full immediately prior to such change or distribution, and such an
adjustment shall be made successively each time any such change shall occur. In
addition, in the event of any such change or distribution, or any extraordinary
dividend or distribution of cash or other assets, in order to prevent dilution
or enlargement of the Employee's rights hereunder, the Company will have
authority to adjust, in an equitable manner, the number and kind of Shares that
may be issued with respect to any Stock Option hereunder, the number and kind of
Shares subject to outstanding Stock Options, the exercise price applicable to
outstanding Stock Options, and the Market Value (as herein after defined) and
other value determinations applicable to outstanding Stock Options. Appropriate
adjustments may also be made by the Company in the terms of any Stock Options to
reflect such changes or distributions (and any extraordinary dividend or
distribution of cash or other assets) and to modify any other terms of
outstanding Stock Options on an equitable basis. In addition, the Company is
authorized to make adjustments to the terms and conditions of Stock Options, in
recognition of unusual or nonrecurring events affecting the Company or the
financial statements of the Company, or in response to changes in applicable
laws, regulations, or accounting principles. For purposes of this Paragraph 4,
the Market Value of the Shares shall be equal to 100% of the closing price of
the Class A Common Stock on the New York Stock Exchange (or, if not traded
thereon, then on any other national securities exchange or other market system
on which the Class A Common Stock is then traded on) as reported by the Wall
Street Journal for the date on which such Market Value is being fixed, or, if
there shall be no trading on such date, the date next preceding on which trading
occurred.
b. Notwithstanding any other provision hereunder, in the event of a
Change in Control (as defined below), the Committee, in its discretion, may
take such actions as it deems appropriate with respect to outstanding Benefits,
including, without limitation, accelerating the exercisability or vesting of
such Benefits, or such other actions provided in an agreement approved by the
Board in connection with a Change in Control and such Benefits shall be subject
to the terms of such agreement as the Committee, in its discretion, shall
determine. The Committee, in its discretion, may determine that, upon the
occurrence of a Change in Control of the Company each Stock Option outstanding
hereunder shall terminate within a
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specified number of days after notice to the holder, and such holder shall
receive, with respect to each share of Common Stock subject to such Stock Option
an amount equal to the excess of the Fair Market Value of such shares of Common
Stock immediately prior to the occurrence of such Change in Control over the
exercise price per share of such Stock Option such amount to be payable in cash,
in one or more kinds of property (including the property, if any, payable in the
transaction) or in a combination thereof, as the Committee, in its discretion,
shall determine. For purposes of this Paragraph 4b, a "Change in Control" of
the Company shall be deemed to have occurred upon any of the following events:
(i) A change in control of the direction and
administration of the Company's business of a nature that would be required
to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Exchange Act; or
(ii) During any period of two (2) consecutive years,
the individuals who at the beginning of such period constitute the
Company's Board of Directors or any individuals who would be "Continuing
Directors" (as hereinafter defined) cease for any reason to constitute at
least a majority thereof; or
(iii) The Company's Class A Common Stock shall cease to
be publicly traded; or
(iv) The Company's Board of Directors shall approve a
sale of all or substantially all of the assets of the Company, and such
transaction shall have been consummated; or
(v) The Company's Board of Directors shall approve any
merger, consolidation, or like business combination or reorganization of
the Company, the consummation of which would result in the occurrence of
any event described in Paragraph 4b (ii) or (iii) above, and such
transaction shall have been consummated.
Notwithstanding the foregoing, (A) changes in the relative beneficial
ownership among members of the Lauder family and family-controlled entities
shall not, by itself, constitute a Change in Control of the Company, and (B) any
spin-off of a division or subsidiary of the Company to its stockholders shall
not constitute a Change in Control of the Company.
For purposes of this Paragraph 4b, "Continuing Directors" shall mean (x)
the directors of the Company in office on November 10, 2005 and (y) any
successor to any such director and any additional director who after such date
was nominated or selected by a majority of the Continuing Directors in office at
the time of his or her nomination or selection.
5. Withholding. All payments or distributions of Stock Options made
hereunder of Shares covered by Stock Options shall be net of any amounts
required to be withheld pursuant to applicable federal, national, state and
local tax withholding requirements at the minimum statutory withholding rates
imposed by each taxing authority having jurisdiction. The Company (or relevant
subsidiary) may require the Employee to remit to it an amount sufficient to
satisfy such tax withholding requirements prior to the delivery of any
certificates for such Shares. The Company (or relevant subsidiary) may, in its
discretion and subject to such rules as it may adopt (including any as may be
required to satisfy applicable tax and/or non-tax regulatory requirements),
permit the Employee to pay all or a portion of the federal, national, state and
local withholding taxes arising in connection with any Stock Option by electing
to have the Company (or relevant subsidiary) withhold Shares of Class A Common
Stock having a Market Value equal to the amount to be withheld, at the minimum
statutory withholding rates.
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6. Transferability. Stock Options covered by this Agreement may be
transferred pursuant to the laws of descent and distribution or, during
Employee's lifetime solely to the Employee's spouse, siblings, parents, children
and grandchildren or trusts for the benefits of such persons, or partnerships,
corporations, limited liability companies, or other entities owned solely by
such persons, including trusts for such persons. Any such transfer shall have no
effect until written notice (providing sufficient details as then are required
by the Company in respect of the proposed transfer) is received and confirmed by
the Company. Employee shall remain liable for all obligations of Employee and
his or her transferee or transferees. Each transferee shall also be subject the
employee's obligations under this Agreement relating to the Stock Options
transferred to him or her.
7. Limitations. Nothing in this Agreement or the Plan gives the Employee
any right to continue in the employ of the Company or any of its Subsidiaries
or to interfere in any way with the right of the Company or any Subsidiary
to terminate his or her employment at any time. Payment of Stock Options is not
secured by a trust, insurance contract or other funding medium, and the Employee
does not have any interest in any fund or specific asset of the Company by
reason of this Award or the account established on his or her behalf. The
Employee has no rights as a shareholder of the Company pursuant to the Stock
Options until Shares are actually delivered to the Employee.
8. Specific Restrictions Upon Option Shares. The Employee hereby agrees
with the Company as follows:
a. The Employee shall acquire Shares hereunder for investment
purposes only and not with a view to resale or other distribution thereof
to the public in violation of the United States Securities Act of 1933, as
amended (the "1933 Act"), and shall not dispose of any such Shares in
transactions which, in the opinion of counsel to the Company, violate the 1933
Act, or the rules and regulations thereunder, or any applicable state or
national securities or "blue sky" laws; and further,
b. If any Shares shall be registered under the 1933 Act, no public
offering (otherwise than on a national securities exchange, as defined in the
United States Securities Exchange Act of 1934, as amended) of any Shares
acquired hereunder shall be made by the Employee (or any other person) under
such circumstances that he or she (or such person) may be deemed an underwriter,
as defined in the 1933 Act; and further
c. The Employee agrees that the Company shall have the authority to
endorse upon the certificate or certificates representing the Shares acquired
hereunder such legends referring to the foregoing restrictions and any other
application restrictions, as it may deem appropriate.
9. Notices. Any notice required or permitted under this Option Agreement
shall be deemed to have been duly given if delivered, telecopied or mailed,
certified or registered mail, return receipt requested or by internationally-
recognized courier guaranteeing next day delivery (a) to the Employee at such
address as the Company (or relevant subsidiary) shall maintain for the Employee
or its personnel records or (b) to the Company, attention Stock Plan
Administration at its principal executive offices, which are currently located
at 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000.
10. Disclosure and Use of Information:
a. By signing and returning the attached Notice of Grant, and as a
condition of the grant of the Stock Options, the Employee hereby expressly
consents to the Company and its subsidiaries, and any agent of the Company
and/or its subsidiaries administering the Plan or providing Plan recordkeeping
service to the collection, use, and transfer of personal data as described in
this Section.
b. The Employee understands that the local employer, the Company
and/or its other subsidiaries holds, by means of an automated data file or
otherwise, certain personal information about the Employee, including, but not
limited to, name, home address and telephone number, date of birth, social
insurance number, salary, nationality, job title, any shares or directorships
held in the Company, details of
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all Stock Options or other entitlement to shares awarded, canceled, exercised,
vested, unvested, or outstanding in the Employee's favor, for purposes of
managing and administering the Plan ("Data").
c. The Employee further understands that part or all of his or her
Data may be also held by the Company and/or its subsidiaries, pursuant to a
transfer made in the past with the Employee's consent, in respect of any
previous grant of stock options or other awards, which was made for the same
purposes of managing and administering previous award/incentive plans, or for
other purposes.
d. The Employee further understands that his or her local employer
will transfer Data to the Company and/or its subsidiaries among themselves
as necessary for the purposes of implementation, administration, and management
of the his or her participation in the Plan, and that the Company and/or its
subsidiaries may transfer data among themselves, and/or each, in turn, further
transfer Data to any third parties assisting the Company in the implementation,
administration, and management of the Plan ("Data Recipients").
e. The Employee understands that the Company and/or its
subsidiaries, as well as the Data Recipients, are or may be located in his or
her country of residence or elsewhere, such as the United States. The Employee
authorizes the Company and/or its subsidiaries, as well as Data Recipients to
receive, possess, use, retain, and transfer Data in electronic or other form,
for the purposes of implementing, administering, and managing his or her
participation in the Plan, including any transfer of such Data, as may be
required for the administration of the Plan and/or the subsequent holding of
Shares on his or her behalf, to a broker or third party with whom the Shares may
be deposited.
f. The Employee understands that he or she may show opposition to
the processing and transfer of his or her Data, and, may at any time, review
the Data, request that any necessary amendments be made to it, or withdraw his
or her consent herein in writing by contacting the Company. The Employee
further understands that withdrawing consent may affect his or her ability to
participate in the Plan.
11. Discretionary Nature and Acceptance of Award. By accepting this Award,
the Employee agrees to be bound by the terms of this Agreement and acknowledges
that:
a. The Company (and not the local employer) is granting Stock
Options. Furthermore, this Agreement is not derived from any preexisting labor
relationship between the Employee and the Company, but rather from a mercantile
relationship.
b. The Company will administer the Plan from outside the Employee's
country of residence and U.S. law will govern all Stock Options granted under
the Plan.
c. That benefits and rights provided under the Plan are wholly
discretionary and, although provided by the Company, do not constitute regular
or periodic payments.
d. The benefits and rights provided under the Plan are not to be
considered part of the Employee's salary or compensation under his or her
employment with the local employer for purposes of calculating any severance,
resignation, redundancy or other end of service payments, vacation, bonuses,
long-term service awards, indemnification, pension or retirement benefits, or
any other payments, benefits or rights of any kind. The Employee waives any and
all rights to compensation or damages as a result of the termination of
employment with the Employee's local employer for any reason whatsoever insofar
as those rights result or may result from the loss or diminution in value of
such rights under the Plan or his or her ceasing to have any rights under, or
ceasing to be entitled to any rights under the Plan as a result of such
termination.
e. The grant of Stock Options, hereunder, and any future grant of
Stock Options under the Plan is entirely voluntary, and at the complete
discretion of the Company. Neither the grant of the Stock Options nor any future
grant of Stock Options by the Company shall be deemed to create any obligation
to grant any further Stock Options, whether or not such a reservation is
explicitly stated at the time of such a grant. The Company has the right, at any
time and/or on an annual basis, to amend, suspend, or terminate
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the Plan; provided, however, that no such amendment, suspension, or termination
shall adversely affect the Employee's rights hereunder.
f. The Plan shall not be deemed to constitute, and shall not be
construed by as constituting, part of the terms and conditions of employment.
The Company shall not incur any liability of any kind to the Employee as a
result of any change or amendment, or any cancellation, of the Plan at any time.
g. Participation in the Plan shall not be deemed to constitute, and
shall not be deemed by the Employee to constitute, an employment or labor
relationship of any kind with the Company.
12. Failure to Enforce Not a Waiver. The failure of the Company to enforce
at any time any provision of this agreement shall in no manner be construed to
be a waiver of such provision or of any other provision hereof.
13. Governing Law. The Option Agreement shall be governed by and construed
according to the laws of the State of New York, applicable to agreements made
and performed in that state.
14. Partial Invalidity. The invalidity or illegality of any provision
herein shall not be deemed to affect the validity of any other provision.
The Xxxxx Xxxxxx Companies Inc.
By:________________________
Senior Vice President,
Global Human Resources
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