EXHIBIT 10.02
ALLIED WASTE INDUSTRIES, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
(UNDER THE AMENDED AND RESTATED
1991 INCENTIVE STOCK PLAN)
THIS OPTION AGREEMENT ("Agreement") dated this 19th day of September, 2005
(the "Date of Grant"), between ALLIED WASTE INDUSTRIES, INC., a Delaware
corporation (the "Company"), and XXXXXX X. XXXXX ("Optionee"):
RECITALS:
The Company has adopted the Allied Waste Industries, Inc. 1991 Incentive
Stock Plan, as most recently amended and restated on February 5, 2004 (the
"Plan"), as amended, all of the terms and provisions of which are incorporated
herein by reference and made a part of this Agreement. All capitalized terms
used but not defined in this Agreement have the meanings given to them in the
Plan.
The Management Development/Compensation Committee of the Board of
Directors (the "Committee") has determined that it would be in the best
interests of the Company and its stockholders to grant the option provided for
herein (the "Option") to Optionee pursuant to the Plan and this Agreement, as an
inducement to serve as an employee of the Company and to provide Optionee with a
proprietary interest in the future of the Company;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth, the parties hereto agree as follows:
1. Grant of the Option. The Company hereby grants to Optionee the right
and option to purchase, on the terms and conditions hereinafter set forth, all
or any part of an aggregate of 150,000 shares of the presently authorized but
unissued common stock, par value $.01 per share, of the Company (the "Stock").
The purchase price of the Stock subject to this Option shall be $8.20 per share.
2. Exercise of Option.
(a) Subject to Sections 2(b) and 2(f) hereof, the Option may be
exercised in whole or in part, at any time or from time to time during the
period commencing twelve months after the Date of Grant and ending ten years
from the Date of Grant. The Option is not transferable or assignable by the
Optionee except to the following persons or entities ("permitted transferees"):
(1) by will or the laws of descent and distribution, or pursuant to a Qualified
Domestic Relations Order; (2) without consideration, to certain members of the
Optionee's family or household, as described in Sections 6(c)(vi)(A) and (B) of
the Plan ("family members"); (3) without consideration,
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to trusts for the benefit of the Optionee's family members, as described in
Section 6(c)(vi)(C) of the Plan; (4) without consideration, to a private
foundation as described in Section 6(c)(vi)(D) of the Plan; or (5) without
consideration, to any entity whose voting interests are the Optionee's family
members, as described in Section 6(c)(vi) of the Plan. During the Optionee's
lifetime, the Option shall be exercisable only by the Optionee, a broker-dealer
acting on his behalf pursuant to Section 6(c)(iv) of the Plan, or any permitted
transferee.
(b) (i) Each Option awarded to Optionee under this Grant may be
exercised only to the extent it has become vested and nonforfeitable. The shares
covered by this Option shall vest and become exercisable over a period of four
years, according to the following schedule: 0% prior to September 19, 2006; 25%
on September 19, 2006; 50% on September 19, 2007; 75% on September 19, 2008; and
100% on September 19, 2009. To the extent not exercised, this Option shall
accumulate and remain exercisable, in whole or in part, at any time after
becoming exercisable, but not later than the date on which the Option expires.
(ii) Upon the death or Retirement of the Optionee, or if the
Optionee's employment with the Company terminates as a result of the Optionee's
Disability, this Option will automatically vest in its entirety and become fully
exercisable.
(c) This Option may be exercised by written notice of intent to
exercise the Option with respect to any or all of the shares of Stock covered by
the Option, delivered to the Company at its principal office. Such notice shall
be accompanied by this Agreement and shall specify the number of shares of Stock
with respect to which this Option is being exercised. Such notice shall also be
accompanied by payment in full to the Company, at its principal office, of the
option price for the shares of Stock with respect to which this Option is then
being exercised. The payment of the option price shall be made (i) in cash or by
certified check, bank cashier's check, wire transfer, or postal or express money
order payable to the order of the Company or, (ii) with the consent of the
Committee, in whole or in part in Stock which has been owned by the Optionee for
at least six months prior to the effective date of exercise and valued at its
Fair Market Value on the effective date of exercise, (iii) with the consent of
the Committee, in the form of a "cashless exercise", as described in the Plan,
or (iv) with the consent of the Committee, in any combination of the foregoing.
Any payment in shares of Stock shall be effected by delivery of such shares to
the Secretary of the Company, duly endorsed in blank or accompanied by stock
powers duly executed in blank, together with any other documents or evidence as
the Secretary shall require from time to time. The effective date of exercise
will be the date established by the Secretary, which shall be as soon as
administratively possible (but not later than five business days) after the
Secretary receives the written notice, a copy of this Agreement, and payment
from Optionee.
(d) This Option may not be exercised prior to the registration of
the Stock with the Securities and Exchange Commission and any applicable state
agencies.
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However, this condition may be waived by the Committee if it determines that
such registration is not necessary in order to legally issue shares of Stock to
Optionee.
(e) Upon the Company's determination that this Option has been
validly exercised as to any shares of Stock, the Secretary of the Company shall
issue a certificate or certificates to the Optionee or permitted transferee for
the number of shares set forth in his written notice. However, the Company shall
not be liable to the Optionee for damages relating to any delays in issuing the
certificate(s) to him, any loss of the certificate(s), or any mistakes or errors
in the issuance of the certificate(s) or in the certificate(s) themselves.
(f) Except as otherwise provided in the Optionee's written
employment agreement with the Company, if any, this Option shall not be
exercisable after the earliest of the following dates (1) the expiration of ten
years from the Date of Grant; (2) one month after the termination of Optionee's
employment by the Company without Cause (as that term is defined in the
Optionee's employment agreement or other written agreement with the Company, if
any, or, if there is no written agreement, as that term is defined in the Plan),
or for by the Optionee for Good Reason (as that term is defined in the
Optionee's employment agreement or other written agreement with the Company, if
any); (3) one year after the termination of Optionee's employment by reason of
Disability, death or Retirement (as those terms are defined in the Plan); or (4)
as of the commencement of the Company's business on the date of the termination
of Optionee's employment for Cause (as that term is defined in the Plan) or for
any reason other than without Cause, for Good Reason, Disability, death or
Retirement.
3. Term of Employment. This Option does not grant to Optionee any right to
continue serving as an employee of the Company.
4. Notices; Deliveries. Any notice of delivery required to be given under
the terms of this Agreement shall be addressed to the Company, in care of its
Secretary, at its principal office at 00000 X. Xxxxxxxx-Xxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxx 00000, and any notice or delivery to be given to Optionee
shall be addressed to him at the address given by him beneath his signature
hereto or such other address as either party hereto may hereafter designate in
writing to the other. Any such notice or delivery shall be deemed to have been
duly given when addressed as aforesaid, registered or certified mail, and
deposited (postage or registration or certification fee prepaid) in a post
office or branch post office regularly maintained by the United States.
5. Disputes. As a condition of the granting of this Option, Optionee and
his heirs and successors agree that any dispute or disagreement which may arise
hereunder shall be determined by the Committee in its sole discretion and
judgment, and that any such determination and any interpretation by the
Committee of the terms of the Option shall be final and shall be binding and
conclusive, for all purposes, upon the Company, Optionee, his heirs and personal
representatives, and all permitted transferees.
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6. Legend on Certificates. The certificate(s) representing the shares of
Stock purchased upon the exercise of this Option will be stamped or otherwise
imprinted with a legend in such form as the Company or its counsel may require
with respect to any applicable restrictions on the sale or transfer of such
shares and the stock transfer records of the Company will reflect stop-transfer
instructions with respect to such shares.
7. Options Subject to Plan. This Option is subject to the terms and
provisions of the Plan. In the event of a conflict between any term or provision
contained herein and a term or provision of the Plan, the applicable terms and
provisions of the Plan will govern and prevail under all circumstances. Optionee
acknowledges that he has received a copy of the Plan on or prior to the Date of
Grant.
8. Acceleration of Exercise Date Upon Change in Control. Upon the
occurrence of a Change in Control of the Company, this Option shall become fully
and immediately exercisable and shall remain exercisable until its expiration,
termination or cancellation pursuant to the terms of the Plan.
9. Deferral of Delivery of Shares. The Committee, in its sole discretion,
may require or permit Optionee to have shares of Stock that would otherwise be
delivered to Optionee converted into a deferred compensation account in
accordance with the terms of the Plan.
10. Miscellaneous.
(a) All decisions of the Committee with respect to any questions
arising under the Plan or under this Agreement shall be conclusive.
(b) Nothing herein contained shall affect Optionee's right to
participate in and receive benefits from and in accordance with the then current
provisions of any employee pension, welfare, or fringe benefit plan or program
of the Company.
(c) Optionee agrees to make appropriate arrangements with the
Company, pursuant to the terms of the Plan, for the satisfaction of any
applicable federal, state or local income tax withholding or similar
requirements, including the payment to the Company at the time of exercise of
this Option of all such taxes and the satisfaction of all such requirements.
(d) Whenever the term "Optionee" is used herein under circumstances
applicable to any other person or persons to whom this Option, in accordance
with the provisions of this Agreement, may be transferred, the word "Optionee"
shall be deemed to include such person or persons.
(e) If any provision of this Agreement or of the Plan would
disqualify the Agreement or the Plan under Rule 16b-3 promulgated under the
Securities Exchange Act of 1934, or would not otherwise comply with Rule 16b-3,
such provision shall be
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construed or deemed amended to conform to Rule 16b-3 to the extent permitted by
applicable law and deemed advisable by the Company's Board of Directors.
(f) Notwithstanding any of the other provisions of this Agreement or
of the Plan, Optionee agrees that he will not exercise this Option, and that the
Company will not be obligated to issue any of the Stock pursuant to this
Agreement, if the exercise of the Option or the issuance of such shares of Stock
would constitute a violation by Optionee or by the Company of any provision of
any law or regulation of any governmental authority or national securities
exchange. Upon the acquisition of any Stock pursuant to the exercise of this
Option, Optionee will enter into such written representations, warranties and
agreements as the Company may reasonably request in order to comply with
applicable securities laws or with this Agreement.
(g) This Agreement shall be binding upon and inure to the benefit of
the Company and Optionee and their respective heirs, administrators, successors,
or permitted assigns.
(h) The interpretation, performance and enforcement of this
Agreement shall be governed by the laws of the State of Arizona.
IN WITNESS WHEREOF, the Company has, as of the date and place first above
written, caused this Agreement to be executed on its behalf by its Chairman,
President or any Vice President, and Optionee has hereunder set his hand as of
the date and place first above written, which date is the Date of Grant of this
Option.
ALLIED WASTE INDUSTRIES, INC.
By /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
President and Chief Operating Officer
OPTIONEE
/s/ Xxxxxx X. Xxxxx
-----------------------------------------
Xxxxxx X. Xxxxx
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