Exhibit 10.79
RN Option R
1995
Post Split
RJR NABISCO 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"), RjR Nabisco Holdings Corp. (the "Company") on the
above date has granted to
(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
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
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.
2. Exercise of Option.
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(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 xxxx 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) This Option shall be exercisable in three installments. The first
installment shall be exercisable on the first anniversary following 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.
(c) This Option shall not be exercised prior to six months after the
Date of Xxxxx.
3. Rights in Event of Termination of Employment.
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(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. In the event of
Termination of Employment because of death,
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Permanent Disability or Retirement, the Option shall immediately
become exercisable as to all shares.
(b) The Optionee shall be deemed to have a "Permanent Disability" if
he becomes totally and permanently disabled (as defined in RJR
Nabisco, Inc.'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.
(c) "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 exercisable as to all Shares.
(d) "Termination of Employment" as used herein means termination from
active employment; it does not mean termination of payment 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 fifteenth 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) Immediately upon the Optionee's Termination of Employment for
Cause (as defined in Section 11 herein).
5. Transferability. Other than as specifically provided with regard to
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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. Neither the execution and delivery of this
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agreement nor the granting of the Option evidenced by this agreement shall
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 shall prevent the Company or its subsidiaries from
terminating the Optionee's employment at any time with or without "Cause" (as
defined in Section 11 herein).
7. Adjustments in Option.
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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
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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 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
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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
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withheld by the Company (i) on exercise by the Optionee oftheOption for Common
Stock, or (ii) at the time an election, if any, is made by the Optionee pursuant
to Section 83(b) of the Internal Revenue Code, as amended, 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
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shall be addressed to The Secretary, RIR Nabisco Holdings Corp., 0000 Xxxxxx xx
xxx Xxxxxxxx, Xxx Xxxx, XX 00000-0000, 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. Termination For "Cause." For purposes of this Agreement, an
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Optionee's employment shall be deemed to have been terminated for "Cause" if the
termination results from the Optionee's: (a) criminal conduct, (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 an authorized officer or employee more senior
than the Optionee, 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.
12. Administration and Interpretation. In consideration of the grant,
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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
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for any action, determination or interpretation made in good faith with respect
to the Plan or the Agreement. The Committee may delegate its interpretlye
authority to an officer or officers of the Company.
13. Other Provisions.
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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.
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.
RJR NABISCO HOLDINGS CORP.
By:
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Authorized Signatory
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Optionee
Optionee's Taxpayer Identification Number:
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Optionee's Home Address:
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