APTARGROUP, INC. STOCK OPTION AGREEMENT FOR EMPLOYEES
Exhibit 10.4
AptarGroup, Inc., a Delaware corporation (the “Company”), hereby grants to
(the “Employee”) as of , (the “Option Date”), pursuant to the provisions of the
AptarGroup, Inc. 2008 Stock Option Plan (the “Plan”), a non-qualified option to purchase from the
Company (the “Option”) shares of its Common Stock, $.01 par value (“Stock”), at the
price of $ per share upon and subject to the terms and conditions set forth below.
Capitalized terms not defined herein shall have the meanings specified in the Plan.
1. Option Subject to Acceptance of Agreement.
The Option shall become null and void unless the Employee shall accept this Agreement by
executing it in the space provided below and returning it to the Company.
2. Time and Manner of Exercise of Option.
2.1. Maximum Term of Option. In no event may the Option be exercised, in whole or in
part, after , (the “Expiration Date”).
2.2. Exercise of Option. (a) The Option shall become exercisable (i) on
, with respect to [one-third] of the number of shares subject to the Option on the
Option Date, (ii) on , with respect to an additional [one-third] of the number of
shares subject to the Option on the Option Date, (iii) on
, ___with respect to the
remaining [one-third] of the number of shares subject to the Option on the Option Date, and (iv) as
otherwise provided pursuant to Sections 2.2(b), (c) and (f) hereof.
(b) If the Employee’s employment by the Company terminates by reason of retirement, the Option
shall continue to be exercisable and become exercisable in accordance with Section 2.2(a) and may
thereafter be exercised by the Employee or the Employee’s Legal Representative from the effective
date of the Employee’s termination of employment until the Expiration Date. For purposes of this
Agreement, “retirement” shall mean retirement either (i) at or after age 55 after a minimum of ten
years of employment with the Company or (ii) at or after age 65. For purposes of this Section
2.2(b) only, employment with an entity or business acquired by the Company shall be deemed to be
employment with the Company.
(c) If the Employee’s employment by the Company terminates by reason of permanent disability
or death, the Option shall become fully exercisable and may thereafter be exercised by the Employee
or the Employee’s Legal Representative, in the case of permanent disability, or the Employee’s
Legal Representative or Permitted Transferees, in the case of death, in each case for a period of
three years from the effective date of the Employee’s termination of
employment or until the
Expiration Date, whichever period is shorter. For purposes of this
Agreement, “permanent disability” shall mean the inability of the Employee to substantially
perform his or her duties for a continuous period of at least six months as determined by the
Committee.
(d) If the Employee’s employment by the Company terminates for any reason other than
retirement, permanent disability or death, the Option shall be exercisable only to the extent that
it was exercisable on the effective date of the Employee’s termination of employment and may
thereafter be exercised by the Employee or the Employee’s Legal Representative for a period of one
year from the effective date of the Employee’s termination of employment or until the Expiration
Date, whichever period is shorter. The portion of the Option, if any, which is not vested as of
the effective date of the Employee’s termination of employment shall be forfeited and canceled by
the Company.
(e) If the Employee dies on or prior to the Expiration Date following termination of
employment by reason of retirement, or if the Employee dies during the three-year period following
termination of employment by reason of permanent disability, or if the Employee dies during the
one-year period following termination of employment for any reason other than retirement or
permanent disability, the Option shall be exercisable only to the extent that it was exercisable on
the date of such death and may thereafter be exercised by the Employee’s Legal Representative or
Permitted Transferees, as the case may be, for a period of one year from the date of death or until
the Expiration Date, whichever period is shorter.
(f) (1) In the event of a Change in Control (as defined in Appendix A), the Option shall
immediately become exercisable in full.
(2) In the event of a Change in Control pursuant to paragraph (1) or (2) of Appendix A, the
Board of Directors (as constituted prior to such Change in Control) may, in its discretion (subject
to existing contractual arrangements), require that the Option, in whole or in part, be surrendered
to the Company by the Employee and be immediately cancelled by the Company, and provide for the
Employee to receive a cash payment from the Company in an amount equal to the number of shares of
Stock subject to the Option immediately prior to such cancellation (but after giving effect to any
adjustment pursuant to Section 6(b) of the Plan in respect of any transaction that gives rise to
such Change in Control), multiplied by the excess, if any, of (i) the greater of (A) the highest
per share price offered to holders of common stock in any transaction whereby the Change in Control
takes place and (B) the Market Value of a share of Stock on the date on which such Change of
Control occurs over (ii) the exercise price.
(3) In the event of a Change in Control pursuant to paragraph (3) or (4) of Appendix A, the
Board of Directors (as constituted prior to such Change in Control) may, in its discretion (subject
to existing contractual arrangements):
| (i) | require that shares of stock of the corporation resulting from such Change in Control, or a parent corporation thereof, be substituted for some or all of the |
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| shares of Stock subject to the Option, with an appropriate and equitable adjustment to the exercise price of such Option, as determined by the Board of Directors, such adjustment to be made without an increase in the aggregate purchase price; and/or | |||
| (ii) | require the Option, in whole or in part, to be surrendered to the Company by the Employee, and to be immediately cancelled by the Company, and provide for the Employee to receive (a) a cash payment in an amount not less than the amount determined by multiplying the number of shares of Stock subject to the Option immediately prior to such cancellation (but after giving effect to any adjustment pursuant to Section 6(b) of the Plan in respect of any transaction that gives rise to such Change in Control), by the excess, if any, of the highest per share price offered to holders of common stock in any transaction whereby the Change in Control takes place over the exercise price, (b) shares of stock of the corporation resulting from such Change in Control, or a parent corporation thereof, having a Market Value not less than the amount determined under clause (a) above or (c) a combination of a payment of cash pursuant to clause (a) above and the issuance of shares pursuant to clause (b) above. |
(4) The Company may, but is not required to, cooperate with the Employee if the Employee is
subject to Section 16 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), to
assure that any cash payment or substitution in accordance with this Section 2.2(f) to the Employee
is made in compliance with Section 16 and the rules and regulations thereunder.
2.3. Method of Exercise. Subject to the limitations set forth in this Agreement, the
Option may be exercised by the Employee (i) by giving written notice to the Company specifying the
number of whole shares of Stock to be purchased and accompanied by payment therefor in full in cash
and (ii) by executing such documents as the Company may reasonably request. The purchase price of
the shares being purchased may be paid in cash on behalf of the Employee by a broker-dealer
acceptable to the Company to whom the Employee has submitted an irrevocable notice of exercise;
provided, however, that the Committee shall have sole discretion to disapprove of
an election to use a broker-dealer. No shares of Stock shall be issued until the full purchase
price has been paid.
2.4. Termination of Option. In no event may the Option be exercised after it
terminates as set forth in this Section 2.4. The Option shall terminate, to the extent not
exercised pursuant to Section 2.3 or earlier terminated pursuant to Section 2.2, on the Expiration
Date.
2.5 Termination of Option and Forfeiture of Option Gain. (a) If at any time prior
to the earliest to occur of (i) the Expiration Date, (ii) the date which is one year after the
effective date of the Employee’s termination of employment for any reason other than death and
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(iii) the date which is six months after the Employee exercises any portion of the Option, the
Employee:
(1) directly or indirectly (whether as principal, agent, independent
contractor, partner or otherwise) engages in any type of or accepts employment with
or renders services to any Competing Entity or takes any action inconsistent with
the fiduciary relationship of an employee to the employee’s employer;
provided, that, following a termination of employment, the Employee may
accept employment with a Competing Entity, the businesses of which are diversified,
and which with respect to one or more of its businesses considered separately is not
a Competing Entity, provided, that the Company, prior to the Employee’s
accepting such employment, shall receive written assurances satisfactory to the
Company from such Competing Entity and from the Employee that the Employee will not
render services directly or indirectly in connection with any Competing Product or
be employed in a position where the Employee could use or disclose confidential
information of the Company or an Affiliate or of any customer or client of the
Company or an Affiliate in connection with the Employee’s employment
responsibilities to the benefit of a Competing Entity; or
(2) directly or indirectly induces or attempts to induce any
employee, agent or customer of the Company or any Affiliate to
terminate such employment, agency or business relationship; or
(3) directly or indirectly, for the Employee or any Competing Entity, sells or
offers for sale, or assists in any way in the sale of, Competing Products to any
customer or client of the Company or any Affiliate, upon which the Employee has
called or which the Employee has supervised while an employee of the Company or an
Affiliate; or
(4) directly or indirectly engages in any activity which is contrary, inimical
or harmful to the interests of the Company or an Affiliate, including but not
limited to (x) violations of Company policies, including the Company’s xxxxxxx
xxxxxxx and confidentiality policies and (y) disclosure or misuse of any
confidential information or trade secrets of the Company or an Affiliate,
then the Option shall terminate automatically on the date the Employee engages in such activity and
the Employee shall pay the Company, within five business days of receipt by the Employee of a
written demand therefor, an amount in cash determined by multiplying the number of shares of Stock
purchased pursuant to each exercise of the Option (without reduction for any shares of Stock
delivered by the Employee or withheld by the Company in satisfaction of the purchase price or any
tax withholding obligations) by the difference between (A) the Market Value of a share of Stock on
the date of such exercise and (B) the purchase price per share of Stock set forth in the first
paragraph of this Agreement. For purposes of this Agreement, “Competing Entity”
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means any business
entity, regardless of its form (e.g. corporations, partnerships, sole proprietorships, trusts and
joint ventures), which sells any Competing Product anywhere worldwide which the
Company or its Affiliates is engaged in business; and “Competing Product” means any dispensing
system including pumps, closures and aerosal valves.
(b) The Employee may be released from the Employee’s
obligations under Section 2.5(a) only if and to the extent the Committee determines in its sole
discretion that such a release is in the best interests of the Company.
(c) The Employee agrees that by executing this Agreement the Employee authorizes the Company
and its Affiliates to deduct any amount or amounts owed by the Employee pursuant to Section 2.5(a)
from any amounts payable by the Company or any Affiliate to the Employee, including, without
limitation, any amount payable to the Employee as salary, wages, vacation pay or bonus. This right
of setoff shall not be an exclusive remedy and the Company’s or an Affiliate’s election not to
exercise this right of setoff with respect to any amount payable to the Employee shall not
constitute a waiver of this right of setoff with respect to any other amount payable to the
Employee or any other remedy.
3. Additional Terms and Conditions of Option.
3.1. Nontransferability of Option. The Option may not be transferred by the Employee
other than by will or the laws of descent and distribution or pursuant to beneficiary designation
procedures approved by the Company. Except to the extent permitted by the foregoing sentence,
during the Employee’s lifetime the Option is exercisable only by the Employee or the Employee’s
Legal Representative. Except to the extent permitted by the foregoing, the Option may not be sold,
transferred, assigned, pledged, hypothecated, encumbered or otherwise disposed of (whether by
operation of law or otherwise) or be subject to execution, attachment or similar process. Upon any
attempt to so sell, transfer, assign, pledge, hypothecate, encumber or otherwise dispose of the
Option, the Option and all rights hereunder shall immediately become null and void.
3.2. Withholding Taxes. As a condition precedent to any exercise of the Option, the
Employee shall, upon request by the Company, pay to the Company (or shall cause a broker-dealer on
behalf of the Employee in accordance with Section 2.3 to pay to the Company) in addition to the
purchase price of the shares, such amount of cash as the Company may be required, under all
applicable federal, state, local or other laws or regulations, to withhold and pay over as income
or other withholding taxes (the “Required Tax Payments”) with respect to such exercise of the
Option. If the Employee shall fail to advance the Required Tax Payments after request by the
Company, the Company may, in its discretion, deduct any Required Tax Payments from any amount then
or thereafter payable by the Company to the Employee.
3.3. Compliance with Applicable Law. The Option is subject to the condition that if
the listing, registration or qualification of the shares subject to the Option upon
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any securities
exchange or under any law, or the consent or approval of any governmental body, or the taking of
any other action is necessary or desirable as a condition of, or in connection with,
the purchase or delivery of shares hereunder, the Option may not be exercised, in whole or in
part, unless such listing, registration, qualification, consent or approval shall have been
effected or obtained. The Company agrees to make every reasonable effort to effect or obtain any
such listing, registration, qualification, consent or approval.
3.4. Delivery of Certificates. Upon the exercise of the Option, in whole or in part,
the Company shall deliver or cause to be delivered one or more certificates representing the number
of shares purchased against full payment therefor. The Company shall pay all original issue or
transfer taxes and all fees and expenses incident to such delivery, except as otherwise provided in
Section 3.2.
3.5. Option Confers No Rights as Stockholder. The Employee shall not be entitled to
any privileges of ownership with respect to shares of Stock subject to the Option unless and until
purchased and delivered upon the exercise of the Option, in whole or in part, and the Employee
becomes a stockholder of record with respect to such delivered shares; and the Employee shall not
be considered a stockholder of the Company with respect to any such shares not so purchased and
delivered.
3.6. Option Confers No Rights to Continued Employment. In no event shall the granting
of the Option or its acceptance by the Employee give or be deemed to give the Employee any right to
continued employment by the Company or any Affiliate of the Company.
3.7. Decisions of Board or Committee. The Board of Directors of the Company or the
Committee shall have the right to resolve all questions which may arise in connection with the
Option or its exercise. Any interpretation, determination or other action made or taken by the
Board of Directors or the Committee regarding the Plan or this Agreement shall be final, binding
and conclusive.
3.8. Company to Reserve Shares. The Company shall at all times prior to the
expiration or termination of the Option reserve and keep available, either in its treasury or out
of its authorized but unissued shares of Stock, the full number of shares subject to the Option
from time to time.
3.9. Agreement Subject to the Plan. This Agreement is subject to the provisions of
the Plan (including the adjustment provision set forth in Section 6(b) thereof), and shall be
interpreted in accordance therewith. The Employee hereby acknowledges receipt of a copy of the
Plan.
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4. Miscellaneous Provisions.
4.1. Meaning of Certain Terms. As used herein, (a) employment by the Company shall
include employment by an Affiliate of the Company, (b) the term “Permitted Transferee” shall
include any transferee (i) pursuant to a transfer permitted under Section 6(a) of
the Plan and Section 3.1 hereof or (ii) designated pursuant to Section 6(e) of the Plan on the
AptarGroup, Inc. 2008 Stock Option Plan Beneficiary Designation Form attached hereto as Exhibit
A, and (c) the term “Legal Representative” shall include a guardian, administrator, executor or
other person acting in a similar capacity.
4.2. Successors. This Agreement shall be binding upon and inure to the benefit of any
successor or successors of the Company and any person or persons who shall, upon the death of the
Employee, acquire any rights hereunder in accordance with this Agreement or the Plan.
4.3. Notices. All notices, requests or other communications provided for in this
Agreement shall be made in writing by (a) actual delivery to the party entitled thereto, (b)
mailing to the last known address of the party entitled thereto, via certified or registered mail,
return receipt requested or (c) telecopy with confirmation of receipt. The notice shall be deemed
to be received, in case of actual delivery, on the date of its actual receipt by the party entitled
thereto, in case of mailing, on the tenth calendar day following the date of such mailing, and, in
the case of telecopy, on the date of confirmation of receipt.
4.4. Governing Law. This Agreement shall be governed by, and interpreted in
accordance with, the internal laws of the State of Delaware.
4.5. Reports Filed with the Securities and Exchange Commission. The Company files
periodic and current reports and proxy statements with the Securities and Exchange Commission.
These documents are available, free of charge, on the website of the Securities and Exchange
Commission (xxx.xxx.xxx) and on the Company’s website (xxx.xxxxxxxxxx.xxx, under Investor Relations
/ “Annual Report & Proxy” and “SEC Filings”), as soon as reasonably practicable after the material
is filed with, or furnished to, the Securities and Exchange Commission. Any of these documents are
available to the Employee in paper format, without charge, upon written or oral request to the
Company’s Investor Relations Department located at 000 Xxxx Xxxxx Xxxxx Xxxxxx, Xxxxx X, Xxxxxxx
Xxxx, Xxxxxxxx, 00000, U.S.A., phone number 0-000-000-0000 or at the Human Resource Department at
the Employee’s work site.
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4.6. Counterparts. This Agreement may be executed in two counterparts each of which shall be
deemed an original and both of which together shall constitute one and the same instrument.
| APTARGROUP, INC. | ||||||
| By: | Xxxxx Xxxxxxxx | |||||
| Title: | President and Chief Executive Officer | |||||
Accepted this day of |
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, 20 |
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| Appendix A
to AptarGroup, Inc. Stock Option Agreement for Employees |
For purposes of this Agreement, “Change in Control” shall mean:
(1) the acquisition by any individual, entity or group (a “Person”), including any “person”
within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act, of beneficial ownership
within the meaning of Rule 13d-3 promulgated under the Exchange Act, of more than 50% of either (i)
the then outstanding shares of common stock of the Company (the “Outstanding Company Common Stock”)
or (ii) the combined voting power of the then outstanding securities of the Company entitled to
vote generally in the election of directors (the “Outstanding Company Voting Securities”);
provided, however, that the following acquisitions shall not constitute a Change in
Control: (A) any acquisition directly from the Company (excluding any acquisition resulting from
the exercise of a conversion or exchange privilege in respect of outstanding convertible or
exchangeable securities unless such outstanding convertible or exchangeable securities were
acquired directly from the Company), (B) any acquisition by the Company, (C) any acquisition by an
employee benefit plan (or related trust) sponsored or maintained by the Company or any corporation
controlled by the Company or (D) any acquisition by any corporation pursuant to a reorganization,
merger or consolidation involving the Company, if, immediately after such reorganization, merger or
consolidation, each of the conditions described in clauses (i), (ii) and (iii) of subsection (3) of
this Appendix A shall be satisfied; and provided, further that, for purposes of
clause (B), if any Person (other than the Company or any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation controlled by the Company) shall become
the beneficial owner of more than 50% of the Outstanding Company Common Stock or more than 50% of
the Outstanding Company Voting Securities by reason of an acquisition by the Company and such
Person shall, after such acquisition by the Company, become the beneficial owner of any additional
shares of the Outstanding Company Common Stock or any additional Outstanding Company Voting
Securities and such beneficial ownership is publicly announced, such additional beneficial
ownership shall constitute a Change in Control;
(2) individuals who, as of the date hereof, constitute the Board (the “Incumbent Board”) cease
for any reason to constitute at least a majority of such Board; provided, however,
that any individual who becomes a director of the Company subsequent to the date hereof whose
election, or nomination for election by the Company’s stockholders, was approved by the vote of at
least a majority of the directors then comprising the Incumbent Board shall be deemed to have been
a member of the Incumbent Board; and provided, further, that no individual who was
initially elected as a director of the Company as a result of an actual or threatened solicitation
by a Person other than the Board for the purpose of opposing a solicitation by any other Person
with respect to the election or removal of directors or any other actual or
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threatened solicitation of proxies or consents by or on behalf of any Person other than the
Board shall be deemed to have been a member of the Incumbent Board;
(3) consummation of a reorganization, merger or consolidation unless, in any such case,
immediately after such reorganization, merger or consolidation, (i) 50% or more of the then
outstanding shares of common stock of the corporation resulting from such reorganization, merger or
consolidation and 50% or more of the combined voting power of the then outstanding securities of
such corporation entitled to vote generally in the election of directors is then beneficially
owned, directly or indirectly, by all or substantially all of the individuals or entities who were
the beneficial owners, respectively, of the Outstanding Company Common Stock and the Outstanding
Company Voting Securities immediately prior to such reorganization, merger or consolidation and in
substantially the same proportions relative to each other as their ownership, immediately prior to
such reorganization, merger or consolidation, of the Outstanding Company Common Stock and the
Outstanding Company Voting Securities, as the case may be, (ii) no Person (other than the Company,
any employee benefit plan (or related trust) sponsored or maintained by the Company or the
corporation resulting from such reorganization, merger or consolidation (or any corporation
controlled by the Company) and any Person which beneficially owned, immediately prior to such
reorganization, merger or consolidation, directly or indirectly, more than 50% of the Outstanding
Company Common Stock or the Outstanding Company Voting Securities, as the case may be) beneficially
owns, directly or indirectly, more than 50% of the then outstanding shares of common stock of such
corporation or more than 50% of the combined voting power of the then outstanding securities of
such corporation entitled to vote generally in the election of directors and (iii) at least a
majority of the members of the board of directors of the corporation resulting from such
reorganization, merger or consolidation were members of the Incumbent Board at the time of the
execution of the initial agreement or action of the Board providing for such reorganization, merger
or consolidation; or
(4) consummation of (i) a plan of complete liquidation or dissolution of the Company or (ii)
the sale or other disposition of all or substantially all of the assets of the Company other than
to a corporation with respect to which, immediately after such sale or other disposition, (A) 50%
or more of the then outstanding shares of common stock thereof and 50% or more of the combined
voting power of the then outstanding securities thereof entitled to vote generally in the election
of directors is then beneficially owned, directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of the Outstanding Company
Common Stock and the Outstanding Company Voting Securities immediately prior to such sale or other
disposition and in substantially the same proportions relative to each other as their ownership,
immediately prior to such sale or other disposition, of the Outstanding Company Common Stock and
the Outstanding Company Voting Securities, as the case may be, (B) no Person (other than the
Company, any employee benefit plan (or related trust) sponsored or maintained by the Company or
such corporation (or any corporation controlled by the Company) and any Person which beneficially
owned, immediately prior to such sale or other disposition, directly or indirectly, more than 50%
of the Outstanding Company
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Common Stock or the Outstanding Company Voting Securities, as the case
may be) beneficially owns, directly or indirectly, more than 50% of the then outstanding shares of
common stock
thereof or more than 50% of the combined voting power of the then outstanding securities thereof
entitled to vote generally in the election of directors and (C) at least a majority of the members
of the board of directors thereof were members of the Incumbent Board at the time of the execution
of the initial agreement or action of the Board providing for such sale or other disposition.
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| Exhibit A | ||
| to AptarGroup, Inc. | ||
| Stock Option Agreement | ||
| For Employees |
APTARGROUP, INC.
2008 Stock Option Plan
BENEFICIARY DESIGNATION FORM
You may designate a primary beneficiary and a secondary beneficiary. You can name more than
one person as a primary or secondary beneficiary. For example, you may wish to name your spouse as
primary beneficiary and your children as secondary beneficiaries. Your secondary beneficiary(ies)
will receive nothing if any of your primary beneficiaries survive you. All primary beneficiaries
will share equally unless you indicate otherwise. The same rule applies for secondary
beneficiaries.
Designate Your Beneficiary(ies):
| Primary Beneficiary(ies): | ||||
| Secondary Beneficiary(ies): | ||||
I certify that my designation of beneficiary set forth above is my free act and deed.
| Employee’s Signature | ||||||
(Please Print) |
||||||
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