BUILDING MATERIALS HOLDING CORPORATION STOCK OPTION AGREEMENT Pursuant to the
Exhibit
10.25.1
Pursuant
to the
2004
INCENTIVE AND PERFORMANCE PLAN
BUILDING
MATERIALS HOLDING CORPORATION (the “Company”) hereby grants to the optionee
attached an option to purchase its Common Stock (the “Option”). The terms and
conditions of the Option are set forth in this Stock Option Agreement and in
the
Company’s 2004 Incentive and Performance Plan (the “Plan”). Unless otherwise
defined in this Agreement, capitalized terms used herein have the meanings
designated in the Plan.
TERMS
AND CONDITIONS
1. VESTING
AND EXERCISE.
(a) The
Option shall not be exercisable as of the Date of Grant. After the Date of
Grant, to the extent not previously exercised, and subject to termination or
acceleration and other restrictions as provided in this Agreement and the Plan,
the Option shall be exercisable to the extent it becomes vested, which shall
occur in accordance with the Vesting Schedule set forth on the attached Notice
of Grant of Stock Options.
(b) Notwithstanding
the foregoing, if there is a Change in Control of the Company, the Option shall
immediately vest in full upon such Change in Control, and shall be exercisable
until the Expiration Date, unless earlier terminated pursuant to Section 5
of
this Agreement.
(c) To
the
extent then exercisable, the Option may be exercised during Optionee’s lifetime
only by Optionee or by Optionee’s guardian or legal representative in the event
of the Optionee’s death or disability.
2. TRANSFER.
Unless
otherwise permitted by the Committee, the Option may not be sold, transferred,
pledged, assigned or otherwise alienated or hypothecated, other than by will
or
by the laws of descent and distribution (in which case the descendant or
beneficiary shall be subject to all terms of this Agreement and all terms of
the
Plan applicable to Optionee). Any attempted disposition in violation of this
Section 2 shall be void.
3. LIMITATION
ON EXERCISE OF INCENTIVE STOCK OPTION.
For
so
long as required under Section 422 of the Code and the regulations promulgated
thereunder, during the term of the Plan, the aggregate Fair Market Value of
the
Common Stock with respect to which Incentive Stock Options are first exercisable
by Optionee under the Plan and all other plans of the Company, its parent or
any
Subsidiary during any calendar year shall not exceed $100,000. Options in excess
of such amount shall be treated as non-qualified stock options. For the purpose
of this Section 3, the Fair Market Value of the Common Stock shall be determined
at the time the Incentive Stock Option is granted.
4. NOTICE
OF SALE.
Optionee
must notify the Company in writing of any sale or other disposition of shares
of
Common Stock acquired pursuant to an Incentive Stock Option if such sale or
other disposition occurs (i) within two years of the grant of the Incentive
Stock Option or (ii) within one year of the issuance of the shares of
Common Stock to Optionee.
5. TERMINATION
OF EMPLOYMENT.
(a) Upon
a
termination of employment for cause, Optionee will not be entitled to exercise
the Option at any time after such termination. For purposes of this Section,
"cause"
is
defined as: (i) an act of dishonesty or willful misconduct; (ii) a breach of
fiduciary duty owed to the Company, any Subsidiary or its stockholders involving
personal profit or any other material breach of fiduciary duty; (iii) an act
of
fraud, embezzlement, malfeasance or misappropriation of Company property or
any
Subsidiary's property; (iv) a conviction of an illegal act or felony, or use
of
illegal drugs or controlled substances; or (v) a willful failure to perform
reasonable duties, responsibilities or instructions from the Company or any
Subsidiary.
(b) Upon
termination of employment for any reason other than for cause, Optionee shall
be
entitled to exercise his or her Option after termination of employment (i)
six
(6) months from
the
date of termination if termination was caused by death or disability within
the
meaning of Section 22(e)(3) of the Code; and (ii) ninety (90) days from the
date of termination if termination was caused by other than death or
disability.
6. RETIREMENT.
Optionee
or Permitted Transferee may exercise the Option after retirement as
follows:
(a) Retirement
After Age 55.
Optionee shall be entitled to exercise any Option other than an Incentive Stock
Option for a period of thirty-six (36) months from the date of Optionee’s
retirement from employment after age 55 in accordance with the Company’s
then-current retirement policy (or the then-current retirement policy of any
parent or Subsidiary, if applicable), to the extent Optionee was entitled to
exercise the Option on the date of Optionee’s retirement, and provided that the
actual date of exercise is in no event after the expiration of the term of
the
Option. In the event that Optionee intends to retire from employment after
age
55 and Optionee is the holder of one or more Incentive Stock Options, then
Optionee shall be entitled, for a period of sixty (60) days ending on the date
which is six (6) months prior to Optionee’s date of retirement, to elect to
convert one or more Incentive Stock Options into non-statutory stock options
by
written request received by the Company within such sixty (60) day period and,
thereafter, such newly converted non-statutory stock options shall be subject
to
the thirty-six (36) month exercise period set forth herein; provided that,
Optionee actually retires on his or her retirement date. In the event Optionee
fails to convert any Incentive Stock Option under this paragraph, then such
Incentive Stock Options shall be governed by the provisions of Section 5 of
this Agreement.
(b) Retirement
at Age 60 or Older.
Optionee shall be entitled to exercise the Option in accordance with the
provisions of the Plan and this Agreement, but if Optionee retires at age 60
or
older, the Option is also subject to the following accelerated vesting: If
Optionee retires at age 60 or older, with at least 15 years of service with
the
Company and predecessor companies, 50% of Optionee’s unvested Options at the
date of retirement automatically vest and an additional 5% of Optionee’s
unvested Options vest for each year of service beyond 15 years. If Optionee
retires at age 60 or older with 25 or more years of service, all unvested
Options vest.
7. STATUS
OF PARTICIPANT
Optionee
shall not be, or have rights as, a stockholder of the Company with respect
to
any of the shares of Common Stock subject to the Option until such shares have
been purchased and delivered to him or her. The Company shall not be required
to
issue or transfer any certificates for shares of Common Stock purchased upon
exercise of the Option until all applicable requirements of law have been
complied with and the shares have been duly listed on any securities exchange
on
which the Common Stock may then be listed.
8. NO
EFFECT ON CAPITAL STRUCTURE.
The
Option shall not affect the right of the Company or any Subsidiary to
reclassify, recapitalize or otherwise change its capital or debt structure
or to
merge, consolidate, convey any or all of its assets, dissolve, liquidate,
windup, or otherwise reorganize.
9. EXPIRATION
OF OPTION.
The
right
to purchase Common Stock under the Option shall expire seven (7) years from
the
Date of Grant, unless earlier terminated in accordance with the terms of the
Plan or this Agreement. The Company will make every effort to notify you prior
to the expiration of an option; however, it is the Optionee's responsibility
to
be aware of the date the Option terminates.
10. COMMITTEE
AUTHORITY.
Any
question concerning the interpretation of this Agreement, any adjustments
required to be made under the Plan, and any controversy that may arise under
the
Plan or this Agreement shall be determined by the Committee in its sole
discretion. Any decisions by the Committee regarding the Plan or this Agreement
shall be final and binding.
11. PLAN
CONTROLS.
The
terms
of this Agreement are governed by the terms of the Plan, as it exists on the
date of the grant and as the Plan is amended from time to time. In the event
of
any conflict between the provisions of this Agreement and the provisions of
the
Plan, the terms of the Plan shall control.
12. LIMITATION
ON RIGHTS; NO RIGHT TO FUTURE GRANTS; EXTRAORDINARY ITEM.
By
entering into this Agreement and accepting the Option, Optionee acknowledges
that: (a) the Plan is discretionary and may be modified, suspended or
terminated by the Company at any time as provided in the Plan; (b) the
grant of the Option is a one-time benefit and does not create any contractual
or
other right to receive future grants of awards or benefits in lieu of awards;
(c) all determinations with respect to any such future grants, including,
but not limited to, the times when awards will be granted, the number of shares
subject to each award, the award price, if any, and the time or times when
each
award will be settled, will be at the sole discretion of the Company;
(d) participation in the Plan is voluntary; (e) the value of the
Option is an extraordinary item which is outside the scope of Optionee's
employment contract, if any, unless expressly provided for in any such
employment contract; (f) the Option is not part of normal or expected
compensation for any purpose, including without limitation for calculating
any
benefits, severance, resignation, termination, redundancy, end of service
payments, bonuses, long-service awards, pension or retirement benefits or
similar payments, and Optionee will have no entitlement to compensation or
damages as a consequence of the forfeiture of any unvested portion of the Option
as a result of Optionee’s termination of employment for any reason; (g) the
future value of the Common Stock subject to the Option is unknown and cannot
be
predicted with certainty; (h) neither the Plan, the Option nor the issuance
of the shares underlying the Option confers upon Optionee any right to continue
in the employ or service of (or any other relationship with) the Company or
any
Subsidiary, nor do they limit in any respect the right of the Company or any
Subsidiary to terminate Optionee’s employment or other relationship with the
Company or any Subsidiary, as the case may be, at any time with or without
Cause; and (i) the grant of the Option will not be interpreted to form an
employment relationship with the Company or any Subsidiary.
13. GENERAL
PROVISIONS
(a) Notice.
Whenever any notice is required or permitted hereunder, such notice must be
in
writing and delivered in person or by mail (to the address set forth below
if
notice is being delivered to the Company) or electronically. Any notice
delivered in person or by mail shall be deemed to be delivered on the date
on
which it is personally delivered, or, whether actually received or not, on
the
third business day after it is deposited in the United States mail, certified
or
registered, postage prepaid, addressed to the person who is to receive it at
the
address set forth in this Agreement. Notices delivered to Optionee in person
or
by mail shall be addressed to the address for Optionee in the records of the
Company. Notices delivered to the Company in person or by mail shall be
addressed as follows:
|
Company:
|
Attn:
Legal Department
000
Xxxx Xxxx., Xxxxx 000
Xxxxx,
Xxxxx 00000
|
The
Company or Optionee may change, by written notice to the other, the address
previously specified for receiving notices.
(b) No
Waiver.
No
waiver of any provision of this Agreement will be valid unless in writing and
signed by the person against whom such waiver is sought to be enforced, nor
will
failure to enforce any right under this Agreement constitute a continuing waiver
of the same or a waiver of any other right hereunder.
(c) Undertaking.
Optionee hereby agrees to take whatever additional action and execute whatever
additional documents the Company may deem necessary or advisable in order to
carry out or effect one or more of the obligations or restrictions imposed
on
either Optionee or the Option pursuant to the express provisions of this
Agreement.
(d) Entire
Contract.
This
Agreement and the Plan constitute the entire contract between the parties hereto
with regard to the subject matter hereof. This Agreement is made pursuant to
the
provisions of the Plan and will in all respects be construed in conformity
with
the express terms and provisions of the Plan.
(e) Successors
and Assigns.
The
provisions of this Agreement shall inure to the benefit of, and be binding
on,
the Company and its successors and assigns and Optionee and Optionee's legal
representatives, heirs, legatees, distributees, assigns and transferees by
operation of law.
(f) Securities
Law Compliance.
The
Company currently has an effective registration statement on file with the
Securities and Exchange Commission with respect to the shares of Common Stock
subject to the Option. The Company intends to maintain this registration but
has
no obligation to do so. If the registration ceases to be effective, Optionee
will not be able to transfer or sell shares of Common Stock issued pursuant
to
the Option unless one or more exemptions from registration under applicable
securities laws are available. Such exemptions from registration are very
limited and might be unavailable. Optionee agrees that any resale of the shares
of Common Stock issued pursuant to the Option shall comply in all respects
with
the requirements of all applicable securities laws, rules and regulations
(including, without limitation, the provisions of the Securities Act of 1933,
the Securities Exchange Act of 1934 and the respective rules and regulations
promulgated thereunder) and any other law, rule or regulation applicable
thereto, as such laws, rules, and regulations may be amended from time to time.
The Company shall not be obligated to either issue shares of Common Stock or
permit the resale of any such shares if such issuance or resale would violate
any such requirements.
(g) Information
Confidential.
As
partial consideration for the granting of the Option, Optionee agrees that
he or
she will keep confidential all information and knowledge that Optionee has
relating to the manner and amount of his or her participation in the Plan;
provided, however, that such information may be disclosed as required by law
and
may be given in confidence to Optionee's spouse, tax and financial advisors,
or
to a financial institution to the extent that such information is necessary
to
secure a loan.
(h) Governing
Law.
Except
as may otherwise be provided in the Plan, the provisions of this Agreement
shall
be governed by the laws of the State of Delaware, without giving effect to
principles of conflicts of law.
