PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT
Exhibit 10.6
PRIVILEGED
AND CONFIDENTIAL
ATTORNEY WORK PRODUCT
ATTORNEY WORK PRODUCT
NON QUALIFIED STOCK OPTION AGREEMENT (this
“Agreement”) dated as of November
_____, 2009,
between NORANDA ALUMINUM HOLDING CORPORATION, a
Delaware corporation (the “Company”), and the
Optionee set forth on the signature page to this
Agreement (the “Optionee”).
WHEREAS, the Company, acting through the Committee with the consent of the Company’s Board of
Directors (the “Board”), has agreed to grant to the Optionee, effective on November [______],
2009 (the “Grant Date”), an option under the Noranda Aluminum Holding Corporation Amended
and Restated 2007 Long-Term Incentive Plan (the “Plan”) to purchase a number of shares of
the Company’s common stock (“Shares”) on the terms and subject to the conditions set forth
in this Agreement and the Plan; and
WHEREAS, the Company is as of the date hereof granting for consideration to the Optionee the
Shares pursuant to the Subscription Agreement, dated as of the date hereof, between the Company and
the Optionee (the “Subscription Agreement”);
WHEREAS, pursuant to that certain adoption agreement dated as of [insert original date/insert
date of grant for new grantees], the Optionee entered into an adoption agreement, pursuant to which
the Optionee became a party to the Amended and Restated Securityholders Agreement relating to the
Company, by and among the Company and certain of its securityholders, dated as of October 23, 2007,
as the same may be amended from time to time (the “Securityholders Agreement”);
WHEREAS, future securities in the Company (including those being acquired pursuant to this
Agreement) owned by the Optionee shall be subject to the terms of the Securityholders Agreement.
NOW, THEREFORE, in consideration of the promises and of the mutual agreements contained in
this Agreement, the parties hereto hereby agree as follows:
Section 1. The Plan. The terms and provisions of the Plan are hereby incorporated
into this Agreement as if set forth herein in their entirety. In the event of a conflict between
any provision of this Agreement and the Plan, the provisions of this Agreement shall control. A
copy of the Plan may be obtained from the Company by the Optionee upon request. Capitalized terms
used herein and not otherwise defined herein shall have the respective meanings ascribed thereto in
the Plan or the Securityholders Agreement, as the case may be.
Section 2. Option; Option Price. Effective on the Grant Date, on the terms and
subject to the conditions of the Plan and this Agreement, the Company hereby grants to the Optionee
the option (the “Option”) to purchase Shares at the price per Share (the “Option
Price”) and in the amounts set forth on the signature page hereto. To the extent permitted by
the Committee, payment of the Option Price may be made in any manner specified by Section
5.6 of the Plan. The Option is not intended to qualify for federal income tax purposes as an
“incentive stock option” within the meaning of Section 422 of the Code. The Options granted hereby
shall
be and become effective upon the delivery of an executed counterpart of this Agreement to the
Company by Optionee. Notwithstanding the foregoing or any other provision of this Agreement, (a)
in the event that the Optionee does not purchase the full amount of Shares subject to the
Subscription Agreement (such full number, the “Subject Shares”) by the end of the 30th day
following the Grant Date (the “Purchase End Date”), a number of Options equal to the
product of (1) the total number of Subject Shares that the Optionee did not purchase and (2) the
quotient of (x) the total number of Options granted to the Optionee under this Agreement and (y)
the total number of Subject Shares, whether or not vested, shall be immediately forfeited and (b)
no Option, whether or not vested, shall be exercisable prior to a purchase of Subject Shares
assuring that such Option will not be forfeited pursuant to this sentence (the provisions of this
sentence shall be subject to adjustment in the event of the occurrence prior to the Purchase End
Date of an event described in Article X of the Plan).
Section 3. Term. The term of the Option (the “Option Term”) shall commence on
the Grant Date and expire on the tenth anniversary of the Grant Date, unless the Option shall have
sooner been terminated in accordance with the terms of the Plan (including, without limitation,
Article V of the Plan) or this Agreement.
Section 4. Vesting. Subject to the Optionee’s not having a Termination of
Relationship prior to the applicable vesting date and except as otherwise set forth in Section
7, the Options shall become non-forfeitable and exercisable (any Options that shall have become
non-forfeitable and exercisable pursuant to Section 4, the “Vested Options”)
according to the following provisions: fifteen-percent (15%) of the Options shall become Vested
Options on each of the first and second anniversaries of the Grant Date, twenty-percent (20%) of
the Options shall become Vested Options on the third anniversary of the Grant Date and twenty-five
percent (25%) of the Options shall become Vested Options on each of the fourth and fifth
anniversaries of the Grant Date. In the event of a Termination of Relationship as a result of the
Optionee’s death or Disability, the Option composing the next applicable tranche of Options which
has not theretofore vested pursuant to the immediately preceding sentence shall become Vested
Options, and the remaining Options which are not Vested Options shall be forfeited. In the event
of the consummation of a Change in Control, each Option which has not theretofore become a Vested
Option and which is scheduled to vest on each of the remaining vesting dates based on anniversaries
of the Grant Date will vest upon the earlier of (i) the Optionee’s continued employment with the
Company for 18 months after such Change in Control or (ii) a Termination of Relationship by the
Company or its Subsidiaries without Cause (as defined in Section 22) or by the Optionee
with Good Reason (as defined in Section 22), in each case within 18 months following the
consummation of such Change in Control. In all cases involving the consummation of a Change in
Control, Options shall otherwise continue to vest in accordance with the terms of the first
sentence of this Section 4. Except as otherwise provided herein, all unvested Options will
immediately terminate upon a Termination of Relationship.
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Section 5. Restriction on Transfer/Securityholders Agreement. The Option may not be
transferred, pledged, assigned, hypothecated or otherwise disposed of in any way by the Optionee,
except (i) if permitted by the Board or the Committee, (ii) by will or the laws of descent and
distribution or (iii) pursuant to beneficiary designation procedures approved by the Company. The
Option shall not be subject to execution, attachment or similar process. Shares of Common Stock
acquired pursuant to the exercise of Options hereunder will be subject to the
Securityholders Agreement. Any attempted assignment, transfer, pledge, hypothecation or other
disposition of the Option contrary to the provisions of this Agreement or the Securityholders
Agreement shall be null and void and without effect.
Section 6. Optionee’s Employment. Nothing in this Agreement or in the Option shall
confer upon the Optionee any right to continue in the employ of the Company or any of its
Subsidiaries or interfere in any way with the right of the Company or its Subsidiaries, as the case
may be, in its sole discretion, to terminate the Optionee’s employment or to increase or decrease
the Optionee’s compensation at any time.
Section 7. Termination.
(a) The Option shall automatically terminate and shall become null and void, be unexercisable
and be of no further force and effect upon the earliest of:
(i) the tenth anniversary of the Grant Date;
(ii) the 180th day following the Termination of Relationship in the case of
a Termination of Relationship for death or Disability;
(iii) [the 90th day following the Termination of Relationship in the case of
a Termination of Relationship without Cause or due to a voluntary termination by the
Optionee; and]1
(iv) [the 90th day following the Termination of Relationship in the case of
a Termination of Relationship without Cause or with Good Reason;
(v) the 60th day following the Termination of Relationship in the case of a
Termination of Relationship occurring because the Optionee resigns his employment without
Good Reason; and]2
(vi) the day of the Termination of Relationship in the case of a Termination of
Relationship with Cause.
(b) Except as otherwise provided in Section 4 of this Agreement, upon a Termination of
Relationship for any reason, the unvested portion of the Option (i.e., that portion which
does not constitute Vested Options) shall terminate on the date the Termination of Relationship
occurs.
| 1 | For Xxxxxxxxx. | |
| 2 | For all but Xxxxxxxxx. |
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Section 8. Securities Law Representations. The Optionee acknowledges that the Option
and the Shares are not being registered under the Securities Act of 1933, as amended (the
“Securities Act”), based, in part, on either (i) reliance upon an exemption from
registration under Securities and Exchange Commission Rule 701 promulgated under the Securities Act
or (ii) the fact that the Optionee is an “accredited investor” (as defined under the Securities Act
and the rules and regulations promulgated thereunder), and, in each of (i) and (ii) above, a
comparable
exemption from qualification under applicable state securities laws, as each may be amended
from time to time. The Optionee, by executing this Agreement, hereby makes the following
representations to the Company and acknowledges that the Company’s reliance on federal and state
securities law exemptions from registration and qualification is predicated, in substantial part,
upon the accuracy of these representations:
(a) [The Optionee is an “accredited investor” within the meaning of Rule 501(a)(1), (2) or (3)
of the Securities Act.]3
(b) The Optionee is acquiring the Option and, if and when he exercises the Option, will
acquire the Shares solely for the Optionee’s own account, for investment purposes only, and not
with a view to or an intent to sell, or to offer for resale in connection with any unregistered
distribution, all or any portion of the Shares or Option within the meaning of the Securities Act
and/or any applicable state securities laws.
(c) The Optionee acknowledges that he has not acquired the Option or the Shares as a result of
any general solicitation or general advertising in the United States, including any meeting whose
attendees have been invited by general solicitation or general advertising.
(d) The Optionee has had an opportunity to ask questions and receive answers from the Company
regarding the terms and conditions of the Option and the restrictions imposed on any Shares
purchased upon exercise of the Option. The Optionee has been furnished with, and/or has access to,
such information as he considers necessary or appropriate for deciding whether to exercise the
Option and purchase the Shares. However, in evaluating the merits and risks of an investment in
the Shares, the Optionee has and will rely only upon the advice of his own legal counsel, tax
advisors, and/or investment advisors.
(e) The Optionee is aware that the Option may be of no practical value, that any value it may
have depends on its vesting and exercisability as well as an increase in the Fair Market Value of
the underlying Shares to an amount in excess of the Option Price, and that any investment in common
shares of a closely held corporation such as the Company is non-marketable, non-transferable and
could require capital to be invested for an indefinite period of time, possibly without return, and
at substantial risk of loss.
(f) The Optionee understands that the Option and the Shares are being offered in an
acquisition not involving any public offering within the United States within the meaning of the
Securities Act and that the Option and the Shares have not been and will not be registered under
the Securities Act, and that the Option and the Shares are “restricted securities” as defined by
Rule 144(a)(3) under the Securities Act, and that, under such laws and applicable regulations, such
securities may be resold without registration under the Securities Act only in certain limited
circumstances, including in accordance with the conditions of Rule 144 promulgated under the
Securities Act or in an offshore acquisition meeting the requirements of Rule 903 or 904 of
Regulation S under the Securities Act, each as presently in effect. The Optionee acknowledges
reviewing a copy of Rule 144 promulgated under the Securities Act and Regulation S under the
Securities Act, as presently in effect, and represents that he is familiar with such rule, and
understands the resale limitations imposed thereby and by the Securities Act and the
applicable state securities law.
| 3 | To be deleted for each Optionee who does not meet this requirement. |
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(g) The Optionee agrees that he will comply with all applicable laws and regulations in effect
in any jurisdiction in which he sells any of the securities or otherwise transfers any interest
therein.
(h) The Optionee has read and understands the restrictions and limitations set forth in the
Securityholders Agreement, the Plan and this Agreement.
(i) The Optionee understands and acknowledges that, if and when he exercises the Option, (i)
any certificate evidencing the Shares (or evidencing any other securities issued with respect
thereto pursuant to any stock split, stock dividend, merger or other form of reorganization or
recapitalization) when issued shall bear any legends which may be required by applicable federal
and state securities laws, and (ii) except as otherwise provided under the Securityholders
Agreement, the Company has no obligation to register the Shares or file any registration statement
under federal or state securities laws.
Section 9. Designation of Beneficiary. The Optionee may appoint any individual or
legal entity in writing as his beneficiary to receive any Option (to the extent not previously
terminated or forfeited) under this Agreement upon the Optionee’s death or Disability. The
Optionee may revoke his designation of a beneficiary at any time and appoint a new beneficiary in
writing. To be effective, the Optionee must complete the designation of a beneficiary or
revocation of a beneficiary by written notice to the Company under Section 11 of this
Agreement before the date of the Optionee’s death. In the absence of a beneficiary designation,
the legal representative of the Optionee’s estate shall be deemed the beneficiary.
Section 10. Notices. All notices, claims, certifications, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been duly given and
delivered if personally delivered or if sent by nationally-recognized overnight courier, by
telecopy, or by registered or certified mail, return receipt requested and postage prepaid,
addressed as follows:
If to the Company, to it at:
If to the Company, to:
| Noranda Aluminum Holding Corporation | ||||
| c/o Apollo Management VI, L.P. | ||||
| 0 Xxxx 00xx Xxxxxx | ||||
| 00xx Xxxxx | ||||
| Xxxxxxxxx: | (000) 000-0000 | |||
| Attention: | Xxxx Xxxxx | |||
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with a copy (which shall not constitute notice) to:
| Apollo Management, L.P. | ||
| 0 Xxxx 00xx Xxxxxx | ||
| 00xx Xxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Facsimile: (000) 000-0000 | ||
| Attention: Xxxx Xxxxx | ||
| and | ||
| Wachtell, Lipton, Xxxxx & Xxxx | ||
| 00 Xxxx 00xx Xxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Facsimile: (000) 000-0000 | ||
| Attention: Xxxxxx X. Xxxxxxxx, Esq. |
If to the Optionee, to him at the address set forth on the signature page hereto; or to such other
address as the party to whom notice is to be given may have furnished to the other party in writing
in accordance herewith. Any such notice or other communication shall be deemed to have been
received (a) in the case of personal delivery, on the date of such delivery (or if such date is not
a business day, on the next business day after the date of delivery), (b) in the case of
nationally-recognized overnight courier, on the next business day after the date sent, (c) in the
case of telecopy transmission, when received (or if not sent on a business day, on the next
business day after the date sent), and (d) in the case of mailing, on the third business day
following that on which the piece of mail containing such communication is posted.
Section 11. Waiver of Breach. The waiver by either party of a breach of any provision
of this Agreement must be in writing and shall not operate or be construed as a waiver of any other
or subsequent breach.
Section 12. Optionee’s Undertaking. The Optionee hereby agrees to take whatever
additional actions and execute whatever additional documents the Company may in its reasonable
judgment deem necessary or advisable in order to carry out or effect one or more of the obligations
or restrictions imposed on the Optionee pursuant to the express provisions of this Agreement and
the Plan; provided, however, that such additional actions and documents are consistent with the
terms of this Agreement.
Section 13. Modification of Rights. The rights of the Optionee are subject to
modification and termination in certain events as provided in this Agreement and the Plan (with
respect to the Options granted hereby). Notwithstanding the foregoing, the Optionee’s rights under
this Agreement and the Plan may not be materially impaired without the Optionee’s prior written
consent.
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Section 14. Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT
OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT WOULD
CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF DELAWARE TO BE APPLIED. IN FURTHERANCE
OF THE FOREGOING, THE INTERNAL LAW OF THE STATE OF DELAWARE WILL CONTROL THE
INTERPRETATION AND CONSTRUCTION OF THIS AGREEMENT, EVEN IF UNDER SUCH JURISDICTION’S CHOICE OF
LAW OR CONFLICT OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY
APPLY.
Section 15. Restrictive Covenants. The grant, vesting and exercise of Options
pursuant to this Agreement shall be subject to the Optionee’s continued compliance with the
restrictive covenants in Section 9 of the Securityholders Agreement[, as modified by the
Management Equity Investment and Incentive Term Sheet, dated as of [insert original date], between
the Optionee and the Company (the “Term Sheet”)].4
Section 16. Withholding. As a condition to exercising this Option in whole or in
part, the Optionee will pay, or make provisions satisfactory to the Company for payment of, any
Federal, state and local taxes required to be withheld in connection with such exercise.
Section 17. Adjustment. In the event of any event described in Article X of the Plan
occurring after the Grant Date, the adjustment provisions (including cash payments) as provided for
under Article X of the Plan shall apply.
Section 18. Counterparts. This Agreement may be executed in one or more counterparts,
and each such counterpart shall be deemed to be an original, but all such counterparts together
shall constitute but one agreement.
Section 19. Entire Agreement. This Agreement and the Plan (and the other writings
referred to herein) constitute the entire agreement between the parties with respect to the subject
matter hereof and thereof and supersede all prior written or oral negotiations, commitments,
representations and agreements with respect thereto.
Section 20. Severability. It is the desire and intent of the parties hereto that the
provisions of this Agreement be enforced to the fullest extent permissible under the laws and
public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any
particular provision of this Agreement shall be adjudicated by a court of competent jurisdiction to
be invalid, prohibited or unenforceable for any reason, such provision, as to such jurisdiction,
shall be ineffective, without invalidating the remaining provisions of this Agreement or affecting
the validity or enforceability of such provision in any other jurisdiction. Notwithstanding the
foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or
unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn,
without invalidating the remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 21. Waiver of Jury Trial. Each party hereto hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do so, trial by jury
in any suit, action or proceeding arising hereunder.
| 4 | To the extent applicable (applies to Xxxxxxxxx). |
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Section 22. Definitions. As used in this Agreement, the following terms shall have
the meanings set forth below:
(a) [“Cause” means a Termination of Relationship by the Company or any of its
Subsidiaries due to the Optionee’s: (i) commission of a felony or a crime of moral turpitude; (ii)
willful commission of a material act of dishonesty involving the Company or any of its Affiliates
or Subsidiaries; (iii) a material breach of the Company’s policies or procedures; (iv) willful
failure to perform the Optionee’s material duties; (v) willful misconduct which causes material
harm to the Company or its Subsidiaries or Affiliates or their respective business reputations,
including due to any adverse publicity; or (vi) a material breach of the Optionee’s obligations
under any agreement entered into between the Optionee and the Company or any of its Subsidiaries or
Affiliates; provided, however, that none of the events described in the foregoing clauses (iii),
(iv), (v) or (vi) shall constitute Cause unless the Company has notified the Optionee in writing
describing the events which constitute Cause and then only if the Optionee fails to cure such
events within 15 days after the Optionee’s receipt of such written notice (provided that, in the
event such breach is not curable, no notice period shall be required).
(b) “Disability” means (i) the Optionee’s inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a continuous period of not less than 12
months, or (ii) the Optionee is, by reason of any medically determinable physical or mental
impairment which can be expected to last for a continuous period of not less than 12 months,
receiving income replacement benefits for a period of not less than three months under an accident,
disability or health plan covering employees of the Company. Whether the Optionee has incurred a
“Disability” shall be determined by a physician selected by the Company or its insurers, which
physician is reasonably acceptable to the Optionee (or the Optionee’s legal representative).
(c) “Good Reason” means a Termination of Relationship by the Optionee within 90 days
after any of the following actions are taken by the Company or any of its Subsidiaries without the
Optionee’s written consent: (i) a [material] reduction of the Optionee’s annual base salary or
target bonus opportunity under any bonus plan maintained by the Company or any of its Subsidiaries
(but not including any diminution related to a broader compensation reduction that is not limited
to any particular employee or executive of the Company or any of its Subsidiaries); (ii) a material
reduction or adverse change in the Optionee’s title, duties or responsibilities; or (iii) a notice
by the Company of non-extension of the Term (as defined in the Term Sheet) of the Term Sheet;
provided, however, that none of the events described in the foregoing clauses (i), (ii) and (iii)
shall constitute Good Reason unless the Optionee has notified the Company in writing describing the
events which constitute Good Reason and then only if the Company fails to cure such events within
30 days after the Company’s receipt of such written notice.]5
| 5 | Definition is from Xxxxxxxxx’x option agreement. Definitions from each optionee’s original option agreement to be maintained in this agreement. |
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IN WITNESS WHEREOF, the parties hereto have executed this Nonqualified Stock Option
Agreement as of the date first written above.
| NORANDA ALUMINUM HOLDING CORPORATION |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| OPTIONEE See attached signature page |
||||
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| [NAME] | ||
| Last address on the records of the Company: |
Number of Shares of Common Stock
subject to Options: |
||||
Option Price: |
$ | 2.28 each |
