THE WILLIAMS COMPANIES, INC.
Exhibit 10.7
THE XXXXXXXX COMPANIES, INC.
SECTION 1. Purposes.
1.01 Pursuant to that certain Agreement and Plan of Merger among The Xxxxxxxx Companies, Inc.,
Resources Acquisition Corp and Xxxxxxx Resources Corporation dated as of May 7, 2001 (“Merger
Agreement”) the Company agreed to assume, effective at the Merger Date (as defined below) certain
options granted under certain option plans maintained prior to the Merger Date (as defined below)
by Xxxxxxx Resources Corporation, which options would become and represent options (“Substitute
Options”) to purchase Shares (as defined below), and 10 assume the Xxxxxxx Plans (as defined
below), with the result that all the obligations of Xxxxxxx Resources Corporation under the Xxxxxxx
Plans would become obligations of the Company following the Merger Date.
The purpose of The Xxxxxxxx Companies, Inc. 2001 stock Option Plan (the “Plan”) as set forth
herein, is to implement the provisions of the Merger Agreement by amending and restating the
Xxxxxxx Plans as the Plan to reflect their assumption by the Company, and to provide for the grant
of the Substitute Options pursuant to the Merger Agreement.
SECTION 2. Definitions; Construction.
2.01 Definitions. In addition to the terms defined elsewhere in the Plan, the
following terms as used in the Plan shall have the following meanings when used with initial
capital letters:
2.01.1 “Affiliate” means any entity other than the Company in which the Company owns,
directly or indirectly, at least twenty percent (20%) of the combined voting power of all
classes of stock of such entity or at least twenty percent (20%) of the ownership interests
in such entity.
2.01.2 “Xxxxxxx Award Agreement” means any written agreement, contract or other
instrument or document evidencing a Xxxxxxx Option.
2.01.3 “Xxxxxxx Option” means an option (including an incentive stock option under Code
Section 422) granted under a Xxxxxxx Plan, to the extent such option (after effectuation of
the adjustment contemplated by Section 7.2(a) of the Merger Agreement) was outstanding
immediately prior to the Merger Date.
2.01.4 “Xxxxxxx Plan” means any of the following plans as in effect immediately prior
to the Merger Date: Xxxxxxx Resources Corporation 2000 Stock Option Plan; Xxxxxxx Resources
Corporation 1999 Stock Option Plan; Xxxxxxx Resources Corporation 1997 Stock Option Plan;
Xxxxxxx Resources Corporation Non-Discretionary Stock Option Plan
as Amended March 20, 1997; Xxxxxxx Resources Corporation 1994 Stock Option Plan, Plains
Petroleum Company 1992 Stock Option Plan, Plains Petroleum Company 1989 Stock Option Plan,
and Plains Petroleum Company 1985 Stock Option Plan for Non-Employee Directors. A copy of
each Xxxxxxx Plan is respectively attached hereto as Exhibits A through H.
2.01.5 “Board means the Company’s Board of Directors.
2.01.6 “CEO” means the Chief Executive Officer of the Company, as designated by the
Board.
2.01.7 “Code” means the Internal Revenue Code of 1986, as amended from time to time.
2.01.8 “Company” means The Xxxxxxxx Companies, Inc. together with any successor
thereto.
2.01.9 “Exchange Act” means the Securities Exchange Act of 1934, as amended.
2.01.10 “Fair Market Value” means, as of any date, with respect to Shares at any time
that Shares are listed on the New York Stock Exchange, the mean between the highest and
lowest selling prices in the consolidated transaction reporting system as of that date or
nearest preceding date on which a sale was reported; and, with respect to Shares at any time
that Shares are not listed on the New York Stock Exchange, or property other than Shares,
the Fair Market Value of such Shares or other property determined by such methods or
procedures as shall be established from time to time by the CEO.
2.01.11 “Merger” means the merger among the Company, Resources Acquisition Corp., and
Xxxxxxx Resources Corporation, as defined and described in the Merger Agreement.
2.01.12 “Merger Date” means the time at which the Merger becomes effective (defined in
the Merger Agreement as the “Effective Time”).
2.01.13 “Merger Agreement” means such term as defined in Section 1.01.
2.01.14 “Participant” means a Person holding a Replacement Option.
2.01.15 ‘Person” shall have the meaning assigned in the Exchange Act.
2.01.16 “Replacement Option” means a right, granted under Section 6.02 hereof, to
purchase Shares at a specified price during specified time periods.
2.01.17 “Replacement Option Agreement” means the agreement evidencing a Replacement
Option.
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2.01.18 “Shares” means the common stock of the Company, $1.00 par value, and such other
securities of the Company as may be substituted for Shares pursuant to Section 8.01 hereof.
2.01.19 “Xxxxxxxx Grantee” means any Person who, immediately prior to the Merger Date,
held a Xxxxxxx Option.
2.02 Construction. For purposes of the Plan, the following rules of construction shall
apply:
2.02.1 The word “or” is disjunctive but not necessarily exclusive.
2.02.2 Words in the singular include the plural; words in the plural include the
singular; and words in the neuter gender include the masculine and feminine genders and
words in the masculine or feminine gender include the other and neuter genders.
SECTION 3. Administration.
3.01 The Plan shall be administered by the CEO or, if the Board so designates, by a committee
of the Board. (If the Board designates such a committee, references in the Plan to the CEO shall be
deemed to be references to such committee.). The CEO shall have full and final authority to take
the following actions, in each case subject to and consistent with the provisions of the Merger
Agreement and the Plan, including but not limited to Section 6.02:
| (i) | to designate Participants; | ||
| (ii) | to determine the type or types of Replacement Options to be granted to each Participant; | ||
| (iii) | to determine the number of Replacement Options to be granted, the number of Shares to which a Replacement Option will relate, the terms and conditions of any Replacement Option (including, but not limited to, any exercise price, xxxxx xxxxx or purchase price, any limitation or restriction, any schedule for lapse of limitations, forfeiture restrictions or restrictions on exercisability or transferability, and accelerations or waivers thereof, based in each case on such considerations as the CEO shall determine), and all other matters to be determined in connection with a Replacement Option; | ||
| (iv) | to determine whether, to what extent and under what circumstances a Replacement Option may be settled in, or the exercise price of a Replacement Option may be paid in, cash, Shares, other Replacement Options or other property, or a Replacement Option may be accelerated, vested, canceled, forfeited, exchanged or surrendered; | ||
| (v) | to determine whether, to what extent and under what circumstances cash, |
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| Shares, other Replacement Options, other property and other amounts payable with respect to a Replacement Option shall be deferred either at the election of the CEO or at the election of the Participant; | |||
| (vi) | to prescribe the form of each Replacement Option Agreement, which need not be identical for each Participant; | ||
| (vii) | to adopt, amend, suspend, waive and rescind such rules and regulations and appoint such agents as the CEO may deem necessary or advisable to administer the Plan; | ||
| (viii) | to correct any defect or supply any omissions or reconcile any inconsistency; and to construe and interpret the Plan, the rules and regulations, any Replacement Option Agreement or other instrument entered into or relating to a Replacement Option made under the Plan; including but not limited to the authority to correct any defect, supply any omission and reconcile any inconsistency between the Plan and the applicable Xxxxxxx Plan and the Replacement Option Agreement and the applicable Xxxxxxx Award Agreement; and | ||
| (ix) | to make all other decisions and determinations as may be required under the terms of the Plan or as the CEO may deem necessary or advisable for the administration of the Plan. |
Any action of the CEO with respect to the Plan shall be final, conclusive and binding on all
Persons, including the Company, Affiliates, Participants, any Person claiming any rights under the
Plan from or through any Participant, and stockholders. The express grant of any specific power to
the CEO, and the taking of any action by the CEO, shall not be construed as limiting any power or
authority of the CEO. The CEO may delegate to officers or managers of the Company or of any
Affiliate the authority, subject to such terms as the CEO shall determine, to take such actions and
perform such functions under the Plan as the CEO may specific, including, but not limited to,
administrative functions. The CEO shall be entitled to, in good faith, rely or act upon any report
or other information furnished to it by any officer, manager or other employee of the Company or
any Affiliate, the Company’s independent certified public accountants, or any executive
compensation consultant or other professional retained by the Company to assist in the
administration of the Plan. Any and all powers, authorizations and discretions granted by the Plan
to the CEO (or delegated by the CEO) shall likewise be exercisable at any time by the Board.
SECTION 4. Shares Subject to the Plan.
4.01 An aggregate number of Shares is hereby made available and is reserved for delivery on
account of the exercise of Replacement Options equal to the number of Shares determined pursuant to
the formulas set forth in Section 6.02 to be required to replace Xxxxxxx Options held by Xxxxxxxx
Grantees as of the Merger Date; provided that, subject to adjustment as provided in Section 8.01
hereof, the total number of Shares reserved and available for
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distribution under the Plan shall not exceed 2,200,000 Shares.
Any Shares distributed pursuant to a Replacement Option may consist, in whole or in part, of
authorized and unissued Shares or of treasury Shares, including Shares repurchased by the Company
for purposes of the Plan; provided, however, that if, at the time Shares are to be distributed
under the Plan to a Participant (including upon exercise of a Replacement Option), the Shares are
listed on the New York Stock Exchange and such Participant is a “director” or “officer” of the
Company within the meaning of Sections 312.03 and 703.09 of the Listed Company Manual of the New
York Stock Exchange, such that the Participant’s acquisition of Stock originally issued by the
Company would be subject to the requirement of stockholder approval under applicable Exchange
rules, the Shares to be distributed to such Participant shall consist only of treasury Shares then
held by the Company. The Company shall use its best efforts to obtain and have available, at any
time that the such treasury Shares are required to be distributed in connection with a Replacement
Option, a sufficient number of treasury Shares, not reserved for other uses, to be able to make
prompt delivery in connection with any such Replacement Option.
SECTION 5. Eligibility.
5.01
Replacement Options maybe granted only to Xxxxxxxx Grantees.
SECTION 6. Specific Terms of Replacement Options.
6.01 General. Subject to the terms of the Plan and any applicable Replacement Option
Agreement, Replacement Options shall be granted as provided in this Section 6 to replace and in
substitution for those opportunities and benefits (under the Xxxxxxx Plans) of Xxxxxxxx Grantees.
Immediately prior to such grant, the Xxxxxxx Option it replaces shall terminate and be of no
further effect.
6.02 Replacement Options. Effective as of immediately after the Merger Date, the CEO
shall grant Replacement Options to each Xxxxxxxx Grantee, on the following terms and conditions:
| (i) | Exercise Price. The exercise price per Share of a Replacement Option shall be the quotient obtained by dividing the exercise price per share under the Xxxxxxx Option it replaces by 1.767, with such quotient rounded up to the nearest one-tenth of one cent, as determined by the CEO. | ||
| (ii) | Number of Shares. The number of Shares subject to the Replacement Option shall be the product of the number of shares of common stock of Xxxxxxx Resources Corporation, par value $0.01 per share subject to the Xxxxxxx Option it replaces, multiplied by 1.767, with such product rounded to the nearest full share, or if there shall not be a nearest share, the next greater full share, as determined by the CEO. | ||
| (iii) | Replacement Option Terms. Each Replacement Option shall have substantially the same terms and conditions as the Xxxxxxx Option it replaces (other than the exercise |
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| price and the number of shares and the fact that it is exercisable for Shares, but including but not limited to the remaining option term, vesting, (including, if applicable, accelerated vesting), conditions of exercisability), employment requirements, directorship requirement, requirements for acknowledgements and warranties from the Participant, sale restrictions on the Shares, and the methods of and limits on exercise of the Replacement Option), and not give the Participant any additional benefits he or she did not have, under the corresponding Xxxxxxx Option, as determined by the CEO. Subject to the foregoing, the CEO shall determine the time or times at which a Replacement Option may be exercised, the methods by which such exercise price may be paid or deemed to be paid, and the permitted form of such payment. | |||
| (iv) | Grant of Replacement Incentive Stock Options. At the time of the grant of any Replacement Option, the CEO shall, if such Replacement Option replaces an incentive stock option granted under a Xxxxxxx Plan (“ISO Replacement Option”). designate that such Replacement Option shall be made subject to additional restrictions to permit it to qualify insofar as reasonably possible as an “incentive stock option” under the requirements of Section 422 of the Code. |
SECTION 7. General Terms of Replacement Options.
7.01 Limits on Transfer of Replacement Options. Beneficiaries. No right or
interest of a Participant in, or relating to, any Replacement Option shall be pledged, encumbered
or hypothecated to or in favor of any Person other than the Company or an Affiliate, or shall be
subject to any lien, obligation or liability of such Participant to any Person other than the
Company or an Affiliate. Unless otherwise determined by the CEO or permitted under the relevant
Xxxxxxx Option, (consistent with Section 422 of the Code and the requirements for registration of
offers and sales of Shares under the Plan with the Securities and Exchange Commission on a
registration statement on Form S-8, as then in effect, or such other such registration form as may
then be available, no Replacement Option shall be assignable or transferable by a Participant
otherwise than by will or the laws of descent and distribution; provided, however, that, if so
determined by the CEO, a Participant may, in the manner established by the CEO, designate a
beneficiary or beneficiaries to exercise the rights of the Participant upon the death of the
Participant. A beneficiary, guardian, legal representative or other Person claiming any rights
under the Plan from or through any Participant shall be subject to all the terms and conditions of
the Plan and any Replacement Option Agreement applicable to such Participant as well as any
additional restrictions or limitations deemed necessary or appropriate by the CEO. An ISO
Replacement Option shall be exercisable by the guardian, legal representative, beneficiary or other
Person only if a ruling from the Internal Revenue Service or an opinion of counsel is obtained to
the effect that neither the grant nor the exercise of such power is violative of Section 422 of the
Code. Any opinion of counsel must be acceptable to the CEO both with respect to the counsel
rendering the opinion and with respect to the form of opinion.
7.02 Registration arid Listing Compliance. The Company shall have no obligation to
make any payment or distribute Shares with respect to any Replacement Option in a transaction
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subject to the registration requirements of the Securities Act of 1933, as amended, or any
state securities laws or subject to a listing requirement under any listing agreement between the
Company and any national securities exchange, and no Replacement Option shall confer upon any
Participant any rights to such delivery or distribution, until such laws and contractual
obligations of the Company have been complied within all material respects. The Company shall have
no obligation to register Shares or the resale of the Shares under the Securities Act of 1933, and
in the absence of such registration the Shares may not be sold unless they are subject to an
exemption from registration from the Security Act of 1933.
7.03 Stock Certificates. All certificates for Shares delivered under the terms of the
Plan shall be subject to such stop-transfer orders and other restrictions as the CEO may deem
advisable under federal or state securities laws, rules and regulations thereunder, and the rules
of any national securities exchange or automated quotation system on which Shares are listed or
quoted. The CEO may cause a legend or legends to be placed on any such certificates to make
appropriate reference to such restrictions or any other restrictions or limitations that may be
applicable to Shares. in addition, during any period in which Replacement Options or Shares are
subject to restrictions or limitations under the terms of the Plan or any Replacement Option
Agreement, or during any period during which delivery or receipt of a Replacement Option or Shares
has been deferred by the CEO or a Participant, the CEO may require any Participant to enter into an
agreement providing that certificates representing Shares issuable or issued pursuant to a
Replacement Option shall remain in the physical custody of the Company or such other Person as the
CEO may designate.
SECTION 8. Adjustment Provisions.
8.01 In the event that the CEO shall determine that any dividend or other distribution
(whether in the form of cash, Shares, other securities or other property), recapitalization, stock
split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase, exchange of Shares or other securities of the Company, or other similar corporate
transactions or event affects the Shares such that an adjustment is determined by the CEO to be
appropriate in order to prevent dilution or enlargement of Participants’ rights under the Plan,
then the CEO shall, in such manner as it may deem equitable, adjust any or all of (i) the number
and kind of Shares which may thereafter be issued in connection with Replacement Options; (ii) the
number and kind of Shares issued or issuable in respect of outstanding Replacement Options; and
(iii) the exercise price, xxxxx xxxxx or purchase price relating to any Replacement Option or, if
deemed appropriate, make provisions for a cash payment with respect to any outstanding Replacement
Option. In addition, the CEO is authorized to make adjustments in the terms and conditions of, and
the criteria in, Replacement Options in recognition of unusual or nonrecurring event (including,
without limitation, events described in the preceding sentence) affecting the Company or any
Affiliate or the financial statements of the Company or any Affiliate, or in response to changes in
applicable laws, regulations or accounting principles.
SECTION 9. Amendments to and Termination of the Plan.
9.01 The Board may amend, alter, suspend, discontinue or terminate the Plan without the
consent of stockholders or Participants; provided, however, that, without the consent of a
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Participant, no amendment, alteration, suspension, discontinuation or termination of the Plan
may materially and adversely affect the rights of such Participant under any Replacement Option
theretofore granted to him. The CEO may waive any conditions or rights under, amend any terms of,
or amend, alter, suspend, discontinue or terminate any Replacement Option theretofore granted,
prospectively or retrospectively; provided, however, that, without the consent of a Participant, no
amendment, alteration, suspension, discontinuation or termination of any Replacement Option may
materially and adversely affect the rights of such Participant under any Replacement Option
theretofore granted to him.
Unless earlier terminated by the Board, the Plan shall terminate on the earlier of (1) the
tenth (10th) anniversary of the effective date (set forth in Section 11.01) or (2) when
no Shares remain reserved and available for issuance and the Company has no further obligation with
respect to any Replacement Option granted under the Plan.
SECTION 10. General Provisions.
10.01 No Rights to Replacement Options; No Stockholder Rights. Except as set forth in
the Merger Agreement or in Section 6.02 of the Plan, no Xxxxxxxx Grantee, Participant, director, or
employee shall have any claim to be granted any Replacement Option under the Plan, and there is no
obligation for uniformity of treatment of Xxxxxxxx Grantees, Participants, directors and employees,
except as provided in any other compensation arrangement. No Replacement Option shall confer on any
Participant any of the rights of a stockholder of the Company unless and until Shares are in fact
issued to such Participant in connection with such Replacement Option.
10.02 Withholding. The Company or any Affiliate is authorized to withhold from any
Replacement Option granted or any payment due under the Plan, including from a distribution of
Shares, amounts of withholding taxes due with respect to a Replacement Option, its exercise or any
payment thereunder, and to take such other action as the CEO may deem necessary or advisable to
enable the Company and Participants to satisfy obligations for the payment of such taxes. This
authority shall include authority to withhold or receive Shares, Replacement Options or other
property and to make cash payments in respect thereof in satisfaction of such tax obligations. In
no event shall the repurchase of Shares for tax withholding exceed the number required to satisfy
the employer’s minimum statutorily withholding requirements.
10.03 No Right to Employment. Nothing contained in the Plan or any Replacement Option
Agreement shall confer, and no grant of a Replacement Option shall be construed as conferring, upon
any Xxxxxxxx Grantee Participant any right continue in the service of the Company or any Affiliate
or to interfere in any way with the right of the Company or any Affiliate to terminate his
employment at any time or increase or decrease his compensation from the rate in existence at the
time of granting of a Replacement Option, except as provided in any other compensation arrangement.
10.04 Unfunded Status of Replacement Options: Creation of Trusts. The Plan is
intended to constitute an “unfunded” plan for incentive and deferred compensation. With respect to
any payments not yet made to a Participant pursuant to a Replacement Option, nothing
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contained in the Plan or any Replacement Option shall give any such Participant any rights
that are greater than those of a general creditor of the Company; provided, however, that the CEO
may authorize the creation of trusts or make other arrangements to meet the Company’s obligations
under the Plan to deliver cash, Shares or other property pursuant to any Replacement Option; which
trusts or other arrangements shall be consistent with the “unfunded” status of the Plan unless the
CEO otherwise determines.
10.05 No Limit on Other Compensatory Arrangements. Nothing contained in the Plan
shall prevent the Company or any Affiliate from adopting other or additional compensation
arrangements (which relate to Replacement Options under the Plan), and such arrangements may be
either generally applicable or applicable only in specific cases. Notwithstanding anything in the
Plan to the contrary, the terms of each Replacement Option shall be construed so as to be
consistent with such other arrangements in effect at the time of the Replacement Option.
10.06 No Fractional Shares. No fractional Shares shall be issued or delivered
pursuant to the Plan or any Replacement Option. The CEO shall determine whether cash, other
Replacement Options or other property shall be issued or paid in lien of fractional Shares or any
rights thereto shall be forfeited or otherwise eliminated.
10.07 Governing Law. The validity, interpretation, construction and effect of the
Plan and any rules and regulations relating to the Plan shall be governed by the laws of the State
of Delaware (without regard to the conflicts of laws thereof), and applicable federal law.
10.08 Severability. If any provision of the Plan is or becomes or is deemed invalid,
illegal or unenforceable in any jurisdiction, or would disqualify the Plan or any Replacement
Option under any law deemed applicable by the CEO, such provision shall be construed or deemed
amended to conform to applicable laws or if it cannot be construed or deemed amended without, in
the determination of the CEO, materially altering the intent of the Plan, it shall be deleted and
the remainder of the Plan shall remain in full force and effect; provided, however, that, unless
otherwise determined by the CEO, the provision shall not be construed or deemed amended or deleted
with respect to any Participant whose rights and obligations under the Plan are not subject to the
law of such jurisdiction or the law deemed applicable by the CEO.
SECTION 11. Effective Date.
11.01 The Plan was approved by the Board on July 22, 2001 and became effective on that date.
| THE XXXXXXXX COMPANIES, INC. |
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| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Senior Vice President, | ||||
| Human Resources & Administration | ||||
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