Exhibit 4.5
FORM OF NONQUALIFIED STOCK OPTION
NONQUALIFIED STOCK OPTION AGREEMENT dated as of _________________,
between XXXXXXX CORPORATION, a Delaware corporation (the
"Corporation"), and __________________, an employee of the Corporation
or one of its subsidiaries (the "Holder").
WHEREAS, the Corporation desires, by affording the Holder an
opportunity to purchase shares of the Corporation's Common Stock as hereinafter
provided, to carry out the purposes of the Corporation's Revised Stock Incentive
Plan (the "Plan");
WHEREAS, the Management Resources and Compensation Committee of the
Board of Directors of the Corporation (the "Committee") has duly made all
determinations necessary or appropriate to the grant hereof;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth and for other good and valuable consideration,
receipt of which is hereby acknowledged, the parties hereto have agreed, and do
hereby agree, as follows:
1. The Corporation hereby irrevocably grants to the Holder, as a matter
of separate agreement and not in lieu of salary or any other compensation for
services, the right and option (the "Option"), to purchase ________ shares of
Common Stock of the Corporation on the terms and conditions herein set forth.
2. For each of said shares purchased, the Holder shall pay to the
Corporation $________ per share (the "Option Price").
3. Subject to the provisions of paragraphs 7, 8 and 9 hereof, this
Option shall be for a term of ten years from the date of the Agreement and shall
become exercisable as to one-third of the shares covered by this Option on the
first anniversary hereof, as to two-thirds of the shares covered by this Option
on the second anniversary hereof (reduced by such number of shares as may have
theretofore been purchased hereunder after the first anniversary), and as to all
shares covered by this Option and not theretofore purchased on the third
anniversary hereof. The Corporation shall not be required to issue any
fractional shares upon exercise of this Option, and any fractional interests
resulting from the calculation of the number of shares in respect of which this
Option may be exercised prior to the third anniversary hereof shall be rounded
down to the nearest whole share. Except as provided in paragraphs 7, 8 and 9
hereof, this Option may not be exercised unless the Holder shall, at the time of
exercise, be an employee of the Corporation or one of its "subsidiaries", as
defined in the Plan.
4. This Option may be exercised only by one or more notices in writing
of the
Holder's intent to exercise this Option, accompanied by payment by check to the
Corporation in an amount equal to the aggregate Option Price of the total number
of whole shares then being purchased. Unless otherwise specified by the
Corporation, each such notice and check shall be delivered to Xxxxxx X. Xxxxxx,
Manager of Administrative Services, at the principal office of the Corporation
or, at the risk of the Holder, mailed to said Xxxxxx X. Xxxxxx at said office.
5. Following the exercise of this Option, the Corporation will advise
the Holder of the applicable Federal, state and FICA taxes required to be
withheld by reason of such exercise. Thereupon, the Holder shall forthwith
deliver to the Corporation a check payable to the Corporation or the subsidiary
of the Corporation which employs the Holder, as the case may be, representing
said taxes.
6. This Option is not transferable by the Holder otherwise than by will
or the laws of descent and distribution and may be exercised, during the
lifetime of the Holder, only by the Holder.
7. In the event of the termination of employment of the Holder with the
Corporation or one of its subsidiaries, other than by reason of Retirement (as
defined in the Plan) or death, the Holder may exercise this Option at any time
within three months (or one year, if the Holder is permanently and totally
disabled within the meaning of Section 22(e)(3) of the Federal Internal Revenue
Code) after such termination of employment, but only if and to the extent this
Option was exercisable at the date of termination, and in no event after the
date on which this Option would otherwise terminate; provided, however, if such
termination of employment was for cause or a voluntary termination without the
written consent of the Corporation, then this Agreement shall be of no further
force or effect and all rights of the Holder under this Option shall thereupon
cease.
8. In the event of the termination of employment of the Holder with the
Corporation or one of its subsidiaries by reason of Retirement, then all shares
subject to this Option shall be fully exercisable, and, subject to paragraph 9
hereof, this Option shall be exercisable by the Holder at any time up to and
including (but not after) the date on which this Option would otherwise
terminate.
9. In the event of the death of the Holder (i) while employed by the
Corporation or one of its subsidiaries or after Retirement, (ii) within three
months after termination of the Holder's employment (other than a termination by
reason of permanent and total disability within the meaning of Section 22(e)(3)
of the Federal Internal Revenue Code), or (iii) within one year after
termination of the Holder's employment by reason of such disability, then all
shares subject to this Option shall be fully exercisable and this Option may be
exercised by the legatees under the last will of the Holder, or by the personal
representatives or distributees of the Holder, at any time within a period of
one year after the Holder's death, but in no event after the date on which this
Option would otherwise terminate.
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10. If, prior to the termination of this Option, the number of
outstanding shares of Common Stock of the Corporation shall be increased or
decreased by reason of a stock split, stock dividend, reverse stock split or
combination thereof, then the number of shares at the time subject to this
Option, the number of shares reserved for issuance pursuant to exercise hereof,
and the Option Price per share shall be proportionately adjusted without any
change in the aggregate Option Price therefor.
11. If, prior to the termination of this Option, the outstanding shares
of Common Stock of the Corporation shall be affected by any change other than
those specifically mentioned in the preceding paragraph (e.g., by reason of a
spin-off, split-up, recapitalization, merger, consolidation, combination or
exchange of shares), then the aggregate number and class of shares thereafter
subject to this Option and the Option Price thereof, and the number and class of
shares reserved for issuance pursuant to exercise hereof, may be appropriately
adjusted in such manner as the Committee shall in its sole discretion determine
to be equitable and consistent with the purposes of the Plan. Such determination
shall be conclusive for all purposes of this Option.
12. This Option and each and every obligation of the Corporation
hereunder are subject to the requirement that if at any time the Corporation
shall determine, upon advise of counsel, that the listing, registration, or
qualification of the shares covered hereby upon any securities exchange or under
any state or Federal law, or the consent or approval of any governmental
regulatory body, is necessary or desirable as a condition of or in connection
with the granting of this Option or the purchase of shares hereunder, this
Option may not be exercised in whole or in part unless and until such listing,
registration, qualification, consent or approval shall have been effected or
obtained free of any conditions not acceptable to the Board of Directors of the
Corporation.
13. In the event of a "change in control" or a "Pooling Transaction",
as those terms are defined in the Plan, the Holder shall have all of the rights
specified in Paragraph 10(B) and, if applicable, Paragraph 10(D) of the Plan;
provided, however, that the acquisition or ownership by PepsiCo, Inc., together
with its subsidiaries and affiliates, of Common Stock of the Corporation or its
successor by merger constituting less than 50% of the total number of shares of
such Common Stock outstanding shall not constitute a "change in control" for any
purpose of Paragraph 10 of the Plan.
14. Nothing herein contained shall confer on the Holder any right to
continue in the employment of the Corporation or any of its subsidiaries or
interfere in any way with the right of the Corporation or any subsidiary to
terminate the Holder's employment at any time; confer on the Holder any of the
rights of a shareholder with respect to any of the shares subject to this Option
until such shares shall be issued upon the exercise of this Option; affect the
Holder's right to participate in and receive benefits under and in accordance
with the provisions of any pension, profit-sharing, insurance, or other employee
benefit plan or program of the Corporation or any of its subsidiaries; or limit
or otherwise affect the right of the Board of
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Directors of the Corporation (subject to any required approval by the
shareholders) at any time or from time to time to alter, amend, suspend or
discontinue the Plan and the rules for its administration; provided, however,
that no termination or amendment of the Plan may, without the consent of the
Holder, adversely affect the Holder's rights under this Option.
IN WITNESS WHEREOF, this Nonqualified Stock Option Agreement has been
duly executed by the Corporation and the Holder as of the day and year first
above written.
XXXXXXX CORPORATION
By:
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Senior Vice President
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Holder
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ADDENDUM TO NONQUALIFIED STOCK OPTION FOR ELECTED OFFICERS OF
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XXXXXXX CORPORATION AND PEPSI-COLA GENERAL BOTTLERS, INC.
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Notwithstanding anything herein which would otherwise limit
the transferability of this Option, this Option may be
transferred by the Holder to (i) the spouse, children or
grandchildren of the Holder ("Immediate Family Members"); (ii)
a trust or trusts for the exclusive benefit of such Immediate
Family Members; or (iii) a partnership in which such Immediate
Family Members are the only partners, in any case provided
that (x) there is no consideration for any such transfer and
(y) subsequent transfers of transferred Options shall be
prohibited except transfers to those persons or entities to
which the Holder could have transferred this Option or
transfers otherwise in accordance with this Option. Following
transfer, this Option shall continue to be subject to the same
terms and conditions as were applicable immediately prior to
transfer, except that the term "Holder", for the purposes of
any permitted exercise of this Option, shall be deemed to
refer to the transferee. The Corporation disclaims any
obligation to provide notice to a transferee of circumstances
(including, without limitation, termination of employment)
which may result in early termination of this Option.
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