EXHIBIT 10.2(e)
HECLA MINING COMPANY
NON-QUALIFIED STOCK OPTION AGREEMENT
(UNDER THE KEY EMPLOYEE DEFERRED COMPENSATION PLAN)
THIS AGREEMENT, dated as of _________________, 20______, is entered
into between Hecla Mining Company, a Delaware corporation (the "Company"), and
Ronald W. Clayton, an officer or other key employee of the Company or an
affiliate of the Company ("Participant").
WHEREAS, the Participant has made an irrevocable election in writing
under the Hecla Mining Company Key Employee Deferred Compensation Plan (the
"Plan") to allocate $___________ of the amount credited to Participant's
Investment Account (as defined in the Plan) to the opportunity to have such
amount payable in the form of a discounted stock option in accordance with the
provisions of the Plan; and
WHEREAS, the Company, pursuant to the Plan, wishes to grant stock
options for the purchase of Common Stock of the Company ("Common Stock"), par
value $0.25 per share, to Participant pursuant to the terms and conditions
contained in this Agreement and the Plan.
NOW THEREFORE, in consideration of the premises and agreements set
forth herein, the parties hereto hereby agree as follows:
1. Grant of Option.
The Company, effective as of the date of this Agreement, hereby grants
to Participant the right and option (the "Option") to purchase all or any part
of an aggregate of ________ shares of Common Stock (the "Shares") at the price
of $_______ per share on the terms and conditions set forth in this Agreement.
The Option is not intended to be an incentive stock option within the meaning of
Section 422 of the Internal Revenue Code of 1986, as amended.
2. Exercisability and Term of Option.
(a) The Option may not be exercised prior to ___________, 20____.
Commencing on that date, the Option may be exercised, in whole or in part, at
any time, or from time to time, by Participant prior to its termination. The
Option shall terminate on _____________, 20_____, or such earlier date as
prescribed herein.
(b) Notwithstanding the vesting provision contained in Section 2(a)
above, but subject to the other terms and conditions set forth herein, the
Option may be exercised, in whole or in part, at any time, or from time to time,
following the occurrence of a Change in Control of the Company.
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(c) For the purposes of this Agreement, a "Change in Control" shall be
deemed to have occurred upon any of the following events:
(i) Any individual, entity or group (within the meaning of
Section 13(d)(3) or Section 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")) (a "Person") becomes the
"beneficial owner" (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) of 20% or more of either (a) the then outstanding
shares of Common Stock of the Company (the "Outstanding Company Common
Stock") or (b) the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities"); provided,
however, that for purposes of this subsection (i), the following
acquisitions shall not constitute a Change in Control: (a) any
acquisition directly from the Company, or approved by the Incumbent
Directors, following which such Person owns not more than 40% of the
Outstanding Company Common Stock or the Outstanding Company Voting
Securities, (b) any acquisition by an underwriter temporarily holding
securities pursuant to an offering of such securities, (c) any
acquisition by the Company, (d) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company, or (e) any acquisition pursuant
to a transaction which complies with clauses (a), (b), and (c) of
subsection (iii) below; or
(ii) Individuals who, as of January 1, 2002, constitute the
Board of Directors of the Company (the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board; provided,
however, that any individual becoming a director subsequent to January
1, 2002, whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of the
Incumbent Directors then comprising the Board (either by a specific
vote or by approval of the proxy statement of the Company in which such
person is named as a nominee for director, without written objection to
such nomination) shall be considered as though such individual were a
member of the Incumbent Board, but excluding, for this purpose, any
such individual whose initial assumption of office occurs as a result
of an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other
than the Board; or
(iii) Consummation of a reorganization, merger or
consolidation (or similar corporate transaction) involving the Company
or any of its subsidiaries, a sale or other disposition of all or
substantially all of the assets of the Company or the acquisition of
assets or stock of another entity (a "Business Combination"), in each
case, unless, immediately following such Business Combination, (a) more
than 60% of, respectively, the then outstanding shares of Common Stock
and the total voting power of (i) the corporation resulting from such
Business Combination (the "Surviving Corporation"), or (ii) if
applicable, the ultimate
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parent corporation that directly or indirectly has beneficial ownership
of 80% of the voting securities eligible to elect directors of the
Surviving Corporation (the "Parent Corporation"), is represented by
Outstanding Company Common Stock and Company Voting Securities that
were outstanding immediately prior to such Business Combination (or, if
applicable, is represented by shares into which such Outstanding
Company Common Stock or Outstanding Company Voting Securities, as the
case may be, were converted pursuant to such Business Combination), and
such beneficial ownership of Common Stock or voting power among the
holders thereof is in substantially the same proportion as the
beneficial ownership of Outstanding Company Common Stock and the voting
power of such Company Voting Securities among the holders thereof
immediately prior to the Business Combination, (b) no person (other
than any employee benefit plan or related trust) sponsored or
maintained by the Surviving Corporation or the Parent Corporation) is
or becomes the beneficial owner, directly or indirectly, of 20% or more
of the outstanding shares of Common Stock and the total voting power of
the outstanding voting securities eligible to elect directors of the
Parent Corporation (or, if there is no Parent Corporation, the
Surviving Corporation), unless such acquisition is pursuant to a
Business Combination that is an acquisition by the Company or a
subsidiary of the Company of the assets or stock of another entity that
is approved by the Incumbent Directors, following which such person
owns not more than 40% of such outstanding shares and of voting power,
and (c) at least a majority of the members of the board of directors of
the Parent Corporation (or, if there is no Parent Corporation, the
Surviving Corporation) following the consummation of the Business
Combination were Incumbent Directors at the time of the Board's
approval of the execution of the initial agreement providing for such
Business Combination; or
(iv) Approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
Notwithstanding the foregoing, a Change in Control of the Company shall not be
deemed to occur solely because any person acquires beneficial ownership of more
than 20% of the Outstanding Company Common Stock or Outstanding Company Voting
Securities as a result of the acquisition of Outstanding Company Common Stock or
Outstanding Company Voting Securities by the Company which reduces the number of
shares of Outstanding Company Common Stock or Outstanding Company Voting
Securities; provided, that if after such acquisition by the Company such person
becomes the beneficial owner of additional shares of Outstanding Company Common
Stock or Outstanding Company Voting Securities that increases the percentage of
Outstanding Company Common Stock or Outstanding Company Voting Securities
beneficially owned by such person, a Change in Control of the Company shall then
occur.
3. Effect of Termination of Employment.
The Option shall terminate and may no longer be exercised if a
Participant ceases to be employed by the Company or an affiliate of the Company,
except that:
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(a) If the Company or an affiliate of the Company terminates a
Participant's employment for "Cause" (as defined below), Participant may
exercise the Option at any time within 30 days following the date of such
termination of employment to the extent that the Option was exercisable by
Participant on the date such termination. For purposes of this Agreement, Cause
shall mean:
(i) the willful and continued failure by Participant to
substantially perform Participant's duties with the Company or an
affiliate of the Company (other than any such failure resulting from
Participant's incapacity due to physical or mental illness) after a
written demand for substantial performance is delivered to Participant
specifically identifying the manner in which Participant has not
substantially performed Participant's duties;
(ii) the engaging by Participant in willful misconduct which
is demonstrably injurious to the Company or an affiliate of the Company
monetarily or otherwise; or
(iii) the conviction of Participant of a felony.
(b) If the Company or an affiliate of the Company terminates
Participant's employment for any reason other than by reason of: Cause,
"Disability" (as defined below), "Retirement" (as defined below) or death,
Participant may exercise the Option at any time within one (1) year after such
termination of employment to the extent that the Option was exercisable by
Participant on the date of such termination, but not after the expiration of the
term of the Option. If Participant is employed by an affiliate of the Company,
Participant shall be deemed to be terminated from employment if such affiliate
ceases to be an affiliate of the company and Participant does not immediately
thereafter become an employee of the Company or other affiliate of the Company.
Temporary absences from employment because of illness, vacation or leave of
absence and transfers among the Company and its affiliates shall not be
considered a termination of employment.
(c) If Participant's employment is terminated by reason of "Disability"
or "Retirement" (each as defined below), Participant may exercise the Option at
any time within five (5) years after such termination of employment to the
extent that the Option was exercisable by participant on the date of such
termination, but not after the expiration of the term of the Option. If
Participant shall die following any such termination, the Option may be
exercised at any time within one (1) year after the date of Participant's death
by the personal representatives or administrators of Participant or by any
person or persons to whom the Option has been transferred by will or the
applicable laws of descent and distribution, subject to the condition that the
Option shall not be exercisable after the expiration of the term of the Option.
(d) If Participant should die while in the employ of the Company or an
affiliate of the Company, the Option may be exercised at any time within one (1)
year after the date of Participant's death, to the extent that the Option was
exercisable by Participant on the
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date of death, by the personal representatives or administrators of Participant
or by any person or persons to whom the Option has been transferred by will or
the applicable laws of descent and distribution, subject to the condition that
the Option shall not be exercisable after the expiration of the term of the
Option.
(e) For purposes of this paragraph 3 and this Agreement:
(i) Disability shall mean a period of disability during which
Participant qualifies for benefits under the Company's long-term
disability plan, or, if Participant does not participate in such a
plan, a period of disability during which Participant would have
qualified for benefits under such a plan had Participant been a
participant in such a plan, as determined in the sole discretion of the
Compensation Committee of the Board of Directors of the Company. If the
Company does not sponsor such a plan or discontinues to sponsor such a
plan, a Disability shall be determined by the Compensation Committee in
its sole discretion.
(ii) Retirement shall mean retirement from active employment
with the Company or an affiliate of the Company at or after age
sixty-five (65) or retirement from active employment with the Company
or an affiliate of the Company pursuant to the attainment of an early
retirement age determined under the early retirement provisions of the
applicable pension plan.
4. Method of Exercising Option.
(a) Subject to the terms and conditions of this Agreement, the Option
may be exercised by written notice to the Company, to the attention of the
Secretary. Such notice shall state the election to exercise the Option, the
number of shares of the Company Common Stock as to which the Option is being
exercised and the manner of payment and shall be signed by the person or persons
so exercising the Option. The notice shall be accompanied by payment in full of
the exercise price for all shares designated in the notice. To the extent that
the Option is exercised after Participant's death, the notice of exercise shall
also be accompanied by an original copy of a death certificate and appropriate
proof of the right of such person or persons to exercise the Option.
(b) Payment of the exercise price shall be made to the Company through
one or a combination of the following methods:
(i) delivery of a certified, bank or personal check payable to
the Company; or
(ii) delivery of shares of Common Stock acquired by
Participant more than six (6) months prior to the date of exercise
having a "Fair Market Value" (as defined below) on the date of exercise
equal to the Option exercise price. Participant shall duly endorse all
certificates delivered to the company in blank and shall represent and
warrant in writing that Participant is the owner of the
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shares so delivered, free and clear of all liens, encumbrances,
security interests and restrictions. For purposes of this Agreement,
Fair Market Value shall mean, as of any given date, the mean between
the highest and lowest reported sales prices of the Common Stock on the
New York Stock Exchange Composite Tape or, if not listed on such
exchange, on any other national securities exchange on which the Common
Stock is listed or on the Nasdaq Stock Market. If there is no regular
public trading market for such Common Stock, the Fair Market Value of
the Common Stock shall be determined in good faith by the Compensation
Committee of the Board of Directors of the Company.
5. Income Tax Withholding.
In order to provide the Company with the opportunity to claim the
benefit of any income tax deduction which may be available to it upon the
exercise of the Option, and in order to comply with all applicable federal,
state, and local income tax laws or regulations, the Company may take such
action as it deems appropriate to ensure that all applicable federal, state, and
local income, withholding, social security, payroll or other taxes, which are
the sole and absolute responsibility of Participant, are withheld or collected
from Participant. The Company is authorized to automatically withhold that
number of shares of Company Common Stock, determined by the Fair Market Value of
the shares on the date of exercise of the Option, required to pay the applicable
withholding taxes in connection with such exercise, unless, prior to the
exercise of the Option, the Company receives written notice, addressed to the
Secretary of the Company, from Participant indicating that Participant elects to
pay the tax withholding amount related to the issuance of shares upon such
exercise in cash, and the Company promptly receives such cash payment upon
exercise of the Option.
6. Adjustments.
In the event that the Compensation Committee of the Board of Directors
of the Company shall determine that any stock dividend or split,
recapitalization, merger, consolidation, combination or exchange of shares, or
other similar corporate change, effects the shares covered by the Option such
that an adjustment is determined by the Compensation Committee to be appropriate
in order to prevent dilution or enlargement of the benefits or potential
benefits intended to be made available under this Agreement, then the
Compensation Committee shall, in such manner as it may deem equitable, in its
sole discretion, adjust any or all of the number and type of shares covered by
the Option and the exercise price of the Option.
7. Securities Matters.
No shares of Company Common Stock shall be issued hereunder prior to
such time as counsel to the Company shall have determined that the issuance of
the shares will not violate any federal or state securities or other laws, rules
or regulations. The Company shall not be required to deliver any shares of
Company Common Stock until the requirements of any federal or state securities
or other laws, rules or regulations
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(including the rules of any securities exchange) as may be determined by the
Company to be applicable are satisfied.
8. General Provisions.
(a) Interpretations. This Agreement is subject in all respects to the
terms of the Plan. Terms used herein which are defined in the Plan shall have
the respective meanings given to such terms in the Plan, unless otherwise
defined herein. In the event that any provision of this Agreement is
inconsistent with the terms of the Plan, the terms of the Plan shall govern. Any
question of administration or interpretation arising under this Agreement shall
be determined by the Compensation Committee of the Board of Directors of the
Company, and such determination shall be final, conclusive and binding upon all
parties in interest.
(b) No Rights as a Shareholder. Neither Participant nor Participant's
legal representatives shall have any of the rights and privileges of a
shareholder of the Company with respect to the shares of Company Common Stock
subject to the Option unless and until certificates for such shares of Company
Common Stock shall have been issued upon exercise of the Option.
(c) No Right to Employment. Nothing in this Agreement or the Plan shall
be construed as giving Participant the right to be retained as an employee of
the Company or any affiliate of the Company. In addition, the Company or an
affiliate of the Company may at any time dismiss Participant from employment,
free from any liability or any claim under this Agreement, unless otherwise
expressly provided in this Agreement.
(d) Option Not Transferable. The Option shall not be transferable other
than by will or by the laws of descent and distribution. During Participant's
lifetime the Option shall be exercisable only by Participant or, if permissible
under applicable law, by Participant's guardian or legal representative. The
Option may not be anticipated, alienated, transferred, encumbered, sold,
assigned, pledged (as collateral for a loan or as security for the performance
of an obligation, or for any other purpose), or subjected to any charge or legal
process and any purported sale, assignment, pledge or encumbrance of the Option
shall be void and unenforceable against the Company.
(e) Reservation of Shares. The Company shall at all times during the
term of the Option reserve and keep available such number of shares of Company
Common Stock as will be sufficient to satisfy the requirements of this
Agreement.
(f) Headings. Headings are given to the section and subsections of this
Agreement solely as a convenience to facilitate reference. Such headings shall
not be deemed in any way material or relevant to the construction or
interpretation of this agreement or any provision hereof.
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(g) Governing Law. The internal law, and not the law of conflicts, of
the State of Delaware will govern all questions concerning the validity,
construction and effect of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
HECLA MINING COMPANY
By:
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President or Vice President
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Participant
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