Exhibit 10.2
INCENTIVE
STOCK OPTION AGREEMENT
This Option Agreement (the "Agreement") is made as of the ____ day of
______________, 200_, between Mueller Industries, Inc., a Delaware corporation
(the "Company"), and _______________ (the "Optionee").
WHEREAS, pursuant to the Plan (as defined below), the Company desires to
afford the Optionee the opportunity to purchase shares of Common Stock, par
value $.01 per share (the "Common Stock"), of the Company.
NOW, THEREFORE, in connection with the mutual covenants hereinafter set
forth and for other good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, the parties hereto agree as follows:
1. Definitions; Conflicts. Capitalized terms used and not otherwise defined
herein shall have the meanings ascribed thereto in the Mueller Industries, Inc.
2002 Stock Option Plan (the "Plan"). The terms and provisions of the Plan are
incorporated herein by reference. In the event of a conflict or inconsistency
between the terms and provisions of the Plan and the terms and provisions of
this Agreement, the terms and provisions of the Plan shall govern and control.
2. Grant of Options. The Company hereby grants to the Optionee the right
and option (the "Option") to purchase up to, but not exceeding in the aggregate,
________shares of Common Stock, on the terms and conditions herein set forth.
3. Purchase Price. The purchase price of each share of Common Stock covered
by the Option shall be $_______ (the "Purchase Price").
4. Term of Options. The term of the Option shall be ten (10) years from the
date hereof, subject to earlier termination as provided in Section 6 hereof.
5. Vesting of Options. The Option, subject to the terms, conditions and
limitations contained herein, shall vest and become exercisable with respect to
the shares of Common Stock in accordance with the following installments:
[vesting to be determined]; provided that, with respect to each such
installment, the Optionee has remained in continuous employment with the Company
from the date hereof through the date such installment is designated to vest.
Notwithstanding the vesting schedule set forth above, in the event of a
"Change of Control" (as defined below), any options hereby granted that were not
at the time of such "Change of Control" exercised, shall become immediately
exercisable with respect to all shares of Stock granted hereunder that remain
unexercised.
"Change in Control" shall, for the purposes of this Agreement, unless the
Board otherwise directs by resolution adopted prior thereto, be deemed to occur
if:
(i) Any person, entity or group (within the meaning of Section 13(d) of
14(d) of the Securities Exchange Act of 1934, is amended), and/or its
affiliates, becomes, directly or indirectly, by way of merger, consolidation or
other business combination, or otherwise, the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act) of the capital stock of the Company entitled
to more than 50% of the aggregate votes represented by the capital stock of all
classes of common stock of the Company entitled to vote generally in the
election of directors ("Outstanding Voting Securities"); provided, however, that
the following acquisitions will not constitute a Change in Control: (i) any
acquisition by the Company or any employee benefit plan (or related trust)
sponsored or maintained by the Company or any Subsidiary and (ii) any
acquisition by any corporation pursuant to a reorganization, merger or
consolidation, if, following such reorganization, merger or consolidation, the
conditions described in clauses (A) and (B) of clause (iii) of this definition
are satisfied.
(ii) Individuals who, as of the date of this Agreement, constitute the
Board of Directors of the Company (the "Incumbent Board") cease for any reason
to constitute at least a majority of the Company's Board of Directors; provided,
however, that any individual becoming a director subsequent to the date of this
Agreement whose election, or nomination for election by the Company's
shareholders was approved by a vote of at least a majority of the directors then
comprising the Incumbent Board, will be considered as though such individual
were a member of the Incumbent Board; or
(iii) The occurrence of a reorganization, merger or consolidation, in each
case, unless, following such reorganization, merger or consolidation, (A) more
than 50% of, respectively, the then outstanding shares of common stock of the
corporation resulting from such reorganization, merger or consolidation and the
combined voting power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of directors is then
beneficially owned, directly or indirectly, by all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of the
Outstanding Voting Securities immediately prior to such reorganization, merger
or consolidation in substantially the same proportions as their ownership,
immediately prior to such reorganization, merger or consolidation, of the
Outstanding Voting Securities, and (B) at least a majority of the members of the
board of directors of the corporation resulting from such reorganization, merger
or consolidation were members of the Board at the time of the execution of the
initial agreement providing for such reorganization, merger or consolidation;
(iv) Approval by the shareholders of the Company of (A) a complete
liquidation or dissolution of the Company, as applicable, or (B) the sale or
other disposition of all or substantially all of the assets of the Company,
other than to a corporation, with respect to which following such sale or other
disposition, (1) more than 50% of, respectively, the then outstanding shares of
common stock of such corporation and the combined voting power of the then
outstanding voting securities of such corporation entitled to vote generally in
the election of directors is then beneficially owned, directly or indirectly, by
all or substantially all of the individuals and entities who were the beneficial
owners, respectively of the Outstanding Voting Securities immediately prior to
such sale or other disposition, in substantially the same
proportion as their ownership immediately prior to such sale or other
disposition, of the Outstanding Voting Securities, and (2) at least a majority
of the members of the board of directors of such corporation were members of the
Board at the time of the execution of the initial agreement or action of the
Board providing for such sale or other disposition of assets of the Company;
provided, however, that no transaction resulting in the disposition of one or
more subsidiaries or other business units of the Company will be treated as
substantially all of the assets of the Company unless the assets so disposed of
comprise more than 70% of all corporate assets.
6. Termination of Employment. In the event the Optionee's employment with
the Company is terminated for any reason other than death or disability (within
the meaning of Section 22(e)(3) of the Code), the Option shall immediately lapse
as of the date of such termination whether or not exercisable on such date. In
the event the Optionee's employment with the Company is terminated by reason of
the Optionee's death or disability (within the meaning of Section 22(e)(3) of
the Code), the Option shall remain exercisable for a period of up to twelve
months after termination of employment, to the extent exercisable at the time of
termination of employment, and shall lapse as to any shares of Common Stock for
which it has yet to become exercisable as of the date of such termination of
employment.
7. No Rights as a Shareholder. The Optionee shall have no rights as a
shareholder with respect to any shares of Common Stock issuable upon the
exercise of an Option until the date of issuance to the Optionee of a
certificate evidencing such shares of Common Stock. No adjustments, other than
as provided in Section 7 of the Plan, shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property) or distributions
for which the record date is prior to the date the certificate for such shares
of Common Stock is issued.
8. Method of Exercising Option. Subject to the terms and conditions of this
Agreement, the Option may be exercised by written notice to the Secretary of the
Company at the Company's principal executive offices. Such notice shall state
the election to exercise the Option and the number of Common Shares in respect
of which the Option is being exercised, shall be signed by the person or persons
so exercising the Option and shall either:
(a) be accompanied by payment in full of the Purchase Price for such shares
of Common Stock; or
(b) fix a date, not less than five (5) nor more than ten (10) business days
from the date such notice shall be delivered to the Company, for the payment in
full of the Purchase Price for such shares of Common Stock.
Payment of such Purchase Price shall be made in United States dollars by
payable to the order of the Company. Subject to such procedures and rules as may
be adopted from time to time by the Committee, the Optionee may also pay such
Purchase Price by (i) tendering to the Company shares of Common Stock (held by
the Optionee for at least six months prior to such delivery) with an aggregate
Fair Market Value on the date of exercise equal to such Purchase Price, (ii)
delivery to the Company of a copy of irrevocable instructions to a stockbroker
to sell shares of Common Stock and to deliver promptly to the Company an amount
sufficient to pay
such Purchase Price, or (iii) any combination of the methods of payment
described in clauses (i) and (ii) and in the preceding sentence. The certificate
for shares of Common Stock as to which the Option shall have been so exercised
shall be registered in the name of the person or persons so exercising the
Option. All shares of Common Stock purchased upon the exercise of the Option as
provided herein shall be fully paid and non assessable.
9. Income Tax Withholding. The Company may make such provisions and take
such steps as it may deem necessary or appropriate for the withholding of all
federal, state, local and other taxes required by law to be withheld with
respect to the exercise of the Option and the issuance of the shares of Common
Stock, including, but not limited to, retaining shares of Common Stock otherwise
to be delivered upon exercise, deducting the amount of any such withholding
taxes from any other amount then or thereafter payable by the Company, or any
Subsidiary, to the Optionee, or requiring the Optionee, or the beneficiary or
legal representative of the Optionee, to pay to the Company the amount required
to be withheld or to execute such documents as the Company deems necessary or
desirable to enable it to satisfy its withholding obligations.
10. Non-Transferability. Unless otherwise determined by the Committee, this
Option is not assignable or transferable other than by will or the laws of
descent and distribution, and shall be exercisable during the Optionee's
lifetime only by the Optionee.
11. Further Conditions to Exercise.
(a.) The obligation of the Company to issue shares of Common Stock pursuant
to the exercise of the Option shall be subject to all applicable laws, rules and
regulations, and to such approvals by governmental agencies as may be required.
Notwithstanding any of the provisions hereof, the Optionee may not exercise the
Option, and the Company will be under no obligation to offer to sell or to sell
and shall be prohibited from offering to sell or selling any shares of Common
Stock pursuant to the exercise of any Option unless such exercise, offer or sale
shall be properly registered pursuant to the Securities Act of 1933 (as now in
effect or as hereafter amended) (the "Securities Act") with the Securities and
Exchange Commission or unless the Company has received an opinion of counsel,
satisfactory to the Company, that such shares may be offered or sold without
such registration pursuant to an available exemption therefrom and the terms and
conditions of such exemption have been fully complied with. The Company shall
use reasonable efforts to register the offer or sale of shares of Common Stock
underlying the Option pursuant to the Securities Act and to take any other
affirmative action in order to cause the exercise of the Options or the issuance
or transfer of shares pursuant thereto to comply with any law or regulation of
any governmental authority. If the shares of Common Stock offered for sale or
sold under any Option are offered or sold pursuant to an exemption from
registration under the Securities Act, the Company may restrict the transfer of
such shares and may legend the Common Stock certificates representing such
shares in such manner as it deems advisable to ensure the availability of any
such exemption.
(b.) The Company is relieved from any liability for the non-issuance or
non-transfer or any delay in issuance or transfer of any shares of Common Stock
subject to the Option which results from the inability of the Company to obtain
or in any delay in obtaining from any regulatory body having jurisdiction all
requisite authority to issue or transfer shares of
Common Stock of the Company either upon exercise of the Option or shares of
Common Stock issued as a result of such exercise if counsel for the Company
deems such authority necessary for lawful issuance or transfer of any such
shares.
(c.) For purposes of this Agreement, the term "Cause" shall mean (i)
Optionee's continued failure to substantially perform his employment duties,
(ii) the engaging by Optionee in willful misconduct injurious to the Company, or
(iii) the commission by the Optionee of an act of moral turpitude which is
punishable as a felony. For purposes of this Agreement, the term "Noncompetitive
Action" shall mean (i) the Optionee's taking action which would, assuming
Optionee were a party to the Company's standard Employee Confidentiality and
Non-Solicitation Agreement, violate the terms of such agreement (whether or not
Optionee has actually executed such agreement), or (ii) engaging by the Optionee
in willful conduct which benefits a direct competitor of the Company or is
demonstrably injurious to the Company.
(d.) If the Optionee employment with the Company is terminated for "Cause"
(as defined herein), then to the extent the Optionee exercised any Options
within the six month period preceding such termination, the Optionee will be
required to repay to the Company (and the Optionee agrees to repay as a
condition of exercise) the difference between (a) the average of the high and
low selling prices of the Common Stock on the exercise date and (b) the exercise
price per share, multiplied by the number of shares for which the Option was
exercised.
The 2002 Stock Option Plan Committee (the "Committee") will determine
whether an Optionee's employment is terminated for Cause. However, the
Committee, in its discretion, may choose not to enforce the foregoing provisions
in the case of any particular Optionee.
(e.) If the Optionee employment with the Company is terminated for any
reason other than Cause, and within the following six months the Optionee
engages in Noncompetitive Action, then to the extent the Optionee exercised any
Options within the period which began six month prior to the Optionee's
termination of employment and which ends on the date that such person engages in
the Noncompetitive Action, the Optionee will be required to repay to the Company
(and the Optionee agrees to repay as a condition of exercise) the difference
between (a) the average of the high and low selling prices of the Common Stock
on the exercise date and (b) the exercise price per share, multiplied by the
number of shares for which the Option was exercised.
The Committee will determine whether an Optionee has engaged in a
Noncompetitive Action. However, the Committee, in its discretion, may choose not
to enforce the foregoing provisions in the case of any particular Optionee.
12. Incentive Stock Option. The Option granted hereunder is intended to be
an "incentive stock option" within the meaning of Section 422 of the Code.
13. Binding Effect. This Agreement shall be binding upon the heirs,
executors, administrators and successors of the parties hereto.
14. Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of Delaware applicable to contracts made
and to be performed in such State.
15. Headings. Headings are for the convenience of the parties and are not
deemed to be part of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date and year first written above.
MUELLER INDUSTRIES, INC.
By:
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Name: William D. O'Hagan
Title: Chief Executive Officer
OPTIONEE
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Name: