Exhibit 10.4
[FORM OF NON-QUALIFIED STOCK OPTION]
DELTA AND PINE LAND COMPANY
NON-QUALIFIED STOCK OPTION AWARD AGREEMENT
2005 OMNIBUS STOCK PLAN
THIS AGREEMENT is made as of __________ , 20___, between Delta and Pine Land
Company, a Delaware corporation ("DPL"), and
_____________________________________________ (the "Optionee").
THE PARTIES AGREE AS FOLLOWS:
1. Option Grant. DPL hereby awards to the Optionee an option (the "Option") to
purchase the number of shares of the DPL's Class A common stock , par value
$0.10 per share (the "Shares"), for an exercise price per share (the "Option
Price") and based upon a Grant Date, all as set forth below:
Shares Under Option:______________________;
Exercise Price per Share: $_________________;
Grant Date:_____________________________.
The Option is contingent upon Optionee's formal acceptance of the terms of this
Agreement by execution and return of this Agreement to DPL within thirty (30)
days of the date first above entered, unless such period is extended at the sole
discretion and option of DPL. In the absence of such a waiver, a failure to
return an executed Agreement to DPL within such thirty (30) day period shall be
deemed a forfeiture of the Option and this Agreement shall be null and void.
The Option will be subject to all of the terms and conditions set forth herein
and in the Delta Pine and Land Company 2005 Omnibus Stock Plan (the "Plan"), a
copy of which is attached hereto and incorporated by reference. The Option
granted hereunder is intended to be a non-qualified stock option which is not
subject to the provisions of Code Section 409A.
The Optionee acknowledges that he or she has read the Plan and agrees to be
bound by its terms. Capitalized terms in this Option Award not defined herein
have the same meanings as defined in the Plan.
2. Definitions.
"Cause" means (a) the willful and continued failure (other than a failure
resulting from the Optionee's Disability) to substantially perform the duties
assigned by DPL, (b) willfully engaging in conduct which is demonstrably
injurious to DPL, monetarily or otherwise, including conduct that, in the
reasonable judgment of DPL, does not conform to the standard of DPL's executives
or employees, (c) any act of dishonesty, commission of a felony, or (d) a
significant violation of any statutory or common law duty of loyalty to DPL.
"Change in Control" means the occurrence of any of the following events: (a) The
acquisition by any individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the 1934 Act) (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the 1934 Act) of 20% or more
of the combined voting power of the then outstanding voting securities of DPL
entitled to vote generally in the election of Members of the Board (the
"Outstanding DPL Voting Securities"); provided, however, that for purposes of
this paragraph (a) (i) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by DPL; or (ii) any acquisition by any
corporation pursuant to a transaction which complies with clauses (1), (2) and
(3) of paragraph (c) below shall not be deemed to be a Change in Control; or (b)
Individuals who, as of the Effective Date, constitute the Board (the "Incumbent
Board") cease for any reason to constitute at least a majority of the Board;
provided, however, that any individual becoming a Member of the Board subsequent
to the date hereof whose election, or nomination for election, was approved by a
vote of at least a majority of the Members of the Board then comprising the
Incumbent Board 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 Members of the Board
or other actual or threatened solicitation of proxies or consents, by or on
behalf of a Person other than the Board; or (c) Consummation of a
reorganization, merger or consolidation or sale or other disposition of all or
substantially all of the assets of DPL (a "Business Combination"), in each case,
unless, following such Business Combination, (1) all or substantially all of the
individuals and entities who were the beneficial owners, of the then Outstanding
DPL Voting Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 50% of the then outstanding
shares of common stock and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of directors of the
corporation resulting from such Business Combination (including, without
limitation, a corporation which as a result of such transaction owns DPL or all
or substantially all of DPL's assets either directly or through one or more
subsidiaries) in substantially the same proportions as their ownership,
immediately prior to such Business Combination, of the Outstanding DPL Voting
Securities (2) no Person (excluding any corporation resulting from such Business
Combination or any employee benefit plan (or related trust) of DPL or of such
corporation resulting from such Business Combination) beneficially owns,
directly or indirectly, 50% or more of, respectively, the then-outstanding
shares of common stock of the corporation resulting from such Business
Combination or the combined voting power of the then outstanding voting
securities of such corporation except to the extent that such ownership existed
prior to the Business Combination and (3) individuals who were on the Incumbent
Board continue to constitute at least a majority of the members of the board of
directors of the corporation resulting from the Business Combination; provided,
however, that any individual becoming a Member of the Board subsequent to the
date hereof whose election, or nomination for election, was approved by a vote
of at least a majority of the Members of the Board then comprising the Incumbent
Board 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 (d) Approval by the stockholders of DPL of a
complete liquidation or dissolution of DPL. In the event the Option is subject
to Code Section 409A, the term Change in Control shall have the meaning required
by that Section to avoid adverse tax consequences to the Optionee.
"Disability" means the Optionee's permanent and total disability as determined
by the Committee in accordance with non-discriminatory standards consistently
applied. In the event the Option is subject to Code Section 409A, Disability
shall mean an inability to engage in any substantial gainful activity by reason
of any medically determinable physical of mental impairment which can be
expected to result in death or can be expected to last for a continuous period
of not fewer than twelve (12) months.
"Retirement" means the Optionee's Separation from Service (other than for Cause)
on or after attaining his or her attaining the age of sixty-five (65).
"Separation from Service" means: regarding (a) an Employee, a cessation of the
employee-employer relationship between an Employee and DPL and its Affiliates
for any reason, including, but not by way of limitation, a termination by
resignation, discharge with or without Cause, death, Disability, Retirement, or
the disaffiliation of an Affiliate, but excluding any such termination where
there is a simultaneous re-employment by DPL or an Affiliate or, in the case of
an Option which is subject to Code Section 409A, any other continuation of
service to DPL or its affiliate which would preclude a separation from service
for purposes of Code Section 409A; (b) in the case of a Member of the Board,
such Member of the Board's resignation or removal from the Board; and (c) in the
case of an Independent Contractor, a date specified by the Board as of which
services to DPL will cease. In the case of any Option which is subject to Code
Section 409A, a Separation from Service will exist only where there is a
separation from service within the contemplation of that Section.
3. Termination. Subject to earlier termination as provided in the Plan, this
Option will expire, unless previously exercised in full, on ____________________
, 20____.
4. Terms of the Option Plan. The Optionee understands that the Plan includes
important terms and conditions that apply to this Option. Those terms include
(without limitation): important conditions to the right of the Optionee to
exercise the Option; important restrictions on the ability of the Optionee to
transfer the Option; and early termination of the Option following the
occurrence of certain events, including the Optionee no longer being an employee
or member of DPL's board of directors. Not by way of limitation, the Plan
contains important non-competition provisions which could result in the
forfeiture of all or a portion of the Award granted hereunder.
5. Vesting Schedule. The Options granted under this Award Agreement shall vest
and becomes exercisable as follows, provided Optionee remains an active employee
or Director, as applicable, as of each vesting date reflected in the following
schedule:
Vesting Date Option Shares Vesting
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Should the Optionee's employment be terminated or if the status as a Member of
the Board cease, as applicable, before any of the vesting dates specified above,
the Option shall become exercisable as follows:
(a) In the event of a Separation from Service by DPL with Cause, by DPL without
Cause, or voluntarily by the Optionee (except in the case of a Member of the
Board), all un-vested Options shall be forfeited and vested Options shall be
exercisable for ninety (90) days after the Separation from Service.
(b) Upon the Optionee's Disability, this Option Award shall continue to vest and
become exercisable according to the above schedule during the period of
Disability;
(c) Upon the death of the Optionee while an employee or Director, as applicable,
of DPL, this Option shall become vested and exercisable in full.
(d) Upon the resignation of a Member of the Board where such resignation has
been approved by the Board, this Option shall become exercisable in full and
shall be exercisable until the fifth anniversary of the Member of the Board's
resignation. Should the Member's resignation not have been approved by the
Board, all un-vested Options shall be forfeited and vested options will remain
exercisable for ninety (90) days after such resignation.
(e) Upon the Retirement of the Optionee, this Option shall become exercisable in
full, and may be exercised during the shorter of the remaining term of the Award
or a period of two (2) years from the effective date of such Retirement.
Notwithstanding the foregoing or any other provision of this Option or the Plan,
in the event that this Option is subject to Code Section 409A and Optionee is a
"specified employee" as contemplated by Code Section 409A, any distribution
which would otherwise be made upon a separation from service shall instead be
made not earlier than the date which is six (6) months after the date of such
separation from service.
In addition, all Options shall immediately vest and become exercisable in the
event of a Change in Control while Optionee is serving as an employee or
Director of DPL, as applicable.
6. Delivery of Shares. The obligation of DPL to deliver Shares upon exercise of
an Option is subject to all applicable laws, rules and regulations and such
approvals by governmental authorities as may be deemed necessary or appropriate
by DPL. All obligations of DPL are subject to the rights or obligations of DPL
to withhold applicable taxes.
7. Miscellaneous. This Agreement (together with the Plan) sets forth the
complete agreement of the parties concerning the subject matter hereof,
superseding all prior agreements, negotiations and understandings. This
Agreement will be governed by the substantive law of the State of Delaware, and
may be executed in counterparts. The Optionee understands that this Option Grant
is subject to early termination as provided in the Plan. No rights or privileges
of a stockholder in DPL, employee or Director are conferred by reason of the
granting of the Option. Optionee will not become a stockholder in the DPL with
respect to the Shares unless and until the Option has been properly exercised
and the Option Price fully paid as to the portion of the Option exercised.
8. Code Section 409A. To the extent applicable, it is intended that this
Agreement and the Plan comply with Code Section 409A, and they shall be
administered in a manner consistent with that intent. Any provision which would
cause the Option to fail to satisfy Section 409A shall have no effect except as
amended to comply, which amendment may be retroactive and without the consent of
Grantee. Any reference to Section 409A includes a reference to regulations or
other guidance issued by the U. S. Department of the Treasury or the Internal
Revenue Service.
9. Assignment and Transfer. Grantee may assign the Option, or any portion
thereof, to a member(s) of Grantee's Immediate Family or to a Charitable
Organization, each as defined in the Plan. The rights and interests of Optionee
may not otherwise be sold, assigned, encumbered or otherwise transferred except
as may be expressly permitted by will or the laws of descent and distribution in
the event of Optionee's death. Any attempt by Optionee otherwise to alienate,
assign, pledge, hypothecate or otherwise dispose of the Option or any interest
therein, except as expressly permitted herein or in the Plan, or in the event of
any levy, attachment, execution or similar process upon the rights or interests
conferred herein, DPL may terminate the Option in whole or part, in its sole
discretion, any or all rights of Optionee may be thereby terminated. The rights
and protections of DPL hereunder shall extend to its successors, assigns and
affiliates.
10. Execution. The parties hereby have entered into this Agreement as of the
date set forth above.
Delta and Pine Land Company
By: ________________________________
Title:_______________________________
"Optionee"
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Address:
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Attachments: 2005 Omnibus Stock Plan