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EXHIBIT 10.4
UNITED INDUSTRIES CORPORATION
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "AGREEMENT") is entered into as of
_______ by and between UNITED INDUSTRIES CORPORATION, a Delaware corporation
(the "COMPANY"), and ("OPTIONEE") pursuant to the United Industries
Corporation 2001 Stock Option Plan (the "PLAN"). The Company and Optionee are
referred to collectively herein as the "PARTIES." Capitalized terms used but
not defined herein shall have the meaning set forth in the Plan.
THE PARTIES AGREE AS FOLLOWS:
1. GRANT OF OPTIONS AND EFFECTIVE DATE.
1.1 GRANT. The Company hereby grants to Optionee pursuant to the Plan
an option (the "OPTION") to purchase all or any part of an aggregate
of _______ OptionA shares (the "CLASS A SHARES") of the Company's
Class A Voting Common Stock, par value $0.01 per share, and _______
OptionB shares (the "CLASS B SHARES" and, together with the Class A
Shares (the "SHARES")) of the Company's Class B Non-Voting Common
Stock, par value $0.01 per share (collectively, "COMMON STOCK"), on
the terms and conditions set forth herein and in the Plan as in effect
on the Grant Date (as defined below), the terms of which are
incorporated herein by reference.
1.2 GRANT DATE. The Grant Date of this Option is ___________ (the
"GRANT DATE").
2. EXERCISE PRICE. The exercise price for the Shares of Common Stock
covered by this Option shall be $____ per share (the "EXERCISE PRICE").
3. ADJUSTMENT AND TERMINATION OF OPTIONS. Subject to the restrictions,
and under the circumstances described, in the Plan and this Agreement, the
Company shall adjust the number and kind of Shares and the Exercise Price
thereof, and this Option shall be terminated in certain circumstances, in
accordance with the provisions of the Plan.
4. EXERCISE OF OPTIONS.
4.1 WHEN EXERCISABLE.
(a) RATE OF EXERCISE FOR 4-YEAR OPTIONS. Optionee's right
to exercise this Option as to ______ Shares of Class A
Shares and ______ Class B Shares) subject thereto (the "4
YEAR OPTIONS") shall vest ratably over the four (4) year
period commencing on the Grant Date in accordance with the
following schedule if (but only if) Optionee is employed by
the Company or any of its Subsidiaries as of each such date:
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<Table>
<Caption>
Cumulative Shares of
Date 4 Year Option Vested
---- --------------------
1st Anniversary of Grant Date ______
2nd Anniversary of Grant Date ______
3rd Anniversary of Grant Date ______
4th Anniversary of Grant Date ______
</Table>
Notwithstanding any provision to the contrary in this SECTION 4.1(a). but
subject to the other restrictions in the Plan and this Agreement, in the event
of a Sale (as defined below) prior to the fourth anniversary of the Grant Date,
the 4 Year Options shall become vested and immediately exercisable.
(b) RATE OF EXERCISE ON TARSAP OPTIONS.
(i) Optionee shall not be vested with the right to
exercise this Option with respect to _______ of the Shares (______ Class A
Shares and ______ Class B Shares) (the "TARSAP SHARES") subject thereto
(the "TARSAP OPTIONS") until ten (10) years after the Grant Date, at which
time Optionee shall acquire the vested right to exercise the TARSAP Options
and purchase one hundred percent (100%) of the TARSAP Shares if (but only
if) Optionee is an employee of the Company or any of its Subsidiaries as of
such date.
(ii) ACCELERATION OF TARSAP OPTIONS. Set forth on ANNEX
I hereto are the Company's performance objectives (referred to herein as
the "PERFORMANCE GOALS") for the fiscal years ending _________________
through _________________, inclusive. The two Performance Goals for each
fiscal year reflect the EBITDA (as defined below) goals for such fiscal
year and are referred to as the "BANK PLAN PERFORMANCE GOALS" and the
"GROWTH PLAN PERFORMANCE GOALS." Notwithstanding the foregoing
subsection (b)(i), if on and after the publication of each written
determination by the Board of Directors of the Company (the "BOARD") or
a committee thereof which is authorized to do so that the Company has
met at least ____________ percent of its objective for EBITDA under the
Bank Plan Performance Goals with respect to any fiscal year commencing
with the fiscal year ending _________________ and continuing for each of
the _______ fiscal years thereafter, then (subject to the other
restrictions in the Plan and this Agreement), Optionee shall acquire the
vested right to exercise the TARSAP Options to purchase _________________
_________________ percent of the TARSAP Shares, and for each achievement
for any such fiscal year of incremental EBITDA in excess of the Bank
Plan Performance Goal representing _________ percent of the difference
between the Bank Plan Performance Goals and the Growth Plan Performance
Goals, as so determined, Optionee shall acquire the vested right to
exercise the TARSAP Options to purchase an additional _________________
percent of the TARSAP Shares, but no more than an aggregate of
______________ percent of the TARSAP Shares in respect of each full
fiscal year. In addition, on and after publication of
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a written determination by the Board or a committee thereof which is
authorized to do so that the Company has met at least _______ percent of
the Bank Plan Performance Goal for the fiscal year ending _____________
_______ and at least _______ percent of its cumulative Bank Plan
Performance Goals for the four fiscal years ending ______________ (the
"AGGREGATE BANK PLAN PERFORMANCE GOAL"), then subject to the other
restrictions in the Plan and this Agreement, (i) if Optionee had
acquired vested rights hereunder to exercise the TARSAP Options to
purchase an aggregate of less than _______ percent of the TARSAP Shares,
then Optionee shall acquire the vested right to exercise the TARSAP
Options to purchase such amount as would result in Optionee acquiring in
aggregate the vested right to exercise TARSAP Options to purchase _____
percent of the TARSAP Shares, and (ii) for each achievement of
incremental EBITDA above the Aggregate Bank Plan Performance Goal
representing ____ percent of the difference between (A) the cumulative
Growth Plan Performance Goals for the four fiscal years ending
______________ (the "AGGREGATE GROWTH PLAN PERFORMANCE GOAL") and (B)
the Aggregate Bank Plan Performance Goal, Optionee shall acquire the
vested right to exercise the TARSAP Options to purchase TARSAP Shares in
an amount equal to (X) ______ percent of the TARSAP Shares LESS (Y) the
aggregate percentage of TARSAP Options to purchase TARSAP Shares which
have been granted to Optionee on an annual basis as a result of the
achievement of EBITDA in excess of the Bank Plan Performance Goals in
each of the four fiscal years ending ___________________ (such
additional exercise rights pursuant to clauses (i) and (ii) above are
referred to herein as the "ADDITIONAL EXERCISE RIGHTS"). If the result
of the calculation in clause (ii) of the foregoing sentence is a
negative number, no Additional Rights to Exercise the TARSAP Options to
purchase TARSAP Shares will be granted to Optionee as a result of such
clause (ii), and as a further result no vested rights to exercise the
TARSAP Options to purchase TARSAP Shares which were previously granted
to Optionee will be affected or forfeited. In no event will Optionee
acquire vested rights hereunder with respect to more than ______________
percent of the TARSAP Shares. All such determinations shall be made by
the Board or such committee within ten (10) days after receipt of
audited financial statements for each fiscal year. The Board's or
committee's determination as to whether the Company has met such
objectives shall be final and not subject to dispute. In addition, the
Board or a committee thereof shall have complete discretion to modify
such objectives from time to time for any year or years to reflect
business combinations or dispositions, fiscal year changes, purchases or
sales of assets or any other circumstances the Board or committee thereof
deems relevant. For purposes hereof, "EBITDA" shall mean earnings before
interest, taxes, depreciation and amortization, excluding any non-recurring
or extraordinary items, as determined in accordance with generally accepted
accounting principles, consistently applied.
(iii) ACCELERATION UPON SALE. Notwithstanding any provision
to the contrary in this SECTION 4.1(b), but subject to the other
restrictions in the Plan and this Agreement, in the event of a Sale (as
defined below) prior to ______________, the TARSAP Options shall become
vested and immediately exercisable to the extent set forth below. On and
after publication of a written determination by the Board or a committee
thereof which is authorized to do so that the Company has met at least
_______ percent
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of its Bank Plan Performance Goals for the last twelve (12) full months and
at least ________________ percent of its cumulative Bank Plan Performance
Goals for the completed fiscal years (if any) and the Interim Period (as
defined below) (based on months elapsed), the Board or such committee shall
treat the percentage of cumulative Performance Goals achieved through the
completed fiscal years (if any) and Interim Period as the percentage of
Performance Goals achieved and on that basis shall determine the Additional
Exercise Rights with respect to all TARSAP Options as to which Optionee had
not otherwise acquired the vested right to exercise consistent with the
method set forth in SECTION 4.1(b)(ii) above beginning with the fourth
sentence thereof. For purposes hereof, the term "INTERIM PERIOD" shall
mean the period beginning on the first day of the then current fiscal year
and ending on the last full month of that uncompleted fiscal year.
For purposes hereof, the term "SALE" shall mean:
(w) the acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a
"PERSON") of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of voting securities of (a) the Company
or (b) the surviving entity in any reorganization, merger or consolidation
(each an "ACQUISITION") involving the Company (any such entity referred to
herein as the "CORPORATION") where such Acquisition causes such Person to
own more than ________ percent of the combined voting power of the then
outstanding voting securities of the Corporation entitled to vote generally
in the election of directors, other than acquisitions by the Thomas H. Lee
Company or its affiliates;
(x) approval by the shareholders of the Company of a
complete liquidation or dissolution of the Company;
(y) the acquisition by a third party not affiliated with
the Company of all or substantially all of the Company's assets; or
(z) individuals who constitute the Board on the date of
the Company's initial public sale of equity securities registered under the
Securities Act (the "INCUMBENT BOARD") cease for any reason to constitute
at least a majority of the Board thereafter. Any person becoming a director
subsequent to such date whose, election, or nomination for election, is, at
any time, approved by a vote of at least a majority of the directors
comprising the Incumbent Board shall be considered a member of the
Incumbent Board.
The accelerated vesting provided in this SECTION 4.1(b)(iii) shall
take effect immediately prior to but contingent upon the Sale giving rise
to such accelerated vesting. The phrase "IMMEDIATELY PRIOR TO THE SALE" shall be
understood to mean sufficiently in advance of a Sale to permit the Optionee to
take all steps reasonably necessary to permit the Optionee to become a
shareholder of the Company as of the consummation of such Sale with respect to
the TARSAP
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Shares subject to the accelerated vesting provided in this SECTION 4.1(b)(iii).
The Board or committee thereof may in good faith shorten the Interim Period or
make approximations of EBITDA during the Interim Period in order to comply with
the preceding sentence.
(c) PARTIAL EXERCISE. Subject to the other restrictions
in the Plan and this Agreement, the Options may be exercised
for all or a part of the Shares with respect to which each
Option is exercisable under SECTION 4.1(a) and (b) above.
4.2 METHOD OF EXERCISE: STOCKHOLDERS AGREEMENT. Subject to
SECTION 4.1 and the other restrictions in the Plan and this
Agreement, Options are exercisable from time to time by Optionee,
who shall complete, execute and deliver to the Company a Form of
Exercise and Stock Transfer Power in such form as the Company may
require. Except as otherwise permitted by SECTION 6(d) of the
Plan, such notice shall be accompanied by payment in full for the
Shares to be purchased. Payment of the Exercise Price may be
made: (i) in cash, (ii) in shares of Common Stock which either
(A) were purchased by Optionee in other than a compensatory
transaction, (B) have been held by Optionee free and clear for at
least six (6) months prior to the use thereof to pay part or all
of the Exercise Price or (C) otherwise are considered "mature"
shares for purposes of generally accepted accounting principles,
as determined by the Company's outside auditors, or (iii) so long
as the Common Stock is publicly traded, by delivery to the
Committee of irrevocable instructions to a stockbroker to deliver
promptly to the Company an amount of sale or loan proceeds
sufficient to pay a portion of the Exercise Price subject to this
clause (iii), or a combination of the methods specified in
clauses (i), (ii) and (iii), or in the sole discretion of the
Committee, through a cashless exercise procedure. Optionee shall
also execute and deliver to the Company a copy of the Company's
Stockholders Agreement, dated as of January 20, 1999, in the form
in effect at the time of exercise (as amended and modified from
time to time, the "STOCKHOLDERS AGREEMENT"), if Optionee has not
previously done so. Upon due exercise of any Option and (if
required) execution and delivery of the Stockholders Agreement,
subject to the terms and conditions in this Agreement, the
Company shall issue in the name of Optionee and deliver to
Optionee a certificate for the Shares in respect of which such
Option shall have been exercised, but no Shares will be issued
until arrangements satisfactory to Company have been made for
appropriate income tax withholding, if any, pursuant to SECTION
12 hereof.
4.3 EXERCISE AFTER TERMINATION OF EMPLOYMENT; TERMINATION OF
OPTIONS.
(a) DEFINITIONS. The following definitions shall be
applied to the capitalized terms used in this SECTION 4.3
and in SECTION 4.4 below for all purposes, unless otherwise
clearly indicated:
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(i) "CAUSE" for termination by the Company of Optionee's
employment with the Company means (a) misappropriation of the Company's
property, interests or opportunities; (b) violation of reasonable
directions of the Company to Optionee which directions are consistent with
Optionee's duties and responsibilities; (c) misconduct which causes damage
to the Company or its finances or to its business relationships or
reputation in the industry or the community; (d) breach or nonperformance
by Optionee of his obligations provided for in this Agreement or in other
material agreement between Optionee and the Company (including, without
limitation, any employment or noncompetition agreement) or reasonably
implied by his position; (e) the habitual drug addiction or habitual
intoxication of Optionee which negatively impacts his job performance or
Optionee's failure of a Company-required drug test; or (f) failure of
Optionee to reasonably cooperate with an examining physician as may be
required by any agreement between Optionee and the Company.
(ii) "FAIR MARKET VALUE" of each Share means the fair
value of such share determined in good faith by the Board, based on the
assumption of an arms-length transaction between a willing buyer and a
willing seller, taking into account all reasonable and customary factors
relevant to value including, without limitation, the fact that there may be
no public market for the Company's securities, but not including any
minority discount; until the first anniversary hereof, the "FAIR MARKET
VALUE" of each Share shall not be less than the Original Cost of such
Share.
(iii) "ORIGINAL COST" for each Share shall be equal to
$2.00 (as proportionately adjusted for all subsequent stock splits, stock
dividends and other recapitalizations).
(iv) "PUBLIC OFFERING" means the sale in an underwritten
public offering registered under the Securities Act of shares of any class
of the Company's Common Stock.
(v) "TERMINATION DATE" means the date on which Optionee's
employment with the Company terminates, whether pursuant to an employment
agreement between Optionee and the Company or otherwise.
(b) TERMINATION BY OPTIONEE. Upon any termination of employment
by Optionee, the Options may, to the extent exercisable and not
terminated pursuant to SECTION 4.3(e), be exercised only within
thirty (30) days after the date of such employment termination.
This SECTION 4.3(b) shall not, however, extend the term of the
Options beyond that specified in SECTION 4.3(e). For purposes of
this SECTION 4.3(b), the extent to which the Options are
exercisable shall be determined as of the date of termination of
employment.
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(c) TERMINATION BY VIRTUE OF DEATH OR DISABILITY OR WITHOUT
CAUSE. Upon any termination of employment of Optionee by virtue
of Optionee's death or Disability or upon any termination of
employment by the Company without Cause, the Options may, to the
extent exercisable and not terminated pursuant to SECTION 4.3(e),
be exercised only within twelve (12) months after the date of
such termination. This SECTION 4.3(c) shall not extend the term
of the Options beyond that specified in SECTION 4.3(e). For
purposes of this SECTION 4.3(c), the extent to which the Options
are exercisable shall be determined as of the date of termination
of employment.
(d) TERMINATION FOR CAUSE. The Option shall terminate
immediately upon termination by the Company of the employment of
Optionee for Cause.
(e) OTHER TERMINATION. The Options shall not be exercisable
after the earliest of (i) a Sale (PROVIDED THAT Optionee has at
least five (5) business days prior to the Sale to exercise the
Options or the Options are treated as exercised in connection
with such Sale) or (ii) ______________.
4.4 REPURCHASE OPTION.
(a) RIGHT OF REPURCHASE. In the event Optionee ceases to be
employed by the Company and its Subsidiaries for any reason (the
"TERMINATION"), the Shares (whether held by Optionee or one or
more of Optionee's transferees) shall be subject to repurchase by
the Company pursuant to the terms and conditions set forth in
this SECTION 4.4 (the "REPURCHASE OPTION").
(b) PURCHASE PRICE. Any repurchase of Shares pursuant to the
Repurchase Option shall be at the "REPURCHASE PRICE" described in
this SECTION 4.4(b) determined as of the Termination Date. If
Optionee's employment is terminated by Optionee prior to the
fifth anniversary hereof or by the Company for Cause, the
Repurchase Price for all of the Shares shall be the lower of (i)
the Fair Market Value therefor and (ii) the Original Cost
therefor. If Optionee's employment is terminated for any other
reason (including, without limitation, as a result of Optionee's
retirement in good standing from the Company at or after age 65
in accordance with the Company's retirement policies as in effect
at that time), the Repurchase Price for all Shares shall be the
Fair Market Value therefor.
(c) REPURCHASE BY THE COMPANY. The Company may elect to purchase
all or any portion of the Shares at the Repurchase Price by
delivering written notice (the "REPURCHASE NOTICE") to Optionee
(i) within 120 days after the Termination Date, and (ii) for
Shares acquired by Optionee after the Termination Date pursuant
to SECTION 4.3 above, then within 120 days after the issuance of
such Shares. The Repurchase Notice shall set forth the
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number of Shares to be acquired from Optionee and/or his or her
transferees (if any), the aggregate consideration to be paid for
such securities, and the time and place for the closing of the
transaction (the "REPURCHASE CLOSING"). The Company may, in its
sole discretion, assign its rights pursuant to this SECTION 4.4
to the holders of its capital stock (other than Optionee and any
other stockholder whose Shares are being repurchased) pro rata on
the basis of the number of Shares owned (with subsequent re-offer
in the event of under subscription); PROVIDED that any such
assignees shall comply with the terms of this SECTION 4.4.
(d) REPURCHASE CLOSING. The closing of the purchase of the
Shares pursuant to the Repurchase Option shall take place on the
date designated by the Company in the Repurchase Notice which
date shall not be more than 60 days nor less than 10 days after
the delivery of such notice. Subject to SECTION 4.4(e), the
Company shall pay for the Shares to be purchased pursuant to the
Repurchase Option by delivery of a check or wire transfer of
funds. The Company shall be entitled to receive customary
representations and warranties regarding good title to such
securities, free and clear of any liens or encumbrances, power
and authority, due execution, and enforceability.
(e) CERTAIN RESTRICTIONS. Notwithstanding anything to the
contrary contained in this Agreement, all repurchases of Shares
by the Company shall be subject to applicable restrictions
contained in the Delaware General Corporation Law and in the
Company's and its Subsidiaries' debt and equity financing
agreements. If any such restrictions prohibit the repurchase of
Shares hereunder which the Company is otherwise entitled or
required to make, the time periods provided in this SECTION 4.4
shall be suspended, and the Company shall make such repurchases
as soon as it is permitted to do so under such restrictions with
interest at an annual rate of 7%. In addition, the Company may
pay the Repurchase Price for such Shares by offsetting any
bona fide debts owed by Optionee to me Company.
(f) TERMINATION OF REPURCHASE OPTION. The Repurchase Option set
forth in this SECTION 4.4 shall continue with respect to all
Shares following any Transfer thereof; PROVIDED that such
Repurchase Option shall terminate effective immediately after the
consummation of a Sale of the Company or a Public Offering of the
Company's equity securities in which the Company receives net
proceeds of at least $ 100 million; and PROVIDED FURTHER that,
with respect to each Share, the Repurchase Option with respect to
such Share shall terminate immediately upon the Transfer of such
Share pursuant to a Public Sale.
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5. NON-TRANSFERABILITY OF OPTIONS. The Options shall not be transferable
or assignable except upon Optionee's death by will or the laws of descent
and distribution and shall be exercisable, during Optionee's lifetime, only
by Optionee.
6. PURCHASE FOR INVESTMENT; OTHER REPRESENTATIONS OF OPTIONEE: LEGENDS.
6.1 INVESTMENT INTENT. As provided in the Plan, in the event that the
offering of Shares with respect to which the Options are being
exercised is not registered under the Securities Act, but an exemption
is available that requires an investment representation or other
representation, Optionee, if electing to purchase Shares, will be
required to represent that such Shares are being acquired for
investment and not with a view to distribution thereof, and to make
such other reasonable and customary representations regarding matters
relevant to compliance with applicable securities laws as are deemed
necessary by counsel to the Company. Stock certificates evidencing
such unregistered Shares that are acquired upon exercise of the
Options shall bear restrictive legends in substantially the following
form and such other restrictive legends as are required or advisable
under the provisions of any applicable laws or are provided for in the
Stockholders Agreement or any other agreement to which Optionee is a
party:
THE SHARES REPRESENTED BY THIS STOCK CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), NOR UNDER ANY STATE SECURITIES LAWS AND SHALL NOT BE TRANSFERRED AT
ANY TIME IN THE ABSENCE OF (I) AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS WITH RESPECT TO
SUCH SHARES AT SUCH TIME, OR (II) AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY AND ITS COUNSEL, TO THE EFFECT THAT SUCH TRANSFER AT SUCH TIME WILL
NOT VIOLATE THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS.
6.2 OTHER REPRESENTATIONS. Optionee hereby represents and warrants to
the Company as follows:
(a) ACCESS TO INFORMATION. Because of Optionee's business
relationship with the Company and with the management of the
Company, Optionee has had access to all material and relevant
information concerning the Company, thereby enabling Optionee to
make an informed investment decision with respect to his
investment in the Company, and all pertinent data and information
requested by Optionee from the Company or its representatives
concerning the business and financial condition of the Company
and the terms and conditions of this Agreement have been
furnished. Optionee acknowledges that Optionee has had the
opportunity to ask questions of and receive answers from and to
obtain additional information from the Company
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and its representatives concerning the present and proposed
business and financial condition of the Company.
(b) FINANCIAL SOPHISTICATION. Optionee has such knowledge and
experience in financial and business matters that Optionee is
capable of evaluating the merits and risks of investing in the
Shares.
(c) UNDERSTANDING THE INVESTMENT RISKS. Optionee understands
that:
(i) An investment in the Shares represents a highly
speculative investment, and there can be no assurance as to
the success of the Company in its business; and
(ii) There is at present no market for the Shares and there
can be no assurance that a market will develop in the
future.
(d) UNDERSTANDING OF THE NATURE OF THE SHARES. Optionee
understands and agrees that:
(i) There can be no assurance that the Shares will be
registered under the Securities Act or any state securities
laws and if they are not so registered, they will only be
issued and sold in reliance upon certain exemptions
contained in the Securities Act and applicable state
securities laws, and the representations and warranties of
Optionee contained herein, which will have to be renewed as
to the Shares at the times of exercise of the Options, are
essential to any claim of exemption by the Company under the
Securities Act and such state laws;
(ii) If the Shares are not so registered, the Shares will be
"restricted securities" as that term is defined in Rule 144
promulgated under the Securities Act;
(iii) The Option cannot be exercised and the Shares will not
be sold to Optionee and Optionee cannot resell or transfer
the Shares without registration under the Securities Act and
applicable state securities laws unless the Company receives
an opinion of counsel acceptable to it (as to both counsel
and the opinion) that such registration is not necessary,
the cost of such opinion to be borne by the Company;
(iv) Only the Company can register the Shares under the
Securities Act and applicable state securities laws;
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(v) The Company has not made any representations to
Optionee that the Company will register the Shares under the
Securities Act or any applicable state securities laws, or
with respect to compliance with any exemption therefrom;
(vi) Optionee is aware of the conditions for Optionee's
obtaining an exemption for the resale of the Shares under
the Securities Act and any applicable state securities laws;
and
(vii) The Company may, from time to time, make stop transfer
notations in its transfer records to ensure compliance with
the Securities Act and any applicable state securities laws,
and any additional restrictions imposed by state securities
administrators.
(e) INVESTMENT INTENT. Optionee acknowledges that:
(i) Optionee is acquiring the Option for Optionee's own
account and not on behalf of any other person;
(ii) Optionee is acquiring the option for investment and not
with a view to distribution or with the intent to divide
Optionee's participation with others or resell or otherwise
distribute the Options or the Shares;
(iii) Neither Optionee nor anyone acting on Optionee's behalf
has paid or will pay a commission or other remuneration to
any person in connection with the acquisition of the Options
or the Shares; and
(iv) At the time of exercise of any Option, Optionee will
have to make all the representations and warranties
contained in this SECTION 6 with respect to the Shares to be
issued and other representations concerning investment
intent as a condition of the issuance of the Shares by the
Company.
7. RESTRICTION ON ISSUANCE OF SHARES. The Company shall not be obligated
to sell or issue any Shares pursuant to this Agreement if such issuance
would result in the violation of any laws, including the Securities Act or
any applicable state securities laws. The Company agrees to use its
reasonable best efforts to qualify for available exemptions under the
Securities Act or any applicable state securities laws which will enable it
to issue Shares hereunder in compliance with applicable law.
8. RIGHTS AS A SHAREHOLDER. Optionee shall have no rights as a
shareholder with respect to any Shares covered by the Options until the
date of exercise and payment of the Exercise Price in accordance with the
terms of this Agreement. Subject to SECTION 3 hereof, no
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adjustment shall be made for dividends or other rights for which the record
date is prior to the date such stock certificate is issued.
9. NO EMPLOYMENT RIGHTS. This Agreement shall not confer upon Optionee
any right with respect to the continuance as an employee of the Company or
any Subsidiary, nor shall it interfere in any way with the right of the
Company or any Subsidiary to terminate such employment at any time.
10. GOVERNING LAW. All issues and questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be
governed by, and construed in accordance with, the laws of the State of
Delaware, without giving effect to any choice of law or conflict of law
rules or provisions (whether of the State of Delaware or any other
jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
11. NOTICES. All notices and other communications under this Agreement
shall be in writing, and shall be deemed to have been duly given on the
date of delivery if delivered personally or when received if mailed to the
party to whom notice is to be given, by certified mail, return receipt
requested, postage prepaid, or by reputable overnight courier service
(charges prepaid), or transmitted by facsimile with answer-back
confirmation to the following address, or any other address specified, by
notice duly given:
To Optionee at: _____________________
_____________________
_____________________
To the Company at: United Industries Corporation
8825 Page Boulevard
St. Louis, MO 63114
Attention: President
Telecopy: (314) 253-5941
12. WITHHOLDINGS. Except to the extent prohibited by applicable law,
Optionee may satisfy any required withholding obligation upon the exercise
of an Option hereunder by either of the following methods, or by a
combination of such methods: (a) tendering a cash payment or (b) delivering
to the Company previously acquired Shares, or having the Company withhold
Shares otherwise deliverable upon the exercise of an Option, in either case
having an aggregate Fair Market Value, determined as of the date the
withholding obligation arises, less than or equal to the amount of the
total withholding obligation.
13. PRO RATA EXERCISE. The Shares of Common Stock covered by this Option
shall only be exercised, if at all, ratably among the Class A Shares and
Class B Shares, based on the aggregate number of Class A Shares and Class B
Shares subject to the Options granted hereunder.
- 12 -
<Page>
14. RULE 701 OFFERING. THE GRANT OF THE OPTION HEREUNDER (AND THE PURCHASE
AND SALE OF SHARES UPON ANY EXERCISE OF THE OPTION PURSUANT TO THE TERMS
HEREOF) IS MADE PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT OF 1933, AS AMENDED, PROVIDED BY RULE 701,
PROMULGATED BY THE SECURITIES AND EXCHANGE COMMISSION.
* * * * *
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
UNITED INDUSTRIES CORPORATION
By
---------------------------
Name:
--------------------
Title:
--------------------
--------------------
OPTIONEE:
-----------------------------
<Page>
ANNEX I
The Performance Goals with respect to each fiscal year from 2001 through 2004
are as follows:
<Table>
<Caption>
Fiscal Year Bank Plan Growth Plan
----------- --------- -----------
Aggregate
========= ========= ===========
</Table>