Exhibit 10.49
PERRIGO COMPANY
NONQUALIFIED STOCK OPTION
AGREEMENT
(Under the Perrigo Company 2008
Long-Term Incentive Plan)
TO:
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RE:
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Notice of
Nonqualified Stock Option
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This is to notify you that Perrigo
Company (the “Company”) has granted you an Award under
the Perrigo Company 2008 Long-Term Incentive Plan (the
“Plan”), effective as of
(the “Grant Date”). This Award consists of a
nonqualified stock option. The terms and conditions of this
incentive are set forth in the remainder of this agreement (the
“Agreement”). The capitalized terms that are not
otherwise defined in this Agreement shall have the meanings
ascribed to such terms under the Plan.
SECTION 1
Nonqualified Stock
Option
1.1 Grant of Option . As of
the Grant Date, and subject to the terms and conditions of this
Agreement and the Plan, the Company grants you a nonqualified stock
option (the “Option”) to purchase
shares of the Company’s common stock, without par value
(“Common Stock”), at a per share price of $
(the “Option Price”), which is equal to the Fair Market
Value of such Common Stock as of the Grant Date.
1.2 Timing and Duration of
Exercise .
(a) The Option shall vest with
respect to one-third of the Shares awarded in Section 1.1 on
each of the first, second and third anniversaries of the Grant Date
(each a “Vesting Date”), with the vesting of any
fractional shares frontloaded to the first such Vesting Date.
Subject to the requirements of subsection (b) below, vested
Shares may be exercised after the applicable Vesting Date.
Notwithstanding the foregoing, any portion of the Option that has
not vested or been forfeited previously shall immediately vest in
full upon, and, subject to subsection (b) below, may be
exercised in whole or in part after, (1) the occurrence of a
Change of Control that occurs while you are employed by or
otherwise providing service to the Company or one of its
subsidiaries, or (2) your death, Disability, or
Retirement.
(b) Except as provided below, the
vested Option must be exercised by you, if at all, while you are
providing service to the Company or one of its subsidiaries or
within three months following your Termination Date, but in no
event after
(the “Expiration Date”). If your Termination Date
occurs by reason of your Retirement, death or Disability, the
Option may thereafter be exercised by you, or in the event of your
death, by your estate or your designated beneficiary, or in the
event of your Disability, by you or your legal representative, at
any time prior to the Expiration Date. If you die after your
Termination Date and during the period in which the Option is
exercisable, the right to exercise the Option during such period
will be governed by Plan Section 11(d). If your Termination
Date occurs because of
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Involuntarily Termination for Economic Reasons
as determined by the Chief Executive Officer (or the Committee in
the case of an Employee subject to Section 16 of the Exchange
Act), the terms of Plan Section 11(b) shall apply.
Any portion of the Option that is
not vested pursuant to this Section 1.2 as of your employment
Termination Date will be forfeited immediately. If the Option is
not exercised as to all of the vested shares covered by the Option
within the applicable time period and in the manner provided
herein, the Option will terminate and will not be exercisable
thereafter. In no event may the Option be exercised after the
Expiration Date.
1.3 Method of Exercise . The
vested Option, or any part of it, shall be exercised by written
notice directed to the President, Chief Financial Officer or
Secretary of the Company at the Company’s principal office in
Allegan, Michigan, or by using other notification permitted by the
Company. Such notice must satisfy the following
requirements:
(a) The notice must state the Grant
Date, the number of shares of Common Stock subject to the Option,
the number of shares of Common Stock with respect to which Option
is being exercised, the person in whose name the stock certificate
or certificates for such shares of Common Stock is to be registered
and the person’s address and Social Security number (or if
more than one person, the names, addresses and Social Security
numbers of such persons).
(b) The notice shall be accompanied
by check, bank draft, money order or other cash payment, or by
delivery of a certificate or certificates, properly endorsed, for
shares of Common Stock that you have held for at least six months
and that are equivalent in Fair Market Value on the date of
exercise to the Option Price (or any combination of cash and
shares), in full payment of the Option Price for the number of
shares specified in the notice.
(c) The notice must be signed by the
person or persons entitled to exercise the Option and, if the
Option is being exercised by any person or persons other than you,
be accompanied by proof, satisfactory to the Committee, of the
right of such person or persons to exercise the Option.
(d) The Company may implement
procedures for the electronic exercise of this Option, in which
case the vested portion of this Option shall be exercisable in
accordance with such procedures.
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SECTION 2
General Terms and
Conditions
2.1 Nontransferability . The
Award under this Agreement shall not be transferable other than by
will or by the laws of descent and distribution. During your
lifetime, the Option granted under this Agreement shall be
exercisable only by you or by your guardian or legal representative
in the event of your Disability.
2.2 No Rights as a
Stockholder . You shall not have any rights as a stockholder
with respect to any shares of Common Stock subject to the Option
prior to the date of issuance to you of a certificate or
certificates for such shares.
2.3 Cause Termination . If
your Termination Date occurs for reasons of Cause, all of your
rights under this Agreement, whether or not vested, shall terminate
immediately.
2.4 Awards Subject to Plan .
The granting of the Award under this Agreement is being made
pursuant to the Plan and the Award shall be exercisable only in
accordance with the applicable terms of the Plan. The Plan contains
certain definitions, restrictions, limitations and other terms and
conditions all of which shall be applicable to this Agreement.
ALL THE PROVISIONS OF THE PLAN ARE INCORPORATED HEREIN BY
REFERENCE AND ARE MADE A PART OF THIS AGREEMENT IN THE SAME MANNER
AS IF EACH AND EVERY SUCH PROVISION WERE FULLY WRITTEN INTO THIS
AGREEMENT. Should the Plan become void or unenforceable by
operation of law or judicial decision, this Agreement shall have no
force or effect. Nothing set forth in this Agreement is intended,
nor shall any of its provisions be construed, to limit or exclude
any definition, restriction, limitation or other term or condition
of the Plan as is relevant to this Agreement and as may be
specifically applied to it by the Committee. In the event of a
conflict in the provisions of this Agreement and the Plan, as a
rule of construction the terms of the Plan shall be deemed superior
and apply.
2.5 Adjustments in Event of
Change in Common Stock . In the event of a stock split, stock
dividend, recapitalization, reclassification or combination of
shares, merger, sale of assets or similar event, the number and
kind of shares subject to Award under this Agreement, and the
exercise price thereof, will be appropriately adjusted in an
equitable manner to prevent dilution or enlargement of the rights
granted to or available for you.
2.6 Withholding . This Award
is subject to the withholding of all applicable taxes. The Company
may withhold, or permit you to remit to the Company, any Federal,
state or local taxes applicable to the grant, vesting or other
event giving rise to tax liability with respect to this Award. If
you have not remitted the full amount of applicable withholding
taxes to the Company by the date the Company is required to pay
such withholding to the appropriate taxing authority (or such
earlier date that the Company may specify to assist it in timely
meeting its withholding obligations), the Company shall have the
unilateral right to withhold Common Stock relating to this
Award in the amount it determines is sufficient to
satisfy the minimum tax withholding required by law. State taxes
will be withheld at the appropriate rate set by the state in which
you are employed or were last employed by the Company. You may
elect to surrender previously acquired Common Stock or to have the
Company withhold Common Stock relating to this award in an amount
sufficient to satisfy all or a portion of the minimum tax
withholding required by law.
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2.7 Compliance with Applicable
Law . Notwithstanding any other provision of this Agreement,
the Company shall have no obligation to issue any shares of Common
Stock under this Agreement if such issuance would violate any
applicable law or any applicable regulation or requirement of any
securities exchange or similar entity.
2.8 Data Privacy . By
entering into this Agreement and accepting this Award, you
(a) explicitly and unambiguously consent to the collection,
use and transfer, in electronic or other form, of any of your
personal data that is necessary to facilitate the implementation,
administration and management of the Award and the Plan,
(b) understand that the Company may, for the purpose of
implementing, administering and managing the Plan, hold certain
personal information about you, including, but not limited to, your
name, home address and telephone number, date of birth, social
insurance number or other identification number, salary,
nationality, job title, and details of all awards or entitlements
to Shares granted to you under the Plan or otherwise
(“Data”), (c) understand that Data may be
transferred to any third parties assisting in the implementation,
administration and management of the Plan, including any broker
with whom the Shares issued upon vesting or exercise of the Award
may be deposited, and that these recipients may be located in your
country or elsewhere, and that the recipient’s country may
have different data privacy laws and protections than your country;
(d) waive any data privacy rights you may have with respect to
the data; and (e) authorize the Company, its subsidiaries and
its agents, to store and transmit such information in electronic
form.
2.9 Successors and Assigns .
This Agreement shall be binding upon any or all successors and
assigns of the Company.
2.10 Applicable Law . This
Agreement shall be governed by and construed and enforced in
accordance with the internal laws of the State of Michigan without
regard to principals of conflict of laws. Any proceeding related to
or arising out of this Agreement shall be commenced, prosecuted or
continued in the Circuit Court in Kent County, Michigan located in
Grand Rapids, Michigan or in the United Stated District Court for
the Western District of Michigan, and in any appellate court
thereof.
2.11 Repayment of Option
Gain/Forfeiture of Options . If the Company, as a result of
misconduct, is required to prepare an accounting restatement due to
material noncompliance with any financial reporting requirement
under the securities laws, then (a) if your equity
compensation is subject to automatic forfeiture due to such
misconduct and restatement under Section 304 of the
Sarbanes-Oxley Act of 2002, or (b) the Committee determines
you either knowingly engaged in or failed to prevent the
misconduct, or your actions or inactions with respect to the
misconduct and restatement constituted gross negligence, you shall
(i) be required to reimburse the Company for any gain
associated with any Option exercised during the twelve month period
following the first public issuance or filing with the SEC
(whichever first occurred) of the financial document embodying such
financial reporting requirement, and (ii) any outstanding
Options shall be immediately forfeited.
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We look forward to your continuing
contribution to the growth of the Company. Please acknowledge your
receipt of the Plan and this Award.
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Very truly
yours,
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Judy L. Brown
Executive Vice President &
Chief Financial Officer
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ACKNOWLEDGMENT OF
RECEIPT
I acknowledge receipt of the Perrigo
Company 2008 Long-Term Incentive Plan (the “Plan”). I
further acknowledge receipt of this Agreement and agree to the
terms and conditions expressed herein and in the Plan. I
further