Exhibit 10.1
SMART BALANCE, INC. STOCK AND AWARDS
PLAN
AMENDED STOCK OPTION AGREEMENT
To:
«Name» (“you”)
Smart
Balance, Inc. (the “Company”) previously granted you a
stock option award (“Prior Award”), effective
«Grant_Date» (the “Grant Date”) under the
terms of the Smart Balance, Inc. Stock and Awards Plan (the
“Prior Plan”). The Prior Plan was amended and restated
effective August 7, 2008 in the form of the Amended and Restated
Smart Balance, Inc. Stock and Awards Plan (“Plan”),
which is incorporated into this Agreement by reference. The Award
evidenced by this Agreement (the “Option”) amends,
restates, and supersedes the Prior Award in all respects in order
to bring the Prior Award into compliance with Section 409A of the
Internal Revenue Code. It is the intent of the parties that this
Option shall not be treated as the grant of a new Award or result
in the addition of a deferral feature to the Prior Award for
purposes of Section 409A of the Code and Treas. Reg.
§§1.409A-1(b)(5)(v), but rather is intended as and shall
be construed as an amendment to the Prior Award that does not
provide a direct or indirect reduction in the exercise price or any
additional deferral feature.
Initially
capitalized terms used in this Agreement and defined in the Plan
shall have the meanings given to such terms in the Plan. Copies of
the Plan are available from the Compensation Committee of the
Company’s Board of Directors
(“Committee”).
Your
Option permits you to purchase, on the terms and conditions set
forth in this Agreement, the number of shares (the “Option
Shares”) of the Company’s common stock (the
“Common Stock”), at the exercise price (the
“Exercise Price”) set forth in the following
table.
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Number of Option
Shares
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Exercise Price Per Option
Share
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«Total_Options»
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«Exercise_Price»
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Your
Option is a non-qualified stock option and is intended to conform
in all respects with the Plan. This Option is not intended to
qualify as an incentive stock option within the meaning of Section
422 of the Internal Revenue Code of 1986, as amended (the
“Code”).
As
a general matter, your right to exercise the Option will expire on
the tenth anniversary of the Grant Date (the “Expiration
Date”). As provided below, your right to exercise the Option
may expire prior to the Expiration Date, if you die or your
employment with the Company terminates.
You
may exercise the Option only to the extent that the Option is
vested. The Option with respect to «TimeVested_Options»
Shares (“Time Vested Award”) will vest over time and
with respect to «PriceVested_Options» Shares
(“Price Vested Award”) will vest based on the closing
price of the Company’s common stock during the term of the
Option.
Time Vested Award . Your right to exercise the Time Vested
Award will vest over time in accordance with the following
schedule, provided you are employed with the Company or any of its
Subsidiaries (collectively, the “Smart Balance
Companies”) on the applicable Anniversaries of the Grant Date
listed below.
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Anniversary of Grant
Date
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Vested Percentage of
Award
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1st Anniversary
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25%
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2nd Anniversary
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50%
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3rd Anniversary
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75%
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4th Anniversary
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100%
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Price Vested Award . Your right to exercise the Price Vested
Award will vest or not depending on the closing price of the
Company’s common stock. Fifty percent (50%) of the Price
Vested Award will vest if the closing price for a share of Company
common stock is at least $16.75 per share for any twenty (20) of
thirty (30) consecutive trading days during the term of the Option
and fifty percent (50%) of the Price Vested Award will vest if the
closing price for a share of Company common stock is at least
$20.25 per share for any twenty (20) of thirty (30) consecutive
trading days during the term of the Option.
Except
as otherwise provided in Section 7 below, if your employment with
the Smart Balance Companies terminates you will forfeit that
portion of the Award that is not vested on the date of your
termination.
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5.
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Change in
Control Vesting .
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In
the event that a Change of Control occurs with respect to the
Company, any portion of your Option that is not vested shall vest,
and become exercisable, upon such Change in Control.
Prior
to the Expiration Date and at any time during your employment with
the Smart Balance Companies, you may exercise all or a portion of
your Option, to the extent vested, by designating the number of
Option Shares to be acquired in accordance with the exercise
procedures established by the Committee from time to time. Your
right to exercise the Option to the extent vested following the
date your employment terminates will depend on the reason for such
termination, as described in Section 7 below.
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You
must pay to the Company at the time of exercise the sum of (i) the
full amount of the Exercise Price for the number of Option Shares
to be acquired and (ii) an amount equal to the aggregate minimum
federal, state and local income and employment taxes that the
Company is required to withhold and deposit on behalf of you with
respect to your exercise (“Tax Obligation”).
You
may elect to pay the Exercise Price or your Tax Obligation by
having the Company reduce the number of Option Shares you receive
upon such exercise. Alternatively, you may pay the Exercise Price
or your Tax Obligation:
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b.
by surrendering to the Company previously acquired shares of Common
Stock having a Fair Market Value at the time of exercise equal to
the Exercise Price or Tax Obligation; or
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c.
to the extent permitted by applicable law, by delivery of
irrevocable instructions to a broker to (1) promptly deliver to the
Company the amount of sale proceeds from the Option Shares or other
proceeds to pay the Exercise Price or the Tax Obligation, and (2)
deliver to you the balance of the Option Share proceeds in the form
of cash or shares of Common Stock.
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If
you pay the Exercise Price or your Tax Obligation by surrender of
shares of Common Stock, you must also submit proof acceptable to
the Company substantiating your ownership of those shares. The
value of previously acquired shares of Common Stock used to pay the
Exercise Price (either directly or by attestation) of the Option
Shares to be acquired or your Tax Obligation shall be equal to the
aggregate Fair Market Value of such previously acquired shares of
Common Stock on the date of the exercise. Your Option will be
considered finally exercised on the date on which your payment of
the Exercise Price and Tax Obligation is received by the Company.
By exercising any portion of the Option, you are accepting all of
the terms and conditions specified in this Agreement.
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7.
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Impact of
Termination of Employment on Option .
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Except
as otherwise expressly provided in this Section 7 or otherwise
agreed to by the Committee, if your employment with the Smart
Balance Companies terminates, (i) you will forfeit that portion of
your Option that is not vested on the date of your termination and
(ii) you will have a limited period in which to exercise such
portion of any Option as was vested on the date of your
termination. The Committee, in its sole discretion, shall be
authorized to determine the nature of any termination of employment
and your rights under this Section 7 as a result of such
termination and such determination shall be binding for all
purposes under this Section 7.
(a)
Death or Disability . If you die or if the Company elects to
terminate your employment with the Smart Balance Companies due to
your Disability, (i) your Option to the extent not previously
vested will vest and become non-forfeitable as of the date of your
death or the date your employment terminates due to your Disability
and (ii) your Option may b