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SMART BALANCE, INC. STOCK AND AWARDS PLAN AMENDED STOCK OPTION AGREEMENT

Option Agreement

SMART BALANCE, INC. STOCK AND AWARDS PLAN AMENDED STOCK OPTION AGREEMENT | Document Parties: SMART BALANCE, INC. You are currently viewing:
This Option Agreement involves

SMART BALANCE, INC.

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Title: SMART BALANCE, INC. STOCK AND AWARDS PLAN AMENDED STOCK OPTION AGREEMENT
Governing Law: Delaware     Date: 11/6/2008
Industry: Food Processing     Sector: Consumer/Non-Cyclical

SMART BALANCE, INC. STOCK AND AWARDS PLAN AMENDED STOCK OPTION AGREEMENT, Parties: smart balance  inc.
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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”).

1.

Option Grant .



        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.

Number of Option Shares


 

Exercise Price Per Option Share


 


«Total_Options»

«Exercise_Price»



2.

Option Type .



        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”).

3.

Term of Option .



        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.


4.

Vesting .



        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.

Anniversary of Grant Date


 

Vested Percentage of Award


 

1st Anniversary

25%

2nd Anniversary

50%

3rd Anniversary

75%

4th Anniversary

100%

         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.

5.

Change in Control Vesting .



        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.

6.

Exercise .



        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.

- 2 -


        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:

 

        a.     in cash;



 

        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



 

        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.



        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.

7.

Impact of Termination of Employment on Option .



        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


 
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