Type 2-'99 Plan
Exhibit 10.4
XXXX NATIONAL CORPORATION
Nonqualified Stock Option Agreement
This Nonqualified Stock Option Agreement (this "Agreement") is entered into
between the individual optionee named on the signature page hereof (the
"Optionee") and Xxxx National Corporation, a Delaware corporation (the
"Company"), as of the Grant Date. Certain capitalized terms used herein are
defined in Paragraph 8.
WHEREAS, the Board of Directors of the Company has authorized a grant of
stock options on the terms hereof to the Optionee in connection with his
commencement of employment in the capacity shown on the signature page; and
NOW, THEREFORE, the Company hereby grants to the Optionee options (the
"Options") pursuant to the Company's 1999 Broad Based Employee Stock Option Plan
(the "Plan") to purchase the number of shares of Common Stock, par value $.001
per share, of the Company ("Common Stock") shown as the Original Award on the
signature page hereof; and agrees to cause certificates for any shares purchased
hereunder to be delivered to the Optionee upon payment of the purchase price in
full, all subject, however, to the terms and conditions of the Plan and as
hereinafter set forth.
1. Exercise. (a) Except as otherwise provided herein, the Options (until
terminated as hereinafter provided) will become vested and exercisable as
follows:
Type 2-'99 Plan
---------------
2
1/4 of the Original Award The first anniversary of the Grant Date; and
1/4 of the Original Award The second anniversary of the Grant Date; and
1/4 of the Original Award The third anniversary of the Grant Date; and
All Unvested Shares The fourth anniversary of the Grant Date
To the extent exercisable, the Options may be exercised in whole or in part from
time to time.
(b) Upon the occurrence of a Change of Control prior to the fourth
anniversary of the date of this Agreement, the Options, in addition to any
vesting pursuant to the provisions of Paragraph 1(a) above, will become
exercisable in full as to any then Unvested Shares immediately prior to the
consummation of such Change in Control.
(c) (i) If Grantee's employment with the Company terminates as the
result of a Termination Without Cause or Termination With Good Reason before the
first anniversary of the Grant Date and the conditions of Paragraph L of that
certain Letter Agreement between Grantee and the Company dated April 19, 2002
have been satisfied, than twenty-five percent (25%) of the Unvested Shares shall
vest as of the date of the Termination Without Cause or Termination With Good
Reason.
Type 2 -- '99 Plan
3
(ii) If Grantee's employment with the Company terminates as the
result of a Termination Without Cause or Termination With Good Reason on or
after the first anniversary of the Grant Date and the conditions of Paragraph L
of that certain Letter Agreement between Grantee and the Company dated April
19, 2002 have been satisfied, than 50% of the Unvested Shares shall vest as of
the date of the Termination Without Cause or Termination With Good Reason.
(d) If a Sale Event occurs prior to the fourth anniversary of the
Grant Date and the Optionee is not a Full-Time Employee of the Company or a
continuing Subsidiary immediately after the Sale Event, the Options will, in
addition to any prior vesting pursuant to Paragraph 1(a) above, immediately
become exercisable with respect to those Unvested Shares that would have vested
on the next succeeding anniversary of the Grant Date (if the Sale Event occurs
on an anniversary of the Grant Date, no additional Options will become
exercisable besides those that became exercisable as of that anniversary).
Thereupon, all remaining Unvested Options will be forfeited and cancelled.
(e) If the Optionee dies or becomes permanently disabled while in
the employ of the Company or any Subsidiary, or the Optionee retires under a
retirement plan of the Company or any Subsidiary, the Options will, in addition
to any vesting pursuant to Paragraph 1(a) above, immediately become exercisable
with respect to those Unvested Shares that would have vested on the next
succeeding anniversary of the Grant Date (if the event occurs on an anniversary
of the Grant Date, no additional Options will become exercisable besides those
that
Type 2 -- '99 Plan
4
became exercisable as of that anniversary). Thereupon, all remaining Unvested
Options will be forfeited and cancelled.
(f) Any exercise of the Options must be made in writing
by the Optionee delivered to the Secretary of the Company.
2. Exercise Price and Payment; Reload Options. (a) The Options
will be exercisable for Vested Shares (whether such vesting occurs pursuant to
Paragraph 1(a), 1(b), 1(c), 1(d) or 1(e)) at the Exercise Price shown on the
signature page hereof.
(b) The Exercise Price for any shares may be paid (i) in
cash or by check, (ii) by actual or constructive transfer to the Company of
Mature Shares, or (iii) by a combination of such methods of payment.
(c) If, at a time at which the Optionee is a Full-time
Employee, the Optionee pays the Exercise Price of shares by delivery of Mature
Shares, additional option rights ("Reload Option Rights") shall, subject to the
provisions hereinafter set forth, be automatically granted to the Optionee
equal to the sum of the number of Mature Shares transferred to the Company with
respect to such Exercise Price. In no event, however, shall Reload Option
Rights be granted unless the remainder of the original ten (10) year term of
the option being exercised is greater than six (6) months at the time of such
exercise. Such Reload Option Rights shall not be exercisable during the six (6)
month period immediately following the date of grant of such Reload Option
Rights. The Exercise Price of such Reload Option Rights shall be one hundred
(100) percent of the Stock Price per share on the day of the exercise of the
Options to which such Reload Option Rights relate. Such Reload Option Rights
shall terminate at such time as the Options being exercised would have
terminated had they not been exercised. Such Reload
Type 2 - '99 Plan
-----------------
5
Option Rights will be evidenced by an agreement in form substantially the same
as this Agreement, with appropriate changes. Reload Option Rights will not be
granted with respect to any Options that have been transferred by the original
Optionee.
3. Termination. The Options will terminate and all Unvested and Vested
Options then outstanding will be forfeited on the earliest of the following
dates:
(a) On the date on which the Optionee voluntarily resigns (unless
otherwise provided in a written agreement relating to employment or such
resignation constitutes a Termination With Good Reason) or ceases to be an
employee of the Company or a Subsidiary by reason of termination of employment
for Cause;
(b) Subject to possible extension pursuant to Paragraph 3(c) below,
five years after either (i) the date on which the Optionee ceases to be an
employee of the Company or a Subsidiary by reason of retirement under a
retirement plan of the Company or a Subsidiary at or after the earliest
voluntary retirement age provided for in such retirement plan or retirement at
an earlier age with the consent of the Company's Board of Directors or the
Compensation Committee or (ii) the date of permanent disability of the Optionee
if the Optionee becomes permanently disabled while an employee of the Company
or a Subsidiary;
(c) Five years after the date of the death of the Optionee if the
Optionee dies while an employee of the Company or a Subsidiary or one year
after the date of death of the Optionee if the Optionee dies during the fifth
year of the five year period referred to in Paragraph 3(b) above;
(d) One year after the date Grantee's employment with the Company
terminates as the result of a Termination Without Cause or Termination For Good
Reason;
Type 2 -- '99 Plan
------------------
6
(e) On the first anniversary of the date of a Sale Event if the
Optionee is not a Full-Time Employee of the Company or a continuing Subsidiary
immediately after the Sale Event;
(f) Immediately (x) upon the Optionee accepting employment with a
Competitor without the prior written approval of the Company's Chief Executive
Officer or (y) upon a material breach by the Optionee of any applicable
agreement with the Company or a Subsidiary relating to non-competition,
non-solicitation or maintaining of Company confidences; or
(g) Ten years from the Grant Date.
4. Transferability. Unless otherwise approved by the Compensation
Committee following a request from the Optionee or the Optionee's guardian or
legal representative, the Options are not transferable by the Optionee
otherwise than by will or the laws of descent and distribution. If another type
of transfer is approved by the Compensation Committee, a transfer will only be
effective when the transferee of the Options enters into an agreement with the
Company (in form and substance acceptable to the Company) agreeing to be bound
by the provisions of this Agreement as if such transferee were the Optionee. If
exercised during the lifetime of the Optionee, the Options are exercisable only
by the Optionee or by the Optionee's guardian or legal representative, or by an
transferee authorized as provided in this Paragraph.
5. Securities Laws. The Options are not exercisable if such exercise
would involve a violation of any applicable federal, state or other securities
law, and the Company hereby agrees to make reasonable efforts to comply with
such securities laws. The Options are
Type 2 -- '99 Plan
------------------
7
not exercisable unless under said laws at the time of exercise the shares of
Common Stock or other securities purchasable hereunder are exempt, are the
subject matter of an exempt transaction, or are registered in accordance with
such laws.
6. Adjustments. (a) The Board of Directors or the Compensation
Committee shall make such adjustment in the option price and in the number or
kind of shares of Common Stock or other securities covered by the Options as
such Board or Committee may in good faith determine is equitably required to
prevent dilution or enlargement of the rights of the Optionee that otherwise
would result from (i) any stock dividend, stock split, combination of shares,
recapitalization or other change in the capital structure of the Company, or
(ii) any merger, consolidation, spin-off, split-off, spin-out, split up,
reorganization, partial or complete liquidation or other distribution of assets,
issuance of rights to purchase securities, or (iii) any distribution to the
holders of the Common Stock of rights or warrant to purchase equity interests of
the Company, or (iv) any other corporate transaction or event having an effect
similar to any of the foregoing. Moreover, in the event of any such transaction
or event, the Board of Directors or the Compensation Committee, in its
discretion, may provide in substitution for any or all outstanding awards under
the Options such alternative consideration as it, in good faith, may determine
to be equitable in the circumstances and may require in connection therewith the
surrender of all awards so replaced.
(b) In the event that any provision of this Agreement would result in
a calculation of a number of shares in amounts other than a whole number, the
number of shares so calculated will be reduced or increased to the nearest whole
number (rounding 0.50 up), with the
Type 2 -- '99 Plan
------------------
8
effect of any such rounding deemed to attach to the last group of shares to be
so calculated (with calculations to be conducted in alphabetical or numerical
order, as applicable).
7. Withholding. If the Company is required to withhold any
federal, state, local or foreign tax in connection with the exercise of the
Options, it will be a condition to such exercise that the Optionee make
provision satisfactory to the Company for payment of all such taxes.
8. Definitions. The following capitalized terms have meanings as
set forth below.
"Change of Control" means if at any time any of the following events
shall have occurred:
(a) the Company merges or is consolidated with or into
another corporation and as a result of such merger or consolidation less than
51% of the voting power of the then-outstanding voting securities of the
surviving or resulting corporation immediately after such transaction are
directly or indirectly beneficially owned in the aggregate by the former
stockholders of the Company immediately prior to such transaction;
(b) all or substantially all the assets accounted for on
the consolidated balance sheet of the Company are sold or transferred to one or
more corporations or persons, and as a result of such sale or transfer less
than 51% of the voting power of the then-outstanding voting securities of such
corporation or person immediately after such sale or transfer is directly or
indirectly beneficially held in the aggregate by the former stockholders of the
Company immediately prior to such transaction or series of transactions;
Type 2 -- '99 Plan
9
(c) A person, within the meaning of Section 3(a)(9) or 13(d)(3) (as
in effect on the date hereof) of the Securities Exchange Act of 1934, becomes
the beneficial owner (as defined in Rule 13d-3 of the Securities and Exchange
Commission pursuant to the Securities Exchange Act of 1934) of (i) 15% or more
but less than 35% of the voting power of the then-outstanding voting securities
of the Company without the prior approval by the Board, or (ii) 35% or more of
the voting power of the then-outstanding voting securities of the Company;
provided, however, that the foregoing does not apply to any such acquisition
that is made by (w) any subsidiary of the Company; (x) any employee benefit
plan of the Company or of any Subsidiary or (y) any person or group of which
employees of the Company or of any Subsidiary control a greater than 25%
interest unless the Board of Directors of the Company determines that such
person or group is making a "hostile acquisition;"
(d) A majority of the members of the Board of Directors of the
Company or of any Subsidiary are not Continuing Directors, where a "Continuing
Director" is any member of the Board of Directors of the Company or, with
respect to a Subsidiary, of such Subsidiary who (x) was a member of the Board
of Directors of the Company or, with respect to a Subsidiary, of such
Subsidiary on the date hereof or (y) was nominated for election or elected to
such Board of Directors with the affirmative vote of a majority of the
Continuing Directors who were members of such Board at the time of such
nomination or election.
"Competitor" means any Person that competes with any then-existing
business of the Company or any Subsidiary.
"Exercise Price" means the exercise price per share indicated as the
Exercise Price per share on the signature page hereof.
Type 2 - '99 Plan
10
"Full-time Employee" means a person having the status of a full-time
employee of the Company or a Subsidiary working at least 20 hours a week,
including a person who is on a short-term disability, parental or other leave
under an applicable benefit plan or other approved leave.
"Grant Date" means July 15, 2002.
"Mature Shares" means (x) nonforfeitable, unrestricted shares of Common
Stock that have been owned by the Optionee for more than six (6) months prior to
the date of exercise, or (y) shares of restricted stock or other shares of
Common Stock that are forfeitable or subject to restrictions on transfer,
including, without limitation, shares of Common Stock issued pursuant to the
earn out of performance shares or performance units, which shares have been
owned by the Optionee for more than six (6) months and that the Company agrees
to accept as consideration, or (z) such other Company securities as the
Company's chief accounting officer, upon consultation with the Company's
independent accountants, determines will not adversely affect the Company's tax
or accounting position by accepting.
"Original Award" means the number of shares of Common Stock indicated as
the Original Award on the signature page hereof.
"Person" means any corporation, partnership, limited liability company,
association, firm, other entity or individual(s).
"Sale Event" means the consummation of a sale or other event by which the
Subsidiary by which the Optionee is primarily employed ceases to be a Subsidiary
of the Company.
Type 2 - '99 Plan
11
"Stock Price" means the closing price of the Common Stock on the principal
exchange on which the Common Stock is traded.
"Subsidiary" means any corporation (other than the Company) in an unbroken
chain of corporations beginning with the Company if each of the corporations (or
a group of corporations that themselves are Subsidiaries) other than the last
corporation in the unbroken chain owns stock possessing fifty percent or more of
the total combined voting power of all classes of stock in one of the other
corporations in such chain. For purposes of this Agreement, the continuous
employment of the Optionee with the Company or a Subsidiary will not be deemed
interrupted, and the Optionee will not be deemed to have ceased to be an
employee of the Company or any Subsidiary, by reason of the transfer of his
employment among the Company and its Subsidiaries.
"Termination Without Cause" shall have the same meaning as set forth in
that certain Letter Agreement between Grantee and Company dated April 19, 2002.
"Termination Without Good Reason" shall have the same meaning as set forth
in that certain Letter Agreement between Grantee and Company dated April 19,
2002.
"Trading Days" means days on which the principal exchange on which the
Common Stock is traded is open for trading, regardless whether actual trading
in the Common Stock occurs.
"Unvested Shares" means, as of any given time, those shares of Common
Stock relating to the Options that are not, at the time in question, otherwise
permitted, under the terms of this Agreement, to be acquired pursuant to the
exercise of the Options.
Type 2 - '99 Plan
-----------------
12
"Vested Shares" means, as of any given time, those shares of Common Stock
relating to the Options that are, at the time in question, otherwise permitted,
under the terms of this Agreement, to be acquired pursuant to the exercise of
the Options.
9. Acknowledgement. The undersigned Optionee hereby acknowledges receipt
of an executed original of this Agreement and accepts the Options granted
hereunder.
Type 2 - '99 Plan
-----------------
13
Nonqualified Stock Option Agreement
-----------------------------------
EXECUTED at Cleveland, Ohio as of the date first set forth above.
XXXX NATIONAL CORPORATION
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Xxxxxx X. Xxxx, Senior Vice President
Title: Senior Vice President
----------------------------------
/s/ Xxxxxxxx X. Xxxxx
-----------------------------------------
OPTIONEE -- Xxxxxxxx X. Xxxxx
Name of Optionee: Xxxxxxxx X. Xxxxx
Name of Employer: Xxxx National Corporation
Position: Executive Vice President & Chief
Financial Officer
Number of Shares
in the Original Award: 75,000
Grant Date: July 15, 2002
Exercise Price per Share: $17.55
