EXHIBIT 4.3
FACTUAL DATA CORP.
STOCK OPTION AGREEMENT
THIS AGREEMENT, made this 4th day of May, 2001, by and between FACTUAL
DATA CORP. (the "Company"), and ________________ (the "Optionee");
EXPLANATORY STATEMENTS:
WHEREAS, the Optionee on the date hereof is an employee of the Company
or any affiliated corporation or any division thereof; and
WHEREAS, to induce the Optionee to continue in his or her employ and to
further his or her efforts in its behalf, the Company desires to grant to the
Optionee an option to purchase shares of its Common Stock;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the Company and the Optionee hereby agree as follows:
1. Grant of Option. The Company hereby grants to the Optionee on the date of
this Agreement the option to purchase ________________ shares of Common Stock of
the Company (the "Option Stock") subject to the terms and conditions herein.
This option is not granted as an incentive stock option under the Internal
Revenue Code of 1986.
2. Option Price. During the term of this option, the purchase price for the
shares of Option Stock granted herein is $____ per share, subject only to
adjustment as provided in Paragraph 13 of this Agreement.
3. Exercisability and Term of Option. This option shall vest and become
exercisable to the extent of 20% of the total number of shares of Option Stock
specified in Paragraph 1 of this Agreement upon the first anniversary of the
date the option is granted, which shall be the date above written. This option
shall vest an additional 20% of the total number of shares of Option Stock upon
each of the second, third, fourth and fifth anniversaries of the date this
option is granted; provided however, that all options granted under this
Agreement shall immediately vest and shall become immediately exercisable if the
Company (i) merges with or into another company or performs a stock exchange
with another company and is not the successor to the merger or stock exchange;
(ii) sells all or substantially all of its assets to another company; (iii)
undertakes and completes a "going private" or similar transaction; or (iv) if
there is a change in control of the Company which shall be defined as any event
which result in all of X.X. Xxxxxx, Xxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx no
longer being either officers or directors of the Company. To the extent the
Optionee does not purchase in any option year the full number of shares, which
he or she is entitled to purchase in that year, he or she may purchase the same
in any succeeding year until the term of such option shall expire. This option
shall terminate ten years from the date this option is granted unless terminated
earlier by reason of Optionee's death,
disability or termination of employment as provided in more detail in Paragraph
12 of this Agreement.
4. Personal Exercise by Optionee. This option shall, during the lifetime of the
Optionee, be exercisable only by him or her and shall not be transferable by the
Optionee, in whole or in part, other than by will or by the laws of descent and
distribution. This option shall not, voluntarily or involuntarily, be subjected
to any lien, directly or indirectly, by operation of law, or otherwise,
including execution, levy, garnishment, attachment, pledge or bankruptcy.
5. Manner of Exercise of Option. The option evidenced by this Agreement may be
exercised by the Optionee (or by his or her permitted successor or successors)
by giving written notice in the form of the notice attached hereto (the
"Exercise Notice") to the Company at its principal place of business of an
election to exercise such option. The Exercise Notice shall specify the number
of shares of Option Stock to be purchased, along with payment of the option
price:
(a) in cash or certified check, cashier's check or money order payable to
the order of the Company; or
(b) by delivery to the Company of irrevocable instructions to a broker to
deliver to the Company promptly the amount of the proceeds of the sale of all or
a portion of the Option Stock or of a loan from the broker to the Optionee
necessary to pay the exercise price; or
(c) by surrendering shares of Company common stock already owned by
Optionee or by withholding shares of Option Stock the fair market value of which
is equal to the corresponding exercise price and/or tax withholding liability
("Cashless Exercise"), but only if the Board of Directors, or a committee
thereof, in their sole discretion, authorizes the exercise of this option by
Cashless Exercise upon receipt of the Optionee's Exercise Notice indicating his
or her request for Cashless Exercise.
Upon payment of the full purchase price for the shares to be purchased,
the Company shall deliver to the Optionee certificates for the Option Stock so
purchased.
6. Rights as a Shareholder. The Optionee or a transferee of this option shall
have no rights as a shareholder with respect to any Option Stock until the date
of the issuance of a stock certificate for such shares.
7. Withholding Taxes. Upon the disposition of any stock acquired pursuant to the
exercise of this option prior to the expiration of two years from the date on
which this option was granted or prior to the expiration of one year from the
date on which this option was exercised, the Optionee shall provide relevant
information to, and make arrangements with, the Company in connection with any
applicable withholding taxes.
8. Investment Purpose and Risks. (a) As a condition to the issuance by the
Company of Option Stock pursuant to this Agreement, the Optionee shall, if
required by the Company, unless such Option Stock is registered under the
Securities Act of 1933 (i) represent that the shares of Option Stock are being
acquired for investment and not with a present intention of selling or
otherwise distributing and to make such other representations as may be
necessary in order to comply with federal and applicable state securities laws
or appropriate to qualify the issuance of the shares as exempt from the
Securities Act of 1933 and any other applicable securities laws, and (ii)
represent that Optionee shall not dispose of the shares of Option Stock in
violation of the Securities Act of 1933 or any other applicable securities laws.
The Company reserves the right to place a legend on any stock certificate issued
pursuant to the exercise of this option to assure compliance with the foregoing.
(b) Optionee acknowledges that (i) an investment in the Option Stock
involves significant risks and may represent an illiquid investment, (ii) the
Optionee is able to bear the economic risks of an investment in the Option Stock
and is able to maintain his or her investment in the Option Stock for an
indefinite period of time, and (iii) Optionee could bear a total loss of the
investment.
(c) Optionee has reviewed and understood the latest information
incorporated by reference in paragraph 9 of this Agreement and is aware that he
or she is afforded an opportunity to discuss matters pertinent to an investment
in the Option Stock with the Company upon exercise.
(d) Optionee has such knowledge and experience in financial business
matters to enable Optionee to evaluate the merits and risks of an investment in
the Option Stock. Optionees without such knowledge and experience are strongly
encouraged to consult with a financial, tax or legal advisor before investing in
the Option Stock.
9. Documents Delivered and Incorporated by Reference. Optionee acknowledges that
the Company is a reporting company under the Securities Exchange Act of 1934,
and such the Company files reports and documents pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (such as, but not
limited to, an annual report on Form 10-K, quarterly reports on Form 10-Q and
current reports on Form 8-K when required. All such reports and documents shall
be deemed to be incorporated in this Agreement by reference and to be a part
hereof from the date of filing such documents. You should review all such
reports and filings prior to exercising this option so that you may make an
informed investment decision.
The Company will provide without charge to the Optionee, on the written or
oral request of Optionee, a copy of any and all of the incorporated documents
referred to above. Written requests or oral requests by telephone for such
copies, or additional information, should be directed to Xxxx Xxxxxxxxx, Chief
Financial Officer, Factual Data Corp., 0000 Xxxxx Xxxx Xxxxx, Xxxxxxxx, Xxxxxxxx
00000. In addition, all incorporated documents referred to above can be reviewed
and obtained from the Securities and Exchange Commission's web site located at
xxxx://xxx.xxx.xxx.
10. Compliance with Securities Laws. This option shall be subject to the
requirement that, if at any time counsel to the Company shall determine that the
listing, registration or qualification of the Option Stock upon any securities
exchange or under any state or federal law, or the consent or approval of any
governmental or regulatory body, is necessary as a condition of, or in
connection with, the issuance, purchase or resale of Option Stock thereunder,
such option may not be exercised in whole or in part and such Option Stock may
not be resold unless such listing,
registration, qualification, consent or approval shall have been effected or
obtained on conditions acceptable to the Board of Directors or committee
thereto. Nothing herein shall be deemed to require the Company to apply for or
to obtain such listing, registration or qualification.
11. Termination of Employment. In the event the Optionee shall cease to be
employed by the Company for reasons other than death, disability,
reorganization, or liquidation of the Company, this option shall terminate
(notwithstanding Paragraph 3 of this Agreement) within the earlier of (1) three
months after the date of termination or (2) the originally stated expiration
date. This option shall be exercisable as provided above only to the extent the
option was exercisable on the date of termination but had not previously been
exercised.
12. Liquidation; Change in Control. This option will be discontinued in the
event of the dissolution or liquidation of the Company or in the event of a
Reorganization (as hereinafter defined) in which the Company is not the
surviving or acquiring company, or in which the Company is or becomes a
wholly-owned subsidiary of another company after the effective date of the
Reorganization. Upon notice of such an event, all unexercised shares of Option
Stock shall become fully vested, unrestricted and immediately exercisable, and
the optionee shall have up to 15 days to give notice of exercise of all or any
portion of this option upon consummation of the dissolution, liquidation or
Reorganization.
The term "Reorganization" as used in this paragraph shall mean any statutory
merger, statutory consolidation, sale of all or substantially all of the assets
of the Company, or sale, pursuant to an agreement with the Company, of
securities of the Company pursuant to which the Company is or becomes a
wholly-owned subsidiary of another company after the effective date of the
Reorganization.
13. Adjustments for Stock Splits, Dividends and Recapitalizations. If the
outstanding shares of Common Stock or other securities of the Company, or both,
for which this option is then exercisable shall at any time be changed or
exchanged by declaration of a stock dividend, stock split, or combination of
shares, the number and kind of shares of Common Stock or other securities which
are subject to this option and not previously exercised, and the exercise
prices, shall be appropriately and equitably adjusted so as to maintain the
proportionate number of shares or other securities without changing the
aggregate exercise price.
14. Full Discretion. The Company's Board of Directors shall have full and
exclusive discretionary authority to construe, interpret and apply the terms of
this Agreement and to adjudicate all disputed claims pursuant to this Agreement.
Every finding, decision and determination made by the Board shall be final and
binding upon all parties.
15. Scope of Agreement. This Agreement shall bind and inure to the benefit of
the Company and its successors and assigns and the Optionee and any successor or
successors of the Optionee permitted by Paragraph 4 above.
16. No Employment Rights. Optionee shall not by reason of this option have any
claim or right to be retained in the employ of the Company or a subsidiary
thereof; provided, however, that this paragraph shall not in any way modify or
void any written employment agreement between the Company and Optionee. The
Company or any of its subsidiaries further expressly
reserve the right at any time to dismiss optionee free from any liability, or
any claim under this Agreement, except as expressly provided herein.
17. No Assurances. Neither the Company nor any of its officers, agents, or
repre-sentatives have made or can make any assurance that either the granting or
the exercise of this option will not give rise to adverse tax consequences. This
option does not qualify as an "incentive stock option" as that term is used in
the Internal Revenue Code. Optionee should consult with their own tax advisors
with respect to the tax consequences of this option. Optionee shall have no
rights or remedies against the Company or against any of its officers, agents,
or representatives on account of any tax consequences flowing from the granting
or exercise of this option.
18. Amendments. This Option may only be altered, amended or modified in writing.
19. Governing Law. This Agreement shall be construed and shall take effect in
accordance with the laws of the State of Colorado.
IN WITNESS WHEREOF, the Company and the Optionee have executed this
Agreement in the manner appropriate to each, as of the day and year first above
written.
FACTUAL DATA CORP.
By:
--------------------------------
Xxxxx X Xxxxxx
President
OPTIONEE
-----------------------------------
FACTUAL DATA CORP.
Stock Option Agreement
Exercise Notice
1. Number of shares with respect to which the Option is being exercised:________
2. Date of grant of option: May 4, 2001
3. Exercise price of option: $8.00
4. Method of payment (check one):
(A) Certified check _________
(B) Cashiers check _________
(C) Money order _________
(D) Company Common stock/Cashless Exercise _________*
(E) Broker's check _________
6. Method of tax withholding, if applicable (check one):
(A) Personal check
(B) Payroll deduction
(C) Stockbroker check
7. Name:
Address: ________________________________
--------------------------------
--------------------------------
8. Signature: ________________________________
Title:
------------------
* If authorized by the Board of Directors of committee thereof.
Schedule of Awards
------------------------- --------------------- -------------------- ------------------- --------------------
Optionee Factual Data Shares Original Exercise As converted to New Exercise Price
Granted Price ($) Kroll Shares ($)
------------------------- --------------------- -------------------- ------------------- --------------------
Xxxx X. Xxxxxxxxx 15,000 8.00 11,225 10.69
------------------------- --------------------- -------------------- ------------------- --------------------
Xxxxxx Xxxxxxxxxx 7,500 8.00 5,613 10.69
------------------------- --------------------- -------------------- ------------------- --------------------
Xxxx Xxxxxx 7,500 8.00 5,613 10.69
------------------------- --------------------- -------------------- ------------------- --------------------
Xxx Xxxxxxx 6,500 8.00 4,864 10.69
------------------------- --------------------- -------------------- ------------------- --------------------
Xxxx Xxxxxxxx 5,000 8.00 3,742 10.69
------------------------- --------------------- -------------------- ------------------- --------------------
Xxxxx Xxxxx 5,000 8.00 3,742 10.69
------------------------- --------------------- -------------------- ------------------- --------------------
Xxxxx Xxx 4,000 8.00 2,993 10.69
------------------------- --------------------- -------------------- ------------------- --------------------
