1
Exhibit 10.63
Type 2 -A- Non Plan
-------------------
New Officer
-----------
Xxxxx - Xxxxx 2
---------------
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, Optionee has made the grant of options hereunder a
condition of his acceptance of the Company's offer of employment as Executive
Vice President and Chief Financial Officer of the Company;
WHEREAS, the Compensation Committee of the Board of Directors
of the Company has authorized a grant of stock options on the terms hereof to
the Optionee in order to induce him to accept such employment; 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
("Common Stock"), par value $.001 per share, of the Company's 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:
2
Type 2-A - Non Plan - New Officer
---------------------------------
2
----------------------------------------------------------------------------
----------------------------------------------------------------------------
1/2 of the Original Award The first anniversary of the Grant Date; and
----------------------------------------------------------------------------
1/2 of the Original Award The second anniversary of the Grant Date.
----------------------------------------------------------------------------
To the extent exercisable, the Options may be exercised in whole or in part from
time to time.
(b) If prior to the second anniversary of the date of
this Agreement, a Change in Control occurs, all 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.
(c) If, prior to the second anniversary of the Grant
Date, a Termination Event occurs or Optionee terminates his employment for Good
Reason, 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 Termination Event occurs on an anniversary of the Grant Date, no additional
Options will become vested and exercisable besides those that became vested and
exercisable as of that anniversary). Thereupon, all remaining unvested Options
will be forfeited and cancelled.
(d) If the Optionee dies or becomes permanently
disabled while in the employ 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 or
before the end of twelve months from the date of death. Thereupon, all remaining
Unvested Options will be forfeited and cancelled.
(e) If Optionee's employment is terminated for Cause,
all unvested Options will be forfeited and cancelled.
3
Type 2-A - Non Plan - New Officer
---------------------------------
3
(f) Any exercise of the Options must be made in
writing by the Optionee delivered to the Secretary of the Company. To the extent
exercisable, the Options may be exercised in whole or in part from time to time.
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) or 1(d)) at the Exercise Price shown on
the signature page hereof.
(b) The Exercise Price for any shares may be paid in
cash or by check.
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 (other than for Good Reason or after a Change of Control) if prior to
the Retirement Date without the consent of the Chairman of the Board (unless
otherwise provided in an agreement relating to employment) 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 and subject to the provisions of Paragraph 3(d) below, five
years after either (i) the date on which the Optionee ceases to be an employee
of the Company or a Subsidiary if Optionee remains employed until the Retirement
Date or earlier resigns with the consent of the Chairman of the Board 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;
4
Type 2-A - Non Plan - New Officer
---------------------------------
4
(c) One year 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 of a Termination Event or
Optionee terminates his employment with Good Reason or after a Change in
Control, both prior to the Retirement Date;
(e) 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
(f) 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
5
Type 2-A - Non Plan - New Officer
---------------------------------
5
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 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
6
Type 2-A - Non Plan - New Officer
---------------------------------
6
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 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.
"Cause" means Optionee's gross neglect of duty, material
dishonesty in the performance of Optionee's duties or his failure to discharge
his duties due to alcohol or drug addiction.
"Change in Control" means if at any time any of the following
events shall have occurred:
(a) the Company merges into itself, or is merged or
consolidated with, 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
7
Type 2-A - Non Plan - New Officer
---------------------------------
7
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;
(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
8
Type 2-A - Non Plan - New Officer
---------------------------------
8
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.
"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.
"Good Reason" means (i) Xxxxxxx X. Xxxx is terminated by the
Company other than for cause or (ii) Xxxxxxx X. Xxxx voluntarily terminates his
employment other than for disability or death as Chairman of the Board of the
Company.
"Grant Date" means the date indicated on the signature page
hereof as the Grant Date.
"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).
9
Type 2-A - Non Plan - New Officer
---------------------------------
9
"Retirement Date" means February 1, 2003 or such other date as
the Company and Optionee shall agree.
"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 Event" means the Optionee's ceasing to be an
employee of the Company or its Subsidiaries by reason of termination by the
employer of the Optionee's employment without Cause.
"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.
10
Type 2-A - Non Plan - New Officer
---------------------------------
10
"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. ACKNOWLEDGMENT. The undersigned Optionee hereby
acknowledges receipt of an executed original of this Agreement and accepts the
Options granted hereunder.
11
Type 2-A - Non Plan - New Officer
---------------------------------
11
Nonqualified Stock Option Agreement
-----------------------------------
EXECUTED at Cleveland, Ohio as of the date first set
forth above.
XXXX NATIONAL CORPORATION
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Title:
/s/ Xxxxxx X. X. Kaung
--------------------------------------
OPTIONEE - Xxxxxx X. X. Kaung
Name of Optionee: Xxxxxx X. X. Kaung
Name of Employer: Xxxx National Corporation
Position: Executive Vice President and Chief
Financial Officer
Number of Shares
in the Original Award: 50,000
Grant Date: March 23, 2000
Exercise Price per Share: $6.500
