Exhibit 10.62
THE 2001 AMENDED AND RESTATED EQUITY PARTICIPATION PLAN OF
SCPIE HOLDINGS INC.
INCENTIVE STOCK OPTION AGREEMENT
THIS INCENTIVE STOCK OPTION AGREEMENT (this "Agreement"), dated
___________, is made by and between SCPIE HOLDINGS INC., a Delaware corporation
(the "Company"), and ____________, an employee of the Company or a Subsidiary of
the Company (the "Employee"):
WHEREAS, the Company wishes to afford the Employee the opportunity
to purchase shares of its $.0001 par value Common Stock; and
WHEREAS, the Company wishes to carry out the 2001 Amended and
Restated Equity Participation Plan of SCPIE Holdings Inc. (the "Plan"), the
terms of which are hereby incorporated by reference and made a part of this
Agreement; and
WHEREAS, the Committee, appointed to administer the Plan, has
determined that it would be to the advantage and best interest of the Company
and its shareholders to grant the Incentive Stock Option provided for herein
(the "Option") to the Employee as an inducement to enter into or remain in the
service of the Company or its Subsidiaries and as an incentive for increased
efforts during such service, and has advised the Company thereof and instructed
the undersigned officers to issue said Option;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto do hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 - Definitions
All capitalized terms used herein without definition shall have the
meanings ascribed to such terms in the Plan. All capitalized terms when used in
this Agreement shall have the meaning specified in the Plan or in the Agreement,
as applicable, unless the context clearly indicates to the contrary. The
masculine pronoun shall include the feminine and neuter, and the singular the
plural, where the context so indicates.
ARTICLE II
GRANT OF OPTION
Section 2.1 - Grant of Option
In consideration of the Employee's agreement to remain in the
employ of the Company or its Subsidiaries and for other good and valuable
consideration, on the date hereof the Company irrevocably grants to the Employee
the option to purchase any part or all of an aggregate of
____________ shares of its $.0001 par value Common Stock upon the terms and
conditions set forth in this Agreement.
Section 2.2 - Purchase Price
The purchase price of the shares of stock covered by the Option
shall be $_______ per share without commission or other charge.
Section 2.3 - Consideration to Company
In consideration of the granting of this Option by the Company, the
Employee agrees to render faithful and efficient services to the Company or a
Subsidiary, with such duties and responsibilities as the Company shall from time
to time prescribe, for a period of at least one (1) year from the date this
Option is granted. Nothing in this Agreement or in the Plan shall confer upon
the Employee any right to continue in the employ of the Company or any
Subsidiary, or as a Director of the Company, or shall interfere with or restrict
in any way the rights of the Company and its Subsidiaries, which are hereby
expressly reserved, to discharge the Employee at any time for any reason
whatsoever, with or without cause.
Section 2.4 - Adjustments in Option
The Committee shall make adjustments with respect to the Option in
accordance with the provisions of Section 10.3 of the Plan; provided, however,
that each such adjustment shall be made in such manner as not to constitute a
"modification" within the meaning of Section 424(h)(3) of the Code, unless the
Employee consents to an adjustment which would constitute such a "modification".
ARTICLE III
PERIOD OF EXERCISABILITY
Section 3.1 - Commencement of Exercisability
(a) The Option shall become exercisable in three (3) cumulative
installments as follows:
(i) The first installment shall consist of one-third (1/3rd)
of the shares covered by the Option and shall become exercisable on the
first anniversary of the date the Option is granted.
(ii) The second installment shall consist of one-third (1/3rd)
of the shares covered by the Option and shall become exercisable on the
second anniversary of the date the Option is granted.
(iii) The third installment shall consist of one-third (1/3rd)
of the shares covered by the Option and shall become exercisable on the
third anniversary of the date the Option is granted.
(b) No portion of the Option which is unexercisable at Termination
of Employment shall thereafter become exercisable.
2
Section 3.2 - Duration of Exercisability
The installments provided for in Section 3.1 are cumulative. Each
such installment which becomes exercisable pursuant to Section 3.1 shall remain
exercisable until it becomes unexercisable under Section 3.3.
Section 3.3 - Expiration of Option
The Option may not be exercised to any extent by anyone after the
first to occur of the following events:
(a) The expiration of ten (10) years from the date the Option was
granted; or
(b) If the Employee owned (within the meaning of Section 424(d) of
the Code), at the time the Option was granted, more than ten percent (10%) of
the total combined voting power of all classes of stock of the Company or any
Subsidiary or parent corporation thereof (within the meaning of Section 422 of
the Code), the expiration of five (5) years from the date the Option was
granted; or
(c) The time of the Employee's Termination of Employment unless
such Termination of Employment results from his death, his retirement, his
disability (within the meaning of Section 22(e)(3) of the Code) or his being
discharged not for good cause; or
(d) The expiration of three (3) months from the date of the
Employee's Termination of Employment by reason of his retirement or his being
discharged not for good cause, unless the Employee dies within said three-month
period; or
(e) The expiration of one (1) year from the date of the Employee's
Termination of Employment by reason of his disability (within the meaning of
Section 22(e)(3) of the Code); or
(f) The expiration of one (1) year from the date of the Employee's
death.
Section 3.4 - Acceleration of Exercisability
(a) In the event of a Change in Control, provided the Option has
not become unexercisable prior to such Change in Control, the Option shall
become fully vested and exercisable as to all shares covered thereby upon such
Change in Control, notwithstanding anything to the contrary in Section 3.1.
(b) In the event of a Corporate Transaction, provided the Option
has not become unexercisable prior to such Corporate Transaction, the Option
shall become fully vested and exercisable as to all shares covered thereby
immediately prior to the effective date of such Corporate Transaction,
notwithstanding anything to the contrary in Section 3.1; provided, however, that
this acceleration of exercisability shall not take place if, in connection with
such Corporate Transaction, provision is made for an assumption of this Option
or a substitution therefor of a new option by an employer corporation, or a
parent or subsidiary of such corporation, so that such assumption or
substitution complies with the provisions of Section 424(a) of the Code.
(c) The Committee may make such determinations and adopt such rules
and conditions as it, in its absolute discretion, deems appropriate in
connection with such acceleration of exercisability, including, but not by way
of limitation, provisions to ensure that any such acceleration and resulting
exercise shall be conditioned upon the consummation of the contemplated Change
in Control or
3
Corporate Transaction, and determinations regarding whether provisions for
assumption or substitution have been made as defined in subsection (b) above.
Section 3.5 - Special Tax Consequences
To the extent that the aggregate Fair Market Value of stock with
respect to which "incentive stock options" (within the meaning of Section 422 of
the Code, but without regard to Section 422(d) of the Code), including the
Option, are exercisable for the first time by the Employee during any calendar
year (under the Plan and all other incentive stock option plans of the Company,
any Subsidiary and any parent corporation thereof (within the meaning of Section
422 of the Code)) exceeds $100,000, such options shall be treated as
Non-Qualified Options to the extent required by Section 422 of the Code. The
rule set forth in the preceding sentence shall be applied by taking options into
account in the order in which they were granted. For purposes of these rules,
the Fair Market Value of stock shall be determined as of the time the option
with respect to such stock is granted.
ARTICLE IV
EXERCISE OF OPTION
Section 4.1 - Person Eligible to Exercise
During the lifetime of the Employee, only he may exercise the
Option or any portion thereof. After the death of the Employee, any exercisable
portion of the Option may, prior to the time when such portion becomes
unexercisable under Section 3.3, be exercised by his personal representative or
by any person empowered to do so under the deceased Employee's will or under the
then applicable laws of descent and distribution.
Section 4.2 - Partial Exercise
Any exercisable portion of the Option or the entire Option, if then
wholly exercisable, may be exercised in whole or in part at any time prior to
the time when the Option or portion thereof becomes unexercisable under Section
3.3; provided, however, that each partial exercise shall be for whole shares
only.
Section 4.3 - Manner of Exercise
The Option, or any exercisable portion thereof, may be exercised
solely by delivery to the Secretary of the Company (the "Secretary") or his
office of all of the following prior to the time when the Option or such portion
becomes unexercisable under Section 3.3:
(a) A written notice complying with the applicable rules
established by the Committee stating that the Option, or a portion thereof, is
exercised. The notice shall be signed by the Employee or other person then
entitled to exercise the Option or such portion; and
(b) Full cash payment to the Secretary for the shares with respect
to which the Option, or portion thereof, is exercised. However, the Committee,
may in its discretion (i) allow a delay in payment up to 30 days from the date
the Option, or portion thereof, is exercised; (ii) allow payment, in whole or in
part, through the delivery of shares of Common Stock owned by the Optionee, duly
endorsed for transfer to the Company with a Fair Market Value on the date of
delivery equal to the aggregate exercise price of the Option or exercised
portion thereof; (iii) allow payment, in whole or in part, through the surrender
of shares of Common Stock then issuable upon exercise of the Option having a
Fair Market Value on the
4
date of Option exercise equal to the aggregate exercise price of the Option or
exercised portion thereof; (iv) allow payment, in whole or in part, through the
delivery of property of any kind which constitutes good and valuable
consideration; (v) allow payment, in whole or in part, through the delivery of a
full recourse promissory note bearing interest (at no less than such rate as
shall then preclude the imputation of interest under the Code) and payable upon
such terms as may be prescribed by the Committee; (vi) allow payment, in whole
or in part, through the delivery of a notice that the Optionee has placed a
market sell order with a broker with respect to shares of Common Stock then
issuable upon exercise of the Option, and that the broker has been directed to
pay a sufficient portion of the net proceeds of the sale to the Company in
satisfaction of the Option exercise price; or (vii) allow payment through any
combination of the consideration provided in the foregoing subparagraphs (ii),
(iii), (iv), (v) and (vi). In the case of a promissory note, the Committee may
also prescribe the form of such note and the security to be given for such note.
The Option may not be exercised, however, by delivery of a promissory note or by
a loan from the Company when or where such loan or other extension of credit is
prohibited by law; and
(c) Such representations and documents as the Committee, in its
absolute discretion, deems necessary or advisable to effect compliance with all
applicable provisions of the Securities Act of 1933, as amended, and any other
federal or state securities laws or regulations. The Committee may, in its
absolute discretion, also take whatever additional actions it deems appropriate
to effect such compliance, including, without limitation, placing legends on
share certificates and issuing stop-transfer notices to agents and registrars;
and
(d) Full payment to the Company (or other employer corporation) of
all amounts which, under federal, state or local tax law, it is required to
withhold upon exercise of the Option; provided that, with the consent of the
Committee, all or part of such payment may be made with (i) shares of the
Company's Common Stock owned by the Employee, duly endorsed for transfer, with a
Fair Market Value equal to the sums required to be withheld, or (ii) shares of
the Company's Common Stock issuable to the Employee upon exercise of the Option
with a Fair Market Value equal to the sums required to be withheld; provided,
further, that the number of shares of Common Stock which may be withheld with
respect to the issuance, vesting, exercise or payment of the Option (or which
may be repurchased from the Employee within six months after such shares of
Common Stock were acquired from the Company by the Employee) in order to satisfy
the Employee's federal and state income and payroll tax liabilities with respect
to the issuance, vesting, exercise or payment of the Option shall be limited to
the number of shares which have a Fair Market Value on the date of withholding
or repurchase equal to the aggregate amount of such liabilities based on the
minimum statutory withholding rates for federal and state tax income and payroll
tax purposes that are applicable to such supplemental taxable income; and
(e) In the event the Option or portion shall be exercised pursuant
to Section 4.1 by any person or persons other than the Employee, appropriate
proof of the right of such person or persons to exercise the Option.
Section 4.4 - Conditions to Issuance of Stock Certificates
The shares of stock deliverable upon the exercise of the Option, or
any portion thereof, may be either previously authorized but unissued shares or
issued shares which have then been reacquired by the Company. Such shares shall
be fully paid and nonassessable. The Company shall not be required to issue or
deliver any certificate or certificates for shares of stock purchased upon the
exercise of the Option or portion thereof prior to fulfillment of all of the
following conditions:
(a) The admission of such shares to listing on all stock exchanges
on which such class of stock is then listed; and
5
(b) The completion of any registration or other qualification of
such shares under any state or federal law or under rulings or regulations of
the Securities and Exchange Commission or of any other governmental regulatory
body, which the Committee shall, in its absolute discretion, deem necessary or
advisable; and
(c) The obtaining of any approval or other clearance from any state
or federal governmental agency which the Committee shall, in its absolute
discretion, determine to be necessary or advisable; and
(d) The receipt by the Company (or other employer corporation) of
full payment for such shares, including payment of any applicable withholding
tax; and
(e) The lapse of such reasonable period of time following the
exercise of the Option as the Committee may from time to time establish for
reasons of administrative convenience.
Section 4.5 - Rights as Shareholder
The holder of the Option shall not be, nor have any of the rights
or privileges of, a shareholder of the Company in respect of any shares
purchasable upon the exercise of any part of the Option unless and until
certificates representing such shares shall have been issued by the Company to
such holder.
ARTICLE V
OTHER PROVISIONS
Section 5.1 - Administration
The Committee shall have the power to interpret the Plan and this
Agreement and to adopt such rules for the administration, interpretation and
application of the Plan as are consistent therewith and to interpret, amend or
revoke any such rules. All actions taken and all interpretations and
determinations made by the Committee in good faith shall be final and binding
upon the Employee, the Company and all other interested persons. No member of
the Committee shall be personally liable for any action, determination or
interpretation made in good faith with respect to the Plan or the Option. Any
such interpretations and rules with respect to incentive stock options shall be
consistent with the provisions of Section 422 of the Code. In its absolute
discretion, the Board may at any time and from time to time exercise any and all
rights and duties of the Committee under the Plan and this Agreement except with
respect to matters which under Rule 16b-3 or Section 162(m) of the Code, or any
regulations or rules issued thereunder, are required to be determined in the
sole discretion of the Committee.
Section 5.2 - Option Not Transferable
Neither the Option nor any interest or right therein or part
thereof shall be sold, pledged, assigned, or transferred in any manner other
than by will or the laws of descent and distribution, unless and until such
Option has been exercised, or the shares underlying such Option have been
issued, and all restrictions applicable to such shares have lapsed. Neither the
Option nor any interest or right therein or part thereof shall be liable for the
debts, contracts or engagements of the Employee or his successors in interest or
shall be subject to disposition by transfer, alienation, anticipation, pledge,
encumbrance, assignment or any other means whether such disposition be voluntary
or involuntary or by operation of law by judgment, levy, attachment, garnishment
or any other legal or equitable proceedings (including
6
bankruptcy), and any attempted disposition thereof shall be null and void and of
no effect, except to the extent that such disposition is permitted by the
preceding sentence.
Section 5.3 - Shares to Be Reserved
The Company shall at all times during the term of the Option
reserve and keep available such number of shares of stock as will be sufficient
to satisfy the requirements of this Agreement.
Section 5.4 - Notices
Any notice to be given under the terms of this Agreement to the
Company shall be addressed to the Company in care of its Secretary, and any
notice to be given to the Employee shall be addressed to him at the address
given beneath his signature hereto. By a notice given pursuant to this Section
5.4, either party may hereafter designate a different address for notices to be
given to him. Any notice which is required to be given to the Employee shall, if
the Employee is then deceased, be given to the Employee's personal
representative if such representative has previously informed the Company of his
status and address by written notice under this Section 5.4. Any notice shall be
deemed duly given when enclosed in a properly sealed envelope or wrapper
addressed as aforesaid, deposited (with postage prepaid) in a post office or
branch post office regularly maintained by the United States Postal Service.
Section 5.5 - Titles
Titles are provided herein for convenience only and are not to
serve as a basis for interpretation or construction of this Agreement.
Section 5.6 - Notification of Disposition
The Employee shall give prompt notice to the Company of any
disposition or other transfer of any shares of stock acquired under this
Agreement if such disposition or transfer is made (a) within two (2) years from
the date of granting the Option with respect to such shares or (b) within one
(1) year after the transfer of such shares to him. Such notice shall specify the
date of such disposition or other transfer and the amount realized, in cash,
other property, assumption of indebtedness or other consideration, by the
Employee in such disposition or other transfer.
Section 5.7 - Construction
This Agreement shall be administered, interpreted and enforced
under the internal laws of the State of Delaware without regard to conflicts of
laws thereof.
Section 5.8 - Conformity to Securities Laws
The Employee acknowledges that the Plan is intended to conform to
the extent necessary with all provisions of the Securities Act and the Exchange
Act and any and all regulations and rules promulgated by the Securities and
Exchange Commission thereunder, including without limitation Rule 16b-3.
Notwithstanding anything herein to the contrary, the Plan shall be administered,
and the Option is granted and may be exercised, only in such a manner as to
conform to such laws, rules and regulations. To the extent permitted by
applicable law, the Plan and this Agreement shall be deemed amended to the
extent necessary to conform to such laws, rules and regulations.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY -
SIGNATURE PAGE FOLLOWS]
7
IN WITNESS WHEREOF, this Agreement has been executed and delivered
by the parties hereto.
SCPIE HOLDINGS INC.
By
---------------------------
President
By
---------------------------
Secretary
-------------------------------
Employee
-------------------------------
-------------------------------
Address
Employee's Taxpayer
Identification Number:
-------------------------------
