EXHIBIT 4.3
Nonqualified Stock Option Award Agreement
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under
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Xxxxxx Financial, Inc. 1998 Stock Incentive Plan
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This Nonqualified Stock Option Award Agreement (the "Agreement") dated this
__ day of May, 1998, between Xxxxxx Financial, Inc. (the "Company"), and _
(the "Participant"), who is a key employee of the Company or a Subsidiary. Any
term capitalized but not defined in this Agreement will have the meaning set
forth in the Xxxxxx Financial, Inc. 1998 Stock Incentive Plan (the "Plan").
1. Award. In accordance with the terms of the Plan, the Company hereby grants
to the Participant a stock option Award to purchase all or any part of an
aggregate of _ Shares. This Award constitutes a nonqualified stock option
and is not intended to be an incentive stock option within the meaning of
Section 422 of the Code.
2. Exercise Price. The Exercise Price will be $________ per Share, which is
no less than the Fair Market Value of a Share on the date of this
Agreement.
3. Medium and Time of Payment.
a. The Exercise Price must be paid in United States dollars, in cash or
by personal check payable to the order of the Company, at the time of
purchase.
b. Alternatively, the Exercise Price, or any part of it, may be paid
with: (i) Shares owned by the Participant duly endorsed for transfer
to the Company; (ii) Shares issuable to the Participant upon exercise
of the Option; or (iii) any combination of cash, personal check and
Shares meeting the requirements of clause (i) or (ii) above.
c. The Company will pay the amount of tax it is required to withhold on
account of exercise of all or part of the Award with Shares otherwise
issuable to the Participant upon exercise under the Award.
Notwithstanding the foregoing, if the Committee agrees, the
Participant may satisfy the Company's withholding obligation by paying
the amount of required withholding to the Company and, if he or she
does so, the Company will not withhold Shares as described in the
preceding sentence. If the Award has been transferred pursuant to
Section 6(b), the Participant must satisfy the Company's withholding
requirement by paying the Company the amount it is required to
withhold with: (i) United States dollars in cash or by personal
check; (ii) Shares owned by the Participant and duly endorsed for
transfer to the Company; or (iii) any combination of cash, personal
check, and Shares meeting the requirements of clause (ii) above. If
part or all of the Award has been transferred pursuant to Section
6(b), the withholding obligation may not be satisfied with Shares
issuable upon exercise of the Award.
d. Shares used to satisfy the Exercise Price and/or any minimum required
withholding tax will be valued at their Fair Market Value as
determined by the Committee as of the date of exercise.
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e. No Shares will be issued pursuant to the Award before the Exercise
Price and, if applicable, the withholding obligation, have been paid
in full.
4. Term, Vesting and Exercise of the Award.
a. The Award will expire ten years from the date of this Agreement.
b. The Award will vest and become exercisable on the earlier of: (i)
January 1, 2001; and (ii) the Participant's death or Disability.
c. Notwithstanding any other provision of this Agreement, the Participant
will forfeit his or her right to exercise the Award, whether or not it
has already vested, if the Committee determines in its sole discretion
that the Participant has been discharged from employment with the
Company or an Affiliate for Cause.
d. After the Award has vested, and while it is exercisable, it may be
exercised in whole or in part by written notice to the Company
indicating the number of Shares being purchased. The notice must be
signed by the Participant and must be accompanied by full payment of
the Exercise Price plus, if applicable, any required withholding tax.
Notwithstanding the foregoing, the Award may not be exercised for
fewer than 100 Shares at any one time or, if fewer than 100 Shares
remain, all the then-remaining Shares. An Award must be exercised as
to a whole number of Shares.
5. Termination of Employment. After termination of employment, the
Participant's right to exercise the Award will be subject to the following
rules.
a. Retirement. If the Participant terminates employment through
Retirement, he or she may exercise any Award that had vested and was
exercisable on the date of his or her Retirement. If the Participant
dies after Retirement but before fully exercising the Award, his or
her estate will have the right to exercise any Award that had vested
and was exercisable on the date the Participant retired. In either
case, the Award must be exercised, if at all, within thirteen months
after the Participant's termination of employment, or, if earlier, by
the time the Award would otherwise have expired under the terms of
this Agreement. If the Participant terminates employment through
Retirement, he or she will forfeit the Award to the extent that it was
not vested and exercisable on the date he or she terminated
employment.
b. Disability or Death. If the Participant terminates employment through
Disability or death, the Award will immediately vest and become
exercisable. The Participant (or in the case of his or her death, the
Participant's estate) may exercise the Award within the thirteen-month
period following the termination, or, if earlier, by the date the
Award would otherwise have expired.
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c. Voluntary Termination. If the Participant voluntarily terminates
employment for any reason other than Retirement, Disability or death,
the Participant will immediately forfeit the right (whether or not it
had previously vested) to exercise the Award.
d. Involuntary Termination. If employment terminates for any reason
other than Retirement, Disability, death or voluntary termination, the
Participant (or, in the case of his or her subsequent death, the
Participant's estate): (i) may, within the 30-day period following
the termination, exercise the Award to the extent that it was vested
and exercisable on the date of the termination and (ii) will forfeit
the Award to the extent that it was not vested and exercisable on the
date of the termination.
e. Initial Public Offering Protection. Notwithstanding the provisions of
paragraphs (a) through (d) above, if, within three years after the
Company's initial public offering of Shares, (i) the Participant's
employment with the Company and all Affiliates is terminated for a
reason other than Cause, or (ii) the Participant terminates his or her
employment with the Company and all Affiliates for Good Reason, the
Award will immediately vest and become fully exercisable, and will
remain exercisable until the date that is ten years after the date of
this Agreement unless otherwise specifically prohibited under
applicable law or by applicable rules and regulations of any
governmental agency or national securities exchange.
6. Transferability of Award and Shares Acquired Upon Exercise of Award.
a. The Participant may not sell, transfer, pledge, assign or otherwise
alienate or hypothecate the Award, other than by will or the laws of
descent and distribution.
b. Notwithstanding any other provision of this Agreement, the Participant
may transfer any portion of this Award to: (i) the Participant's
spouse, children, step-children, grandchildren or step-grandchildren
("Immediate Family Members"); (ii) a trust or trusts for the exclusive
benefit of Immediate Family Members; (iii) a partnership in which
Immediate Family Members are the only partners; or (iv) an
organization exempt from taxation under Section 501(c)(3) of the Code.
Such a transfer is permitted only if there is no consideration for the
transfer, or the transfer is to a partnership in which Immediate
Family Members are the only partners and the Participant's sole
consideration for the transfer is an interest in the partnership.
Such a transfer will become effective only if the Participant gives
the Committee advance written notice of the transfer and complies with
any conditions imposed by the Committee. Following the transfer, the
transferee will be subject to the same terms and conditions as the
Participant was immediately before the transfer, and the term
"Participant" as used in this Agreement will be deemed to refer to the
transferee, except for purposes of Sections 4(d) and 5, which will
continue to apply with respect to the original Participant. The
transferee of an Award may not transfer the Award except as provided
in paragraph (a).
c. During the Participant's lifetime, only the Participant (or a
transferee pursuant to paragraph (b) above) or his or her guardian or
legal representative may exercise the
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Award. The Committee may, in its discretion, require a guardian or
legal representative to supply it with the evidence the Committee
reasonably deems necessary to establish the authority of the guardian
or legal representative to exercise the Award on behalf of the
Participant or transferee, as the case may be.
d. Except as limited by applicable federal or state securities laws, the
requirements of any stock exchange or market upon which the Shares are
listed or traded at any given time, and the provisions of Section 7,
Shares acquired upon exercise of this Award will be freely
transferable.
7. Securities Law Requirements.
a. If at any time the Committee determines that exercising the Award or
issuing Shares would violate applicable securities laws, the Award
will not be exercisable, and the Company will not be required to issue
Shares. The Committee may declare any provision of this Agreement or
action of its own null and void, if it determines the provision or
action fails to comply with the short-swing trading rules. As a
condition to exercise, the Company may require the Participant to make
written representations it deems necessary or desirable to comply with
applicable securities laws.
b. No person who acquires Shares under this Agreement may sell the
Shares, unless the offer and sale are made pursuant to an effective
registration statement under that Act, which is current and includes
the Shares to be sold, or an exemption from the registration
requirements of that Act.
8. No Obligation to Exercise Award. Neither the Participant nor his or her
transferee is or will be obligated by the grant of the Award to exercise
it.
9. No Limitation on Rights of the Company. The grant of the Award does not and
will not in any way affect the right or power of the Company to make
adjustments, reclassifications or changes in its capital or business
structure, or to merge, consolidate, dissolve, liquidate, sell or transfer
all or any part of its business or assets.
10. Plan and Agreement Not a Contract of Employment. Neither the Plan nor this
Agreement is a contract of employment, and no terms of employment of the
Participant will be affected in any way by the Plan, this Agreement or
related instruments, except to the extent specifically expressed therein.
Neither the Plan nor this Agreement will be construed as conferring any
legal rights of the Participant to continue to be employed, nor will it
interfere with the Company's or any Subsidiary's right to discharge the
Participant or to deal with him or her regardless of the existence of the
Plan, this Agreement or the Award.
11. Participant to Have No Rights as a Stockholder. Before the date as of which
he or she is recorded on the books of the Company as the holder of any
Shares underlying the Award, the Participant will have no rights as a
stockholder with respect to those Shares.
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12. Notice. Any notice or other communication required or permitted under this
Agreement must be in writing and must be delivered personally, sent by
certified, registered or express mail, or sent by overnight courier, at the
sender's expense. Notice will be deemed given when delivered personally or,
if mailed, three days after the date of deposit in the United States mail
or, if sent by overnight courier, on the regular business day following the
date sent. Notice to the Company should be sent to Xxxxxx Financial, Inc.,
000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Corporate
Secretary. Notice to the Participant should be sent to the address set
forth on the signature page below.
13. Successors. All obligations of the Company under this Agreement will be
binding on any successor to the Company, whether the existence of the
successor results from a direct or indirect purchase of all or
substantially all of the business and/or assets of the Company, or a
merger, consolidation, or otherwise.
14. Governing Law. This Agreement will be construed and enforced in accordance
with, and governed by, the laws of the State of Delaware, determined
without regard to its conflict of law rules.
15. Plan Document Controls. The rights granted under this Agreement are in all
respects subject to the provisions set forth in the Plan to the same extent
and with the same effect as if set forth fully in this Agreement. If the
terms of this Agreement conflict with the terms of the Plan document, the
Plan document will control.
IN WITNESS WHEREOF, the Company and the Participant have duly executed this
Agreement as of the date first written above.
XXXXXX FINANCIAL, INC.
By:
______________________________________
Its:
______________________________________
__________________________________________
(Participant's Signature)
Participant's Name and Address for notices
__________________________________________
__________________________________________
__________________________________________
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