OPTION CANCELLATION AND RESTRICTED STOCK AWARD AGREEMENT
Exhibit 99.2
OPTION CANCELLATION AND
RESTRICTED STOCK AWARD AGREEMENT
THIS OPTION CANCELLATION AND RESTRICTED STOCK AWARD AGREEMENT (this “Agreement”) is made and
entered into as of November 18, 2009 (the “Date of Grant”), between First Acceptance Corporation, a
Delaware corporation (the “Company”), and Xxxxx X. Xxxxxxxxx (the “Participant”). Capitalized
terms not otherwise defined herein shall have the meaning ascribed to such terms in the Amended and
Restated First Acceptance Corporation 2002 Long Term Incentive Plan (the “Plan”).
WHEREAS, the Company has adopted the Plan, which permits the issuance of restricted shares of
the Company’s common stock, par value $0.01 per share (the “Common Stock”);
WHEREAS, Participant holds an outstanding option to purchase 10,000 shares of Common Stock of
the Company previously granted by the Company to Participant (the “Outstanding Option”);
WHEREAS, the Company’s stockholders approved a one-time value-for-value option exchange on
November 17, 2009, whereby the Participant may surrender for cancellation the Outstanding Option in
exchange for a lesser number of shares of restricted stock with an aggregate value not to exceed
$150,000;
WHEREAS, the Participant desires to surrender, and the Company cancel, the Outstanding Option,
and in exchange for such surrendered and cancelled Outstanding Option, and pursuant to the Plan,
the Committee desires to grant an award of restricted stock to the Participant as provided herein.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth and for other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound hereby, agree as follows:
1. Cancellation of Outstanding Option, Grant of Restricted Stock.
(a) The Participant hereby surrenders the Outstanding Option to the Company, agrees that the
Outstanding Option shall be cancelled, and agrees that the Nonqualified Stock Option Agreement,
dated February 7, 2007, between Participant and the Company shall be cancelled and of no further
force or effect.
(b) The Company hereby grants to the Participant, in exchange for the cancellation of the
Outstanding Option, an award (the “Award”) of 3,140 shares of Common
Stock of the Company (the
“Stock” or the “Restricted Stock”) on the terms and conditions set forth in this Agreement and as
otherwise provided in the Plan.
(c) The Participant’s rights with respect to the Stock subject to the Award shall remain
forfeitable at all times prior to the date on which the restrictions as to such Stock shall lapse
in accordance with Section 3 hereof.
2. Terms and Rights as a Stockholder.
(a) Except as provided herein and subject to such other exceptions as may be determined by the
Committee in its discretion, the “Restriction Period” for the Restricted Stock granted herein shall
expire in five equal, annual installments beginning on the first anniversary of Date of Grant (as
may be adjusted in accordance with Section 7 hereof).
(b) The Participant shall have all rights of a stockholder with respect to the Restricted
Stock, including the right to receive dividends and the right to vote such Stock, subject to the
following restrictions:
(i) the Participant shall not be entitled to delivery of the stock certificate for any
Stock until the expiration of the Restriction Period as to such Stock;
(ii) none of the Restricted Stock may be sold, assigned, transferred, pledged,
hypothecated or otherwise encumbered or disposed of during the Restriction Period as to
such Stock; and
(iii) except as otherwise determined by the Committee at or after the grant of the
Award hereunder, all shares of Restricted Stock as to which the Restriction Period has not
expired or been terminated shall be forfeited, and all rights of the Participant to such
Stock shall terminate, without further obligation on the part of the Company, unless the
Participant remains in the continuous employment of the Company or a Subsidiary until the
expiration or termination of the Restriction Period as to such Stock.
Any Stock, any other securities of the Company and any other property (except for cash
dividends) distributed with respect to the Restricted Stock shall be subject to the same
restrictions, terms and conditions as such Restricted Stock.
(c) Notwithstanding the foregoing, the Restriction Period shall automatically terminate as to
all Restricted Stock awarded hereunder (as to which such Restriction Period has not previously
terminated) upon the occurrence of the following events:
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(i) termination of the Participant’s employment with the Company or a Subsidiary that
results from the Participant’s death, Retirement (as defined in the Plan) or Total and
Permanent Disability (as defined in the Plan);
(ii) the termination of the Participant’s employment with the Company or a Subsidiary
by the Participant for Good Reason (as defined in the Employment Agreement in effect as of
the date hereof between Participant and the Company (the “Employment Agreement”)) or by the
Company without Cause (as defined in the Employment Agreement); or
(iii) the occurrence of a Change in Control (as defined in the Plan).
3. Termination of Restrictions. At the end of the Restriction Period as to any
portion of the Restricted Stock, or at such earlier time as may be determined by the Committee, all
restrictions set forth in this Agreement or in the Plan relating to such portion of the Restricted
Stock shall lapse as to such portion of the Restricted Stock, and a stock certificate for the
appropriate number of shares of such Stock, free of the restrictions and restrictive stock legend,
shall be delivered to the Participant or the Participant’s beneficiary or estate, as the case may
be, pursuant to the terms of this Agreement.
4. Delivery of Stock.
(a) As of the date hereof, certificates representing the Restricted Stock shall be registered
in the name of the Participant and held by the Company or transferred to a custodian appointed by
the Company for the account of the Participant subject to the terms and conditions of the Plan and
shall remain in the custody of the Company or such custodian until their delivery to the
Participant or Participant’s beneficiary or estate as set forth in Sections 4(b) and (c) hereof or
their reversion to the Company as set forth in Sections 2(b) and 4(d) hereof.
(b) Certificates representing Restricted Stock in respect of which the Restriction Period has
lapsed pursuant to this Agreement shall be delivered to the Participant as soon as practicable
following the date on which the restrictions on such Restricted Stock lapse.
(c) Certificates representing Restricted Stock in respect of which the Restriction Period
lapsed upon the Participant’s death shall be delivered to the executors or administrators of the
Participant’s estate as soon as practicable following the receipt of proof of the Participant’s
death satisfactory to the Company.
(d) By accepting the grant of Restricted Stock under this Agreement, Participant shall
irrevocably grant to the Company a power of attorney to transfer any shares
forfeited to the Company and agrees to execute any documents requested by the Company in
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connection with such forfeiture and transfer. Participant hereby acknowledges that any breach by
him of his obligations under this Section 4(d) would cause substantial and irreparable damage to
the Company, and that money damages would be an inadequate remedy therefore, and, accordingly,
acknowledges and agrees that the Company shall be entitled to specific performance to remedy the
breach of such obligations (in addition to the other rights and remedies provided for herein).
(e) The face of each certificate representing Restricted Stock shall bear a legend in
substantially the following form:
TRANSFER OF THIS STOCK IS RESTRICTED IN ACCORDANCE WITH CONDITIONS
PRINTED ON THE REVERSE OF THIS CERTIFICATE.
(f) The reverse of each certificate representing Restricted Stock shall bear a legend in
substantially the following form:
THE SHARES OF STOCK EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO
AND TRANSFERABLE ONLY IN ACCORDANCE WITH THAT CERTAIN AMENDED AND
RESTATED FIRST ACCEPTANCE CORPORATION 2002 LONG TERM INCENTIVE
PLAN (THE “PLAN”), A COPY OF WHICH IS ON FILE AT THE PRINCIPAL
OFFICE OF THE COMPANY IN NASHVILLE, TENNESSEE. NO TRANSFER OR
PLEDGE OF THE SHARES EVIDENCED HEREBY MAY BE MADE EXCEPT IN
ACCORDANCE WITH AND SUBJECT TO THE PROVISIONS OF SAID PLAN. BY
ACCEPTANCE OF THIS CERTIFICATE, ANY HOLDER, TRANSFEREE OR PLEDGEE
HEREOF AGREES TO BE BOUND BY ALL OF THE PROVISIONS OF SAID PLAN.
5. Effect of Lapse of Restrictions. To the extent that the Restriction Period
applicable to any Restricted Stock shall have lapsed, the Participant may receive, hold, sell or
otherwise dispose of such Stock free and clear of the restrictions imposed under the Plan and this
Agreement.
6. No Right to Continued Service. This Agreement shall not be construed as giving the
Participant the right to be retained as an employee of the Company or any Subsidiary.
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7. Adjustments. The Committee shall make equitable and proportionate adjustments in
the terms and conditions of, and the criteria included in, this Award in recognition of unusual or
nonrecurring events (including, without limitation, the events described in Article XI of the Plan)
affecting the Company or any Subsidiary, or the financial statements of the Company or any
Subsidiary, or of changes in applicable laws, regulations, or accounting principals in accordance
with the Plan.
8. Amendment to Award. Subject to the restrictions contained in Article X of the
Plan, the Committee may waive any conditions or rights under, amend any terms of, or alter,
suspend, discontinue, cancel or terminate, the Award, prospectively or retroactively; provided that
any such waiver, amendment, alteration, suspension, discontinuance, cancellation or termination
that would adversely affect the rights of the Participant or any holder or beneficiary of the Award
shall not to that extent be effective without the consent of the Participant, holder or beneficiary
affected.
9. Withholding of Taxes. If the Participant makes an election under section 83(b) of
the Code with respect to the Award, the Award made pursuant to this Agreement shall be conditioned
upon the prompt payment to the Company of any applicable withholding obligations or withholding
taxes by the Participant (“Withholding Taxes”). Failure by the Participant to pay such Withholding
Taxes will render this Agreement and the Award granted hereunder null and void ab initio and the
Restricted Stock granted hereunder will be immediately cancelled. If the Participant does not make
an election under section 83(b) of the Code with respect to the Award, upon the lapse of the
Restriction Period with respect to any portion of Restricted Stock (or property distributed with
respect thereto), the Company shall satisfy the required Withholding Taxes as set forth by Internal
Revenue Service guidelines for the employer’s minimum statutory withholding with respect to the
Participant and issue vested shares to the Participant without restriction.
10. Plan Governs. The Participant hereby acknowledges receipt of a copy of the Plan
and agrees to be bound by all the terms and provisions thereof. The terms of this Agreement are
governed by the terms of the Plan, and in the case of any inconsistency between the terms of this
Agreement and the terms of the Plan, the terms of the Plan shall govern.
11. Severability. If any provision of this Agreement is, or becomes, or is deemed to
be invalid, illegal, or unenforceable in any jurisdiction or as to any person or the Award, or
would disqualify the Plan or Award under any laws deemed applicable by the Committee, such
provision shall be construed or deemed amended to conform to the applicable laws, or if it cannot
be construed or deemed amended without, in the determination of the Committee, materially altering
the intent of the Plan or the Award, such provision shall be stricken as to such jurisdiction,
person or Award, and the remainder of the Plan and Award shall remain in full force and effect.
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12. Notices. All notices required to be given under this Agreement shall be deemed to
be received if delivered or mailed as provided for herein, to the parties at the following
addresses, or to such other address as either party may provide in writing from time to time.
To the Company:
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First Acceptance Corporation 0000 Xxxx Xxx Xxx., Xxxxx 0000 Xxxxxxxxx, Xxxxxxxxx 00000 Attn: Secretary Facsimile: (000) 000-0000 |
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To the Participant:
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The address then maintained with respect to the Participant in the Company’s records. |
13. Governing Law. The validity, construction and effect of this Agreement shall be
determined in accordance with the laws of the State of Delaware without giving effect to conflicts
of laws principles.
14. Successors in Interest. This Agreement shall inure to the benefit of and be
binding upon any successor to the Company. This Agreement shall inure to the benefit of the
Participant’s legal representatives. All obligations imposed upon the Participant and all rights
granted to the Company under this Agreement shall be binding upon the Participant’s heirs,
executors, administrators and successors.
15. Resolution of Disputes. Any dispute or disagreement which may arise under, or as
a result of, or in any way related to, the interpretation, construction or application of this
Agreement shall be determined by the Committee. Any determination made hereunder shall be final,
binding and conclusive on the Participant and the Company for all purposes.
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IN WITNESS WHEREOF, the parties have caused this Option Cancellation and Restricted Stock
Award Agreement to be duly executed effective as of the day and year first above written.
| FIRST ACCEPTANCE CORPORATION: | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxxx | |||||
| Name: | Xxxxxxx X. Xxxxxxxx
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| Its: | Chief Executive Officer
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| PARTICIPANT: | ||||||
| /s/ Xxxxx X. Xxxxxxxxx | ||||||
| Name: Xxxxx X. Xxxxxxxxx | ||||||
| Address: | ||||||
