1
EXHIBIT 4.01
INTUIT INC.
STOCK OPTION AGREEMENT
Dated as of: _____________________
To: Xxxxxxx X. Xxxxxxxxxx
Intuit (the "Company") hereby grants you an option (the "Option") to purchase
28,991 shares of Common Stock, par value $0.01 per share, of the Company (the
"Shares") at $____ per Share, upon the terms and conditions contained in this
Stock Option Agreement. Capitalized and defined terms not defined in this Stock
Option Agreement shall have meanings ascribed to them in the Amended and
Restated Rock Financial Corporation 1996 Stock Option Plan (the "1996 Plan").
1. Nonqualified Option. The Option is intended to be a Nonqualified Stock
Option.
2. Transferability. The Option may not be transferred by you otherwise than
by will or by the laws of descent and distribution and, during your lifetime,
the Option is exercisable only by you.
3. Vesting. Subject to the other terms contained in this Stock Option
Agreement, you may exercise the Option in accordance with the following
schedule:
(a) Before __________________, you may not purchase any of the Shares.
(b) Beginning on ____________________, you may purchase up to 20% of the
Shares.
(c) Beginning on ______________________, you may purchase up to 40% of the
Shares, including Shares previously purchased.
(d) Beginning on _______________, you may purchase up to 60% of the Shares,
including Shares previously purchased.
(e) Beginning on __________________, you may purchase up to 80% of the
Shares, including Shares previously purchased.
(f) Beginning on ___________________, you may purchase up to 100% of the
Shares, including Shares previously purchased.
4. Term.
(a) General Term. Subject to earlier termination of the Option upon your
death, permanent disability or termination of employment with the
Company (voluntarily or involuntarily and with or without cause), which
are governed by Paragraph 13 of the 1996 Plan, the Option will expire
(to the extent not previously exercised) on the tenth anniversary of the
date of this Stock Option Agreement.
(b) Special Termination Provisions. The purpose of this Stock Option
Agreements is to provide you with an increased incentive to make
significant and extraordinary contributions to the long-term performance
and growth of the Company and its Subsidiaries, and to join your
interests with the interests of the shareholders of the Company. You
acknowledge that the Company expends considerable time, money and
resources in recruiting, training and developing the skills and
abilities of its employees, developing business relationships with
referral sources and customers
1
2
so as to improve the good will of the Company, establishing and
maintaining close business relationships between employees and the
Company's customers and obtaining, compiling and developing confidential
customers lists, various internal computer reports and other proprietary
business information not readily available to the public or through
other sources. You agree that the provisions in this Section 4 are
necessary to preserve and protect the legitimate business interests of
the Company. In return for granting this Option to you, notwithstanding
any other term of this Option to the contrary, you agree to the
following:
(1) Forfeiture of Option Gain if You Leave the Company Within One
Year After Exercise. If you exercise any portion of this Option
and your employment with the Company terminates within one year
after such exercise for any reason except death, disability,
normal retirement or termination by the Company without "cause",
then the gain represented by the fair market value of a Share,
determined pursuant to Paragraph 8 of the 1996 Plan, on the date
of such exercise over the exercise price, multiplied by the
number of Shares you purchased ("option gain"), without regard to
any subsequent increase or decrease in fair market value, shall
be paid by you to the Company.
(2) Forfeiture of Option Gain and Unexercised Options if You Engage
In Certain Activities. If, at any time within (i) one year after
termination of your employment with the Company, or (ii) one year
after you exercise any portion of this Option, whichever is
later, you engage in any activity in competition with any
activity of the Company or inimical, contrary or harmful to the
interests of the Company, including, but not limited to,
(A) conduct related to your employment for which either
criminal or civil penalties against you may be sought,
(B) violation of published Company policies, including,
without limitation, the Company's xxxxxxx xxxxxxx policy,
(C) owning, maintaining, operating or engaging in the same or
similar line of business or activity as the Company or any
Subsidiary or in any business or activity that competes
with the Company or any Subsidiary ("Competing Business")
in any county of any state in which (1) the Company or any
Subsidiary is operating a prime or sub-prime mortgage loan
origination office, or 2) the Company is licensed, or
exempt from licensing, (to originate prime or sub-prime
mortgages,
(D) accepting employment with or serving as a consultant,
advisor or in any other capacity to an employer
(including, without limitation, any individual, firm,
agency, partnership, limited liability company,
unincorporated association, corporation or
pre-incorporated association ("Person or Entity") that is
a Competing Business or is acting against the interests of
the Company or any Subsidiary,
(E) undertaking any efforts or activities toward
pre-incorporating, incorporating, financing or commencing
any Competing Business,
(F) advising, serving, or consulting with any Person or Entity
which is or will be undertaking efforts towards
incorporating, financing or commencing any Competing
Business or activity which engages in a Competing
Business,
2
3
(G) employing, offering employment to, soliciting for the
purpose of employing or recruiting any present, former or
future employee of the Company or any Subsidiary for or on
behalf of any Person or Entity,
(H) calling upon, soliciting, diverting or referring to any
Person or Entity customers or referral sources of the
Company or any Subsidiary who have conducted business with
the Company or any Subsidiary within the two years before
the time in question,
(I) disclosing, copying, communicating, distributing,
revealing, or using any confidential information,
material, trade secrets, proprietary information, or
confidential business information concerning the Company,
any Subsidiary or any of their customers ("Confidential
Information"), except as your employment duties with the
Company or a Subsidiary may require during your employment
with the Company or a Subsidiary,
(J) failing to return any Confidential Information or any
documents, records, files, lists and the like (including
originals and copies) containing Confidential Information
immediately upon your termination or separation of
employment with the Company or any Subsidiary, or
(K) participating in a hostile takeover attempt of the Company
or any Subsidiary, then (y) this Option shall terminate
effective on the date on which you enter into such
activity, unless terminated sooner by operation of another
term or condition of this Stock Option Agreement, and (z)
any option gain realized by you from exercising all or a
portion of this Option shall be paid by you to the
Company.
(3) Right of Set-off. By accepting this Option, you consent to a
deduction from any amounts the Company or any Subsidiary owes to
you from time to time (including amounts owed to you as wages or
other compensation, fringe benefits, or vacation pay, as well as
any other amounts owed to you by the Company or any Subsidiary),
to the extent of the amounts you owe the Company under Sections
4(b)(1) and (b)(2) above. Whether or not the Company elects to
make any set-off in whole or in part, if the Company does not
recover by means of set-off the full amount you owe it,
calculated as set forth above, you agree to pay immediately the
unpaid balance to the Company.
(4) Committee Discretion. You may be released from all or any portion
of your obligations under Sections 4(b)(1), 4(b)(2) and 4(b)(3)
above only if the Company's Compensation Committee (the
"Committee") (or its duly appointed agent) determines in its
Discretion that such action is in the best interests of the
Company.
(c) Cause. For purposes of this Option, "cause" has the same meaning as in
your employment agreement with the Company, if any, or if you do not
have an employment agreement with the Company, "cause" means the
occurrence of any of the following:
(1) A material breach of any term or provision of your employment
agreement, if any, with the Company or a Subsidiary, the
Company's employment policies, or this Stock Option Agreement.
(2) Your failure to perform your duties of employment in a reasonable
and business-like manner.
3
4
(3) Your conviction of a felony or any crime involving moral
turpitude, including, without limitation, crimes involving drugs
or liquor, regardless of whether appealed.
(4) Your commission of, or participation in, any act of fraud, false
pretense, forgery, embezzlement or dishonesty against the Company
or any Subsidiary.
(5) Your commission of, or participation in, any other act or
omission, wantonly, willfully, or recklessly, or in a manner that
is negligent against, and having an adverse effect upon, the
affairs of the Company or any Subsidiary.
(6) Your substantial dependence on any mind altering or other harmful
substance, including, without limitation, alcohol, marijuana,
amphetamines, barbiturates, LSD, cocaine, narcotic drugs, or any
natural or synthetic substance having the same or similar effects
as any of the foregoing, to the extent that such use would
constitute reasonable cause for termination under applicable law.
5. Exercise of the Option. The Option shall be exercised by giving a
written notice of exercise to the Company's Stock Administration Department.
Such notice shall specify the number of Shares to be purchased and shall be
accompanied by payment in full in cash (or in such other manner as is approved
by the Committee and allowed under the 1996 Plan) of the aggregate option price
for the number of Shares purchased. Such exercise shall be effective only upon
the actual receipt of such written notice and such exercise price, and no rights
or privileges of a shareholder of the Company in respect of any of the Shares
issuable upon the exercise of any part of the Option shall inure to you, or any
other person entitled to exercise the Option, unless and until certificates
representing such Shares shall have been issued.
6. No Employment Rights. Nothing contained in this Stock Option Agreement,
nor any action taken by the Committee, shall confer upon you any right with
respect to the continuation of your employment by the Company or any Subsidiary,
nor interfere in any way Subsidiary to terminate your employment at any time,
and your employment is and will remain employment at will, unless otherwise
provided pursuant to a written employment agreement between you and the Company.
7. Income Tax Withholding Requirements. If upon or as a result of your
exercise of the Option there shall be payable by the Company or any Subsidiary
any amount for income tax withholding, you will pay such amount to the Company
to reimburse it for such income tax withholding.
8. Entire Agreement. This Stock Option Agreement is the entire agreement
between you and the Company with respect to the subject matter of this Stock
Option Agreement, and any prior or contemporaneous understandings, arrangements
or agreements are superseded by this Stock Option Agreement and are merged into
this Stock Option Agreement.
9. Governing Law and Choice of Forum. The laws of the State of Michigan
shall govern this Stock Option Agreement, its construction, and the
determination of any rights, duties or remedies of the parties arising out of or
relating to this Stock Option Agreement. The parties acknowledge that the United
States District Court for the Eastern District of Michigan or the Michigan
Circuit Court for the County of Oakland shall have exclusive jurisdiction over
any case or controversy arising out of or relating to this Stock Option
Agreement and that all litigation arising out of or relating to this Stock
Option Agreement shall be commenced in the United States District Court for the
Eastern District of Michigan or the Oakland County (Michigan) Circuit Court. You
irrevocably consent to the jurisdiction of the United States District Court for
the Eastern District of Michigan and the Oakland County (Michigan) Circuit Court
in connection with all actions and proceedings arising out of, or in any way
related to, this Stock Option Agreement.
10. Committee and Board of Directors Determinations Conclusive. Each
determination, interpretation, or other action made or taken pursuant to, or
related to, the provisions of this Stock Option
4
5
Agreement by the Committee or the Company's Board of Directors shall be final
and shall be binding and conclusive for all purposes on you and the Company and
our respective successors in interest.
11. Reimbursement of Certain Costs & Fees. Notwithstanding any term to the
contrary, you agree to reimburse the directors) for all costs and fees incurred
by the Company (or its officers and directors) in response to or defense of any
claim, demand or legal action made/undertaken by you (or your representatives on
your behalf) with respect to which you do not prevail in full that is in any way
related to: (i) any determination, interpretation, or action undertaken by the
Board of Directors or Committee operating thereunder with respect to the Stock
Option Agreement , or (ii) enforcement of or any claim of breach or default
under the Stock Option Agreement. For purposes of this Stock Option Agreement,
the term "costs and fees" includes, without limitation, all court costs, legal
expenses and reasonable attorney fees (whether inside or outside counsel is
used) whether or not a lawsuit or other form of legal action is instituted, and
if a lawsuit or other legal action is instituted, whether at the trial or
xxxxxxxxx xxxxx xxxxx.
00. Notices. Any and all notices, designations, consents, offers,
acceptances or other communications provided for in this Stock Option Agreement
shall be given in writing and shall be delivered in person, sent by certified or
registered mail, sent by facsimile or similar method of transmission or sent by
overnight courier, addressed in the case of the Company to its principal office
and in the case of you to your address appearing on the stock records of the
Company or such other address as may be designated by you by notice to the
Company.
Very truly yours,
INTUIT INC,
a Delaware corporation
By:
-------------------------------------
Xxxx X. Xxxxxxx
Chief Financial Officer
The above is agreed to and accepted.
By:
-------------------------------------
Xxxxxxx X. Xxxxxxxxxx
Dated:
----------------------------------
5
