EXHIBIT 10(k)
INTRUST FINANCIAL CORPORATION
NON-QUALIFIED STOCK OPTION AGREEMENT
Date of Grant: , 1995.
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (the "Agreement"), dated as of
the date of grant first stated above (the "Date of Grant"), is delivered
BY INTRUST FINANCIAL CORPORATION,
a Kansas corporation,
hereinafter referred to as
"Company,"
TO ,
an individual,
hereinafter referred to as
"Grantee."
WHEREAS, the Board of Directors of Company (the "Board") on , 1995,
adopted, subject to subsequent shareholder approval, the Intrust Financial
Corporation 1995 Incentive Plan (the "Plan");
WHEREAS, Grantee is an employee or officer of Company or one of its
subsidiaries (Grantee's employer is sometimes referred to herein as the
"Employer");
WHEREAS, the Plan provides for the granting of non-qualified stock
options by a committee to be appointed by the Board (the "Committee") to
employees and officers of Company or any subsidiary of Company to purchase, or
to exercise certain rights with respect to, shares of the common stock, no par
value, of Company (the "Stock"), in accordance with the terms and provisions
thereof; and
WHEREAS, the Committee considers Grantee to be a person who is eligible
for a grant of non-qualified stock options under the Plan, and has determined
that it would be in the best interest of Company to grant the non-qualified
stock options documented herein.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein contained, Company and Grantee hereby agree as follows:
1. Grant of Option. Subject to the terms and conditions hereinafter set
forth, Company hereby grants to Grantee, as of the Date of Grant, an option to
purchase up to ( ) shares of Stock at a purchase price per share of one hundred
percent (100%) of the "Fair Market Value" per share on the Date of Grant. Such
option is hereinafter referred to as the "Option" and the shares of Stock
purchasable upon exercise of the Option are hereinafter sometimes referred to as
the "Option Shares."
2. Vesting of Exercise Rights. Subject to the other terms of this
Agreement, the Option shall become exercisable in five (5) installments, Grantee
having the right hereunder to purchase from Company the following number of
Option Shares upon exercise of the Option, on and after the following dates, in
cumulative fashion:
A) On and after the first (1st) anniversary of the Date of Grant, up
to one-fifth (1/5th) (ignoring fractional shares) of the total
number of Option Shares;
B) On and after the second (2nd) anniversary of the Date of Grant, up
to an additional one-fifth (1/5th) (ignoring fractional shares) of
the total number of Option Shares;
C) On and after the third (3rd) anniversary of the Date of Grant, up
to an additional one-fifth (1/5th) (ignoring fractional shares) of
the total number of Option Shares;
D) On and after the fourth (4th) anniversary of the Date of Grant, up
to an additional one-fifth (1/5th) (ignoring fractional shares) of
the total number of Option Shares; and
E) On and after the fifth (5th) anniversary of the Date of Grant, the
remaining Option Shares.
3. Termination of Option.
A) The Option and all rights hereunder with respect thereto, to the
extent such rights shall not have been exercised, shall terminate
and become null and void after the expiration of ten (10) years
from the Date of Grant (the "Option Term").
B) Upon the occurrence of Grantee's ceasing for any reason to be
employed by Company, the Option, to the extent not previously
exercised, shall terminate and become null and void immediately
upon such termination of Grantee's employment, except in a case
where the termination of Grantee's employment is by reason of
retirement, disability or death. Upon a termination of Grantee's
employment by reason of retirement, disability or death, the Option
may be exercised during the following periods, but only to the
extent that the Option was outstanding and exercisable on any such
date of retirement, disability or death: (i) the one (1) year
period following the date of such termination of Grantee's
employment in the case of a disability (within the meaning of
Section 22(e)(3) of the Code), (ii) the six (6) month period
following the date of issuance of letters testamentary or letters
of administration to the executor or administrator of Grantee's
estate, in the case of Grantee's death during his or her employment
by the Employer, but not later than one (1) year after Grantee's
death, and (iii) the one (1) year period following the date of such
termination in the case of retirement on or after attainment of age
sixty-five (65), or in the case of disability other than as
described in (i) above. In no event, however, shall any such period
extend beyond the Option Term.
C) In the event of the death of Grantee, the Option may be exercised
by Grantee's legal representative, but only to the extent that the
Option would otherwise have been exercisable by Grantee.
D) A transfer of Grantee's employment between Company and any
subsidiary of Company, or between any subsidiaries of Company,
shall not be deemed to be a termination of Grantee's employment.
E) Notwithstanding anything to the contrary set forth herein or in the
Plan, in the event Grantee shall (i) commit any act of malfeasance
or wrongdoing affecting Company or any subsidiary of Company, (ii)
breach any covenant not to compete, or employment contract, with
Company or any subsidiary of Company, or (iii) engage in conduct
that would warrant Grantee's discharge for cause (excluding general
dissatisfaction with the performance of Grantee's duties, but
including any act of disloyalty or any conduct clearly tending to
bring discredit upon Company or any subsidiary of Company), any
unexercised portion of the Option shall immediately terminate and
be null and void.
F) Notwithstanding anything to the contrary set forth herein or in the
Plan, the effectiveness of the Grant of the Option is subject to
Company timely obtaining shareholder approval of the Plan. In the
event such shareholder approval is not obtained within twelve (12)
months of the Date of Grant, then the Option and all rights
hereunder with respect thereto shall immediately terminate and
become null and void.
4. Exercise of Options.
A) Grantee may exercise the Option with respect to all or any part of
the number of Option Shares then exercisable hereunder by giving
the Secretary of Company at Company's principal executive office
written notice delivered in person or by mail of Grantee's
intention to exercise. The notice of the exercise shall specify the
number of Option Shares as to which the Option is to be exercised
and the date of exercise thereof, which date shall be at least five
(5) days after the giving of the notice unless an earlier time
shall have been mutually agreed upon. B) Full payment (in U.S.
dollars) by Grantee of the option price for the Option Shares
purchased shall be made on or before the exercise date specified in
the notice of exercise in cash, or, with the prior written consent
of Company, in whole or in part through the surrender of previously
acquired shares of Stock at their Fair Market Value on the exercise
date. On the exercise date specified in Grantee's notice or as soon
thereafter as is practicable, a certificate or certificates for the
Option Shares then being purchased shall be issued to Grantee upon
full payment of the exercise price for such Option Shares. The
obligation of Company to deliver Stock shall, however, be subject
to the condition that if at any time Company shall determine in its
sole discretion that the listing, registration or qualification of
the Option or the Option Shares upon any securities exchange or
under any state or federal law, or the consent or approval of any
governmental regulatory body, is necessary or desirable as a
condition of, or a connection with, the Option or the issuance or
purchase of Stock thereunder, the Option may not be exercised in
whole or in part unless such listing, registration, qualification,
consent or approval shall have been effected or obtained free of
any conditions not acceptable to Company.
C) If Grantee fails to timely pay for any of the Option Shares
specified in the notice or fails to accept delivery thereof,
Grantee's right to purchase the Option Shares may be terminated by
Company.
D) As a condition to the issuance of Option Shares, Grantee agrees to
remit to Company at the time of any exercise of the Option an
amount equal to any taxes required to be withheld by Company under
federal or state law as a result of such exercise.
5. Adjustment of Option Shares and Option Price. In the event of any
stock dividend or subdivision of the shares of common stock of Company into a
greater number of shares, the purchase price hereunder shall be proportionately
reduced and the number of shares subject to the Option shall be proportionately
increased; conversely, in the event of any combination of the outstanding shares
of common stock of Company, the purchase price hereunder shall be
proportionately increased and the number of shares of Stock subject to the
Option shall be proportionately reduced.
6. Effect of Change in Control. Notwithstanding anything contained in
this Agreement to the contrary, in the event of a Change in Control (as such
term is defined under the Plan), the Option shall become immediately and fully
exercisable and Grantee will be permitted to surrender for cancellation within
sixty (60) days after such Change in Control, the Option or portion of the
Option to the extent not yet exercised and Grantee will be entitled to receive a
cash payment in an amount equal to the excess, if any, over the aggregate
purchase price for such Shares under the Option, of the Fair Market Value, at
the time of surrender, of the Shares subject to the Option or portion thereof
surrendered.
7. Investment Representation. Upon demand by Company, Grantee shall
deliver to Company, at the time of any exercise of the Option or portion
thereof, a written representation that the Stock to be acquired upon such
exercise is to be acquired for investment and not for resale or with a view to
the distribution thereof. Upon such demand by Company, delivery of such
representation prior to the delivery of any certificate representing the Stock
issuable upon exercise of the Option and prior to the expiration of the Option
Term shall be a condition precedent to the right of Grantee to purchase any
shares of Stock.
8. Rights as a Shareholder. Neither Grantee nor any personal
representative shall be, or shall have any of the rights and privileges of, a
shareholder of Company with respect to any shares of Stock purchasable or
issuable upon the exercise of the Option, in whole or in part, unless and until
(i) the Option shall have been exercised pursuant to the terms thereof, (ii)
Company shall have issued and delivered a certificate evidencing the shares of
Stock to Grantee, and (iii) Grantee's name shall have been entered as a
stockholder of record on the books of Company. Thereupon, Grantee shall
thereafter have full voting, dividend and other ownership rights with respect to
such shares.
9. Non-Transferability of Option. During Grantee's lifetime, the Option
shall be exercisable only by Grantee or any guardian or legal representative of
Grantee, and the Option shall not be transferrable otherwise by will or the laws
of descent and distribution (but shall be exercisable by Grantee's executor or
administrator pursuant to Paragraph 3(B) hereof) or pursuant to a qualified
domestic relations order as defined by the Internal Revenue Code of 1986, as
amended, nor shall the Option be subject to attachment, execution or other
similar process. In the event of (a) any attempt by Grantee to alienate, assign,
pledge, hypothecate or otherwise dispose of the Option, except as provided for
herein, or (b) the levy of any attachment, execution or similar process upon the
rights or interests hereby conferred, then Company may terminate the Option by
notice to Grantee and the Option shall thereupon become null and void.
10. No Right to Continued Employment. Neither the granting of the Option
nor its exercise shall not be construed as granting to Grantee any right to
continuing employment by Company. Except as may otherwise be limited by a
written agreement between Company and Grantee, the right of Company to terminate
at will Grantee's employment with Company at any time (whether by dismissal,
discharge, retirement or otherwise) is specifically reserved by Company, and
acknowledged by Grantee.
11. Disposition of Shares. No share of Stock acquired by the exercise of
the Option shall be transferable, other than by will or by the laws of descent
and distribution, within two (2) years of the Date of Grant or within one (1)
year after the transfer of shares pursuant to exercise of the Option. Each
certificate representing shares of Stock acquired by the exercise of the Option
shall bear a legend to that effect. Grantee hereby further acknowledges that the
transfer of the shares of Stock acquired by the exercise of the Option may be
limited by Rule 144 of the General Rules and Regulations promulgated under the
Securities Act of 1933, as amended.
12. Amendment of Option. The Option may be amended by the Board at any
time (a) if the Board of Directors determines, in its sole discretion, that
amendment is necessary or advisable in light of any addition to or change in the
Code, or in the regulations issued thereunder, or any federal or state
securities law or other law or regulation, which change occurs after the Date of
Grant and by its terms applies to the Option; or (b) other than in the
circumstances described in clause (a), with the consent of Grantee.
13. Fair Market Value. For purposes of this Agreement, the term "Fair
Market Value" of a share of Stock shall mean the Fair Market Value of the Stock
as determined in good faith by Company; provided, however, that (a) if the Stock
is admitted to trading on a national securities exchange, Fair Market Value on
any date shall be the last sale price reported for the Stock on such exchange on
such date or, if no sale was reported on such date, on the last date preceding
such date on which a sale was reported, (b) if the Stock is admitted to
quotation on the National Association of Securities Dealers Automated Quotation
System ("NASDAQ") and has been designated as a National Market System ("NMS")
security, Fair Market Value on any date shall be the last sale price reported
for the Stock on such system on such date or, if no sale was reported on such
date, on the last day preceding such date on which a sale was reported, or (c)
if the Stock is admitted to quotation on NASDAQ and has not been designated a
NMS security or is listed on another comparable quotation system, Fair Market
Value on any date shall be the average of the highest bid and lowest asked
prices of the Stock on such system on such date or, if no sale was reported on
such date, on the last day preceding such date on which a sale was reported.
14. Incorporation of Plan by Reference. The Option is granted pursuant
to the terms of the Plan, the terms of which are incorporated herein by
reference, and the Option shall in all respects be interpreted in accordance
with the Plan. The Committee shall interpret and construe the Plan and this
Agreement, and its interpretations and determinations shall be conclusive and
binding on the parties hereto and any other person claiming an interest
hereunder, with respect to any issue arising hereunder or thereunder.
IN WITNESS WHEREOF, Company and Grantee have executed this Agreement in
a manner appropriate to each as of the day and year first above written.
INTRUST FINANCIAL CORPORATION
By
Title:
"Company"
ACCEPTED AND AGREED TO:
(Signature)
(Print Name)
"Grantee"
