Exhibit 10.4
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FORM OF
NONQUALIFIED STOCK OPTION AGREEMENT
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This AGREEMENT (the "Agreement") is made as of ____________ (the "Date of
Grant") by and between SCOTTISH ANNUITY & LIFE HOLDINGS, LTD., a Cayman Islands
corporation (the "Company") and __________________ (the "Optionee").
1. GRANT OF SHARE OPTION. Subject to and upon the terms, conditions, and
restrictions set forth in this Agreement and in the Company's Amended and
Restated 1998 Stock Option Plan (the "Plan"), the Company hereby grants to the
Optionee as of the Date of Grant a stock option (the "Option") to purchase
_____________ of the Company's Ordinary Shares (the "Optioned Shares"). The
Option may be exercised from time to time in accordance with the terms of this
Agreement. The price at which the Optioned Shares may be purchased pursuant to
this Option shall be $____________ per share subject to adjustment as
hereinafter provided (the "Option Price"). The Option is intended to be a
nonqualified stock option and shall not be treated as an "incentive stock
option" within the meaning of that term under Section 422 of the Code, or any
successor provision thereto.
2. TERM OF OPTION. The term of the Option shall commence on the Date of
Grant and, unless earlier terminated in accordance with Section 6 hereof, shall
expire ten (10) years from the Date of Grant.
3. RIGHT TO EXERCISE. Subject to expiration or earlier termination, on
each anniversary of the Date of Grant the number of Optioned Shares equal to
thirty-three and one-third percent (33 1/3%) multiplied by the initial number of
Optioned Shares specified in this Agreement shall become exercisable on a
cumulative basis until the Option is fully exercisable. To the extent the Option
is exercisable, it may be exercised in whole or in part. In no event shall the
Optionee be entitled to acquire a fraction of one Optioned Share pursuant to
this Option. The Optionee shall be entitled to the privileges of ownership with
respect to Optioned Shares purchased and delivered to him upon the exercise of
all or part of this Option.
4. TRANSFERABILITY. The Option granted hereby shall be transferable in
whole or part, by the Optionee upon five business days prior notice to the
Company.
5. NOTICE OF EXERCISE; PAYMENT.
(a) To the extent then exercisable, the Option may be exercised by
written notice to the Company stating the number of Optioned Shares for which
the Option is being exercised and the intended manner of payment. The date of
such notice shall be the exercise date. Payment equal to the aggregate Option
Price of the Optioned Shares being exercised shall be tendered in full with the
notice of exercise to the Company in cash in the form of currency or check or
other cash equivalent acceptable to the Company. The
requirement of payment in cash shall be deemed satisfied if, with the consent of
the Board, the Optionee makes arrangements that are satisfactory to the Company
with a broker that is a member of the National Association of Securities
Dealers, Inc. to sell a sufficient number of Optioned Shares which are being
purchased pursuant to the exercise, so that the net proceeds of the sale
transaction will at least equal the amount of the aggregate Option Price, and
pursuant to which the broker undertakes to deliver to the Company the amount of
the aggregate Option Price not later than the date on which the sale transaction
will settle in the ordinary course of business. The Optionee may also, with the
consent of the Board, tender the Option Price by any combination of the
foregoing methods of payment.
(b) Within ten (10) days after notice, the Company shall direct
the due issuance of the Optioned Shares so purchased.
(c) As a further condition precedent to the exercise of this
Option, the Optionee shall comply with all regulations and the requirements of
any regulatory authority having control of, or supervision over, the issuance of
Ordinary Shares and in connection therewith shall execute any documents which
the Board shall in its sole discretion deem necessary or advisable.
6. TERMINATION OF AGREEMENT. The Agreement and the Option granted hereby
shall terminate automatically and without further notice on the earliest of the
following dates:
(a) Two (2) years after the Optionee's death if the Optionee dies
while in the employ of the Company;
(b) Two (2) years after the date of the Optionee's permanent and
total disability if the Optionee becomes permanently and totally disabled while
an employee of the Company;
(c) Except as provided on a case-by-case basis, 60 days after the
date the Optionee ceases to be an employee of the Company, or a Subsidiary, for
any reason other than as described in this Section 6; or
(d) Ten (10) years from the Date of Grant.
In the event that the Optionee's employment is terminated for cause, the
Agreement shall terminate at the time of such termination notwithstanding any
other provision of this Agreement. For purposes of this provision, "cause"
shall mean the Optionee shall have committed prior to termination of employment
any of the following acts:
(i) an intentional act of fraud, embezzlement, theft, or any
other material violation of law in connection with the Optionee's duties or in
the course of the Optionee's employment;
(ii) intentional wrongful damage to material assets of the
Company;
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(iii) intentional wrongful disclosure of material
confidential information of the Company;
(iv) intentional wrongful engagement in any competitive
activity that would constitute a material breach of the duty of loyalty; or
(v) intentional breach of any stated material employment
policy of the Company.
Any determination of whether an Optionee's employment was terminated for cause
shall be made by the Board, whose determination shall be binding and conclusive.
This Agreement shall not be exercisable for any number of Optioned Shares in
excess of the number of Optioned Shares for which this Agreement is then
exercisable, pursuant to Sections 3 and 7 hereof, on the date of termination of
employment. For the purposes of this Agreement, the continuous employment of
the Optionee with the Company shall not be deemed to have been interrupted, and
the Optionee shall not be deemed to have ceased to be an employee of the
Company, by reason of the transfer of his employment among the Company and its
Subsidiaries or a leave of absence approved by the Board.
7. ACCELERATION OF OPTION. Notwithstanding Section 3, but subject to
earlier termination, the Option granted hereby shall become immediately
exercisable in full in the event of a Change of Control, as defined in the Plan.
8. NO EMPLOYMENT CONTRACT. Nothing contained in this Agreement shall
confer upon the Optionee any right with respect to continuance of employment by
the Company, nor limit or affect in any manner the right of the Company to
terminate the employment or adjust the compensation of the Optionee.
9. TAXES AND WITHHOLDING. If the Company shall be required to withhold
any federal, state, local or foreign tax in connection with the exercise of the
Option, and the amounts available to the Company for such withholding are
insufficient, the Optionee shall pay the tax or make provisions that are
satisfactory to the Company for the payment thereof. The Company will pay any
and all issue and other taxes in the nature thereof which may be payable by the
Company in respect of any issue or delivery upon a purchase pursuant to this
Option.
10. COMPLIANCE WITH LAW. The Company shall make reasonable efforts to
comply with all applicable federal and state securities laws; provided, however,
notwithstanding any other provision of this Agreement, the Option shall not be
exercisable if the exercise thereof would result in a violation of any such law.
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11. ADJUSTMENTS. The Board may make or provide for such adjustments in
the number of Optioned Shares covered by this Option, in the Option Price
applicable to such Option, and in the kind of shares covered thereby, as the
Board in its sole discretion, exercised in good faith, may determine is
equitably required to prevent dilution or enlargement of the Optionee's rights
that otherwise would result from (a) any stock dividend, stock split,
combination of shares, recapitalization, or other change in the capital
structure of the Company, (b) any merger, consolidation, spin-off,
reorganization, partial or complete liquidation, or issuance of rights or
warrants to purchase securities, or (c) any other corporate transaction or event
having an effect similar to any of the foregoing. In the event of any such
transaction or event, the Board may provide in substitution for this Option such
alternative consideration as it may determine to be equitable in the
circumstances and may require in connection therewith the surrender of this
Option. Any fractional shares resulting from the foregoing adjustments shall be
eliminated.
12. RELATION TO OTHER BENEFITS. Any economic or other benefit to the
Optionee under this Agreement shall not be taken into account in determining any
benefits to which the Optionee may be entitled under any profit-sharing,
retirement or other benefit or compensation plan maintained by the Company and
shall not affect the amount of any life insurance coverage available to any
beneficiary under any life insurance plan covering employees of the Company.
13. AMENDMENTS. Any amendment to the Plan shall be deemed to be an
amendment to this Agreement to the extent that the amendment is applicable
hereto; provided, however, that no amendment shall adversely affect the rights
of the Optionee under this Agreement without the Optionee's consent.
14. SEVERABILITY. In the event that one or more of the provisions of this
Agreement shall be invalidated for any reason by a court of competent
jurisdiction, any provision so invalidated shall be deemed to be separable from
the other provisions hereof, and the remaining provisions hereof shall continue
to be valid and fully enforceable.
15. RELATION TO PLAN. This Agreement is subject to the terms and
conditions of the Plan. In the event of any inconsistent provisions between
this Agreement and the Plan, the Plan shall govern. Capitalized terms used
herein without definition shall have the meanings assigned to them in the Plan.
The Board acting pursuant to the Plan, as constituted from time to time, shall,
except as expressly provided otherwise herein, have the right to determine any
questions which arise in connection with this option or its exercise.
16. SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall inure
to the benefit of, and be binding upon, the successors, administrators, heirs,
legal representatives and assigns of the Optionee, and the successors and
assigns of the Company.
17. GOVERNING LAW. The interpretation, performance, and enforcement of
this Agreement shall be governed by the laws of The Cayman Islands, without
giving effect to the principles of conflict of laws thereof.
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18. NOTICES. Any notice to the Company provided for herein shall be in
writing to the Company, marked Attention: Chief Executive Officer, and any
notice to the Optionee shall be addressed to said Optionee at his or her address
currently on file with the Company. Except as otherwise provided herein, any
written notice shall be deemed to be duly given if and when delivered personally
or deposited in the mail, postage and fees prepaid, and addressed as aforesaid.
Any party may change the address to which notices are to be given hereunder by
written notice to the other party as herein specified (provided that for this
purpose any mailed notice shall be deemed given on the third business day
following deposit of the same in the United States mail).
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed on
its behalf by its duly authorized officer and Optionee has also executed this
Agreement in duplicate counterparts, as of the day and year first above written.
Each counterpart shall be deemed an original, but the duplicate counterparts
together constitute one and the same instrument.
SCOTTISH ANNUITY & LIFE
HOLDINGS, LTD.
By:_______________________________________
Name:
Title:
__________________________________________
Optionee
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