Ex-10.8(b)
[For Employees of Members]
FIRST MORTGAGE NETWORK, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT is between First Mortgage Network, Inc., a Florida
corporation (the "Company"), and the person whose signature is set forth on the
signature page hereof ("Participant").
RECITALS
WHEREAS, the Company has adopted the First Mortgage Network, Inc. Stock
Option Plan (the "Plan") which provides for the grant of options to certain Key
Employees, Non-Employee Directors, and Non-Employee Advisors;
WHEREAS, Participant was formerly an employee of the Company who, at
the request of the Company became an employee of one of the member organizations
("Member") that market the Company's services;
WHEREAS, as an employee of the Member, Participant is a Non-Employee
Advisor to the Company and in such capacity is in a position to contribute
materially to the continued growth and development and the future financial
success of the Company;
WHEREAS, the Company wishes to grant to Participant an option to
purchase common stock of the Company on the terms and conditions specified
herein to provide a means for the Participant to participate in the future
growth of the Company and to increase the Participant's incentive and personal
interest in the continued success and growth of the Company; and
NOW, THEREFORE, the parties agree as follows (any capitalized terms
used herein but not defined herein shall have the respective meanings given in
the Plan):
1. Option.
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(a) Grant. Subject to the terms and conditions of this Agreement and
the Plan, the Company hereby grants to Participant a Non-Qualified Stock Option
to purchase all or any part of the Shares set forth on the signature page
hereof, at the exercise price set forth on the signature page hereof.
(b) Term. The term of the Option shall expire at 11:59 p.m. on the
date immediately preceding the tenth anniversary of the date of grant of the
Option.
(c) Vesting. Unless otherwise set forth herein, vesting of the
Option shall occur only during the time in which Participant is employed by the
Member and the Member is a member of Company and the Option shall be exercisable
only beginning after the second anniversary of the date of first service as an
employee or adviser to the Company as determined by the Board of Directors and
prior to the expiration date, as set forth in the following table:
Years from Date of Cumulative Number of Shares
First Service with Company as to which Option is Exercisable
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After two years 40%
After three years 60%
After four years 80%
After five years 100%
2. Exercise. Participant may, subject to the limitations of this
Agreement and the Plan, exercise all or any portion of the Option by providing
written notice of exercise to the Company specifying the number of Shares with
respect to which the Option is being exercised and accompanied by payment of the
exercise price for such Shares. The exercise price shall be paid in cash, by the
surrender of a whole number of Shares (free of all adverse claims and duly
endorsed in blank by Participant or accompanied by stock powers duly endorsed in
blank) having a Fair Market Value on the date of exercise equal to the exercise
price, or by the surrender of the unexercised, vested portion of the Option as
to which the Spread (as hereinafter defined) is equal to the exercise price, or
any combination of the foregoing. "Spread" means the Fair Market Value on the
date of exercise of the underlying Shares less the exercise price.
3. Termination of Employment with Member.
(a) If the employment of Participant with Member terminates by
reason of disability, Participant (or his or her legal representative) may
exercise any portion of the Option which has then vested pursuant to Section 1
hereof for a period of one year after the date of such termination of employment
and not thereafter; provided, however, that no Option or portion thereof shall
be exercisable after it has expired pursuant to Section 1 hereof. For purposes
of this Agreement, the term "disability" shall mean a total and permanent
disability as determined by the Board of Directors in its sole discretion.
(b) If the employment of Participant with Member terminates by
reason of death, any unvested portion of the Option shall vest in full upon
Participant's death, and Participant's Beneficiary (as hereinafter defined) may
exercise the Option for a period of one year after the date of death and not
thereafter; provided, however, that no Option or portion thereof shall be
exercisable after it has expired pursuant to Section 1 hereof.
(c) If the employment of Participant with Member is terminated
without Cause (as hereinafter defined) or is terminated by Participant for any
reason other than death or disability, or if the Member employing Participant
ceases to be one of the Company's member organizations that market the Company's
services, Participant (or his or her legal representative) may exercise any
portion of the Option which has then vested pursuant to Section 1 hereof for a
period of three months after the date of such termination of employment and not
thereafter; provided, however, that no Option or portion thereof shall be
exercisable after it has expired pursuant to Section 1 hereof.
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(d) If the employment of the Participant with Member terminates for
Cause, the entire Option (whether vested or non-vested) shall immediately be
forfeited and become null and void. For purposes hereof, "Cause" shall mean
material nonfeasance, material malfeasance or material misfeasance on the part
of the Participant which, if susceptible of cure, shall continue after notice of
the default and a reasonable opportunity to cure.
(e) For purposes of this Section 3, termination of employment of
Participant shall include termination of the engagement as a consultant to the
Company of Participant or of a business entity of which Participant is a
principal.
4. Change of Control. In the event of a Change of Control, any unvested
portion of the Option shall vest in full. Change of Control means: (i) the
adoption of a plan of reorganization, merger, share exchange or consolidation of
the Company with one or more other corporations or other entities as a result of
which the holders of the Shares as a group would receive less than fifty percent
(50%) of the voting power of the capital stock or other interests of the
surviving or resulting corporation or entity (unless such plan is subsequently
abandoned); (ii) the adoption by the Company's shareholders of a plan of
liquidation or the approval of the dissolution of the Company (unless such
liquidation or dissolution is subsequently abandoned); (iii) the approval by the
Company's shareholders of an agreement providing for the sale of all or
substantially the assets of the Company unless such sale is subsequently
abandoned); or (iv) the acquisition of more than thirty percent (30%) of the
outstanding Shares by any person within the meaning of Rule 13(d)(3) under the
Securities Exchange Act of 1934 if such acquisition is not preceded by a prior
expression of approval by the Board; or (v) one-third or more of the Company's
Board of Directors are not Continuing Directors (a "Continuing Director" means
any member of the Board of Directors who was a member on June 30, 1996, and any
Director who was recommended for election, or is elected to fill a vacancy, as a
director by a majority of the Continuing Directors then on such Board).
5. Withholding. The Company may deduct and withhold from any cash
payable to Participant such amount as may be required for the purpose of
satisfying the Company's obligation to withhold federal, state or local taxes in
connection with any exercise of this Option. The Participant may elect to
satisfy such withholding obligation, in whole or in part, (a) by causing the
Company to withhold Shares otherwise issuable pursuant to the exercise of the
Option or (b) by delivering to the Company Shares already owned by the
Participant. The Shares so delivered or withheld shall be a whole number, have a
Fair Market Value equal to such withholding obligation as of the date that the
amount of tax to be withheld is to be determined, shall be free of all adverse
claims, and shall be duly endorsed in blank by Participant or accompanied by
stock powers duly endorsed in blank.
6. Nonalienation. Participant shall have no rights to sell, assign,
transfer, pledge, assign or otherwise alienate the Option under this Agreement,
except by will or by the laws of descent and distribution or pursuant to a
qualified domestic relations order as defined by the Code or Title I of ERISA,
or the rules thereunder, and any such attempted sale, assignment, transfer,
pledge or other conveyance shall be null and void. The Option shall be
exercisable during the Participant's lifetime only by the Participant (or his or
her legal representative).
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7. Beneficiary. The person whose name appears on the signature page
hereof after the caption "Beneficiary" or any successor designated by
Participant in accordance herewith (the person who is Participant's Beneficiary
at the time of his or her death is referred to as the "Beneficiary") shall be
entitled to exercise the Option, to the extent it is exercisable, after the
death of Participant. Participant may from time to time revoke or change his or
her Beneficiary without the consent of any prior Beneficiary by filing a new
designation with the Board of Directors. The last such designation received by
the Board of Directors shall be controlling; provided, however, that no
designation, or change or revocation thereof, shall be effective unless received
by the Board of Directors prior to Participant's death, and in no event shall
any designation be effective as of a date prior to such receipt. If no
Beneficiary designation is in effect at the time of Participant's death, or if
no designated Beneficiary survives Participant or if such designation conflicts
with law, Participant's estate shall be entitled to exercise the Option, to the
extent it is exercisable after the death of Optionee. If the Board of Directors
is in doubt as to the right of any person to exercise the Option, the Company
may refuse to recognize such exercise, without liability for any interest or
dividends on the underlying Shares, until the Board of Directors determines the
person entitled to exercise the Option, or the Company may apply to any court of
appropriate jurisdiction and such application shall be a complete discharge of
the liability of the Company therefor.
8. Securities Law Restrictions. Participant agrees and acknowledges
with respect to any Shares that have not been registered under the Securities
Act of 1933 as amended (the "Act"), that (i) Participant will not sell or
otherwise dispose of such Shares except pursuant to an effective registration
statement under the Act and any application state securities laws, or in a
transaction which in the opinion of counsel for the Company, is exempt from such
registration, and (ii) a legend will be placed on the certificates for the
Shares to such effect.
9. Limited Interest.
(a) The grant of the Option shall not be construed as giving
Participant any interest other than as provided in this Agreement.
(b) Participant shall have no rights as a shareholder as a result of
the grant of the Option, until the Option is exercised, the exercise price is
paid, and the Shares issued thereunder.
(c) The grant of the Option shall not confer on Participant any
right to continue as a Non-Employee Advisor, nor interfere in any way with the
right of the Company to terminate the Company's relationship with the Member at
any time.
(d) The grant of the Option shall not affect in any way the right or
power of the Company to make or authorize any or all adjustments,
recapitalizations, reorganizations, or other changes in the Company's capital
structure or its business, or any merger, consolidation or business combination
of the Company, or any issuance or modification of any term, condition, or
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covenant of any bond, debenture, debt, preferred stock or other instrument ahead
of or affecting the Shares or the rights of the holders thereof, or the
dissolution or liquidation of the Company, or any sale or transfer of all or any
part of its assets or business or any other Company act or proceeding, whether
of a similar character or otherwise.
10. Incorporation by Reference. The terms of the Plan to the extent not
stated herein are expressly incorporated herein by reference and in the event of
any conflict between this Agreement and the Plan, the Plan shall govern.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
12. Amendment.
This Agreement may not be amended, modified, terminated or otherwise
altered except by the written consent of the parties thereto.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed by its duly authorized officer and its corporate seal hereunto affixed,
and the Optionee has hereunto affixed his or her hand, all on the day and year
set forth below.
FIRST MORTGAGE NETWORK, INC.
By:________________________________
Its:_______________________________
("Company")
___________________________________
Name:______________________________
("Participant")
No. of Shares: _________ Grant Date: _____________, ____
Exercise Price Per share: Initial Exercise Date: ________, ____
Date of Agreement: ___________, ____ Option Expiration Date:_____________
Beneficiary:________________________ Date of First Service with
Company:_____________________________
Beneficiary Tax Identification No.:
Address of Beneficiary:
____________________________________
___________________________________
___________________________________
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