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EXHIBIT 10.11
XXXXXXX FINANCIAL SERVICES CORPORATION
1997 STOCK OPTION PLAN
STOCK OPTION AGREEMENT
Xxxxxxx Financial Services Corporation, a Michigan corporation (the
"Company"), upon the recommendation of the Company's Board of Directors (the
"Board") and pursuant to that certain 1997 Stock Option Plan adopted by the
Company's Board of Directors (the "Plan") and approved by its shareholders, and
in consideration of the services to be rendered to the Company or its
subsidiaries by _______________ ("_________________________"), hereby grants,
as of __________________ (the "Date of Grant"), _________________________ the
option to purchase __________________ (___________) shares (the "Option") of
the Company's common stock, (the "Shares"), at a price of ___________________
Dollars ($_________) per share (the "Option Price"), on the terms and
conditions contained in this Stock Option Agreement (the "Agreement") and
subject to all the terms and conditions of the Plan, which are incorporated by
reference herein. The Option is designated as a Non-Qualified Stock Option,
Incentive Stock Option or Performance Based Option as defined in the Plan, and
the Option Price specified above shall not be less than eighty-five percent
(85%) of the fair market value of a share of common stock at the time the Stock
Option is granted.
I. EXERCISE OF OPTION
_________________________ may exercise this Option at any time on or after
the first date specified below, but in no event later than
______________________, subject only to prior termination or modification of
the Plan and in accordance with and subject to any percentage limitations
contained in this Section I and the expiration provisions contained in Section
IV:
(a) 33 1/3% of the Shares, or any lesser part thereof, on or
after the Date of Grant, or in the case of an officer of the
Corporation, six months on or after the Date of Grant;
(b) An additional 33 1/3% of the Shares, or any lesser part
thereof, on or after the date which is one (1) year from the grant
of the Option; and
(c) The final 33 1/3% of the Shares, or any lesser part
thereof, on or after the date which is two (2) years from the
grant of the Option.
Any Shares not purchased by _________________________ at the time
_________________________ is first eligible to exercise the Option for such
Shares, as determined by this Section I, may be purchased by
_________________________ at any time thereafter but, in no event, later than
___________________.
II. TRANSFERABILITY
This Option may not be transferred by _________________________, except by
will or the laws of descent and distribution or pursuant to the terms of a
domestic relations order, as defined in Section 414(p)(1)(B) of the Internal
Revenue Code of 1986, which satisfies the requirements of Section 414(p)(1)(A)
of the Internal Revenue Code of 1986 (a "Qualified Domestic Relations Order").
During _________________________'s life, this Option shall be exercisable only
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_________________________ (or _________________________'s personal
representative or attorney-in-fact) or the alternate payee named in a Qualified
Domestic Relations Order pursuant to and in accordance with the terms and
conditions contained in this Agreement. The Option shall not otherwise be
transferred, assigned, pledged or hypothecated for any purpose whatsoever, and
is not subject to execution, attachment or similar process. Any attempted
assignment, transfer, pledge or hypothecation or other disposition of the
Option, other than in accordance with the terms of this Agreement, shall be
void and of no effect.
III. MANNER OF EXERCISE
This Option may be exercised, in accordance with Section I above, by
delivery (personally or by certified or registered mail in accordance with
Section VII. below) of a written notice to the Company's Secretary specifying
the number of Shares to be purchased and accompanied by payment for those
Shares and any applicable withholding taxes. At the election of
_________________________, such payment may be made in cash, check, or by
delivery of certificate(s) representing Shares of the Company's common stock
previously held by _________________________, duly endorsed for transfer, or
shares issuable to _________________________ pursuant to the exercise of the
Option. The Administrator may also permit payment to be made in such other
manner as the Administrator deems appropriate and in compliance with applicable
law. Any shares delivered to the Company in payment of the aggregate Option
Price shall be valued at the fair market value of the Company's shares, such
valuation to be equal to the average of the highest and lowest selling price
for the Company's stock quoted on the Composite Tape for New York Stock
Exchange Listed Companies for the date of _________________________'s exercise
of the Option or any part thereof (or if no sales are reported on that date,
for the first date prior to the exercise date upon which a sale was reported).
Unless otherwise provided by the Administrator, if _________________________
is, at the time of exercise, an Officer as defined in the Plan, the Company
shall withhold the appropriate number of Shares, rounded up to the next whole
number, as are determined by the Administrator to have a Fair Market Value
equal to the amount required to satisfy applicable withholding taxes. If
_________________________ is not an Officer at the date of exercise, he may
elect to have Shares withheld or may deliver cash or a check to pay the
withholding taxes. The Option shall be exercised in accordance with such
administrative regulations as the Administrator of the Plan shall from time to
time adopt.
IV. EXPIRATION
All unexercised rights under the Option shall expire on the date specified
in Section I above or on the date specified in this Section IV in the event
that _________________________'s employment is terminated.
(a) Upon termination of _________________________'s employment with
the Company or a subsidiary due to _________________________'s death, the
right to exercise the Option shall be accelerated and shall accrue as of
the date of _________________________'s death, and may be exercised by
_________________________'s executor, administrator or the person to whom
the rights under the Option shall pass by _________________________'s
will or by the laws of descent and distribution, within one (1) year from
the date of _________________________'s death.
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(b) Upon the termination of _________________________'s employment
with the Company or its subsidiaries for "cause," as defined in the Plan,
this Option, to the extent not exercised, shall lapse and be of no
further force or effect whatsoever. Upon such lapse,
_________________________ shall not be entitled nor have the right to
purchase any additional Shares under the Plan or, to the extent not
exercised before such termination, pursuant to this Agreement.
(c) Upon termination of _________________________'s employment for
any reason other than for death or for cause, this Option may be
exercised, to the extent it was otherwise exercisable on the date of
termination of employment, within ninety (90) days of such termination of
employment. In the event of _________________________'s death within the
ninety day period following termination of employment, the Option may be
exercised by his Beneficiary, to the extent it was otherwise exercisable,
within one (1) year of the date of _________________________'s death.
V. NON-ISSUANCE
The Company shall not be required to issue or deliver any Shares upon
_________________________'s exercise of the Option:
(a) Prior to the admission of such Shares to listing on any public
exchange on which the Company's common stock may be listed; or
(b) Prior to the completion of any proceedings under any applicable
state or federal securities law, rule or regulation that the Company or
its counsel determines to be necessary or advisable to the issuance of
the Shares; or
(c) Unless such issuance, in the opinion of the Company's counsel,
is exempt from federal and state securities registration requirements.
The Company may require _________________________ to represent and agree in
writing that if such Shares are issuable under an exemption from registration
requirements, the Shares will be "restricted." _________________________ shall
not have the rights of a shareholder with respect to the Shares until
certificates evidencing the Shares have been issued and delivered to
_________________________. While the Company will attempt to process the
exercise of the Option as promptly as possible, it cannot guarantee a delivery
date for the certificates.
VI. REORGANIZATION
If prior to the expiration of the Option, the Shares then subject to the
Option shall be affected by any recapitalization, merger, consolidation,
reorganization, stock dividend, stock split or other change in capitalization
affecting the common stock of the Company, the Company will appropriately
adjust the number and kind of Shares covered by the Option and the Option Price
per share as is necessary to prevent dilution or the enlargement of rights
which might otherwise result.
VII. NOTICE
All notices given pursuant to or in connection with this Agreement shall
be in writing and shall be deemed to be duly given when personally delivered
or when mailed, if sent by certified or
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registered mail, postage prepaid, return receipt requested, and addressed as
follows, or to such other address as the parties may indicate:
If to the Company: Xxxxxxx Financial Services Corporation
00000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
ATTN: Xx. Xxxxxxx X. Xxxxxxxx
If to ____________________: ____________________________
____________________________
____________________________
With a Required Copy
of any Notice to: Xxxxx Xxxxx, Esq.
Xxxxx, Raitt, Heuer & Xxxxx
Professional Corporation
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
VIII. NO RIGHT TO EMPLOYMENT CONFERRED
Nothing in this Agreement or the Plan shall confer upon
_________________________ any right to continue in employment with the Company
or a subsidiary or interfere in any way with the right of the Company or any
subsidiary to terminate such person's employment at any time.
IX. SEVERABILITY
If any provision of this Agreement is held invalid or unenforceable, the
remaining provisions shall continue to be in full force and effect to the
maximum extent permitted by law. If the implementation or presence of any
provision of this Agreement would or will cause the Plan and thereby the Shares
purchased thereunder to not be in compliance with Rule 16b-3 under the
Securities Exchange Act of 1934 or any other statutory provision, such
Agreement provision shall not be implemented or, at the Company's option
following notice, such provision shall be severed from the Agreement as is
appropriate or necessary to achieve statutory compliance; provided, however,
that the parties hereby agree to negotiate in good faith as may be necessary to
modify this Agreement to achieve statutory compliance or otherwise effectuate
the intent of the parties following a severance permitted by this Section IX.
X. AMENDMENT
This instrument contains the entire Agreement of the parties and may only
be amended by written agreement executed by the parties hereto or their
respective successors, as permitted by Section II above. Notwithstanding the
foregoing, the Administrator may, in its discretion, amend this agreement
without the consent of _________________________ in such a manner as it
believes will prevent the Option from resulting in "applicable
_________________________ remuneration" within the meaning of Section 162(m) of
the Internal Revenue Code or regulations thereunder.
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XI. GOVERNING LAW
This Agreement is made and entered into and shall be construed and
enforced in accordance with the laws of the State of Michigan.
XII. HEADINGS
The section numbers and headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
XIII. ACCEPTANCE OF OPTION
The exercise of the Option is conditioned upon the acceptance by
_________________________ of the terms hereof as evidenced by his or her
execution of this Agreement and the return of an executed copy to the Secretary
of the Company no later than sixty days after the date set forth in the
following paragraph.
IN WITNESS WHEREOF, this Stock Option Agreement is hereby executed as of
_______________________.
"COMPANY"
XXXXXXX FINANCIAL SERVICES
CORPORATION, a Michigan corporation
By: __________________________________________
Xxxxxxx X. Xxxxxxxx
__________________________________________
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