Exhibit 10.14
FORM OF
SAXON CAPITAL ACQUISITION CORP.
STOCK OPTION AGREEMENT
FOR
NON-EMPLOYEE DIRECTORS
WHEREAS, Xxxxxx Xxxxxxxxxx (the "Optionee") is a Non-Employee Director
of Saxon Capital Acquisition Corp. (the "Company").
WHEREAS, the Optionee has been selected by the Board of Directors to
receive an option to purchase shares (the "Shares") of the Company's voting
Common Stock, $0.01 par value per share (the "Common Stock").
WHEREAS, the option to purchase the Shares is not being made under the
Company's 2001 Stock Incentive Plan.
WHEREAS, the Board of Directors has on May 31, 2001 authorized the
execution of a stock option agreement in the form hereof (the "Agreement")
effective as of _________ ____, _____ (the "Date of Grant").
NOW THEREFORE, subject to the terms and conditions set forth herein:
SECTION 1. GRANT OF OPTION.
(a) OPTION. The Company grants to the Optionee on the Date of
Grant the option (the "Option") to purchase 250,000 Shares at an exercise price
per Share of $10.00 (the "Exercise Price"). The Option is intended to be a
nonqualified stock option and will not be treated as an Incentive Stock Option
as that term is defined in Section 422 of the Code.
(b) DEFINED TERMS. Capitalized terms are defined in Section 11 of
this Agreement.
SECTION 2. VESTING; RIGHT TO EXERCISE.
Subject to the conditions set forth in this Agreement, the Shares under
this Option vest and may be exercised as follows: 25% of the Shares under the
Option may be exercised on the first anniversary of the Date of Grant, 25% of
the Shares under the Option may be exercised on the second anniversary of the
Date of Grant, 25% of the Shares under the Option may be exercised on the third
anniversary of the Date of Grant, and 25% of the Shares under the Option may be
exercised on the fourth anniversary of the Date of Grant; PROVIDED, HOWEVER,
that all of the Shares under the Option shall vest immediately upon a Change in
Control and the manner in which the parties intend to account for the Change in
Control transaction shall have no effect on the acceleration of such vesting.
SECTION 3. NO TRANSFER OR ASSIGNMENT OF OPTION.
Except as otherwise provided in this Agreement, the Option and the
rights and privileges conferred hereby shall not be sold, pledged or otherwise
transferred (whether by operation of law or otherwise) and shall not be subject
to sale under execution, attachment, levy or similar process.
SECTION 4. EXERCISE PROCEDURES.
(a) NOTICE OF EXERCISE. The Optionee or the Optionee's
representative may exercise the Option by giving written notice to the Company
pursuant to Section 10(c). The notice shall specify the election to exercise the
Option, the number of Shares for which it is being exercised and the form of
payment. The notice shall be signed by the person exercising the Option. In the
event that the Option is being exercised by the representative of the Optionee,
the notice shall be accompanied by proof (satisfactory to the Company) of the
representative's right to exercise the Option. The Optionee or the Optionee's
representative shall deliver to the Company, at the time of giving the notice,
payment in a form permissible under Section 5 for the full amount of the
Purchase Price.
(b) ISSUANCE OF SHARES. After receiving a proper notice of
exercise, the Company shall cause to be issued a certificate or certificates for
the Shares as to which the Option has been exercised, registered in the name of
the person exercising the Option (or in the names of such person and his or her
spouse as community property or as joint tenants with right of survivorship).
The Company shall cause such certificate or certificates to be deposited in
escrow or delivered to or upon the order of the person exercising the Option.
(c) WITHHOLDING TAXES. In the event that the Company determines
that it is required to withhold any tax as a result of the exercise of the
Option, the Optionee, as a condition to the exercise of the Option, shall make
arrangements satisfactory to the Company to enable it to satisfy all withholding
requirements. The Optionee shall also make arrangements satisfactory to the
Company to enable it to satisfy any withholding requirements that may arise in
connection with the vesting or disposition of Shares purchased by exercising the
Option.
SECTION 5. PAYMENT FOR STOCK.
(a) CASH. All or part of the Purchase Price may be paid in cash or
cash equivalents.
(b) SURRENDER OF STOCK. All or any part of the Purchase Price may
be paid by surrendering nonforfeitable and nonrestricted Shares that have been
held by the Optionee for at least six months. Such Shares shall be surrendered
to the Company in good form for transfer and shall be valued at their Fair
Market Value on the date when the Option is exercised. The Optionee shall not
surrender Shares in payment of the Purchase Price if such action would cause the
Company to recognize compensation expense (or additional compensation expense)
with respect to the Option for financial reporting purposes.
(c) EXERCISE/SALE. If the Common Stock is publicly traded, all or
part of the Purchase Price and any withholding taxes may be paid by the delivery
(on a form prescribed by the
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Company) of an irrevocable direction to a securities broker approved by the
Company to sell Shares and to deliver all or part of the sales proceeds to the
Company.
(d) EXERCISE/PLEDGE. If the Common Stock is publicly traded, all
or part of the Purchase Price and any withholding taxes may be paid by the
delivery (on a form prescribed by the Company) of an irrevocable direction to
pledge Shares to a securities broker or lender approved by the Company, as
security for a loan, and to deliver all or part of the loan proceeds to the
Company.
SECTION 6. TERM AND EXPIRATION.
(a) BASIC TERM. The Option shall in any event expire on the date
10 years after the Date of Grant.
(b) TERMINATION OF SERVICE (EXCEPT BY DEATH). If the Optionee's
Service terminates for any reason other than death, then the Option shall expire
on the expiration date determined pursuant to Subsection (a) above. The Optionee
may exercise all or part of the Option at any time before its expiration under
the preceding sentence, but only to the extent that the Option had become
exercisable before the Optionee's Service terminated. When the Optionee's
Service terminates, the Option shall expire immediately with respect to the
number of Shares for which the Option is not yet exercisable. In the event that
the Optionee dies after termination of Service but before the expiration of the
Option, all or part of the Option may be exercised (prior to expiration) by the
executors or administrators of the Optionee's estate or by any person who has
acquired the Option directly from the Optionee by beneficiary designation,
bequest or inheritance, but only to the extent that the Option had become
exercisable before the Optionee's Service terminated.
(c) DEATH OF THE OPTIONEE. If the Optionee dies while in Service,
then the Option shall expire on the earlier of the following dates:
(i) The expiration date determined pursuant to Subsection
(a) above; or
(ii) The date 12 months after the Optionee's death.
All or part of the Option may be exercised at any time before its expiration
under the preceding sentence by the executors or administrators of the
Optionee's estate or by any person who has acquired the Option directly from the
Optionee by beneficiary designation, bequest or inheritance, but only to the
extent that the Option had become exercisable before the Optionee's death.
SECTION 7. LEGALITY OF INITIAL ISSUANCE.
No Shares shall be issued upon the exercise of the Option unless and
until the Company has determined that:
(a) It and the Optionee have taken any actions required to
register the Shares under the Securities Act or to perfect an exemption from the
registration requirements thereof;
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(b) Any applicable listing requirement of any stock exchange or
other securities market on which Stock is listed has been satisfied; and
(c) Any other applicable provision of state or federal law has
been satisfied.
SECTION 8. NO REGISTRATION RIGHTS.
The Company may, but shall not be obligated to, register or qualify the
sale of Shares under the Securities Act or any other applicable law. The Company
shall not be obligated to take any affirmative action in order to cause the sale
of Shares under this Agreement to comply with any law.
SECTION 9. RESTRICTIONS ON TRANSFER.
(a) SECURITIES LAW RESTRICTIONS. Regardless of whether the
offering and sale of Shares have been registered under the Securities Act or
have been registered or qualified under the securities laws of any state, the
Company at its discretion may impose restrictions upon the sale, pledge or other
transfer of such Shares (including the placement of appropriate legends on stock
certificates or the imposition of stop-transfer instructions) if, in the
judgment of the Company, such restrictions are necessary or desirable in order
to achieve compliance with the Securities Act, the securities laws of any state
or any other law.
(b) MARKET STAND-OFF. In connection with any underwritten public
offering by the Company of its equity securities pursuant to an effective
registration statement filed under the Securities Act, including the Company's
initial public offering, the Optionee shall not directly or indirectly sell,
make any short sale of, loan, hypothecate, pledge, offer, grant or sell any
option or other contract for the purchase of, purchase any option or other
contract for the sale of, or otherwise dispose of or transfer, or agree to
engage in any of the foregoing transactions with respect to, any Shares acquired
under this Agreement without the prior written consent of the Company or its
underwriters. Such restriction (the "Market Stand-Off") shall be in effect for
such period of time following the date of the final prospectus for the offering
as may be requested by the Company or such underwriters. In no event, however,
shall such period exceed 180 days. The Market Stand-Off shall in any event
terminate two years after the date of the Company's initial public offering. In
the event of the declaration of a stock dividend, a spin-off, a stock split, an
adjustment in conversion ratio, a recapitalization or a similar transaction
affecting the Company's outstanding securities without receipt of consideration,
any new, substituted or additional securities which are by reason of such
transaction distributed with respect to any Shares subject to the Market
Stand-Off, or into which such Shares thereby become convertible, shall
immediately be subject to the Market Stand-Off. In order to enforce the Market
Stand-Off, the Company may impose stop-transfer instructions with respect to the
Shares acquired under this Agreement until the end of the applicable stand-off
period. The Company's underwriters shall be beneficiaries of the agreement set
forth in this Subsection (b). This Subsection (b) shall not apply to Shares
registered in the public offering under the Securities Act, and the Optionee
shall be subject to this Subsection (b) only if the directors and officers of
the Company are subject to similar arrangements.
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(c) INVESTMENT INTENT AT GRANT. The Optionee represents and agrees
that the Shares to be acquired upon exercising the Option will be acquired for
investment, and not with a view to the sale or distribution thereof.
(d) INVESTMENT INTENT AT EXERCISE. In the event that the sale of
Shares is not registered under the Securities Act but an exemption is available
which requires an investment representation or other representation, the
Optionee shall represent and agree at the time of exercise that the Shares being
acquired upon exercising the Option are being acquired for investment, and not
with a view to the sale or distribution thereof, and shall make such other
representations as are deemed necessary or appropriate by the Company and its
counsel.
(e) LEGENDS. All certificates evidencing Shares purchased under
this Agreement in an unregistered transaction shall bear the following legend
(and such other restrictive legends as are required or deemed advisable under
the provisions of any applicable law):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT") OR
APPLICABLE STATE SECURITIES LAWS (THE "STATE ACTS"), AND SHALL
NOT BE SOLD, EXCHANGED, ASSIGNED, PLEDGED, MORTGAGED,
HYPOTHECATED, ENCUMBERED, DISPOSED OF, OR OTHERWISE
TRANSFERRED, WHETHER VOLUNTARILY OR INVOLUNTARILY, OR BY
OPERATION OF LAW, OR WITH OR WITHOUT CONSIDERATION (A
"TRANSFER") BY THE HOLDER EXCEPT UPON THE ISSUANCE TO THE
COMPANY OF A FAVORABLE OPINION OF ITS COUNSEL AND/OR
SUBMISSION TO THE CORPORATION OF SUCH OTHER EVIDENCE AS MAY BE
SATISFACTORY TO COUNSEL TO THE COMPANY, TO THE EFFECT THAT ANY
SUCH TRANSFER SHALL NOT BE IN VIOLATION OF THE ACT AND THE
STATE ACTS."
(f) REMOVAL OF LEGENDS. If, in the opinion of the Company and its
counsel, any legend placed on a stock certificate representing Shares sold under
this Agreement is no longer required, the holder of such certificate shall be
entitled to exchange such certificate for a certificate representing the same
number of Shares but without such legend.
(g) ADMINISTRATION. Any determination by the Company and its
counsel in connection with any of the matters set forth in this Section 9 shall
be conclusive and binding on the Optionee and all other persons.
SECTION 10. MISCELLANEOUS PROVISIONS.
(a) RIGHTS AS A STOCKHOLDER. Neither the Optionee nor the
Optionee's representative shall have any rights as a stockholder with respect to
any Shares subject to the Option until the Optionee or the Optionee's
representative becomes entitled to receive such Shares by filing a notice of
exercise and paying the Purchase Price pursuant to Sections 4 and 5.
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(b) NO RETENTION RIGHTS. Nothing in the Option shall confer upon
the Optionee any right to continue in Service for any period of specific
duration or interfere with or otherwise restrict in any way the rights of the
Company (or any Parent or Subsidiary retaining the Optionee) or of the Optionee,
which rights are hereby expressly reserved by each, to terminate his or her
Service at any time and for any reason, with or without cause.
(c) NOTICE. Any notice required by the terms of this Agreement
shall be given in writing and shall be deemed effective upon personal delivery
or upon deposit with the United States Postal Service, by registered or
certified mail, with postage and fees prepaid. Notice shall be addressed to the
Company at its principal executive office and to the Optionee at the address
that he or she most recently provided to the Company.
(d) ENTIRE AGREEMENT. The Agreement constitutes the entire
contract between the parties hereto with regard to the subject matter hereof.
They supersede any other agreements, representations or understandings (whether
oral or written and whether express or implied) which relate to the subject
matter hereof.
(e) CHOICE OF LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, as such laws
are applied to contracts entered into and performed in such State, without
giving effect to the choice of law provisions thereof.
(f) COUNTERPARTS. This Agreement may be executed simultaneously in
one or more counterparts, each of which shall be deemed an original, but all of
which shall constitute but one and the same instrument.
SECTION 11. DEFINITIONS.
(a) "BOARD OF DIRECTORS" shall mean the Board of Directors of the
Company, as constituted from time to time or, if a Committee has been appointed,
such Committee.
(b) "CHANGE IN CONTROL" shall mean:
(i) The consummation of a merger or consolidation of the
Company with or into another entity or any other corporate
reorganization, if more than 50% of the combined voting power of the
continuing or surviving entity's securities outstanding immediately
after such merger, consolidation or other reorganization is owned by
persons who were not stockholders of the Company immediately prior to
such merger, consolidation or other reorganization; PROVIDED, HOWEVER,
that a public offering of the Company's securities shall not constitute
a corporate reorganization;
(ii) The sale, transfer, or other disposition of all or
substantially all of the Company's assets;
(iii) A change in the composition of the Board of
Directors, as a result of which fewer than 50% of the incumbent
directors are directors who either (x) had been directors of the
Company on the date 24 months prior to the date of the event that may
constitute a Change in Control (the "original directors") or (y) were
elected, or nominated for
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election, to the Board of Directors with the affirmative votes of at
least a majority of the aggregate of the original directors who were
still in office at the time of the election or nomination and the
directors whose election or nomination was previously so approved; or
(iv) Any transaction as a result of which any person is
the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company representing
at least 30% of the total voting power represented by the Company's
then outstanding voting securities. For purposes of this Paragraph
(iv), the term "person" shall have the same meaning as when used in
sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended, but shall exclude (x) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or of a Parent
or Subsidiary and (y) a corporation owned directly or indirectly by the
stockholders of the Company in substantially the same proportions as
their ownership of the common stock of the Company.
Notwithstanding the foregoing, a transaction shall not constitute a
Change in Control if its sole purpose is to change the state of the Company's
incorporation or to create a holding company that will be owned in substantially
the same proportions by the persons who held the Company's securities
immediately before such transaction.
(c) "CODE" shall mean the Internal Revenue Code of 1986, as
amended.
(d) "DISABILITY" shall mean that the Optionee is unable to engage
in any substantial gainful activity by reason of any medically determinable
physical or mental impairment.
(e) "EMPLOYEE" shall mean any individual who is a common-law
employee of the Company, a Parent, or a Subsidiary.
(f) "FAIR MARKET VALUE" shall mean the market price of Common
Shares, determined by the Board of Directors in good faith on such basis as it
deems appropriate. Whenever possible, the determination of Fair Market Value by
the Board of Directors shall be based on the prices reported in the Wall Street
Journal or any other nationally recognized newspaper. Such determination shall
be conclusive and binding on all persons.
(g) "NON-EMPLOYEE DIRECTOR" shall mean a member of the Board of
Directors who is not an Employee.
(h) "PARENT" shall mean any corporation (other than the Company)
in an unbroken chain of corporations ending with the Company, if each of the
corporations other than the Company owns stock possessing 50% or more of the
total combined voting power of all classes of stock in one of the other
corporations in such chain.
(i) "PURCHASE PRICE" shall mean the Exercise Price multiplied by
the number of Shares with respect to which the Option is being exercised.
(j) "SECURITIES ACT" shall mean the Securities Act of 1933, as
amended.
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(k) "SERVICE" shall mean service as an Non-Employee Director.
(l) "SUBSIDIARY" shall mean any corporation (other than the
Company) in an unbroken chain of corporations beginning with the Company, if
each of the corporations other than the last corporation in the unbroken chain
owns stock possessing 50% or more of the total combined voting power of all
classes of stock in one of the other corporations in such chain.
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This Agreement is executed by the Company on this ____ day ____________, 2001,
effective as of the Date of Grant.
SAXON CAPITAL ACQUISITION, INC.
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By:
Title:
The undersigned Optionee hereby acknowledges receipt of an executed
original of this Agreement and accepts the Option granted hereunder, subject to
the terms and conditions hereinabove set forth.
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Xxxxxx Xxxxxxxxxx, Optionee
Date:
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