QUANTA CAPITAL HOLDINGS LTD.
NON-QUALIFIED STOCK OPTION AGREEMENT
FOR GOOD AND VALUABLE CONSIDERATION, receipt of which is hereby
acknowledged, Quanta Capital Holdings Ltd. (the "Company"), a Bermuda company,
hereby grants to Xxxxx X. Xxxx, Chief Executive Officer of the Company on the
date hereof (the "Option Holder"), the option to purchase common shares, $0.01
par value per share, of the Company ("Shares"), upon the following terms:
WHEREAS, the Option Holder has been granted the following award in
connection with his or her retention as an employee and as compensation for
services to be rendered; and the following terms reflect the Company's 2003
Long Term Incentive Plan (the "Plan");
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto agree as follows.
(a) Grant. The Option Holder is hereby granted an option (the "Option")
to purchase 649,830 Shares (the "Option Shares") pursuant to the Plan, the
terms of which are incorporated herein by reference. The Option is granted as
of September 3, 2003 (the "Date of Grant") and such grant is subject to the
terms and conditions herein and the terms and conditions of the applicable
provisions of the Plan. This Option shall not be treated as an incentive stock
option as defined in Section 422 of the Internal Revenue Code of 1986, as
amended.
(b) Status of Option Shares. The Option Shares shall upon issue rank
equally in all respects with the other Shares.
(c) Option Price. The purchase price for the Option Shares shall be,
except as herein provided, $10.00 per Option Share, hereinafter sometimes
referred to as the "Option Price," payable immediately in full upon the
exercise of the Option.
(d) Term of Option. The Option may be exercised only during the period
(the "Option Period") set forth in paragraph (f) below and shall remain
exercisable until the tenth anniversary of the Date of Grant. Thereafter, the
Option Holder shall cease to have any rights in respect thereof. The right to
exercise the Option shall be subject to sooner termination as provided in
paragraph (j) below.
(e) No Rights of Shareholder. The Option Holder shall not, by virtue
hereof, be entitled to any rights of a shareholder in the Company, either at
law or in equity.
(f) Exercisability. Except as otherwise set forth in paragraph (j)
below, the Option shall become exercisable in four equal annual increments
during a four year period commencing on the first anniversary hereof and
becoming fully vested and exercisable on the fourth anniversary of the date
hereof, in each case subject to paragraph (j) below. Subject to paragraph (j)
below, the Option may be exercised at any time or from time to time during the
Option Period in regard to all or any portion of the Option which is then
exercisable, as may be adjusted pursuant to paragraph (g) below.
(g) Adjustments for Recapitalization and Dividends. In the event that,
prior to the expiration of the Option, any dividend in Shares,
recapitalization, Share split, reverse split, reorganization, merger,
consolidation, spin-off, combination, repurchase, or share exchange, or other
such change affects the Shares such that they are increased or decreased or
changed into or exchanged for a different number or kind of shares, other
securities of the Company or of another corporation or other consideration,
then in order to maintain the proportionate interest of the Option Holder and
preserve the value of the Option, (i) there shall automatically be substituted
for each Share subject to the unexercised Option the number and kind of shares,
other securities or other consideration (including cash) into which each
outstanding Share shall be changed or for which each such Share shall be
exchanged, and (ii) the exercise price shall be increased or decreased
proportionately so that the aggregate purchase price for the Shares subject to
the unexercised Option shall remain the same as immediately prior to such
event.
(h) Nontransferability. The Option, or any interest therein, may not be
assigned or otherwise transferred, disposed of or encumbered by the Option
Holder, other than by will or by the laws of descent
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and distribution. During the lifetime of the Option Holder, the Option shall be
exercisable only by the Option Holder or by his or her guardian or legal
representative. Notwithstanding the foregoing, the Option may be transferred by
the Option Holder (for no consideration) to members of his or her "immediate
family," to a trust or other entity established for the exclusive benefit of
solely one or more members of the Option Holder's "immediate family," or to a
charitable organization qualified for tax exemption under Code section
510(c)(3). Any Option held by the transferee will continue to be subject to the
same terms and conditions that were applicable to the Option immediately prior
to the transfer, except that the Option will be transferable by the transferee
only by will or the laws of descent and distribution. For purposes hereof,
"immediate family" means the Option Holder's children stepchildren,
grandchildren, parents, stepparents, grandparents, spouse, siblings (including
half brother and sisters), in laws, and relationships arising because of legal
adoption.
(i) Exercise of Option. In order to exercise the Option, the Option
Holder shall submit to the Company an instrument in writing signed by the
Option Holder, specifying the whole number of Option Shares in respect of which
the Option is being exercised, accompanied by payment, in a manner acceptable
to the Company (which shall include a broker assisted exercise arrangement), of
the Option Price for the Option Shares for which the Option is being exercised.
Payment to the Company in cash or Shares already owned by the Option Holder
(provided that the Option Holder has owned such Shares for a minimum period of
six months or has purchased such Shares on the open market) and having a total
Fair Market Value (as defined below) equal to the exercise price, or in a
combination of cash and such Shares, shall be deemed acceptable for purposes
hereof. Option Shares will be issued accordingly by the Company, and a share
certificate dispatched to the Option Holder within 30 days.
The Company shall not be required to issue fractional Shares upon the
exercise of the Option. If any fractional interest in a Share would be
deliverable upon the exercise of the Option in whole or in part but for the
provisions of this paragraph, the Company, in lieu of delivering any such
fractional share therefor, shall pay a cash adjustment therefor in an amount
equal to their Fair Market Value (or if any Shares are not publicly traded, an
amount equal to the book value per share at the end of the most recent fiscal
quarter) multiplied by the fraction of the fractional share which would
otherwise have been issued hereunder. Anything to the contrary herein
notwithstanding, the Company shall not be obligated to issue any Option Shares
hereunder if the issuance of such Option Shares would violate the provision of
any applicable law, in which event the Company shall, as soon as practicable,
take whatever action it reasonably can so that such Option Shares may be issued
without resulting in such violations of law. For purposes hereof, Fair Market
Value shall mean the mean between the high and low selling prices per Share on
the immediately preceding date (or, if the Shares were not traded on that day,
the next preceding day that the Shares were traded) on the principal exchange
on which the Shares are traded, as such prices are officially quoted on such
exchange.
(j) Termination of Service. In the event the Option Holder ceases to be
an employee of the Company for any reason, except due to the Option Holder's
death or Permanent Disability (as defined below) or due to a termination of the
Option Holder's employment by the Company for Cause (as defined below), the
Option, to the extent then exercisable, may be exercised for 90 days following
termination of employment (but not beyond the Option Period). To the extent the
Option is not exercisable at the time of termination of employment, the Option
shall be immediately forfeited.
(k) For purposes of this Option, service with any of the Company's
Subsidiaries (as defined in the Plan) shall be considered to be service with
the Company. In the event the Option Holder is terminated for Cause, the Option
cannot be exercised on or after the date of termination of employment. In the
event the Option Holder ceases to be an employee of the Company due to the
Option Holder's death or Permanent Disability, the Option shall become
immediately exercisable in full and shall continue to be exercisable by the
Option Holder (or his or her Beneficiary in the event of death) for a period of
three years following such termination of employment (but not beyond the Option
Period). For purposes hereof, "Cause" means (a) theft or embezzlement by the
Option Holder with respect to the Company or its subsidiaries; (b) malfeasance
or gross negligence in the performance of the Option Holder's duties; (c) the
commission by the Option Holder of any felony or any crime involving moral
turpitude; (d) willful or prolonged absence from work by the Option Holder
(other than by reason of disability due to physical or mental illness) or
failure, neglect or refusal by the Option Holder to perform his or her duties
and
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responsibilities without the same being corrected within ten (10) days after
being given written notice thereof; (e) continued and habitual use of alcohol
by the Option Holder to an extent which materially impairs the Option Holder's
performance of his or her duties without the same being corrected within ten
(10) days after being given written notice thereof; or (f) the Option Holder's
use of illegal drugs without the same being corrected within ten (10) days
after being given written notice thereof. For purposes hereof, "Permanent
Disability" means those circumstances where the Option Holder is unable to
continue to perform the usual customary duties of his or her assigned job for a
period of six (6) months in any twelve (12) month period because of physical,
mental or emotional incapacity resulting from injury, sickness or disease. Any
questions as to the existence of a Permanent Disability shall be determined by
a qualified, independent physician selected by the Company and approved by the
Option Holder (which approval shall not be unreasonably withheld). The
determination of any such physician shall be final and conclusive for all
purposes of this Agreement.
(l) The Executive hereby agrees that (a) during his employment period
and for a period of twelve (12) months after the termination of Executive's
employment (the "Nonsolicitation Period") the Executive will not, directly or
indirectly through another entity, induce or attempt to induce any employee of
the Company or its Subsidiaries to leave the employ of the Company or its
Subsidiaries, or in any way interfere with the relationship between the Company
or its Subsidiaries and any employee thereof and (b) during the Nonsolicitation
Period, the Executive will not induce or attempt to induce any customer,
supplier, client, insured, reinsured, reinsurer, broker, licensee or other
business relation of the Company or its Subsidiaries to cease doing business
with the Company or its Subsidiaries.
(m) Obligations as to Capital. The Company agrees that it will at all
times maintain authorized and unissued share capital sufficient to fulfill all
of its obligations under the Option.
(n) Transfer of Shares. The Option, the Option Shares, or any interest
in either, may be sold, assigned, pledged, hypothecated, encumbered, or
transferred or disposed of in any other manner, in whole or in part, only in
compliance with the terms, conditions and restrictions as set forth in the
governing instruments of the Company, applicable United States federal and
state securities laws and the terms and conditions hereof.
(o) Expenses of Issuance of Option Shares. The issuance of stock
certificates upon the exercise of the Option in whole or in part, shall be
without charge to the Option Holder. The Company shall pay, and indemnify the
Option Holder from and against any issuance, stamp or documentary taxes (other
than transfer taxes) or charges imposed by any governmental body, agency or
official (other than income taxes) by reason of the exercise of the Option in
whole or in part or the resulting issuance of the Option Shares.
(p) Withholding. No later than the date of transfer of the stock
pursuant to the exercise of the Option granted hereunder (and in any event no
later than three days after Option exercise), the Option Holder shall pay to
the Company or make arrangements satisfactory to the Committee regarding
payment of any federal, state or local taxes of any kind required by law to be
withheld upon the exercise of such Option and the Company shall, to the extent
permitted or required by law, have the right to deduct from any payment of any
kind otherwise due to the Option Holder, federal, state and local taxes of any
kind required by law to be withheld upon the exercise of such Option.
(q) Conflict. In the event any of the provisions of this Agreement
conflict with any provisions of the employment agreement between the Company
and Xxxxx X. Xxxx dated September 3, 2003 (the "Employment Agreement") the
provisions of the Employment Agreement will control. Additionally, in the event
of any conflict between the provisions of this Agreement and the Employment
Agreement as such provisions pertain to the agreements set forth herein, on the
one hand, and the Plan, on the other hand, the Plan shall control.
(r) References. References herein to rights and obligations of the
Option Holder shall apply, where appropriate, to the Option Holder's legal
representative or estate without regard to whether specific reference to such
legal representative or estate is contained in a particular provision of this
Option.
(s) Notices. Any notice required or permitted to be given under this
agreement shall be in writing and shall be deemed to have been given when
delivered personally or by courier, or sent by
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certified or registered mail, postage prepaid, return receipt requested, duly
addressed to the party concerned at the address indicated below or to such
changed address as such party may subsequently by similar process give notice
of:
If to the Company:
Quanta Capital Holdings Ltd.
00 Xxxxxx Xxxxxx
Xxxxxxxx XX 00 Xxxxxxx
Xxxx.: Secretary
If to the Option Holder:
The last address delivered to the Company by the Option Holder in the
manner set forth herein.
(t) Governing Law. This agreement shall be governed by and construed in
accordance with the laws of New York, without giving effect to principles of
conflict of laws thereof.
(u) Entire Agreement. This agreement and the Plan constitute the entire
agreement among the parties relating to the subject matter hereof, and any
previous agreement or understanding among the parties with respect thereto is
superseded by this agreement and the Plan.
(v) Counterparts. This agreement may be executed in two counterparts,
each of which shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this agreement as of the
Date of Grant.
QUANTA CAPITAL HOLDINGS LTD.
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Chief Operating Officer
/s/ Xxxxx X. Xxxx
Xxxxx X. Xxxx
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