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EXHIBIT 4.4
The following document is a form of Nonqualified Stock Option Agreement entered
into between the Registrant and various officers and employees of subsidiaries.
The agreements are identical in all material respects except as to the identity
of the parties, the dates of execution and the number of options granted.
NONQUALIFIED STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement") is entered into this
day of , (the "Grant Date"), by and between CHAMPION
ENTERPRISES, INC., a Michigan corporation ("the Company"), and (the
"Optionee").
WITNESSETH:
WHEREAS, Optionee is to be employed by a subsidiary of the Company; and
WHEREAS, on , (the "Stock Purchase Agreement Execution
Date"), the Company executed that certain stock purchase agreement whereby the
Company agreed to purchase all of the outstanding common stock of .,
a corporation; and
WHEREAS, the Company wishes to provide additional incentive to
Optionee, to encourage stock ownership by Optionee, and to encourage Optionee to
remain in the employ of the Company or its subsidiaries; and
NOW, THEREFORE, the Company and Optionee hereby agree as follows:
1. Definitions. For the purposes of this Agreement, certain words and
phrases have the following definitions:
a) "Act" means the Securities Act of 1933;
b) "Code" means the Internal Revenue Code of 1986, as amended;
c) "Committee" means the Compensation Committee of the Company;
d) "Common Stock" means the common stock of the Company, par value
$1.00;
e) "Disability" means "disability" as defined under Section 22(e) of
the Code;
f) "Employment" (whether or not capitalized) means employment with
the Company or any Parent or Subsidiary of the Company;
g) "Parent" means any "parent corporation" as defined in Section
424(e) of the Code;
h) "Subsidiary" means any "subsidiary corporation" as defined in
Section 424(f) of the Code.
2. First Part. The Company grants Optionee the right and option to
purchase from the Company shares of the Company's Common Stock at a price
equal to 40% of the closing price of the Company's Common Stock on the New York
Stock Exchange for the day prior to the Stock Purchase Agreement Execution Date,
as reported in The Wall Street Journal (the "First Part"). The First Part must
be exercised in its entirety by no later than ninety (90) days after the Grant
Date. This grant of the First Part is conditioned upon the agreement by Optionee
not to sell or otherwise transfer the shares acquired under this First Part
until at least two (2) years from the date of exercise. In addition, if within 2
years from the Grant Date Optionee terminates his employment with the Company or
the Optionee's employment is terminated for "Cause" (as defined below), Optionee
shall retain only the following shares:
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Time From Grant Date Shares Retained
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less than 6 months 0
less than 12 months
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less than 18 months
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less than 24 months
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24 months or more
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Shares not retained by Optionee above shall be forfeited and returned to the
Company in exchange for the exercise price paid by Optionee for the forfeited
shares. "Cause" shall have the same meaning as in Optionee's employment
agreement with the Company's retail subsidiary, or if no such agreement exists
it shall mean Optionee's willful and gross misconduct, willful and material
breach of his duties or an act of fraud or dishonesty by the Optionee that
directly or indirectly results in material harm to the Company.
3. Second Part. If Optionee exercises the First Part within 90 days
from the Grant Date, the Company grants Optionee the right and option to
purchase from the Company shares of the Company's Common Stock at a price
equal to 100% of the closing price of the Company's Common Stock on the New York
Stock Exchange for the day prior to the Stock Purchase Agreement Execution Date,
as reported in The Wall Street Journal, (the "Second Part"). The options granted
under this Second Part shall not be immediately exercisable, but shall be
exercisable according to the following schedule:
Number of Option Shares Date Exercisable
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1 year after the Grant Date
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2 years after the Grant Date
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3 years after the Grant Date
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4 years after the Grant Date
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5 years after the Grant Date
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This grant of the Second Part is conditioned upon the agreement by Optionee not
to sell or otherwise transfer the shares acquired under this Second Part until
at least six (6) months from the date of exercise. No portion of this Second
Part shall be exercisable more than ten (10) years after the Grant Date. The
Second Part may be exercised in installments. This Second Part is not intended
to be an incentive stock option within the meaning of Section 422 of the Code.
4. Termination of Employment.
a) Before Exercise of the First Part. If Optionee's employment
with the Company shall terminate for any reason prior to Optionee's exercise in
full of the First Part, Optionee's right to exercise any option under this
Agreement shall terminate and all exercise rights hereunder shall cease.
b) Death or Disability. If, on or after one (1) year from the
Grant Date (the first date that any portion of the Second Part becomes
exercisable), Optionee shall die or become Disabled, Optionee or the executor or
administrator of the estate of Optionee (as the case may be) or the person or
persons to whom the option shall have been transferred by will or by the laws of
descent and distribution, or the legal guardian of Optionee or the individual
designated in Optionee's durable power of attorney in the event of Disability,
shall have the right, within one year from the date of Optionee's death or
Disability, to exercise the second part of this option to the extent that it is
exercisable and unexercised on the date of Optionee's death or Disability. This
one-year period may be extended at the discretion of the Committee, but not
beyond ten (10) years from the Grant Date.
c) Other Termination. If, on or after one (1) year from the
Grant Date (the first date that any portion of the Second Part becomes
exercisable), Optionee's employment shall be terminated for any reason other
than death or Disability, Optionee shall have the right, within three months
after such termination of employment, to exercise the second part of this option
to the extent that it is exercisable and unexercised on the date of such
termination of employment. This three-month period may be extended at the
discretion of the Committee, but not beyond ten (10) years from the Grant Date.
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d) Events Not Constituting a Termination. A leave of absence
with the written consent of the Company, or a transfer of Optionee from one
corporation to another among the Company, its Parent, or any of its Subsidiaries
shall not be deemed a termination of employment for purposes of this Agreement.
5. Exercise of Option. Optionee may exercise any exercisable option
granted pursuant to this Agreement by completing the following steps.
(a) Written Notice. Delivery to the Company of a written
notice signed by the Optionee: (1) for the First Part, in the form attached as
Exhibit A; or (2) for the Second Part, in the form attached as Exhibit B. In
addition, at the request of the Company, Optionee may be required to provide a
written representation that Optionee is acquiring the shares for investment
purposes only, and not for resale.
(b) Purchase Price. Delivery to the Company of cash, a
personal check, bank draft, money order, or Common Stock (or any combination
thereof) equal to the purchase price of the shares then to be purchased. Any
Common Stock tendered shall be valued at the closing price of the Company's
Common Stock on the first business day prior to the exercise date, as reported
in The Wall Street Journal.
After receipt of the above and subject to Section 8 below, the company shall
issue the shares in the name of Optionee.
6. No Right to Continued Employment. This Agreement does not give the
Optionee any right to be retained or to continued employment with the Company of
any Subsidiary of the Company.
7. Compliance with Securities Laws. Company's obligations under this
Agreement are subject to compliance with federal and state laws, rules and
regulations applying to the authorization, issuance or sale of securities, and
any applicable stock exchange requirements, and Company may require Optionee to
provide proof of compliance with those laws, rules, and regulations before
taking any action pursuant to this Agreement.
8. Investment Intent. The Optionee represents and warrants to the
Company that he or she is acquiring all shares of Common Stock under this option
for investment purposes only and not with a view to resale. The Optionee
acknowledges and agrees that such shares of Common Stock have not yet been
registered under the Act or the securities laws of any state and may not be
sold, transferred, assigned, offered, pledged or otherwise distributed unless
there is an effective registration statement under the Act and any applicable
securities laws covering such shares or the Company receives an opinion of
counsel from Optionee (and concurred to by counsel for the Company) stating that
such sale, transfer, assignment, offer, pledge or other distribution is exempt
from registration and prospectus delivery requirements of the Act, any
applicable state securities laws, or the listing requirements of any stock
exchange. Optionee further acknowledges and agrees that any certificate for such
shares shall contain an appropriate legend to the foregoing effect and that a
stop transfer order shall be placed with the Company's transfer agent. The
Company represents and warrants that as soon as practical after the Optionee
exercises any of the options granted pursuant to this Agreement, the Company
shall take any and all steps that are necessary or required in order to register
the Common Stock pursuant to the Act.
10. Non-Assignability. The options granted by this Agreement shall not
be transferable by Optionee, other than by will or the laws of descent and
distribution. Any transferee of these options by will or the laws of descent and
distribution shall take them subject to the terms and conditions of this
Agreement, and no such transfer shall be effective to bind the Company unless
the Company is furnished with written notice of the transfer and a copy of the
will or any other evidence the Company deems necessary to establish the validity
of the transfer. The term "Optionee", as used in this Agreement, shall include
any person or entity to whom any option is transferred.
11. Withholding of Taxes. Optionee must pay to Company within fourteen
(14) days from the date of any exercise any amounts necessary to satisfy any
requirements for withholding of income or employment taxes in connection with
that exercise.
12. Rights as Shareholder. Optionee shall have no rights as a
shareholder of the Company with respect to any of the shares covered by this
option until the issuance of a stock certificate or certificates upon the
exercise of the option in full or in part, and then only with respect to such
shares represented by such certificate or certificates.
13. Disputes. As a condition to the granting the options contained in
this Agreement, Optionee and Optionee's successors and assigns agree that any
dispute or disagreement which shall arise under or as a result of this Agreement
shall be determined by the Committee in its sole discretion and judgment. Any
such determination or interpretation by the Committee of the terms of this
Agreement shall be final and shall be binding and conclusive for all purposes.
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14. Notices. Every notice relating to this Agreement shall be in
writing, any notice given by mail shall be by registered or certified mail with
return receipt requested. All notices to the Company shall be delivered to the
following address:
Champion Enterprises, Inc.
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxxx, XX 00000-0000
Attn: Secretary of the Company
All notices by the Company to Optionee shall be delivered to Optionee
personally, or addressed to Optionee at Optionee's last residence address as
then contained in the records of the Company, or such other address as Optionee
may designate.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
COMPANY: CHAMPION ENTERPRISES, INC.
By:
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Its:
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OPTIONEE:
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EXHIBIT A
NOTICE OF EXERCISE OF FIRST PART OF
NONQUALIFIED STOCK OPTION
Secretary
Champion Enterprises, Inc.
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxxx 00000
Dear Sir:
A stock option was granted to me on , , which permits me
to purchase shares of Champion Enterprises, Inc. Common Stock at a price
of $ per share. I elect to exercise this part of the option to purchase
nonqualified stock option shares. A personal check (or cash, bank draft, or
money order) for the purchase price is enclosed with this letter.
If I choose to make an 83(b) election under the Code, I shall pay the
Company within fourteen (14) days from the date of that election the applicable
amount to the Company to satisfy any requirements for withholding of income and
employment taxes arising from this exercise.
I acknowledge and agree that the shares of Common Stock that I am
purchasing may not currently be registered under the Securities Act of 1933 (the
"Act") or the securities laws of any state. I understand and agree that if these
shares are not currently registered, the Company is obligated to register these
shares under the Act as soon as practicable after this exercise. Notwithstanding
the foregoing, I acknowledge and agree that these shares may not be sold,
transferred, assigned, offered, pledged or otherwise distributed until they are
registered under the Act or unless the Company receives an opinion of counsel
from me (and concurred to by counsel for the Company) stating that such sale,
transfer, assignment, offer, pledge or other distribution is exempt from
registration and prospectus delivery requirements of the Act, any applicable
state securities laws, or the listing requirements of any stock exchange.
I represent that I will not sell or otherwise transfer any shares that
I purchase pursuant to this letter for a period of two years. I also understand
that if my employment with the Company is terminated within two years of the
grant date of this option, a portion of the shares, pro-rated semi-annually,
shall be forfeited and returned to the Company in exchange for the exercise
price relating to those shares.
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Address:
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SSN: - -
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Dated: ,
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EXHIBIT B
NOTICE OF EXERCISE OF SECOND PART OF
NONQUALIFIED STOCK OPTION
Secretary
Champion Enterprises, Inc.
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxxx 00000
Dear Sir:
A stock option was granted to me on , , which
permits me, upon the exercise of the first part of the option within 60 days, to
per share. I elect to exercise this part of the option to purchase
nonqualified stock option shares. A personal check (or cash, bank
draft, or money order) for the purchase price is enclosed with this letter.
I shall pay the Company the applicable amount to satisfy any
requirements for withholding of income and employment taxes arising from this
exercise within fourteen days from the determination of said amount by the
Company.
I acknowledge and agree that the shares of Common Stock that I am
purchasing may not currently be registered under the Securities Act of 1933 (the
"Act") or the securities laws of any state. I understand and agree that if these
shares are not currently registered, the Company is obligated to register these
shares under the Act as soon as practicable after this exercise. Notwithstanding
the foregoing, I acknowledge and agree that these shares may not be sold,
transferred, assigned, offered, pledged or otherwise distributed until they are
registered under the Act or unless the Company receives an opinion of counsel
from me (and concurred to by counsel for the Company) stating that such sale,
transfer, assignment, offer, pledge or other distribution is exempt from
registration and prospectus delivery requirements of the Act, any applicable
state securities laws, or the listing requirements of any stock exchange.
I represent that I will not sell or otherwise transfer any shares that
I purchase pursuant to this letter for a period of six months, and each
certificate for such shares shall contain a legend to the foregoing effect.
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Address:
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SSN: - -
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Dated: ,
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