Exhibit 4.5
AMCOMP INCORPORATED
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PLAN AND AGREEMENT
[Date]
To: [Name]
c/o AmCOMP Incorporated
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1. We are pleased to inform you that on __________,the Board of
Directors (the "Board") of AmCOMP Incorporated (the "Company") granted you an
incentive stock option (the "Option"), which Option became effective today upon
effectiveness of the initial public offering of the Company's common stock, $.01
par value (the "Common Stock"), to purchase a maximum of ______ shares of the
Common Stock, at a price equal to the initial public offering price of the
Common Stock, which will be equal to the fair market value of the Common Stock
at that date. As provided in Section 422(d) of the Internal Revenue Code of
1986, as amended (the "Code"), to the extent that the aggregate fair market
value of the Common Stock with respect to which the Option is exercisable for
the first time during any calendar year exceeds $100,000, the Option shall be
treated as a non-qualified option. The shares of Common Stock to be issued upon
exercise of the Option are referred to hereinafter as the "Shares."
2. On or prior to __________ (on which date the Option will, to the
extent not previously exercised, expire), the Option may be exercised in whole
or in part, at any time and from time to time, as follows: (i) as to ______
Shares, on or after __________; (ii) as to a further ______ Shares, on or after
__________; (iii) as to a further ______ Shares, on or after __________; and
(iv) as to the remaining ______ Shares, on or after __________.
3. You must purchase a minimum of 100 Shares each time you choose
to purchase Shares, except to purchase the remaining Shares available to you.
4. The Option is not transferable otherwise than by will or by the
applicable laws of descent and distribution and may be exercised, during your
lifetime, only by you.
5. In the event of your death, the Option may be exercised by your
personal representative or representatives, or by the person or persons to whom
your rights under the Option shall pass by will or by the applicable laws of
descent and distribution, at any time prior to the earlier of the first
anniversary of the date of your death or the expiration of the Option.
6. If your employment with the Company terminates by reason of
disability, the Option may thereafter be exercised, to the extent it was
exercisable at the time of termination due to disability (or on such accelerated
basis as the Board shall determine at or after grant), for a period of one year
after such termination or until the expiration of the stated term of the Option,
whichever period is shorter. The term disability as used herein shall have the
meaning set forth in the __________, dated __________, between the Company and
you. If there is no employment agreement between you and the Company then in
effect, the term disability shall have the meaning given it in any long-term
disability plan of the Company, or if the Company maintains no such plan, such
term shall mean your inability to engage in any substantial gainful activity by
reason of a physical or mental impairment that can reasonably be expected to
result in death or that has lasted or can reasonably be expected to last for a
continuous period of not less than 180 days; provided, that when used in
connection with the exercise of the Option following termination of employment,
such term shall mean a disability within the meaning of Section 22(e)(3) of the
Code.
7. If you shall voluntarily retire or quit your employment without
the written consent of the Company, or if the Company shall terminate your
employment for cause (as such term is defined in any employment agreement
between the Company or any Subsidiary and you as from time to time in effect,
or, if no such agreement is in effect, as determined by the Board of Directors
of the Company), the Option shall forthwith terminate. If you shall voluntarily
retire or quit your employment with the written consent of the Company or if
your employment shall have been terminated by the Company for reasons other than
cause, you may (unless the Option shall have previously expired pursuant to the
provisions hereof) exercise the Option at any time prior to the earlier of three
months after termination of employment or the expiration of the Option, to the
extent of the number of Shares subject to the Option that were purchasable by
you on the date of termination of your employment. The Option shall not be
affected by any change of employment so long as you continue to be an employee
of the Company or any Subsidiary.
8. (a) In the event of (i) a merger or consolidation in which
the Company is not the surviving corporation (other than a merger or
consolidation with a wholly-owned subsidiary, a reincorporation of the Company
in a different jurisdiction, or other transaction in which there is no
substantial change in the stockholders of the Company), (ii) the sale of all or
substantially all of the assets of the Company, or (iii) any other merger,
consolidation, acquisition of property or stock, separation or reorganization of
or from the Company wherein the stockholders of the Company give up all of their
equity interest in the Company, except for the acquisition, sale or transfer of
all or substantially all of the outstanding shares of the Company (each of the
foregoing, a "Corporate Transaction"), the Option shall be assumed by the
successor corporation, which assumption shall be binding on you. In the
alternative, the successor corporation may substitute equivalent options or
provide substantially similar consideration to you as was provided to
stockholders in the Corporate Transaction (after taking into account the
existing provisions of the Option). Should the successor corporation fail to
assume the Option or to substitute an equivalent option or provide similar
consideration, the vesting of the Option shall be accelerated in full and the
Option shall become immediately exercisable and the Option shall terminate if
not exercised at or prior to the Corporate Transaction. If the exercise of the
foregoing right by you would be deemed to result in a violation of the
provisions of Section 422 of the Code, then, without further act on the part of
the Board you, such Option shall be deemed a non-qualified option to the extent
necessary to avoid any such violation.
(b) The existence of the Option shall not affect in any way the
right or power of the Company or its stockholders 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 or consolidation of
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the Company, or any issuance of Common Stock or subscription rights thereto, or
any merger or consolidation of the Company, or any issuance of bonds,
debentures, preferred or prior preference stock ahead of or affecting the Common
Stock or the rights 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 corporate act or proceeding, whether of a similar character or otherwise;
provided, however, that if the outstanding Common Stock or the number of shares
thereof outstanding shall at any time be changed or exchanged by or in
connection with a stock dividend, stock split, reverse split or combination of
shares, recapitalization, or similar change in the capital structure of the
Company without consideration, or if a substantial portion of the assets of the
Company is distributed to the stockholders of the Company without consideration
in a spin-off or other similar transaction, the number and kind of Common Stock
subject to this Plan and Agreement and subject to the Option granted hereunder,
and the Option price, shall be appropriately and equitably adjusted. The
adjustments described above will be made only to the extent consistent with
continued qualification of the Option under Section 422 of the Code (in the case
of an incentive stock option) and Section 409A of the Code (in the case of a
non-qualified stock option).
(c) Adjustments under this Section 8 shall be made by the Board
whose determination as to what adjustments, if any, shall be made, and the
extent thereof, shall be final.
9. The Company may establish, from time to time, appropriate
procedures to provide for payment or withholding of such income or other taxes
as may be required by law to be paid or withheld in connection with the exercise
of the Option. The Company may also establish, from time to time, appropriate
procedures to ensure that the Company receives prompt advice concerning the
occurrence of any event that may create, or affect the timing or amount of, any
obligation to pay or withhold any such taxes or that may make available to the
Company any tax deduction resulting from the occurrence of such event, and you
will comply with all such procedures so established.
10. Unless at the time of the exercise of the Option (or any portion
thereof) a registration statement under the Securities Act of 1933, as amended
(the "Act"), is in effect as to the Shares then being purchased, any Shares
purchased by you upon the exercise of the Option shall be acquired for
investment and not for sale or distribution, and if the Company so requests,
upon any exercise of the Option, in whole or in part, you will execute and
deliver to the Company a certificate to such effect. The Company shall not be
obligated to issue any Shares pursuant to exercise of the Option, if in the
opinion of counsel to the Company, the Shares to be so issued are required to be
registered or otherwise qualified under the Act or under any other applicable
statute, regulation or ordinance affecting the sale of securities, unless and
until such Shares have been so registered or otherwise qualified.
11. You understand and acknowledge that, under existing law, unless
at the time of the exercise of the Option, a registration statement under the
Act is in effect as to Shares so issuable (i) any Shares purchased by you upon
exercise of the Option may be required to be held indefinitely, unless such
Shares are subsequently registered under the Act or an exemption from such
registration is available; (ii) any sales of such Shares made in reliance upon
Rule 144 promulgated under the Act may be made only in accordance with the terms
and conditions of that Rule (which, under certain circumstances, restrict the
number of shares which may be sold and the manner in which shares may be sold);
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(iii) in the case of securities to which Rule 144 is not applicable, compliance
with Regulation A promulgated under the Act or some other disclosure exemption
will be required; (iv) certificates for Shares to be issued to you hereunder
shall bear a legend to the effect that the Shares have not been registered under
the Act and that the Shares may not be sold, hypothecated or otherwise
transferred in the absence of an effective registration statement under the Act
relating thereto or an opinion of counsel satisfactory to the Company that such
registration is not required; (v) the Company will place an appropriate "stop
transfer" order with its transfer agent with respect to such Shares; and (vi)
except as hereinafter provided, the Company has undertaken no obligation to
register the Shares or to include the Shares in any registration statement that
may be filed by it subsequent to the issuance of the Shares to you.
12. The Option (or any installment thereof) is to be exercised by
delivering to the Company a written notice of exercise in the form attached
hereto as Exhibit A, specifying the number of Shares to be purchased, together
with payment of the purchase price of the Shares to be purchased. The purchase
price is to be paid (i) in cash, (ii) with the prior consent of the Board, by
delivering to the Company shares of Common Stock already owned by you and having
a fair market value on the date of exercise equal to the exercise price of the
Option, (iii) through your written election to have Shares withheld by the
Company from the Shares otherwise to be received, with such withheld Shares
having an aggregate fair market value on the date of exercise equal to the
exercise of the Option, or (iv) a combination of the foregoing methods. For the
purposes of this Agreement, fair market value shall be determined in accordance
with the provisions of the Company's 2005 Stock Option Plan.
13. If you make a disposition, within the meaning of Section 424(c)
of the Code and regulations promulgated thereunder, of any Shares issued to you
upon exercise of the Option within the two-year period commencing on __________
or within a one-year period commencing on the day after the date of transfer to
you of the Shares upon exercise of such Option, you shall, within 10 days after
such disposition, notify the Company thereof.
14. It is the intention of the Board that this Plan and Agreement
comply strictly with the provisions of Section 409A of the Code and Treasury
Regulations and other Internal Revenue Service guidance promulgated thereunder
(the "Section 409A Rules"). This Plan and Agreement may be amended from time to
time as may be necessary or appropriate to comply with the Section 409A Rules.
15. The Board may amend the terms of the Option, prospectively or
retroactively, but no such amendment shall impair your rights without your
consent, and no such amendment shall, without the approval of the stockholders
of the Company, effectuate a change for which stockholder approval is required
in order for the Plan to continue to qualify for the award of incentive stock
options under Section 422 of the Code, or as may be required under Section
162(m) of the Code.
16. The laws of the State of Delaware shall govern all questions
concerning the construction, validity and interpretation of the Plan and
Agreement, without regard to such State's choice of law rules.
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Would you kindly evidence your acceptance of the Option and your
agreement to comply with the provisions hereof by executing this letter under
the words "Agreed To and Accepted."
Very truly yours,
AMCOMP INCORPORATED
By:
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Name:
Title:
AGREED TO AND ACCEPTED:
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EXHIBIT A
AmCOMP Incorporated
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Gentlemen:
Notice is hereby given of my election to purchase _____ shares
of Common Stock, $.01 par value (the "Shares"), of AmCOMP Incorporated, at a
price equal to the initial public offering price of the Common Stock, pursuant
to the provisions of the stock option granted to me on __________. I elect to
pay for the Shares as follows:
| | by delivery of my check in the amount of $________.
| | by delivery of ______ Shares having a fair market value
of $__________, consent of the Board of Directors of the
Company having been obtained previously.
| | by my election to have Shares withheld by the Company
from the Shares otherwise to be received, with such
withheld Shares having an aggregate fair market value on
the date of exercise equal to the purchase price.
The following information is supplied for use in issuing and
registering the Shares purchased hereby:
Number of Certificates and
Denominations
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Name
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Address
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Social Security Number
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Dated:_______________, 20__
Very truly yours,
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