NONQUALIFIED STOCK OPTION AGREEMENT PURSUANT TO THE FREEDOM HOLDING CORP. 2018 EQUITY INCENTIVE PLAN
Exhibit 99.03
PURSUANT TO THE
FREEDOM HOLDING CORP. 2018 EQUITY INCENTIVE PLAN
THIS AGREEMENT is made as
of __________ ,
20__, between Freedom Holding Corp., a Nevada corporation (the
“Company”),
and ____________________ (the “Optionee”).
WHEREAS, the Company has adopted the Freedom
Holding Corp. 2018 Equity Incentive Plan (the
“Plan”)
in order to provide additional incentive to certain employees,
consultants, directors and officers of the Company and its
Subsidiaries; and
WHEREAS, the Board has determined to award to the
Optionee the right and option to purchase shares of the
Company’s Common Stock, par value $0.001 per share (the
“Common
Stock”) subject to
restrictions stated herein (the “Option”)
to encourage the Optionee’s efforts toward the continuing
success of the Company.
NOW,
THEREFORE, the parties hereto agree as follows:
1.
Nonqualified Stock Option
The Option is not intended to qualify as an
incentive stock option under the provisions of Section 422 of the
Internal Revenue Code of 1986, as amended, or its predecessor (the
“Code”).
2.
Grant of Nonqualified
Stock Option.
The
Company hereby awards to Optionee an option to purchase ________
shares of Common Stock of the Company (the “Award”) on
the following terms:
2.1 ________
__, 20__, is the date of grant of the Option
(“Date of
Award”).
2.2 The
purchase price of the shares of Common Stock subject to the Option
shall be $__.__ per share (the “Exercise Price”), which
was the closing price of the Company’s common stock on the
OTC Pink Market on the date of Award, as reported by the OTC
Markets.
3. Restrictions on
Exercise
Subject
to the Optionee’s continued employment with the Company or
its Subsidiaries, the Option shall be exercisable as
follows:
3.1 One-______
(1/_) of the shares of Common Stock issued subject to the Option
(rounded down to the nearest whole Share, if necessary) shall
become exercisable on each of the first _______ (_) anniversaries
of the Date of Grant.
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4. Effect of Certain
Terminations of Employment.
Notwithstanding Section 3, in the event of (i) the
termination of the Optionee’s employment with the Company or
its Subsidiaries (A) as a result of the Optionee’s death (B)
by the Company due to the Optionee’s total and permanent
disability, as determined by the Board (“Disability”),
or (C) by the Company not for cause, or (ii) the occurrence of a
Corporate Control (as defined in the Plan), the Option shall be
deemed to be fully (100%) vested and exercisable as of immediately
prior to the Optionee’s death, Disability, termination by the
Company not for cause, or the Corporate Change.
5. Term of
Option
The
unexercised portion of the Option shall automatically and without
notice terminate and become null and void at the earlier of (a) the
tenth anniversary of the Date of Grant and (b) the earliest
applicable time specified in Section 6.
6.
Termination of the
Option
Any
unexercised portion of the Option shall automatically and without
notice terminate and become null and void at the time of the
earliest to occur of the following:
6.1 The
termination of the Optionee’s employment with the Company or
its Subsidiaries if the Optionee’s employment is terminated
by the Company for cause or by the Optionee for any reason. For
purposes of this Agreement, “cause” shall mean, (i) on
account of fraud, embezzlement or other unlawful or tortious
conduct, whether or not involving or against the Company or any
affiliate, (ii) for violation of a policy of the Company or any
affiliate, or (iii) for serious and willful acts or misconduct
detrimental to the business or reputation of the Company or any
affiliate;
6.2 The
termination of Optionee’s employment with the Company or its
Subsidiaries for any reasons other than as provided in Section 6.1,
6.3, 6.4, 6.5 6.6 or 6.7;
6.3 The
termination of Optionee’s employment with the Company or its
Subsidiaries by reason of the Optionee’s death, or if the
Optionee’s employment terminates in the manner described in
Section 6.2 and the Optionee dies within such period for exercise
provided for herein; provided,
however,
that any unvested portion of the Option shall vest upon the
Optionee’s death and any unexercised portion of the Option
shall become exercisable by the Optionee's executors or
administrators, as provided in Section 10, or by the person to whom
the Option passes (the Optionee’s “Beneficiary”)
under such Optionee’s will (or, if applicable, pursuant to
the laws of descent and distribution) until the earlier of (i) one
year after the Optionee's death or (ii) the date on which such
Option terminates or expires in accordance with the provisions of
this Agreement (other than this Section 6);
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6.4 The
termination of Optionee’s employment with the Company or its
Subsidiaries by reason of total and permanent disability as
determined by the Company’s Board
(“Disability”); provided, however,
that any unvested portion of the Option shall vest upon
determination of Disability by the Company’s Board, and any
unexercised portion of the Option shall become exercisable by the
Optionee until the earlier of (i) one year after Optionee’s
termination or (ii) the date on which such Option terminates or
expires in accordance with the provisions of this Agreement (other
than this Section 6);
6.5 The
termination of the Optionee’s employment with the Company not
for cause, provided, however,
that any unvested portion of the Option shall vest upon such
termination and any unexercised portion of the Option shall become
exercisable by the Optionee until the earlier of (i) one year after
Optionee’s termination or (ii) the date on which such Option
terminates or expires in accordance with the provisions of this
Agreement (other than this Section 6);
6.6 The
occurrence of a Corporate Change (as defined in the Plan);
provided,
however,
that the portion of the Option which remains outstanding and
unexercised immediately prior to such Corporate Change immediately
vest and shall be exercisable until the earlier of the date
described in Section 5 and the first anniversary of the Corporate
Change; or
6.7 The
commission by the Optionee of an Act of Misconduct prior to such
vesting. For purposes of this Agreement, an
“Act of
Misconduct” shall mean
the occurrence of one or more of the following events: (x) the
Optionee uses for profit or discloses to unauthorized persons,
confidential information or trade secrets of the Company or any of
its Subsidiaries, (y) the Optionee breaches any contract with or
violates any fiduciary obligation to the Company or any of its
Subsidiaries, or (z) the Optionee engages in unlawful trading in
the securities of the Company or any of its Subsidiaries or of
another company based on information gained as a result of
Optionee’s employment with, or status as a director to, the
Company or any of its Subsidiaries.
7. Exercise of
Option
The
Option shall be exercised by the Optionee (or by the
Optionee’s Beneficiary, as provided in Section 6, or by the
Optionee’s executors or administrators, as provided in
Section 10), subject to the provisions of the Plan and of this
Agreement, as to all or part of the shares of Common Stock covered
hereby, as to which the Option shall then be exercisable, by the
giving of written notice of such exercise to the Company at its
principal business office, accompanied by payment of the full
purchase price for the shares being purchased. Payment
of such purchase price shall be made by cash or by check payable to
the Company.
The
Company shall cause certificates for the shares so purchased to be
delivered to the Optionee or the Optionee's Beneficiary, executors
or administrators, as applicable, against payment of the purchase
price, as soon as practicable following the Company's receipt of
the notice of exercise.
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8. No Stockholder
Rights
Neither
the Optionee nor the Optionee’s Beneficiary, executors or
administrators shall have any of the rights of a stockholder of the
Company with respect to the shares subject to the Option until a
certificate or certificates for such shares shall have been issued
upon the exercise of the Option.
9. Restrictions on
Transfer
The Option shall not be transferable by the
Optionee other than to the Optionee's Beneficiary, executors or
administrators by will or the laws of descent and distribution, and
during the Optionee's lifetime shall be exercisable only by the
Optionee. Any attempt to transfer or otherwise dispose of
the Option in contravention of the restrictions set forth herein
shall be null and void and without effect.
10. Exercisability in the
Event of Optionee’s Death
In
the event of the Optionee's death, the Option shall thereafter be
exercisable (to the extent otherwise exercisable hereunder) only by
the Optionee's Beneficiary, executors or
administrators.
11. Changes in Capital
Structure
The
terms and conditions of the Option, including the number of shares
and the class or series of capital stock which may be delivered
upon exercise of the Option and the purchase price per share, are
subject to adjustment as provided in Section 7 of the
Plan.
12.
Optionee’s Representations, Warranties and
Covenants
12.1 Optionee represents and warrants that he or
she is acquiring the Option and, when vested and exercised, the
Common Stock underlying the Option, solely for his or her own
account for investment and not with a view to, or for sale in
connection with, any distribution thereof. Optionee agrees that he
or she will not, directly or indirectly, offer, transfer, sell,
pledge, hypothecate or otherwise dispose of the Option or any
Common Stock received upon exercise of the Option (or solicit any
offers to buy, purchase or otherwise acquire or take a pledge of
any Shares of Restricted Stock), or any interest therein or any
rights relating thereto, except in compliance with the Securities
Act of 1933, as amended (the “Securities
Act”), and the rules and
regulations of the Securities and Exchange Commission (the
“Commission”)
thereunder, and in compliance with all applicable state
or non-U.S. securities or “blue sky” laws.
Optionee further understands, acknowledges and agrees that none of
the Options, our upon exercise, the shares of Common Stock
underlying the Options, may be transferred, sold, pledged,
hypothecated or otherwise disposed of unless such disposition is in
compliance with the applicable provisions of the Plan and this
Agreement.
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12.2 Optionee
acknowledges that any certificate evidencing the Options shall bear
the following legend prior to the lapse of any outstanding
restrictions
THIS
OPTION IS SUBJECT TO THE TERMS AND CONDITIONS, INCLUDING FORFEITURE
PROVISIONS AND RESTRICTIONS AGAINST TRANSFER (THE
“RESTRICTIONS”), CONTAINED IN THE FREEDOM HOLDING CORP.
2018 EQUITY INCENTIVE PLAN, AND ANY AGREEMENTS ENTERED INTO BETWEEN
THE REGISTERED OWNER AND THE COMPANY. ANY ATTEMPT TO DISPOSE OF
THIS OPTION IN CONTRAVENTION OF THE RESTRICTIONS, INCLUDING BY WAY
OF SALE, ASSIGNMENT, TRANSFER, PLEDGE, HYPOTHECATION OR OTHERWISE,
SHALL BE NULL AND VOID AND WITHOUT EFFECT.
12.3 Optionee
represents and warrants that, as of the date hereof, he or she is
an officer, employee or director of the Company or a
Subsidiary.
12.4
Optionee agrees that the obligation of the Company to issue shares
upon the exercise of the Option shall also be subject, as a
condition precedent, to compliance with applicable provisions of
the Securities Act of 1933, as amended and the Securities Exchange
Act of 1934, as amended, state securities or corporation laws,
rules and regulations under any of the foregoing and applicable
requirements of any securities exchange upon which the Company's
securities shall be listed.
13. No Advice Regarding
Award.
Optionee
is hereby advised to consult with his or her own tax, legal and/or
investment advisors with respect to any advice Optionee may
determine is needed or appropriate with respect to the Award
(including, without limitation, to determine the foreign, state,
local, estate and/or gift tax consequences with respect to the
Award, the advantages and disadvantages of making an election under
Section 83(b) of the U.S. Internal Revenue Code with respect to the
Award, and the process and requirements for such an election).
Neither the Company nor any of its officers, directors, affiliates
or advisors makes any representation (except for the terms and
conditions expressly set forth in this Agreement) or recommendation
with respect to the Award or the making of an election under
Section 83(b) of the Code with respect to the Award. In the event
the Optionee desires to make an election under Section 83(b) of the
Code with respect to the Award, it is the Optionee’s sole
responsibility to do so timely. Except for the withholding rights
set forth in Section 16 below, the Optionee is solely responsible
for any and all tax liability that may arise with respect to the
Award.
14. Waiver of Repurchase
Option and Right of First Refusal.
The
parties hereby waive any Repurchase Option or Right of First
Refusal to which the Company may be entitled pursuant to Section
6.7 of the Plan.
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15. Optionee Bound by the
Plan
The
Option has been granted subject to the terms and conditions of the
Plan, a copy of which has been provided to the Optionee and which
the Optionee acknowledges having received and
reviewed. Any conflict between this Agreement and the
Plan shall be decided in favor of the provisions of the
Plan. Any conflict between this Agreement and the terms
of a written employment agreement for the Optionee that has been
approved, ratified or confirmed by the Board shall be decided in
favor of the provisions of such employment
agreement. Capitalized terms used but not defined in
this Agreement shall have the meanings given to them in the
Plan. This Agreement may not be amended in any manner
adverse to the Optionee except by a written agreement executed by
the Optionee and the Company.
16. Consent to Electronic
Delivery
By
executing this Agreement, the Optionee hereby consents to the
electronic delivery of prospectuses, annual reports and other
information required to be delivered by Commission
rules. This consent may be revoked in writing by the
Optionee at any time upon three business days’ notice to the
Company, in which case subsequent prospectuses, annual reports and
other information will be delivered in hard copy to the
Optionee.
17. Withholding of
Taxes
The
Company or any Subsidiary employing the Optionee has the authority
and the right to deduct or withhold, or require the Optionee to
remit to the Company or its Subsidiary, as applicable, an amount
sufficient to satisfy federal, state, and local income and
employment taxes (including the Optionee’s FICA obligation,
or similar obligation) required by law to be withheld with respect
to any taxable event arising as a result of the exercise of the
Option (or any portion thereof). The withholding
requirement may be satisfied, in whole or in part, at the election
of the Optionee by withholding from the shares of Common Stock
otherwise issuable upon the exercise of the Option (or portion
thereof) that number of shares having an aggregate fair market
value (as defined in the Plan) on the date of the withholding equal
to the minimum amount (and not any greater amount) required to be
withheld for tax purposes, all in accordance with such procedures
as the Committee establishes. The obligations of the
Company under this Agreement will be conditional on such payment or
arrangements, and the Company, and, where applicable, its
Affiliates, will, to the extent permitted by law, have the right to
deduct any such taxes from any payment of any kind otherwise due to
Optionee.
18. Notices
Notices
and communications under this Agreement must be in writing and
either personally delivered or sent by registered or certified
mail, return receipt requested, postage prepaid. Notices
to the Company must be addressed to Freedom Holding Corp., ▇▇▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇, “▇▇▇▇▇ ▇▇▇” ▇▇, ▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Attn. Evgeniy Ler, Chief Financial
Officer, or any other address designated by the Company in a
written notice to the Optionee. Notices to the Optionee
will be directed to the address of the Optionee then currently on
file with the Company, or at any other address given by the
Optionee in a written notice to the Company.
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19. Compliance with
Section 409A of the Code
If
any provision of this Agreement could cause the application of an
accelerated or additional tax under Section 409A of the Code upon
the vesting or exercise of the Option (or any portion thereof),
such provision shall be restructured, to the minimum extent
possible, in a manner determined by the Company (and reasonably
acceptable to the Optionee) that does not cause such an accelerated
or additional tax (including, if applicable, by increasing the
purchase price of the shares of Common Stock subject to the Option
to the reflect the “fair market value” of share of
Common Stock on the Date of Grant, within the meaning of Section
409A of the Code and any Treasury Regulations or other IRS guidance
promulgated thereunder).
20. No Right to Continued
Employment
This
Award does not constitute an employment
contract. Nothing herein shall confer upon the Optionee
the right to continue to serve as a director or officer to, or to
continue as an employee or service provider of, the Company or any
of its Affiliates for the length of the vesting schedule set forth
in Section 3 or for any portion thereof.
21. Modification of
Agreement.
This
Agreement may be modified, amended, suspended or terminated, and
any terms or conditions may be waived, but only by a written
instrument executed by the parties hereto.
22. Severability.
Should
any provision of this Agreement be held by a court of competent
jurisdiction to be unenforceable or invalid for any reason, the
remaining provisions of this Agreement shall not be affected by
such holding and shall continue in full force in accordance with
their terms.
23. Governing
Law.
The
validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Utah
without giving effect to the conflicts of laws principles
thereof.
24. Successors in
Interest.
This
Agreement shall inure to the benefit of and be binding upon any
successor to the Company. This Agreement shall inure to the benefit
of the Optionee’s legal representatives. All obligations
imposed upon the Optionee and all rights granted to the Company
under this Agreement shall be binding upon the Optionee’s
heirs, executors, administrators and successors.
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25. Resolution of
Disputes.
Any
dispute or disagreement which may arise under, or as a result of,
or in any way relate to, the interpretation, construction or
application of this Agreement shall be determined by the Board. Any
determination made hereunder shall be final, binding and conclusive
on the Optionee, the Optionee’s heirs, executors,
administrators and successors, and the Company and its Subsidiaries
for all purposes.
26. Entire
Agreement.
This
Agreement and the terms and conditions of the Plan constitute the
entire understanding between the Optionee and the Company and its
Subsidiaries, and supersede all other agreements, whether written
or oral, with respect to the Award.
27. Headings.
The
headings of this Agreement are inserted for convenience only and do
not constitute a part of this Agreement.
28. Counterparts.
This
Agreement may be executed simultaneously in two or more
counterparts, each of which shall constitute an original, but all
of which taken together shall constitute one and the same
agreement.
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By:
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Timur Turlov, Chief Executive Officer
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OPTIONEE
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By:
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Name:
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