Exhibit 10.2.3
OPTION GRANT CERTIFICATE
ENHANCE FINANCIAL SERVICES GROUP INC., a New York corporation (the
"Company"), hereby grants to _________________ (the "Executive") an Incentive
Stock Option (the "Option") to purchase _____ shares (the "Option Shares") of
common stock, par value $.10 per share ("Common Stock"), pursuant to the
Company's 1997 Long-Term Incentive Plan for Key Employees (as such may be
amended from time to time, the "Plan").
1. BASIC TERMS OF OPTION.
(A) TERM OF OPTION. The option shall expire December 31, 2009.
(b) EXERCISE PRICE. The exercise price shall be $16.4375 per Option Share (the
"Purchase Price").
(c) VESTING. The Option shall become exercisable in equal installments in
accordance with Article 3.
(d) METHOD OF EXERCISE. The Option may be exercised by the Executive in
accordance with the terms hereof and of the Plan for any and all Option Shares
by written notice (the "Exercise Notice") from the Executive to the Company or
its designee in such form as the Company shall prescribe. Payment of the
Purchase Price may be made in the form of cash or shares of Common Stock, as
permitted by the Plan, and shall accompany the Exercise Notice to the Company;
provided that, if such Exercise Notice indicates that the Executive is
simultaneously using the stock option exercise program of a financial services
provider or other brokerage concern approved by the Company, the Purchase Price
shall be payable on the fifth business day following the date of delivery of the
Exercise Notice.
2. OPTION SHARES.
(a) STATUS OF OPTION SHARES. Effective upon the exercise of the Option in whole
or in part and the receipt by the Company of the Purchase Price for the Option
Shares being purchased, the Executive shall be the holder of record of such
shares and shall have all of the rights of a shareholder with respect thereto
(including the right to vote such shares at any meeting at which the holders of
the Common Stock may vote, the right to receive all dividends declared and paid
upon such shares and the right to exercise any rights or warrants issued in
respect of any such shares). The Company shall, upon receipt of the Purchase
Price, issue in the name of the Executive a certificate representing the Option
Shares purchased from time to time.
(b) OPTION SHARES UNREGISTERED. As of the date of grant of the Option, the
Option Shares have been registered under the Securities Act of 1933, as amended
(the "Act"). However, the Company has no obligation to maintain the
effectiveness of the registration of the Option Shares under the Act. Unless the
Option Shares issuable upon a given exercise are then subject to an effective
registration statement under the Act, the certificate representing such shares
shall bear the following legend or such other legend as the Company's counsel
may deem appropriate:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and may in no
event be offered, sold, transferred or assigned unless and until the
shares have been so registered or, in the opinion of counsel to
Enhance Financial Services Group Inc., an exemption from such
registration is available."
(c) INVESTMENT INTENT. If the certificate representing the Option Shares
issuable upon a given exercise is required to bear the legend set forth above
(or a legend to like effect), the Executive shall, by such exercise of the
Option, be deemed conclusively to represent and to agree with the Company that
he or she is acquiring the Option Shares then being purchased for his or her own
account and not for the account of others, for investment only and not with a
view to public sale or distribution.
(d) RESTRICTION RELATING TO CERTAIN MERGERS. In the event of a merger or
consolidation of the Company with a third party which is proposed to be
accounted for as a pooling of interests, the Executive shall, if so requested by
the Company and notwithstanding any other provision of this Certificate, agree
not to sell, assign, or gift or in any other way reduce his or her risk relative
to the Option Shares and all other shares of Common Stock owned by the Executive
for such period after the consummation of such merger or consolidation as the
Company shall, upon the advice of its outside accountants, conclusively
determine as necessary to ensure that such merger or consolidation may be
validly accounted for as a pooling of interests.
(e)PRIOR CONDITIONS. The Company shall not be required to issue or deliver any
certificate representing Option Shares prior to (i) the admission of such shares
to listing on any stock exchange on which the Common Stock may then be listed,
(ii) the completion of any registration or any other qualification of such
shares under any federal or state law or any rulings or regulations of any
governmental regulatory body, (iii) the obtaining of any consent or approval or
other clearance from any governmental agency which the Company shall, in its
sole discretion, determine to be necessary or advisable, and (iv) the payment to
the Company, upon its request, of any amount requested by the Company for the
purposes of satisfying its liability, if any, to withhold taxes of any kind or
any other applicable assessment (plus interest or penalties thereon, if any,
caused by a delay in making such payment) incurred by reason of the exercise of
the Option.
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3. VESTING OF OPTION.
(a) VESTING CONDITIONS. If the Executive remains in the continuous employ of the
Company or a Subsidiary through the close of business on each date indicated in
Column I below, the Option shall thereupon vest (on a cumulative basis) as to
the portion of the Option Shares indicated opposite such date in Column II
below:
(I) (II)
the %
(or additional %)
If employment of the Option
CONTINUES THROUGH then WHICH VESTS IS
----------------- --------------
December 31, 2000 25%
December 31, 2001 25%
December 31, 2002 25%
December 31, 2003 25%
(b) EFFECT OF TERMINATION OF EMPLOYMENT. Should the Executive's employment with
the Company and its Subsidiaries be terminated for any reason whatsoever before
all installments of the Option shall have vested pursuant to Paragraph 3(a),
then any portion of the Option which is not vested at the time of such
termination shall automatically terminate on the date of the termination of
employment, and all rights and interests of the Executive in and to such
unvested portion of the Option shall thereupon terminate. Should the Executive's
employment be terminated before any given date set forth in Paragraph 3(a) upon
his or her death, Disability or Retirement, then the installments of the Option
which are vested at the time of such termination shall remain exercisable in
accordance with the terms hereof as if such termination of employment shall not
have occurred. Should the Executive's employment be terminated by the Company or
a Subisidiary other than for Cause, the vested portion of the Option not
subsequently exercised on or before the 90th day after such termination shall
thereupon automatically terminate. Should the Executive's employment be
terminated under any other circumstances, the vested portion of the Option shall
thereupon automatically terminate.
(c) EFFECT OF LEAVE OF ABSENCE. A leave of absence from the Company or any
Subsidiary which is approved by the Board or the President of the Company with
specific reference to the grant evidenced by this Certificate shall not be
considered a termination of the Executive's employment with the Company for
purposes of this Article 3 or any other provision of this Certificate, provided
that each date set forth in the table in Paragraph 3(a) which shall follow the
commencement of the leave of absence shall be automatically deferred for a
period equal to the period of the leave of absence.
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(d) BOARD'S RIGHT TO WAIVER OR ACCELERATION. Any provision of this Article 3 to
the contrary notwithstanding, the Board reserves the right, in its sole
discretion, to waive any condition to the vesting of the Option and accelerate
the date on which any installment of the Option shall vest in the event of a
change in control of the Company or a public offering of shares of Common Stock
or otherwise.
4. DEFINITIONS.
Unless defined below or elsewhere in this Certificate, the capitalized terms
used in this Certificate shall have the meanings ascribed thereto in the Plan.
(a) "Cause" shall consist of the failure of the Executive to perform or observe
the provisions of any employment agreement with the Company or a Subsidiary,
dishonesty or insubordination in the performance of his or her duties,
misappropriation of funds, material and willful misconduct, habitual insobriety
or conviction of a crime involving moral turpitude.
(b) "Disability" means a disability which entitles the Executive to benefits
under the long-term disability insurance program of the Company or a Subsidiary
applicable to the Executive, or which would entitle the Executive to such
benefits after any applicable waiting period.
(c) "Retirement" means termination of the Executive's employment with the
Company and its Subsidiaries (other than for Cause or upon death or Disability)
on or after the later to occur of (i) the conclusion of ten years of continuous
employment by the Company or any Subsidiary or (ii) the date on which the
Executive attains age 55.
5. GENERAL PROVISIONS.
(a) ADMINISTRATION AND CONSTRUCTION. The provisions hereof shall be administered
and construed by the Board (or any authorized committee thereof), whose
decisions shall be conclusive and binding on the Company, the Executive and
anyone claiming under or through either of them. Without limiting the generality
of the foregoing, any determination as to whether or not an event has occurred
or failed to occur which causes any unvested portion of the Option to be
forfeited or become vested pursuant hereto, shall be made in the good faith but
otherwise absolute discretion of the Board. By the Executive's acceptance of
this Certificate, the Executive and each person claiming under or through the
Executive irrevocably consents and agrees to all actions, decisions and
determinations to be taken or made by the Board in good faith pursuant to this
Certificate and the Plan.
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(b) OPTION NOT ASSIGNABLE OR TRANSFERABLE. The Option is not assignable or
transferable other than by will or the laws of descent and distribution, either
voluntarily, or, to the full extent permitted by law, involuntarily, by way of
encumbrance, pledge, attachment, levy or charge of any nature. Any rights of the
Executive hereunder shall be exercisable during the Executive's lifetime only by
the Executive's or by his or her guardian or legal representative.
(c) NO EMPLOYMENT RIGHTS. No provision of this Certificate or of the Plan shall
confer upon the Executive any right to continue in the employ of the Company or
a Subsidiary or shall in any way affect the right of the Company or a Subsidiary
to dismiss, or otherwise terminate the employment of, the Executive at any time
for any reason or no reason, or shall impose upon the Company or any Subsidiary
any liability for any forfeiture of any unvested portion of the Option which may
result under this Certificate if the Executive's employment is so terminated.
(d) RECAPITALIZATION. If the Executive receives, with respect to the Option, any
other option or warrant to purchase securities of the Company, of a Subsidiary
or of any other entity as a result of any recapitalization, merger,
consolidation, combination, or exchange of shares or a similar corporate change,
any such other option or warrant received by the Executive shall likewise be
subject to the terms and conditions of this Certificate and shall be included in
the term "Option." Similarly, any securities or other property as to which such
other option or warrant is exercisable shall be included in the term "Option
Shares." In the event of any such corporate change, the Purchase Price set forth
in Paragraph 1(b) shall be appropriately adjusted by the Board such that the
aggregate price for all such Option Shares is not changed.
(e) LEGAL REPRESENTATIVE. In the event of the Executive's death or a judicial
determination of the Executive's incompetence, reference in this Certificate to
the Executive shall be deemed to refer to the Executive's legal representative
or, where appropriate, to the Beneficiary.
(f) HOLIDAYS. If any event provided for in this Certificate is scheduled to take
place on a legal holiday, such event shall take place on the next succeeding day
that is not a legal holiday.
(g) NOTICES TO THE COMPANY. Any notice or other communication to the Company
pursuant to any provision of this Certificate shall be deemed to have been
delivered when delivered in person to the Corporate Secretary of the Company or
when deposited in the United States mail, first class postage prepaid, addressed
to the Corporate Secretary of the Company at 335 Madison Avenue, New York, New
York 10017 or at such other address of which the Company may from time to time
give the Executive written notice in accordance with Paragraph 5(h).
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(h) NOTICES TO THE EXECUTIVE. Any notice or other communication to the Executive
pursuant to any provision of this Certificate shall be deemed to have been
delivered when delivered to the Executive in person or when deposited in the
United States mail, first class postage prepaid, addressed to the Executive at
his or her address on the security holder records of the Company or at such
other address of which the Executive may from time to time give the Company
written notice in accordance with Paragraph 5(g).
(i) AGREEMENT SUBJECT TO PLAN. This Option Grant Certificate is being executed
and delivered pursuant to and is subject in all events to the Plan, a copy of
which has previously been delivered to the Executive or is being delivered to
the Executive concurrently with this Certificate and which is incorporated in
this Certificate by reference. Each provision of this Certificate shall be
administered and construed in accordance with the Plan, and any provision that
cannot be so administered or construed shall to that extent be disregarded.
ENHANCE FINANCIAL SERVICES
GROUP INC.
Date: As of December 8, 1999 By:
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Executive Vice President