Exhibit 4.5
[FORM OF PERFORMANCE VESTING OPTION AGREEMENT]
TRANSAMERICA CORPORATION
1996 STOCK OPTION AND AWARD PLAN
NONQUALIFIED STOCK OPTION AGREEMENT
Transamerica Corporation (the "Company") hereby grants you, [NAME OF
EMPLOYEE] (the "Employee"), a nonqualified stock option under the Company's 1996
Stock Option and Award Plan (the "Plan"), to purchase shares of common stock of
the Company ("Shares"). The date of this Agreement is [DATE] (the "Grant Date").
In general, the latest date this option will expire is [DATE 10 YEARS AFTER
GRANT DATE] (the "Expiration Date"). However, as provided in Appendix A
(attached hereto), this option may expire earlier than the Expiration Date.
Subject to the provisions of Appendix A and of the Plan, the principal features
of this option are as follows:
MAXIMUM NUMBER OF SHARES
PURCHASABLE WITH THIS OPTION: [NUMBER] PURCHASE PRICE PER SHARE: $[NUMBER]
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SCHEDULED VESTING DATE: The tenth trading day (occurring within a period
---------------------- of 30 consecutive trading days before [DATE 5
YEARS AFTER GRANT DATE]) on which the Fair Market
Value of a Share is at least $[NUMBER].
EVENT TRIGGERING MAXIMUM TIME TO EXERCISE
TERMINATION OF OPTION: AFTER TRIGGERING EVENT*:
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Termination of Employment (except as shown below) 3 months
Termination of Employment due to Disability 3 years
Termination of Employment due to Retirement 5 years
Termination of Employment due to death 3 years
Failure of Option to vest None
Exercise of the related TLSAR None
* However, in no event may this option be exercised after the Expiration
Date (except in certain cases of the death of the Employee).
Your signature below indicates your agreement and understanding that this
option is subject to all of the terms and conditions contained in Appendix A and
the Plan. For example, important additional information on vesting and
termination of this option is contained in Paragraphs 4 through 6 of Appendix A.
ACCORDINGLY, PLEASE BE SURE TO READ ALL OF APPENDIX A, WHICH CONTAINS THE
SPECIFIC TERMS AND CONDITIONS OF THIS OPTION.
TRANSAMERICA CORPORATION EMPLOYEE
By _______________________ __________________________
Title: [NAME]
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APPENDIX A
TERMS AND CONDITIONS OF NONQUALIFIED STOCK OPTION
1. Grant of Option. The Company hereby grants to the Employee under
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the Plan, for past services and as a separate incentive in connection with his
or her employment and not in lieu of any salary or other compensation for his or
her services, a nonqualified stock option to purchase, on the terms and
conditions set forth in this Agreement and the Plan, all or any part of an
aggregate of [NUMBER] Shares.
2. Exercise Price. The purchase price per Share for this option
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(the "Exercise Price") shall be $[NUMBER].
3. Number of Shares. The number and class of Shares specified in
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Paragraph 1 above, and/or the Exercise Price, are subject to appropriate
adjustment in the event of any merger, reorganization, consolidation,
recapitalization, separation, liquidation, stock dividend, split-up, Share
combination, distribution or other change in the corporate structure of the
Company affecting the Shares; provided, however, that the number of Shares
subject to this option shall always be a whole number. Subject to any required
action of the stockholders of the Company, if the Company is the surviving
corporation in any merger or consolidation, this option (to the extent that it
is still outstanding) shall pertain to and apply to the securities to which a
holder of the same number of Shares that are then subject to the option would
have been entitled.
4. Vesting Schedule. The right to exercise this option will vest as
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to one hundred percent (100%) of the Shares specified in Paragraph 1 above on
the tenth trading day (occurring within a period of thirty (30) consecutive
trading days) on which the Fair Market Value of a Share is at least $[NUMBER],
provided that vesting will occur only if both (a) such tenth trading day occurs
on or before [DATE 5 YEARS AFTER GRANT DATE], and (b) the Employee is in the
employ of the Company and/or an Affiliate on each of such ten (10) trading days.
Notwithstanding the preceding sentence, in the event of the Employee's
Termination of Employment due to Retirement, Disability or death, (i) if the
right to exercise any particular Shares would have vested within six (6) months
after such Termination of Employment (had the Employee not incurred a
Termination of Employment), then the right to exercise such Shares will vest on
the date that such right otherwise would have vested, and (ii) if the right to
exercise any particular Shares would have vested more than six (6) months after
such Termination of Employment (had the Employee not incurred a Termination of
Employment), then the right to exercise a portion of such Shares will vest on
the date that such right otherwise would have vested, as determined in the
discretion of the Committee based on the time elapsed from the Grant Date to the
Termination of Employment and the vesting date.
5. Termination of Option. In the event of the Employee's
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Termination of Employment for any reason other than Retirement, Disability or
death, the Employee may, within three (3) months after the date of such
Termination, or prior to the Expiration Date, whichever shall first occur,
exercise any vested but unexercised portion of this option. In the event of the
Employee's Termination of Employment due to Disability, the Employee may, within
three (3) years after the date of such Termination, or prior to the Expiration
Date, whichever shall first occur, exercise any vested but unexercised portion
of this option. In the event of the Employee's Termination of Employment due to
Retirement, the Employee may, within five (5) years from the date of such
Termination, or prior to the Expiration Date, whichever shall first occur,
exercise any vested but unexercised portion of this option. In addition, this
option shall terminate (a) on the first date on which the option no longer may
become exercisable pursuant to Paragraph 5 above, or (b) upon exercise of the
tandem limited stock appreciation right (the "TLSAR") granted with this option
(but only to the extent provided in the following sentence). For each Share with
respect to which the TLSAR is exercised, the right to exercise [NUMBER] of the
Shares subject to this option shall immediately terminate, provided that the
number of Shares which so terminate shall be rounded to the nearest whole number
(or to such number as is appropriate to ensure that the total number of shares
covered by this option does not exceed the number specified in Paragraph 1
above).
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6. Death of Employee. In the event that the Employee dies while in
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the employ of the Company and/or an Affiliate or during the three (3) month,
three (3) year or five (5) year periods referred to in Paragraph 5 above, the
Employee's designated beneficiary, or if no beneficiary survives the Employee,
the administrator or executor of the Employee's estate, may, within three (3)
years after the date of death, exercise any vested but unexercised portion of
the option. Any such transferee must furnish the Company (a) written notice of
his or her status as a transferee, (b) evidence satisfactory to the Company to
establish the validity of the transfer of this option and compliance with any
laws or regulations pertaining to such transfer, and (c) written acceptance of
the terms and conditions of this option as set forth in this Agreement.
7. Persons Eligible to Exercise Option. This option shall be
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exercisable during the Employee's lifetime only by the Employee. The option
shall not be transferable by the Employee, except by (a) a valid beneficiary
designation made in a form and manner acceptable to the Committee, or (b) will
or the applicable laws of descent and distribution. Any such transfer shall be
effective only if the TLSAR that is tandem to this option also is transferred to
the same transferee.
8. Exercise of Option. This option may be exercised by the person
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then entitled to do so as to any Shares which may then be purchased (a) by
giving written notice of exercise to the Secretary of the Company (or his or her
designee), specifying the number of full Shares to be purchased and accompanied
by full payment of the Exercise Price (and the amount of any income tax the
Company is required by law to withhold by reason of such exercise), and (b) by
giving satisfactory assurances in writing if requested by the Company, signed by
the person exercising the option, that the Shares to be purchased upon such
exercise are being purchased for investment and not with a view to the
distribution thereof. No partial exercise of this option may be for less than
ten (10) Share lots or multiples thereof.
9. Suspension of Exercisability. If at any time the Company shall
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determine, in its discretion, that the listing, registration or qualification of
the Shares upon any securities exchange or under any state or federal law, or
the consent or approval of any governmental regulatory authority, is necessary
or desirable as a condition of the purchase of Shares hereunder, this option may
not be exercised, in whole or in part, unless and until such listing,
registration, qualification, consent or approval shall have been effected or
obtained free of any conditions not acceptable to the Company. The Company shall
make reasonable efforts to meet the requirements of any such state or federal
law or securities exchange and to obtain any such consent or approval of any
such governmental authority.
10. No Rights of Stockholder. Neither the Employee (nor any
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beneficiary) shall be or have any of the rights or privileges of a stockholder
of the Company in respect of any of the Shares issuable pursuant to the exercise
of this option, unless and until certificates representing such Shares shall
have been issued, recorded on the records of the Company or its transfer agents
or registrars, and delivered to the Employee (or beneficiary).
11. No Effect on Employment. The Employee's employment with the
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Company and its Affiliates is on an at-will basis only. Accordingly, subject to
any written, express employment contract with the Employee, nothing in this
Agreement or the Plan shall confer upon the Employee any right to continue to be
employed by the Company or any Affiliate or shall interfere with or restrict in
any way the rights of the Company or the Affiliate, which are hereby expressly
reserved, to terminate the employment of the Employee at any time for any reason
whatsoever, with or without good cause. Such reservation of rights can be
modified only in an express written contract executed by a duly authorized
officer of the Company or the Affiliate. For purposes of this Agreement, the
transfer of employment of the Employee between the Company and any one of its
Affiliates (or between Affiliates) shall not be deemed a Termination of
Employment.
12. Address for Notices. Any notice to be given to the Company under
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the terms of this Agreement shall be addressed to the Company, in care of its
Secretary, at 600 Montgomery Street, San Francisco, California 94111, or at such
other address as the Company may hereafter designate in writing.
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13. Option is Not Transferable. Except as otherwise expressly
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provided herein, this option and the rights and privileges conferred hereby may
not be transferred, pledged, assigned or otherwise hypothecated in any way
(whether by operation of law or otherwise) and shall not be subject to sale
under execution, attachment or similar process. Upon any attempt to transfer,
pledge, assign, hypothecate or otherwise dispose of this option, or of any right
or privilege conferred hereby, or upon any attempted sale under any execution,
attachment or similar process, this option and the rights and privileges
conferred hereby immediately shall become null and void.
14. Other Benefits. Except as provided below, nothing contained in
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this Agreement shall affect the Employee's right to participate in and receive
benefits under and in accordance with the then current provisions of any
pension, insurance or other employee welfare plan or program of the Company or
any Affiliate. Notwithstanding any other provision of this Agreement, in the
event that the Employee receives a hardship withdrawal from his or her pre-tax
account under the Company's Employees Stock Savings Plan (the "SSP"), this
option may not be exercised during the twelve (12) month period following the
receipt of such withdrawal, unless the Committee determines that (a) such
exercise (or a particular manner of exercise) would be consistent with the
requirements of Treasury Regulation section 1.401(k)-1(d)(2)(iii)(B), as amended
from time to time (the "safe harbor" rule for determining an employee's
financial need for a hardship withdrawal), or (b) under the circumstances then
prevailing, satisfaction of the requirements of said "safe harbor" rule no
longer is necessary to assure the continued tax qualification of the SSP.
15. Maximum Term of Option. Notwithstanding any other provision of
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this Agreement except Paragraph 6 above relating to the death of the Employee
(in which case this option is exercisable to the extent set forth therein), this
option is not exercisable after the Expiration Date.
16. Binding Agreement. Subject to the limitation on the
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transferability of this option contained herein, this Agreement shall be binding
upon and inure to the benefit of the heirs, legatees, legal representatives,
successors and assigns of the parties hereto.
17. Conditions to Exercise. The Exercise Price for this option must
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be paid in the legal tender of the United States or, in the Committee's sole
discretion, in Shares. Exercise of this option will not be permitted until
satisfactory arrangements have been made for the payment of the appropriate
amount of withholding taxes (as determined by the Company).
18. Plan Governs. This Agreement is subject to all of the terms and
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provisions of the Plan. In the event of a conflict between one or more
provisions of this Agreement and one or more provisions of the Plan, the
provisions of the Plan shall govern. Capitalized terms and phrases used and not
defined in this Agreement shall have the meaning set forth in the Plan.
19. Committee Authority. The Committee shall have all discretion,
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power, and authority to interpret the Plan and this Agreement and to adopt such
rules for the administration, interpretation and application of the Plan as are
consistent therewith. All actions taken and all interpretations and
determinations made by the Committee in good faith shall be final and binding
upon the Employee, the Company and all other interested persons, and shall be
given the maximum deference permitted by law. No member of the Committee shall
be personally liable for any action, determination or interpretation made in
good faith with respect to the Plan or this Agreement.
20. Captions. The captions provided herein are for convenience only
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and are not to serve as a basis for the interpretation or construction of this
Agreement.
21. Agreement Severable. In the event that any provision in this
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Agreement shall be held invalid or unenforceable, such provision shall be
severable from, and such invalidity or unenforceability shall not be construed
to have any effect on, the remaining provisions of this Agreement.
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