EXHIBIT 10.4
NONQUALIFIED STOCK OPTION
NONQUALIFIED STOCK OPTION AGREEMENT dated as of ______________, between MIDAS,
INC., a Delaware corporation (the "Corporation"), and ___________, an employee
of the Corporation or one of its subsidiaries (the "Holder").
WHEREAS, the Corporation desires, by affording the Holder an opportunity to
purchase shares of the Corporation's Common Stock as hereinafter provided, to
carry out the purposes of the Corporation's Stock Incentive Plan (the "Plan"),
as adopted by the Board of Directors of the Corporation on November 21, 1997;
WHEREAS, the Compensation Committee of the Board of Directors of the Corporation
(the "Committee") has duly made all determinations necessary or appropriate to
the grant hereof;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
hereinafter set forth and for other good and valuable consideration, receipt of
which is hereby acknowledged, the parties hereto have agreed, and do hereby
agree, as follows:
1. The Corporation hereby irrevocably grants to the Holder, as a matter of
separate agreement and not in lieu of salary or any other compensation for
services, the right and option (the "Option"), to purchase (see attached
schedule) shares of Common Stock of the Corporation on the terms and conditions
herein set forth.
2. For each of said shares purchased, the Holder shall pay to the Corporation
(see attached schedule) per share (the "Option Price").
3. Subject to the provisions of paragraphs 7, 8 and 9 hereof, this Option
shall be for a term of ten years from the date of this Agreement and shall
become exercisable as to one-fifth of the shares covered by this Option on the
first anniversary hereof, as to two-fifths of the shares covered by this Option
on the second anniversary hereof (reduced by such number of shares as may have
theretofore been purchased hereunder), as to three-fifths of the shares covered
by this Option on the third anniversary hereof (reduced by such number of shares
as may have theretofore been purchased hereunder), as to four-fifths of the
shares covered by this Option on the fourth anniversary hereof (reduced by such
number of shares as may have theretofore been purchased hereunder), and as to
all shares covered by this Option and not theretofore purchased on the fifth
anniversary hereof. The Corporation shall not be required to issue any
fractional shares upon exercise of this Option, and any fractional interests
resulting from the calculation of the number of shares in respect of which this
Option may be exercised prior to the fifth anniversary hereof shall be rounded
down to the nearest whole share. Except as provided in paragraphs 7, 8 and 9
hereof, this Option may not be exercised unless the Holder shall, at the time of
exercise, be an employee of the Corporation of one of its "subsidiaries", as
defined in the Plan.
4. This Option may be exercised only by one or more notices in writing of the
Holder's intent to exercise this Option, accompanied by payment by check to the
Corporation in an amount equal to the aggregate Option Price of the total number
of whole shares then being purchased. Unless otherwise specified by the
Corporation, each such notice and check shall be delivered to the Treasurer of
the Corporation, at the principal office of the Corporation or, at the risk of
the Holder, mailed to the Treasurer at said office.
5. Following the exercise of this Option, the Corporation will advise the
Holder of the applicable Federal and state income taxes required to be withheld
by reason of such exercise. Thereupon, the Holder shall forthwith deliver to
the Corporation a check payable to the Corporation or the subsidiary of the
Corporation which employs the Holder, as the case may be, representing said
taxes.
6. This Option is not transferable by the Holder otherise than by will or the
laws of descent and distribution and may be exercised, during the lifetime of
the Holder, only by the Holder.
7. In the event of the termination of employment of the Holder with the
Corporation or one of its subsidiaries, other than by reason of Retirement (as
defined in the Plan) or death, the Holder may exercise this Option at any time
within three months (or one year, if the Holder is permanently and totally
disabled within the meaning of Section 22(e)(3) of the Federal Internal Revenue
Code) after such termination of employment subject to paragraph 9 hereof, but
only if and to the extent this Option was exercisable at the date of
termination, and in no event after the date on which this Option would otherwise
terminate; provided, however, if such termination of employment was for cause or
a voluntary termination without the written consent of the Corporation, then
this Agreement shall be of no further force or effect and all rights of the
Holder under this Option shall thereupon cease.
8. In the event of the termination of employment of the Holder with the
Corporation or one of its subsidiaries by reason of Retirement, then all shares
subject to this Option shall be fully exercisable, and subject to paragraph 9
hereof, this Option shall be exercisable by the Holder at any time up to and
including (but not after) the date on which this Option would otherwise
terminate.
9. In the event of the death of the Holder (i) while employed by the
Corporation or one of its subsidiaries or after Retirement, (ii) within three
months after termination of the Holder's employment (other than a termination by
reason of permanent and total disability within the meaning of Section 22(e)(3)
of the Federal Internal Revenue Code), or (iii) within one year after
termination of the Holder's employment by reason of such disability, then this
Option may be exercised by the legatees under the last will of the Holder, or by
the personal representatives or distributees of the Holder, at any time within a
period of nine months after the Holder's death, but only if and to the extent
this Option was exercisable at the date of death (unless death occurs while the
Holder is employed by the Corporation or one of its subsidiaries, in which case
all shares subject to this Option shall be fully exercisable), and in no event
after the date on which this Option would otherwise terminate.
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10. Prior to the termination of this Option, in the event of a stock dividend,
a spin-off, split-up, re-capitalization, merger, consolidation, combination or
exchange of shares, or the like, then the aggregate number and class of shares
thereafter subject of this Option and the Option Price thereof, and the number
and class of shares reserved for issuance pursuant to exercise hereof, shall be
appropriately adjusted by the Committee, whose determination shall be
conclusive.
11. This Option and each and every obligation of the Corporation hereunder are
subject to the requirement that if at any time the Corporation shall determine,
upon advise of counsel, that the listing, registration, or qualification of the
shares covered hereby upon any securities exchange or under any state or Federal
law, or the consent or approval of any governmental regulatory body, is
necessary or desirable as a condition of or in connection with the granting of
this Option or 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 of the Board of Directors of the Corporation.
12. In the event of a "change in control" or a "Pooling Transaction", as those
terms are defined in the Plan, the Holder shall have all of the rights specified
in Paragraph 10(B) and, if applicable, Paragraph 10(D) of the Plan.
13. Nothing herein contained shall confer on the Holder any right to continue
in the employment of the Corporation or any of its subsidiaries or interfere in
any way with the right of the Corporation or any subsidiary to terminate the
Holder's employment at any time; confer on the Holder any of the rights of a
shareholder with respect to any of the shares subject to this Option until such
shares shall be issued upon the exercise of this Option; affect the Holder's
right to participate in and receive benefits under and in accordance with the
provisions of any pension, profit-sharing, insurance, or other employee benefit
plan or program of the Corporation or any of its subsidiaries; or limit or
otherwise affect the right of the Board of Directors of the Corporation (subject
to any required approval by the shareholders) at any time or from time to time
to alter, amend, suspend or discontinue the Plan and the rules for its
administration; provided, however, that no termination or amendment of the Plan
may, without the consent of the Holder, adversely affect the Holder's rights
under this Option.
14. The Committee shall have the right to resolve all questions which may arise
in connection with this Option. Any interpretation, determination or other
action made or taken by the Committee regarding the Plan or this Option shall be
final, binding and conclusive.
IN WITNESS WHEREOF, this Nonqualified Stock Option Agreement has been duly
executed by the Corporation and the Holder as of the day and year first above
written.
MIDAS, INC. HOLDER:
By:
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Vice President
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