Exhibit 10.28
HILB, ROGAL AND HAMILTON COMPANY
EMPLOYEE
NON-QUALIFIED STOCK OPTION AGREEMENT
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THIS AGREEMENT dated as of the 12th day of February, 2001, between
Hilb, Rogal and Hamilton Company, a Virginia corporation (the "Company"), and
______________________ ("Optionee"), is made pursuant and subject to the
provisions of the Company's 2000 Stock Incentive Plan, as amended (the "Plan"),
a copy of which is attached. All terms used herein that are defined in the Plan
shall have the same meaning given them in the Plan.
1. Grant of Option. Pursuant to the Plan, the Company, on
February 12, 2001, granted to Optionee, subject to the terms and conditions of
the Plan and subject further to the terms and conditions herein set forth, the
right and option to purchase from the Company all or any part of an aggregate of
___ shares of the common stock of the Company ("Common Stock") at the Option
price of $37.51 per share. Such Option will be exercisable as hereinafter
provided.
2. Terms and Conditions. This Option is subject to the following
terms and conditions:
(a) Expiration Date. The "Expiration Date" of this Option is
February 12, 2008.
(b) Exercise of Option. Except as provided in paragraphs 3, 4, 5
and 10, this Option shall be exercisable with respect to twenty-five percent
(25%) of the aggregate number of shares covered by this Option for each one (1)
full year, up to a total of four (4) full years, that Optionee continues to be
employed by the Company after the date of this Agreement. Once this Option has
become exercisable with respect to any portion of the total number of shares in
accordance
with the preceding sentence, it shall continue to be exercisable with respect to
such shares until the termination of Optionee's rights hereunder pursuant to
paragraphs 3, 4 or 5, or until the Expiration Date. A partial exercise of this
Option shall not affect Optionee's right to exercise subsequently this Option
with respect to the remaining shares that are exercisable, subject to the
conditions of the Plan and this Agreement.
(c) Method of Exercising and Payment for Shares. This Option may
be exercised only by written notice delivered to the attention of the Company's
Secretary at the Company's principal office in Glen Allen, Virginia. The written
notice shall specify the number of shares being acquired pursuant to the
exercise of the Option when such Option is being exercised in part in accordance
with subparagraph 2(b) hereof. The exercise date shall be the date such notice
is received by the Company. Such notice shall be accompanied by payment of the
Option price in full for each share (a) in cash (United States dollars) or by
cash equivalent acceptable to the Company, or (b) by a cashless exercise
pursuant to Section IX(2) of the Plan.
(d) Nontransferability. This Option is nontransferable except, in
the event of the Optionee's death, by will or by the laws of descent and
distribution subject to the terms hereof. During Optionee's lifetime, this
Option may be exercised only by Optionee.
3. Exercise in the Event of Death. This Option shall be
exercisable in full in the event that Optionee dies while employed by the
Company or an Affiliate and prior to the Expiration Date of this Option. In that
event, this Option may be exercised by Optionee's estate, or the person or
persons to whom his rights under this Option shall pass by will or the laws of
descent and distribution. Optionee's estate or such persons must exercise this
Option, if at all, within one year of the date of Optionee's death or during the
remainder of the period preceding
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the Expiration Date, whichever is shorter, but in no event may the Option be
exercised prior to the expiration of six (6) months from the date of the grant
of the Option.
4. Exercise in the Event of Permanent and Total Disability. This
Option shall be exercisable in full if Optionee becomes permanently and totally
disabled (within the meaning of Section 22(e)(3) of the Code) while employed by
the Company or an Affiliate and prior to the Expiration Date of this Option. In
that event, Optionee must exercise this Option, if at all, within one year of
the date he becomes disabled or during the remainder of the period preceding the
Expiration Date, whichever is shorter, but in no event may the Option be
exercised prior to the expiration of six (6) months from the date of the grant
of the Option.
5. Exercise After Termination of Employment. In the event that
the Optionee retires from employment with the Company after attaining age 62 and
serving at least 10 consecutive years with the Company or an Affiliate or
predecessor thereof, then this Option shall be exercisable in full but must be
exercised by the Optionee, if at all, within one year following his retirement
date or during the remainder of the period preceding the Expiration Date,
whichever is shorter, but in no event may the Option be exercised prior to the
expiration of six (6) months from the date of the grant of the Option. In all
events other than those events addressed in paragraphs 3 or 4 or the foregoing
sentence of this paragraph 5, in which Optionee ceases to be employed by the
Company: (a) Optionee may exercise the Option in whole or in part with respect
to that number of shares which are exercisable by him under paragraph 2(b) above
on the date his employment terminated, and (b) this Option must be exercised by
Optionee, if at all, within ninety (90) days following the date upon which he
ceases to be employed by the Company or during the remainder of the period
preceding the Expiration Date, whichever is
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shorter, but in no event may the Option be exercised prior to the expiration of
six (6) months from the date of the grant of the Option.
6. Fractional Shares. Fractional shares shall not be issuable
hereunder, and when any provision hereof may entitle Optionee to a fractional
share such fraction shall be disregarded.
7. No Right to Continued Employment. This Option does not confer
upon Optionee any right with respect to continuance of employment by the Company
or an Affiliate, nor shall it interfere in any way with the right of the Company
or an Affiliate to terminate his employment at any time.
8. Investment Representation. Optionee agrees that, unless such
shares previously have been registered under the Securities Act of 1933, as
amended (the "Securities Act"): (i) any shares purchased by him hereunder will
be purchased for investment and not with a view to distribution or resale and
(ii) until such registration, certificates representing such shares may bear an
appropriate legend to assure compliance with the Securities Act. This investment
representation shall terminate when such shares have been registered under the
Securities Act.
9. Change in Capital Structure. Subject to any required action by
the shareholders of the Company, the number of shares of Common Stock covered by
this Option, and the price per share thereof, shall be proportionately adjusted
by the Company for any increase or decrease in the number of issued and
outstanding shares of Common Stock of the Company resulting from any stock
dividend (but only on the Common Stock), stock split, combination,
reclassification, recapitalization or general issuance to holders of Common
Stock of rights to purchase Common Stock at substantially below its then fair
market value, or any change in the number of such shares outstanding effected
without receipt of cash or property or labor or services by the Company, or any
spin-off or other distribution of assets to shareholders.
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In the event of a change in the Common Stock of the Company as
presently constituted, which is limited to a change of all or a part of its
authorized shares without par value into the same number of shares with a par
value, or any subsequent change into the same number of shares with a different
par value, the shares resulting from any such change shall be deemed to be the
Common Stock within the meaning of the Plan.
The grant of this Option pursuant to the Plan shall not affect in any
way the right or power of the Company to make adjustments, reclassifications,
reorganizations or changes of its capital or business structure or to merge or
to consolidate or to dissolve, liquidate or sell, or transfer all or any part of
its business or assets.
10. Change of Control. Notwithstanding any other provision of this
Agreement to the contrary, in the event of a Change of Control, the provisions
of Section XIII(3) of the Plan shall apply to this Option.
11. Forfeiture of Certain Gains.
(a) Termination for Cause. If Optionee's employment is
terminated for "Cause" within one year of any exercise of this Option, in whole
or in part, the Optionee shall pay to the Company an amount equal to the gain
realized by Optionee from such exercise represented by the excess of the Fair
Market Value on the date of exercise over the Option price multiplied by the
number of shares purchased, without regard to any subsequent market price
increase or decrease ("Option Gain"). For purposes of this paragraph, "Cause"
shall have the meaning ascribed to it in any employment agreement between the
Optionee and the Company that is in effect at the time of termination and, if no
such agreement exists, it shall mean:
(i) the willful and continued failure of the
Optionee to perform substantially the Optionee's duties with the Company or one
of its affiliates (other than any such
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failure resulting from incapacity due to physical or mental illness), after a
written demand for substantial performance is delivered to the Optionee by the
Company which specifically identifies the manner in which the Company believes
that the Optionee has not substantially performed the Optionee's duties, or
(ii) the willful engaging by the Optionee in
illegal conduct or gross misconduct which is materially and demonstrably
injurious to the Company.
(b) Forfeiture if Optionee Engages in Certain Activities.
If Optionee engages in any activity in competition with any activity of the
Company, or inimical, contrary or harmful to the interests of the Company,
including but not limited to (i) accepting employment with or serving as a
consultant advisor or in any other capacity to an employer that is in
competition with or acting against the interests of the Company, (ii) disclosing
or misusing any confidential information or material concerning the Company or
(iii) participating in any hostile takeover attempt, then (1) this Option shall
terminate effective the date on which Optionee enters into such activity, unless
terminated sooner by operation of another term on condition of this Agreement or
the Plan, and (2) the Optionee shall pay to the Company an amount equal to the
Option Gain realized by Optionee from any exercise of this Option, in whole or
in part, within one year of the date such activity began.
(c) Right of Set-off. Optionee hereby consents to a
deduction from any amounts owed by the Company to Optionee from time to time
(including amounts owed as ways or other compensation, fringe benefits or
vacation pay, to the extent of any amounts Optionee owes the Company under
paragraph 10(a) and (b). Whether or not the Company elects to make any set-off
in whole or in part, if Company does not recover by means of set-off the full
amount owed by
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Optionee under paragraphs 10(a) and (b), Optionee agrees to immediately pay the
unpaid balance to the Company.
12. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the Commonwealth of
Virginia, except to the extent that federal law shall be deemed to apply.
13. Conflicts. In the event of any conflict between the provisions
of the Plan as in effect on the date hereof and the provisions of this
Agreement, the provisions of the Plan shall govern. All references herein to the
Plan shall mean the Plan as in effect on the date hereof.
14. Optionee Bound by Plan. Optionee hereby acknowledges receipt
of a copy of the Plan and agrees to be bound by all the terms and provisions
thereof.
15. Binding Effect. Subject to the limitations stated above and in
the Plan, this Agreement shall be binding upon and inure to the benefit of the
legatees, distributes, and personal representatives of Optionee and the
successors of the Company.
16. Gender. All pronouns used herein shall be deemed to refer to
either the male or female as appropriate.
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed
by a duly authorized officer, and Optionee has affixed his signature hereto.
OPTIONEE: HILB, ROGAL AND HAMILTON COMPANY
______________________________ By: ____________________________________
Title: Chairman and Chief Executive Officer
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NONQUALIFIED STOCK OPTION AWARDS
TO NAMED EXECUTIVE OFFICERS
EMPLOYEES GRANT DATE OPTION GRANTS
- --------- ---------- -------------
Andrew L. Rogal 02/13/01 16,000
Martin L. Vaughan, III 02/13/01 12,000
Timothy J. Korman 02/13/01 8,000
Jack P. McGrath 02/13/01 8,000
Robert B. Lockhart 02/13/01 6,500