IMPERIAL HOLDINGS, INC. 2010 OMNIBUS INCENTIVE PLAN STOCK OPTION AWARD AGREEMENT

EX-10.7 7 w78831a1exv10w7.htm EX-10.7 exv10w7
Exhibit 10.7
IMPERIAL HOLDINGS, INC.
2010 OMNIBUS INCENTIVE PLAN
STOCK OPTION AWARD AGREEMENT
                                        
                                        
                                        
Dear [______________]:
You have been granted an option (the “Option”) to purchase shares of common stock (“Common Stock”) of Imperial Holdings, Inc., a Florida corporation (the “Company”), pursuant to the Imperial Holdings, Inc. 2010 Omnibus Incentive Plan (the “Plan”) and this Stock Option Award Agreement (the “Option Agreement”). Your Option is granted under and governed by the terms and conditions of the Plan and this Option Agreement. Capitalized terms used but not defined in this Option Agreement shall have the same meaning as set forth in the Plan.
     
Grant Date:
  [__________ __, 200_]
 
    
Type of Option:
  o Incentive Stock Option
 
  o Nonqualified Stock Option
 
    
Number of Option Shares:
  [___________]
 
    
Exercise Price per Share:
  U.S. $[_____]
 
    
Term:
  This Option shall expire on the tenth anniversary of the Grant Date (the “Expiration Date”), unless terminated earlier pursuant to the terms of this Option Agreement or the Plan. Upon termination or expiration of this Option, all your rights hereunder shall cease.
 
    
Vesting:
  [One fourth (1/4) of the total shares subject to this Option will vest on each of the first four anniversaries of the Grant Date, provided that you are still employed with the Company as of the applicable anniversary date.]
 
    
 
  Upon your termination of your employment from the Company, the unvested portion of this Option shall be forfeited.
 
    
Termination of Employment:
  The following conditions apply in the event that your employment with the Company is terminated prior to the Expiration Date of this Option. In no event, however, will the time periods described herein extend the term of this Option beyond its Expiration Date or beyond the date this Option is otherwise cancelled pursuant to the provisions of the Plan.
 
    
 
 
a.    Termination As a Result of Death. If your employment terminates by reason of your death at a time when your employment could not otherwise have been terminated for Cause (defined below), then your estate or your beneficiary, or such other person or persons as may acquire your rights under this Option by will or by the laws of

 

 

     
 
 
      descent and distribution, may exercise the vested portion of this Option until the first anniversary of such termination of employment.
 
    
 
 
b.    Termination As a Result of Disability. If your employment terminates by reason of your disability (within the meaning of Code Section 22(e)(3)) as determined by the Committee, at a time when your employment could not otherwise have been terminated for Cause, then you may exercise the vested portion of this Option until the date that is twelve (12) months after the date of such termination of your employment.
 
    
 
 
c.    Termination for Cause. If your employment is terminated for Cause, this Option (whether vested or unvested) shall be forfeited immediately upon such termination, and you shall be prohibited from exercising your Option as of the date of such termination. In addition, if your termination is without Cause but the Company later learns facts that could have permitted it to terminate your employment for Cause if such facts had been known at the time of your termination, then your Option (whether vested or unvested) shall be forfeited immediately on the date of such determination. For purposes of this Agreement, “Cause” shall have the same meaning as set forth in your employment agreement with the Company, or, if you do not have an employment agreement with the Company, “Cause” shall mean a good faith finding by the Company that you have (i) failed, neglected, or refused to perform your lawful employment duties as from time to time assigned to you (other than due to disability); (ii) committed any willful, intentional, or grossly negligent act having the effect of materially injuring the interest, business, or reputation of the Company or any Affiliate; (iii) violated or failed to comply in any material respect with the Company’s published rules, regulations, or policies, as in effect or amended from time to time; (iv) committed an act constituting a felony or misdemeanor involving moral turpitude, fraud, theft, or dishonesty; (v) misappropriated or embezzled any property of the Company or an Affiliate (whether or not an act constituting a felony or misdemeanor); or (vi) breached any material provision of any applicable confidentiality, non-compete, non-solicit, general release, covenant not-to-sue, or other agreement with the Company or an Affiliate.
 
    
 
 
      The Committee may suspend your right to exercise this Option pending its determination of whether your employment will be terminated (or could have been terminated) for Cause.
 
    
 
 
d.    Termination Other than for Cause or As a Result of Death or Disability. If your employment is terminated other than for Cause or other than as a result of your death or Disability, then you may exercise the vested portion of this Option until the date that is ninety (90) days after the date of such termination.

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Manner of Exercise:
  You may exercise this Option only it has not been forfeited or has not otherwise expired, and only to the extent this Option has vested. To exercise this Option, you must complete the Notice of Stock Option Exercise in the form attached hereto as Exhibit A (the “Notice of Stock Option Exercise”) and return it to the address indicated on that form. The Notice of Stock Option Exercise will become effective upon its receipt by the Company. If your beneficiary or heir, or such other person or persons as may acquire your rights under this Option by will or by the laws of descent and distribution, wishes to exercise this Option after your death, such person must contact the Company and prove to the Company’s satisfaction that such person has the right and is entitled to exercise this Option. Your ability to exercise this Option may be restricted by the Company if required by applicable law.
 
    
 
  To exercise this Option, your Notice of Stock Option Exercise must be accompanied by payment of the exercise price through any of the following modes of payment: (i) in cash; (ii) pursuant to a Regulation T program if the shares of Common Stock are publicly traded; (iii) by tendering previously acquired shares of Common Stock which have been held for at least six (6) months and which have a Fair Market Value at the time of exercise that is equal to the total exercise price of this Option, if approved by the Board; (iv) through a cashless exercise procedure established by the Committee, if any; or (v) any combination of the modes of payment described in clauses (i)-(iv).
 
    
Transferability:
  You may not transfer or assign this Option for any reason, other than as set forth in the Plan. Any attempted transfer or assignment of this Option, other than as set forth in the Plan, will be null and void.
 
    
Market Stand-Off:
  In connection with any underwritten public offering by the Company of its equity securities pursuant to an effective registration statement filed under the Securities Act of 1933, as amended (the “Securities Act”), including the Company’s initial public offering, you agree that you shall not directly or indirectly sell, make any short sale of, loan, hypothecate, pledge, offer, grant or sell any option or other contract for the purchase of, purchase any option or other contract for the sale of, or otherwise dispose of or transfer or agree to engage in any of the foregoing transactions with respect to, any Shares acquired under this Option without the prior written consent of the Company and the Company’s underwriters. Such restriction shall be in effect for such period of time following the date of the final prospectus for the offering as may be requested by the Company or such underwriters. In no event, however, shall such period exceed one hundred eighty (180) days.
 
    
Restrictions on Exercise, Issuance and Transfer of Shares:
 
a.    General. No individual may exercise the Option, and no shares of Common Stock subject to this Option will be issued, unless and until the Company has determined to its satisfaction that such exercise and issuance will comply with all applicable federal and state securities laws, rules and regulations of the Securities and Exchange Commission, rules of any stock exchange on which shares of Common Stock of the Company may then be traded, or any other applicable laws. In addition, if required by underwriters for the Company, you agree to enter into a lock-up agreement with respect

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      to any shares of Common Stock acquired or to be acquired under this Option.
 
    
 
 
b.    Securities Laws. You acknowledge that you are acquiring this Option, and the right to purchase the shares of Common Stock subject to this Option, for investment purposes only and not with a view toward resale or other distribution thereof to the public which would be in violation of the Securities Act. You agree and acknowledge with respect to any shares of Common Stock that have not been registered under the Securities Act, that: (i) you will not sell or otherwise dispose of such shares of Common Stock, except as permitted pursuant to a registration statement declared effective under the Securities Act and qualified under any applicable state securities laws, or in a transaction which in the opinion of counsel for the Company is exempt from such required registration, and (ii) that a legend containing a statement to such effect will be placed on the certificates evidencing such shares of Common Stock. Further, as additional conditions to the issuance of the shares of Common Stock subject to this Option, you agree (with such agreement being binding upon any of your beneficiaries, heirs, legatees and/or legal representatives) to do the following prior to any issuance of such shares of Common Stock: (i) to execute and deliver to the Company such investment representations and warranties as are required by the Company; (ii) to enter into a restrictive stock transfer agreement if required by the Board; and (iii) to take or refrain from taking such other actions as counsel for the Company may deem necessary or appropriate for compliance with the Securities Act, and any other applicable federal or state securities laws, regardless of whether the shares of Common Stock have at that time been registered under the Securities Act, or otherwise qualified under any applicable state securities laws.
 
    
Miscellaneous:
 
•    This Option Agreement may be amended only by written consent signed by both you and the Company, unless the amendment is not to your detriment. Notwithstanding the foregoing, this Option Agreement may be amended or terminated by the Board or the Committee without your consent in accordance with the provisions of the Plan.
 
    
 
 
•    The failure of the Company to enforce any provision of this Option Agreement at any time shall in no way constitute a waiver of such provision or of any other provision hereof.
 
    
 
 
•    In the event any provision of this Option Agreement is held illegal or invalid for any reason, such illegality or invalidity shall not affect the legality or validity of the remaining provisions of this Option Agreement, and this Option Agreement shall be construed and enforced as if the illegal or invalid provision had not been included in the Option Agreement.

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•    As a condition to the grant of this Option, you agree (with such agreement being binding upon your legal representatives, guardians, legatees or beneficiaries) that this Option Agreement shall be interpreted by the Committee and that any interpretation by the Committee of the terms of this Option Agreement or the Plan, and any determination made by the Committee pursuant to this Option Agreement or the Plan, shall be final, binding and conclusive.
 
    
 
 
•    This Option Agreement may be executed in counterparts.
BY SIGNING BELOW AND AGREEING TO THIS STOCK OPTION AWARD AGREEMENT, YOU AGREE TO ALL OF THE TERMS
AND CONDITIONS DESCRIBED HEREIN AND IN THE PLAN. YOU ALSO ACKNOWLEDGE RECEIPT OF A COPY OF THE
PLAN.
         
 
       
Authorized Officer
  Optionee    

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EXHIBIT A
IMPERIAL HOLDINGS, INC.
2010 OMNIBUS INCENTIVE PLAN
NOTICE OF STOCK OPTION EXERCISE
Your completed form should be delivered to:                                         ,                                         . Phone:                                         
Fax:                                                             . Incomplete forms may cause a delay in processing your option exercise.
OPTIONEE INFORMATION
Please complete the following. PLEASE WRITE YOUR FULL LEGAL NAME SINCE THIS NAME MAY BE ON YOUR STOCK CERTIFICATE.
Name:  
 
Street Address:  
 
                         
City:
      State:           Zip Code:    
 
                       
Work Phone #: (                    ) —                      —                      Home Phone #: (                    ) —                      —                     
Social Security #:                      —                      —                     
DESCRIPTION OF OPTION(S) BEING EXERCISED
Please complete the following for each option that you wish to exercise.
                                 
                            Total Exercise Price  
    Type of             Number of     (multiply Exercise Price  
    Option             Option Shares     Per Share by Number of  
    (specify ISO     Exercise Price     Being     Option Shares Being  
Grant Date   or NQSO)     Per Share     Purchased*     Purchased)  
 
           $               $    
 
           $               $    
 
           $               $    
 
           $               $    
 
           $               $    
Aggregate Exercise Price
   $    

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*   Must be a whole number only. Exercise of fractional Option Shares is not permitted.
METHOD OF PAYMENT OF OPTION EXERCISE PRICE
Please select only one:
o   Cash Exercise. I am enclosing a check or money order payable to “Imperial Holdings, Inc.” for the Aggregate Exercise Price.
 
o   Cashless Exercise. I am exercising the Option pursuant to the cashless exercise provisions provided for by the Company. The Company will withhold from the Shares otherwise issuable upon exercise a whole number of shares with a Fair Market Value equal to (or less than) the Aggregate Exercise Price, and will then issue the net number of remaining Shares to me. If the whole number of Shares to be withheld does not exactly equal my Aggregate Exercise Price, then I will provide the Company with a check or money order payable to “Imperial Holdings, Inc.” for the shortfall. I understand that the Company will not process my option exercise until it receives the check or money order covering the shortfall in the exercise price.
CERTIFICATE INSTRUCTIONS
Please select only one.
Name(s) in which the certificate for the purchased shares will be issued:
o   In my name only
 
o   In the names of my spouse and myself as community property
 
o   In the names of my spouse and myself as joint tenants with the rights of survivorship
Spouse’s name (if applicable):  
 
The certificate for the purchased shares should be sent to the following address (complete only if to be sent to a different address than specified in Part 1):
Street Address:  
 
                         
City:
      State:           Zip Code:    
 
                       
METHOD OF SATISFYING TAX WITHHOLDING OBLIGATION
Please select only one. You do not need to complete this Part if you are exercising incentive stock options (ISOs) or if you are a non-employee director or consultant.
o   Cash. I am enclosing a check or money order payable to “Imperial Holdings, Inc.” for the withholding tax amount.
 
o   Tax Amount Request. Please notify me of the amount of withholding taxes that will be due as a result of this option exercise. I understand that, after receiving notification of the withholding tax amount, I must immediately remit to the Company a check or money order payable to “Imperial Holdings, Inc.” for that amount. I understand that the Company will not process my option exercise until it receives the check or money order covering the withholding tax amount due.

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ACKNOWLEDGEMENT AND SIGNATURE
Prior to receipt of the Shares exercised in accordance with this Notice, I acknowledge that I have received a copy of the Plan and the prospectus for the Plan.
                 
Signature:
          Date:    
 
               
FOR COMPANY USE ONLY:
Received by the Company on                                                                                                                          .

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