Attached files
| file | filename |
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| 10-Q - Amtrust Financial Services, Inc. | v190886_10q.htm |
| EX-31.2 - Amtrust Financial Services, Inc. | v190886_ex31-2.htm |
| EX-32.1 - Amtrust Financial Services, Inc. | v190886_ex32-1.htm |
| EX-10.6 - Amtrust Financial Services, Inc. | v190886_ex10-6.htm |
| EX-10.5 - Amtrust Financial Services, Inc. | v190886_ex10-5.htm |
| EX-31.1 - Amtrust Financial Services, Inc. | v190886_ex31-1.htm |
| EX-32.2 - Amtrust Financial Services, Inc. | v190886_ex32-2.htm |
| EX-10.4 - Amtrust Financial Services, Inc. | v190886_ex10-4.htm |
| EX-10.2 - Amtrust Financial Services, Inc. | v190886_ex10-2.htm |
Exhibit
10.3
AMTRUST
FINANCIAL SERVICES, INC.
2010 OMNIBUS INCENTIVE
PLAN
NON-QUALIFIED STOCK OPTION
AGREEMENT
Your
stock option grant by AmTrust Financial Services, Inc. (the “Company”)
is subject to the terms and conditions set forth in (i) this Award
Agreement, and (ii) the AmTrust Financial Services, Inc. 2010 Omnibus
Incentive Plan (the “Plan”)
Unless otherwise defined herein, capitalized terms used in this Agreement are
defined in the Plan, and have the meaning set forth in the Plan.
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Award
of Stock Options
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You
have been granted an Option (the “Option”),
subject to the terms and conditions of this Agreement and the Plan, to
purchase ____________
shares of the Company’s Stock.
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Exercise
Price
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The
exercise price with respect to your Option is $xx.xx per share, such
exercise price payable on terms and conditions and in a form as determined
by the Compensation Committee in its sole discretion consistent with the
terms of the Plan and this Award Agreement.
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Grant
Date
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The
effective date of this grant is ________ ____, 20__.
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Term
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The
term of your Option will expire at the close of business on the 10th
anniversary of the Grant Date. Your Option will expire earlier if your
Employment with the Company terminates, as described below.
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Vesting
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Your
Option shall vest 100% on the first anniversary of the Grant
Date.
This
Option is only exercisable before it expires and then only with respect to
the vested portion of the Option. You may exercise this Option, in whole
or in part, to purchase a whole number of vested shares in accordance with
the Plan and this Agreement.
Except
as provided in this Agreement, or in any other agreement between you and
the Company, no additional Options will vest after your Employment has
terminated.
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Termination of
Employment
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If
your Employment (as defined below) terminates for any reason, other than
death, Disability or Cause, then your Option will expire at the close of
business at Company headquarters on the 90th day after your termination
date (or the next business day if the 90th day after your termination date
falls on a weekend or holiday).
“Employment”
means that you are currently (i) an employee of the Company, (ii) are a
member of the Company’s Board of Directors, or (iii) are otherwise
providing services to the
Company.
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Termination
for Cause
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If
your Employment is terminated for Cause (as defined below), then you shall
immediately forfeit all rights to your Option and the Option shall expire
immediately upon your termination.
For
purposes of this Agreement, “Cause”
shall mean
(a)
willful misconduct or gross negligence;
(b)
conviction of a felony or conviction of a crime involving moral
turpitude;
(c)
any act constituting fraud or the misappropriation or embezzlement of
money or other property of any member of the Company; and
(d)
any willful act or course of conduct constituting an abuse of office or
authority which has a material adverse impact on the Company’s reputation
or financial condition.
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Death
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If
your Employment terminates because of your death, your Option will
automatically vest as to the number of Options that would have vested had
you remained in Employment for the 12-month period immediately following
your death and your Option will expire at the close of business at Company
headquarters on the date 12 months after the date of death (or the
next business day if the date 12 months after the date of death falls on a
weekend or holiday).
If
you die during the 90-day period in connection with a regular termination
of Employment described above, and a vested portion of your Option has not
yet been exercised, then your Option will instead expire on the date
12 months after your termination date.
During
the 12 month period above, your estate or heirs may exercise the
vested portion of your Option.
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Disability
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If
your Employment terminates because of your Disability (defined below),
your Option will automatically vest as to the number of Options that would
have vested had you remained in Employment for the 12 month period
immediately following your Disability and your Option will expire at the
close of business at Company headquarters on the date 12 months after
the date of termination (or the next business day if the date 12 months
after the date of termination falls on a weekend or holiday).
For
purposes of this Agreement, “Disability”
shall mean the award holder is unable to perform the duties of their
service (or other services) (i) for a period of 90 consecutive days, or
(ii) any 120 days during any consecutive 12 month
period.
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2
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Termination
without Cause within 12 Months of Change in Control
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If
your Employment with the Company (or any affiliate) is terminated by the
Company without Cause within 12 months following the effective date of a
“Change of Control”, the Board of Directors may accelerate the vesting all
or any portion of your Option.
For
purposes of this Agreement: “Change in
Control” shall mean:
(i)
any “person” (as such term is used in Section 13(d) and 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”), including any syndicate or group deemed to be a “person”
under Section 13(d)(3) of the Exchange Act) other than Barry Zyskind,
George Karfunkel, Michael Karfunkel, any subsidiary or any employee
benefit plan of the Company or a subsidiary or former subsidiary, is or
becomes a beneficial owner, directly or indirectly, of stock of the
Company representing 50% of more of the total voting power of the
Company’s then outstanding stock;
(ii)
a tender offer (for which a filing has been made with the Securities and
Exchange Commission (the “SEC”)
that purports to comply with the requirements of Section 14(d) of the
Exchange Act, and the corresponding SEC rules) is made for the stock of
the Company. In case of a tender offer described in this paragraph (ii),
the “Change of Control” will be deemed to have occurred upon the first to
occur of (A) any time during the offer when the person (using the
definition in (i) above) making the offer owns or has accepted for payment
stock of the Company with 50% or more of the total voting power of the
Company's outstanding stock or (B) three business days before the offer is
to terminate unless the offer is withdrawn first, if the person making the
offer could own, by the terms of the offer plus any shares owned by this
person, stock with 50% or more of the total voting power of the Company's
outstanding stock when the offer terminates; or
(iii) individuals
who were the Board’s nominees for election as directors of the Company
immediately prior to a meeting of the stockholders of the Company
involving a contest for the election of directors shall not constitute a
majority of the Board following the election.
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Notice of
Exercise
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When
you wish to exercise this Option, you must notify the Company in writing.
Such exercise will only become effective upon the Company’s receipt of
such written instructions.
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Recapture
Rights
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In
the event that you violate any of your obligations pursuant to the
Confidentiality, Non-Competition, or Non-Solicitation provisions of this
Agreement, you agree to return, within five days of receipt of written
demand from the Company, any gains you realize from the exercise of all or
any portion of the Option within the 12 months immediately preceding such
violation, and any remaining portion of your Option shall be immediately
forfeited, whether vested or
unvested.
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3
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Confidentiality
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During
your Employment, you will have access to confidential or proprietary data
or information of the Company (and its affiliates) and its
operations. You agree that you will not at any time divulge or
communicate the Confidential Information (defined below) to any person,
nor shall you direct any employee to divulge or communicate to any person
(other than to a person bound by confidentiality obligations similar to
those contained herein and other than as necessary in performing your
duties hereunder), or use to the detriment of the Company (or any of its
affiliates) or for the benefit of any other person, any Confidential
Information. This restriction shall survive your Employment
hereunder, whether by the normal expiration thereof or
otherwise.
The
term “Confidential
Information” shall mean all information, whether or not reduced to
written or recorded form, that is related to the Company and that is not
generally known or accessible to members of the public and/or competitors
of the Company nor intended for general dissemination, whether furnished
by the Company or compiled by the employee, including, without limitation,
relating to the Company’s (or any affiliate’s) financial performance,
customers, existing or proposed future projects, prospects, or business
strategies, personnel information, financial information, customer lists,
supplier lists, trade secrets, information regarding operations, systems,
services, know-how, computer and any other processed or collated data,
computer programs, pricing, marketing and advertising data.
You
understand the Company intends to maintain the confidentiality of the
Confidential Information notwithstanding that employees of the Company may
have free access to the information for the purpose of performing their
duties with the Company, and notwithstanding that employees not expressly
bound by agreements similar to this agreement may have access to such
information for job purposes. You acknowledge that Confidential
Information need not be marked as such to preserve the confidential nature
of the information.
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Non-Competition
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You
acknowledge that (a) in the course of your Employment with the Company and
its affiliates, you have, and will continue to, become familiar with the
Company’s and its affiliates’ trade secrets, methods of doing business,
business plans and other valuable confidential and proprietary information
concerning the Company, its affiliates, their customers and business
partners and that your services have been and will be of special, unique
and extraordinary value to the Company and its affiliates. In
consideration thereof and of this Award, during your Employment with the
Company or an affiliate and for a period of one (1) year thereafter, you
shall not, without the Company’s prior written approval, become engaged,
directly or indirectly, as a director, officer, employee or 5% or more
stockholder or equity interest owner in, partner in, or consultant to, any
business that is directly competitive with the business of the Company (or
any affiliate) in any area or region where the Company (or any affiliate)
conducts business (“Competition”).
Notwithstanding the foregoing, you shall not be deemed to be in
Competition with the Company if you provide evidence satisfactory to the
Company, in its sole and absolute discretion, that you: (i) work in a
separate division, department or unit that does not compete with the
business of the Company (or any affiliate); and (ii) will not have contact
with the division, department or unit that does compete with the business
of the Company (or any affiliate). If you received your Option grant
as a non-employee member of the Company’s Board of Directors, this
provision will not apply to you unless your Employment is terminated for
Cause (as defined above) or for cause pursuant to the Company’s
Certificate of Incorporation.
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4
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Non-Solicitation
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During
Employment and for a period of two (2) years thereafter, you shall not,
directly or indirectly, on your own behalf or on behalf of any other
person: (a) induce or attempt to induce any agent, affinity group or
policyholder of the Company (or any affiliate), or any prior agent,
affinity group or policyholder that was an agent, affinity group or
policyholder within twelve (12) months of such contact, to withdraw,
decrease or cancel its business with the Company (or any affiliate) or
otherwise terminate any written or oral agreement or understanding or
other relationship with the Company (or any affiliate); (b) solicit the
business of any customer of the Company (or any affiliate), or any prior
agent, affinity group or policyholder that was an agent, affinity group or
policyholder within twelve (12) months of such contact, to the extent the
business solicited is similar to, or competitive with, the business of the
Company (or any affiliate); (c) solicit or attempt to solicit, or hire or
attempt to hire, any person who is an employee, individual consultant or
independent contractor of the Company (or any affiliate), or any prior
employee, individual consultant or independent contractor that was an
employee, consultant or independent contractor within twelve (12) months
of such contact; or (d) induce or attempt to induce any person who is an
employee, individual consultant or independent contractor of the Company
(or any affiliate) to terminate or limit his or her employment or other
relationship with the Company (or any affiliate), or any prior employee,
individual consultant or independent contractor that was an employee,
individual consultant or independent contractor within twelve (12) months
of such contact.
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Form of
Payment
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Upon
exercise of your Option, you must submit payment of the Option price for
the shares you are purchasing. Payment may be made via (i) cash;
(ii) a “cashless” exercise, by which you deliver an irrevocable
direction to a licensed securities broker to sell Stock and to deliver all
or part of the sale proceeds to the Company in payment of the aggregate
Option price and any applicable withholding taxes; or (iii) as
otherwise permitted by the Administrator.
“Administrator”
shall mean one or more officers or employees of the Company to whom the
Committee may delegate the authority execute and distribute Award
Agreements or other documents evidencing or relating to Awards granted by
the Committee under the Plan, to maintain records relating to Awards, to
process or oversee the issuance of Stock under Awards, to interpret and
administer the terms of Awards and to take such other actions as may be
necessary or appropriate for the administration of the Plan and of Awards
under the Plan, other that those specified in Section 3(b)(i) – (iii) of
the Plan.
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Withholding
Taxes
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In
the event that the Company determines that any federal, state, local or
foreign tax or withholding payment is required relating to the exercise or
sale of shares arising from this grant, the Company shall have the right
to require such payments from you, or withhold such minimum statutory
amounts from other payments due to you from the Company. Payment of your
withholding or other taxes may be made via one of the forms of payment for
exercise set forth above, or as otherwise determined by the
Administrator.
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5
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Transfer of
Option
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The
Option is non-transferable by you. Any attempt by you to transfer this
Option will result in the Option becoming invalid, except upon your death
by the laws of descent and distribution.
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No Employment
Rights
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Neither
your Option nor this Agreement give you the right to be retained by the
Company in any capacity and your Employment may be terminated at any time
and for any reason.
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Shareholder
Rights
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You
have no rights as a shareholder of the Company unless and until the Stock
relating to your exercise has been issued (or an appropriate book entry
has been made). Except as described in the Plan, no adjustments are made
for dividends or other rights if the applicable record date occurs before
your Stock is issued (or an appropriate book entry has been
made).
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Applicable
Law
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This
Agreement shall be governed by the laws of the State of Delaware, with
consent to jurisdiction by you in the State of New York.
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Data
Privacy
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To
administer the Plan, the Company may process personal data about you. Such
data includes the information provided in this Agreement, other
appropriate personal and financial data about you such as home address and
business addresses and other contact information, payroll information and
any other information deemed appropriate by the Company to facilitate the
administration of the Plan.
By
accepting this award, you consent to the Company’s processing of such
personal data and the transfer of such data outside the country in which
you work or are employed, including, with respect to non-U.S. residents,
to the United States, to transferees who shall include the Company and
other persons designated by the Company to administer the
Plan.
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Consent to Electronic
Delivery
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Certain
statutory materials relating to the Plan may be delivered to you in
electronic form. By accepting this grant, you consent to electronic
delivery and acknowledge receipt of these materials, including the Plan
and the Plan prospectus.
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Non-Qualified Stock
Option
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This
Option is not intended to be an “incentive stock option” under Section 422
of the Internal Revenue Code of 1986, as amended, and will be interpreted
accordingly.
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This
Agreement is not a stock certificate or a negotiable instrument.
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By accepting your
grant, you agree to the terms and conditions in this Agreement and in the Plan,
and agree that the Plan will control in the event any provision of this
Agreement should appear to be inconsistent with the terms and conditions in the
Plan.
IN
WITNESS WHEREOF, the parties have executed this Agreement on the date and year
below.
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AMTRUST
FINANCIAL SERVICES, INC
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By:
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Its:
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Date:
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NON-EMPLOYEE
DIRECTOR
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Date:
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Name:
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