exv10w1



 






Exhibit 10.1




CAPITALSOURCE INC.

SECOND AMENDED AND RESTATED EQUITY INCENTIVE PLAN




FORM OF NON-QUALIFIED OPTION AGREEMENT




	 	 	 	 	 
	Non-qualified
Option	 	This option is not intended to be an incentive option
under Section 422 of the Internal Revenue Code and
will be interpreted accordingly.
	 
	 	 	 	 
	Vesting	 	This option is exercisable only as to the vested
portion of the shares of Stock (the “Shares”) shown
in the notice of grant of stock options (the “Grant
Notice”). The option may be exercised, in whole or in
part, to purchase a whole number of vested Shares of
not less than 100 Shares, unless the number of vested
Shares purchased is the total number available for
purchase under the option, by following the
procedures set forth in the Plan and below in this
Agreement.
	 
	 	 	 	 
	 	 	No additional Shares will vest after your Service has
terminated for any reason, except as provided below
in the case of your Retirement.
	 
	 	 	 	 
	 	 	Notwithstanding the vesting schedule set forth in the
Grant Notice, in the event of a Change of Control (as
defined in this Agreement), the option Shares will
become 100% vested upon: (i) your Involuntary
Termination within 24 months following the Change of
Control or (ii) the occurrence of a Change of Control
if the option is not assumed, or an equivalent option
substituted for the option, by the Company or its
successor.
	 
	 	 	 	 
	 	 	For purposes of this Agreement:


	 
	 	 	 	 
	

	 	•
	 	“Change of Control” means (i) the dissolution
or liquidation of the Company or a merger,
consolidation, or reorganization of the Company with
one or more other entities in which the Company is
not the surviving entity, (ii) a sale of
substantially all of the assets of the Company to
another person or entity, or (iii) any transaction
which results in any person or entity (other than
persons who are shareholders or Affiliates
immediately prior to the transaction) owning 50% or
more of the combined voting power of all classes of
Shares of the Company or its successor.
Notwithstanding the foregoing a transaction described
in clause (i) or clause (ii) of the preceding
sentence shall not be a Change of Control if persons
who are shareholders of the Company or its Affiliates
immediately prior to the transaction continue to own
50% or more of the combined voting power of the
Company or the resulting entity immediately following
the transaction.
	 
	 	 	 	 
	

	 	•
	 	“Involuntary Termination” means termination
of your Service by reason of (i) your involuntary
dismissal by the Company for reasons other than
Cause; or (ii) your voluntary resignation following
(x) a change in your position with the Company which
materially reduces your duties and responsibilities
or the level of management to which you report, (y) a
material reduction in your level of compensation
(including base salary, fringe benefits and target
bonus) or (z) a relocation of your place of
employment by more than fifty (50) miles, provided
and only if such change, reduction or relation is
brought about by the Company without your consent.
	 
	 	 	 	 
	Term	 	Your option will expire in any event on the
Expiration Date shown on the Grant Notice. Your
option will expire earlier if your Service
terminates, as described below.






 









 






	 	 	 	 	 
	Regular
Termination	 	If your Service terminates for any reason, other than
death, Retirement, Disability or Cause, then the
unvested portion of your option shall expire
immediately and the vested portion of your option
will expire at the close of business at Company
headquarters on the 90th day after your termination
date.
	 
	 	 	 	 
	Termination for
Cause	 	If your Service is terminated for Cause, then you
shall immediately forfeit all rights to your option
and the option shall immediately expire.
	 
	 	 	 	 
	Death	 	If your Service terminates because of your death,
then your option will expire at the close of business
at Company headquarters on the date twelve (12)
months after the date of your death. During that
twelve month period, your estate or heirs may
exercise the vested portion of your option. If you
have been employed by the Company for at least one
(1) year at the time your Service terminates because
of your death, then your option will be fully vested
as of the date of your termination due to your death.
	 
	 	 	 	 
	 	 	In addition, if you die during the 90-day period
described in connection with a regular termination
(i.e., a termination of your Service not on account
of your death, Disability or Cause), and a vested
portion of your option has not yet been exercised,
then your option will instead expire on the date
twelve (12) months after your termination date. In
such a case, during the period following your death
up to the date twelve (12) months after your
termination date, your estate or heirs may exercise
the vested portion of your option.
	 
	 	 	 	 
	Retirement	 	If your Service terminates because of your Retirement
(as defined in this section), then your option will
continue to vest and will expire at the close of
business at Company headquarters on the date three
(3) years after your termination date; provided,
that, you will automatically forfeit the unexercised
portion of the option if the Company determines that
you have failed to comply with the terms of any
non-competition, non-solicitation, non-disclosure,
non-disparagement or other similar agreement between
you and the Company or its Affiliate during such
three (3) year period. For the purpose of this
Agreement, “Retirement” means your voluntary
termination of Service at or after age 55 with the
sum of your age and years of service equal to 65 or
greater.
	 
	 	 	 	 
	Disability	 	If your Service terminates because of your
Disability, then your option will expire at the close
of business at Company headquarters on the date
twelve (12) months after your termination date. If
you have been employed by the Company for at least
one (1) year at the time your Service terminates
because of your Disability, then your option will be
fully vested as of the date of your termination due
to your Disability.
	 
	 	 	 	 
	Forfeiture
of Rights	 	If you should take actions in violation or breach of
or in conflict with any non-competition agreement,
any agreement prohibiting solicitation of employees
or clients of the Company or any Affiliate thereof or
any confidentiality obligation with respect to the
Company or any Affiliate thereof or otherwise in
competition with the Company or any Affiliate
thereof, the Company has the right to cause an
immediate forfeiture of your rights to this option
and the option shall immediately expire.
	 
	 	 	 	 
	Leaves of Absence	 	For purposes of this option, your Service does not
terminate when you go on a bona fide employee leave
of absence that was approved by the Company in
writing, if the terms of the leave provide for
continued Service crediting, or when continued
Service crediting is required by applicable law.
Your Service terminates in any event when the
approved leave ends unless you immediately return to
active employee work.






 









 






	 	 	 	 	 
	 	 	The Company determines, in its sole discretion, which
leaves count for this purpose, and when your Service
terminates for all purposes under the Plan.
	 
	 	 	 	 
	Notice of Exercise	 	When you wish to exercise this option, you must
notify the Company by filing the proper “Notice of
Exercise” form at the address given on the form.
Your notice must specify how many Shares you wish to
purchase (in a parcel of at least 100 Shares
generally). Your notice must also specify how your
Shares should be registered (in your name only or in
your and your spouse’s names as joint tenants with
right of survivorship). The notice will be effective
when it is received by the Company.
	 
	 	 	 	 
	 	 	If someone else wants to exercise this option after
your death, that person must prove to the Company’s
satisfaction that he or she is entitled to do so.
	 
	 	 	 	 
	Form of Payment	 	When you submit your notice of exercise, you must
include payment of the option price indicated on the
Grant Notice for the Shares you are purchasing.
Payment may be made in one (or a combination) of the
following forms:
	 
	 	 	 	 
	 	 	-      Cash, your personal check, a cashier’s
check, a money order or another cash equivalent
acceptable to the Company.
	 
	 	 	 	 
	 	 	-      Shares which have already been owned by you
for more than six months and which are surrendered to
the Company. The value of the Shares, determined as
of the effective date of the option exercise, will be
applied to the option price.
	 
	 	 	 	 
	 	 	-      To the extent a public market for the
Shares exists as determined by the Company, by
delivery (on a form prescribed by the Company) of an
irrevocable direction to a licensed securities broker
acceptable to the Company to sell Shares and to
deliver all or part of the sale proceeds to the
Company in payment of the aggregate option price and
any withholding taxes.
	 
	 	 	 	 
	Withholding Taxes	 	You will not be allowed to exercise this option
unless you make acceptable arrangements to pay any
withholding or other taxes that may be due as a
result of the option exercise or sale of Shares
acquired under this option. 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
amounts from other payments due to you from the
Company or any Affiliate.
	 
	 	 	 	 
	Transfer of Option	 	During your lifetime:
	 
	 	 	 	 
	

	 	•
	 	only you (or, in the event of your legal
incapacity or incompetency, your guardian or legal
representative) may exercise the option; and
	 
	 	 	 	 
	

	 	•
	 	you cannot transfer or assign this option.
For instance, you may not sell this option or use it
as security for a loan.
	 
	 	 	 	 
	 	 	If you attempt to do any of these things, this option
will immediately become invalid. You may, however,
dispose of this option in your will or it may be
transferred upon your death by the laws of descent
and distribution. Regardless of any marital property
settlement agreement, the Company is not obligated to
honor a notice of exercise from your spouse, nor is
the Company obligated to recognize your spouse’s
interest in your option in any other way.
	 
	 	 	 	 
	 	 	Notwithstanding the restrictions on transfer in this
section of the Agreement, the Board may authorize, in
their sole discretion, the transfer of a vested
option (in whole or in part) to a member of your
immediate family or a trust for the benefit of your
immediate family.






 









 






	 	 	 	 	 
	Retention Rights	 	Neither your option nor this Agreement gives you the
right to be retained by the Company (or any
Affiliate) in any capacity. Unless otherwise
specified in an employment or other agreement between
the Company (or any Affiliate) and you, the Company
(and any Affiliate) reserve the right to terminate
your Service at any time and for any reason.
	 
	 	 	 	 
	Shareholder Rights	 	You, or your estate or heirs, have no rights as a
shareholder of the Company until the Shares have been
issued upon exercise of your option and either a
certificate evidencing your Shares has been issued or
an appropriate entry has been made on the Company’s
books. No adjustments are made for distributions or
other rights if the applicable record date occurs
before your certificate is issued (or an appropriate
book entry is made), except as described in the Plan.
	 
	 	 	 	 
	Adjustments	 	In the event of a split, a distribution or a similar
change in the Shares, the number of Shares covered by
this option and the option price per Share may be
adjusted (and rounded down to the nearest whole
number) pursuant to the Plan. Your option shall be
subject to the terms of the agreement of merger,
liquidation or reorganization in the event the
Company is subject to such corporate activity.
	 
	 	 	 	 
	Applicable Law	 	This Agreement will be interpreted and enforced under
the laws of the State of Delaware, other than any
conflicts or choice of law rule or principle that
might otherwise refer construction or interpretation
of this Agreement to the substantive law of another
jurisdiction.
	 
	 	 	 	 
	The Plan	 	The text of the Plan is incorporated in this
Agreement by reference. Certain capitalized terms
used in this Agreement are defined in the Plan, and
have the meaning set forth in the Plan.
	 
	 	 	 	 
	 	 	This Agreement, the associated Grant Notice and the
Plan constitute the entire understanding between you
and the Company regarding this option. Any prior
agreements, commitments or negotiations concerning
this option are superseded.







By signing the Grant Notice, you agree to all of the terms and conditions described
above, in the Grant Notice and in the Plan.