exv10w33






Exhibit 10.33




FORTEGRA FINANCIAL CORPORATION

EMPLOYEE STOCK PURCHASE PLAN



1. Purpose of the Plan.




The Company wishes to attract, retain and motivate employees of the Company and its
Subsidiaries and to promote the success of the Company’s business by providing employees with a
convenient method of acquiring a proprietary interest in the long-term success of the Company.


2. Section 423 of the Code.




The Plan is intended to qualify as an “employee stock purchase plan” within the meaning of
Section 423 of the Code or any successor section thereto. Any provision of the Plan that is
inconsistent with Section 423 of the Code or any successor provision shall, without further act or
amendment, be reformed to comply with the requirements of Section 423. This Section 2
shall take precedence over all other provisions in the Plan.


3. Definitions.



When used herein, the following terms shall have the respective meanings set forth below:



“Board” means the Board of Directors of the Company.



“Code” means the Internal Revenue Code of 1986, as amended.



“Committee” means the Compensation Committee of the Board or any other committee designated by the
Board to administer the Plan pursuant to Section 5 hereof.



“Company” means Fortegra Financial Corporation, a Delaware corporation.



“Designated Subsidiary” means a Subsidiary designated by the Committee to participate in the Plan.



“Effective Date” means [___], 2010.



“Eligible Compensation” for any pay period means, unless otherwise determined by the Committee, the
amount of a Participant’s base salary or regular wages for such period. Eligible Compensation does
not include, without limitation, any payments for reimbursement of expenses and other non-basic
payments, unless otherwise determined by the Committee.



“Eligible Employee” means an employee eligible to participate in the Plan pursuant to Section
6 hereof.



“Fair Market Value” per Share as of a particular date means (i) if Shares are then listed on a
recognized national stock exchange, the closing price per Share on the exchange for the last
preceding date on which there was a sale of Shares on such exchange, as determined by the
Committee, (ii) if Shares are not then listed on a national stock exchange but are then traded on
an established over-the-counter market, the average of the closing bid and ask prices for such
Shares in such over-the-counter market for the last preceding date on which there was a sale of
such Shares in such market, as determined by the Committee, or (iii) if Shares are not then listed
on a national exchange or traded on an over-the-counter market, such value as the Committee in its
discretion may in good faith determine; provided, that, if such shares are listed or traded in
accordance with clause (i) or (ii) above, but the shares have not been traded for ten trading days
the Committee may make a discretionary determination in accordance with clause (iii) above.







 









 











“Maximum Share Amount” means, subject to Section 423 of the Code, the maximum number of Shares that
a Participant may purchase in any given Offering Period or for any given year, which shall be
determined by the Committee; provided, however, an employee shall not have the
right to purchase Shares under this Plan (or under any other “employee stock purchase plan” within
the meaning of Section 423(b) of the Code, of the Company or any of its Subsidiaries) at a rate
which in the aggregate exceeds $25,000 of the Fair Market Value of such Shares (as determined as of
each Offering Date) for each calendar year; provided, further, the maximum number
of Shares that a Participant may purchase for any given Offering Period is 3,500 Shares.







“Offering Date” means January 1st and July 1st of each year, unless otherwise
provided by the Committee.



“Offering Period” means the six month period commencing on each Offering Date and ending on the
next succeeding Purchase Date, unless otherwise provided by the Committee.



“Participant” means an Eligible Employee for whom payroll deductions are currently being made.



“Payroll Account” means an account maintained by the Company with respect to each Participant as
contemplated by Section 7 hereof.



“Plan” means this Fortegra Financial Corporation Employee Stock Purchase Plan, as it may from time
to time be amended.



“Purchase Date” means the last trading day of each Offering Period, unless otherwise provided by
the Committee.



“Purchase Price” means the price per Share as contemplated by Section 8 hereof.



“Shares” means shares of common stock of the Company, par value $0.01 per share, or any other class
or kind of shares resulting from the application of Section 14 hereof.



“Stock Account” means an account maintained by a brokerage firm selected by the Company with
respect to each Participant as contemplated by Section 9 hereof.



“Subsidiary” means any corporation that is a “subsidiary corporation” with respect to the Company
under Section 424(f) of the Code.



4. Shares Reserved for the Plan.







Subject to the provisions of Section 14 hereof, there shall be reserved for issuance and
purchase by Participants under the Plan an aggregate of 1,000,000 Shares. Shares subject to the Plan
may be Shares now or hereafter authorized but unissued, or Shares that were once issued and
subsequently reacquired by the Company. If and to the extent that any right to purchase reserved
Shares shall not be exercised by any employee for any reason or if such right to purchase shall
terminate as provided herein, Shares that have not been so purchased hereunder shall again become
available for the purposes of the Plan unless the Plan has been terminated.







5. Administration of the Plan.



The Plan shall be administered by the Committee, which shall have full and exclusive power to
interpret and administer the Plan. The Committee shall have full and exclusive power to adopt
rules, forms, instruments, and guidelines for administering the Plan as the Committee deems
necessary or proper. All






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actions taken and all interpretations and determinations made by the Committee shall be final and
binding upon the Participants, the Company, and all other interested individuals. The acts of a
majority of the members present at any meeting of the Committee at which a quorum is present, or
acts approved in writing by a majority of the entire Committee, shall be the acts of the Committee
for purposes of the Plan. No member of the Committee may act as to matters under the Plan
specifically relating to such member. The Board shall consider the rules of Rule 16b-3 promulgated
under the Securities Exchange Act of 1934, as amended, in connection with any appointment to the
Committee.



The Committee may delegate to one or more of its members, one or more officers of the Company or
any Designated Subsidiary, and one or more agents or advisors such administrative duties or powers
as it may deem advisable; provided, further, that no delegation shall be permitted under the Plan
that is prohibited by applicable law.



The Committee may impose reasonable administrative and brokerage fees on Participants to defray the
cost of operating the Plan, which shall in no event exceed the actual administrative and brokerage
costs of the Plan.



6. Eligible Employees.



All employees of the Company and each Designated Subsidiary shall be Eligible Employees, provided
that in no event shall an employee be an Eligible Employee if, immediately after the grant, such
employee (or any other person whose share would be attributed to such employee pursuant to Section
424(d) of the Code) would own capital stock and/or hold outstanding rights to purchase shares
possessing five percent or more of the total combined voting power or value of all classes of
shares of the Company or of any related Company, as determined pursuant to Section 423(b)(3) of the
Code.



Notwithstanding the foregoing, the Committee shall have the discretion to exclude from the Plan one
or more of the following categories of employees: (i) highly compensated employees within the
meaning of Section 423(b)(4)(D) of the Code; (ii) employees who have not been continuously employed
by the Company or a Designated Subsidiary for a period of less than two years; (iii) employees who
customarily work less than twenty hours per week; or (iv) employees whose customary employment is
for not more than five months in any calendar year.



An employee of a Designated Subsidiary which ceases to be a Designated Subsidiary shall,
automatically and without any further action, cease to be an Eligible Employee.



7. Election to Participate and Payroll Deductions.



Participation in the Plan is voluntary with respect to each Offering Period. To participate in an
Offering Period an Eligible Employee must complete a written enrollment form provided by the
Company which authorizes payroll deductions. Each Eligible Employee may elect a payroll deduction
of 1% to 10% of Eligible Compensation from each paycheck paid during the Offering Period, in
increments of 1% (i.e., 1%, 2%, 3%, etc.), unless otherwise provided by the Committee. A
Participant may elect to change his or her rate of payroll deductions during an Offering Period by
written notice to the Committee in such form as the Committee may require.



All payroll deductions shall be credited, as promptly as practicable, to a notional Payroll Account
in the name of the Participant. All funds held by the Company under the Plan shall not be
segregated from other corporate funds (except that the Company may in its discretion establish
separate bank or investment accounts in its own name) and may be used by the Company for any
corporate purpose. No interest or other earnings shall be credited to any contributions under the
Plan.







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Each Eligible Employee may cancel his or her election to participate in the Plan by written notice
to the Committee in such form and at such times as the Committee may require, and in such case the
entire balance of the Participant’s Payroll Account shall be repaid to such Participant as promptly
as practicable. A Participant’s voluntary withdrawal during an Offering Period shall have no
effect upon such Participant’s eligibility to participate during any other Offering Period under
the Plan, but such Participant shall be required to deliver a new enrollment form in order to
participate during a subsequent Offering Period.



Unless otherwise provided by the Committee, an Eligible Employee who is a Participant immediately
prior to the beginning of an Offering Period will be deemed (i) to have elected to participate for
such Offering Period and (ii) to have authorized the same percentage payroll deduction for such
Offering Period in effect for such Eligible Employee as that in effect on the day before such
Offering Period.



8. Purchase Price.




The Purchase Price for each Share sold in any Offering Period shall be, unless otherwise
determined by the Board, equal to 85% of the lesser of (i) the Fair Market Value of a Share on the
first day of the Offering Period and (ii) the Fair Market Value of a Share on the last day of the
Offering Period.


9. Method of Purchase.



As of the Purchase Date, each Participant shall be deemed, without any further action, to have
purchased the number of whole Shares equal to the lesser of (i) the Maximum Share Amount and (ii)
the number determined by dividing the amount accumulated in such employee’s Payroll Account during
such Offering Period by the Purchase Price.



All Shares purchased as provided in the foregoing paragraph shall be initially maintained in
separate Stock Accounts for the Participants at a brokerage firm selected by, and pursuant to an
arrangement with, the Company. The Company shall deliver the shares to the Stock Account as soon
as reasonably practicable after the close of the applicable Purchase Date. A Participant shall be
free to undertake a disposition (as that term is defined in Section 424 of the Code) of the Shares
in his or her Stock Account at any time, whether by sale, exchange, gift or other transfer of legal
title, but, in the absence of such a disposition of such Shares, unless otherwise provided by the
Committee, the Shares must remain in the Participant’s Stock Account at the brokerage firm so
selected until the holding period set forth in Section 423(a) of the Code has been satisfied. With
respect to those Shares for which the Section 423(a) holding period has been satisfied, the
Participant may, without limitation, move those Shares to another brokerage account of the
Participant’s choosing or request that a stock certificate be issued and delivered to him or her.
The Committee may require, in its sole discretion, that the Participant bear the cost of
transferring such Shares or issuing Shares



If and to the extent provided by the Committee, for so long as such Shares are maintained in Stock
Accounts, all dividends paid with respect to such Shares shall be credited to each Participant’s
Stock Account, and will be automatically reinvested in whole Shares.



Unless otherwise provided by the Committee, in no event shall fractional Shares be purchased
hereunder, and any remaining cash in a Participant’s Payroll Account resulting from such failure to
invest in fractional Shares shall remain in the Payroll Account for use in the next Offering
Period; provided, however, if the Participant is not an active Participant for such next Offering
Period, such remaining cash shall be returned to the Participant as soon as practicable, but not
later than thirty days, following such termination.







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10. Termination of Participation or Employment.



The right to participate in the Plan shall terminate immediately when a Participant ceases to be
employed by the Company or its Designated Subsidiaries for any reason (including death or
disability) or a Participant otherwise becomes ineligible. At such time the Company shall
distribute to such former Participant (or, in the event of death, to his or her estate) the balance
in his or her Payroll Account as soon as practicable, but not later than thirty days, following
such termination.



11. Title of Stock Accounts.



Each Stock Account shall be in the name of the Participant or, if permitted by the Committee and
the Participant so indicates on the appropriate form, in his or her name jointly with another
person, with right of survivorship. If permitted by the Committee, a Participant who is a resident
of a jurisdiction that does not recognize such a joint tenancy may have a Stock Account in his or
her name as tenant in common with another person without right of survivorship.



12. Rights as a Stockholder.



At the time funds from a Participant’s Payroll Account are used to purchase Shares, he or she shall
have all of the rights and privileges of a stockholder of the Company with respect to the purchased
Shares.



13. Rights Not Transferable.



Rights granted under this Plan are not transferable by a Participant other than by will or the laws
of descent and distribution. Any such attempted transfer, assignment, pledge or other disposition
shall be of no force or effect. During a Participant’s lifetime rights granted under this Plan
shall be exercisable only by the Participant.



14. Adjustment Upon Certain Events.



If (i) the Company shall at any time be involved in a merger, consolidation, dissolution,
liquidation, reorganization, exchange of shares, sale of all or substantially all of the assets or
stock of the Company or any Subsidiary or a transaction similar thereto, (ii) any stock dividend,
stock split, reverse stock split, stock combination, reclassification, recapitalization or other
similar change in the capital structure of the Company, or any distribution to holders of Common
Stock (other than regular cash dividends), shall occur or (iii) any other event shall occur which
in the judgment of the Committee necessitates action by way of adjusting the number or kind of
Shares, or both, which thereafter may be sold under the Plan, then the Committee shall take any
such action as in its judgment shall be necessary to preserve the Participants’ rights
substantially proportionate to the rights existing prior to such event, and to maintain the
continuing availability of Shares under Section 4 in a manner consistent with the intent
hereof, including, without limitation, adjustments in (x) the number and kind of shares subject to
the Plan, and (y) the Purchase Price of such shares under the Plan.



Notwithstanding any other provision of the Plan, if the Common Stock ceases to be listed or traded,
as applicable, on a national stock exchange or over-the-counter market, then, in the discretion of
the Committee, (i) the balance in the Participant’s Payroll Account not theretofore invested may be
refunded to the Participant, and such Participant shall have no further rights or benefits under
the Plan, (ii) an amount equal to the product of the Fair Market Value of a Share on the date of
such event multiplied by the number of Shares such Participant would have been able to purchase
with the balance of his or her Payroll Account on such event if it were a Purchase Date may be paid
to the Participant, and such Participant shall have no further rights or benefits under the Plan,
or (iii) the Plan may be continued without regard to the application of this sentence.







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15. Amendment and Termination.



The Board may at any time amend the Plan in any respect; provided, however, that the Plan may not
be amended in any way that would cause, if such amendment were not approved by the Company’s
stockholders, to fail to comply with (i) the requirements for employee stock purchase plans under
Section 423 of the Code or (ii) any other requirement of applicable law or regulation, unless and
until stockholder approval is obtained.



The Plan and all rights of employees hereunder shall terminate upon the earlier of (i) the tenth
anniversary of the Effective Date, (ii) the date on which the shares available under the Plan, as
adjusted from time to time, are exhausted, or (iii) the termination of the Plan by the Board as
specified below. The Board may terminate the Plan as of any date. The date of termination of the
Plan may be deemed a Purchase Date, in the discretion of the Committee. If on such Purchase Date
the Participants in the aggregate have the right to purchase more Shares of Common Stock than are
available for purchase under the Plan, each Participant shall be eligible to purchase a reduced
number of Shares of Common Stock on a pro rata basis, and any excess payroll deductions shall be
returned to the Participants, without interest. No termination of the Plan shall materially alter
or diminish any rights outstanding under the Plan at the time of such termination.



Upon termination of the Plan all amounts not previously applied to the purchase of Shares shall be
refunded to the Participants.



16 Governmental Regulations; Further Assurances.



The Plan, and the grant and exercise of the rights to purchase Shares hereunder, and the Company’s
obligation to sell and deliver Shares upon the exercise of rights to purchase Shares, shall be
subject to all applicable federal, state and foreign laws, rules and regulations, and to such
approvals by any regulatory or governmental agency as may be required. The Company shall not be
required to issue or deliver any certificates for Shares prior to the completion of any
registration or qualification of such Shares under, and the obtaining of any approval under or
compliance with, any state or federal law, or any ruling or regulation of any government body which
the Company shall, in its sole discretion, determine to be necessary or advisable. Certificates
for Shares issued hereunder may be legended as the Committee may deem appropriate.



Each Participant shall take whatever additional actions and execute whatever additional documents
the Committee may in its reasonable judgment deem necessary or advisable in order to carry out or
effect one or more of the obligations or restrictions imposed on the Participants pursuant to the
Plan.



17. Indemnification of Committee.



The Company shall indemnify and hold harmless the members of the Board and the members of the
Committee from and against any and all liabilities, costs and expenses incurred by such persons as
a result of any act or omission in connection with the performance of such person’s duties,
responsibilities and obligations hereunder if such person acts in good faith and in a manner that
he or she reasonably believes to be in, or not opposed to, the best interests of the Company, to
the maximum extent permitted by law.



18. Withholding; Disqualifying Disposition.



Notwithstanding any other provision of the Plan, the Company or the Designated Company shall deduct
from all Payroll Accounts paid under the Plan all federal, state, foreign, local and other taxes
required by law to be withheld with respect to such payments.







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If Shares acquired under the Plan are disposed of in a disposition that does not satisfy the
holding period requirements of Section 423(a) of the Code, such Participant shall notify the
Company in writing as soon as practicable thereafter of the date and terms of such disposition and,
if the Company (or any Designated Subsidiary) thereupon has a tax-withholding obligation, shall pay
to the Company (or such Designated Subsidiary) an amount equal to any withholding tax the Company
(or Designated Subsidiary) is required to pay as a result of the disqualifying disposition or
satisfy such other arrangements as may be permitted by the Committee.



19. Notices.



All notices under the Plan shall be in writing (which for these purposes shall include reasonably
acceptable means of electronic transmission), and if to the Company, shall be delivered to the
Board or mailed to its principal office, addressed to the attention of the Board of Directors; and
if to a Participant, shall be delivered personally or mailed to such Participant at the address
appearing in the records of the Company.



20. No Right to Continued Employment.



The Plan and any right to purchase Shares granted hereunder shall not confer upon any employee any
right with respect to continued employment by the Company or any Designated Subsidiary, nor shall
they restrict or interfere in any way with the right of the Company or any Designated Subsidiary by
which an employee is employed to terminate his or her employment at any time.



21. Captions.



The use of captions in the Plan is for convenience. The captions are not intended to and do not
provide substantive rights.



22. Effective Date of the Plan.



The Plan shall be effective as of the Effective Date, provided that the Plan is approved by
stockholders of the Company prior thereto.



23. Governing Law.



The provisions of the Plan shall be governed by and construed in accordance with the laws of the
State of Delaware, excluding any conflicts or choice of law rule or principle that might otherwise
refer construction or interpretation of the Plan to the substantive law of another jurisdiction.




*      *      *




     This Plan was duly adopted and approved by the Board of Directors of the Company by unanimous
written consent on [___].




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