FGL Fidelity & Guaranty Life (delisted)

As filed with the Securities and Exchange Commission on May 8, 2015

Registration No. 333-            

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

FIDELITY & GUARANTY LIFE

(Exact name of registrant as specified in its charter)

 

 

 

Delaware		46-3489149
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification Number)

 

Two Ruan Center 601 Locust Street, 14th Floor Des Moines, IA 50309		50309
(Address of Registrant’s Principal Executive Office)		(Zip Code)

 

 

Non-Statutory Stock Option Agreement for Compensation Committee Member, dated December 12, 2013,

by and between Fidelity & Guaranty Life and Kostas Cheliotis

Non-Statutory Stock Option Agreement for Compensation Committee Member, dated December 12, 2013,

by and between Fidelity & Guaranty Life and Kevin J. Gregson

Non-Statutory Stock Option Agreement for Compensation Committee Member, dated December 12, 2013,

by and between Fidelity & Guaranty Life and William P. Melchionni

(Full title of the plans)

  

 

Eric L. Marhoun, Esq.

Fidelity & Guaranty Life

Two Ruan Center

601 Locust Street, 14th Floor

Des Moines, IA 50309

(Name, address of agent for service)

(888) 697-5433

(Telephone number, including area code, of agent for service)

 

 

With copy to:

Ethan T. James, Esq.

Debevoise & Plimpton LLP

919 Third Avenue

New York, New York 10022

(212) 909-6000

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer		¨		Accelerated filer		¨
Non-accelerated filer		x  (Do not check if a smaller reporting company)		Smaller reporting company		¨

 

 

CALCULATION OF REGISTRATION FEE

 

Name of Plan		Title of Securities to be registered		Amount to be registered (1)		Proposed maximum offering price per share (5)		Proposed maximum aggregate offering price		Amount of registration fee
Non-Statutory Stock Option Agreement for Compensation Committee Member, dated December 12, 2013, by and between Fidelity & Guaranty Life and Kostas Cheliotis		common shares, par value $0.01 per share		1,136(2)		$17		$19,312		$2.24
Non-Statutory Stock Option Agreement for Compensation Committee Member, dated December 12, 2013, by and between Fidelity & Guaranty Life and Kevin J. Gregson		common shares, par value $0.01 per share		3,408(3)		$17		$57,936		$6.73
Non-Statutory Stock Option Agreement for Compensation Committee Member, dated December 12, 2013, by and between Fidelity & Guaranty Life and William P. Melchionni		common shares, par value $0.01 per share		3,408(4)		$17		$57,936		$6.73

(1)

Pursuant to Rule 416(a) of the Securities Act of 1933, as amended, this Registration Statement shall also cover any additional shares of the Registrant’s common shares that become issuable under the Non-Statutory Stock Option Agreement for Compensation Committee Member, dated December 12, 2013, by and between Fidelity & Guaranty Life and Kostas Cheliotis (the “Cheliotis Option Agreement”), the Non-Statutory Stock Option Agreement for Compensation Committee Member, dated December 12, 2013, by and between Fidelity & Guaranty Life and Kevin J. Gregson (the “Gregson Option Agreement”) and the Non-Statutory Stock Option Agreement for Compensation Committee Member, dated December 12, 2013, by and between Fidelity & Guaranty Life and William P. Melchionni (the “Melchionni Option Agreement”) by reason of any share dividend, share split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of the Registrant’s outstanding common shares.

(2)	The number of shares being registered represents shares issuable upon exercise of non-qualified stock options granted to Kostas Cheliotis on December 12, 2013 pursuant to the Cheliotis Option Agreement.

(3)	The number of shares being registered represents shares issuable upon exercise of non-qualified stock options granted to Kevin J. Gregson on December 12, 2013 pursuant to the Gregson Option Agreement.

(4)	The number of shares being registered represents shares issuable upon exercise of non-qualified stock options granted to William P. Melchionni on December 12, 2013 pursuant to the Melchionni Option Agreement.

(5)	Computed pursuant to Rule 457(h) solely for purpose of determining the registration fee, with respect to the Cheliotis Option Agreement, the Gregson Option Agreement and the Melchionni Option Agreement, the $17 exercise price per share payable under the agreement.

 

 

 

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Part I

Information Required in the Section 10(a) Prospectus

Fidelity & Guaranty Life (the “Company” or “Registrant”) has prepared this Registration Statement in accordance with the requirements of Form S-8 under the Securities Act of 1933, as amended to register (a) 1,136 shares of common stock issuable upon exercise of non-qualified stock options granted to Kostas Cheliotis on December 12, 2013 pursuant to the Non-Statutory Stock Option Agreement for Compensation Committee Member, dated December 12, 2013, by and between the Registrant and Kostas Cheliotis; (b) 3,408 shares of common stock issuable upon exercise of non-qualified stock options granted to Kevin J. Gregson on December 12, 2013 pursuant to the Non-Statutory Stock Option Agreement for Compensation Committee Member, dated December 12, 2013, by and between the Registrant and Kevin J. Gregson; and (c) 3,408 shares of common stock issuable upon exercise of non-qualified stock options granted to William P. Melchionni on December 12, 2013 pursuant to the Non-Statutory Stock Option Agreement for Compensation Committee Member, dated December 12, 2013, by and between the Registrant and William P. Melchionni.

Pursuant to the General Instruction E to Form S-8, this Registration statement incorporates by reference the contents of the Company’s Registration Statement on Form S-8, filed with the Securities and Exchange Commission (“SEC”) on December 13, 2013, except as otherwise updated or modified in this Registration Statement.

Part II

Information Required in the Registration Statement

 

Item 3.

Incorporation of Certain Documents by Reference.

The following documents previously filed with the SEC by the Registrant are incorporated herein by reference:

 

(1)

the Registrant’s Annual Report on Form 10-K (File No. 001-36227) for the fiscal year ended September 30, 2014 filed on November 19, 2014;

 

(2)

the Registrant’s Annual Report on Form 10-K/A (File No. 001-36227) for the fiscal year ended September 30, 2014 filed on December 12, 2014;

 

(3)

All other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Exchange Act since September 30, 2014; and

 

(5)

the description of the Registrant’s common shares contained in the Registrant’s Registration Statement on Form 8-A (File No. 001-36227) filed on December 6, 2013.

 

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All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicate that all securities offered hereby have been sold or that deregister all securities then remaining unsold (excluding any portions of such documents that have been “furnished” but not “filed” for purposes of the Exchange Act), shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the respective dates of filing of such documents.

Any statement contained in this Registration Statement or a document incorporated or deemed to be incorporated by reference in this Registration Statement will be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in this Registration Statement or in any other subsequently filed document that is deemed to be incorporated by reference in this Registration Statement modifies or supersedes the statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

 

Item 8.

Exhibits.

The Exhibits accompanying this Registration Statement are listed on the accompanying Exhibit Index.

 

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SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Des Moines, Iowa on May 8, 2015.

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on May 8, 2015 by the following persons in the capacities and on the dates indicated.

 

Signature				Title
/s/ Christopher J. Littlefield Christopher J. Littlefield				President, Chief Executive Officer and Director (Principal Executive Officer)
/s/ Dennis R. Vigneau Dennis R. Vigneau				Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)
*** Joseph S. Steinberg				Chairman
*** Omar M. Asali				Director
*** William J. Bawden				Director
*** James M. Benson				Director
*** Kevin J. Gregson				Director

 

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*** William P. Melchionni				Director
*** L. John H. Tweedie				Director
*** Thomas A. Williams				Director

 

*** By:		/s/ Eric L. Marhoun
Name:		Eric L. Marhoun
		as Attorney-in-Fact

 

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INDEX TO EXHIBITS

 

Exhibit Number		Description
5.1		Opinion of Debevoise & Plimpton LLP
23.1		Consent of Debevoise & Plimpton LLP (included in Exhibit 5.1)
23.2		Consent of Independent Registered Public Accounting Firm
24.1		Powers of Attorney
99.1.		Non-Statutory Stock Option Agreement for Compensation Committee Member, dated December 12, 2013, by and between Fidelity & Guaranty Life and Kostas Cheliotis
99.2		Non-Statutory Stock Option Agreement for Compensation Committee Member, dated December 12, 2013, by and between Fidelity & Guaranty Life and Kevin J. Gregson
99.3		Non-Statutory Stock Option Agreement for Compensation Committee Member, dated December 12, 2013, by and between Fidelity & Guaranty Life and William P. Melchionni

 

 

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Exhibit 5.1

[Letterhead of Debevoise & Plimpton LLP]

May 8, 2015

Fidelity & Guaranty Life

Two Ruan Center

601 Locust Street, 14th Floor

Des Moines, IA 50309

Attn: Eric L. Marhoun, Esq.

Re: Fidelity & Guaranty Life Registration Statement on Form S-8

Ladies and Gentlemen:

We have acted as counsel to Fidelity & Guaranty Life, a Delaware corporation (the “Company”), in connection with the filing by the Company with the Securities and Exchange Commission of a Registration Statement on Form S-8 (the “Registration Statement”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), of a total of 7,952 shares (the “Shares”) of the Company’s common stock, par value $0.01 per share (the “Common Stock”), including (i) 1,136 shares of Common Stock issuable upon exercise of non-qualified stock options granted to Kostas Cheliotis on December 12, 2013 pursuant to the Non-Statutory Stock Option Agreement for Compensation Committee Member, dated December 12, 2013, by and between the Company and Kostas Cheliotis (the “Cheliotis Option Agreement”); (ii) 3,408 shares of Common Stock issuable upon exercise of non-qualified stock options granted to Kevin J. Gregson on December 12, 2013 pursuant to the Non-Statutory Stock Option Agreement for Compensation Committee Member, dated December 12, 2013, by and between the Company and Kevin J. Gregson (the “Gregson Option Agreement”); and (iii) 3,408 shares of Common Stock issuable upon exercise of non-qualified stock options granted to William P. Melchionni on December 12, 2013 pursuant to the Non-Statutory Stock Option Agreement for Compensation Committee Member, dated December 12, 2013, by and between the Company and William P. Melchionni (the “Melchionni Option Agreement”).

We have examined the originals, or copies certified or otherwise identified to our satisfaction, of the Cheliotis Option Agreement, Gregson Option Agreement, Melchionni Option Agreement and such other corporate records, documents, certificates or other instruments as in our judgment are necessary or appropriate to enable us to render the opinion set forth below. In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies thereof and the authenticity of the originals of such latter documentation.

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Based on the foregoing, we are of the opinion that the Shares, when issued and delivered in accordance with the terms of the Cheliotis Option Agreement, the Gregson Option Agreement or the Melchionni Option Agreement, as applicable, will be validly issued, fully paid and non-assessable.

We hereby consent to the filing of this opinion as an exhibit to the Company’s Registration Statement. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act, or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.

We are members of the bar of the State of New York. We express no opinion as to the laws of any jurisdiction other than the Delaware General Corporation Law as currently in effect.

 

Exhibit 23.2

Consent of Independent Registered Public Accounting Firm

The Board of Directors and Shareholders

Fidelity & Guaranty Life:

We consent to the incorporation by reference in this registration statement on Form S-8 of Fidelity & Guaranty Life of our report dated November 19, 2014, with respect to the consolidated balance sheets of Fidelity & Guaranty Life as of September 30, 2014 and 2013, and the related consolidated statements of operations, comprehensive income, changes in shareholders’ equity, and cash flows for each of the years in the three-year period ended September 30, 2014, and the related financial statement schedules I to IV, which report appears in the September 30, 2014 annual report on Form 10-K of Fidelity & Guaranty Life.

/s/ KPMG LLP

May 8, 2015

Baltimore, MD

Exhibit 24.1

POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Christopher J. Littlefield, Dennis R. Vigneau and Eric Marhoun jointly and severally, as his or her true and lawful attorney-in-fact and agent, acting alone, with full power of substitution and resubstitution, for him and in his name, place and stead, to execute on his or her behalf, as an officer and/or director of Fidelity & Guaranty Life (the “Company”), the Registration Statement of the Company on Form S-8 (the “Registration Statement”) relating to the registration of up to an aggregate of 7,952 shares of common stock of the Company that may be offered pursuant to the Non-Statutory Stock Option Agreement for Compensation Committee Member, dated December 12, 2013, by and between the Company and Kostas Cheliotis, the Non-Statutory Stock Option Agreement for Compensation Committee Member, dated December 12, 2013, by and between the Company and Kevin J. Gregson and the Non-Statutory Stock Option Agreement for Compensation Committee Member, dated December 12, 2013, by and between the Company and William P. Melchionni, and any or all amendments (including post-effective amendments) thereto and any new registration statement with respect to the offering contemplated thereby filed pursuant to Rule 462(b) of the Securities Act of 1933 (the “Act”), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission (the “SEC”) pursuant to the Act, and any and all other instruments which said attorney-in-fact and agent deem necessary or advisable to enable the Company to comply with the Act, the rules, regulations and requirements of the SEC in respect thereof, and the securities or Blue Sky laws of any State or governmental subdivision, giving and granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing whatsoever necessary or appropriate to be done in and about the premises as fully to all intents as he might or could do it personally present at the doing thereof, with full power of substitution and resubstitution, hereby ratifying and confirming all that said attorney-in-fact and agent, or substitute or substitutes, may or shall lawfully do or cause to be done by virtue hereof.

 

Signature		Title		Date
/s/ Christopher J. Littlefield Christopher J. Littlefield		President, Chief Executive Officer and Director (Principal Executive Officer)		May 1 ,2015
/s/ Dennis R. Vigneau Dennis R. Vigneau		Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)		May 1 ,2015
/s/ Joseph S. Steinberg Joseph S. Steinberg		Chairman		May 1 ,2015

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/s/ Omar M. Asali Omar M. Asali		Director		May 1 ,2015
/s/ William J. Bawden William J. Bawden		Director		May 1 ,2015
/s/ James M. Benson James M. Benson		Director		May 1 ,2015
/s/ Kevin J. Gregson Kevin J. Gregson		Director		May 1 ,2015
/s/ William P. Melchionni William P. Melchionni		Director		May 1 ,2015
/s/ L. John H. Tweedie L. John H. Tweedie		Director		May 1 ,2015
/s/ Thomas A. Williams Thomas A. Williams		Director		May 1 ,2015

Exhibit 99.1

FIDELITY & GUARANTY LIFE

2013 NON-STATUTORY STOCK OPTION AGREEMENT

(FOR COMPENSATION COMMITTEE MEMBER)

This Employee Non-Statutory Stock Option Agreement (the “Agreement”), dated as of December 12, 2013, is entered into between Fidelity & Guaranty Life, a Delaware corporation, and the Employee whose name appears on the signature page hereof.

The Company and the Employee hereby agree as follows:

Section 1. Certain Definitions. Capitalized terms used in this Agreement and not defined herein shall have the respective meaning ascribed to such terms in the Plan. The following additional terms shall have the following meanings:

“Aggregate Price” has the meaning set forth in Section 5(a).

“Agreement” means this Employee Non-Statutory Stock Option Agreement, as amended from time to time in accordance with the terms hereof.

“Cause” as to any Employee who is party to an employment agreement with the Company or a Subsidiary or Affiliate, has the same meaning as set forth in such employment agreement. In the absence of such an employment agreement, “Cause” shall mean the Employee (i) shall have been convicted, indicted for, or entered a plea of nolo contendere to, any felony or any other act involving fraud, theft, misappropriation, dishonesty, or embezzlement, (ii) shall have committed intentional and willful acts of misconduct that materially impair the goodwill or business of the Company or cause material damage to its property, goodwill, or business, or (iii) shall have willfully refused to, or willfully failed to, perform in any material respect his or her duties, provided, however, that no such termination for Cause under clause (iii) shall be effective unless the Employee does not cure such refusal or failure to the Company’s reasonable satisfaction as soon as practicable after the Company gives the Employee written notice identifying such refusal or failure (and, in any event, within ten (10) calendar days after receipt of such written notice). The determination as to whether “Cause” has occurred shall be made by the Committee, which shall have the authority to waive the consequences under the Plan of the existence or occurrence of any of the events, acts or commissions constituting “Cause.” A termination for Cause shall be deemed to include a determination following an Employee’s termination of employment for any reason that circumstances existed prior to such termination sufficient for the Company or one of its Subsidiaries or Affiliates to have terminated such Employee’s employment for Cause.

“Employee” means the grantee of the Non-Statutory Stock Options (whether an employee, consultant or director), whose name is set forth on the signature page of this Agreement; provided that following such person’s death “Employee” shall be deemed to include such person’s beneficiary or estate and following such person’s Disability, “Employee” shall be deemed to include such person’s legal representative.

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“Exercise Date” has the meaning set forth in Section 5(a).

“Exercise Price” has the meaning set forth in Section 5(a).

“Financing Agreements” means any guaranty, financing or security agreement or document entered into by the Company or any Subsidiary from time to time.

“Normal Termination Date” has the meaning set forth in Section 4(a).

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

Section 2. Grant of Non-Statutory Stock Options

(a) Confirmation of Grant. The Company hereby evidences and confirms, effective as of the date hereof, its grant to the Employee of Non-Statutory Stock Options to purchase the number of shares of Stock specified on the signature page hereof. The Non-Statutory Stock Options are not intended to be incentive stock options under the Code. This grant is not made under the Plan; however, this grant shall be construed and administered as though it were subject to the terms of the Plan.

(b) Exercise Price. Each share of Stock covered by an Non-Statutory Stock Option shall have the Exercise Price specified on the signature page hereof.

Section 3. Vesting and Exercisability

(a) Vesting. Except as otherwise provided in Section 3(b) or 6 of this Agreement, the Non-Statutory Stock Options shall become vested in three equal installments on each of the first through third anniversaries of the Grant Date, subject to the continuous employment of the Employee with the Company until the applicable vesting date.

(b) Discretionary Acceleration. The Committee, in its sole discretion, may accelerate the vesting or exercisability of all or a portion of the Non-Statutory Stock Options, at any time and from time to time.

(c) Exercise. Once vested in accordance with the provisions of this Agreement, the Non-Statutory Stock Options may be exercised at any time and from time to time prior to the date such Non-Statutory Stock Options terminate pursuant to Section 4. Non-Statutory Stock Options may only be exercised with respect to whole shares of Stock and must be exercised in accordance with Section 5.

 

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Section 4. Termination of Non-Statutory Stock Options

(a) Normal Termination Date. Unless earlier terminated pursuant to Section 4(b) or Section 6, the Non-Statutory Stock Options shall terminate on the seventh anniversary of the Grant Date (the “Normal Termination Date”), if not exercised prior to such date.

(b) Early Termination. If the Employee’s employment with the Company terminates for any reason, any Non-Statutory Stock Options held by the Employee that have not vested before the effective date of such termination of employment shall terminate immediately upon such termination of employment and, if the Employee’s employment is terminated for Cause, all Non-Statutory Stock Options (whether or not then vested or exercisable) shall automatically terminate immediately upon such termination.

Section 5. Manner of Exercise

(a) General. Subject to such reasonable administrative regulations as the Committee may adopt from time to time, the Employee may exercise vested Non-Statutory Stock Options by giving advance notice to the Company specifying the proposed date on which the Employee desires to exercise a vested Non-Statutory Stock Option (the “Exercise Date”), the number of whole shares with respect to which the Non-Statutory Stock Options are being exercised (the “Exercise Shares”) and the aggregate Exercise Price for such Exercise Shares (the “Aggregate Price”). Subject to Section 6(c) of the Plan, on or before the Exercise Date the Employee shall deliver to the Company full payment for the Exercise Shares in United States dollars in cash, or cash equivalents satisfactory to the Company, or, if so permitted by the Committee (and on such conditions as the Committee shall determine) (A) through a net issuance arrangement pursuant to which a number of shares of Stock subject to the portion of the Non-Statutory Stock Option being exercised, having a Fair Market Value equal to the applicable exercise price plus the required minimum withholding taxes, are retained by the Company or (B) by using a broker assisted cashless exercise program acceptable to the Committee, and the Company shall direct such issuance to be registered by the Company’s transfer agent. The Company may require the Employee to furnish or execute such other documents as the Company shall reasonably deem necessary (i) to evidence such exercise, or (ii) to comply with or satisfy the requirements of the Securities Act, applicable state or non-U.S. securities laws or any other law.

 

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(b) Restrictions on Exercise. Notwithstanding any other provision of this Agreement, the Non-Statutory Stock Options may not be exercised in whole or in part, and no certificates representing Exercise Shares shall be delivered, (i) unless (A) all requisite approvals and consents of any governmental authority of any kind shall have been secured, (B) the Exercise Shares shall have been registered under such laws, and (C) all applicable U.S. federal, state and local and non-U.S. tax withholding requirements shall have been satisfied or (ii) if such exercise would result in a violation of the terms or provisions of or a default or an event of default under, any of the Financing Agreements. The Company shall use its commercially reasonable efforts to obtain any consents or approvals referred to in clause (i) (A) of the preceding sentence, but shall otherwise have no obligations to take any steps to prevent or remove any impediment to exercise described in such sentence.

(c) Treatment of vested Non-Statutory Stock Options upon Termination of Employment. All vested Non-Statutory Stock Options held by the Employee following the effective date of a termination of employment shall expire if not exercised by the Employee within 30 days following the effective date of such termination of employment or upon the Normal Termination Date, if earlier.

Section 6. Change in Control.

(a) Alternative Award. No cancellation, acceleration, vesting, lapse of restrictions or other payment shall occur with respect to any Non-Statutory Stock Options in connection with a Change in Control if the Committee reasonably determines in good faith, prior to the occurrence of the Change in Control, that such Non-Statutory Stock Options shall be honored or assumed, or new rights substituted therefor following the Change in Control (such honored, assumed, or substituted award, an “Alternative Award”), provided that any Alternative Award must:

(i) Give the Employee who held such Non-Statutory Stock Options rights and entitlements substantially equivalent to or better than the rights and terms applicable under such Non-Statutory Stock Options, including but not limited to an identical or better exercise and vesting schedule, and identical or better timing and methods of payment; and

(ii) Have terms such that if, following a Change in Control, an Employee’s employment is involuntarily or constructively terminated (other than for Cause) at a time when any portion of the Alternative Award is non-vested, the non-vested portion of such Alternative Award shall immediately vest and become exercisable in full. For purposes of

 

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this Section 6(a)(ii), involuntary termination of employment refers to actual, involuntary termination of employment (other than for Cause), and constructive termination of employment refers to any of the following (other than for Cause) occurring within two years following the Change in Control: (A) material diminution in duties; (B) material diminution in compensation, or (C) a requirement to relocate to a primary place of business more than 50 miles from Employee’s primary plan of business immediately prior to the Change in Control.

(b) Vesting and Cancellation. Notwithstanding Section 6(a), if the Committee, in its discretion, determines that the Employee will not receive an Alternative Award, all of Employee’s outstanding unvested Non-Statutory Stock Options shall vest, and all outstanding Non-Statutory Stock Options shall remain exercisable only for 30 days following the Change in Control, at which time they shall expire, unless the Committee, in its discretion, determines to cancel the Non-Statutory Options in exchange for payment to Employee of the excess of the Fair Market Value of the Stock subject to the Options over the exercise price of the Options, as set forth in Section 13(b) of the Plan (or otherwise take action with respect to the Options as set forth in Section 13(b) of the Plan).

(c) Limitation of Benefits. In the event that it is determined that any acceleration of vesting, payment or other value provided under this Agreement in connection with a change in control would be considered “parachute payments” within the meaning of Section 280G of the Code (the “Parachute Payments”) that, but for this Section 6(c) would be payable to Grantee hereunder, and would, when combined with any other Parachute Payments under any other agreement or arrangement, exceed the greatest amount of Parachute Payments that could be paid to Employee without giving rise to any liability for the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the aggregate amount of Parachute Payments payable to Employee hereunder shall be reduced such that it shall not exceed the amount that produces the greatest after-tax benefit to Employee after taking into account any Excise Tax to be payable by Employee.

Section 7. Miscellaneous.

(a) Withholding. The Company or one of its Subsidiaries shall have the power to withhold, or to require the Employee to remit to the Company an amount in cash sufficient to satisfy any applicable U.S. federal, state and local and non-U.S. tax withholding or other similar charges or fees that may arise in connection with the grant, vesting, exercise or purchase of the Non-Statutory Stock Options.

 

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(b) Authorization to Share Personal Data. The Employee authorizes any affiliate of the Company that employs the Employee or that otherwise has or lawfully obtains personal data relating to the Employee to divulge or transfer such personal data to the Company or to a third party, in each case in any jurisdiction, if and to the extent necessary or appropriate in connection with this Agreement.

(c) No Rights as Stockholder; No Voting Rights. The Employee shall have no rights as a stockholder of the Company with respect to any shares of Stock covered by the Non-Statutory Stock Options until the exercise of the Non-Statutory Stock Options and delivery of the shares of Stock. Except as provided in Section 13 of the Plan, no adjustment shall be made for dividends or other rights for which the record date is prior to the delivery of the shares of Stock.

(d) No Right to Continued Employment. Nothing in this Agreement shall be deemed to confer on the Employee any right to continue in the employ of the Company or any Subsidiary, or to interfere with or limit in any way the right of the Company or any Subsidiary to terminate such employment at any time.

(e) Non-Transferability of Non-Statutory Stock Options. The Non-Statutory Stock Options may be exercised only by the Employee, or, following the Employee’s death, by his designated beneficiary or by his estate in the absence of a designated beneficiary. The Non-Statutory Stock Options are not assignable or transferable, in whole or in part, and they may not, directly or indirectly, be offered, transferred, sold, pledged, assigned, alienated, hypothecated or otherwise disposed of or encumbered (including, but not limited to, by gift, operation of law or otherwise) other than by will or by the laws of descent and distribution to the estate of the Employee upon the Employee’s death or with the Company’s consent.

(f) Notices. All notices and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given if delivered personally or sent by certified or express mail, return receipt requested, postage prepaid, or by any recognized international equivalent of such delivery, to the Company or the Employee, as the case may be, at the following addresses or to such other address as the Company or the Employee, as the case may be, shall specify by notice to the other:

(i) if to the Company, to it at:

Fidelity & Guaranty Life

1001 Fleet Street, 6th Floor

Baltimore, MD 21202

Att: General Counsel

 

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With a copy to:

Harbinger Group, Inc.

450 Park Ave, 30th Floor

New York, New York 10022

Att: General Counsel

(ii) if to the Employee, to the Employee at his or her most recent address as shown on the books and records of the Company or Subsidiary employing the Employee.

All such notices and communications shall be deemed to have been received on the date of delivery if delivered personally or on the third business day after the mailing thereof.

(g) Binding Effect; Benefits. This Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and their respective successors and assigns. Nothing in this Agreement, express or implied, is intended or shall be construed to give any person other than the parties to this Agreement or their respective successors or assigns any legal or equitable right, remedy or claim under or in respect of any agreement or any provision contained herein.

(h) Waiver. Any party hereto or beneficiary hereof may by written notice to the other parties (A) extend the time for the performance of any of the obligations or other actions of the other parties under this Agreement, (B) waive compliance with any of the conditions or covenants of the other parties contained in this Agreement and (C) waive or modify performance of any of the obligations of the other parties under this Agreement. Except as provided in the preceding sentence, no action taken pursuant to this Agreement, including, without limitation, any investigation by or on behalf of any party or beneficiary, shall be deemed to constitute a waiver by the party or beneficiary taking such action of compliance with any representations, warranties, covenants or agreements contained herein. The waiver by any party hereto or beneficiary hereof of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any preceding or succeeding breach and no failure by a party or beneficiary to exercise any right or privilege hereunder shall be deemed a waiver of such party’s or beneficiary’s rights or privileges hereunder or shall be deemed a waiver of such party’s or beneficiary’s rights to exercise the same at any subsequent time or times hereunder.

(i) Amendment. This Agreement may not be amended, modified or supplemented orally, but only by a written instrument executed by the Employee and the Company.

 

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(j) Assignability. Neither this Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof shall be assignable by the Company or the Employee without the prior written consent of the other party.

(k) Applicable Law. This Agreement shall be governed by and construed in accordance with the law of the State of Delaware regardless of the application of rules of conflict of law that would apply the laws of any other jurisdiction.

(l) Arbitration; Waiver of Jury Trial. Any dispute, controversy or claim arising out of or pursuant to this Agreement, or any undertakings, covenants and agreements incorporated by reference into this Agreement shall be adjudicated as provided in Section 5 of the Plan (even though this grant is not made under the Plan).

(m) Titles and Headings. The titles and headings of the sections in this Agreement are for convenience of reference only and shall not affect the meaning or interpretation of this Agreement.

(n) Gender and Number. Except where otherwise indicated by the context, any masculine term used herein shall also include the feminine; the plural shall include the singular and the singular shall include the plural.

(o) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument.

(p) Clawback. Employee acknowledges and agrees to be bound by the clawback provisions set forth in Section 21(b) of the Plan (even though this grant is not made under the Plan).

IN WITNESS WHEREOF, the Company and the Employee have executed this Agreement as of the date first above written.

 

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Address of the Employee:

2823 Mandalay Beach Road

Wantagh, NY 11793

 

Total Number of Shares		Exercise Price
for the Purchase of Which
Non-Statutory Stock
Options have been Granted
3,408		$17.00

 

9

Exhibit 99.2

FIDELITY & GUARANTY LIFE

2013 NON-STATUTORY STOCK OPTION AGREEMENT

(FOR COMPENSATION COMMITTEE MEMBER)

This Employee Non-Statutory Stock Option Agreement (the “Agreement”), dated as of December 12, 2013, is entered into between Fidelity & Guaranty Life, a Delaware corporation, and the Employee whose name appears on the signature page hereof.

The Company and the Employee hereby agree as follows:

Section 1. Certain Definitions. Capitalized terms used in this Agreement and not defined herein shall have the respective meaning ascribed to such terms in the Plan. The following additional terms shall have the following meanings:

“Aggregate Price” has the meaning set forth in Section 5(a).

“Agreement” means this Employee Non-Statutory Stock Option Agreement, as amended from time to time in accordance with the terms hereof.

“Cause” as to any Employee who is party to an employment agreement with the Company or a Subsidiary or Affiliate, has the same meaning as set forth in such employment agreement. In the absence of such an employment agreement, “Cause” shall mean the Employee (i) shall have been convicted, indicted for, or entered a plea of nolo contendere to, any felony or any other act involving fraud, theft, misappropriation, dishonesty, or embezzlement, (ii) shall have committed intentional and willful acts of misconduct that materially impair the goodwill or business of the Company or cause material damage to its property, goodwill, or business, or (iii) shall have willfully refused to, or willfully failed to, perform in any material respect his or her duties, provided, however, that no such termination for Cause under clause (iii) shall be effective unless the Employee does not cure such refusal or failure to the Company’s reasonable satisfaction as soon as practicable after the Company gives the Employee written notice identifying such refusal or failure (and, in any event, within ten (10) calendar days after receipt of such written notice). The determination as to whether “Cause” has occurred shall be made by the Committee, which shall have the authority to waive the consequences under the Plan of the existence or occurrence of any of the events, acts or commissions constituting “Cause.” A termination for Cause shall be deemed to include a determination following an Employee’s termination of employment for any reason that circumstances existed prior to such termination sufficient for the Company or one of its Subsidiaries or Affiliates to have terminated such Employee’s employment for Cause.

“Employee” means the grantee of the Non-Statutory Stock Options (whether an employee, consultant or director), whose name is set forth on the signature page of this Agreement; provided that following such person’s death “Employee” shall be deemed to include such person’s beneficiary or estate and following such person’s Disability, “Employee” shall be deemed to include such person’s legal representative.

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“Exercise Date” has the meaning set forth in Section 5(a).

“Exercise Price” has the meaning set forth in Section 5(a).

“Financing Agreements” means any guaranty, financing or security agreement or document entered into by the Company or any Subsidiary from time to time.

“Normal Termination Date” has the meaning set forth in Section 4(a).

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

Section 2. Grant of Non-Statutory Stock Options

(a) Confirmation of Grant. The Company hereby evidences and confirms, effective as of the date hereof, its grant to the Employee of Non-Statutory Stock Options to purchase the number of shares of Stock specified on the signature page hereof. The Non-Statutory Stock Options are not intended to be incentive stock options under the Code. This grant is not made under the Plan; however, this grant shall be construed and administered as though it were subject to the terms of the Plan.

(b) Exercise Price. Each share of Stock covered by an Non-Statutory Stock Option shall have the Exercise Price specified on the signature page hereof.

Section 3. Vesting and Exercisability

(a) Vesting. Except as otherwise provided in Section 3(b) or 6 of this Agreement, the Non-Statutory Stock Options shall become vested in three equal installments on each of the first through third anniversaries of the Grant Date, subject to the continuous employment of the Employee with the Company until the applicable vesting date.

(b) Discretionary Acceleration. The Committee, in its sole discretion, may accelerate the vesting or exercisability of all or a portion of the Non-Statutory Stock Options, at any time and from time to time.

(c) Exercise. Once vested in accordance with the provisions of this Agreement, the Non-Statutory Stock Options may be exercised at any time and from time to time prior to the date such Non-Statutory Stock Options terminate pursuant to Section 4. Non-Statutory Stock Options may only be exercised with respect to whole shares of Stock and must be exercised in accordance with Section 5.

 

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Section 4. Termination of Non-Statutory Stock Options

(a) Normal Termination Date. Unless earlier terminated pursuant to Section 4(b) or Section 6, the Non-Statutory Stock Options shall terminate on the seventh anniversary of the Grant Date (the “Normal Termination Date”), if not exercised prior to such date.

(b) Early Termination. If the Employee’s employment with the Company terminates for any reason, any Non-Statutory Stock Options held by the Employee that have not vested before the effective date of such termination of employment shall terminate immediately upon such termination of employment and, if the Employee’s employment is terminated for Cause, all Non-Statutory Stock Options (whether or not then vested or exercisable) shall automatically terminate immediately upon such termination.

Section 5. Manner of Exercise

(a) General. Subject to such reasonable administrative regulations as the Committee may adopt from time to time, the Employee may exercise vested Non-Statutory Stock Options by giving advance notice to the Company specifying the proposed date on which the Employee desires to exercise a vested Non-Statutory Stock Option (the “Exercise Date”), the number of whole shares with respect to which the Non-Statutory Stock Options are being exercised (the “Exercise Shares”) and the aggregate Exercise Price for such Exercise Shares (the “Aggregate Price”). Subject to Section 6(c) of the Plan, on or before the Exercise Date the Employee shall deliver to the Company full payment for the Exercise Shares in United States dollars in cash, or cash equivalents satisfactory to the Company, or, if so permitted by the Committee (and on such conditions as the Committee shall determine) (A) through a net issuance arrangement pursuant to which a number of shares of Stock subject to the portion of the Non-Statutory Stock Option being exercised, having a Fair Market Value equal to the applicable exercise price plus the required minimum withholding taxes, are retained by the Company or (B) by using a broker assisted cashless exercise program acceptable to the Committee, and the Company shall direct such issuance to be registered by the Company’s transfer agent. The Company may require the Employee to furnish or execute such other documents as the Company shall reasonably deem necessary (i) to evidence such exercise, or (ii) to comply with or satisfy the requirements of the Securities Act, applicable state or non-U.S. securities laws or any other law.

 

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(b) Restrictions on Exercise. Notwithstanding any other provision of this Agreement, the Non-Statutory Stock Options may not be exercised in whole or in part, and no certificates representing Exercise Shares shall be delivered, (i) unless (A) all requisite approvals and consents of any governmental authority of any kind shall have been secured, (B) the Exercise Shares shall have been registered under such laws, and (C) all applicable U.S. federal, state and local and non-U.S. tax withholding requirements shall have been satisfied or (ii) if such exercise would result in a violation of the terms or provisions of or a default or an event of default under, any of the Financing Agreements. The Company shall use its commercially reasonable efforts to obtain any consents or approvals referred to in clause (i) (A) of the preceding sentence, but shall otherwise have no obligations to take any steps to prevent or remove any impediment to exercise described in such sentence.

(c) Treatment of vested Non-Statutory Stock Options upon Termination of Employment. All vested Non-Statutory Stock Options held by the Employee following the effective date of a termination of employment shall expire if not exercised by the Employee within 30 days following the effective date of such termination of employment or upon the Normal Termination Date, if earlier.

Section 6. Change in Control.

(a) Alternative Award. No cancellation, acceleration, vesting, lapse of restrictions or other payment shall occur with respect to any Non-Statutory Stock Options in connection with a Change in Control if the Committee reasonably determines in good faith, prior to the occurrence of the Change in Control, that such Non-Statutory Stock Options shall be honored or assumed, or new rights substituted therefor following the Change in Control (such honored, assumed, or substituted award, an “Alternative Award”), provided that any Alternative Award must:

(i) Give the Employee who held such Non-Statutory Stock Options rights and entitlements substantially equivalent to or better than the rights and terms applicable under such Non-Statutory Stock Options, including but not limited to an identical or better exercise and vesting schedule, and identical or better timing and methods of payment; and

(ii) Have terms such that if, following a Change in Control, an Employee’s employment is involuntarily or constructively terminated (other than for Cause) at a time when any portion of the Alternative Award is non-vested, the non-vested portion of such Alternative Award shall immediately vest and become exercisable in full. For purposes of

 

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this Section 6(a)(ii), involuntary termination of employment refers to actual, involuntary termination of employment (other than for Cause), and constructive termination of employment refers to any of the following (other than for Cause) occurring within two years following the Change in Control: (A) material diminution in duties; (B) material diminution in compensation, or (C) a requirement to relocate to a primary place of business more than 50 miles from Employee’s primary plan of business immediately prior to the Change in Control.

(b) Vesting and Cancellation. Notwithstanding Section 6(a), if the Committee, in its discretion, determines that the Employee will not receive an Alternative Award, all of Employee’s outstanding unvested Non-Statutory Stock Options shall vest, and all outstanding Non-Statutory Stock Options shall remain exercisable only for 30 days following the Change in Control, at which time they shall expire, unless the Committee, in its discretion, determines to cancel the Non-Statutory Options in exchange for payment to Employee of the excess of the Fair Market Value of the Stock subject to the Options over the exercise price of the Options, as set forth in Section 13(b) of the Plan (or otherwise take action with respect to the Options as set forth in Section 13(b) of the Plan).

(c) Limitation of Benefits. In the event that it is determined that any acceleration of vesting, payment or other value provided under this Agreement in connection with a change in control would be considered “parachute payments” within the meaning of Section 280G of the Code (the “Parachute Payments”) that, but for this Section 6(c) would be payable to Grantee hereunder, and would, when combined with any other Parachute Payments under any other agreement or arrangement, exceed the greatest amount of Parachute Payments that could be paid to Employee without giving rise to any liability for the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the aggregate amount of Parachute Payments payable to Employee hereunder shall be reduced such that it shall not exceed the amount that produces the greatest after-tax benefit to Employee after taking into account any Excise Tax to be payable by Employee.

Section 7. Miscellaneous.

(a) Withholding. The Company or one of its Subsidiaries shall have the power to withhold, or to require the Employee to remit to the Company an amount in cash sufficient to satisfy any applicable U.S. federal, state and local and non-U.S. tax withholding or other similar charges or fees that may arise in connection with the grant, vesting, exercise or purchase of the Non-Statutory Stock Options.

 

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(b) Authorization to Share Personal Data. The Employee authorizes any affiliate of the Company that employs the Employee or that otherwise has or lawfully obtains personal data relating to the Employee to divulge or transfer such personal data to the Company or to a third party, in each case in any jurisdiction, if and to the extent necessary or appropriate in connection with this Agreement.

(c) No Rights as Stockholder; No Voting Rights. The Employee shall have no rights as a stockholder of the Company with respect to any shares of Stock covered by the Non-Statutory Stock Options until the exercise of the Non-Statutory Stock Options and delivery of the shares of Stock. Except as provided in Section 13 of the Plan, no adjustment shall be made for dividends or other rights for which the record date is prior to the delivery of the shares of Stock.

(d) No Right to Continued Employment. Nothing in this Agreement shall be deemed to confer on the Employee any right to continue in the employ of the Company or any Subsidiary, or to interfere with or limit in any way the right of the Company or any Subsidiary to terminate such employment at any time.

(e) Non-Transferability of Non-Statutory Stock Options. The Non-Statutory Stock Options may be exercised only by the Employee, or, following the Employee’s death, by his designated beneficiary or by his estate in the absence of a designated beneficiary. The Non-Statutory Stock Options are not assignable or transferable, in whole or in part, and they may not, directly or indirectly, be offered, transferred, sold, pledged, assigned, alienated, hypothecated or otherwise disposed of or encumbered (including, but not limited to, by gift, operation of law or otherwise) other than by will or by the laws of descent and distribution to the estate of the Employee upon the Employee’s death or with the Company’s consent.

(f) Notices. All notices and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given if delivered personally or sent by certified or express mail, return receipt requested, postage prepaid, or by any recognized international equivalent of such delivery, to the Company or the Employee, as the case may be, at the following addresses or to such other address as the Company or the Employee, as the case may be, shall specify by notice to the other:

(i) if to the Company, to it at:

Fidelity & Guaranty Life

1001 Fleet Street, 6th Floor

Baltimore, MD 21202

Att: General Counsel

 

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With a copy to:

Harbinger Group, Inc.

450 Park Ave, 30th Floor

New York, New York 10022

Att: General Counsel

(ii) if to the Employee, to the Employee at his or her most recent address as shown on the books and records of the Company or Subsidiary employing the Employee.

All such notices and communications shall be deemed to have been received on the date of delivery if delivered personally or on the third business day after the mailing thereof.

(g) Binding Effect; Benefits. This Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and their respective successors and assigns. Nothing in this Agreement, express or implied, is intended or shall be construed to give any person other than the parties to this Agreement or their respective successors or assigns any legal or equitable right, remedy or claim under or in respect of any agreement or any provision contained herein.

(h) Waiver. Any party hereto or beneficiary hereof may by written notice to the other parties (A) extend the time for the performance of any of the obligations or other actions of the other parties under this Agreement, (B) waive compliance with any of the conditions or covenants of the other parties contained in this Agreement and (C) waive or modify performance of any of the obligations of the other parties under this Agreement. Except as provided in the preceding sentence, no action taken pursuant to this Agreement, including, without limitation, any investigation by or on behalf of any party or beneficiary, shall be deemed to constitute a waiver by the party or beneficiary taking such action of compliance with any representations, warranties, covenants or agreements contained herein. The waiver by any party hereto or beneficiary hereof of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any preceding or succeeding breach and no failure by a party or beneficiary to exercise any right or privilege hereunder shall be deemed a waiver of such party’s or beneficiary’s rights or privileges hereunder or shall be deemed a waiver of such party’s or beneficiary’s rights to exercise the same at any subsequent time or times hereunder.

(i) Amendment. This Agreement may not be amended, modified or supplemented orally, but only by a written instrument executed by the Employee and the Company.

 

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(j) Assignability. Neither this Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof shall be assignable by the Company or the Employee without the prior written consent of the other party.

(k) Applicable Law. This Agreement shall be governed by and construed in accordance with the law of the State of Delaware regardless of the application of rules of conflict of law that would apply the laws of any other jurisdiction.

(l) Arbitration; Waiver of Jury Trial. Any dispute, controversy or claim arising out of or pursuant to this Agreement, or any undertakings, covenants and agreements incorporated by reference into this Agreement shall be adjudicated as provided in Section 5 of the Plan (even though this grant is not made under the Plan).

(m) Titles and Headings. The titles and headings of the sections in this Agreement are for convenience of reference only and shall not affect the meaning or interpretation of this Agreement.

(n) Gender and Number. Except where otherwise indicated by the context, any masculine term used herein shall also include the feminine; the plural shall include the singular and the singular shall include the plural.

(o) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument.

(p) Clawback. Employee acknowledges and agrees to be bound by the clawback provisions set forth in Section 21(b) of the Plan (even though this grant is not made under the Plan).

IN WITNESS WHEREOF, the Company and the Employee have executed this Agreement as of the date first above written.

 

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Address of the Employee:

58 Valley Lane

Chappaqua, NY 10514

 

Total Number of Shares		Exercise Price
for the Purchase of Which
Non-Statutory Stock
Options have been Granted
3,408		$17.00

 

9

Exhibit 99.3

FIDELITY & GUARANTY LIFE

2013 NON-STATUTORY STOCK OPTION AGREEMENT

(FOR COMPENSATION COMMITTEE MEMBER)

This Employee Non-Statutory Stock Option Agreement (the “Agreement”), dated as of December 12, 2013, is entered into between Fidelity & Guaranty Life, a Delaware corporation, and the Employee whose name appears on the signature page hereof.

The Company and the Employee hereby agree as follows:

Section 1. Certain Definitions. Capitalized terms used in this Agreement and not defined herein shall have the respective meaning ascribed to such terms in the Plan. The following additional terms shall have the following meanings:

“Aggregate Price” has the meaning set forth in Section 5(a).

“Agreement” means this Employee Non-Statutory Stock Option Agreement, as amended from time to time in accordance with the terms hereof.

“Cause” as to any Employee who is party to an employment agreement with the Company or a Subsidiary or Affiliate, has the same meaning as set forth in such employment agreement. In the absence of such an employment agreement, “Cause” shall mean the Employee (i) shall have been convicted, indicted for, or entered a plea of nolo contendere to, any felony or any other act involving fraud, theft, misappropriation, dishonesty, or embezzlement, (ii) shall have committed intentional and willful acts of misconduct that materially impair the goodwill or business of the Company or cause material damage to its property, goodwill, or business, or (iii) shall have willfully refused to, or willfully failed to, perform in any material respect his or her duties, provided, however, that no such termination for Cause under clause (iii) shall be effective unless the Employee does not cure such refusal or failure to the Company’s reasonable satisfaction as soon as practicable after the Company gives the Employee written notice identifying such refusal or failure (and, in any event, within ten (10) calendar days after receipt of such written notice). The determination as to whether “Cause” has occurred shall be made by the Committee, which shall have the authority to waive the consequences under the Plan of the existence or occurrence of any of the events, acts or commissions constituting “Cause.” A termination for Cause shall be deemed to include a determination following an Employee’s termination of employment for any reason that circumstances existed prior to such termination sufficient for the Company or one of its Subsidiaries or Affiliates to have terminated such Employee’s employment for Cause.

“Employee” means the grantee of the Non-Statutory Stock Options (whether an employee, consultant or director), whose name is set forth on the signature page of this Agreement; provided that following such person’s death “Employee” shall be deemed to include such person’s beneficiary or estate and following such person’s Disability, “Employee” shall be deemed to include such person’s legal representative.

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“Exercise Date” has the meaning set forth in Section 5(a).

“Exercise Price” has the meaning set forth in Section 5(a).

“Financing Agreements” means any guaranty, financing or security agreement or document entered into by the Company or any Subsidiary from time to time.

“Normal Termination Date” has the meaning set forth in Section 4(a).

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

Section 2. Grant of Non-Statutory Stock Options

(a) Confirmation of Grant. The Company hereby evidences and confirms, effective as of the date hereof, its grant to the Employee of Non-Statutory Stock Options to purchase the number of shares of Stock specified on the signature page hereof. The Non-Statutory Stock Options are not intended to be incentive stock options under the Code. This grant is not made under the Plan; however, this grant shall be construed and administered as though it were subject to the terms of the Plan.

(b) Exercise Price. Each share of Stock covered by an Non-Statutory Stock Option shall have the Exercise Price specified on the signature page hereof.

Section 3. Vesting and Exercisability

(a) Vesting. Except as otherwise provided in Section 3(b) or 6 of this Agreement, the Non-Statutory Stock Options shall become vested in three equal installments on each of the first through third anniversaries of the Grant Date, subject to the continuous employment of the Employee with the Company until the applicable vesting date.

(b) Discretionary Acceleration. The Committee, in its sole discretion, may accelerate the vesting or exercisability of all or a portion of the Non-Statutory Stock Options, at any time and from time to time.

(c) Exercise. Once vested in accordance with the provisions of this Agreement, the Non-Statutory Stock Options may be exercised at any time and from time to time prior to the date such Non-Statutory Stock Options terminate pursuant to Section 4. Non-Statutory Stock Options may only be exercised with respect to whole shares of Stock and must be exercised in accordance with Section 5.

 

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Section 4. Termination of Non-Statutory Stock Options

(a) Normal Termination Date. Unless earlier terminated pursuant to Section 4(b) or Section 6, the Non-Statutory Stock Options shall terminate on the seventh anniversary of the Grant Date (the “Normal Termination Date”), if not exercised prior to such date.

(b) Early Termination. If the Employee’s employment with the Company terminates for any reason, any Non-Statutory Stock Options held by the Employee that have not vested before the effective date of such termination of employment shall terminate immediately upon such termination of employment and, if the Employee’s employment is terminated for Cause, all Non-Statutory Stock Options (whether or not then vested or exercisable) shall automatically terminate immediately upon such termination.

Section 5. Manner of Exercise

(a) General. Subject to such reasonable administrative regulations as the Committee may adopt from time to time, the Employee may exercise vested Non-Statutory Stock Options by giving advance notice to the Company specifying the proposed date on which the Employee desires to exercise a vested Non-Statutory Stock Option (the “Exercise Date”), the number of whole shares with respect to which the Non-Statutory Stock Options are being exercised (the “Exercise Shares”) and the aggregate Exercise Price for such Exercise Shares (the “Aggregate Price”). Subject to Section 6(c) of the Plan, on or before the Exercise Date the Employee shall deliver to the Company full payment for the Exercise Shares in United States dollars in cash, or cash equivalents satisfactory to the Company, or, if so permitted by the Committee (and on such conditions as the Committee shall determine) (A) through a net issuance arrangement pursuant to which a number of shares of Stock subject to the portion of the Non-Statutory Stock Option being exercised, having a Fair Market Value equal to the applicable exercise price plus the required minimum withholding taxes, are retained by the Company or (B) by using a broker assisted cashless exercise program acceptable to the Committee, and the Company shall direct such issuance to be registered by the Company’s transfer agent. The Company may require the Employee to furnish or execute such other documents as the Company shall reasonably deem necessary (i) to evidence such exercise, or (ii) to comply with or satisfy the requirements of the Securities Act, applicable state or non-U.S. securities laws or any other law.

 

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(b) Restrictions on Exercise. Notwithstanding any other provision of this Agreement, the Non-Statutory Stock Options may not be exercised in whole or in part, and no certificates representing Exercise Shares shall be delivered, (i) unless (A) all requisite approvals and consents of any governmental authority of any kind shall have been secured, (B) the Exercise Shares shall have been registered under such laws, and (C) all applicable U.S. federal, state and local and non-U.S. tax withholding requirements shall have been satisfied or (ii) if such exercise would result in a violation of the terms or provisions of or a default or an event of default under, any of the Financing Agreements. The Company shall use its commercially reasonable efforts to obtain any consents or approvals referred to in clause (i) (A) of the preceding sentence, but shall otherwise have no obligations to take any steps to prevent or remove any impediment to exercise described in such sentence.

(c) Treatment of vested Non-Statutory Stock Options upon Termination of Employment. All vested Non-Statutory Stock Options held by the Employee following the effective date of a termination of employment shall expire if not exercised by the Employee within 30 days following the effective date of such termination of employment or upon the Normal Termination Date, if earlier.

Section 6. Change in Control.

(a) Alternative Award. No cancellation, acceleration, vesting, lapse of restrictions or other payment shall occur with respect to any Non-Statutory Stock Options in connection with a Change in Control if the Committee reasonably determines in good faith, prior to the occurrence of the Change in Control, that such Non-Statutory Stock Options shall be honored or assumed, or new rights substituted therefor following the Change in Control (such honored, assumed, or substituted award, an “Alternative Award”), provided that any Alternative Award must:

(i) Give the Employee who held such Non-Statutory Stock Options rights and entitlements substantially equivalent to or better than the rights and terms applicable under such Non-Statutory Stock Options, including but not limited to an identical or better exercise and vesting schedule, and identical or better timing and methods of payment; and

(ii) Have terms such that if, following a Change in Control, an Employee’s employment is involuntarily or constructively terminated (other than for Cause) at a time when any portion of the Alternative Award is non-vested, the non-vested portion of such Alternative Award shall immediately vest and become exercisable in full. For purposes of

 

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this Section 6(a)(ii), involuntary termination of employment refers to actual, involuntary termination of employment (other than for Cause), and constructive termination of employment refers to any of the following (other than for Cause) occurring within two years following the Change in Control: (A) material diminution in duties; (B) material diminution in compensation, or (C) a requirement to relocate to a primary place of business more than 50 miles from Employee’s primary plan of business immediately prior to the Change in Control.

(b) Vesting and Cancellation. Notwithstanding Section 6(a), if the Committee, in its discretion, determines that the Employee will not receive an Alternative Award, all of Employee’s outstanding unvested Non-Statutory Stock Options shall vest, and all outstanding Non-Statutory Stock Options shall remain exercisable only for 30 days following the Change in Control, at which time they shall expire, unless the Committee, in its discretion, determines to cancel the Non-Statutory Options in exchange for payment to Employee of the excess of the Fair Market Value of the Stock subject to the Options over the exercise price of the Options, as set forth in Section 13(b) of the Plan (or otherwise take action with respect to the Options as set forth in Section 13(b) of the Plan).

(c) Limitation of Benefits. In the event that it is determined that any acceleration of vesting, payment or other value provided under this Agreement in connection with a change in control would be considered “parachute payments” within the meaning of Section 280G of the Code (the “Parachute Payments”) that, but for this Section 6(c) would be payable to Grantee hereunder, and would, when combined with any other Parachute Payments under any other agreement or arrangement, exceed the greatest amount of Parachute Payments that could be paid to Employee without giving rise to any liability for the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the aggregate amount of Parachute Payments payable to Employee hereunder shall be reduced such that it shall not exceed the amount that produces the greatest after-tax benefit to Employee after taking into account any Excise Tax to be payable by Employee.

Section 7. Miscellaneous.

(a) Withholding. The Company or one of its Subsidiaries shall have the power to withhold, or to require the Employee to remit to the Company an amount in cash sufficient to satisfy any applicable U.S. federal, state and local and non-U.S. tax withholding or other similar charges or fees that may arise in connection with the grant, vesting, exercise or purchase of the Non-Statutory Stock Options.

 

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(b) Authorization to Share Personal Data. The Employee authorizes any affiliate of the Company that employs the Employee or that otherwise has or lawfully obtains personal data relating to the Employee to divulge or transfer such personal data to the Company or to a third party, in each case in any jurisdiction, if and to the extent necessary or appropriate in connection with this Agreement.

(c) No Rights as Stockholder; No Voting Rights. The Employee shall have no rights as a stockholder of the Company with respect to any shares of Stock covered by the Non-Statutory Stock Options until the exercise of the Non-Statutory Stock Options and delivery of the shares of Stock. Except as provided in Section 13 of the Plan, no adjustment shall be made for dividends or other rights for which the record date is prior to the delivery of the shares of Stock.

(d) No Right to Continued Employment. Nothing in this Agreement shall be deemed to confer on the Employee any right to continue in the employ of the Company or any Subsidiary, or to interfere with or limit in any way the right of the Company or any Subsidiary to terminate such employment at any time.

(e) Non-Transferability of Non-Statutory Stock Options. The Non-Statutory Stock Options may be exercised only by the Employee, or, following the Employee’s death, by his designated beneficiary or by his estate in the absence of a designated beneficiary. The Non-Statutory Stock Options are not assignable or transferable, in whole or in part, and they may not, directly or indirectly, be offered, transferred, sold, pledged, assigned, alienated, hypothecated or otherwise disposed of or encumbered (including, but not limited to, by gift, operation of law or otherwise) other than by will or by the laws of descent and distribution to the estate of the Employee upon the Employee’s death or with the Company’s consent.

(f) Notices. All notices and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given if delivered personally or sent by certified or express mail, return receipt requested, postage prepaid, or by any recognized international equivalent of such delivery, to the Company or the Employee, as the case may be, at the following addresses or to such other address as the Company or the Employee, as the case may be, shall specify by notice to the other:

(i) if to the Company, to it at:

Fidelity & Guaranty Life

1001 Fleet Street, 6th Floor

Baltimore, MD 21202

Att: General Counsel

 

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With a copy to:

Harbinger Group, Inc.

450 Park Ave, 30th Floor

New York, New York 10022

Att: General Counsel

(ii) if to the Employee, to the Employee at his or her most recent address as shown on the books and records of the Company or Subsidiary employing the Employee.

All such notices and communications shall be deemed to have been received on the date of delivery if delivered personally or on the third business day after the mailing thereof.

(g) Binding Effect; Benefits. This Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and their respective successors and assigns. Nothing in this Agreement, express or implied, is intended or shall be construed to give any person other than the parties to this Agreement or their respective successors or assigns any legal or equitable right, remedy or claim under or in respect of any agreement or any provision contained herein.

(h) Waiver. Any party hereto or beneficiary hereof may by written notice to the other parties (A) extend the time for the performance of any of the obligations or other actions of the other parties under this Agreement, (B) waive compliance with any of the conditions or covenants of the other parties contained in this Agreement and (C) waive or modify performance of any of the obligations of the other parties under this Agreement. Except as provided in the preceding sentence, no action taken pursuant to this Agreement, including, without limitation, any investigation by or on behalf of any party or beneficiary, shall be deemed to constitute a waiver by the party or beneficiary taking such action of compliance with any representations, warranties, covenants or agreements contained herein. The waiver by any party hereto or beneficiary hereof of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any preceding or succeeding breach and no failure by a party or beneficiary to exercise any right or privilege hereunder shall be deemed a waiver of such party’s or beneficiary’s rights or privileges hereunder or shall be deemed a waiver of such party’s or beneficiary’s rights to exercise the same at any subsequent time or times hereunder.

(i) Amendment. This Agreement may not be amended, modified or supplemented orally, but only by a written instrument executed by the Employee and the Company.

 

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(j) Assignability. Neither this Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof shall be assignable by the Company or the Employee without the prior written consent of the other party.

(k) Applicable Law. This Agreement shall be governed by and construed in accordance with the law of the State of Delaware regardless of the application of rules of conflict of law that would apply the laws of any other jurisdiction.

(l) Arbitration; Waiver of Jury Trial. Any dispute, controversy or claim arising out of or pursuant to this Agreement, or any undertakings, covenants and agreements incorporated by reference into this Agreement shall be adjudicated as provided in Section 5 of the Plan (even though this grant is not made under the Plan).

(m) Titles and Headings. The titles and headings of the sections in this Agreement are for convenience of reference only and shall not affect the meaning or interpretation of this Agreement.

(n) Gender and Number. Except where otherwise indicated by the context, any masculine term used herein shall also include the feminine; the plural shall include the singular and the singular shall include the plural.

(o) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument.

(p) Clawback. Employee acknowledges and agrees to be bound by the clawback provisions set forth in Section 21(b) of the Plan (even though this grant is not made under the Plan).

IN WITNESS WHEREOF, the Company and the Employee have executed this Agreement as of the date first above written.

 

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Address of the Employee:

720 Bay Tree Court

Naples, FL 34108

 

Total Number of Shares		Exercise Price
for the Purchase of Which
Non-Statutory Stock
Options have been Granted
3,408		$17.00

 

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