FORM OF LOCK-UP AGREEMENT

 

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                                                                     Exhibit 4.3

 

                            FORM OF LOCK-UP AGREEMENT

 

LOCK-UP AGREEMENT, dated as of ______, 200_ (the "Agreement"), by and among

NATIONAL FINANCIAL PARTNERS CORP., a Delaware corporation ("NFP"), and ________

("Stockholder"). For the purposes of this Agreement, "Person" means an

individual, corporation, partnership, joint venture, trust, unincorporated

organization, government (or any department or agency thereof, and "Other

Stockholders" means all Persons (other than Stockholder and NFP) party to that

certain stockholders agreement, by and among NFP, Apollo Investment Fund IV,

L.P., a Delaware limited partnership, and the stockholders of NFP party thereto,

dated as of October 27, 1998, as amended and restated May 14, 2003 and February

13, 2004 (the "Original Stockholders Agreement"), or any other stockholders or

lock-up agreements with NFP substantially similar hereto or thereto. Stockholder

and the Other Stockholders are occasionally collectively referred to herein as

the "Company Stockholders."

 

                                    RECITALS

 

         WHEREAS, NFP and Stockholder, who initially acquired its shares of

common stock of NFP, par value $.10 per share (the "Common Stock"), directly

from NFP after the IPO as consideration (including any contingent consideration

received by such Stockholder at any time) in connection with the acquisition of

a business with which Stockholder was affiliated or associated (such shares of

Common Stock held by Stockholder sometimes being collectively referred to herein

as the "Covered Shares"), desire to enter into an agreement to provide for the

sale, assignment, transfer, encumbrance or other disposition of the Covered

Shares which Stockholder owns or may hereafter acquire, and to provide for

certain rights (including, without limitation, registration rights) and

obligations (including, without limitation, certain transfer restrictions

intended to provide for the maintenance of an orderly market for the Common

Stock and alignment of the interests of NFP with those of stockholders who are

affiliated with NFP) in respect thereof.

 

         NOW, THEREFORE, in consideration of the premises and of the terms and

conditions contained herein, the parties hereto agree as follows:

 

                                    ARTICLE I

 

                       RESTRICTIONS ON TRANSFERS OF STOCK

 

         Section 1.1 General Prohibition on Transfers

 

         (a) Prohibition on Transfers Generally. Stockholder shall not, at any

time, directly or indirectly, sell, assign, contract to sell, pledge,

hypothecate, grant an option to purchase, encumber or otherwise transfer,

including by engaging in any hedging, short sale or other transaction which is

designed to or which reasonably could be expected to lead to or result in a sale

or disposition of any Covered Shares by such Stockholder even if such shares

would be disposed of by someone other than such

 

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Stockholder (any such transaction, whether or not for consideration, being

referred to hereinafter as a "Transfer" and all Persons to whom a Transfer is

made, regardless of the method of Transfer, shall be referred to collectively as

"Transferees" and individually as a "Transferee") any shares of Common Stock,

unless such Transfer is made in accordance with Sections 1.3 and 1.5 and Article

II, as applicable.

 

         (b) Recordation. NFP shall not record upon its books, and shall cause

any transfer agent appointed by NFP not to permit, any Transfer of Covered

Shares held or owned by Stockholder or any other Person to any other Person

except Transfers in accordance with this Agreement.

 

         Section 1.2 Compliance with Securities Laws

 

         Stockholder shall not Transfer any Covered Shares, unless (a) the

Transfer is pursuant to an effective registration statement under the Securities

Act of 1933, as amended (the "Securities Act") and in compliance with any other

applicable federal securities laws and state securities or "blue sky" laws or

(b) Stockholder shall have furnished NFP at its request with an opinion of

counsel, which opinion and counsel shall be satisfactory to NFP in its

reasonable judgment, to the effect that no such registration is required because

of the availability of an exemption from registration under the Securities Act

and under any applicable state securities or "blue sky" laws and that the

Transfer otherwise complies with this Agreement and any other applicable federal

securities laws and state securities or "blue sky" laws.

 

          Section 1.3 Permitted Transfers

 

         Section 1.3.1 Stockholders. The restrictions contained in Sections

1.1(a) with respect to Transfers by Stockholder of Covered Shares shall not

apply (A) if Stockholder is an individual, to any Transfer: (i) to or among

Stockholder's spouse, children, grandchildren or other living descendants, or to

a revocable trust or family partnership of which there are no principal (i.e.,

corpus) beneficiaries or partners other than the grantor or one or more of

Stockholder, Stockholder's spouse or described relatives and, provided, in the

case of a revocable trust, that the existing beneficiaries and/or trustee(s)

and/or grantor(s) of such trust have the power to act with respect to the

trust's assets without court approval and, in the case of a family partnership,

that the partners thereof have the power to act with respect to the

partnership's assets without court approval and the partnership is not permitted

to (x) distribute assets to Persons who are not among the relatives listed above

or (y) have partners who are not among the relatives listed above; (ii) to a

legal or personal representative of Stockholder in the event of the death or

Disability of Stockholder; and (iii) pursuant to a qualified domestic relations

order; or (B) to any Transfer by Stockholder of Stockholder's Covered Shares or

to any Principal that is a party to the management agreement between Stockholder

and NFP, if applicable, or, with the prior written approval of NFP, to another

Principal in connection with succession planning (or the financing thereof) by

Stockholder with respect to the management of one of NFP's operating

subsidiaries; or (C) any Transfer to NFP or Persons controlled by, controlling

or under common control with ("Affiliates") NFP. Notwithstanding the foregoing,

no Transfer may be effected pursuant to this

 

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Section 1.3.1 unless NFP is satisfied, in its sole discretion, either that the

proposed Transferee is an "Accredited Investor" (as defined in Rule 501

promulgated under the Securities Act) or that such other conditions as NFP may

deem appropriate are satisfied. As used in this Agreement, "Disability" means

that Stockholder is unable to engage in any substantial gainful activity by

reason of any medically determinable physical or mental impairment which can be

expected to be long-continued and of indefinite duration.

 

         Section 1.3.2 Permitted Transferees. Transferees to whom Transfers are

permitted pursuant to clauses (A) and (B) of Section 1.3.1 are referred to

herein as "Permitted Transferees." Any such permitted Transfer shall be subject

to the terms of this Agreement, including, without limitation, compliance with

Section 1.3.4.

 

         Section 1.3.3 Transfer by Permitted Transferees. The restrictions

contained in Sections 1.1(a) of this Agreement with respect to Transfers by

Stockholder of Covered Shares shall not apply to any Transfer by a Permitted

Transferee of Stockholder to Stockholder or to another Permitted Transferee of

Stockholder, and any such Transferee shall also be a "Permitted Transferee,"

subject to the provisions of Section 1.3.2.

 

         Section 1.3.4 Obligations of Transferees. No Transfer of shares of

Common Stock by Stockholder pursuant to this Section 1.3 shall be effective

unless (x) the Transferee (including a Permitted Transferee) shall have executed

an appropriate document in form and substance satisfactory to NFP in its

reasonable judgment confirming that (i) the Transferee takes such shares subject

to all the terms and conditions of this Agreement to the same extent as its

transferor was bound by and entitled to the benefits of such provisions, (ii)

the Transferee agrees to comply with the obligations of the Stockholder under

Section 2.6 to the same extent as its transferor was bound by and entitled to

the benefits of such provisions and (iii) any certificate representing shares or

any book-entry statement representing uncertificated shares shall bear legends,

substantially in the forms required by Section 1.4, and (y) such document shall

have been delivered to and approved by NFP prior to such Transferee's

acquisition of shares of Common Stock; provided, however, that, notwithstanding

any other provision of this Agreement, any Permitted Transferee that is a party

to the Original Stockholders Agreement shall not be required to become a

signatory to this Agreement and any shares of Common Stock acquired by any such

Permitted Transferee shall only be subject to the terms and conditions of the

Original Stockholder Agreement.

 

         Section 1.4 Restrictions on Transfers of Stock

 

         Section 1.4.1 Legends. Stockholder hereby agrees that any stock

certificates for Covered Shares or any book-entry statement representing Covered

Shares that are uncertificated, whether outstanding on the date hereof or

acquired prior to the date when the applicable restrictions are terminated

pursuant to Section 1.4.3, subject to the provisions of this Agreement, shall

bear endorsements or legends reading substantially as follows:

 

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               (a) The securities [represented by this certificate][to which

     this statement relates] have not been registered under the Securities Act,

     or under the securities laws of any state and may not be transferred, sold

     or otherwise disposed of except while such a registration is in effect or

     pursuant to an exemption from registration under said Act and applicable

     state securities laws.

 

               (b) The securities [represented by this certificate][to which

     this statement relates] are subject to the terms and conditions set forth

     in a Lock-Up Agreement, dated as of _______, 200_, copies of which may be

     obtained from the issuer or from the holder of this security. No transfer

     of such securities will be made by the issuer or any transfer agent

     appointed by the issuer unless accompanied by evidence of compliance with

     the terms of such agreement.

 

         Section 1.4.2 Copy of Agreement. A copy of this Agreement shall be

filed with the corporate secretary of NFP and kept with the records of NFP and

shall be made available for inspection by any stockholder of NFP at the

principal executive offices of NFP.

 

         Section 1.4.3 Termination of Restrictions. The restriction referred to

in the endorsement required pursuant to Section 1.4.1(a) shall cease and

terminate as to any particular Covered Shares (a) when, in the opinion of

counsel for NFP, such restriction is no longer required in order to assure

compliance with the Securities Act or (b) when such shares shall have been

effectively registered under the Securities Act. NFP or NFP's counsel, at their

election, may request from Stockholder a certificate or an opinion of

Stockholder's counsel with respect to any relevant matters in connection with

any Transfer or the removal of the endorsement set forth in Section 1.4.1(a)

from Stockholder's stock certificates, any such certificate or opinion of

counsel to be reasonably satisfactory to NFP and its counsel. The restrictions

referred to in Section 1.4.1(b) shall cease and terminate as to any particular

Covered Shares when, in the opinion of counsel for NFP, the provisions of this

Agreement are no longer applicable to such shares or this Agreement shall have

terminated in accordance with its terms. Any other restrictions referred to in

any other legends required pursuant to Section 1.4.1 shall cease and terminate

when, in the reasonable opinion of counsel for NFP, such restrictions are no

longer applicable. Whenever such restrictions shall cease and terminate as to

any Covered Shares, Stockholder shall be entitled to receive from NFP, without

expense (other than applicable transfer taxes, if any, if such unlegended shares

are being delivered and transferred to any Person other than the registered

holder thereof), new certificates for a like number of shares of Common Stock

not bearing the relevant legend(s) set forth or referred to in Section 1.4.1.

 

         Section 1.5 Prohibitions on Transfer.

 

         (a) Notwithstanding any other provision of this Agreement, Stockholder

agrees that, in addition to any restrictions imposed by law, including, without

limitation, Section 10(b) of the Exchange Act and Rule 10b-5 thereunder, and

except as permitted by Sections 1.3.1, Stockholder shall not Transfer, including

in

 

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accordance with Rule 144 under the Securities Act, any Covered Shares, except

that, at Stockholder's election:

 

               (i) if Stockholder initially acquired shares of Common Stock

         directly from NFP on or prior to the Follow-On Offering Deadline:

 

                    (A) during the period from and including March 15, 2004

               through and including December 16, 2004, in connection with an

               underwritten offering of Common Stock by NFP, Stockholder may

               Transfer up to 20% of its Applicable Total Shares, plus any

               shares the underwriters elect to purchase as part of the

                over-allotment option granted to them by the stockholders of NFP;

               or

 

                    (B) if during the period described in clause (A), NFP does

               not consummate an underwritten offering of Common Stock, then

                during the period commencing on the later of December 17, 2004 or

               the date that is 12 months after the date on which Stockholder

               initially acquired shares of Common Stock and ending with the

               commencement of the next Transfer Period (as defined below),

               subject to the provisions of any lockup agreement entered into

               from time to time in accordance with Section 2.6 hereof,

               Stockholder may Transfer up to 20% of its Applicable Total

               Shares; and

 

                    (C) in each 12-month period commencing 24 months after the

               date on which Stockholder initially acquired shares of Common

               Stock (each such period, together with the periods referred to in

               clauses (A) and (B) above and Section 1.5(a)(ii) below, a

               "Transfer Period"), subject to the provisions of any lockup

               agreement entered into from time to time in accordance with

                Section 2.6 hereof, Stockholder may Transfer the aggregate of any

               Holdover Amount plus up to 20% of its Applicable Total Shares,

               provided that commencing on the fifth anniversary of the date on

               which Stockholder initially acquired shares of Common Stock

               directly from NFP, Stockholder may freely Transfer any remaining

               shares of Common Stock; and

 

               (ii) if Stockholder initially acquired shares of Common Stock

         directly from NFP after the Follow-On Offering Deadline, in each

         12-month period commencing on the date that is 12 months after the date

         on which Stockholder initially acquired shares of Common Stock, subject

         to the provisions of any lockup agreement entered into from time to

         time in accordance with Section 2.6 hereof, Stockholder may Transfer

         the aggregate of any Holdover Amount plus up to 20% of its Applicable

         Total Shares, provided that after the fifth anniversary of the date on

         which Stockholder initially acquired shares of Common Stock,

         Stockholder may freely Transfer any remaining shares of Common Stock.

 

         (b) In any underwritten offering of Common Stock by NFP:

 

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         (i) participation in any such offering by Stockholder is subject to

cutback in accordance with Section 2.2.2 and the other provisions of this

Agreement, including, without limitation, Section 2.7;

 

         (ii) Stockholder may only elect to sell Covered Shares in such

percentage increment of its Applicable Total Shares (up to the maximum specified

in accordance with Section 1.5(a)) as shall be specified in writing by NFP; and

 

         (iii) notwithstanding the provisions of Section 1.5(a), NFP may permit

Stockholder to elect to participate in any over-allotment option granted to the

underwriters of such offering even though such participation may permit

Stockholder to Transfer more than the maximum determined in accordance with

Section 1.5(a), provided, however, that, except to the extent that any shares

included in any such over-allotment option were less than the maximum determined

in accordance with Section 1.5(a), any such shares that are not sold in such

underwritten offering shall not be entitled to included in Stockholder's

Holdover Amount in any subsequent Transfer Period.

 

         (c) As used in this Section, the following phrases shall have the

following meanings:

 

             "Applicable Total Shares" means:

 

         (i) the sum of (A) all Covered Shares owned of record and acquired by

Stockholder at least twenty business days prior to the first day of the first

Transfer Period during which Stockholder is eligible under this Section 1.5 to

sell Covered Shares (the "First Transfer Period") and (B) all Covered Shares

issuable to Stockholder upon the exercise of stock options held by Stockholder

that became exercisable on or prior to the first day of the First Transfer

Period;

 

         (ii) plus, all Covered Shares owned of record and acquired by

Stockholder in a private transaction directly from NFP after the First Transfer

Period, or any subsequent Transfer Period, as applicable, and at least twenty

business days before the first day of the next Transfer Period;

 

         (iii) plus, all Covered Shares issuable to Stockholder upon the

exercise of stock options held by it that became exercisable after the First

Transfer Period, or any subsequent Transfer Period, as applicable, and on or

prior to the first day of the next Transfer Period;

 

         (iii) less, the number of Covered Shares that have been Transferred by

Stockholder (and vested stock options that have been transferred by it in

accordance with the terms of the applicable grant and stock incentive plan) at

least twenty business days before the first day of the applicable Transfer

Period to a Permitted Transferee in accordance with Section 1.3.1. hereof; and

 

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         (iv) less, any Covered Shares purchased in the public market, either in

or after the IPO or through a Direct Stock Purchase Plan administered by NFP;

 

provided, however, that Applicable Total Shares shall not include any Covered

Shares of Stockholder held in escrow pursuant to an agreement between NFP and

Stockholder on the applicable date of determination; and provided further, that

Stockholder will only receive the benefit of including vested options in

Applicable Total Shares in the event the options are held in the same name of

the Stockholder; the concept of beneficial ownership is not relevant to this

determination.

 

         "Follow-On Offering Deadline" means, if NFP conducts an underwritten

public offering on or prior to December 16, 2004, twenty business days preceding

the pricing of such offering or, if no such offering is conducted, December 16,

2004.

 

         "Holdover Amount" means, as of any date, the aggregate of any Covered

Shares that Stockholder was permitted to Transfer in accordance with the

provisions of this Section in any completed Transfer Period that were not so

Transferred, including shares not so Transferred by reason of a prior cutback in

accordance with Section 2.2.2.

 

         Notwithstanding anything to the contrary contained herein:

 

                   (i) if, at any time after the first day of the first Transfer

         Period applicable to an Other Stockholder, such Other Stockholder

         transfers 100% of the Covered Shares held by it to Stockholder as a

         Permitted Transferee pursuant to Section 2.3.1 of this Agreement, then,

         solely for the purpose of calculating the "Applicable Total Shares" and

         "Holdover Amount" relating to such transferred Covered Shares, each

         reference to "Stockholder" contained in the foregoing definitions of

         "Applicable Total Shares" and "Holdover Amount" shall be deemed to be a

         reference to the Other Stockholder and such calculations shall be made

         without giving effect to such transfer.

 

                   (ii) if, at any time after the first day of the first Transfer

         Period applicable to Stockholder, Stockholder transfers 100% of the

         Covered Shares held by it at such time to a Permitted Transferee

         pursuant to Section 1.3.1 of this Agreement, then from and after such

         time (x) for the purpose of calculating "Applicable Total Shares", the

         amount calculated with respect to Stockholder as of the Cut-Off Date

         shall be deemed to be zero and (y) Stockholder's Holdover Amount as of

         such time shall be deemed to be zero.

 

                  (iii) if, at any time after the first day of the first

         Transfer Period applicable to an Other Stockholder, such Other

         Stockholder transfers fewer than 100% of the Covered Shares held by it

         to Stockholder as a Permitted Transferee pursuant to Section 2.3.1 of

         this Agreement and if, in connection with such transfer, Stockholder,

         such Other Stockholder and NFP shall have agreed in writing to

         calculate the "Applicable Total Shares" and the "Holdover Amount"

         relating to the Covered Shares held by Stockholder and such Other

         Stockholder in

 

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         a manner other than as provided herein, then the "Applicable Total

         Shares" and the "Holdover Amount" relating to such transferred Covered

         Shares held by Stockholder and such Other Stockholder shall be

         calculated as provided in such written agreement; provided, however,

         that under no circumstances shall such writing be deemed to cause

         either the aggregate "Applicable Total Shares" or the aggregate

         "Holdover Amount" relating to the Covered Shares held by Stockholder

         and such Other Stockholder to be greater than would obtain in the

         absence of such written agreement.

 

         (d) Notwithstanding anything to the contrary contained herein, "Covered

Shares" shall not be deemed to include shares of Common Stock (i) that were

purchased by Stockholder from NFP in an underwritten public offering; (ii) that

were purchased by Stockholder in the open market after [September 17], 2003; or

(iii) that are subject to a vesting schedule or a lock-up or other similar

restrictions on transfer as set forth either in a separate agreement or

arrangement between Stockholder and NFP or in a Company compensation, benefit or

award plan or policy.

 

         (e) Notwithstanding any other provisions of this Agreement, in the

event that Stockholder dies, upon a determination by the Board of Directors that

the provisions of this Article II result in undue hardship including, without

limitation, because of an obligation to pay estate taxes, the Board of Directors

may authorize the estate or legal representative of Stockholder to Transfer some

or all of the Covered Shares subject to such terms and conditions as are

determined by the Board of Directors.

 

         (f) The Board of Directors may, in its sole discretion, modify the

provisions of this Section to (i) increase the percentage of Applicable Total

Shares that may be sold by Stockholder in any Transfer Period or (ii) decrease

the period of time that Covered Shares will remain subject to the provisions of

this Section.

 

         (g) Notwithstanding any other provisions of this Agreement, the Board

of Directors, in its sole discretion, may waive the provisions of this Section

in connection with any business combination, restructuring, recapitalization or

other extraordinary transaction that has been approved by a majority of the

Board of Directors.

 

         (h) Notwithstanding any other provisions of this Section, Stockholder

may enter into a bona fide pledge with a commercial bank or other lending

institution with respect to any Holdover Amount, provided that Stockholder has

provided NFP with written notice not less than three business days prior to

consummation of such pledge.

 

         (i) In connection with a Transfer that is otherwise permitted under

this Section 1.5 (a "Permitted Transfer"), Stockholder may enter into an

agreement with a "charitable organization," as defined under Section 501(c)(3)

of the Internal Revenue Code, pursuant to which, immediately prior to such

Permitted Transfer, Stockholder may Transfer by gift to such charitable

organization a percentage of the Applicable Total Shares Stockholder is

otherwise eligible to Transfer in the relevant Transfer Period. Such charitable

organization shall be permitted to sell all such shares of Common Stock

 

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received by it simultaneous with Stockholder's Permitted Transfer; in each case

subject to the following conditions: (i) Stockholder may make only one such gift

in each Transfer Period and in each case such gift must be to a single

charitable organization, unless NFP elects to permit all Company Stockholders to

make gifts to more than one charitable organization; (ii) NFP shall notify

Stockholder of the maximum percentage of Applicable Total Shares Stockholder may

Transfer by gift to a charitable organization in each Transfer Period at least

30 days prior to the commencement of such Transfer Period and Stockholder may

not gift any shares in accordance with this Section 1.5(i) in such Transfer

Period in excess of such percentage; (iii) Stockholder must inform NFP in

writing of its intended gift to a charitable organization not less than 30 days

(or with such other lesser notice as shall be permitted by NFP as specified in

writing by NFP) prior to the Permitted Transfer; and (iv) NFP has the right to

receive prior to the date of the Permitted Transfer such documentation from the

charitable organization and/or Stockholder as NFP, in its sole discretion, deems

appropriate in connection with any such gift, including evidence substantiating

the charitable organization's status. NFP may, in its sole discretion and from

time to time, suspend this Section 1.5(i).

 

         (j) The provisions of this Section 1.5 shall no longer apply to

Stockholder if the Common Stock is no longer listed on a national securities

exchange or quoted on Nasdaq (as defined below).

 

                                   ARTICLE II

 

                               REGISTRATION RIGHTS

 

         Section 2.1 Certain Definitions

 

         (a) "Register," "registered," and "registration" refer to a

registration effected by preparing and filing a registration statement or

similar document in compliance with the Securities Act, and the automatic

effectiveness or the declaration or ordering of effectiveness of such

registration statement or document.

 

         (b) "Registrable Securities" shall mean the shares of Common Stock;

provided, however, that any shares of Common Stock that are sold to the public

pursuant to a registered public offering or pursuant to Rule 144 under the

Securities Act or another exemption from the registration requirements of the

Securities Act pursuant to which the shares of Common Stock are thereafter

freely tradeable without restriction under the Securities Act, or that cease to

be outstanding, shall cease to be Registrable Securities; provided further,

however, that any Registrable Securities acquired by Stockholder or Affiliate

thereof from any Other Stockholder or Affiliate thereof shall continue to be

Registrable Securities.

 

         (c) "Includable Registrable Securities" shall mean the maximum number

of Registrable Securities that may be Transferred by Stockholder as of the

applicable date of determination in accordance with Section 1.5.

 

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          Section 2.2 Piggyback Registration

 

         Section 2.2.1 Registration Rights. If NFP proposes to register for sale

by NFP any shares of Common Stock under the Securities Act in connection with

the public offering of such securities solely for cash (other than any

registration of public sales or distributions of securities issued pursuant to a

registration statement on Form S-8 or S-4 or any similar form), NFP shall, at

each such time, promptly give written notice of such registration to Stockholder

as a holder of Registrable Securities. Upon the written request of Stockholder

given within the time period specified by the Board of Directors (which period

shall be not more than 10 days and not less than 5 days) after mailing of such

notice by NFP, NFP shall, subject to the provisions of Section 2.7, use its

reasonable efforts to include or, in the case of an underwritten offering, cause

the underwriter or underwriters to include, in the offering, on the same terms

and conditions as the securities of NFP included in such offering, all of the

Includable Registrable Securities that Stockholder has requested to be

registered, provided, however, that if, at any time after giving written notice

of its intention to register any shares and prior to the effective date of the

registration statement filed in connection with such registration, NFP shall

determine for any reason not to register or to delay registration of such

shares, and Stockholder has requested registration pursuant to this Section 2.2,

NFP may, at its election, give written notice of such determination to

Stockholder and, thereupon, (x) in the case of a determination not to register,

NFP shall be relieved of its obligation to register any Registrable Securities

in connection with such registration and of all liability in connection

therewith (other than liability under Section 2.8 and expenses contemplated by

Section 2.5) and (y) in the case of a determination to delay such registration,

NFP shall be permitted to delay registration of any Registrable Securities

requested to be included in such registration statement for the same period as

the delay in registering such other shares. In the case of any registratio