EXHIBIT 10.11
THIS STOCK OPTION AGREEMENT, THE OPTIONS
EVIDENCED HEREBY AND THE COMMON STOCK TO WHICH THEY RELATE HAVE NOT
BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 AND
THE ALABAMA SECURITIES ACT (THE “SECURITIES ACTS”) BUT
HAVE BEEN ISSUED PURSUANT TO AN EXEMPTION FROM SUCH REGISTRATION
AND MAY NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR
OTHERWISE DISPOSED OF IN WHOLE OR IN PART EXCEPT IN ACCORDANCE WITH
THE TERMS OF THIS STOCK OPTION AGREEMENT AND UNLESS REGISTERED OR
EXEMPTED FROM REGISTRATION UNDER THE SECURITIES ACTS.
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No.
NISO-001
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January 15, 1992
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INCORPORATORS STOCK OPTION
AGREEMENT
To Subscribe for and purchase shares of Common
Stock, par value $1.00, of
FINANCIAL INVESTORS OF THE SOUTH,
INC.
THIS INCORPORATORS STOCK OPTION
AGREEMENT (this “Agreement”) provides and certifies
that W. Dan Puckett (hereinafter the “Optionholder”),
is the owner of Thirty Thousand (30,000) Options, each of
which entitles the owner thereof to purchase from Financial
Investors of the South, Inc., a Delaware corporation, or its
successors (hereinafter called the “Company”), at any
time until the expiration hereof, one (1) share of Common
Stock of the Company (individually, a “Common Share”
and collectively, the “Common Shares”), at a price
which is the greater of (i) Ten Dollars ($10.00) per share
(the “Fixed Exercise Price”), or (ii) the book
value of a share of Common Stock as of the end of the immediately
preceding quarter ended based upon the number of Common Shares
outstanding on the date of exercise (the “Variable Exercise
Price”), calculated by the Company’s regular
independent certified accountants in accordance with generally
accepted accounting principles (together the Fixed Exercise Price
and the Variable Exercise Price are collectively referred to as the
“Exercise Price”). For purposes of this Agreement, the
term “Common Shares” shall mean the class of capital
stock of the Company designated as common stock, par value $1.00,
as of the date hereof and any other class of capital stock of the
Company resulting from successive changes or reclassifications of
the Common Shares. This Agreement is made and entered into in
consideration of the past and future services provided and to be
provided by the Optionholder to the Company; provided that
this Agreement is not subject to and shall not bind the
Optionholder to provide any such future services.
1. Exercise of Options . The
Options evidenced hereby may be exercised by the Optionholder
hereof, in whole or in part, at any time, and from time to time, on
or before 5:00 P.M., Central time, on January 15, 2004,
by the surrender of this Agreement, duly endorsed (unless
endorsement is waived by the Company), with the form of exercise at
the end hereof duly executed by such Optionholder, at the principal
office of the Company (or at such other office or
agency of the Company as it may designate by
notice in writing to the Optionholder hereof at such
Optionholder’s last address appearing on the books of the
Company) and upon payment to the Company by certified or official
bank check or checks payable to the order of the Company of the
purchase price of the Common Shares purchased. The Company agrees
that the Common Shares so purchased shall be deemed to be issued to
the Optionholder hereof on the date on which this Agreement shall
have been surrendered and payment made for such Common Shares as
aforesaid; provided , however , that no such
surrender and payment on any date when the stock transfer books of
the Company shall be closed shall be effective to constitute the
person entitled to receive such Common Shares as the record holder
thereof on such date, but such surrender and payment shall be
effective to constitute the person entitled to receive such Common
Shares as the record holder thereof for all purposes immediately
after the opening of business on the next succeeding day on which
such stock transfer books are open. The certificate(s) for such
Common Shares shall be delivered to the Optionholder within a
reasonable time after Options evidenced hereby shall have been so
exercised and a new Incorporators Stock Option Agreement, in
substantially the form hereof, evidencing the number of Options, if
any, remaining unexercised shall also be issued to the Optionholder
within such time unless such Options shall have expired. The right
to exercise the Options represented hereby shall expire at
5:00 P.M., Central time, on January 15, 2004. This
Agreement shall terminate at the time of expiration and shares
covered hereby shall be released to the Company.
2. Certain Terms . For
purposes hereof, the following shall be applicable:
a. Record Date . In case the
Company shall take a record of the holders of its Common Shares for
the purpose of entitling them (i) to receive a dividend or
other distribution payable in Common Shares or securities
convertible into or exchangeable for Common Shares
(“Convertible Securities”) or (ii) to subscribe
for or purchase Common Shares or Convertible Securities, then such
Common Shares or Convertible Securities shall be deemed to have
been issued or sold on such record date as a result of the
declaration of such dividend or such other distribution or the
granting of such right of subscription or purchase, as the case may
be.
b. Reorganization,
Reclassification, Consolidation, Merger . Prior to the full
exercise of the Options evidenced hereby, the Company shall not
effect any capital reorganization, reclassification of the capital
stock of the Company, any consolidation or merger of the Company
with or into another corporation, or any sale, transfer or other
disposition of all or substantially all of the Company’s
properties to another person, unless as a condition to such
reorganization, reclassification, consolidation, merger, sale,
transfer or other disposition lawful and adequate provision shall
be made (including by the issuance of an option agreement in
substitution herefor, which option agreement, in order to protect a
holder of options from any dilutive event affecting the Company or
successor or surviving corporation, as applicable, and/or affecting
the common stock which is the subject of the substitute option
agreement, shall provide for normal and customary antidilution
provisions acceptable to each holder of Options and his counsel,
including provision for adjustments based upon a market price and a
conversion price formula), in form and substance reasonably
satisfactory to each Optionholder and his counsel, whereby each
Optionholder shall from time to time thereafter have the right to
purchase and receive upon the basis and upon the terms and
conditions herein specified and in lieu of the Common Shares from
time to time theretofore issuable upon exercise of the Options,
such shares
of stock, securities or properties as may be
issuable or payable with respect to or in exchange for a number of
outstanding Common Shares equal to the number of Common Shares
immediately theretofore issuable upon exercise of the Options, had
such reorganization, reclassification, sale, transfer, disposition,
consolidation or merger not taken place, and in any such case
appropriate provision shall be made with respect to the rights and
interests of each holder of Options to the end that the provisions
hereof shall thereafter be applicable, as nearly equivalent as may
be practicable in relation to any shares or stock, securities or
properties thereafter deliverable upon the exercise
thereof.
The Company shall not effect any
such consolidation, merger, sale, transfer or other disposition,
unless prior to or simultaneously with the consummation thereof the
successor corporation, if other than the Company, resulting from
such consolidation or merger, or the corporation purchasing or
otherwise acquiring such properties shall assume, by written
instrument executed and mailed or delivered to the holders of
Options at the last address of such holders appearing on the books
of the Company, the obligation to deliver to such holders such
shares of stock, securities or properties, in accordance with the
foregoing provisions, as such holders may be entitled to acquire.
The above provisions of this subparagraph (b) shall similarly
apply to successive reorganizations, reclassifications,
consolidations, mergers, sales, transfers, or other
dispositions.
c. Fractional Shares . Upon
exercise of the Options, fractional Common Shares shall not be
issued but any fractional interests in a Common Share resulting
therefrom shall be purchased by the Company for the price obtained
by multiplying such fractional interest by the fair market value of
a Common Share on the date of such exercise as determined in good
faith by the board of directors of the Company.
3. Anti-Dilution Provisions
.
a. In the event the Company should
at any time or from time to time after the _____________ ____, 1992
(the “Original Issue Date”), fix a record date for the
effectuation of a split or subdivision of the outstanding Common
Shares or the determination of holders of Common Shares entitled to
receive a dividend or other distribution payable in additional
Common Shares or other securities or rights convertible into, or
entitling the holder thereof to receive directly or indirectly,
additional Common Shares (hereinafter referred to as “Common
Share Equivalents”) without payment of any consideration by
such holder for the additional Common Shares or the Common Share
Equivalents (including the additional Common Shares issuable upon
conversion or exercise thereof), then, as of such record date (or
the date of such dividend, distribution, split or subdivision if no
record date is fixed), the Fixed Exercise Price shall be adjusted
to equal the product obtained by multiplying the Fixed Exercise
Price by a fraction the numerator of which is the number of
outstanding Common Shares prior to such split, subdivision,
dividend or distribution and the denominator of which is the number
of outstanding Common Shares after giving effect to such split,
subdivision, dividend or distribution.
b. If the number of Common Shares
outstanding at any time after the Original Issue Date is decreased
by a combination of the outstanding Common Shares, then, following
the record date of such combination, the Fixed Exercise Price shall
be adjusted to equal the product obtained by multiplying the Fixed
Exercise Price by a fraction the numerator