Exhibit 10.1
Sample Stock Options for Prior
Stock Sales ("Option for Purchaser of Common Stock")
THIS OPTION AND THE SHARES OF COMMON STOCK ISSUABLE UPON EXERCISE OF THIS OPTION
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE SOLD OR
TRANSFERRED EXCEPT (i) UNDER COVER OF A REGISTRATION STATEMENT UNDER SUCH ACT
WHICH IS EFFECTIVE AND CURRENT WITH RESPECT TO THIS OPTION OR SUCH SHARES OF
COMMON STOCK, AS THE CASE MAY BE , OR (ii) PURSUANT TO THE WRITTEN OPINION OF
COUNSEL REASONABLY ACCEPTABLE TO THE COMPANY TO THE EFFECT THAT REGISTRATION
UNDER SUCH ACT IS NOT REQUIRED WITH RESPECT TO SUCH SALE OR TRANSFER.
FEDERAL TRUST CORPORATION
Option for the Purchase of Common Stock
No. Shares
FOR VALUE RECEIVED, FEDERAL TRUST CORPORATION, (the "Company"), a Florida
corporation, hereby certifies that or his permitted assigns are entitled to
purchase from the Company, at any time or from time to time commencing with the
date of issuance of this option, and prior to 5:00 P.M., New York City time then
current, on October 26, 1999, ( ) fully paid and nonassessable shares of the
common stock, par value $.01 per share, of the Company for an aggregate purchase
price of $ (computed on the basis of $10.00 per share). (Hereinafter, (i) said
common stock, together with any other equity securities which may be issued by
the Company with respect thereto or in substitution therefor, is referred to as
the "Common Stock", (ii) the Common Stock purchasable hereunder is referred to
as the "Option Shares", (iii) the aggregate purchase price payable hereunder for
the Option Shares is referred to as the "Aggregate Option Price", (iv) the price
payable hereunder for each of the Option Shares is referred to as the "Per Share
Option Price" and (v) this Option and all options hereafter issued in exchange
or substitution for this Option are referred to as the "Option"). The aggregate
Option Price is subject to adjustment. The Per Share Option Price is subject to
adjustment as hereinafter provided; in the event of any such adjustment, the
number of Option Shares shall be adjusted by dividing the Aggregate Option Price
by the Per Share Option Price in effect immediately after such adjustment.
1. Exercise of Option.
(a) Subject to subsection (b), this Option may be exercised, in
whole at any time or in part from time to time, commencing with the
date of issuance of this option, and prior to 5:00 P.M. New York
City time then current, on October 26, 1999, by the registered
holder of this Option or his permitted assigns (the "Holder") by
the surrender of this Option (with the subscription form at the end
hereof duly executed) at the address set forth in Subsection 9(a)
hereof, together with proper payment of the Aggregate Option Price,
or the proportionate part thereof if this Option is exercised in
part. Payment for Option Shares shall be made by check, payable to
the order of the Company. If this Option is exercised in part, this
Option must be exercised for at least 100 whole shares of Common
Stock and the Holder is entitled to receive a new Option covering
the number of Option Shares in respect of which this Option has not
be exercised and setting forth the proportionate part of the
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Aggregate Option Price applicable to such Option Shares. Upon such
exercise and surrender of this Option, the Company shall (i) issue
a certificate or certificates in the Holder's name for the largest
number of whole shares of Common Stock to which the Holder shall be
entitled and, if this Option is exercised in whole, in lieu of any
fractional share of Common Stock to which the Holder shall be
entitled, cash equal to the fair value of such fractional share
(determined in such reasonable manner as the Company's Board of
Directors (the"Board of Directors") shall determine), and (ii)
deliver the other securities and properties receivable upon the
exercise of this Option, or the proportionate part thereof if this
Option is exercised in part, pursuant to the provisions of this
Option.
(b) Except during the last 60 days of the term of this Option,
during which the following provision shall not apply, the number of
Option Shares that can be purchased by any Holder upon any exercise
of this Option, individually or collectively with other Option
Holders over any 60 day period (beginning with the date of first
exercise), may not exceed the percentage of the Holder's total
Option Shares as determined by multiplying all of the outstanding
shares of the Company's Common Stock as of the date of exercise by
25%, dividing that amount by the total number of Options on the
Company's Common Stock then outstanding, and then multiplying that
amount by the actual Option Shares owned by the Holder.
2. Reservation of Option Shares. Prior to the expiration of this Option,
the Company shall at all times have authorized and in reserve, and will
keep available, solely for issuance or delivery upon the exercise of this
Option, such number of shares of Common Stock and such amount of other
securities and properties as from time to time shall be deliverable to
the Holder upon the exercise of this Option, free and clear of all
restrictions on sale or transfer (except such as may be imposed under the
Securities Act of 1933, as amended (the "Act") and applicable state
securities laws) and free and clear of all preemptive rights.
3. Protection Against Dilution.
(a) If, at any time or from time to time after the date of this
Option, the Company shall distribute to the holders of its
outstanding Common Stock (i) securities, other than Common Stock,
or (ii) other property, other than cash, without payment therefor,
with respect to Common Stock, then, and in each such case, the
Holder, upon the exercise of this Option, shall be entitled to
receive the securities and property which the Holder would on the
date of such exercise if, on the date of this Option, the Holder
had been the holder of record of the number of shares of Common
Stock subscribed for upon such exercise and, during the period from
the date of this Option to and including the date of such exercise,
had retained such shares and the securities and property receivable
by the Holder during such period. Notice of each such distribution
shall be forthwith mailed to the Holder.
(b) If, at any time or from time to time after the date of this
Option, the Company shall (i) pay a dividend or make a distribution
on its capital stock in Common Stock. (ii) subdivide its
outstanding shares of Common Stock into a greater number of shares,
(iii) combine its outstanding shares of Common Stock into a smaller
number of shares or (iv) issue by reclassification of the Common
Stock any capital stock of the Company, the Per Share Option Price
in effect immediately prior to such action shall be adjusted so
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that the Holder shall be entitled to receive upon exercise of this
Option the number of shares of Common Stock or other capital stock
of the Company which he would have owned or been entitled to
receive immediately following the happening of any of the events
described above had this Option been exercised immediately prior
thereto. An adjustment made pursuant to this subsection (b) shall
become effective immediately after the record date in the case of a
dividend or distribution and shall become effective immediately
after the effective date in the case of a subdivision, combination
or reclassification. If, as a result of an adjustment made pursuant
to this Subsection (b), the Holder shall become entitled to receive
shares of two or more classes of capital stock or Common Stock and
other capital stock of the Company upon exercise of this Option,
the Board of Directors (whose determination shall be conclusive and
shall be described in a written notice to the Holder promptly after
such adjustment) shall determine the allocation of the adjusted Per
Share Option Price between or among shares of such classes of
capital stock or Common Stock and other capital stock; provided,
however, that (1) no further adjustment of the Per Share Option
Price shall be made upon the actual issuance of Common Stock upon
exercise or conversion of such securities and (2) on the
expiration, other than by exercise or conversion, of any right to
exercise or convert any such securities, the Per Share Option Price
then in effect shall forthwith be adjusted to a Per Share Option
Price determined by revising all calculations theretofore made in
respect of such securities as though the only Common Stock issuable
thereunder are those shares actually issued upon exercise or
conversion thereof.
(c) Except as provided in subsection 3(e), if the Company shall
hereafter issue or sell any Common Stock for a consideration per
share less than the Per Share Option Price in effect immediately
prior to such issuance or sale, the Per Share Option Price shall be
adjusted as of the date of such issuance or sale so that the same
shall equal the price determined by dividing (i) the sum of (A) the
number of shares of Common Stock outstanding immediately prior to
such issuance or sale multiplied by the Per Share Option Price plus
(B) the consideration received by the Company upon such issuance or
sale by (ii) the total number of shares of Common Stock outstanding
after such issuance or sale.
(d) No adjustment in the Per Share Option Price shall be required
in the case of (i) the grant by the Company of stock option to
employees of the Company under a Stock Option Plan to the extent
such grants do not exceed 70,000 shares of Common Stock or (ii) the
issuance of Common Stock upon the exercise of stock options
referred to in clause (i) hereof.
(e) In case of any consolidation or merger to which the Company is
a party other than a merger or consolidation in which the Company
is the continuing corporation, or in case of any sale or conveyance
to another entity of the property of the Company as an entirely or
substantially as an entirety, or in the case of any statutory
exchange of securities with another entity (including any exchange
effected in connection with a merger of any other corporation with
the Company), the Holder shall have the right thereafter to convert
this Option into the kind and amount of securities, cash or other
property which he would have owned or have been entitled to receive
immediately after such consolidation, merger, statutory exchange,
sale or conveyance had this Option been exercised immediately prior
to the effective date of such consolidation, merger, statutory
exchange, sale or conveyance and in any such case, if necessary,
appropriate adjustment shall be made in the application of the
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provisions set forth in this Section 3 with respect to the rights
and interests thereafter of the Holder to the end that the
provisions set forth in this Section 3 shall thereafter
correspondingly be made applicable, as nearly as may reasonably be,
in relation to and capital stock or other securities or property
thereafter deliverable on the exercise of this Option. The above
provisions of this Subsection 3(f) shall similarly apply to
successive consolidations, merger, statutory exchanges, sales or
conveyances. Notice of any such consolidation, merger, statutory
exchange, sale or conveyance, and of said provisions so proposed to
be made, shall be mailed to the Holder not fewer than 20 days prior
to such event. A sale of all or substantially all of the Company's
assets for a consideration consisting primarily of securities shall
be deemed a consolidation or merger for the foregoing purposes.
(f) No adjustment in the Per Share Option Price shall be required
unless such adjustment would require an increase or decrease of at
least $0.05 per share of Common Stock; provided, however, that any
adjustments which by reason of this Subsection (g) are not required
to be made shall be carried forward and taken into account in any
subsequent adjustment, and provided further, however, that
adjustments shall be required and made in accordance with the
provisions of this Section 3 (other than this Subsection (g)) not
later than such time as may be required to preserve the tax-free
nature of a distribution to the Holder of this Option or the
holders of Common Stock. All calculations under this Section 3
shall be made to the nearest cent or to the nearest 1/100th of a
share, as the case may be. Anything in this Section 3 to the
contrary notwithstanding, the Company shall be entitled to make
such reductions in the Per Share Option Price, in addition to those
required by this Section 3, as it in its discretion shall deem to
be advisable so that any stock dividend, subdivision of shares or
distribution of rights to purchase capital stock or securities
convertible or exchangeable for capital stock hereafter made by the
Company to its shareholders shall not be taxable.
(g) Whenever the Per Share Option Price is adjusted as provided in
this Section 3 and upon any modification of the rights of the
Holder in accordance with this Section 3, the Company shall
promptly obtain, at its expense, a certificate of a firm of
independent public accountants of recognized standing selected by
the Board of Directors (who may be the regular auditors of the
Company) setting forth the Per Share Option Price and the number of
Option Shares after such adjustment or the effect of such
modification, a brief statement of the facts requiring such
adjustment or modification and the manner of computing the same and
cause copies of such certificate to be mailed to the Holder.
(h) If the Board of Directors shall declare any dividend or other
distribution in cash with respect to the Common Stock, other than
out of earned surplus, the Company shall mail notice thereof to the
Holder not less than 15 days prior to the record date fixed for
determining shareholders entitled to participate in such dividend
or other distribution.
4. Fully Paid Stock; Taxes. The Common Stock represented by each and
every certificate for Option Shares delivered on the exercise of this
Option shall, at the time of such delivery, be validly issued and
outstanding, fully paid and nonassessable, and not subject to preemptive
rights, and the Company shall take all such actions as may be necessary
to assure that the par value or stated value, if any, per share of Common
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Stock is at all times equal to or less than the then Per Share Option
Price. The Company further covenants and agrees that it will pay, when
due and payable, any and all Federal and State stamp, original issue or
similar taxes that may be payable in respect of the issue of any Option
Share or certificate therefor.
5. Registration Under Securities Act of 1933.
(a) If, at any time and, from time to time during the period
commencing on October 27, 1990 and ending on October 26, 1999, the
Board of Directors of the Company shall authorize the filing of a
registration statement (any such registration statement being
hereinafter called a "Subsequent Registration Statement") under the
Act (other than a registration statement on a form which does not
include substantially the same information as would be required on
a form for the registration of Option Shares) in connection with
the proposed offer of any of its securities by it or any of its
shareholders, the Company shall (i) promptly notify the Holder and
each of the Holders, if any, of other Options and/or Option Shares
that such Subsequent Registration Statement will be filed and that
the Option Shares which are then held, and/or which may be acquired
upon the exercise of the Options, by the Holder and such holders,
will, at the Holder and such holders' request, be included in such
Subsequent Registration Statement or, if the rules, regulations and
releases of the Securities Exchange Commission, as the same may
from time to time be in effect, so require, in a post-effective
amendment to the Registration Statement (No. 33-27139)(the
"Original Registration Statement"), (ii) include in the securities
covered by such Subsequent Registration Statement or post-effective
amendment all Option Shares which it has been so requested to
include, (iii) use its best efforts to cause such Subsequent
Registration Statement or post-effective amendment to become
effective as soon as practicable and (iv) take all other action
necessary under any of the Laws to permit all Option Shares which
it has been so requested to include in such Subsequent Registration
Statement or post-effective amendment to be sold or otherwise
disposed of, and will maintain such compliance with each such
federal and state law and regulation of any governmental authority
for the period necessary for the Holder and such holders to effect
the proposed sale or other disposition.
Notwithstanding the provisions of this Subsection 5(a), if any such
proposed Offering by the Company or any of its shareholders is
underwritten, the Company may exclude the Option Shares from such
offering if and to the extent the managing underwriter believes in
good faith that the inclusion of the Option Shares therein would
materially adversely affect such offering; provided, however, that
(i) any such exclusion shall apply pro rata to all holders of
capital stock of the Company exercising rights similar to those set
forth in this Subsection 5(a) in proportion to the respective
number of shares that such holders have requested to be registered
and (ii) the Company shall take such steps as are set forth in this
Subsection 5(a) so as to permit the Option Shares so excluded to be
sold in a public offering to commence not later than 90 days after
the consummation of such underwritten Offering.
The Company shall have the right to withdraw or delay the
effectiveness of any Subsequent Registration Statement or
post-effective amendment referred to in this Subsection 5(a) when,
in judgement of the Board of Directors of the Company, the
Company's ability to proceed with any material transaction
including but not limited to any financing, merger, consolidation
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or acquisition, is adversely affected because of the pendency of
such Subsequent Registration Statement or post-effective amendment.
If the Company exercises such right, the Company shall, after the
need for such withdrawal or delay has ceased, take such steps as
are set forth in this Subsection 5(a) so as to permit the Option
Shares to be sold in a public offering as promptly as possible
thereafter.
(b) Whenever the Company is required pursuant to the provisions of
this Section 5 to include Option Shares in a registration statement
or a post-effective amendment to a registration statement, the
Company shall (i) furnish each holder of any such Option Shares and
each underwriter of such Option Shares which such copies of the
prospectus, including the preliminary prospectus, conforming to the
Act (and such other documents as each such holder or each such
underwriter may reasonably request) in order to facilitate the sale
or distribution of the Option Shares, (ii) use its best efforts to
register or qualify such Option Shares under the blue sky laws (to
the extent applicable) of such jurisdiction or jurisdictions as the
holders of any such Option Shares and each underwriter of Option
Shares being sold by such holders shall reasonably necessary or
advisable to enable such holders and such underwriters to
consummate the sale or distribution in such jurisdiction or
jurisdictions in which such holders shall have reasonably requested
that the Option Shares be sold.
(c) The Company shall pay all its expenses in the performance of
its obligations under this Agreement including, but not limited to,
its obligation set forth in this Section 5.
(d) The Company shall indemnify the holders of Option Shares which
are included in each registration statement, Subsequent
Registration Statement and post-effective amendment to the Original
Registration Statement referred to in Section 5(a) hereof
substantially to the same extent as the Company had indemnified the
underwriters (the"Underwriters") of its public offering of Common
Stock pursuant to the Agency Agreement dated May 12, 1989 and such
holders will indemnity the Company (and the Underwriters, if
applicable) with respect to information furnished by them writing
to the Company for inclusion herein substantially to the same
extent as the Underwriters have indemnified the Company.
Notwithstanding the foregoing, no provision of this Section 5 shall
require the Company to (i) qualify generally to do business or as a
dealer in securities in any jurisdiction where it would not
otherwise be required to so qualify or (ii) file a general consent
to service of process in any jurisdiction.
6. Limited Transferability. This Option shall not be sold, assigned,
transferred or hypothecated by the Holder except (a) to any successor
firm or corporation of DeRand/Pennington/Bass, Inc., (b) to any of the
officers of DeRand/Pennington/Bass, Inc., or of any such successor firm
or (c) in the case of an individual, pursuant to such individual's last
will and testament or the laws of descent and distribution, and is so
transferable only upon the books of the Company which it shall clause to
be maintained for the purpose. The Company may treat the registered
Holder of this Option as he or it appears on the Company's books at any
time as the Holder for all purposes. The Company shall permit the Holder
or his duly authorized attorney, upon written request during ordinary
business hours, to inspect and copy or make extracts from its books
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showing the registered holders of Options. All Options will be dated the
same date as this Option.
7. Loss, etc., of Option. Upon receipt of evidence satisfactory to the
Company of the loss, theft, destruction or mutilation of this Option, and
of indemnity reasonably satisfactory to the Company, if lost, stolen or
destroyed, and upon surrender and cancellation of this Option, if
mutilated, upon reimbursement of the Company's reasonable incidental
expenses, the Company shall execute and deliver to the Holder a new
Option of like date, tenor and denomination.
8. Option Holder, Not Stockholder. This Option does not confer upon the
Holder any right to vote or to consent to or receive notice as a
shareholder of the Company, as such, in respect of any matters
whatsoever, or any other rights or liabilities as a shareholder.
9. Communication. No notice or other communication under this Option
shall be effective unless, but any notice or other communication shall be
effective and shall be deemed to have been given if, the same is in
writing and is mailed by first-class mail, postage prepaid, addressed to:
(a) the Company at 1240 Orange Avenue, Winter Park, Florida 32789,
or such other address as the Company has designed in writing to the
Holder.
10. Headings. The headings of this Option have been inserted as a matter
of convenience and shall not affect the construction thereof.
11. Applicable Law. This Option shall be governed by and construed in
accordance with the laws of the State of Florida without giving effect to
the principles of conflicts of law thereof.
IN WITNESS WHEREOF, FEDERAL TRUST CORPORATION, has caused this Option to be
signed by its President and its corporate seal to be hereunder affixed and
attested by its Secretary this 18th day of November, 1994 and be issued to the
holder in substitution for Option # .
ATTEST: FEDERAL TRUST CORPORATION
Corporate Secretary
By:
President
[CORPORATE SEAL]
SUBSCRIPTION
The undersigned, _________________________ , pursuant to the provisions of the
foregoing Option, hereby agrees to subscribe for and purchase _______ shares of
the Common Stock of FEDERAL TRUST CORPORATION covered by said Option, and makes
payment therefor in full at the price per share provided by said Option.
Dated: Signature:
Address:
ASSIGNMENT
FOR VALUE RECEIVED _____________________ hereby sells, assigns and transfer unto
_______________________ the foregoing Option and all rights evidenced thereby,
and does irrevocably constitute and appoint _______________________ , attorney,
to transfer said Option on the books of FEDERAL TRUST CORPORATION.
Dated: Signature:
Address:
PARTIAL ASSIGNMENT
FOR VALUE RECEIVED______________________________ hereby assigns and transfers
unto ______________________________________________ the right to purchase
___________ shares of the Common Stock of FEDERAL TRUST CORPORATION by the
foregoing Option, and a proportionate part of said Option and the rights
evidenced hereby, and does irrevocably constitute and appoint
________________________ , attorney, to transfer that part of said Option on the
books of FEDERAL TRUST CORPORATION.
Dated: Signature:
Address:
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