Exhibit 10.2
AMENDED AND RESTATED
EMPLOYER NONQUALIFIED STOCK OPTION PLAN OF
CONTINENTAL OZARK CORPORATION
1. Purpose.
This Employee Nonqualified Stock Option Plan (the "Plan") is intended as an
employment incentive and to encourage stock ownership by key employees or
individuals who may become key employees of Continental Ozark Corporation (the
"Corporation") and its Subsidiaries (as defined herein) in order to increase
their proprietary interest in the Corporation's success. Options granted under
the Plan are not intended to qualify as "Incentive Stock Options" under the
Internal Revenue Code of 1986, as amended.
2. Eligibility.
The individuals who shall be eligible to participate in the Plan shall be
key or potential key employees of the Corporation or of its Subsidiaries. A
corporation shall be considered a Subsidiary if the Corporation owns, directly
or indirectly, not less than 50% of the total combined voting power of all
classes of stock in such corporation. Such key or potential key employees shall
be personnel of the Corporation or any Subsidiary who have or will have
responsibility for the management, direction and financial success of the
Corporation. More than one option may be granted from time to time to any
employee.
The holders of options shall not be, or have any of the rights or
privileges of, a stockholder of the Corporation in respect of any shares
purchasable upon the exercise of any part of an option unless and until
certificates representing such shares shall have been issued by the Corporation
to such holders.
3. Stock.
Stock subject to options and other provisions of this Plan shall be shares
of authorized and unissued or re-acquired $.10 par value Common Stock of the
Corporation (the "Common Stock"). Subject to adjustment in accordance with the
provisions hereof, the total number of shares of Common Stock of the Corporation
which may be purchased by individuals pursuant to options granted under the Plan
shall not exceed, in the aggregate, more than 300,000 of the authorized Common
Stock of the Corporation.
In the event that any outstanding option under the Plan expires or is
terminated for any reason, the shares of Common Stock allocable to the
unexercised portion of such option may again be subjected to an option under the
Plan.
4. Terms and Conditions of Options.
Stock options granted pursuant to the Plan shall be evidenced by agreements
in such form and on such terms as the Committee of the Corporation administering
this Plan (the "Committee") shall from time to time approve, which agreements
shall comply with and be subject to the following terms and conditions:
a. Option Price: The option price shall be set by the Administrative
Committee.
b. Number of Shares: The option shall state the total number of shares
(subject to adjustment as provided herein) to which it pertains.
c. Term of Options: Each option granted under the Plan shall be for a
term to be set by the Administrative Committee.
d. Payment for Shares: Payment for shares of Common Stock purchased shall
be made in such manner as the Committee shall determine, but in any
event may be made in cash.
e. Other Provisions: Agreements or documents concerning grants of options
under the Plan may contain such other provisions as the Committee, in
its discretion, deems advisable.
5. Assignability.
No option shall be assignable or transferable unless specifically approved
by the Committee except by will or by the laws of descent and distribution.
During the lifetime of the optionee, an option shall be exercisable only by him,
or his legal representative on his behalf.
6. Right of First Refusal.
a. Prior to Common Stock of the Company being publicly traded:
(1) No person, estate or entity (other than a then existing employee)
shall exercise any options issued (directly or indirectly)
hereunder without first offering, in writing, to the Company for
30 days, the opportunity to purchase the options proposed to be
exercised at the exercise price of the options plus any
percentage increase in the book value of the Company from the
time said options were issued. The book value calculations shall
be based upon the audited financial statements of the Company
preceding the issuance of the options and preceding the notice of
election to exercise the same. If the Company fails to accept
said offer to purchase, the option shall be exercised.
(2) No person, estate or entity shall sell and/or transfer shares of
the Corporation issued (directly or indirectly) hereunder unless
the Shareholder desiring to make the sale or transfer shall have
first offered in writing for a period of 30 days to the
Corporation the opportunity to purchase the stock under the same
terms and conditions as the proposed sale or transfer. If the
Transferor shall fail to make such transfer within thirty (30)
days following the expiration of the time herein provided for the
election by the Corporation such shares shall again become
subject to all restrictions hereof.
b. Employment by the Corporation shall be deemed to include employment by
a Subsidiary. The Committee shall have the authority to determine
whether or not an optionee has terminated his employment with the
Corporation.
c. No option granted under the Plan may be exercised at any time after
its term.
7. Administration.
Unless otherwise provided, the Plan shall be administered by a Committee,
consisting of two or more members of the Corporation's Board of Directors. The
Committee shall have full power and authority to designate participants and to
interpret the provisions and supervise the administration of the Plan and shall
be deemed to be the Compensation Committee of the Corporation until changed by a
majority vote of the Board of Directors.
8. Recapitalization.
a. The existence of this Plan and options granted hereunder shall not
affect in any way the right or power of the Corporation or its
stockholders to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the
Corporation's capital structure or its business or any merger or
consolidation of the Corporation, or any issue of bonds, debentures or
preferred or prior preference stocks ahead of or affecting the Common
Stock or the rights thereof; or the dissolution or liquidation of the
Corporation; or any sale or transfer of all or any other corporate act
or proceeding, whether of a similar character or otherwise.
In the event of (i) any of the foregoing actions (except where the
sole purpose is to change the Corporation's domicile) pursuant to
which the Corporation is not
to survive immediately following such actions, or (ii) any change of
control of the Corporation (as determined by the Committee in office,
prior to any action constituting a change of control) then,
notwithstanding any other provision herein to the contrary, all
unmatured installments of options outstanding shall thereupon
automatically be accelerated and exercisable in full without regard to
the provisions established under Section 4 hereof.
b. The aggregate number of shares of Common Stock which may be purchased
pursuant to any option granted hereunder and the consideration payable
per share upon exercise, shall be proportionately adjusted for any
increase or decrease in the number of issued shares of common stock
resulting from a subdivision or consolidation of shares or other
capital adjustment, or the payment of a stock dividend or other
increase or decrease in such shares, effected without receipt of
consideration by the Corporation.
c. Subject to any required action by the stockholders, if the Corporation
shall be the surviving or resulting Corporation in any merger or
consolidation, any option granted hereunder shall pertain to and apply
to the securities or rights (including cash, property or assets) to
which a holder of the number of shares of Common Stock subject to the
option would have been entitled. In the event of any merger or
consolidation pursuant to which the Corporation is not the surviving
or resulting Corporation, there shall be substituted for the shares of
Common Stock subject to the unexercised portion of such outstanding
options, an appropriate number of shares
of each class of stock or other securities of the amount of cash,
property or assets of the surviving or consolidated corporation in
respect of such shares of Common Stock, such outstanding options to be
thereafter exercisable for such stock, securities, cash or property in
accordance with their terms. Notwithstanding the foregoing however,
all such options may be canceled by the Corporation as of the
effective date of any such reorganization, merger or consolidation or
of any dissolution or liquidation of the Corporation by giving notice
to each holder thereof or his personal representative of its intention
to do so and by permitting the purchase during the thirty (30) day
period next preceding such effective date of all of the shares subject
to such outstanding options, without regard to any provisions under
Section 4 hereof.
9. Non-Adjustment.
Except as hereinbefore expressly provided, the issue by the Corporation of
shares of stock of any class, or securities convertible into shares of stock of
any class, for cash or property, or for labor services either upon direct sale
or upon the exercise of rights or warrants to subscribe therefor, or upon
conversion of shares or obligations of the Corporation convertible into such
shares or other securities, shall not affect, and no adjustment by reason
thereof shall be made with respect to, the number or price of shares of Common
Stock subject to options granted pursuant to this Plan.
10. Computation of Adjustment.
Upon the occurrence of each event requiring an adjustment of the exercise
price or the number of shares purchasable pursuant to options granted pursuant
to the terms of this Plan, the Corporation shall mail forthwith to each optionee
a copy of its computation of such adjustment which shall be conclusive and shall
be binding upon each such optionee, except as to any optionee who
contests such computation by written notice to the Corporation within
thirty (30) days after receipt thereof by such optionee.
11. Record Dates, Etc.
In case at any time after date of grant:
a. The Corporation shall take a record of the holders of its Common Stock
for the purpose of entitling them to receive a dividend payable
otherwise than in cash, or any distribution in respect of the Common
Stock (including cash), pursuant to, without limitation, any spin-off,
split-off or distribution of the Corporation's assets; or
b. the Corporation shall take a record of the holders of its Common Stock
for the purpose of entitling them to subscribe for or purchase any
shares of stock of any class or to receive any other rights; or
c. of any classification, reclassification or other reorganization of the
capital stock of the Corporation, consolidation or merger of the
Corporation with or into another corporation, or conveyance of all or
substantially all of the assets of the Corporation; or
d. of the voluntary or involuntary dissolution, liquidation or winding up
of the Corporation;
then the Corporation shall mail to each optionee, at least thirty (30) days
prior thereto, a notice stating the date or expected date on which a record is
to be taken for the purpose of such dividend, distribution or rights, or the
date on which such classification, reclassification, reorganization,
consolidation, merger, conveyance, dissolution, liquidation or winding up is to
take place, as the case may be. Such notice shall also specify the date or
expected date, if any is to be fixed, as of which holders of Common Stock of
record shall be entitled to participate in said dividend, distribution or
rights, or shall be entitled to exchange their shares of Common Stock for
securities or other property deliverable upon such classification,
reclassification, reorganization, consolidation, merger, conveyance,
dissolution, liquidation or winding up, as the case may be.
12. Liquidation, Dissolution.
In case the Corporation shall at any time while any option under this Plan
shall be in force and remain unexpired, sell all or substantially all its
property or dissolve, liquidate or wind up its affairs, each optionee may
thereafter receive upon exercise hereof in lieu of each share of Common Stock of
the Corporation which such optionee would have been entitled to receive, the
same kind and amount of any securities of assets as may be issuable,
distributable or payable upon any such sale, dissolution, liquidation or winding
up with respect to each share of Common Stock of the Corporation. In the event
that the Corporation shall at any time prior to the expiration of any option
make any partial distribution of its assets, in the nature of a partial
liquidation, whether payable in cash or in kind (but excluding the distribution
of a cash dividend payable out of earned surplus and designated as such) then in
such event the exercise prices then in effect with respect to each option, shall
be reduced, on the payment date of such distribution, in proportion to the
percentage reduction in the tangible book value of the shares of the
Corporation's Common Stock (determined in accordance with generally accepted
accounting principles) resulting by reason of such distribution.
13. Company Performance.
The Corporation will not, by amendment of its Certificate of Incorporation
or through reorganization, consolidation, merger, dissolution or sale of assets,
or by any other voluntary act or deed, avoid or seek to avoid the observance or
performance of any of the covenants, stipulations or conditions to be observed
or performed hereunder by the Corporation, but will at all times in good faith
assist, insofar as it is able, in the carrying out of all provisions hereof, and
in the taking of all other legally available action which may be necessary in
order to protect the rights of each optionee against dilution, subject to the
terms hereof. Without limiting the generality of the foregoing, the Corporation
agrees that it will not increase the par value of shares or its Common Stock
above the lowest exercise price then in effect, and that, before taking any
action which would cause an adjustment reducing any such exercise price below
the then par value of the shares of Common Stock, the
Corporation will take any corporate action which may, in the opinion of its
counsel, be necessary in order that the Corporation may validly and legally
issue fully paid and nonassessable shares of its common Stock at the exercise
price as so adjusted.
14. Options in Substitution for Stock Options
Granted by Other Corporations.
Stock options may be granted under the Plan from time to time in
substitution for such options held by employees of a corporation who become or
are about to become key employees of the Corporation or Subsidiary as the result
of a merger or consolidation of the employing corporation with the Corporation
or a Subsidiary of the acquisition by the Corporation of a Subsidiary of stock
of the employing corporation as the result of which it becomes a Subsidiary. The
terms and conditions of the substitute options so granted may vary from the
terms and conditions set forth under Section 4 of this Plan to such extent as
the Committee at the time of grant may deem appropriate to conform, in whole or
in part, to the provisions of the options in substitution for which they are
granted.
15. Amendments.
The Committee or the Board of Directors of the Corporation may at any time,
by unanimous vote, without the consent of the optionees, alter, amend, revise,
suspend, or discontinue the Plan, provided that such action shall not adversely
affect options theretofore granted under the Plan. The Committee or the Board of
Directors may amend the Plan or modify the agreements evidencing same in order
to comply with any exemption from the operation of Section 16(b) of the
Securities Exchange Act of 1934, as amended.
16. Application of Funds.
The proceeds received by the Corporation from the exercise of options and
the resultant sale of Common Stock pursuant thereto will be used for general
corporate purposes.
17. No Obligation to Exercise Option.
The granting of an option shall impose no obligation upon any optionee to
exercise such option.
18. Approval of Stockholders.
The Plan shall be effective as of September 12, 1990, but subject to its
approval by the stockholders of the Corporation either prior to the effective
date or at a meeting held subsequent to the effective date of this Plan. In the
event stockholder approval is not obtained, this Plan shall thereupon terminate
and be rendered null and void. No shares of Common Stock shall be issued
pursuant to an option, prior to compliance with requirements under applicable
laws and regulations.
19. Governmental Regulations.
Notwithstanding any of the provisions hereof, or of any option granted
hereunder, the obligation of the Corporation to sell and deliver shares under
such options shall be subject to all applicable laws, rules and regulations and
to such approvals by any governmental agencies or national securities exchanges
as may be required, and the optionee shall agree that he will not exercise any
option granted hereunder, and that the Corporation will not be obligated to
issue any shares under any such option, if the exercise thereof or if the
issuance of such shares shall constitute a violation by the optionee or the
Corporation of any provision of any law or regulation of any governmental
authority.
20. Corporation Covenants.
a. To the extent the option price per share of Common Stock covered by
options pursuant to this Plan equals or exceeds par value per share,
all shares issued upon exercise of options granted pursuant to this
Plan and in accordance with the terms hereof, will be, upon issuance
and payment therefor, fully paid and nonassessable and free from all
taxes, liens, and charges with respect to the issue thereof (other
than taxes in respect of any transfer occurring contemporaneously with
such issue).
b. During the term of the Plan, the Corporation will at all times have
authorized and reserved a sufficient number of shares of Common Stock
to provide for the exercise of all shares under options granted
pursuant to this
Plan.
c. So long as any Common Stock of the Corporation is listed on any
national securities exchange, the Corporation shall use its best
efforts to list on such exchange, upon official notice of issuance
upon exercise of options granted under the Plan, and to maintain the
listing of, all shares of Common Stock issuable upon the exercise of
options granted pursuant to the Plan; and the Corporation will use its
best efforts to list on said exchange and to maintain each listing of
any other securities of the Corporation which may be acquired upon
exercise of this option, if so adjusted or modified pursuant to the
terms of Section 8 hereof.
AMENDED AND RESTATED PLAN ADOPTED AND APPROVED by the Board of
Directors and Shareholders, March 26, 1991.
/s/
E. G. Bradberry,
Chairman