Exhibit 10.2
CONN APPLIANCES, INC.
2003 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
Table of Contents
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Page
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1. Purposes of this Plan......................................................1
2. Establishment..............................................................1
3. Definitions................................................................1
4. Stock Subject to this Plan.................................................3
5. Administration of this Plan................................................3
6. Stock Options..............................................................3
7. Exercise of Option.........................................................4
8. Approval, Amendment, and Termination of this Plan..........................5
9. Limited Transferability of Options.........................................6
10. Conditions Upon Issuance of Shares.........................................6
11. Inability to Obtain Authority..............................................6
12. Reservation of Shares......................................................6
13. Right to Continued Board Membership........................................6
14. Reliance on Reports........................................................6
15. Construction...............................................................6
16. Governing Law..............................................................7
17. Adjustments Upon Changes in Capitalization, Merger or Asset Sale...........7
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CONN APPLIANCES, INC.
2003 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
1. Purposes of this Plan. This Plan is established by the Company to aid
in attracting and retaining persons of outstanding competence to serve on the
Board of Directors who are not employed by the Company. This Plan is intended to
enable such persons to acquire or increase ownership interests in the Company on
a basis that will encourage them to use their best efforts to promote the growth
and profitability of the Company. Consistent with these objectives, this Plan
provides for the granting of Options to Non-Employee Directors on the terms and
subject to the conditions set forth in this Plan. Options granted under this
Plan do not qualify as "incentive stock options" within the meaning of Section
422 of the Code.
2. Establishment. This Plan is effective as of _______ __, 2003.
3. Definitions. As used herein, the following definitions shall apply:
(a) "Applicable Laws" means the requirements relating to the
administration of stock option plans under U.S. state corporate laws, U.S.
federal and state securities laws, the Code, any stock exchange or
quotation system on which the Common Stock is listed or quoted and the
applicable laws of any other country or jurisdiction where Options are
granted under this Plan.
(b) "Board" means the Board of Directors of the Company.
(c) "Change of Control" means (i) the acquisition of the Company by
another entity by means of any transaction or series of related
transactions (including, without limitation, any reorganization, merger or
consolidation, but excluding any merger effected primarily for the purpose
of changing the domicile of the Company), unless the Company's shareholders
of record as constituted immediately prior to such transaction or series of
related transactions will, immediately after such transaction or series of
related transactions hold at least a majority of the voting power of the
surviving or acquiring entity or (ii) a sale of all or substantially all of
the assets of the Company.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(e) "Common Stock" means the Company's common stock.
(f) "Company" means Conn Appliances, Inc., a Texas corporation, and
any successor to the Company.
(g) "Date of Grant" means the date on which the granting of an Option
is authorized pursuant to Paragraph 6 of this Plan, by the Board or such
later date as may be specified by the Board in such authorization.
(h) "Director" means a member of the Board.
(i) "Disability" means total and permanent disability as defined in
Section 22(e)(3) of the Code.
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(j) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(k) "Fair Market Value" means, as of any date, the value of Common
Stock determined as follows:
(i) If the Common Stock is listed on any established stock
exchange or a national market system, its Fair Market Value shall be
the closing sales price for such stock (or the closing bid, if no
sales were reported) as quoted on such exchange or system on the date
of determination, as reported in The Wall Street Journal or such other
source as the Board deems reliable;
(ii) If the Common Stock is regularly quoted by a recognized
securities dealer but selling prices are not reported, its Fair Market
Value shall be the mean between the high bid and low asked prices for
the Common Stock on the date of determination; or
(iii) In the absence of an established market for the Common
Stock, the Fair Market Value thereof shall be determined in good faith
by the Board.
(l) "Non-Employee Director" means a Director who, as of the Date of
Grant, is not an officer or otherwise employed by the Company, a Parent, or
a Subsidiary.
(m) "Option" means an option to purchase shares of Common Stock
granted under Paragraph 6 of this Plan.
(n) "Option Agreement" means a written agreement between the Company
and an Optionee substantially in the form of Exhibit A attached hereto
evidencing the terms and conditions of an individual Option grant under
this Plan. The Option Agreement is subject to the terms and conditions of
this Plan.
(o) "Optioned Stock" means the Common Stock subject to an Option.
(p) "Optionee" means the holder of an outstanding Option granted
under this Plan.
(q) "Paragraph" means a paragraph of this Plan.
(r) "Parent" means a "parent corporation," whether now or hereafter
existing, as defined in Section 424(e) of the Code.
(s) "Plan" means the Conn Appliances, Inc. 2003 Non-Employee Director
Stock Option Plan, as may be amended from time to time.
(t) "Share" means a share of the Common Stock, as adjusted in
accordance with Paragraph 17.
(u) "Subsidiary" means a "subsidiary corporation," whether now or
hereafter existing, as defined in Section 424(f) of the Code.
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4. Stock Subject to this Plan. Subject to the provisions of Paragraph 17,
the maximum aggregate number of Shares that may be subject to Options and sold
under this Plan is 300,000 Shares. The Shares may be authorized but unissued, or
reacquired Common Stock.
If an Option expires or becomes unexercisable without having been exercised
in full, the unpurchased Shares which were subject thereto shall become
available for future grant under this Plan (unless this Plan has terminated).
However, Shares that have actually been issued under this Plan upon exercise of
an Option shall not be returned to this Plan and shall not become available for
future distribution under this Plan.
5. Administration of this Plan. This Plan shall be administered by the
Board. Subject to the provisions of this Plan, the Board shall have the
authority to prescribe, amend and rescind rules and regulations relating to this
Plan, including rules and regulations relating to sub-plans, if any, established
for the purpose of satisfying applicable foreign laws and to construe and
interpret the terms of this Plan and Options granted pursuant to this Plan. All
decisions, determinations and interpretations of the Board shall be final and
binding on all Optionees.
6. Stock Options.
(a) Grant of Options by the Board.
(i) As of the effective date of the Company's initial public
offering of Common Stock, each Non-Employee Director shall be granted
an Option to purchase 40,000 Shares. Individuals who become
Non-Employee Directors after the effective date of the Company's
initial public offering of Common Stock shall be granted an Option to
purchase 40,000 Shares on their first day of service as a Non-Employee
Director.
(ii) Subject to Section 6(a)(iv) and provided that the
Non-Employee Director is then continuing in office, each Non-Employee
Director shall be granted an Option to purchase 10,000 Shares
immediately following each annual stockholders meeting during the term
of this Plan commencing in the year in which the fourth anniversary of
the Non-Employee Director's initial election or appointment to the
Board occurs.
(iii) Each Option granted under this Plan shall be subject to the
terms, conditions, restrictions and/or limitations, if any, applicable
to the Options as set forth in the respective Option Agreements in
addition to those set forth in this Plan and the administrative rules
and regulations issued by the Board.
(iv) Options granted pursuant to this Paragraph that would
otherwise exceed the maximum number of Shares authorized in Paragraph
4 of this Plan shall be prorated within such limitation.
(b) Vesting. Unless stated otherwise in the Option Agreement, Options
granted under this Plan shall vest and become exercisable, subject to the
other terms of this Plan, at the rate of 25% per annum on each anniversary
of the Date of Grant.
(c) Option Exercise Price and Consideration. The Option Agreement for
each Option shall state the price at which the Option may be exercised, and
the consideration
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to be paid for the Shares to be issued upon exercise of an Option. Such
consideration may consist of cash or check.
7. Exercise of Option.
(a) Procedure for Exercise; Rights as a Shareholder. Any Option
granted hereunder shall be exercisable according to the terms of the Plan
at such times and under such conditions as determined by the Board and set
forth in the Option Agreement. An Option may not be exercised for a
fraction of a Share.
An Option shall be exercised when, and only when, the Company
receives: (i) written notice of exercise (in accordance with the Option
Agreement) from the person entitled to exercise the Option, and (ii) full
payment for the Shares with respect to which the Option is exercised. Full
payment may consist of any consideration and method of payment permitted by
the Option Agreement and this Plan. Shares issued upon exercise of an
Option shall be issued in the name of the Optionee or, if requested by the
Optionee, in the name of the Optionee and his spouse. Until the Shares are
issued (as evidenced by the appropriate entry on the books of the Company
or of a duly authorized transfer agent of the Company), no right to vote or
receive dividends or any other rights as a shareholder shall exist with
respect to the Shares, notwithstanding the exercise of the Option. The
Company shall issue (or cause to be issued) such Shares promptly after the
Option is exercised. No adjustment will be made for a dividend or other
right for which the record date is prior to the date the Shares are issued,
except as provided in Paragraph 17.
Exercise of an Option in any manner shall result in a decrease in the
number of Shares thereafter available, both for purposes of this Plan and
for sale under the Option, by the number of Shares as to which the Option
is exercised.
(b) Exercise of Options After a Participant's Termination. Options
granted to an Optionee whose service as a Director terminates during the
Option period for any reason may be exercised, to the extent exercisable,
until the earlier of (i) three (3) years after termination of the
Optionee's service on the Board or (ii) the expiration of the Option. In
the event an Optionee's membership on the Board is terminated by death, the
personal representative of the deceased Optionee may so exercise any
unexercised vested Option granted to the Optionee under this Plan.
(c) Withholding. Optionees may satisfy withholding tax obligations by
electing to have the Company withhold from the Shares to be issued upon
exercise of an Option that number of Shares having a Fair Market Value
equal to the minimum amount required to be withheld. The Fair Market Value
of the Shares to be withheld shall be determined as of the date the amount
of tax to be withheld is to be determined. Any and all elections by
Optionees to have Shares withheld for this purpose shall be made in such
form and under such conditions as the Board may deem necessary or
advisable.
(d) Other Terms and Conditions. In addition to the terms and
conditions provided elsewhere in this Plan, Options granted under this Plan
are subject to the following:
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(i) Options may not be exercised until this Plan has been
approved by the shareholders pursuant to Paragraph 8.
(ii) Any Option not exercised within ten (10) years from the
Date of Grant shall expire.
(iii) Shares acquired from the exercise of an Option must be held
for at least one year before their sale or transfer shall be
permitted.
(iv) Options may not be exercised for fewer than 1,000 Shares.
(v) Optionees may not exercise Options more than once per
calendar quarter.
(e) Application of Funds. The proceeds received by the Company from
the sale of Common Stock issued upon the exercise of Options will be used
for general corporate purposes.
8. Approval, Amendment, and Termination of this Plan.
(a) Shareholder Approval. This Plan must be approved by a majority of
the votes cast at a duly held shareholders' meeting at which a quorum
representing a majority of all outstanding voting Shares is, either in
person or by proxy, present and voting on the Plan within twelve (12)
months after the date this Plan is adopted. The Board shall obtain similar
shareholder approval of any Plan amendment to the extent necessary and
desirable to comply with Applicable Laws, which shall include:
(i) an increase in the number of Shares subject to Option under
this Plan;
(ii) a change in the definition of Employee affecting
eligibility; or
(iii) a change in the manner in which Options are issued or may
be exercised.
(b) NASD Rules. In addition to the foregoing, the Board shall obtain
similar shareholder approval for any Plan amendment which requires such
approval under the rules of the National Association of Securities Dealers.
(c) Amendment and Termination. The Board may at any time amend,
alter, suspend or terminate this Plan.
(d) Effect of Amendment or Termination. No amendment, alteration,
suspension or termination of this Plan shall impair the rights of any
Optionee, unless mutually agreed otherwise between the Optionee and the
Board, which agreement must be in writing and signed by the Optionee and
the Company. Termination of this Plan shall not affect the Board's ability
to exercise the powers granted to it hereunder with respect to Options
granted under this Plan prior to the date of such termination.
(e) Effect of Failure to Obtain Shareholder Approval.
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(i) If the shareholders fail to approve the adoption of this
Plan as set forth in this Paragraph 8, all Options granted under the
Plan shall expire and the Plan shall terminate.
(ii) If the shareholders fail to approve a Plan amendment as set
forth in this Paragraph 8, the Plan amendment shall be disregarded.
9. Limited Transferability of Options. Unless determined otherwise by the
Board, Options may not be sold, pledged, assigned, hypothecated, transferred, or
disposed of in any manner other than by will or by the laws of descent or
distribution and may be exercised, during the lifetime of the Optionee, only by
the Optionee.
10. Conditions Upon Issuance of Shares.
(a) Legal Compliance. Shares shall not be issued pursuant to the
exercise of an Option unless the exercise of such Option and the issuance
and delivery of such Shares complies with Applicable Laws and shall be
further subject to the approval of legal counsel to the Company with
respect to such compliance.
(b) Investment Representations. As a condition to the exercise of an
Option, the Board may require the Optionee to represent and warrant at the
time of any such exercise that the Shares are being purchased only for
investment and without any present intention to sell or distribute such
Shares if, in the opinion of legal counsel to the Company, such a
representation is necessary or appropriate.
11. Inability to Obtain Authority. The inability of the Company to obtain
authority from any regulatory body having jurisdiction, which authority is
deemed by the Company's legal counsel to be necessary to the lawful issuance and
sale of any Shares hereunder, shall relieve the Company of any liability in
respect of the failure to issue or sell such Shares as to which such requisite
authority shall not have been obtained.
12. Reservation of Shares. The Company, during the term of this Plan,
shall at all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of this Plan.
13. Right to Continued Board Membership. Participation in this Plan shall
not give any Optionee any right to remain on the Board.
14. Reliance on Reports. Each member of the Board shall be fully justified
in relying or acting in good faith upon any report made by the independent
public accountants of the Company, its Parents, and Subsidiaries and upon any
other information furnished in connection with this Plan by any person or
persons other than the Board or Board member. In no event shall any person who
is or shall have been a member of the Board or of the Board be liable for any
determination made or other action taken or any failure to act in reliance upon
any such report or information or for any action taken, including the furnishing
of information, or failure to act, if in good faith.
15. Construction. The titles and headings of the sections in this Plan are
for the convenience of reference only, and in the event of any conflict, the
text of this Plan, rather than such titles or headings, shall control.
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16. Governing Law. This Plan shall be governed by and construed in
accordance with the laws of the State of Delaware, except as superseded by
applicable federal law.
17. Adjustments Upon Changes in Capitalization, Merger or Asset Sale.
(a) Changes in Capitalization. Subject to any required action by the
shareholders of the Company, the number and type of Shares which have been
authorized for issuance under this Plan but as to which no Options have yet
been granted or which have been returned to this Plan, upon cancellation or
expiration of an Option, and the number and type of Shares covered by each
outstanding Option, as well as the price per Share covered by each such
outstanding Option, shall be proportionately adjusted for any increase or
decrease in the number or type of issued Shares resulting from a stock
split, reverse stock split, stock dividend, combination or reclassification
of the Common Stock, or any other increase or decrease in the number of
issued shares of Common Stock effected without receipt of consideration by
the Company. The conversion of any convertible securities of the Company
shall not be deemed to have been "effected without receipt of
consideration." Such adjustment shall be made by the Board, whose
determination in that respect shall be final, binding and conclusive.
Except as expressly provided herein, no issuance by the Company of shares
of stock of any class, or securities convertible into shares of stock of
any class, shall affect, and no adjustment by reason thereof shall be made
with respect to, the number, type or price of Shares subject to an Option.
(b) Dissolution or Liquidation. In the event of the proposed
dissolution or liquidation of the Company, the Board shall notify each
Optionee as soon as practicable prior to the effective date of such
proposed transaction. The Optionee shall fully vest in and have the right
to exercise the Option as to all of the Optioned Stock, including Shares as
to which such Option would not otherwise be vested or exercisable. The
Board shall notify the Optionee in writing that the Option shall be fully
exercisable until fifteen (15) days prior to the proposed transaction. In
addition, the Board may provide that any of the Company's rights to
repurchase any Shares purchased upon exercise of an Option shall lapse as
to all such Shares, provided the proposed dissolution or liquidation takes
place at the time and in the manner contemplated. To the extent an Option
has not been exercised, it will terminate immediately prior to the
consummation of such proposed transaction.
(c) Merger or Asset Sale. In the event of (i) a merger of the Company
with or into another entity or (ii) the sale of all or substantially all of
the assets of the Company (either, a "Merger Transaction"), each
outstanding Option shall be assumed or an equivalent option or right
substituted by the successor entity or a Parent or Subsidiary of the
successor entity. In the event that the successor entity refuses to assume
or substitute for the Option, the Optionee shall fully vest in and have the
right to exercise the Option as to all of the Optioned Stock, including
Shares as to which such Option would not otherwise be vested or
exercisable. If an Option becomes fully vested and exercisable in lieu of
assumption or substitution in the event of a Merger Transaction, the Board
shall notify the Optionee in writing that the Option shall be fully
exercisable for a period of fifteen (15) days from the date of such notice,
and the Option shall terminate upon the expiration of such period. For the
purposes of this Paragraph 17, the Option shall be considered assumed if,
following the Merger Transaction, the option or right confers the
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right to purchase or receive, for each Share of Optioned Stock subject to
the Option immediately prior to the Merger Transaction, the consideration
(whether stock, cash, or other securities or property) received in the
Merger Transaction by holders of Common Stock for each Share held on the
effective date of the Merger Transaction (and if holders were offered a
choice of consideration, the type of consideration chosen by the holders of
a majority of the outstanding Shares); provided, however, that if such
consideration received in the Merger Transaction is not solely common stock
of the successor entity or its Parent, the Board may, with the consent of
the successor entity, provide for the consideration to be received upon the
exercise of the Option, for each Share of Optioned Stock subject to the
Option, to be solely common stock of the successor entity or its Parent
equal in fair market value to the per share consideration received by
holders of Common Stock in the Merger Transaction.
(d) Accelerated Vesting. Following either an assumption of or
substitution for Options in connection with a Merger Transaction that
constitutes a Change of Control and in the event of the termination of an
Optionee of service on the Board ("Involuntary Termination"), upon or
during the one (1) year period after the effective date of such Change of
Control, each Optionee's rights to purchase Optioned Stock shall become
automatically vested in their entirety on an accelerated basis and be fully
exercisable as of the date immediately preceding any such Involuntary
Termination.
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Exhibit A
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Form of Non-Qualified Stock Option Agreement