EXHIBIT 10.9
STOCK OPTION AGREEMENT
This OPTION AGREEMENT (this "Agreement") is made and entered into on this
13th day of June, 2000, by and between Southwestern Life Holdings, Inc., a
Delaware corporation (the "Company"), and Xxxx X. Xxxxxx (the "Optionholder");
WHEREAS, for and in consideration of the Optionholder's services to the
Company, the Company hereby grants to the Optionholder an option to purchase
shares of Common Stock, par value $0.01 per share (each share of such class
being a share of "Common Stock"), all as set forth in this Agreement.
NOW, THEREFORE, for and in consideration of the foregoing recital and the
mutual covenants and agreements set forth herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
each of the parties hereto, the parties hereto hereby agree as follows:
1. Grant of Option. The Company hereby grants to the Optionholder an
option (the "Option") to purchase up to 170,000 shares of Common Stock of the
Company ("Option Shares"), at the Option Price set forth herein, and in all
respects subject to the terms and conditions of this Agreement.
2. Option Price. The Option Price is $12.50 for each Option Share.
3. Exercise of Option. The Option shall be exercisable in accordance
with the provisions of this Option Agreement, as follows:
(i) Vesting and Right to Exercise. The Option is fully vested and
immediately exercisable as of the date hereof.
(ii) Method of Exercise. The Option shall be exercisable in whole or
in part by written notice to the Company which shall:
(a) state the election to exercise the Option, the number of Option
Shares with respect to which it is then being exercised, the person in whose
name the stock certificate or certificates for such Option Shares is to be
issued, his/her address and Social Security Number (or if more than one, the
names, addresses and Social Security Numbers of such persons); and
(b) be signed by the person or persons entitled to exercise the Option
and, if the Option is being exercised by any person or persons other than the
Optionholder, be accompanied by proof, reasonably satisfactory to counsel for
the Company, of the right of such person or persons to exercise the Option.
(iii) Consideration. Payment of the Option Price of any Option
Shares with respect to which the Option is being exercised shall be made (at
the Optionholder's discretion, subject to the provisions of this section) by:
(a) cash (including a check acceptable to the Company, bank draft or money
order) or by tendering, by either actual delivery of shares or by attestation,
shares of the Company's Common Stock having a total fair market value as of the
day of exercise equal to the full Option Price, or any combination thereof, as
determined by the Board of Directors, or (b) at the Board of Directors
discretion, irrevocably authorizing a third party to sell shares of the
Company's Common Stock (or a sufficient portion of the shares) acquired upon
exercise of the Option and remit to the Company a sufficient portion of the sale
proceeds to pay the entire exercise price and any tax withholding resulting from
such exercise, or (c) any other form of payment proposed by the Optionholder
that is acceptable to the Company in its sole discretion. The right of
Optionholder to pay for any Option Shares other than by cash in full shall be
subject to the Board of Directors determination that to do so does not violate
in any respect any provision of the Securities Exchange Act of 1934 or any rules
and regulations adopted pursuant thereto.
(iv) Fractional Shares. An Option may not be exercised for a fraction
of an Option Share. In the event of a "cashless exercise" as permitted in
3(iii)(b) hereof, the Company shall issue shares of Common Stock for the whole
number of shares acquired through such cashless exercise, and cash for the value
of any fractional shares.
(v) Restrictions on Exercise. The Option may not be exercised if the
issuance of the Option Shares upon such exercise would constitute a violation of
any applicable federal or state securities or other law or valid regulation. As
a condition to exercise of the Option, the Company may require the person
exercising the Option to make any representation and warranty to the Company as
may be required by any applicable law or regulation.
4. Term of Option. Prior to its expiration, the Option may be exercised
only in accordance with the terms of this Agreement. The Option shall survive
the termination of any employment or consulting arrangement between the Company
and the Optionholder. The unexercised portion (if any) of the Option shall
terminate on the tenth anniversary of the date hereof.
5. Adjustment Upon Changes in Capitalization. In the event that the
shares of Common Stock of the Company are changed into or exchanged for a
different number or kind of shares or other securities of the Company or of
another corporation by reason of any reorganization, merger, consolidation,
recapitalization, reclassification, stock split-up or reverse stock split,
combination of shares or dividends payable in capital stock, appropriate
adjustment shall be made by the Board of Directors of the Company (the "Board")
in the number and kind of shares as to which the Options, or portion thereof
then unexercised, shall be exercisable, so that the proportionate interest of
the Optionholder shall be maintained as before the occurrence of such event.
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6. Withholding. In connection with each exercise of the Option or any
portion thereof, the Optionholder will make appropriate arrangements with the
Company for such tax withholding as may be required of the Company under
applicable federal, state or local law on account of such exercise.
7. Transferability; Parties Bound. Without the prior written consent of
the Board of Directors of the Company, the Option shall not be assignable or
transferable by Optionholder, other than by will or the laws of descent and
distribution, and may be exercised during the life of Optionholder only by
Optionholder or his duly appointed guardian or legal representative. Any
attempted assignment, transfer, pledge, hypothecation, or other disposition of
the Option contrary to the provisions hereof, or the levy of any execution,
attachment, or similar process upon the Option shall be null and void and
without effect The terms of the Option shall be binding upon the executors,
administrators, heirs, successors and permitted assigns of the Optionholder.
8. Notices. Each notice or other communication relating to this
Agreement shall be in writing, and shall be mailed to or delivered to the party
for whom it is intended at that address as may from time to time be designated
by it in a notice mailed or delivered to the other party. Unless and until some
other address be so designated, all notices or communications by the
Optionholder to the Company shall be mailed or delivered to 000 X. Xxxxxxx, 00xx
Xxxxx, Xxxxxx, Xxxxx 00000, Attn: President and all notice or communications by
the Company to the Optionholder may be given to the Optionholder personally or
may be mailed to him/her at 0000 Xxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000.
9. Rights as Stockholder. Optionholder will have no rights as a
stockholder with respect to any Option Shares covered by the Option until the
issuance of a certificate or certificates to him/her for such Option Shares.
Except as otherwise provided in Section 5 hereof, no adjustment shall be made
for dividends or other rights for which the record date is prior to the issuance
of such certificate or certificates.
10. Law Governing. This Agreement is intended to be performed in the
State of Texas and shall be construed and enforced in accordance with and
governed by the laws of Texas, without giving effect to principles of conflict
of laws.
11. Invalidity of Provision. The invalidity or unenforceability of any
provision of this Agreement in any jurisdiction shall not affect the validity or
enforceability of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of this Agreement, including that provision, in any
other jurisdiction. If any provision of this Agreement shall be adjudged
unreasonable in any judicial or administrative proceeding, then the court or
administrative body shall have the power to reform such provision and, in its
changed form, such provision shall then be enforceable and shall be enforced.
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12. Multiple Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which taken
together shall constitute but one and the same instrument. In making proof of
this Agreement, it shall not be necessary to produce or account for more than
one counterpart executed by the party sought to be charged with performance
hereunder.
13. Headings and Pronouns. The subject headings of the sections contained
herein are inserted for convenience only and shall not be considered in
interpreting any term or provision hereof. All pronouns and any variations
thereof shall be deemed to refer to the masculine, feminine, neuter, singular or
plural as the identity of the entities or persons referred to any require.
14. RISK/TAX CONSEQUENCES. OPTIONHOLDER ACKNOWLEDGES THAT HE IS AWARE
THAT EXERCISE OF THE OPTION WILL HAVE INCOME TAX CONSEQUENCES TO OPTIONHOLDER.
OPTIONHOLDER FURTHER ACKNOWLEDGES THAT HE HAS HAD AN OPPORTUNITY TO CONSULT WITH
TAX, ACCOUNTING AND LEGAL ADVISORS OF HIS OWN CHOOSING PRIOR TO OPTIONHOLDER'S
EXECUTION OF THIS AGREEMENT. OPTIONHOLDER ASSUMES ALL RISKS AND FINANCIAL AND
TAX CONSEQUENCES TO OPTIONHOLDER OF THE EXERCISE OF THE OPTION.
* * * * *
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IN WITNESS WHEREOF, the parties have executed this Option Agreement on the
date and year first above written.
COMPANY:
SOUTHWESTERN LIFE HOLDINGS, INC.
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx, President
OPTIONHOLDER:
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
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