EXHIBIT 3.3.2
ACAP STOCK PUT OPTION
Subject to, and in accordance with, the terms and conditions of this agreement
("Acap Stock Put Option"), UTG, Inc. ("Grantor") agrees to purchase from
___________________ ("Option Holder") XX-YYY (___) shares of Acap Common Stock,
$.10 per share par value ("Option Shares"), and the Parties hereto make and
enter into the other agreements set forth herein.
The parties to this Acap Stock Put Option are UTG, Inc., a Delaware corporation
with its principal office in Springfield, Illinois, and the Option Holder, an
individual resident of Houston, Xxxxxx County, Texas ("Parties").
The Parties acknowledge that this Acap Stock Put Option is granted by Grantor to
Option Holder pursuant to a Stock Purchase Agreement between UTG, Inc. as
Purchaser and the Sellers identified therein, dated August 7, 2006, providing
for a transaction, which was consummated on December 8, 2006, in which Grantor
purchased shares of Acap Common Stock from said Sellers and Grantor agreed to
issue this Acap Stock Put Option. Although the Closing of said Stock Purchase
Agreement has been consummated as aforesaid, it is incorporated herein and made
a part hereof by reference thereto for all purposes.
Now, therefore, in consideration of the foregoing, the Parties agree as follows:
1. Option. Pursuant to this Acap Stock Put Option, Option Holder has the right
and option to sell the Option Shares to Grantor as herein provided, for the
Purchase Price as hereinafter set forth. This right and option may be
exercised at any time, and from time to time, prior to the expiration of
the Option Period, as defined in Section 6 below.
2. "Exercise" as used herein means the delivery by Option Holder of
(i) a duly completed and executed written notice of exercise, in the form
attached hereto ("Notice of Exercise") and
(ii) the certificate or certificates, as the case may be, representing not
less than the number of shares of Acap Common Stock that are the
subject of the exercise, together with validly executed stock powers
endorsed in blank,
to Grantor in accordance with this Acap Stock Put Option, which event, upon
occurrence, shall obligate Grantor to pay to the Option Holder the Purchase
Price for the number of Option Shares which are the subject of such exercise, at
the time and manner as herein provided. Each Notice of Exercise so delivered
shall be deemed to be a part of this Acap Stock Put Option.
3. Number of Shares of Acap Common Stock: Option Holder may exercise this Acap
Stock Put Option on any occasion selected by Option Holder prior to the
expiration of the Option Period and on each such occasion may elect to sell
any number of the Option Shares, provided the aggregate number of shares of
common stock of Acap sold pursuant to this Acap Stock Put Agreement shall
not exceed the total number of Option Shares. The number of Option Shares
to be sold to Grantor on any single exercise shall be designated by Option
Holder in the Notice of Exercise. If there is a difference between the
number of Option Shares designated to be sold in the Notice of Exercise and
the number of shares represented on said stock certificate or certificates,
as the case may be, submitted to Grantor to effect the exercise, Grantor
shall promptly request Acap to issue and deliver a new stock certificate to
the Option Holder representing the number of shares of Acap Common Stock
equal to such difference.
4. Purchase Price and Method of Payment. The purchase price to be paid by
Grantor for each of the shares of the Option Shares purchased by it upon
exercise as herein provided shall be equal to NINE THOUSAND SEVEN HUNDRED
FORTY TWO DOLLARS ($9,742) per share of Acap Common Stock, increased for
each day between the Effective Date hereof and the date such shares are
purchased at an annual rate of 5% compounded daily ("Purchase Price"). All
payments to be made by Grantor shall be in the form of immediately
available funds by bank wire transfer made and completed on the Due Date as
herein defined or as otherwise authorized in writing by the Option Holder
in the Notice of Exercise.
5. Time When Purchase Price is Due, Interest on Past Due Amount, and
Collection Costs. The "Due Date" as used herein means the date on which the
purchase and sale of Option Shares upon exercise shall be effective and the
date on which the Purchase Price shall be due and payable by Grantor to
Option Holder, which shall be the third business day following the date of
exercise. If the Purchase Price is not paid in full on such Due Date as
aforesaid, the amount due but not paid on such Due Date ("Past Due Amount")
shall bear interest, compounded annually, at the prime rate of interest
reflected in the Wall Street Journal on the day on which such payment was
due, or, if less, the maximum rate of interest permitted by law, and
Grantor shall be liable to Option Holder for any and all reasonable costs
incurred by Option Holder in the collection of such Past Due Amount plus
interest thereon, including attorneys' fees.
6. Period of Time Within Which the Option May Be Exercised: The period of time
during which the Option Holder may exercise this Acap Stock Put Option and
sell Option Shares to Purchaser hereunder is the period which begins on the
Effective Date of this Acap Stock Put Option and ends at 5 p.m. Central
Time on December 16, 2007, at which time the Acap Stock Put Option shall
expire ("Option Period").
7. Method of Exercise and Delivery of Notices: Any exercise of this Acap Stock
Put Option, or any portion thereof, shall be valid if the Notice of
Exercise, stock certificate or certificates, as the case may be, and
accompanying stock powers required for such exercise, as described in
Section 2, are delivered to Grantor as herein provided at Grantor's address
shown below (or to the changed address, if validly changed) by use of any
commercially reasonable and common delivery service (such as certified
mail, return receipt requested, overnight delivery service, messenger
service, or by Option Holder personally). The date of delivery, and
therefore the date of exercise, shall be the date on which the Notice of
Exercise, the certificate or certificates, as the case may be, and stock
powers are actually delivered to Grantor at Grantor's address shown below
(or to the changed address, if validly changed, as the case may be),
according to appropriate evidence of the date of delivery, such as the
related delivery ticket. For the purpose of the exercise of this Acap Stock
Put Option, or for the purpose of delivery of any written notice or
communication to Grantor, Grantor's address is:
UTG, Inc.
Attention: President
0000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000
Grantor may elect to change the above address. To effect such change of address,
Grantor must provide to Option Holder in writing a notice of any change of
address ("Address Change Notice") not less than ten (10) days in advance of any
such change of address, and Grantor hereby warrants that the above address, or
any address designated in any Address Change Notice if applicable, shall be
available and open to receive the documentation required to be delivered on
exercise during normal business hours on any day on which financial institutions
are normally open. For the purpose of providing any Address Change Notice from
Grantor to Option Holder, or any other written notice of communication from one
Party to the other, a Party may use any commercially reasonable and common
delivery service (such as certified mail, return receipt requested, overnight
delivery service, messenger service, or by the Party personally). The date of
delivery, and therefore the date of such notice, shall be the date on which the
Change of Address Notice or other written communication, as the case may be,
is/are actually delivered to the Party addressed at such Party's address shown
herein (or to the changed address, if validly changed by such Party, as the case
may be), according to appropriate evidence of the date of delivery, such as the
related delivery ticket. For the purpose of a Change of Address Notice or other
written communication from Grantor to Option Holder, Option Holder's address is:
_________________________________
_________________________________
_________________________________
Option Holder may change such address by delivering to Grantor a written notice
of such change of address, if any, in the same manner provided herein for a
change in the address of Grantor.
8. Hold Harmless Agreement. In accordance with the requirement set forth in
the Stock Purchase Agreement, Option Holder hereby agrees to indemnify,
defend and hold harmless Grantor, Acap and their respective subsidiaries
and affiliates including, without limitation, their officers, directors,
employees and shareholders and those of its subsidiaries and affiliates
from and against all Losses (as defined below) that arise out of
(a) the non-performance of any covenants, agreements, obligations or
commitments contained in this Acap Stock Put Option, including any Notice
of Exercise delivered hereunder, or in any exhibit, schedule, certificate
or other document delivered pursuant hereto required to be performed by
Option Holder; or
(b) any claim or claims by any current or former Acap shareholder or
shareholders or any governmental authority against Grantor, Acap or any of
their subsidiaries relating to any action or actions taken by Acap prior to
the Closing; or
(c) the fact that any representation or warranty made by Option Holder
in this Acap Stock Put Option, including any Notice of Exercise delivered
hereunder, or in any exhibit, schedule, certificate or other document
delivered pursuant hereto was untrue as of the date made .
As used in this Section 8, "Loss" and/or "Losses" shall mean all any loss,
liability, claim, damage, expense (including costs of investigation and defense,
reasonable attorneys' fees and expert witness fees), including, without
limitation, all expenses reasonably incurred as a result of any actions,
lawsuits, proceedings, investigations, claims, demands, assessments, and
damages, penalties, interest, judgments or settlements resulting therefrom,
including, without limitation, costs and expenses of litigation and reasonable
attorneys' fees, and includes all Losses sustained by Acap and its subsidiaries.
To the extent any indemnification obligation under this Section relates to Acap
Losses [defined as Losses that are suffered by Acap and its subsidiaries, and
includes Losses Purchaser or any of Purchaser's subsidiaries (other than Acap
and its subsidiaries) or affiliates elect to incur in the defense of Acap and
its subsidiaries], then the liability of Option Holder therefor under this
Section 8 (i) shall be limited to the fraction of such Loss that matches the
fractional relationship that the Option Shares bear to the issued and
outstanding shares of Acap as of the Effective Date hereof (the aggregate number
of the Option Shares being the numerator and the number of issued and
outstanding shares of Acap as of the Effective Date hereof being the
denominator) and (ii) shall not exceed the aggregate purchase price paid for
such shares hereunder. However, to the extent any indemnification under this
Section relates to Grantor or any of Grantor's subsidiaries (other than Acap and
its subsidiaries) or affiliates, or Grantor's officers, directors, employees and
shareholders and those of its subsidiaries and affiliates (apart from Acap
Losses as stated in the immediately preceding sentence), then the limitations
stated in the immediately preceding sentence do not apply.
9. Miscellaneous.
9.1 Applicable Law, Venue and Jurisdiction. This Acap Stock Put Option shall be
construed and enforced in accordance with the laws of the State of Texas,
excluding any conflicts-of-law rule or principle that might refer
construction of such provisions to the laws of another jurisdiction. The
Parties agree that this Acap Stock Put Option was made and entered into in
Houston, Xxxxxx County, Texas. In the event of a dispute concerning this
Acap Stock Put Option, the Parties agree that venue lies in a court of
competent jurisdiction in Xxxxxx County, Texas.
9.2 Benefit. Except as otherwise expressly provided herein, this Acap Stock Put
Option shall be binding upon, and enforceable against, the Parties hereto
and shall inure to the exclusive benefit of the Parties hereto and their
successors or permitted assigns, except as enforceability may be limited by
applicable bankruptcy laws or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating to
enforceability.
9.3 Third Parties. Except as otherwise expressly provided herein, this Acap
Stock Put Option is not intended to, and shall not, convey or provide any
right or benefit to any person, individual or entity that is not a party
hereto.
9.4 Waiver. Except as otherwise expressly provided herein, neither the failure
nor any delay on the part of any party hereto in exercising any rights,
power or remedy hereunder shall operate as a waiver thereof, or of any
other right, power or remedy; nor shall any single or partial exercise of
any right, power or remedy preclude any further or other exercise thereof,
or the exercise of any other right, power or remedy.
9.5 Interpretation. It is acknowledged by the Parties that this Acap Stock Put
Option has undergone several drafts with the negotiated suggestions of both
and, therefore, no presumptions shall arise favoring any party by virtue of
the authorship of any of its provisions.
9.6 Gender and Number. Where appropriate, words that may be gender specific
shall apply equally to either the masculine or feminine forms, as the
context requires, and words that may be number specific shall apply equally
to the singular and plural forms, as the context requires.
9.7 Entire Agreement and Amendment. This Acap Stock Put Option, together with
each Notice of Exercise delivered hereunder, constitutes the entire
agreement and understanding between the Parties hereto, and it is
understood and agreed that all undertakings, negotiations and agreements
heretofore had between the Parties are merged herein. This Acap Stock Put
Option (and each Notice of Exercise delivered hereunder) may not be
modified orally, but may be modified only by an agreement in writing signed
by Grantor and Option Holder, and delivered each to the other. Except as
expressly provided herein, no waiver of any of the provisions of this Acap
Stock Put Option (or each Notice of Exercise delivered hereunder) shall be
valid unless it is in writing and signed by the Party against whom it is
sought to be enforced, and delivered to the other Party, as the case may
be.
9.8 Assignment. This Acap Stock Put Option shall be assignable by Grantor only
with the written consent of the Option Holder, and shall be assignable by
Option Holder only with the written consent of Grantor.
9.9 Severability. If any provision of this Acap Stock Put Option is invalid,
illegal or unenforceable, the balance of this Acap Stock Put Option shall
remain in full force and effect and this Acap Stock Put Option shall be
construed in all respects as if such invalid, illegal or unenforceable
provision were omitted. If any provision is inapplicable to any person or
circumstance, it shall, nevertheless, remain applicable to all other
persons and circumstances.
9.10 Headings. Any paragraph headings in this Acap Stock Put Option are for
convenience of reference only, and shall be given no effect in the
construction or interpretation of this Acap Stock Put Option or any
provisions thereof.
9.11 Counterparts. This Acap Stock Put Option may be executed simultaneously in
two or more counterparts (including execution by facsimile transmission),
each of which shall be deemed an original, and which together shall
constitute but one and the same instrument.
9.12 Expenses. Unless otherwise expressly provided herein, Grantor and Option
Holder shall each bear all expenses incurred by it in connection with the
preparation, performance and consummation of the transactions contemplated
by this Acap Stock Put Option.
9.13 Effective Date. This Acap Stock Put Option is effective as of December 8,
2006.
10. Release. In consideration of the grant the of option pursuant this Acap
Stock Put Option and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Option Holder, for himself or
herself and his or her heirs, legal representatives, successors and
assigns, agrees to and does hereby release and forever discharge Grantor,
Acap and their respective subsidiaries and affiliates (collectively, the
"Released Parties"), from any and all rights (including without limitation
any indemnification rights), claims, demands, actions and causes of action
at law and in equity, known or unknown, contingent or direct, which Option
Holder ever had or has on the date hereof and that anyone claiming through
or under Option Holder may have as of the Effective Date hereof or claim to
have as of the Effective Date hereof against the Released Parties, except
for any claims arising under the Stock Purchase Agreement and the
transactions contemplated thereby (to the extent Option Holder is a Seller
thereunder) or this Acap Stock Put Option and the transactions contemplated
hereby, [and, to the extent the Option Holder is Xxxx Xxxxx or Xxxx
Xxxxxxx, except for compensation and benefits to which Option Holder is
entitled as of the Effective Date hereof under his employment agreement
with a Released Party, as disclosed to Grantor prior to execution of the
Stock Purchase Agreement,] [and, with respect to any other Option Holder
who is an employee of a Released Party, except for salary and benefits
earned to and including the Closing Date]. Option Holder acknowledges
Grantor is relying on this Release in consummating the transactions
contemplated by the Stock Purchase Agreement and entering into this Acap
Stock Put Option Agreement.
IN WITNESS WHEREOF, the Parties have duly executed this Acap Stock Put
Option, and made delivery thereof, as of the Effective Date.
UTG, Inc., GRANTOR
By: _____________________________________
Xxxxxxxx X. Xxxxxx
Senior Vice President
OPTION HOLDER
By: _____________________________________
Notice of Exercise
of Acap Stock Put Option, dated December 8, 2006
between UTG, Inc. ("Grantor") and ___________________ ("Option Holder")
Number of Option Shares subject to this exercise: _______
Accompanying this Notice of Exercise are
• stock certificates representing the above referenced Option
Shares, together with
• stock powers duly endorsed in blank
Note: Any shares in excess of the above referenced Option Shares
represented by the accompanying stock certificate(s) shall be reregistered
in the name of the Option Holder.
Option Holder represents and warrants to Grantor:
A. Option Holder is the record and beneficial owner of the above
referenced Option Shares, free and clear of all Liens (as hereafter
defined). As used herein, "Lien" means any mortgage, pledge, assessment,
security interest, lease, sublease, lien, claim, levy, charge, proxy,
voting agreement, restriction or other obligation or encumbrance of any
kind, or any conditional sale contract, title retention contract, or other
contract to give or to refrain from giving any of the foregoing.
B. Upon purchase of the above referenced Option Shares pursuant
hereto, the Grantor will acquire good and marketable title to the Shares,
free and clear of all Liens.
C. The above referenced Option Shares are not subject to or affected
by any voting trust, proxy or other agreement or understanding that could
affect the ability to vote those shares or the right to receive dividends
declared with respect thereto.
D. Option Holder has the power and authority to enter into the Acap
Stock Put Option and this Notice of Exercise and to sell and transfer the
above referenced Option Shares.
E. Option Holder will, on request, execute and deliver such
additional. documents deemed necessary by Grantor to complete the sale and
transfer to Grantor of the above referenced Option Shares in accordance
with the terms of the Acap Stock Put Option and this Notice of Exercise.
The accuracy of the above representations and warranties are conditions to
Grantor's obligations.
Grantor is directed to wire transfer the Purchase Price payable for the above
referenced Option Shares in accordance with the wire-transfer instructions
attached hereto as Exhibit A.
Date:
OPTION HOLDER:
By: _________________________________
Exhibit A
Wire Transfer Instructions:
