Exhibit 10.11
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (the "Agreement") is made as
of the 21st day of January 2003, by and between INTREPID CAPITAL CORPORATION, a
Delaware corporation (the "Company"), and XXXXXX X. XXXXXX, an individual
resident of the State of Florida ("Optionee").
W I T N E S S E T H:
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1. The Company hereby grants to Optionee as of the date hereof
stock options to purchase an aggregate of Two-Hundred Thousand (200,000) shares
of the common stock, $.01 par value per share, of the Company (the "Common
Stock") exercisable on or prior to May 10, 2007 (the "Expiration Date") and at
the price of Two dollars ($2.00) per Option Share. "Option Share(s)" shall mean
the share(s) of Common Stock which shall be purchased or shall be available for
purchase upon exercise of the stock option granted hereby (the "Option") and any
security which shall be issued in lieu of or in addition to any other Option
Share by reason of any recapitalization, special dividend transaction or other
such event as provided in Section 5 below.
2. Except as otherwise provided below, the Option may be
exercised, with respect to any Option Shares, at any time, or from time to time,
in whole or in part, until the Expiration Date for the Option Shares to be
purchased. The exercise of all or any portion of the Option will be conditioned
upon receipt by the Company of the advice of counsel to the Company that the
Option Shares issuable upon any such exercise have been duly registered or are
exempt from registration under the applicable securities laws and, in the
absence of registration of such Option Shares and to the extent required by such
counsel, the receipt from the Optionee of a representation that the Optionee
intends at the time of such exercise to acquire such Option Shares for
investment only and not for distribution or resale.
3. The Optionee may exercise all or any part of the Option (in
whole Option Shares) as provided in Section 2 hereof by delivering written
notice to the Company of the number of Option Shares to be purchased, together
with cash or a cashier's or certified check in payment of the full purchase
price for the Option Shares to be acquired. Notice shall be sent to the Company
at Intrepid Capital Corporation, 0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxxxxx Xxxxx, Xxxxxxx 00000. The Option shall be deemed to have been
exercised on the date the Company receives (i) the written notice and the
required cash or cashier's or certified check in full payment for the purchased
Option Shares or (ii) shares of Common Stock if the payment is to be made in
such manner. A form of notice which will be deemed satisfactory by the Company
is attached to this Agreement as Exhibit A. Upon any exercise of the Option, the
Company shall cause to be delivered to the Optionee a certificate or
certificates registered in the name of the Optionee for the number of Option
Shares purchased. The Optionee shall not have any of the rights of a stockholder
with respect to the Option Shares except to the extent that the Optionee duly
exercises the Option with respect to such Option Shares. As a condition of
exercise of the Option, the Company may, in its sole discretion, withhold or
require the Optionee to pay or reimburse the Company for any taxes which the
Company determines are required to be withheld in connection with the grant or
any exercise thereof.
4. Notwithstanding the foregoing provisions requiring payment by
cash or a cashier's or certified check, if stock of the class then subject to
the Option is then "publicly traded" (as hereafter defined), then payment of the
purchase price or any portion thereof may also be made in whole or in part with
shares of the same class of stock as that then subject to the Option,
surrendered in lieu of the
payment of cash concurrently with such exercise, the shares so surrendered to be
valued on the basis of the Fair Market Value of the stock (as hereinafter
provided) on the date of exercise, in which event the stock certificates
evidencing the shares so to be used shall accompany the notice of exercise and
shall be duly endorsed or accompanied by duly executed stock powers to transfer
the same to the Company; provided, however, that such payment in stock instead
of cash shall not be effected and shall be rejected by the Company if (a) the
Company is then prohibited from purchasing or acquiring shares of the class of
its stock thus tendered to it or (b) the right or power of the person exercising
the Option to deliver such shares in payment of the purchase price is subject to
the prior interest of any person (other than the Company) as indicated by
legends upon the certificate(s) or known to the Company. If the Company rejects
the payment in stock, the tendered notice of exercise shall not be effected
hereunder unless promptly after being notified of such rejection the person
exercising the Option pays the purchase price in acceptable form. If and while
payment with stock is permitted in accordance with the foregoing provision, then
the person then entitled to exercise the Option may, in lieu of using previously
outstanding stock therefore, use a portion of the shares as to which the Option
is then being exercised, in which case the notice of exercise need not be
accompanied by any stock certificates but shall include a statement directing
the Company to retain so many shares that would otherwise have been delivered by
the Company upon that exercise of the Option as equals the number of shares that
would have been surrendered to the Company if the purchase price had been paid
with previously issued stock. If the Company is required to withhold on account
of any federal, state or local tax imposed as a result of any exercise of the
Option with previously issued stock or by retention of a portion of Option
Shares under this section, then the stock surrendered or retained shall include
an additional number of shares whose Fair Market Value equals the amount thus
required to be withheld. For purposes hereof, (i) "publicly traded" shall mean
that a class of the capital stock of the Company is listed or admitted to
unlisted trading privileges on a national securities exchange or designated as a
national market systems security on an interdealer quotation system by the
National Association of Securities Dealers, Inc. ("NASD") or if sales or bid and
offer quotations are reported for that class of stock in the automated quotation
system ("NASDAQ") operated by the NASD; and (ii) "Fair Market Value" shall mean
the closing price of such stock as of the day in question or, if such day is not
a trading day in the principal securities market or markets for such stock, on
the nearest preceding trading day, as reported with respect to the market (or
the composite of markets, if more than one) in which shares of such stock are
then traded, or, if no such closing prices are reported, on the basis of the
mean between the high bid and low asked prices that day on the principal market
or quotation system on which shares of such stock are then quoted, or, if not so
quoted, as furnished by a professional securities dealer making a market in such
stock selected by the Board of Directors of the Company.
5. In the event of changes in the outstanding shares of Common
Stock by reason of stock dividends, stock splits, subdivisions or combinations
of shares, the number of Option Shares shall be correspondingly and fairly
adjusted by the Board of Directors of the Company, the decision of which shall
be final and conclusive. A corresponding adjustment shall be made without change
in the total exercise price applicable to the unexercised portion of the Option
Shares with a corresponding adjustment in the exercise price per share.
6. If the Company is merged, consolidated or effects a share
exchange with another corporation (whether or not the Company is the surviving
corporation), or if substantially all of the assets or all of the Common Stock
is acquired by another corporation, or in the event of a separation,
reorganization or liquidation of the Company, the Board of Directors of the
Company, or the board of directors of any corporation assuming the obligations
of the Company hereunder, shall make appropriate provision for the protection of
the Option by the substitution on an equitable basis of appropriate stock of the
Company, or of the merged, consolidated or otherwise reorganized corporation
which will be issuable in respect to the shares of Common Stock, provided that
the excess of the aggregate fair market value of the Option Shares immediately
after such substitution over the exercise price thereof is not more than the
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excess of the aggregate fair market value of the Option Shares immediately
before such substitution over the exercise price thereof. Notwithstanding the
preceding sentence, if the Company is merged, consolidated or effects a share
exchange with another corporation or if substantially all of the assets or all
of the Common Stock is acquired by another corporation, or in the event of a
separation, reorganization or liquidation of the Company, then the Board of
Directors of the Company or the board of directors of any corporation assuming
the obligations of the Company hereunder may, on or before the thirtieth (30th)
day following such event and upon written notice to the Optionee, provide that
the Option must be exercised within sixty (60) days of the date of such notice
or it will be terminated.
7. This Agreement shall not be assignable or transferable by
Optionee otherwise than by will or the laws of descent and distribution or
pursuant to a qualified domestic relations order, and the Option hereby granted
shall not be exercised by any person other than Optionee during Optionee's
lifetime. After the death of Optionee, the person to whom Optionee's rights
hereunder pass under Optionee's will or under the laws of descent and
distribution shall be deemed the holder of the Option.
8. To the extent not superseded by federal law, the laws of
Delaware shall control in all matters relating to this Agreement.
9. Optionee understands that the Option Shares are not registered
under the Securities Act of 1933, as amended (the "1933 Act"), or any state
securities laws and will be issued to Optionee pursuant to exemptions from
registration thereunder. Optionee also understands that applicable securities
laws may restrict the right of Optionee to exercise the Option or to dispose of
any shares which Optionee may acquire upon any such exercise and may govern the
manner in which such shares must be sold. Optionee shall not offer, sell or
otherwise dispose of any of the Option Shares acquired by reason of the exercise
of the Option in any manner which would violate the 1933 Act or any other state
or federal law or cause the Company to have to make any filing or take any
action to avoid such a violation.
10. Optionee hereby represents that all Option Shares purchased by
him pursuant to his exercise of all or any portion of the Option will be
acquired only for investment and not with a view to distribution or resale.
11. All pronouns, defined nouns and any variations thereof in this
Agreement shall be deemed to refer to the masculine, feminine or neuter gender
and to either singular or plural, whenever the context of this Agreement so
requires.
IN WITNESS WHEREOF, Optionee has executed and delivered this Agreement,
and the Company has caused this Agreement to be executed and delivered on its
behalf by its duly authorized representative, as of the day and year above
written.
INTREPID CAPITAL CORPORATION
By:
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Xxxxxxx Xxxxxx, President and
Chief Executive Officer
OPTIONEE:
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XXXXXX X. XXXXXX
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