As filed with the Securities and Exchange Commission on December 8, 2006
Registration No. 333-_____
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CONN'S, INC.
(Exact name of registrant as specified in its charter)
Delaware 06-1672840
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
3295 College Street
Beaumont, Texas 77701
(Address of Principal Executive Offices including Zip Code)
2003 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
AMENDED AND RESTATED 2003 INCENTIVE STOCK OPTION PLAN
(Full title of the plan)
Thomas J. Frank, Sr.
Chairman of the Board and Chief Executive Officer
Conn's, Inc.
3295 College Street
Beaumont, Texas 77701
(Name and address of agent for service)
(409) 832-1696
(Telephone number, including area code, of agent for service)
copy to:
Sydney K. Boone, Jr.
Corporate General Counsel
Conn's, Inc.
3295 College Street
Beaumont, Texas 77701
409-832-1696
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of securities Amount to maximum offering maximum aggregate Amount of
to be registered be registered (1) price per share (2) offering price (2) registration fee (2)
Common Stock, $0.01 par value per
share, issuable under the Conn's,
Inc. 2003 Non-Employee Director
Stock Option Plan 300,000 $ 21.50 $ 6,448,500 $ 689.99
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Common Stock, $0.01 par value per
share, issuable under the Conn's,
Inc. Amended and Restated 2003
Incentive Stock Option Plan 1,300,000 $ 21.50 $ 27,943,500 $ 2,989.95
====================================================================================================================
Total 1,600,000 $ 21.50 $ 34,392,000 $ 3,679.94
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended (the "Securities Act"), this registration statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the
employee benefit plans described herein and any additional shares that may
be issued pursuant to the anti-dilution provisions of the employee benefit
plans described herein.
(2) Pursuant to Rule 457(h), the maximum offering price, per share and in the
aggregate, and the registration fee were calculated based upon the average
of the high and low prices of the common stock, par value $0.01 per share
(the "Common Stock"), of Conn's, Inc. (the "Company"), reported on the
Nasdaq National Market on December 1, 2006.
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EXPLANATORY NOTE
We are filing this Registration Statement to register additional shares of
our Common Stock issuable pursuant to the Company's 2003 Non-Employee Director
Stock Option Plan and Amended and Restated 2003 Incentive Stock Option Plan and
consists of only those items required by General Instruction E to Form S-8.
INCORPORATION BY REFERENCE
The following documents of the Company filed with the Commission are
incorporated herein by reference:
(a) The Company's Registration Statement on Form S-8 filed with the
Commission on December 18, 2003 (Commission File No. 333-111280);
(b) The Company's Registration Statement on Form S-8 filed with the
Commission on December 18, 2003 (Commission File No. 333-111281);
(c) The Company's Annual Report on Form 10-K/A for its fiscal year ended
January 31, 2006, filed with the Commission on September 15, 2006;
(d) The Company's Quarterly Report on Form 10-Q/A for the quarter ended
April 30, 2006, filed with the Commission on September 15, 2006 as further
amended by the Company's second amendment on Form 10-Q/A, filed with the
Commission on October 4, 2006;
(e) The Company's Quarterly Report on Form 10-Q for the quarter ended July
31, 2006, filed with the Commission on September 15, 2006;
(f) The Company's Quarterly Report on Form 10-Q for the quarter ended
October 31, 2006, filed with the Commission on November 30, 2006; and
(e) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed with the Commission on
October 10, 2003, including any other amendments or reports filed for the
purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities and Exchange Act of 1934, as amended (the
"Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold shall be deemed to be incorporated by
reference into this Registration Statement and to be a part hereof from the date
of filing of such documents. Any statement contained herein or in a document,
all or a portion of which is incorporated or deemed to be incorporated by
reference herein, shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or amended, to constitute a part of this Registration Statement.
2
Item 8. Exhibits.
See Index to Exhibits.
3
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Beaumont, State of Texas, on December 8, 2006.
CONN'S, INC.
By: /s/ Thomas J. Frank, Sr.
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Thomas J. Frank, Sr.
Chairman of the Board and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENT, that each individual whose signature
appears below constitutes and appoints Thomas J. Frank, Sr. and David L. Rogers,
and each of them, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments, including
post-effective amendments, to this Registration Statement, and to file the same
with all exhibits thereto and other documents in connection therewith, with the
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as fully to all intents and purposes as he
might or could do in person hereby ratifying and confirming that said
attorney-in-fact and agent or his substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
Signature Capacity Date
- ------------------------- ----------------------------------- ----------------
/s/ Thomas J. Frank, Sr. Chairman of the Board and Chief
- ------------------------- Executive Officer
Thomas J. Frank, Sr. (Principal Executive Officer) December 8, 2006
/s/ David L. Rogers Chief Financial Officer
- ------------------------- (Principal Financial and Accounting
David L. Rogers Officer) December 8, 2006
/s/ Marvin D. Brailsford Director
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Marvin D. Brailsford December 8, 2006
/s/ Jon E.M. Jacoby Director
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Jon E.M. Jacoby December 8, 2006
/s/ Bob L. Martin Director
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Bob L. Martin December 8, 2006
/s/ Douglas H. Martin Director
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Douglas H. Martin December 8, 2006
/s/ William C. Nylin, Jr. Director
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William C. Nylin, Jr. December 8, 2006
4
/s/ Scott L. Thompson Director
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Scott L. Thompson December 8, 2006
/s/ William T. Trawick Director
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William T. Trawick December 8, 2006
/s/ Theodore M. Wright Director
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Theodore M. Wright December 8, 2006
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5
INDEX TO EXHIBITS
Exhibit
Number Description
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4.1 Conn's, Inc. Amended and Restated 2003 Incentive Stock Option Plan
(incorporated herein by reference to Exhibit 10.1 to Conn's, Inc.
registration statement on Form S-1 (Commission File No. 333-109046) as
filed with the Commission on September 23, 2003).
4.2 Amendment to the Conn's, Inc. Amended and Restated 2003 Incentive
Stock Option Plan (incorporated herein by reference to Exhibit 10.1.1
to Conn's, Inc. Form 10-Q for the quarterly period ended April 30,
2004 (Commission File No. 000-50421) as filed with the Commission on
June 7, 2004).
4.3 Conn's, Inc. Amended and Restated 2003 Incentive Stock Option Plan as
of May 31, 2006
4.4 Conn's, Inc. 2003 Non-Employee Director Stock Option Plan
(incorporated herein by reference to Exhibit 10.2 to Conn's, Inc.
registration statement on Form S-1 (Commission File No. 333-109046) as
filed with the Commission on September 23, 2003).
4.5 Conn's, Inc. Amended and Restated 2003 Non-Employee Director Stock
Option Plan as of May 31, 2006.
5.1 Opinion of Fulbright & Jaworski L.L.P. as to the shares under the
Conn's, Inc. Amended and Restated 2003 Incentive Stock Option Plan.
5.2 Opinion of Fulbright & Jaworski L.L.P. as to the shares under the
Conn's, Inc. 2003 Non-Employee Director Stock Option Plan.
23.1 Consent of Fulbright & Jaworski L.L.P. (included in the opinions filed
as Exhibit 5.1 and Exhibit 5.2 hereto).
23.2 Consent of Ernst & Young LLP, Independent Registered Public Accounting
Firm.
24.1 Power of Attorney (included with signature page of this Registration
Statement).
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6
Exhibit 4.3
CONN'S, INC.
AMENDED AND RESTATED 2003 INCENTIVE STOCK OPTION PLAN
AS OF MAY 31, 2006
Table of Contents
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Page
----
1. Purposes of this Plan......................................................1
2. Amendment and Restatement..................................................1
3. Definitions................................................................1
4. Shares Subject to this Plan................................................3
5. Administration of this Plan................................................4
6. Eligibility................................................................5
7. Term of Plan...............................................................5
8. Term of Option.............................................................5
9. Vesting....................................................................5
10. Option Exercise Price and Consideration....................................6
11. Exercise of Option.........................................................6
12. Limited Transferability of Options.........................................7
13. Adjustments Upon Changes in Capitalization, Merger or Asset Sale...........8
14. Conditions Upon Issuance of Shares.........................................9
15. Inability to Obtain Authority..............................................9
16. Reservation of Shares......................................................9
17. Reliance on Reports........................................................9
18. Construction...............................................................9
19. Governing Law..............................................................9
20. Approval, Amendment, and Termination of this Plan.........................10
CONN'S, INC.
AMENDED AND RESTATED 2003
INCENTIVE STOCK OPTION PLAN
AS OF MAY 31, 2006
1. Purposes of this Plan. The purposes of this Plan are to attract and
retain the best available personnel for positions of substantial responsibility,
to provide additional incentive to Employees and to promote the success of the
Company's business. Options granted under this Plan are intended to qualify as
Incentive Stock Options. The provisions of this Plan shall be construed in a
manner consistent with the requirements of the Code.
2. Amendment and Restatement. This Plan is an amendment and restatement of
that certain Conn Appliances, Inc. Incentive Stock Option Plan dated October 21,
1999, which shall be superseded in its entirety by this Plan. It is intended
that the terms of this Plan do not constitute a "modification, extension, or
renewal" of options within the meaning of Section 424(h) of the Code. Any
provisions of this Plan which shall constitute a modification, extension, or
renewal of options under Section 424(h) of the Code shall be disregarded insofar
as it would otherwise apply to any option outstanding on the date of the Board's
adoption of this Plan.
Notwithstanding the foregoing, the right of an Employee to require the
Company to repurchase an Employee's Shares upon termination of employment with
the Company found in Section 5 of that certain Restricted Stock Agreement dated
July 21, 1998 is hereby rescinded with respect to all unexercised Options
granted under this Plan. Said Restricted Stock Agreement shall not apply to
Options granted after the adoption of this amendment and restatement to the
Plan.
3. Definitions. As used herein, the following definitions shall apply:
(a) "Administrator" means the Board or any of its Committees as shall
be administering this Plan in accordance with Paragraph 5 hereof.
(b) "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.
(c) "Board" means the Company's Board of Directors.
(d) "Cause" means (i) the Optionee's continued failure to
substantially perform the principal duties and obligations of his position
with the Company (other than any such failure resulting from Disability);
(ii) any act of personal dishonesty, fraud or misrepresentation taken by
the Optionee which was intended to result in substantial gain or personal
enrichment of the Optionee at the expense of the Company; (iii) the
Optionee's violation of a federal or state law or regulation applicable to
the Company's business which violation was or is reasonably likely to be
injurious to the Company; or (iv) the Optionee's conviction of a felony or
a plea of nolo contendere under the laws of the United States or any state.
(e) "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.
(f) "Code" means the Internal Revenue Code of 1986, as amended.
(g) "Committee" means a committee of Directors appointed by the Board
in accordance with Paragraph 5 hereof.
(h) "Common Stock" means the Company's common stock.
(i) "Company" means Conn's, Inc., a Delaware corporation, and any
successor to the Company.
(j) "Date of Grant" means the date on which the granting of an Option
is authorized pursuant to Paragraph 6 of this Plan, by the Committee or
such later date as may be specified by the Committee in such authorization.
(k) "Director" means a member of the Board.
(l) "Disability" means total and permanent disability as defined in
Section 22(e)(3) of the Code.
(m) "Employee" means any person, including officers, employed by the
Company or any Parent or Subsidiary of the Company. A person shall not
cease to be an Employee in the case of (i) any leave of absence approved by
the Company or (ii) transfers between locations of the Company or between
the Company, its Parent, any Subsidiary or any successor. For purposes of
Incentive Stock Options, no such leave may exceed ninety (90) days, unless
reemployment upon expiration of such leave is guaranteed by statute or
contract. If reemployment upon expiration of a leave of absence approved by
the Company is not so guaranteed, then three (3) months following the 91s1
day of such leave any Incentive Stock Option held by the Optionee shall
cease to be treated as an Incentive Stock Option and shall be treated for
tax purposes as a Non-statutory Stock Option. Neither service as a Director
nor payment of a director's fee by the Company shall be sufficient to
constitute "employment" by the Company.
(n) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(o) "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 Administrator deems reliable;
2
(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 Administrator.
(p) "Incentive Stock Option" means an Option intended to qualify as an
"incentive stock option" within the meaning of Section 422 of the Code.
(q) "Involuntary Termination" shall mean (i) a termination by the
Company of the Optionee's status as an Employee other than for Cause; (ii)
without the Optionee's consent, a material reduction of or variation in the
Optionee's duties, authority or responsibilities relative to the Optionee's
duties, authority or responsibilities as in effect immediately prior to
such reduction or variation; (iii) without the Optionee's consent, a
material reduction in the base salary of the Optionee as in effect
immediately prior to such reduction; (iv) without the Optionee's consent, a
material reduction by the Company in the kind or level of employee benefits
to which the Optionee was entitled immediately prior to such reduction,
with the result that the Optionee's overall benefits package is materially
reduced; or (v) without the Optionee's consent, the relocation of the
Optionee to a facility or a location more than fifty (50) miles from the
Optionee's then present location.
(r) "Non-statutory Stock Option" means an Option that does not qualify
as an Incentive Stock Option.
(s) "Option" means a stock option granted pursuant to this Plan.
(t) "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.
(u) "Optioned Stock" means the Common Stock subject to an Option.
(v) "Optionee" means the holder of an outstanding Option granted under
this Plan.
(w) "Paragraph" means a paragraph of this Plan.
(x) "Parent" means a "parent corporation," whether now or hereafter
existing, as defined in Section 424(e) of the Code.
(y) "Plan" means the Conn Appliances, Inc. 2003 Amended and Restated
Incentive Stock Option Plan, as may be amended from time to time.
(z) "Share" means a share of the Common Stock, as may be adjusted in
accordance with Paragraph 13.
(aa) "Subsidiary" means a "subsidiary corporation," whether now or
hereafter existing, as defined in Section 424(f) of the Code.
3
4. Shares Subject to this Plan. Subject to the provisions of Paragraph 13,
the maximum aggregate number of Shares that may be subject to Options and sold
under this Plan is 3,859,767 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, except that if Shares acquired by exercise
of an Option and subject to a restricted stock agreement are repurchased by the
Company, such Shares shall become available for future grant under this Plan.
5. Administration of this Plan.
(a) This Plan shall be administered by the Board or a Committee
appointed by the Board, which Committee shall be constituted to comply with
Applicable Laws. Notwithstanding the foregoing, the Chief Executive Officer
of the Company shall have the ability to grant Options to non-executive
officers of the Company under guidelines or formulae approved or adopted by
the Committee.
(b) Subject to the provisions of this Plan and, in the case of a
Committee, the specific duties delegated by the Board to such Committee,
and subject to the approval of any relevant authorities, the Administrator
shall have the authority in its sole discretion:
(i) to determine the Fair Market Value of the Common Stock;
(ii) to select the Employees to whom Options may from time to
time be granted hereunder;
(iii) to determine the number of Shares subject to each Option
granted hereunder;
(iv) to approve a form of Option Agreement;
(v) to determine the terms and conditions of any Option granted
hereunder. Such terms and conditions include, but are not limited to,
the exercise price, the time or times when Options may be exercised
(which may be based on performance criteria or period of employment
service), any vesting acceleration or waiver of forfeiture
restrictions, and any restriction or limitation regarding any Option
or the Common Stock relating thereto, based in each case on such
factors as the Administrator, in its sole discretion, shall determine;
(vi) to determine whether and under what circumstances an Option
may be settled in cash or Common Stock under Paragraph 11(e);
(vii) 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;
(viii) to allow or disallow one or more Optionees to 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. All elections by Optionees to have Shares withheld
for this purpose shall be made in such form and under such conditions
as the Administrator may deem necessary or advisable; and
4
(ix) to construe and interpret the terms of this Plan and Options
granted pursuant to this Plan.
(c) Effect of Administrator's Decision. All decisions, determinations
and interpretations of the Administrator shall be final and binding on all
Optionees.
6. Eligibility.
(a) Options may be granted only to Employees. The maximum number of
Shares with respect to which Options may be granted during a specified
period to any single Employee is 500,000.
(b) Each Option shall be designated in the Option Agreement as an
Incentive Stock Option. However, notwithstanding such designation, to the
extent that the aggregate Fair Market Value of the Shares with respect to
which Incentive Stock Options are exercisable for the first time by the
Optionee during any calendar year (under all plans of the Company and any
Parent or Subsidiary) exceeds $100,000, such Options shall be treated as
Non-statutory Stock Options. For purposes of this Paragraph 6(b), Incentive
Stock Options shall be taken into account in the order in which they were
granted. The Fair Market Value of the Shares shall be determined as of the
time the Date of Grant.
(c) Neither this Plan nor any Option shall confer upon any Optionee
any right with respect to continuing the Optionee's relationship as an
Employee with the Company, nor shall it interfere in any way with his right
or the Company's right to terminate such relationship at any time, with or
without Cause, and with or without notice.
7. Term of Plan. Subject to Paragraph 20, this Plan shall become effective
upon its adoption by the Board. Unless sooner terminated under Paragraph 20,
this Plan shall continue in effect for a term of ten (10) years from the later
of (i) the effective date of this Plan or (ii) the date of the most recent Board
approval of an increase in the number of Shares reserved for issuance under this
Plan.
8. Term of Option. The term of each Option shall be stated in the Option
Agreement; provided, however, that the term shall be no more than ten (10) years
from the Date of Grant. In the case of an Option granted to an Optionee who, on
the Date of Grant, owns stock representing more than ten percent (10%) of the
voting power of all classes of stock of the Company or any Parent or Subsidiary,
the term of the Option shall be five (5) years from the Date of Grant or such
shorter term as may be provided in the Option Agreement.
9. 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, according to the following schedule:
5
Years from Date of Grant Vested Amount
------------------------ -------------
Less than 1 year 0%
1 year but less than 2 years 20%
2 years but less than 3 years 40%
3 years but less than 4 years 60%
4 years but less than 5 years 80%
5 years or more 100%
10. Option Exercise Price and Consideration.
(a) The per share exercise price for the Shares to be issued upon
exercise of an Option shall be such price as is determined by the
Administrator, but shall be subject to the following:
(i) In the case of an Option granted to an Employee who, at the
Date of Grant, owns stock representing more than ten percent (10%) of
the voting power of all classes of stock of the Company or any Parent
or Subsidiary, the exercise price shall be not less than 110% of the
Fair Market Value per Share on the Date of Grant. In the case of an
Option granted to any other Employee, the per Share exercise price
shall be not less than 100% of the Fair Market Value per Share on the
Date of Grant.
(ii) In the case of a Non-statutory Stock Option granted to any
other Employee, the per Share exercise price shall be determined by
the Administrator.
(b) The consideration to be paid for the Shares to be issued upon
exercise of an Option, including the method of payment, shall be determined
by the Administrator on the Date of Grant. Such consideration may consist
of cash or check or any combination thereof.
11. Exercise of Option.
(a) Procedure for Exercise; Rights as a Shareholder. Any Option
granted hereunder shall be exercisable according to the terms hereof at
such times and under such conditions as determined by the Administrator and
set forth in the Option Agreement. Unless the Administrator provides
otherwise, vesting of Options granted hereunder shall be suspended during
any unpaid leave of absence. An Option may not be exercised for a fraction
of a Share.
An Option shall be exercised 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 authorized by the Administrator and
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 13.
6
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) Termination of Relationship as an Employee. If an Optionee ceases
to be an Employee other than upon such Optionee's death or Disability, such
Optionee may exercise his Option within the period of time specified in the
Option Agreement to the extent that the Option is vested on the date of
termination (but in no event later than the expiration of the term of the
Option as set forth in the Option Agreement). The Option shall remain
exercisable for three (3) months following the Optionee's termination, or
such shorter period as may be provided in the Option Agreement. If, on the
date of termination, the Optionee is not vested as to his Optioned Stock,
the unvested portion of the Optioned Stock shall revert to this Plan. If,
after termination, the Optionee does not exercise his Option within the
time specified by the Administrator, the Option shall terminate, and the
Optioned Stock shall revert to this Plan.
(c) Disability of Optionee. If an Optionee ceases to be an Employee as
a result of the Optionee's Disability, the Optionee may exercise his Option
for such period of time as specified in the Option Agreement to the extent
the Option is vested on the date of termination (but in no event later than
the expiration of the term of such Option as set forth in the Option
Agreement). The Option shall remain exercisable for one (1) year following
the Optionee's termination, or such shorter period as may be provided in
the Option Agreement. If, on the date of termination, the Optionee is not
vested as to all of his Optioned Stock, the unvested portion of the
Optioned Stock shall revert to this Plan. If, after termination, the
Optionee does not exercise his Option within the time specified herein, the
Option shall terminate, and the Shares covered by such Option shall revert
to this Plan.
(d) Death of Optionee. If an Optionee dies while an Employee, the
Option may be exercised for such period of time as specified in the Option
Agreement to the extent that the Option is vested on the date of death (but
in no event later than the expiration of the term of such Option as set
forth in the Option Agreement) by the personal representative of the
Optionee's estate or by the person(s) to whom the Option is transferred
pursuant to the Optionee's will or in accordance with the laws of descent
and distribution. The Option shall remain exercisable for three (3) months
following the Optionee's termination, or such shorter period as may be
provided in the Option Agreement. If, on the date of death, the Optionee is
not vested as to all of his Optioned Stock, the unvested portion of the
Optioned Stock shall immediately revert to this Plan. If the Option is not
so exercised within the time specified herein, the Option shall terminate,
and the Optioned Stock shall revert to this Plan.
(e) Repurchase Provisions. The Administrator may at any time offer to
repurchase for a payment in cash or Shares, an Option previously granted,
based on such terms and conditions as the Administrator shall establish and
communicate to the Optionee at the time that such offer is made.
(f) Other Terms and Conditions. Among other conditions that may be
imposed by the Committee with respect to Options granted pursuant to this
Plan, if deemed appropriate, include but are not limited to (i) the period
or periods and the conditions of exercisability of any Option; (ii) the
minimum periods during which Participants must be Employees of the Company
or its Subsidiaries, or must hold Options before they may be exercised;
(iii) the minimum periods during which shares acquired upon exercise must
be held before sale or transfer shall be permitted; (iv) conditions under
which such Options or shares may be subject to forfeiture; (v) the
frequency of exercise or the minimum or maximum number of shares that may
be acquired at any one time; and (vi) the achievement by the Company of
specified performance criteria.
7
(g) 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.
12. Limited Transferability of Options. 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.
13. 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 that 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 or repurchase of shares acquired by exercise of
an Option and subject to a restricted stock agreement, 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 Administrator shall notify
each Optionee as soon as practicable prior to the effective date of such
proposed transaction. The Administrator in its discretion may provide for
an Optionee to have the right to exercise his Option until fifteen (15)
days prior to such transaction as to all of the Optioned Stock covered
thereby, including Shares as to which the Option would not otherwise be
exercisable. In addition, the Administrator 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
Administrator 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 13, the Option shall be considered
assumed if, following the Merger Transaction, the option or right confers
the 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 Administrator 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.
8
(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 an Involuntary
Termination of an Optionee upon or during the one (1) year period after the
effective date of such Change of Control, (1) 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 and (2) all of the Company's
rights to repurchase Restricted Stock from an Optionee under all restricted
stock purchase agreements shall lapse in their entirety on an accelerated
basis as of the date immediately preceding any such Involuntary
Termination.
14. 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 shall comply 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 Administrator 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.
15. 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.
16. 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.
17. Reliance on Reports. Each member of the Committee and 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 and its
Subsidiaries and upon any other information furnished in connection with this
Plan by any person or persons other than the Committee or Board member. In no
event shall any person who is or shall have been a member of the Committee or
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.
9
18. 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.
19. 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.
20. 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;
(iii) a change in the manner in which Options are issued or may
be exercised; or
(iv) an extension of the term of this Plan as set forth in
Paragraph 7.
(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
Administrator, which agreement must be in writing and signed by the
Optionee and the Company. Termination of this Plan shall not affect the
Administrator'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.
(i) If the shareholders fail to approve the amendment and
restatement of this Plan as set forth in this Paragraph 20, all
Options granted under the Plan subsequent to the Board's adoption of
such amendment and restatement shall expire and the amendment and
restatement shall be disregarded.
10
(ii) If the shareholders fail to approve a Plan amendment as set
forth in this Paragraph 20, the Plan amendment shall be disregarded.
11
EXHIBIT A
---------
Form of Incentive Stock Option Agreement
CONN'S, INC.
AMENDED AND RESTATED 2003 INCENTIVE STOCK OPTION PLAN
AS OF MAY 31, 2006
INCENTIVE STOCK OPTION AGREEMENT
THIS INCENTIVE STOCK OPTION AGREEMENT (the "Agreement") is made this
__________ day of ____________________, 20__, between CONN'S, INC., a Delaware
corporation (the "Company"), and ______________________________, an Employee of
the Company or one or more of its Parents and Subsidiaries. All capitalized
terms not otherwise defined herein shall have the meaning set forth in the
Conn's, Inc. Amended and Restated 2003 Incentive Stock Option Plan as of May 31,
2006 (the "Plan").
W I T N E S S E T H:
WHEREAS, the Company desires to carry out the purposes of the Plan by
affording Employee the opportunity to purchase shares of Company common stock
("Shares");
NOW THEREFORE, in consideration of the mutual covenants hereinafter set
forth and for other good and valuable consideration, the parties hereto agree as
follows:
1. Grant of Option. The Company hereby grants to Employee the right and
option (the "Option") to purchase an aggregate of _____ Shares, such Shares
being subject to adjustment as provided in Paragraph 8 on the terms and
conditions herein set forth. The Option is intended to constitute an Incentive
Stock Option, and subject to the terms of the Plan and Applicable Laws, this
Agreement shall be construed so that the Option shall qualify as an Incentive
Stock Option.
2. Term of Option. Unless modified by Paragraph 6, this Option shall remain
exercisable until _________, _____, when it shall lapse.
3. Purchase Price. The purchase price of the Shares shall be $_______ per
Share which is the Fair Market Value of a Share on the Date of Grant.
4. Exercise of Option. Unless expired as provided in Paragraph 6, this
Option may be exercised from time to time after the Date of Grant to the extent
of Shares that have vested in accordance with the vesting schedule set forth
below. The Employee's right to exercise the Option accrues only in accordance
with the following vesting schedule and, except as otherwise provided herein,
only to the extent that the Employee remains in the continuous employ or service
of the Company, Parent or a Subsidiary.
Portion of Shares that are Vested on and
After the Vesting Date and Before the
Vesting Date Next Vesting Date
------------------------------ ----------------------------------------
--------------------, ---- ----------%
--------------------, ---- ----------%
--------------------, ---- ----------%
--------------------, ---- ----------%
--------------------, ---- ----------%
5. Manner of Exercise, Payment of Purchase Price.
(a) Subject to the terms and conditions of this Agreement, the Option
shall be exercised by written notice to the Chief Financial Officer of the
Company at its principal office. Such notice shall state the election to
exercise the Option and specify the number of Shares to be purchased. Such
notice of exercise shall be signed by Employee and shall be irrevocable
when given.
(b) The notice of exercise shall be accompanied by full payment of the
purchase price for the Shares to be purchased. The purchase price may be
paid in cash or check or any combination thereof.
(c) Upon receipt of the purchase price, and subject to the terms of
Paragraph 12, the certificate or certificates representing the Shares
purchased shall be registered in the name of the person or persons so
exercising the Option. If the Option shall be exercised by Employee and, if
Employee shall so request in the notice exercising the Option, the Shares
shall be registered in the name of Employee and his spouse as joint tenants
with right of survivorship, and shall be delivered as provided above to or
upon the written order of the person or persons exercising the Option. All
Shares that shall be purchased upon the exercise of the Option as provided
herein shall be fully paid and nonassessable.
6. Expiration of Option. Notwithstanding the provisions of Paragraph 2,
this Option shall expire and become null and void upon the first to occur of the
following: (a) a period of ten (10) years has elapsed since the Date of Grant;
(b) a period of twelve (12) months has elapsed following the Employee's
Disability; or (c) a period of three (3) months has elapsed following the
Employee's termination of employment for any other reason including death.
7. Acceleration of Vesting and Exercise Dates. The other provisions of this
Agreement notwithstanding and pursuant to Paragraph 12 of the Plan:
(a) In the event of a proposed dissolution or liquidation of the
Company and at the discretion of the Administrator, this Option may be
immediately exercised for the entire number of Shares covered hereby until
fifteen (15) days prior to such dissolution or liquidation;
(b) In the event of a Merger Transaction in which this Option shall
not be assumed or an equivalent option issued as a substitute by a
successor entity, the Administrator shall notify the Optionee in writing
that this Option shall be exercisable for the entire number of Shares
covered hereunder for a period of fifteen (15) days from the date of such
notice; or
(c) In the event of a Merger Transaction that constitutes a Change of
Control in which this Option is assumed or an equivalent option is issued
by a successor entity, an Involuntary Termination of the Optionee within
one (1) year after the effective date of the Change of Control shall cause
this Option or the equivalent substitute option to be immediately
exercisable for the full number of Shares covered hereunder.
8. Adjustments of Shares Subject to Option. The Shares subject to the
Option shall be adjusted from time to time as set forth in Paragraph 12 of the
Plan. The determination of any such adjustment by the Committee shall be final,
binding and conclusive.
9. No Contract. This Agreement does not constitute a contract for
employment and shall not affect the right of the Company to terminate Employee's
employment for any reason or no reason whatsoever.
10. Rights as Shareholder. This Option shall not entitle Employee to any
rights of a shareholder of the Company or to any notice of proceedings of the
Company with respect to any Shares issuable upon exercise of this Option unless
and until the Option has been exercised for such Shares and such Shares have
been registered in the Employee's name upon the stock records of the Company.
11. Restrictions on Exercise. This Option may not be exercised until such
time as the Plan has been approved by the shareholders of the Company, or if the
issuance of such Shares upon such exercise or the method of payment of
consideration for such Shares would constitute a violation of any Applicable
Law.
12. Restriction on Issuance of Shares. The Company shall not be required to
issue or deliver any certificates for Shares purchased upon the exercise of an
Option prior to: (i) the obtaining of any approval from any governmental agency
which the Company shall, in its sole discretion, determine to be necessary or
advisable; (ii) the completion of any registration or other qualification of
such Shares under any state or federal law or ruling or regulation of any
governmental body which the Company shall, in its sole discretion, determine to
be necessary or advisable; and (iii) the determination by the Committee that
Employee has tendered to the Company any federal, state or local tax owed by
Employee as a result of exercising the Option when the Company has a legal
liability to satisfy such tax. In addition, if the Common Stock reserved for
issuance upon the exercise of Options shall not then be registered under the
Securities Act of 1933, the Company may upon Employee's exercise of an Option,
require Employee or his permitted transferee to represent in writing that the
Shares being acquired are for investment and not with a view to distribution,
and may mark the certificate for the Shares with a legend restricting transfer
and may issue stop transfer orders relating to such certificate to the Company's
transfer agent (if applicable).
13. Lapse of Option. This Agreement shall be null and void in the event
Employee shall fail to sign and return a counterpart hereof to the Company
within thirty (30) days of its delivery to Employee.
14. Binding Effect. This Agreement shall be binding upon the heirs,
executors, administrators and successors of the parties hereto.
15. Governing Instrument and Entire Agreement. This Option and any Shares
issued hereunder shall in all respects be governed by the terms and provisions
of the Plan. In the event of a conflict between the terms of this Agreement and
the terms of the Plan (a copy of which is attached), the terms of the Plan shall
control. There are no oral agreements between the parties relating to the
subject matter hereof, and this Agreement and the terms of the Plan constitute
the entire agreement of the parties with respect to the subject matter hereof.
This Agreement may not be amended except by written agreement executed by the
Company and Employee.
CONN'S, INC.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Accepted and Agreed:
EMPLOYEE:
Date:
- -----------------------------------
- -----------------------------------
Employee's Printed Name
CONN'S, INC.
AMENDED AND RESTATED 2003 INCENTIVE STOCK OPTION PLAN
AS OF MAY 31, 2006
NOTICE OF EXERCISE OF
INCENTIVE STOCK OPTION
This Notice of Exercise of Incentive Stock Option (the "Notice") is
delivered to Conn's, Inc. (the "Company") pursuant to the terms of the Conn's,
Inc. Amended and Restated 2003 Incentive Stock Option Plan as of May 31, 2006
(the "Plan") and pursuant to the Incentive Stock Option Agreement between the
Company and ______________________________ (the "Optionee") dated
____________________, ____ (the "Agreement"). All capitalized terms not
otherwise defined herein shall have the meaning set forth in the Plan.
1. Number of Shares to be Purchased. I hereby elect to purchase _______
Shares of Common Stock pursuant to the Agreement.
2. Purchase Price. The purchase price of the Shares is $_________ per
Share, for an aggregate purchase price of $_____________.
3. Payment Method. The aggregate purchase price set forth above is attached
hereto in the following form: .
4. Exercise of Option Subject to Plan and Agreement. I understand and agree
that the exercise of the Option pursuant to this Notice is subject to all the
terms of the Plan and the Agreement. I agree to be subject to all the terms of
the Plan and the Agreement. I certify that I am entitled to exercise the Option
for the number of Shares set forth above pursuant to the terms of the Plan and
the Agreement. To the extent the Company is required to withhold federal or
state income or other taxes in connection with the exercise of the Option, I
agree to tender to the Company the amount required to be withheld or to allow
the Company to withhold from the Stock otherwise deliverable to me pursuant to
the exercise of the Option, such method to be determined by the Committee in its
sole discretion.
OPTIONEE:
Date:
------------------------------ ------------------------------------------
Printed Name:
-----------------------------
EXHIBIT B
---------
PROSPECTUS:
CONN'S, INC.
2003 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
AS OF MAY 31, 2006
- 18 -
Exhibit 4.5
CONN'S, INC.
AMENDED AND RESTATED
2003 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
AS OF MAY 31, 2006
TABLE OF CONTENTS
Page
1. Purposes of this Plan......................................................1
2. Establishment..............................................................1
3. Definitions................................................................1
4. Stock Subject to this Plan.................................................2
5. Administration of this Plan................................................3
6. Stock Options..............................................................3
7. Exercise of Option.........................................................3
8. Approval, Amendment, and Termination of this Plan..........................5
9. Limited Transferability of Options.........................................5
10. Conditions Upon Issuance of Shares.........................................5
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..............................................................6
17. Adjustments Upon Changes in Capitalization, Merger or Asset Sale...........6
i
CONN'S, INC.
AMENDED AND RESTATED
2003 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
AS OF MAY 31, 2006
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 was approved by the Company's stockholders at a
meeting on February 7, 2003 and is effective as of such date.
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.
1
(i) "Disability" means total and permanent disability as defined in
Section 22(e)(3) of the Code.
(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.
2
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 600,000 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, except that Options granted under this Plan pursuant
to Paragraph 6(a)(ii) above shall vest on the first annual anniversary date
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 to be paid for the Shares to be issued upon exercise of
an Option. Such consideration may consist of cash or check.
3
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:
(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.
4
(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.
(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.
5
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.
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.
6
(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 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.
7
(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.
8
Exhibit A
---------
Form of Non-Qualified Stock Option Agreement
CONN'S, INC.
AMENDED AND RESTATED
2003 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
AS OF MAY 31, 2006
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (the "Agreement") is made this
day of ___________, 20___, between CONN'S, INC., a Texas corporation (the
"Company"), and _______________, a Non-Employee Director of the Company (the
"Optionee"). All capitalized terms not otherwise defined herein shall have the
meaning set forth in the Conn's, Inc. Amended and Restated 2003 Non-Employee
Director Stock Option Plan as of May 31, 2006 (the "Plan").
W I T N E S S E T H:
-------------------
WHEREAS, the Company desires to carry out the purposes of the Plan by
affording Optionee the opportunity to purchase shares of Company common stock
("Shares");
NOW THEREFORE, in consideration of the mutual covenants hereinafter set
forth and for other good and valuable consideration, the parties hereto agree as
follows:
1. Grant of Option. The Company hereby grants to Optionee the right and
option (the "Option") to purchase an aggregate of _____ Shares, such Shares
being subject to adjustment as provided in Paragraph 7, on the terms and
conditions herein set forth. The Option is intended to constitute an "incentive
stock option" within the meaning of Section 422 of the Code.
2. Term of Option. This Option shall remain exercisable until the earlier
of _________, _____ or three (3) years after the termination of the Optionee's
service on the Board.
3. Purchase Price. The purchase price of the Shares shall be $_______ per
Share.
4. Exercise of Option. Unless this Option has expired as provided in
Paragraph 2, this Option may be exercised from time to time after the date set
forth above (the "Date of Grant") to the extent of Shares that have vested in
accordance with the vesting schedule set forth below. The Optionee's right to
exercise the Option accrues only in accordance with the following vesting
schedule except as otherwise provided in Paragraph 6.
Portion of Shares that are Vested on and
After the Vesting Date and Before the
Vesting Date Next Vesting Date
-------------------------- ----------------------------------------
----------, ---- ---------%
----------, ---- ---------%
----------, ---- ---------%
----------, ---- ---------%
----------, ---- ---------%
1
5. Manner of Exercise, Payment of Purchase Price.
(a) Subject to the terms and conditions of this Agreement, the Option
shall be exercised by written notice to the Chief Financial Officer of the
Company at its principal office. Such notice shall state the election to
exercise the Option and specify the number of Shares to be purchased. Such
notice of exercise shall be signed by Optionee and shall be irrevocable
when given.
(b) The notice of exercise shall be accompanied by full payment of the
purchase price for the Shares to be purchased. The purchase price may be
paid in cash or check or any combination thereof.
(c) Upon receipt of the purchase price, and subject to the terms of
Paragraph 11, the certificate or certificates representing the Shares
purchased shall be registered in the name of the person or persons so
exercising the Option. If the Option shall be exercised by Optionee and, if
Optionee shall so request in the notice exercising the Option, the Shares
shall be registered in the name of Optionee and his spouse as joint tenants
with right of survivorship, and shall be delivered as provided above to or
upon the written order of the person or persons exercising the Option. All
Shares that shall be purchased upon the exercise of the Option as provided
herein shall be fully paid and nonassessable.
6. Acceleration of Vesting and Exercise Dates. The other provisions of this
Agreement notwithstanding and pursuant to Paragraph 17 of the Plan:
(a) In the event of a proposed dissolution or liquidation of the
Company and at the discretion of the Administrator, this Option may be
immediately exercised for the entire number of Shares covered hereby until
fifteen (15) days prior to such dissolution or liquidation;
(b) In the event of a Merger Transaction in which this Option shall
not be assumed or an equivalent option issued as a substitute by a
successor entity, the Administrator shall notify the Optionee in writing
that this Option shall be exercisable for the entire number of Shares
covered hereunder for a period of fifteen (15) days from the date of such
notice; or
(c) In the event of a Merger Transaction that constitutes a Change of
Control in which this Option is assumed or an equivalent option is issued
by a successor entity, an Involuntary Termination of the Optionee within
one (1) year after the effective date of the Change of Control shall cause
this Option or the equivalent substitute option to be immediately
exercisable for the full number of Shares covered hereunder.
7. Adjustments of Shares Subject to Option. The Shares subject to the
Option shall be adjusted from time to time as set forth in Paragraph 17 of the
Plan. The determination of any such adjustment by the Committee shall be final,
binding and conclusive.
8. No Contract. This Agreement does not constitute a contract for
employment and shall not affect the right of the Company to terminate Employee's
employment for any reason or no reason whatsoever.
9. Rights as Shareholder. This Option shall not entitle Optionee to any
rights of a shareholder of the Company or to any notice of proceedings of the
Company with respect to any Shares issuable upon exercise of this Option unless
and until the Option has been exercised for such Shares and such Shares have
been registered in the Optionee's name upon the stock records of the Company.
2
10. Restrictions on Exercise. This Option may not be exercised until such
time as the Plan has been approved by the shareholders of the Company, or if the
issuance of such Shares upon such exercise or the method of payment of
consideration for such Shares would constitute a violation of any Applicable
Law.
11. Restriction on Issuance of Shares. The Company shall not be required to
issue or deliver any certificates for Shares purchased upon the exercise of an
Option prior to: (i) the obtaining of any approval from any governmental agency
which the Company shall, in its sole discretion, determine to be necessary or
advisable; (ii) the completion of any registration or other qualification of
such Shares under any state or federal law or ruling or regulation of any
governmental body which the Company shall, in its sole discretion, determine to
be necessary or advisable; and (iii) the determination by the Committee that
Optionee has tendered to the Company any federal, state or local tax owed by
Optionee as a result of exercising the Option when the Company has a legal
liability to satisfy such tax. In addition, if the Common Stock reserved for
issuance upon the exercise of Options shall not then be registered under the
Securities Act of 1933, the Company may upon Optionee's exercise of an Option,
require Optionee or his permitted transferee to represent in writing that the
Shares being acquired are for investment and not with a view to distribution,
and may mark the certificate for the Shares with a legend restricting transfer
and may issue stop transfer orders relating to such certificate to the Company's
transfer agent (if applicable).
12. Lapse of Option. This Agreement shall be null and void in the event
Optionee shall fail to sign and return a counterpart hereof to the Company
within thirty (30) days of its delivery to Optionee.
13. Binding Effect. This Agreement shall be binding upon the heirs,
executors, administrators and successors of the parties hereto.
14. Governing Instrument and Entire Agreement. This Option and any Shares
issued hereunder shall in all respects be governed by the terms and provisions
of the Plan. In the event of a conflict between the terms of this Agreement and
the terms of the Plan (a copy of which is attached), the terms of the Plan shall
control. There are no oral agreements between the parties relating to the
subject matter hereof, and this Agreement and the terms of the Plan constitute
the entire agreement of the parties with respect to the subject matter hereof.
This Agreement may not be amended except by written agreement executed by the
Company and Optionee.
CONN'S, INC.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
3
Accepted and Agreed
OPTIONEE:
- -------------------------------------------
- -------------------------------------------
Optionee's Printed Name Date:
----------------------------
4
CONN'S, INC.
AMENDED AND RESTATED
2003 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
AS OF MAY 31, 2006
NOTICE OF EXERCISE OF
NONQUALIFIED STOCK OPTION
This Notice of Exercise of Nonqualified Stock Option (the "Notice") is
delivered to Conn's, Inc. (the "Company") pursuant to the terms of the Conn's,
Inc. Amended and Restated 2003 Non-Employee Director Stock Option Plan as of May
31, 2006 (the "Plan") and pursuant to the Nonqualified Stock Option Agreement
between the Company and ____________________ (the "Optionee") dated
_____________, ______ (the "Agreement"). All capitalized terms not otherwise
defined herein shall have the meaning set forth in the Plan.
1. Number of Shares to be Purchased. I hereby elect to purchase _______
Shares of Common Stock pursuant to the Agreement.
2. Purchase Price. The purchase price of the Shares is $_________ per
Share, for an aggregate purchase price of $_____________.
3. Payment Method. The aggregate purchase price set forth above is attached
hereto in the following form:
---------------------------------------------------
- --------------------------------------------------------------------------------
- -------------------------------------------------------------------------------.
4. Exercise of Option Subject to Plan and Agreement. I understand and agree
that the exercise of the Option pursuant to this Notice is subject to all the
terms of the Plan and the Agreement. I agree to be subject to all the terms of
the Plan and the Agreement. I certify that I am entitled to exercise the Option
for the number of Shares set forth above pursuant to the terms of the Plan and
the Agreement. To the extent the Company is required to withhold federal or
state income or other taxes in connection with the exercise of the Option, I
agree to tender to the Company the amount required to be withheld or to allow
the Company to withhold from the Stock otherwise deliverable to me pursuant to
the exercise of the Option, such method to be determined by the Committee in its
sole discretion.
OPTIONEE:
Date:
---------------------------------------- ---------------------------------
Printed Name:
--------------------
Exhibit 5.1
Fulbright & Jaworski l.l.p.
A Registered Limited Liability Partnership
2200 Ross Avenue, Suite 2800
Dallas, Texas 75201-2784
www.fulbright.com
telephone: (214) 855-8000 facsimile: (214) 855-8000
December 4, 2006
Conn's, Inc.
3295 College Street
Beaumont, Texas 77701
Re: Conn's, Inc. - Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Conn's, Inc., a Delaware corporation (the
"Company"), in connection with the proposed issuance of up to 1,300,000 shares
(the "Shares") of common stock, $0.01 par value per share (the "Common Stock"),
issuable under the Conn's, Inc. Amended and Restated 2003 Incentive Stock Option
Plan (the "Incentive Plan"), pursuant to a registration statement on Form S-8
under the Securities Act of 1933, as amended, filed with the Securities and
Exchange Commission (the "Commission") on or about December 4, 2006 (the
"Registration Statement").
As such counsel, we have examined originals, or copies certified or
otherwise identified to our satisfaction, of such documents, corporate records
and other instruments as we have deemed necessary or appropriate for the
purposes of our opinion, including: (i) the Company's Certificate of
Incorporation and all amendments thereto; (ii) the Company's Bylaws and all
amendments thereto; and (iii) the applicable minutes of meetings or consents in
lieu of meetings of the Company's board of directors (the "Board") and
stockholders.
For the purposes of expressing the opinion hereinafter set forth, we have
assumed: (i) the genuineness of all signatures and documents; (ii) the
authenticity of all documents submitted to us as originals; (iii) the conformity
to the originals of all documents submitted to us as copies; (iv) the
correctness and accuracy of all facts set forth in the documents referred to in
this Opinion Letter; and (v) compliance in the future with the terms of the
Incentive Plan by the Company and its employees, officers, the Board and any
committees appointed to administer the Incentive Plan.
Based on the foregoing and subject to the qualifications set forth herein,
we are of the opinion that upon the issuance of Shares in accordance with the
terms and conditions of the Incentive Plan, including receipt prior to issuance
by the Company of the exercise price for the Shares, which exercise price shall
be at least equal to the par value thereof, the Shares will be validly issued,
fully paid and nonassessable shares of Common Stock.
Our opinions herein are limited in all respects to the General Corporation
Law of the State of Delaware, which includes those statutory provisions as well
as all applicable provisions of the Delaware Constitution and the reported
judicial decisions interpreting such laws, and the federal laws of the United
States of America, and we do not express any opinion as to the applicability of
or the effect thereon of the laws of any other jurisdiction. We express no
opinion as to any matter other than as set forth herein, and no opinion may be
inferred or implied herefrom.
This firm consents to the filing of this opinion with the Commission as
Exhibit 5.1 to the Registration Statement.
Very truly yours,
/s/ Fulbright & Jaworski L.L.P.
FULBRIGHT & JAWORSKI L.L.P.
Exhibit 5.2
Fulbright & Jaworski l.l.p.
A Registered Limited Liability Partnership
2200 Ross Avenue, Suite 2800
Dallas, Texas 75201-2784
www.fulbright.com
telephone: (214) 855-8000 facsimile: (214) 855-8000
December 4, 2006
Conn's, Inc.
3295 College Street
Beaumont, Texas 77701
Re: Conn's, Inc. - Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Conn's, Inc., a Delaware corporation (the
"Company"), in connection with the proposed issuance of up to 300,000 shares
(the "Shares") of common stock, $0.01 par value per share (the "Common Stock"),
issuable under the Conn's, Inc. 2003 Non-Employee Director Stock Option Plan
(the "Director Plan"), pursuant to a registration statement on Form S-8 under
the Securities Act of 1933, as amended, filed with the Securities and Exchange
Commission (the "Commission") on or about December 4, 2006 (the "Registration
Statement").
As such counsel, we have examined originals, or copies certified or
otherwise identified to our satisfaction, of such documents, corporate records
and other instruments as we have deemed necessary or appropriate for the
purposes of our opinion, including: (i) the Company's Certificate of
Incorporation and all amendments thereto; (ii) the Company's Bylaws and all
amendments thereto; and (iii) the applicable minutes of meetings or consents in
lieu of meetings of the Company's board of directors (the "Board") and
stockholders.
For the purposes of expressing the opinion hereinafter set forth, we have
assumed: (i) the genuineness of all signatures and documents; (ii) the
authenticity of all documents submitted to us as originals; (iii) the conformity
to the originals of all documents submitted to us as copies; (iv) the
correctness and accuracy of all facts set forth in the documents referred to in
this Opinion Letter; and (v) compliance in the future with the terms of the
Director Plan by the Company and its employees, officers, the Board and any
committees appointed to administer the Director Plan.
Based on the foregoing and subject to the qualifications set forth herein,
we are of the opinion that upon the issuance of Shares in accordance with the
terms and conditions of the Director Plan, including receipt prior to issuance
by the Company of the exercise price for the Shares, which exercise price shall
be at least equal to the par value thereof, the Shares will be validly issued,
fully paid and nonassessable shares of Common Stock.
Our opinions herein are limited in all respects to the General Corporation
Law of the State of Delaware, which includes those statutory provisions as well
as all applicable provisions of the Delaware Constitution and the reported
judicial decisions interpreting such laws, and the federal laws of the United
States of America, and we do not express any opinion as to the applicability of
or the effect thereon of the laws of any other jurisdiction. We express no
opinion as to any matter other than as set forth herein, and no opinion may be
inferred or implied herefrom.
This firm consents to the filing of this opinion with the Commission as
Exhibit 5.2 to the Registration Statement.
Very truly yours,
/s/ Fulbright & Jaworski L.L.P.
FULBRIGHT & JAWORSKI L.L.P.
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement on
Form S-8 (pertaining to the 2003 Non-Employee Director Stock Option Plan Amended
and Restated 2003 Incentive Stock Option Plan) of our report dated March 29,
2006, except for Notes 1, 2, 5 and 13 as to which the date is September 14,
2006, with respect to the consolidated financial statements and schedule of
Conn's, Inc. included in its Annual Report (Form 10-K/A) for the year ended
January 31, 2006, and our report dated March 29, 2006, except for the effects of
the material weakness described in the sixth paragraph of such report, as to
which the date is September 14, 2006, with respect to Conn's, Inc. management's
revised assessment of the effectiveness of internal control over financial
reporting, and the effectiveness of internal control over financial reporting of
Conn's, Inc., filed with the Securities and Exchange Commission.
Ernst & Young LLP
Houston, Texas
December 8, 2006