As filed with the Securities and Exchange Commission on April 21, 2022
Registration No. 333-__________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
HOME BANCSHARES, INC.
(Exact name of registrant as specified in its charter)
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Arkansas
(State or other jurisdiction of incorporation or organization) | | | | 71-0682831
(IRS Employer Identification Number) |
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719 Harkrider, Suite 100, Conway Arkansas (Address of registrant’s principal executive offices) | | | 72032 (Zip Code) |
HOME BANCSHARES, INC. 2022 EQUITY INCENTIVE PLAN
(Full title of the plan)
| | | | | | | | |
Brian S. Davis
Chief Financial Officer
Home BancShares, Inc.
719 Harkrider Street, Suite 100 Conway, Arkansas 72032 Telephone: (501) 328-4770 (Name, address and telephone number, including area code, of agent for service) |
| Copy to: Courtney C. Crouch, III
Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.
425 West Capitol Avenue, Suite 1800
Little Rock, Arkansas 72201 Telephone: (501) 688-8822 Facsimile: (501) 918-7822 |
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “accelerated filer,” “large accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer | Accelerated filer |
Non-accelerated filer (Do not check if a smaller reporting company) | Smaller reporting company Emerging growth company |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in this Part I will be sent or given to employees participating in the Home BancShares, Inc. 2022 Equity Incentive Plan (the “Plan”), as specified by Rule 428(b)(1) promulgated under the Securities Act of 1933, as amended (the “Securities Act”). In accordance with the Note in the instructions to Part I of Form S-8, such documents will not be filed with the Securities and Exchange Commission (the “Commission”) either as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424 promulgated under the Securities Act. These documents and the documents incorporated by reference pursuant to Item 3 of Part II of this registration statement, taken together, constitute the prospectus as required by Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
We hereby incorporate by reference into this registration statement the following documents previously filed with the Commission:
(1) Our Annual Report on Form 10-K for the year ended December 31, 2021, filed with the Commission on February 24, 2022.
(2) Our Current Reports on Form 8-K filed with the Commission on January 13, 2022, January 18, 2022, March 15, 2022, April 1, 2022 and April 21, 2022, in each case except to the extent furnished but not filed.
(3) The description of our common stock, par value $0.01 per share (“Common Stock”) set forth in our registration statement on Form 10-12G, as amended, filed on April 7, 2006, including any amendment or report filed with the Commission for the purpose of updating this description, including Exhibit 4.2 to our Annual Report on Form 10-K for the year ended December 31, 2021, filed with the Commission on February 24, 2022.
All documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (other than any portions of the respective filings that are furnished pursuant to Item 2.02 or Item 7.01 of Current Reports on Form 8-K, including exhibits related thereto), prior to the filing of a post-effective amendment that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be part hereof from the date of filing of such documents. Any statement contained herein or in any document 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 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 to constitute a part of this registration statement, except as so modified or superseded.
Item 4. Description of Securities.
Not applicable. Our Common Stock is registered with the Commission under Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Certain legal matters with respect to the validity of the shares of our Common Stock offered hereby will be passed upon for us by Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., Little Rock, Arkansas. As of April 12, 2022, attorneys with Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. participating in this matter beneficially own approximately 5,268 shares of our Common Stock.
Item 6. Indemnification of Directors and Officers.
Our Restated Articles of Incorporation, as amended (the “Articles”), and Amended and Restated Bylaws require us to indemnify our directors and officers to the full extent permitted by law. Section 4-27-850 of the Arkansas Business Corporation Act of 1987 (the “ABCA”) contains detailed and comprehensive provisions providing for indemnification of directors and officers of Arkansas corporations against expenses (including attorneys’ fees), judgments, fines and settlements in connection with litigation. Under Arkansas law, other than an action brought by or in the right of Home BancShares, Inc. (the “Company”), such indemnification is available if it is determined that the proposed indemnitee acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.
In actions brought by or in the right of the Company, the Arkansas statute limits such indemnification to expenses (including attorneys’ fees) actually and reasonably incurred in the defense or settlement of such action if the indemnitee acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Company. However, no indemnification is allowed in actions brought by or in the right of the Company with respect to any claim, issue or matter as to which such person has been adjudged to be liable to us, unless and only to the extent that the court determines upon application that, in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the court deems proper.
To the extent that the proposed indemnitee has been successful on the merits or otherwise in defense of any action, suit or proceeding (or any claim, issue or matter therein), under Arkansas law, we must indemnify him or her against expenses (including attorneys’ fees) that he or she actually and reasonably incurred in connection with such defense.
Our Articles also provide that no director shall be liable to us or our shareholders for monetary damages for breach of fiduciary duty as a director to the fullest extent permitted by the ABCA.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers and controlling persons under the foregoing provisions, or otherwise, we have been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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| Exhibit Number | | Description |
| 4.1 | — | |
| 4.2 | — | |
| 4.3 | — | |
| 4.4 | — | |
| 4.5 | — | |
| 4.6 | — | |
| 4.7 | — | |
| 4.8 | — | |
| 4.9 | — | |
| 4.10 | — | |
| 4.11 | — | |
| | | | | | | | |
| 4.12 | — | |
| 4.13 | — | |
| 5.1 | — | |
| 23.1 | — | |
| 23.2 | — | Consent of Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. (included in Exhibit 5.1) |
| 24.1 | — | Power of Attorney (on signature page) |
| 99.1 | — | |
| 99.2 | — | |
| 99.3 | — | |
| 107 | — | |
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all the requirements for filing this registration statement 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 Conway, State of Arkansas, on April 21, 2022.
HOME BANCSHARES, INC.
By: /s/ Brian S. Davis
Brian S. Davis
Chief Financial Officer and Treasurer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Brian S. Davis and Jennifer C. Floyd, and each of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution, for him or her and in his or her 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 all documents in connection therewith, with the Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that each said attorneys-in-fact and agents, or his, her or their substitute or 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 dates indicated.
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| Signature | Title | Date |
/s/ John W. Allison John W. Allison | Chairman of the Board of Directors, Chief Executive Officer and President (Principal Executive Officer) | April 21, 2022 |
| | | |
/s/ Brian S. Davis Brian S. Davis | Chief Financial Officer, Treasurer and Director (Principal Financial Officer) | April 21, 2022 |
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/s/ Jennifer C. Floyd Jennifer C. Floyd | Chief Accounting Officer (Principal Accounting Officer) | April 21, 2022 |
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/s/ Milburn Adams Milburn Adams | Director | April 21, 2022 |
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/s/ Robert H. Adcock, Jr. Robert H. Adcock, Jr. | Director | April 21, 2022 |
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/s/ Richard H. Ashley Richard H. Ashley | Director | April 21, 2022 |
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/s/ Mike D. Beebe Mike D. Beebe | Director | April 21, 2022 |
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/s/ Jack E. Engelkes Jack E. Engelkes | Vice Chairman of the Board and Director | April 21, 2022 |
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/s/ Tracy M. French Tracy M. French | Director | April 21, 2022 |
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/s/ Karen Garrett Karen Garrett | Director | April 21, 2022 |
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/s/ James G. Hinkle James G. Hinkle | Director | April 21, 2022 |
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/s/ Alex R. Lieblong Alex R. Lieblong | Director | April 21, 2022 |
| | | |
/s/ Thomas J. Longe Thomas J. Longe | Director | April 21, 2022 |
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/s/ Jim Rankin, Jr. Jim Rankin, Jr. | Director | April 21, 2022 |
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/s/ Larry W. Ross Larry W. Ross | Director | April 21, 2022 |
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/s/ Donna J. Townsell Donna J. Townsell | Director | April 21, 2022 |
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Exhibit 107
Calculation of Filing Fee Table
Form S-8
(Form Type)
Home BancShares, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Security Type | | Security Class Title | | Fee Calculation Rule | | Amount Registered (1) | | Proposed Maximum Offering Price Per Unit (2) | | Maximum Aggregate Offering Price (2) | | Fee Rate | | Amount of Registration Fee (2) |
| Equity | | Common stock, par value $0.01 per share | | Other | | 3,000,000 (3) | | $22.18 | | $66,540,000 (2) | | 0.0000927 | | $6,168.26 (2) |
| Total Offering Amounts | | | | | | | | $66,540,000 | | | | $6,168.26 |
| Total Fee Offsets | | | | | | | | | | | | $0.00 |
| Net Fee Due | | | | | | | | | | | | $6,168.26 |
(1)Pursuant to Rule 416, this registration statement is deemed to include additional shares of the registrant’s common stock, par value $0.01 per share (“Common Stock”), issuable under the terms of the Home BancShares, Inc. 2022 Equity Incentive Plan (the “2022 Plan”) to prevent dilution resulting from any further stock split, stock dividend or similar transaction.
(2)Estimated solely for the purpose of calculating the registration fee in accordance with Rules 457(c) and (h) under the Securities Act of 1933, as amended, to be equal to $22.18 per share, the average of the high and low prices of the Common Stock as reported on the New York Stock Exchange on April 18, 2022.
(3)Represents approximately 1,391,510 shares of Common Stock that remained available for issuance under the Home BancShares, Inc. Amended and Restated 2006 Stock Option and Performance Incentive Plan, as amended (the “2006 Plan”), plus 1,500,000 additional shares of Common Stock reserved for future issuance pursuant to stock options, restricted stock awards and other awards under the 2022 Plan and an estimate of approximately 108,490 shares of Common Stock subject to outstanding awards under the 2006 Plan that may become available for issuance under the 2022 Plan to the extent such outstanding awards under the 2006 Plan are forfeited, terminate, expire or lapse without shares of Common Stock being issued or to the extent such outstanding awards are settled for cash.
Table 2: Fee Offset Claims and Sources
N/A
TENTH AMENDMENT TO THE
RESTATED ARTICLES OF INCORPORATION
OF
HOME BANCSHARES, INC.
Pursuant to the Arkansas Business Corporation Act of 1987, as amended, Home BancShares, Inc. (the “Corporation”) does hereby adopt the following articles of amendment to its Restated Articles of Incorporation, dated March 12, 1999, as previously amended on October 23, 2003, March 9, 2005, April 18, 2005, May 9, 2007, January 9, 2009, January 13, 2009, April 18, 2013, April 21, 2016, and April 18, 2019:
1. The first sentence of Article SIXTH is hereby amended in its entirety to read as follows:
SIXTH: The Board of Directors of this Corporation shall consist of not less than two (2) nor more than seventeen (17) persons, the exact number of directors within such minimum and maximum limits to be fixed and determined, from time to time, by resolution of majority of the full Board of Directors or by resolution of the shareholders at any annual or special meeting thereof.
EXECUTED this 5th day of April, 2022.
/s/ Brian Davis
Brian Davis, Treasurer
Exhibit 5.1
425 West Capitol Avenue, Suite 1800
Little Rock, Arkansas 72201-3525
Telephone 501-688-8800
Fax 501-688-8807
April 21, 2022
Board of Directors
Home BancShares, Inc.
719 Harkrider Street, Suite 100
Conway, Arkansas 72032
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We are acting as counsel to Home BancShares, Inc., an Arkansas corporation (the “Company”), in connection with its registration statement on Form S-8 (the “Registration Statement”), filed on the date hereof with the Securities and Exchange Commission pursuant to Rule 462(a) under the Securities Act of 1933, as amended, relating to the proposed offering of up to 3,000,000 shares (the “Shares”) of the Company’s common stock, par value $0.01 per share (“Common Stock”), all of which Shares may be issued pursuant to the Company’s 2022 Equity Incentive Plan (the “Plan”). This opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. § 229.601(b)(5), in connection with the Registration Statement.
For purposes of this opinion letter, we have examined copies of the following documents:
1. An executed copy of the Registration Statement.
2. The Restated Articles of Incorporation of the Company, with all amendments thereto, as certified by the Secretary of State of the State of Arkansas and by the Secretary of the Company on the date hereof as being complete, accurate and in effect.
3. The Amended and Restated Bylaws of the Company, as certified by the Secretary of the Company on the date hereof as being complete, accurate and in effect.
4. A copy of the Plan.
5. All resolutions or minutes of the Board of Directors of the Company and the results of a vote of the shareholders of the Company, as certified by the Secretary of the Company on the date hereof as being complete, accurate and in effect, relating to the adoption of the Plan and arrangements in connection therewith and the registration of shares issued pursuant to the Plan, including the Registration Statement.
In our examination of the aforesaid documents, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents, and the conformity to authentic original documents of all documents submitted to us as copies (including electronic copies and telecopies). This opinion letter is given, and all statements herein are made, in the context of the foregoing.
Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. | Attorneys at Law
MitchellWilliamsLaw.com
Board of Directors
Home BancShares, Inc.
April 21, 2022
Page 2
This opinion letter is based as to matters of law solely on the Arkansas Business Corporation Act of 1987, as amended. We express no opinion herein as to any other laws, statutes, ordinances, rules or regulations.
Based upon, subject to and limited by the foregoing, we are of the opinion that, assuming receipt by the Company of the consideration for the Shares pursuant to the terms of the Plan, the Shares will be validly issued, fully paid and non-assessable.
This opinion letter speaks as of the date hereof. We assume no obligation to advise you of any changes in the foregoing subsequent to the delivery of this opinion letter.
Very truly yours,
/s/ Mitchell, Williams, Selig,
Gates & Woodyard, P.L.L.C.
MITCHELL, WILLIAMS, SELIG,
GATES & WOODYARD, P.L.L.C.
Exhibit 23.1
Consent of Independent Registered
Public Accounting Firm
We consent to the incorporation by reference in this Registration Statement on Form S-8 of Home BancShares, Inc. (the Company) of our report dated February 24, 2022, on our audits of the consolidated financial statements of the Company as of December 31, 2021 and 2020, and for each of the years in the three-year period ended December 31, 2021, which report is included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2021. We also consent to the incorporation by reference of our report dated February 24, 2022, on our audit of the internal control over financial reporting of the Company as of December 31, 2021, which report is included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2021.
BKD, LLP
Little Rock, Arkansas
April 21, 2022
Exhibit 99.2
RESTRICTED STOCK AGREEMENT
HOME BANCSHARES, INC.
2022 EQUITY INCENTIVE PLAN
This RESTRICTED STOCK AGREEMENT (this “Agreement”) is made on __________, 20___ (the “Award Date”) between Home BancShares, Inc., an Arkansas corporation (the “Company”) and __________ (the “Participant”). Capitalized terms used in this Agreement but not defined upon their first usage shall have the meanings ascribed to them in the Company’s 2022 Equity Incentive Plan, as amended from time to time (the “Plan”).
1. Grant of Restricted Stock. The Company hereby grants to the Participant __________ (______) restricted shares of the Company’s common stock, $0.01 par value (the “Restricted Stock”), pursuant to the Plan, subject to the terms and conditions of the Plan, this Agreement, and the Custody Agreement (the “Custody Agreement”) as in effect from time to time by and among the Company, the Participant, and the person or entity designated by the Board of Directors of the Company to serve as custodian thereunder (the “Custodian”).
2. Incorporation by Reference of the Plan. The Plan is hereby incorporated by reference into this Agreement. The Participant hereby acknowledges receipt of a copy of the Plan and represents and warrants to the Company that the Participant has read and understands the terms and conditions of the Plan. The execution of this Agreement by the Participant constitutes the Participant’s acceptance of and agreement to the terms and conditions of the Plan and this Agreement.
3. Vesting of Restricted Stock. Unless the Compensation Committee of the Board of Directors of the Company, as constituted at any time (the “Committee”) provides for earlier vesting, the Restricted Stock shall vest in accordance with the following schedule:
| | | | | |
| Percentage of Shares | Scheduled Vesting Date |
| |
| |
| |
4. Forfeiture Provisions.
(a) Termination of Employment upon Death or Disability. Except as otherwise provided herein, upon termination of the Participant’s employment with the Company or its subsidiaries or affiliates by reason of death or Disability, all unvested shares of Restricted Stock shall become fully vested on the date of the termination of such employment. Notwithstanding the foregoing provisions of this paragraph, if the Participant dies by suicide, while sane or insane, all unvested shares of Restricted Stock will be forfeited to and reacquired by the Company at no cost to the Company, automatically and immediately. For purposes of this Section 4(a), “suicide” shall include situations where the Participant (i) causes his or her own death in an obvious manner (where the Participant is clearly responsible for taking his or her own life), (ii) dies while carrying out acts of felony, or (iii) intentionally conducts activities with a high probability of death that result in death (such as, for example, excessively overdosing on drugs known to cause death or driving while extremely intoxicated).
(b) Termination of Employment for Other Reasons. Upon termination of the Participant’s employment with the Company or its subsidiaries or affiliates for any reason other than death or Disability, all unvested shares of Restricted Stock will be forfeited to and reacquired by the Company at no cost to the Company, automatically and immediately.
5. Rights as a Shareholder. The Participant shall have all of the rights of a shareholder of the Company, including the right to vote the Restricted Stock and the right to receive cash dividends thereon; provided, however, that dividends payable as distributions in full or partial liquidation of the Company or as the result of a merger or any other corporate reorganization shall not be distributed until such time as the Restricted Stock as to which such distribution applies vests.
6. Certificates. The Participant acknowledges that certificates or book entries representing the Restricted Stock, registered in the Participant’s name, shall be issued and delivered to the Custodian and held by or in the account of the Custodian in custody pursuant to the Custody Agreement and shall not be delivered to the Participant until such Restricted Stock has vested in accordance with Section 3.
7. Limits on Transferability. During the period of time that any shares of Restricted Stock are unvested, such unvested shares shall not be sold, assigned, transferred, pledged, hypothecated or otherwise disposed of, other than by will or the applicable laws of descent and distribution, or to a beneficiary upon the death of the Participant, or as otherwise permitted by the Committee.
8. Tax Withholding Obligations. In order to satisfy any withholding or similar tax requirements relating to the Restricted Stock, the Company has the right to deduct or withhold from any payroll or other payment to the Participant, or require the Participant to remit to the Company, an appropriate payment or other provision, which may include the withholding of Restricted Stock.
9. Change in Control. Upon a change in control of the Company, all non-forfeited unvested shares of Restricted Stock shall become fully vested, subject to compliance with legal and other requirements.
10. Adjustments Upon Changes in Capitalization. The number and price of shares of Restricted Stock subject to this Agreement shall be proportionately adjusted for any change in the stock structure of the Company because of share dividends, recapitalization, reorganizations, mergers or other restructuring.
11. Notices. Each notice relating to this Agreement shall be in writing and delivered in person or by certified mail to the proper address. Each notice shall be deemed to have been given on the date it is received. Each notice to the Company shall be addressed to it at its principal office, now at 719 Harkrider Street, Conway, Arkansas 72032, attention Chief Financial Officer. Each notice to the Participant shall be addressed to the Participant or such other person or persons at the Participant’s most recent address set forth in the Company’s personnel records. Anyone to whom a notice may be given under this Agreement may designate a new address by notice to that effect.
12. Plan Amendments. This Agreement shall be subject to the terms of the Plan, except that the Award that is the subject of this Agreement may not in any way be restricted or limited by any Plan amendment or termination approved after the date of the award without the Participant’s written consent.
13. Trading Black Out Policies. The Participant agrees to abide by all trading “black out” policies established from time to time by the Company.
14. No Employment Rights. Nothing in this Agreement will confer upon the Participant any right to continued employment with the Company or its subsidiaries or affiliates or affect the right of the Company to terminate the employment of the Participant at any time for any reason.
15. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Arkansas, without giving effect to principals of conflicts of laws, and applicable provisions of federal law.
[Signature page follows.]
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the date and year first above written.
COMPANY
HOME BANCSHARES, INC.
By:
John W. Allison, Chairman
PARTICIPANT
[Participant]
Exhibit 99.3
STOCK OPTION AGREEMENT
HOME BANCSHARES, INC.
2022 EQUITY INCENTIVE PLAN
This STOCK OPTION AGREEMENT, hereinafter referred to as the "Option" or the "Agreement," is made on __________, 20___ between Home BancShares, Inc., an Arkansas corporation (the “Company”) and __________ (“Optionee”).
The Company, pursuant to the terms of the Home BancShares, Inc. 2022 Equity Incentive Plan, as amended from time to time (the "Plan”), hereby grants an option to purchase ______ shares of Common Stock of the Company, par value $0.01 per share ("Common Stock") to the Optionee at the price and in all respects subject to the terms, definitions and provisions of the Agreement.
1. Option Price. The Option price is $______ for each share of Common Stock.
2. Exercise and Option. This Option shall be exercisable at any time and from time to time pursuant to the exercise schedule and in accordance with the terms of this Agreement as follows:
(a)Exercise Schedule. This Option shall vest and become exercisable in installments as indicated below:
| | | | | |
| Percentage of Shares | Scheduled Vesting Date |
| |
| |
(b)Method of Exercise. This Option shall be exercisable by a written notice, which shall:
(i) state the election to exercise the Option, the number of shares of Common Stock in respect of which it is being exercised, the person in whose name any book entry or stock certificate for such shares of Common Stock is to be registered, his or her address and Social Security Number (or if more than one, the names, addresses and Social Security Numbers of such persons);
(ii) contain such representations and agreements as to the holder's investment intent with respect to such shares of Common Stock as may be satisfactory to the Company's counsel;
(iii) be signed by the person or persons entitled to exercise the Option and, if the Option is being exercised by any person or persons other than the Optionee, be accompanied by proof, satisfactory to counsel for the Company, of the right of such person or persons to exercise the Option.
(iv) be accompanied by payment to the Company of the full Option price for the shares with respect to which the Option is exercised. The Option price shall be paid in the following manner:
(i) full payment in cash or equivalent;
(ii) full payment in shares of Common Stock, which shall have been held for more than six (6) months, having a fair market value on the exercise date equal to the Option price;
(iii) a “net exercise” arrangement where the Company will reduce the number of shares of Common Stock issued upon exercise by the largest whole number of shares with a fair market value that does not exceed the aggregate Option price; provided, however, that the Company shall accept a cash or other payment from the Optionee to the extent of any remaining balance of the aggregate Option price not satisfied by such reduction in the number of whole shares to be issued; or
(iv) any combination of (i), (ii) or (iii), equal in the aggregate to the Option
price.
(c) Securities Exemption. The Company shall not be required to issue or deliver any book entries or certificates for shares of Common Stock purchased upon the exercise of the Option (i) prior to the completion of any registration or other qualification of such shares under any state or federal laws or rulings or regulations of any government regulatory body, which the Company shall determine to be necessary or advisable, or (ii) prior to receiving an opinion of counsel, satisfactory to the Company, that the sale or issuance of such shares is exempt from these registration or qualification requirements.
(d) Restrictions on Exercise. As a condition to the exercise of this Option, the Company may require the person exercising this Option to make any representation and warranty to the Company as may be required by any applicable law or regulation.
(e) Termination, Death & Disability.
(i) In the event the employment of the Optionee shall be terminated by the Company or by the Optionee for any reason other than death or Disability, any unvested portion of this Option as of the date of the Optionee’s termination of employment shall be forfeited to the Company at no cost to the Company, automatically and immediately. Any vested and unexercised portion of this Option as of the date of the Optionee’s termination of employment may be exercised at any time on or before the earlier of (1) the date that is three (3) months after such termination of employment, or (2) the termination date of the Option as set forth herein.
(ii) In the event of the Optionee’s Disability, any unvested portion of this Option shall vest immediately. Any vested and unexercised portion of this Option may be exercised at any time on or before the earlier of (1) the date that is one (1) year after the determination of the Optionee’s Disability, or (2) the termination date of the Option as set forth herein.
(iii) Except as otherwise provided herein, if Optionee shall die while employed by the Company, any unvested portion of this Option shall vest immediately and become immediately exercisable by the Optionee’s estate or by the person who acquires the right to exercise such Option upon the Optionee’s death by bequest, inheritance or beneficiary designation. Any vested and unexercised portion of this Option may be exercised at any time on or before the earlier of (1) the date that is one (1) year after the date of the Optionee’s death or such other date as the Committee may at any time provide, or (2) the termination date of the Option as set forth herein. Notwithstanding the foregoing provisions of this Section 2(e)(iii), if the Optionee dies by suicide, while sane or insane, any unvested portion of this Option will be forfeited to the Company at no cost to the Company, automatically and immediately. For purposes of this Section 2(e)(iii), “suicide” shall include situations where the Optionee (A) causes his or her own death in an obvious manner (where the Optionee is clearly responsible for taking his or her own life), (B) dies while carrying out acts of felony, or (C) intentionally conducts activities with a high probability of death that result in death (such as, for example, excessively overdosing on drugs known to cause death or driving while extremely intoxicated).
(iv) This Option shall terminate the day before the 10th anniversary of the Option.
3. Non-Transferability of Option. This Option may not be assigned or transferred other than by will or the applicable laws of descent and distribution or pursuant to a transfer on death beneficiary designation by the Optionee on a form provided by the Company for such purpose; provided, however, that this Option may only be exercised by the Optionee’s heirs or beneficiaries to the extent vested and unexercised in accordance with this Agreement. This Option may be exercised during the lifetime of the Optionee only by the Optionee.
4. Stock Subject to the Option. In addition to the restrictions set forth above, the Company and the Optionee agree that the Common Stock of the Company acquired pursuant to this Agreement shall be subject to the restrictions set forth in the Plan.
5. Adjustments Upon Changes in Capitalization. The number of shares of Common Stock subject to this Agreement shall be proportionately adjusted for any change in the stock structure of the Company because of share dividends, recapitalization, reorganizations, mergers or other restructuring.
6. Notices. Each notice relating to this Agreement shall be in writing and delivered in person or by certified mail to the proper address. Each notice shall be deemed to have been given on the date it is received. Each notice to the Company shall be addressed to it at its principal office, now at 719 Harkrider Street, Conway, Arkansas 72032, attention Chief Financial Officer. Each notice to the Optionee or other person or persons then entitled to exercise the Option shall be addressed to the Optionee or such other person or persons at the Optionee’s most recent address set forth in the Company’s personnel records. Anyone to whom a notice may be given under this Agreement may designate a new address by notice to that effect.
7. Change in Control. Upon a change in control of the Company, any unvested portion of this Option shall become fully vested and exercisable on the date of the change in control, subject to compliance with legal and other requirements.
8. Benefits of Agreement. This Agreement shall inure to the benefit of and be binding upon each successor of the Company. All obligations imposed upon the Optionee and all rights granted to the Company under this Agreement shall be binding upon Optionee's heirs, legal representatives, and successors. This Agreement shall be sole and exclusive source of any and all rights which the Optionee, his or her heirs, legal representatives or successors may have in respect to the Plan or any options or Common Stock granted or issued hereunder, whether to himself or to any other person.
9. Plan Amendments. This Agreement shall be subject to the terms of the Plan, as amended, except that the Award that is the subject of this Agreement may not in any way be restricted or limited by any Plan amendment or termination approved after the date of the award without the Optionee’s written consent.
10. Successors. This Agreement shall be binding upon and inure to the benefit of the successors, assigns and heirs of the respective parties.
11. Terms. Any terms used in this Agreement that are not otherwise defined shall have the meanings prescribed to them in the Plan.
12. Entire Agreement. This Agreement contains the entire understanding of the parties and shall not be modified or amended except in writing and duly signed by the parties. No waiver by either party of any default under this Agreement shall be deemed a waiver of any later default.
[Signature page follows.]
IN WITNESS WHEREOF, the Company and the Optionee have caused this Agreement to be executed as of the day, month and year first above written.
COMPANY
HOME BANCSHARES, INC.
By: __________________________________
John W. Allison, Chairman
OPTIONEE
____________________________________
[Optionee]
