Exhibit 4.4
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of Four Thousand
(4,000) shares (the "Shares") of common stock, par value $0.01 per share (the
"Common Stock"), of FIRSTPLUS Financial Group, Inc. (the "Company"), is hereby
granted to Rich Bailey (the "Optionee") pursuant to the terms of this Option
Agreement (the "Option Agreement").
Section 1. Exercise Price. The exercise price is $44.50 for each Share.
Section 2. Exercise of the Option. This Option may be exercised at any
time and from time to time during the term of this Option, in whole or in part
with respect to Shares that have vested. Shares subject to this Option shall
vest as follows: 1/3 on the date of grant, 1/3 on the first anniversary of the
date of grant, and 1/3 on the second anniversary of the date of grant.
Notwithstanding the foregoing, this Option shall become fully vested and
exercisable upon the occurrence of certain significant corporate events
described in Section 2(e) below.
(a) Method of Exercise. Options shall be deemed exercised when:
(i) the Company has received written notice of such
exercise, including the number of Shares that are being
exercised, delivered to the Company in accordance with the notice
provisions herein signed by the person or persons entitled to
exercise this Option and, if this Option is being exercised by
any person or persons other than the Optionee, be accompanied by
proof, satisfactory to the Company, of the right of such person
or persons to exercise this Option;
(ii) full payment of the aggregate exercise price of the
Shares as to which this Option is exercised has been tendered to
the Company; and
(iii) arrangements that are satisfactory to the Company in
its sole discretion have been made for the Optionee's payment to
the Company of the amount, if any, that the Company determines to
be necessary for the Company to withhold in accordance with
applicable federal or state income tax withholding requirements.
(b) Payment. The exercise price of any Shares purchased shall be
paid solely in cash, by certified or cashier's check, by money order,
by personal check (if approved by the Company), or in Common Stock
owned by the Optionee (if the Optionee owned such Common Stock for six
months prior to using such stock to exercise the Option) (or by a
combination of the above). If the exercise price is paid in whole or
in part with Shares of Common Stock of the Company, such Common Stock
shall be valued at its Fair Market Value on the date of exercise. Any
Common Stock delivered in satisfaction of all or a portion of the
exercise price shall be appropriately endorsed for transfer and
assignment to the Company. For purposes hereof, "Fair Market Value" of
each Share on a particular date shall be the closing price of Common
Stock, which shall be (i) if the Common Stock is listed for trading on
any United States national securities exchange or the NASDAQ National
Market System, the last reported sale price of Common Stock on such
exchange as reported for trading on any United States national
securities exchange or the NASDAQ National Market System, the last
reported sale price of Common Stock on such exchange as reported in
any newspaper of general circulation, (ii) if the Common Stock is not
listed as provided in (i) above, but is otherwise quoted on NASDAQ or
any similar system of automated dissemination of quotations of
securities prices in common use, the mean between the closing high bid
and low asked quotations for such day of the Common Stock on such
system or (iii) if neither clause (i) nor (ii) is applicable, a value
determined by any fair and reasonable means prescribed by the Company.
(c) Restrictions on Exercise.
(i) This Option may not be exercised if the issuance of the
Shares upon such exercise would constitute a violation of any
applicable federal or state securities or other law or valid
regulation. As a condition to the exercise of this Option, the
Company may require the person exercising this Option to make any
agreements and undertakings that may be required by any
applicable law or regulation.
(ii) It is the intention of the Company to register the
Shares issuable upon the exercise of this Option pursuant to a
registration statement on Form S-8, prior to the exercise
thereof, or if Form S-8 is unavailable, then on Form S-3;
however, in the event that Shares are issued upon the exercise of
this Option without registration of such Shares under the
Securities Act of 1933, as amended (the "Act"), such Shares shall
be restricted securities subject to the terms of Rule 144 under
the Act. The certificates representing any such Shares shall bear
an appropriate legend restricting transfer and the transfer agent
of the Company shall be given stop transfer instructions with
respect to such Shares.
(d) Surrender of Option. Upon exercise of this Option in part, if
requested by the Company, the Optionee shall deliver this Option
Agreement and any other written agreements executed by the Company and
the Optionee with respect to this Option to the Company which shall
endorse or cause to be endorsed thereon a notation of such exercise
and return all agreements to the Optionee.
(e) Certain Corporate Events. On the date thirty (30) days prior
to any occurrence described in this Section (2)(e)(i), (ii) or (iii),
but only where such anticipated occurrence actually takes place,
notwithstanding the exercise schedule in this Option Agreement, this
Option shall immediately become exercisable in full with respect to
all of the Shares covered hereby where there (i) is any transaction
(which shall include a series of transactions occurring within 60 days
or occurring pursuant to a plan) that has the result that shareholders
of the Company immediately before such transaction cease to own at
least 51% of (x) the voting stock of the Company or (y) any entity
that results from the participation of the Company in a
reorganization, consolidation, merger, liquidation or any other form
of corporate transaction; (ii) is a merger, consolidation,
reorganization, liquidation or dissolution in which the Company does
not survive and the shareholders of the Company immediately before
such transaction cease to own at least 51% of (x) the voting stock of
the Company or (y) any entity that results from the participation of
the Company in such event; (iii) is a sale, lease, exchange or other
disposition of all or substantially all the property and assets of the
Company to an unaffiliated entity.
(f) Acceleration Shares. Notwithstanding any provisions hereof to
the contrary, if this Option is accelerated under this Section 2, the
portion of this Option that may be exercised to acquire Shares that
the Optionee would not be entitled to acquire but for such
acceleration (the "Acceleration Shares"), is limited to that number of
Acceleration Shares that can be acquired without causing the Optionee
to have an "excess parachute payment" as determined under Section 280G
of the Code, determined by taking into account all of the Optionee's
"parachute payments" determined under Section 280G of the Internal
Revenue Code of 1986, as amended (the "Code"). If as a result of this
Section 2(f), the Optionee may not acquire all of the Acceleration
Shares, then the Acceleration Shares that the Optionee may acquire
shall be the last shares that the Optionee would have been entitled to
acquire had this Option not been accelerated.
Section 3. Term of Option. This Option may not be exercised after the
expiration of ten (10) years from the Date of Grant of this Option and is
subject to earlier termination as provided in Section 4 below. This Option may
be exercised during such times only in accordance with the terms of this Option
Agreement.
Section 4. Termination of Option Period.
(a) The unvested portion of this Option shall automatically and
without notice terminate and become null and void at the time of the
earliest to occur of the following (provided that the vested but
unexercised portion shall remain exercisable for the term of this
Option as provided herein):
(i) thirty (30) days after the date that the Optionee ceases
to be employed by the Company or an affiliate of the Company by
reason of (x) the Optionee's voluntary termination of employment
or (y) termination of the Optionee's employment with the Company
or an affiliate of the Company for theft proven by the Company;
and
(ii) the tenth (10th) anniversary of the date of grant of
this Option.
Section 5. Adjustment of Shares.
(a) If at any time while unexercised Options are outstanding
hereunder, there shall be any increase or decrease in the number of
issued and outstanding shares of Common Stock through the declaration
of a stock dividend or through any recapitalization resulting in a
stock split-up, combination or exchange of shares, then and in such
event appropriate adjustment shall be made in the number of Shares and
the exercise price per Share thereof then subject to this Option, so
that the same proportion of the Company's issued and outstanding
shares shall remain subject to purchase at the same aggregate exercise
price.
(b) Except as otherwise expressly provided herein, the issuance
by the Company of shares of its capital stock of any class, or
securities convertible into shares of capital stock of any class,
either in connection with direct sale or upon the exercise of rights
or warrants to subscribe therefor, or upon conversion of shares or
obligations of the Company convertible into such shares or other
securities, shall not affect, and no adjustment by reason thereof
shall be made with respect to the number of or exercise price of
Shares then subject to this Option.
(c) Without limiting the generality of the foregoing, the
existence of this Option shall not affect in any manner the right or
power of the Company to make, authorize or consummate (i) any or all
adjustments, recapitalizations, reorganizations or other changes in
the Company's capital structure or its business; (ii) any merger or
consolidation of the Company; (iii) any issue by the Company of debt
securities, or preferred or preference stock that would rank above the
Shares subject to this Option; (iv) the dissolution or liquidation of
the Company; (v) any sale, transfer or assignment of all or any part
of the assets or business of the Company; or (vi) any other corporate
act or proceeding, whether of a similar character or otherwise.
Section 6. Assignability of Option. This Option may be transferred or
assigned by the Optionee.
Section 7. Issuance of Shares. No person shall be, or have any rights
or privileges of, a shareholder of the Company with respect to any of the Shares
subject to this Option unless and until certificates representing such Shares
have been issued and delivered to such person. As a condition of any issuance of
a stock certificate for Shares, the Company may obtain such agreements or
undertakings, if any, as it may deem necessary or advisable to assure compliance
with any provision of this Option Agreement or any law or regulation, including,
but not limited to, the following:
(a) a representation and warranty by the Optionee to the Company,
at the time this Option is exercised, that he/she is acquiring the
Shares to be issued to him/her for investment and not with a view to,
or for sale in connection with the distribution of any such Shares;
and
(b) a representation, warranty or agreement to be bound by any
legends that are, in the opinion of the Company, necessary or
appropriate to comply with the provisions of any securities law deemed
by the Company to be applicable to the issuance of the Shares and are
endorsed upon the certificates representing the Shares.
Section 8. Government Regulations. The granting and exercise of this
Option and the obligation of the Company to sell and deliver Shares under this
Option, shall be subject to all applicable laws, rules and regulations, and to
such approvals by any governmental agencies or national securities exchanges as
may be required.
Section 9. Law Governing. THIS OPTION IS INTENDED TO BE PERFORMED IN
THE STATE OF TEXAS AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF SUCH STATE.
Section 10. Notices. All notices and other communications that are
required to be or may be given under this Option Agreement shall be in writing
and shall be deemed to have been duly given when delivered in person,
transmitted by confirmed telecopy, upon receipt after dispatch by courier or by
certified or registered mail, postage prepaid, to the party to whom the notice
is given. Notices shall be given at the address under the signature of the
appropriate party to this Option Agreement or to such other address as such
party may designate by giving notice to the other party to this Option
Agreement.
Section 11. Miscellaneous.
(a) The grant of this Option is in addition to any other
compensation that may be paid to the Optionee or other stock option
plans of the Company or other benefits with respect to the Optionee's
position with or relationship to the Company or its subsidiaries. This
Option shall not confer upon the Optionee the right to continue as an
employee, consultant or advisor, or interfere in any way with the
rights of the Company to terminate the Optionee's status as an
employee, consultant or advisor.
(b) The members of the Board of Directors of the Company shall
not be liable for any act, omission, or determination taken or made in
good faith with respect to this Option, and members of the Board shall,
in addition to all other rights of indemnification and reimbursement,
be entitled to indemnification and reimbursement by the Company in
respect of any claim, loss, damage, liability or expense (including
attorneys' fees, the costs of settling any suit, provided such
settlement is approved by independent legal counsel selected by the
Company, and amounts paid in satisfaction of a judgment, except a
judgment based on a finding of bad faith) arising from such claim,
loss, damage, liability or expense to the full extent permitted by law
and under any directors' and officers' liability or similar insurance
coverage that may from time to time be in effect.
(c) Any issuance or transfer of Shares to the Optionee, or to the
Optionee's legal representative, heir, legatee, or distributee, in
accordance with the provisions of this Option, shall, to the extent
thereof, be in full satisfaction of all claims of such reasonable
persons under this Option. The Company may require the Optionee, or
any legal representative, heir, legatee or distributee as a condition
precedent to such payment or issuance or transfer of Shares, to
execute a release and receipt for such payment or issuance or transfer
of Shares in such reasonable form as it shall determine.
(d) Neither the Board nor the Company guarantees Shares from loss
or depreciation.
(e) All expenses incident to the administration, termination, or
protection of this Option, including, but not limited to, legal and
accounting fees, shall be paid by the Company; provided, however, the
Company may recover any and all damages, fees, expenses and costs
arising out of any actions taken by the Company to enforce its rights
under this Option.
(f) Records of the Company shall be conclusive for all purposes
under this Option, unless determined by the Board to be incorrect.
(g) Any action required of the Company relating to this Option
shall be by resolution of the Board or by a person authorized to act
by resolution of the Board.
(h) If any provision of this Option is held to be illegal or
invalid for any reason, the illegality or invalidity shall not affect
the remaining provisions of this Option, but such provision shall be
fully severable, and this Option shall be construed and enforced as if
the illegal or invalid provision had never been included in this
Option.
(i) Any person entitled to notice under this Option may waive
such notice.
(j) This Option shall be binding upon the Optionee, his legal
representatives, heirs, legatees and distributees upon the Company,
its successors, and assigns, and upon the Board and its successors.
(k) The titles and headings of Sections are included for
convenience of reference only and are not to be considered in
construction of this Option's provisions.
(l) The obligation of the Company to sell and deliver the Shares
under this Option is subject to applicable laws and to the approval of
any governmental authority required in connection with the
authorization, issuance, sale, or delivery of such Shares.
(m) Words used in the masculine shall apply to the feminine where
applicable, and wherever the context of this Option dictates, the
plural shall be read as the singular and the singular as the plural.
Date of Grant: FIRSTPLUS FINANCIAL GROUP, INC.
August 29, 1997
By: /s/ Daniel T. Phillips
-------------------------
Address: Name: Daniel T. Phillips
Title: President
1600 Viceroy Dr.
Dallas, Texas 75235
Optionee represents that he/he is familiar with the terms and provisions
thereof, and hereby accepts this Option subject to all the terms and provisions
of this Option Agreement. Optionee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Company upon any
questions arising under this Option Agreement.
By: /s/ Rich Bailey
-------------------------
Name, Optionee
Address:
4021 Morning Star Drive
Salt Lake City, Utah 84124
SCHEDULE A TO EXHIBIT 4.4
Substantially Identical Stock Option Agreements That Have Been Omitted
Pursuant to Instruction 2 to Item 601 of Regulation S-K
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Name Options
Granted*
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Kevin Gates 49,467
Brent Hansen 15,954
Jeff Johnson 15,954
Scott Mackay 10,625
Terrie Reedy 4,000
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*All of the above options were granted on August 29, 1997 at an exercise price
of $44.50.