Exhibit 4.5
STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of Seventy-five
Thousand (75,000) shares (the "Shares") of common stock, par value $.01 per
share (the "Common Stock"), of FIRSTPLUS Financial Group, Inc. (the "Company"),
is hereby granted to William P. Benac (the "Optionee") pursuant to the terms of
this Option Agreement (the "Option Agreement").
Section 1. Exercise Price. The exercise price is $48.3125 for each
Share.
Section 2. Exercise of the Option. This Option may be exercised at any
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 in equal one-third
shares on the first, second and third anniversaries of the date of grant. The
committee may in its sole discretion accelerate the date on which any Option may
be exercised. Notwithstanding the foregoing, this Option shall become fully
exercisable upon the occurrence of certain significant corporate events
described in Section 2(e) below.
(a) Method of Exercise. Options shall be deemed properly
exercised when:
(i) the Company has received written notice of such
exercise, stating the number of Shares which are being purchased,
delivered to the Company and 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 the Company, of the right
of such person or persons to exercise the Option;
(ii) full payment of the exercise price of the Shares as to
which the Option is exercised has been tendered to the Company;
and
(iii) arrangements that are satisfactory to the Committee 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 in cash, by certified or cashier's check, by money order, by
personal check (if approved by the Committee), or in Common Stock
owned by such Optionee (if 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 duly endorsed for transfer and assignment to
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 exercising person to
make any agreements and undertakings that may be required by
any applicable law or regulation.
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(ii) Shares issued upon the exercise of this Option
without registration of such Shares under the Securities Act
of 1933, as amended (the "Act"), 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.
(iii) This Option may not be exercised if, in the good
faith judgment of the Board of Directors of the Company or
the Board's designee, the issuance of the Shares upon such
exercise or the sale thereof would violate the Company's
written policy regarding sales or purchases of the Company's
Common Stock then in effect or if the Company proposes to
file a registration statement with respect to selling
additional shares of the Company's Common Stock and the
underwriters reasonably believe that the issuance of the
Shares upon such exercise or the sale thereof will
jeopardize the success of the offering.
(d) Surrender of Option. If this Option is exercised in part by
the Company, the Optionee shall, if requested, deliver this Option
Agreement and any other written agreements with respect to this Option
to the Company to be endorsed with a notation of such exercise and
returned 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 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; (iii) is a sale, lease, exchange or other disposition of
all or substantially all the property and assets of the Company.
Section 3. Term of Option. This Option may not be exercised after the
expiration of ten (10) years from the Date of Grant and is subject to earlier
termination as provided in Section 4. In addition, this Option is subject to
cancellation by the Company upon a significant corporate event 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 unexercised 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:
(i) thirty (30) days after the date that the Optionee
ceases to be employed by the Company or a subsidiary of the
Company or ceases to be a director, consultant or advisor to
the Company or a subsidiary of the Company, as the case may
be, regardless of the reason therefor other than as a result
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of such termination by reason of (x) death, (y) mental or
physical disability of the Optionee as determined by a
medical doctor satisfactory to the Company or (z)
termination of the Optionee's employment, status as
director, or consulting contract or advisory services, as
the case may be, with the Company or a subsidiary for cause;
(ii) one (1) year after the date on which the Optionee
suffers a mental or physical disability as determined by a
medical doctor satisfactory to the Company;
(iii) either (y) one (1) year after the date that the
Optionee ceases to be a director, consultant to or ceases to
be employed by, as the case may be, the Company or a
Subsidiary, by reason of death of the Optionee, or (z) six
(6) months after the date on which the Optionee shall die,
if the Optionee's death shall occur during the thirty (30)
day period described in Section 4(a)(i) or the one-year
period described in Section 4(a)(ii);
(iv) the date that the Optionee ceases to be a
director, consultant to or ceases to be employed by, as the
case may be, the Company or a subsidiary as a result of a
termination for cause; and
(v) the tenth (10th) anniversary of the date of grant
of this Option.
(b) If provided in an Option, the Company in its sole discretion
may, by giving written notice (a "Cancellation Notice") cancel,
effective upon the date of the consummation of any of the transactions
described in Section 2(e), all or any portion of this Option that
remains unexercised on such date. Such Cancellation Notice shall be
given a reasonable period of time (but not less than 15 days) prior to
the proposed date of such cancellation, and may be given either before
or after shareholder approval of such transaction.
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) The Company may change the terms of this Option, with respect
to the exercise price or the number of Shares subject to this Option,
or both, when, in the Company's sole discretion, such adjustments
become appropriate by reason of any significant corporate transaction.
(c) 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
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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.
(d) 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. Non-Assignability of Option. This Option may not be
transferred or assigned by the Optionee other than by will or by the laws of
descent and distribution.
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 an 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) The Optionee's representation and warranty to the Company, at
the time the Option is exercised, that the Shares to be issued are
being acquired for investment and not with a view to, or for sale in
connection with, the distribution of any such Shares; and
(b) the Optionee's 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 to be endorsed upon the certificates representing
the Shares.
Section 8. Administration of this Option.
(a) The determinations and the interpretation and construction of
any provision of this Option by the Company shall be final and
conclusive.
(b) Subject to the express provisions of this Option, the Company
shall have the authority, in its sole and absolute discretion (i) to
adopt, amend, and rescind administrative and interpretive rules and
regulations relating to this Option; (ii) to construe the terms of
this Option; (iii) as provided in Section 5, upon certain events to
make appropriate adjustments to the exercise price and number of
Shares subject to this Option; and (iv) to make all other
determinations and perform all other acts necessary or advisable for
administering this Option, including the delegation of such
ministerial acts and responsibilities as the Company deems
appropriate. The Company may correct any defect or supply any omission
or reconcile any inconsistency in this Option in the manner and to the
extent it shall deem expedient to carry it into effect, and it shall
be the sole and final judge of such expediency. The Company shall have
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full discretion to make all determinations on the matters referred to
in this Section 8(b), and such determinations shall be final, binding
and conclusive.
Section 9. 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 10. 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 11. 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 written notice to the other party to this Option
Agreement.
Section 12. 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 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 form as it shall determine.
(d) Neither the Board nor the Company guarantees Shares from loss
or depreciation.
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(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) Whenever any notice is required or permitted under this
Option, such notice must be in writing and personally delivered or
sent by mail or delivery by a nationally recognized courier service.
Any notice required or permitted to be delivered under this Option
shall be deemed to be delivered on the date on which it is personally
delivered, or, if mailed, whether actually received or not, on the
third Business Day after it is deposited in the United States mail,
certified or registered, postage prepaid, addressed to the person who
is to receive it at the address that such person has previously
specified by written notice delivered in accordance with this
subsection or, if by courier, seventy-two (72) hours after it is sent,
addressed as described in this subsection. The Company or the Optionee
may change, at any time and from time to time, by written notice to
the other, the address that was previously specified for receiving
notices. Until changed in accordance with this Option, the Company and
the Optionee shall specify as its or his address for receiving notices
the address set forth in this Option pertaining to the Shares to which
such notice relates.
(j) Any person entitled to notice under this Option may waive
such notice.
(k) 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.
(l) 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.
(m) All questions arising with respect to the provisions of this
Option shall be determined by application of the laws of the State of
Texas, except to the extent Texas law is preempted by federal law or
Nevada corporate law that is controlling. 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.
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(n) 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.
October 27, 1997
By: /s/ Daniel T. Phillips
------------------------------------
Daniel T. Phillips
Chairman and Chief Executive Officer
Address:
1600 Viceroy Dr.
Dallas, Texas 75235
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Optionee hereby accepts this Option subject to all the terms and
provisions of this Option Agreement.
By: /s/ William P. Benac
---------------------
Name William P. Benac
Optionee
------------------------------
(Social Security No.)
Address:
1600 Viceroy Drive
Dallas, TX 75235
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SCHEDULE A TO EXHIBIT 4.5
Substantially Identical Stock Option Agreements That Have Been Omitted
Pursuant to Instruction 2 to Item 601 of Regulation S-K
======================================================================================================
Name Grant Date Exercise Options Granted
Price
======================================================================================================
Veretta Anderson 08/03/98 $39.00 1,000
- ------------------------------------------------------------------------------------------------------
Mark Blinn 03/16/98 $41.4375 12,000
- ------------------------------------------------------------------------------------------------------
Ron Conner 07/14/97 $36.25 2,000
- ------------------------------------------------------------------------------------------------------
Charles Coons 06/01/98 $39.875 10,000
- ------------------------------------------------------------------------------------------------------
Michael Dillman 08/03/98 $39.00 1,000
- ------------------------------------------------------------------------------------------------------
William G. Eisenhauer 07/06/98 $36.3125 2,000
- ------------------------------------------------------------------------------------------------------
Linda L. Glidewell 07/01/98 $36.00 1,000
- ------------------------------------------------------------------------------------------------------
John Griggs 02/16/98 $36.75 12,500
- ------------------------------------------------------------------------------------------------------
John R. Hauge 04/13/98 $48.00 20,000
- ------------------------------------------------------------------------------------------------------
William Homer 05/11/98 $46.4375 2,000
- ------------------------------------------------------------------------------------------------------
Stephen Ingram 02/06/98 $32.875 80,000
- ------------------------------------------------------------------------------------------------------
David Jones 06/01/98 $39.875 12,500
- ------------------------------------------------------------------------------------------------------
Simone Lagomarsino 04/01/98 $42.125 3,000
- ------------------------------------------------------------------------------------------------------
Valerie Martin 06/01/98 $39.875 5,000
- ------------------------------------------------------------------------------------------------------
Robert Mirto 04/20/98 $53.0625 1,000
- ------------------------------------------------------------------------------------------------------
Richard W. Nelson 04/08/98 $45.5625 5,000
- ------------------------------------------------------------------------------------------------------
James M. O'Reilly 07/27/98 $43.1875 6,000
- ------------------------------------------------------------------------------------------------------
Kim Phillips 06/15/98 $38.75 2,000
- ------------------------------------------------------------------------------------------------------
Jeanne G. Selzer 03/23/98 $41.125 2,000
- ------------------------------------------------------------------------------------------------------
Valerie R. Silvey 03/30/98 $42.50 25,000
- ------------------------------------------------------------------------------------------------------
Craig L. Smith 06/15/98 $38.75 2,500
- ------------------------------------------------------------------------------------------------------
Jon W. Stewart 03/16/98 $41.4375 2,000
- ------------------------------------------------------------------------------------------------------
Douglas P. Swindall 08/03/98 $39.00 2,000
- ------------------------------------------------------------------------------------------------------
Lon Tibbatts 05/21/98 $41.875 1,000
- ------------------------------------------------------------------------------------------------------
Kenneth P. Weatherwax 05/18/98 $45.00 3,000
======================================================================================================