Exhibit 4.6
STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of Two Hundred
Eighty Thousand (280,000) 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 G. Joiner (the "Optionee") pursuant to
the terms of this Option Agreement (the "Option Agreement"). This Option
Agreement supercedes the Option Agreement, dated February 28, 1997, between the
optionee and the Company under the Company's 1995 Employee Stock Option Plan.
Section 1. Exercise Price. The exercise price is $33.50 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 hereof. The
Company 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 that 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 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 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 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.
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(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.
(ii) As soon as practicable after execution of this
Option by both parties, the Company will use its best
efforts to file a registration statement on Form S-8 under
the Securities Act of 1933, as amended (the "Act") and use
its best efforts to cause the registration statement to go
effective prior to the earliest time at which the Shares may
be issued upon exercise of this Option. Any Shares issued
upon the exercise of this Option without registration of
such Shares under the Act, shall be restricted securities
subject to the terms of Rule 144 under the Act. The
certificates representing any such unregistered 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 Optionee, 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 sixty (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; or (iii) is a sale, lease,
exchange or other disposition of all or substantially all the
property and assets of the Company.
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Section 3. Term of Option. This Option may not be exercised after the
expiration of ten (10) years from the date hereof 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) termination of Optionee's employment pursuant to
Subsection 6.1 of Optionee's Executive Employment Agreement
of even date herewith; or
(ii) the tenth (10th) anniversary of the date hereof of
this Option.
(b) 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 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.
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(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 trans-
ferred 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
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.
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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.
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(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) 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) 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.
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Date hereof: FIRSTPLUS FINANCIAL GROUP, INC.
February 27, 1997
By:
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Name:
-------------------------
Title:
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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:
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William G. Joiner
Optionee
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(Social Security No.)
Address:
9 Lagunita
Laguna Beach, California 92651
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