NONQUALIFIED STOCK OPTION AGREEMENT
FIRSTPLUS FINANCIAL GROUP, INC.
A Nonqualified Stock Option (the "Option") for a total of TWO HUNDRED ONE
(201) 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
KRISTIN ANDRADE-REITZ
(the "Optionee") pursuant to the terms of this Option Agreement (the "Option
Agreement").
SECTION 1. EXERCISE PRICE. The exercise price is $10.83 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 on the date of grant. 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 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 a 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 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) 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. The Company shall use its
best efforts to cause the Shares to be issued upon the exercise of the
Option to be included under an effective Registration Statement on
Form S-8 as soon as possible following the date hereof.
(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 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.
(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. 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) except as provided in Section 4(a)(iii), one (1) year
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 of
such termination by reason of (x) death, or (y) mental or physical
disability of the Optionee as determined by a medical doctor
satisfactory to the Company;
(ii) except as provided in Section 4(a)(iii), 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
one-year period described in Section 4(a)(i) or the one-year period
described in Section 4(a)(ii);
(iv) 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 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. ASSIGNABILITY OF OPTION. This Option may not be transferred
or assigned by the Optionee otherwise than by will or 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 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, 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. 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(a), 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.
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 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.
(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 and his or her 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.
(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.
August 27, 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/ Kristin Andrade-Reitz
-------------------------------------
Kristin Andrade-Reitz, Optionee
Address:
13471 Stonehenge Dr.
Tustin, CA 92780